



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Kwantlen University College Student Association v.
  Canadian Federation of Students  British Columbia,









2018 BCCA 16




Date: 20180117

Docket: CA44334

Between:

Kwantlen
University College Student Association,
Steven Button and Alex McGowan

Respondents

(Plaintiffs)

And

Canadian
Federation of Students  British Columbia

Appellant

(Defendant)




Before:



The Honourable Mr. Justice Donald

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Groberman




On appeal from:  An
order of the Supreme Court of British Columbia, dated February 24, 2017 (
Kwantlen
University College Students Association v. Canadian Federation of Students 
British Columbia
, 2017 BCSC 299, Vancouver Docket No. S146936).




Counsel for the Appellant:



M.G. Underhill

K.R. Phipps





Counsel for the Respondent:



D.B. Borins

J.P. Sullivan





Place and Date of Hearing:



Vancouver, British
  Columbia

September 18, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 17, 2018









Written Reasons by:





The Honourable Mr. Justice Groberman





Concurred in by:





The Honourable Mr. Justice Donald

The Honourable Madam Justice Saunders








Summary:

The respondents served a
petition on the appellant seeking a referendum on whether their students union
would withdraw from the appellant organization. Neither the appellant nor the
respondents had access to a list of their members, so the respondents asked the
registrar of the institution to verify the signatures on the petition. The
registrar confirmed that the petition was properly signed by the requisite
number of students. The appellant requested further information, and then
conducted its own verification of the petition, finding that the number of
valid signatures did not meet the required threshold. It refused to hold the
referendum. The respondents sued, seeking various forms of relief, and the
appellant sought judgment on a summary trial. The judge determined that the
only issue suitable for summary determination was who had authority to verify
the petition. He declared that the appellant was bound to accept the registrars
determination as to the validity of the petition. On appeal held: appeal
allowed in part. The declaration granted by the chambers judge is set aside.
While each side argued that it had exclusive authority to definitively
determine the validity of the petition, there was no basis for finding that
either side had such authority. The signature requirement was an objective one,
and the question of whether it was met could be determined by the courts if the
parties were unable to agree.

Reasons for Judgment of the Honourable
Mr. Justice Groberman:

[1]

In September 2013, students at Kwantlen Polytechnic University (Kwantlen)
circulated a petition asking for the holding of a referendum to decide whether
the Kwantlen University College Student Association (the KSA) would continue
to be a member of the Canadian Federation of Students  British Columbia (the CFS‑BC).
At that time, the bylaws of the CFS‑BC required the holding of a
referendum where 10% of its members at a member institution signed a petition
requesting one. The current appeal is concerned only with the question of who
was entitled to determine whether the 10% threshold was met.

The CFS‑BC Structure
and Bylaws

[2]

The CFS‑BC is an association of university and college students
unions. Students unions that are associated with the CFS‑BC are
described in its bylaws as local unions. The individual students who are
members of local unions are also members of the CFS-BC and described as individual
members in its bylaws. The directors of the CFS-BC are referred to as its Executive
Committee and manage the general affairs of the association.

[3]

The bylaws of the CFS‑BC allow an associated students union to
withdraw from the organization by way of a referendum. The appellant refers to
a withdrawal referendum as a disaffiliation referendum, while the bylaws use
the words defederation and decertification. It appears that all of these
expressions are interchangeable. In 2013 and 2014, the relevant bylaw provisions
included the following provision:

2.1       Full Membership



l. The individual members of the Federation collectively
belonging to a member local union will have sole authority to initiate, by
petition signed by not less than ten per cent (10%) of the individual members
and served to the Federations Executive Committee, a defederation referendum
as described in this Bylaw.

[4]

Subsequent provisions of the bylaw outlined procedures and rules for a
referendum. These other provisions are of limited importance to this appeal,
but are annexed to this judgment as an appendix.

The Petition and Verification
Processes

[5]

Individual students at Kwantlen collected signatures on a petition
calling for a decertification referendum in September 2013. On September 25,
2013, the petition was submitted to the Executive Committee of the CFS-BC. On
October 18, 2013, the CFS‑BC wrote to the KSA requesting the assistance
of the [KSA] in verifying the authenticity of the names appearing on the
petition, including the enrolment status (or membership status, if different).

[6]

The KSA responded, advising that the KSA does not have a copy of its
membership list as [Kwantlen] will not provide us with personal information of
students. The letter advised, however, that a copy of the petition had been
sent to the Office of the Registrar of Kwantlen, and that the Registrar had
agreed to verify the petition.

[7]

By letter dated December 10, 2013, the Registrar reported that there
were 1,505 signatures on the petition, of which 1,387 were valid. Of the 118
invalid signatures: 37 were found not eligible to vote or not on the student
list; 49 were cases where the student name did not match the student ID number;
13 were duplicate signatures; and 19 contained incomplete or illegible ID
numbers.

[8]

The letter stated that the number of eligible student voters was 13,501,
and that the number of valid signatures represented 10.27% of the total number
of students eligible to vote.

[9]

The KSA forwarded the letter to the CFC-BC on December 18, 2013. The CFS‑BC
executive was not satisfied with the Registrars letter, and responded to the
KSA in a January 11, 2014 letter:

As you are aware, the Executive Committee of the [CFS‑BC]
is responsible for determining whether a petition submitted by individual
members seeking a referendum on the question of continued membership in the [CFS‑BC]
is in order.

In order to consider the information that the Office of the
Registrar has provided, the Executive Committee requires a copy of the petition
that the Office used in its efforts to verity enrolment along with the Office
of the Registrars notes next to each name indicating its status (ie. valid,
invalid etc.) and a description of the criteria applied for the verification.
For those signatures deemed invalid, the Executive Committee will require an
explanation as to why the individual is not eligible (ie. incorrect student
number, not enrolled, etc.). Upon receipt of this basic supporting
documentation, the Executive Committee should be in a position to consider the
petition and determine whether it is in order.

Please advise me  if the [KSA]
is able to assist in this matter or if the Executive Committee should contact
the Office of the Registrar directly to make these arrangements.

[10]

The KSA responded on January 16, 2014:

You indicate in your letter that
the Executive Committee of the [CFS‑BC] is responsible for determining whether
a petition submitted by individual members seeking a referendum on the question
of continued membership in the [CFS‑BC] is in order. The CFS‑BC
bylaws contain no such provision

[11]

The response went on to state that the KSA was not in possession of the
information requested and expressed concern that the CFS‑BC was improperly
delaying the referendum process.

[12]

Over the following weeks, the parties exchanged letters, largely
reiterating their views and concerns. The CFS‑BC also wrote directly to
the Office of the Registrar of Kwantlen, requesting an up-to-date membership
list so that it could, itself, verify the petition. The CFS‑BC followed
up with several letters and voice messages to the Registrar.

[13]

On March 4, 2014, the Registrar provided a membership list to the CFS‑BC,
consisting of 16,262 individual student numbers, but without names. He invited
the CFS‑BC to return to him if it had any questions, but it did not do
so. On reviewing the list and the petition, the CFS‑BC concluded that
there were 1,507 signatures on the petition, but that only 1,342 of them were
valid.

[14]

On March 28, 2014, counsel for the CFS‑BC advised that the
referendum would not take place. Among the reasons given was that the petition
was signed by only 8.25% of the membership at Kwantlen.

[15]

In an affidavit sworn in November 2016, the Registrar explains the
efforts made by his office to verify the petition in 2013, and to produce a
list of voters for the CFS‑BC in 2014. He indicated that in 2013 his
office examined each name and student ID number on the petition. In order for a
signature to be considered valid, both the printed name on the petition and the
student ID number had to be clear, and both had to correspond with an
individual on the voters list.

[16]

With respect to the 2014 voters list, the Registrar states that the list
used in the original 2013 verification was not archived or retained. An effort
was made to recreate a voters list as of September 24, 2013, in response to the
CFS‑BCs request, but the Registrars office experienced some difficulty
in that endeavour. He states that the actual number of students registered at
Kwantlen in the fall of 2013 was 14,385, though not all would have been members
of the KSA. He concludes that the list his office provided to the CFS‑BC with
16,262 entries was obviously not accurate as it contained approximately 2,000
more student numbers than there were students enrolled at Kwantlen in the fall of
2013.

Proceedings in the Supreme
Court

[17]

In September 2014, the respondents commenced this action, alleging that
the CFS‑BCs actions in refusing to hold the referendum were in breach of
contractual and fiduciary obligations, and were oppressive. Among the remedies
sought was a declaration that the KSA was entitled to, and did, treat the CFS‑BCs
failure to hold a referendum in April 2014 as a fundamental breach of contract.

[18]

The CFS‑BC eventually proposed to have the matter disposed of by
way of a summary trial under R. 9-7 of the
Supreme Court Civil Rules
;
the KSA contended that the matter was not suitable for summary trial, and
brought an application to dismiss the summary trial application under R.
9-7(11).

[19]

The matters proceeded on February 6 and 7, 2017, but there was
insufficient time for full argument. The CFS-BC presented its full arguments on
the merits, but the KSA only presented its argument on suitability of the
matter for summary trial.

[20]

Despite the incomplete hearing, the judge considered it clear that the
claim was not, generally, suitable for a summary trial. He did consider,
however, that one discrete issue raised by the CFS‑BC was suitable for
summary determination: whether [the] Executive Committee [of the CFS-BC] had
implied authority under its bylaws to take such steps as it consider[ed]
appropriate to verify that the petition submitted to it had indeed been signed
by at least 10% of the members of the local union.

[21]

With respect to factual issues, the judge accepted the Registrars conclusion
that the list provided to the CFS‑BC was inaccurate, and contained almost
2,000 more student numbers than there were students at Kwantlen. He also
accepted the Registrars explanation as to why the earlier list contained only 13,501
names, even though Kwantlen reported total student enrollment at the time of
14,385.

[22]

The CFS-BC, however, argued that its own verification of the petition
determined that it contained only 1,342 valid signatures so that even if the
number of eligible voters was only 13,501, the number of signatures still fell
short of the 10% threshold. The CFS-BC contended that its Executive Committee
had ultimate authority to determine whether or not a signature was valid.

[23]

The judge rejected that contention. He noted that there was no express
provision in the bylaws giving the Executive Committee such authority. Further,
he found that past practice did not support the existence of such authority:

[56]      On the evidence before
me, there has been no past practice of the executive committee taking steps on
its own to verify the signatures on a petition, whereas it accepted several
previous petitions (at Kwantlen University College, Simon Fraser University, and
the University of Victoria) with verification by the Universitys registrar
such as Dr. Hensley provided in this case. This makes sense, given that
the Office of the Registrar can reliably be assumed to have no interest in the
politics of student associations, and alone has access to all of the relevant
information.

[24]

The judge, referring to clause 2.1(l) of the CFS-BC bylaws, considered
that the CFS-BC had no authority to verify a petition:

[60]      [T]he requests [for documentation from the Office
of the Registrar] are not consistent with the bylaw conferring on [individual
members] sole authority to initiate, by petition a defederation referendum. Note
that the sole authority that the bylaw confers is to initiate a defederation
referendum. The only means for doing so is through the initiating petition.
That petition must therefore come within and be subject to the sole authority
conferred upon the individual members.

[61]      Viewed in context, I can see nothing about this
grant of authority that requires me to imply the grant of a competing or
additional sole authority to the executive committee to verify the petition.
To imply such a division of sole authority would be inconsistent with Bylaw
2.1(l). It cannot be said that business efficacy requires such an implication,
given that the parties got along without it quite handily before this petition
was presented. Indeed, the chair of the executive committee, when examined for
discovery, was unable to refer to any previous instance of this type of
verification process being employed, and none was advanced in the affidavits.
The past practice where results were typically verified by the registrars of
the universities involved at the behest of the individual members (in
accordance with their sole authority) appeared to be sufficient until this
occasion.



[63]      CFS-BC maintains that such a power must necessarily
be implied because otherwise it would be left unable to determine whether a
petition actually met the required threshold. But that is how the bylaws
developed. Presumably it was to avoid this difficulty that members submitting
these petitions developed the practice of having them verified by the relevant
Office of the Registrar, a neutral party with all of the necessary information
at hand. What authority it might have been necessary to imply in the absence of
such verification need not be decided. Given that verification, it is
impossible to say that the parties must have intended that the executive
committee have a further and superseding authority to investigate and verify
the results.

[64]      I conclude that the
executive committee had no implied authority to investigate and verify the
petition forwarded by Mr. McGowan and confirmed by the [Kwantlen]
Registrars Office. That came within the sole authority of the individual
member (Mr. McGowan) and ought to have been accepted as satisfying the
threshold for the holding of a referendumsubject, of course, to other
prerequisites such as the payment of fees.

[25]

The formal order with respect to the verification issue contains the
following declaration:

[T]his court declares that the
Defendants Executive Committee had no  implied authority [to investigate and
verify the results of the petition] and that the Defendant ought to have accepted
the petition as having met the 10% threshold set out in Bylaw 2.1(l) of the
Defendants Bylaws, as they read in September 2013.

[26]

The CFS-BC attempted to appeal from both the judges determination that
the claim was not generally suitable for summary determination and from his declaration
that the Executive Committee of the CFS-BC lacked the authority to investigate
and verify the petition. It filed both a notice of appeal and an application
for leave to appeal and sought directions before a judge in chambers. The judge
held that the appeal with respect to suitability required leave, and she denied
leave. She held that the appeal with respect to the declaration concerning
verification of signatures on a petition did not require leave. Accordingly, that
is the only issue before this Court on this appeal.

Analysis

[27]

On appeal, the appellant raises three issues. First, it contends that
the judge failed to afford it a right to reply on the issue of verification of
the petition, and in so doing, failed to respect the requirements of procedural
fairness. Second, it says that the judge made a palpable and overriding error
of fact in finding that the CFS-BC had accepted petitions verified by
registrars in the past. Finally, it says that the judge erred in law in finding
that the Executive Committee of the CFS-BC did not have authority to verify the
signatures on the petition.

[28]

It is unnecessary to address the procedural fairness issue. The issues
that would have been raised in reply in the court below are not issues on which
the chambers judge would be entitled to deference, and the appellant has had a
full opportunity to address the issues on this appeal. As the appellant
concedes, if there was any unfairness to the appellant in not having had the
ability to present argument in reply, that unfairness can be corrected on
appeal.

[29]

It is also unnecessary, in my view, to analyze the issue of CFS-BCs
past practices in any detail. While the judge remarked on the absence of any
evidence of the CFS-BCs Executive Committee reviewing petitions after a
registrars review in the past, it does not appear to me that the judge based
his decision on that practice. Rather, he found that according to the language
of the bylaws, the sole authority to determine the adequacy of a petition
rested with the individual members who presented the petition. He found that
the practice of petition proponents of referring the petitions to the registrar
of the institution was reasonable, and eliminated any need to find an implied
right of verification by the CFS-BC.

[30]

In any event, I am not convinced that the history described by the
chambers judge  three referendums in which either the CFS-BC or the Canadian
Federation of Students (a separate but related organization) chose to accept
the views of an institutions registrar  could be taken to have established an
enforceable rule of the CFS-BC. In
Lakeside Colony of Hutterian Brethren v.
Hofer
, [1992] 3 S.C.R. 165 at 191-192, Gonthier J., writing for the
majority, found that a longstanding and well-established custom or tradition
can become an implied term of a voluntary associations rules:

A long-standing tradition provides a kind of notice to the
member of what rules the association will follow. We also must remember that
voluntary associations are meant largely to govern themselves, and to do so
flexibly. Therefore, tradition or custom which is sufficiently well established
may be considered to have the status of rules of the association, on the basis
that they are unexpressed terms of the Articles of Association. In many cases,
expert evidence will be of assistance to the court in understanding the
relevant tradition and custom.

The tradition that a group of
ministers appointed by the Senior Elder can finally decide issues referred to
them by the Senior Elder is a valid rule on this standard. No one disputes that
this tradition exists. The Constitution does not expressly forbid such
delegation. It merely gives the conference board a certain power without specifying
how it is to be exercised. The undisputed tradition is sufficient to authorize
the further delegation of this power.

[31]

In contrast, the history referred to in this case does not show a
practice that is either clear or well-established. At best, the evidence shows
that the Executive Committee of the CFS‑BC has, on three occasions in the
past, accepted a registrars verification of a petition as sufficient evidence
that the petition was valid. Nothing in the history suggests that the Executive
Committee has, in so doing, surrendered any power that it may have had to review
a registrars conclusions if it considered it appropriate to do so.

[32]

I turn, then, to the issue at the heart of this case. What powers does
the CFS‑BC have when it comes to verifying the signatures on a petition? The
parties primary positions on this issue are diametrically opposed. The CFS‑BC
asserts that it has final authority to determine the adequacy of a petition. On
the other hand, the KSA argues that the judge was correct in finding that the individual
members initiating the petition have authority (perhaps with the assistance of
the Registrar) to determine when a petition must be accepted. There is, of
course, a third possibility: that neither the proponents of a petition nor the
CFS‑BC has authority to definitively pronounce on the validity of
signatures.

[33]

The CFS‑BC argues that there are two alternative bases on which it
has the ability to determine the validity of signatures on the petition. First,
it cites s. 24(2)(a) of the
Society Act
, R.S.B.C. 1996,
c. 433, which was the applicable legislation at material times (it has
since been replaced by s. 52 of the
Societies Act
,
S.B.C. 2015, c. 18):

24. (2) Subject to this Act and the constitution and bylaws
of the society, the directors

(a) must manage, or supervise the management of, the
affairs of the society .

[34]

The appellant says that it is essential to the management of the CFS‑BC
that its directors have the ability to verify signatures on a petition:

It is not controversial that if a
society acts in a manner that is contrary to its articles, the act is
ultra
vires
and void. Bylaw 2.1(l) provides that a defederation referendum is
initiated by a petition signed by not less than 10% of the individual members
of a member local union. If a defederation referendum proceeds when a petition
has not been signed by 10% of the federation, the [CFS‑BC] will have
acted
ultra vires
its own bylaws. Pursuant to s. 85 of the
Society
Act
[now replaced by s. 105 of the
Societies Act
], an
interested person, including in this case another member local student union,
may apply to court to complain about the default in compliance, and the court
has the authority to intervene.

[35]

I agree that this reasoning demonstrates why the directors of the CFS‑BC
must have the ability to examine a petition, and to form a view as to whether
or not it meets the requirements of the bylaws. The same reasoning, however,
shows why a determination by the directors cannot be definitive. Just as the CFS‑BC
would be acting beyond its authority if it held a referendum where a petition did
not meet the requirements of the bylaws, it also acts beyond its authority
where it refuses to hold a referendum where a petition meets the bylaw
requirements.

[36]

The bylaws expressly set out objective requirements of a petition. The
directors, in their management of the affairs of the society, have no authority
to depart from those objective requirements. Nothing in the bylaws suggests
that the directors have any privileged position to determine whether the
objective requirements have been met.

[37]

For the same reason, I would reject the CFS‑BCs contention that
the directors have an implicit power to definitively determine the validity
of a petition. In
Moulton Contracting Ltd. v. British Columbia
, 2015
BCCA 89, this Court summarized the circumstances in which it is appropriate to
imply a term in a contract:

[53]      In
M.J.B. Enterprises Ltd. v. Defence
Construction (1951) Ltd.
, [1999] 1 S.C.R. 619 at para. 27  Justice
Iacobucci for the Supreme Court summarized the three circumstances (identified
in
Canadian Pacific Hotels Ltd. v. Bank of Montreal
, [1987] 1 S.C.R. 711
at 774-776) where terms may be implied in a contract:

(1) based on custom or usage; (2)
as the legal incidents of a particular class or kind of contract; or (3) based
on the presumed intention of the parties where the implied term must be
necessary to give business efficacy to a contract or as otherwise meeting the officious
bystander test as a term which the parties would say, if questioned, that they
had obviously assumed [citation omitted in
Moulton
].

[54]      Justice Iacobucci noted that while it was not clear
from
Canadian Pacific Hotels Ltd.
whether the business efficacy and officious
bystander tests were two separate tests, what was important in both
formulations is a focus on the intentions of the
actual
parties, and
not the intentions of
reasonable
parties (at para. 29 [emphasis
in original]):

This is why the implication of the
term must have a certain degree of obviousness to it, and why, if there is
evidence of a contrary intention, on the part of either party, an implied term
may not be found on this basis.

[55]      The key element is that
the implied term is more than just reasonable; it is necessary to make the
contract as the parties intended. That is, without the term, the contract, as
intended by the parties, would not be effective.

[38]

In the case before us, the bylaws can be effective without interpreting
them as giving the CFS‑BC authority to definitively determine whether a
petition is valid. Further, the CFS‑BC has an apparent interest in
maintaining its membership; it is impossible to infer any intention on the part
of the parties that the power to definitively determine the validity of a
petition would be placed in the hands of a body with pecuniary and political
interests in the issue.

[39]

I am not, on the other hand, convinced that there was any basis for the
judges finding that the bylaws give the proponents of a petition the right to
determine whether it conforms with the bylaws. I repeat, for convenience, the
provisions of Bylaw 2.1(l):

The individual members of the
Federation collectively belonging to a member local union will have sole
authority to initiate, by petition signed by not less than ten per cent (10%)
of the individual members and served to the Federations Executive Committee, a
defederation referendum as described in this Bylaw.

[40]

The purpose and effect of this provision are clear. It prevents a local
union from initiating a referendum by resolution or otherwise, and gives
individual members the exclusive right to initiate a petition. Nothing in the
provision expressly or implicitly gives the proponents of a petition the right
to determine whether it meets the objective criteria of the bylaws for the
holding of a referendum. The judge erred in interpreting the provision as
giving the proponents the right to determine the validity of their own
petition.

[41]

In my view, the question of whether a petition has been signed by 10% or
more of the CFS‑BC members in a local union is an objective one that is
to be determined on the available evidence. It is not for one party or another
to make a definitive ruling on the question.

[42]

I agree with the chambers judges observation that, because the parties
do not have access to lists of their members, they must, of necessity, rely on
a third party  the registrar of the institution  to assist in determining
whether a petition meets the threshold described in the bylaws.

[43]

The Office of the Registrar was clearly an impartial body, with no
apparent interest in the question of whether the petition met the threshold for
a referendum or not. The parties, quite reasonably, referred the petition to
the registrar, who graciously devoted resources to determining whether it met
the requirements of the bylaws.

[44]

I do not read the chambers judgment as suggesting that the registrar has
the power, under the bylaws, to definitively determine that question. In my
view, the registrar is not given such a power. The registrar is not mentioned
in the bylaws, and there is no reason to expect that the parties would
surrender their abilities to review the registrars work to satisfy themselves
that no errors had been made. It was, therefore, open to the CFS‑BC to
take issue with the registrars determination if it could demonstrate that
there were errors in it. Equally, it was open to the CFS‑BC to undertake
its own investigations into the validity of the petition.

[45]

From a practical standpoint, it would have been sensible for the parties
to discuss and, hopefully, resolve discrepancies among themselves, perhaps with
the assistance of the Registrar. Even a brief dialog would have demonstrated
that the numbers used by the CFS‑BC were obviously flawed, and that the
Registrars original assessment of the total number of eligible voters was
probably accurate.

[46]

The parties could then have focussed on the question of how many
signatures on the petition were invalid. This would have been a relatively
straightforward exercise. The CFS‑BC identified 165 signatures that it
alleged were invalid. It should have provided the respondents with a list of
the signatures that were disputed, along with its reasons for disputing those
signatures. The respondents could then have indicated which, if any, of those
signatures they considered valid. It is likely that the parties would have been
able to agree on the validity or lack of validity of the majority of those
signatures, leaving a relatively small number in dispute. The parties could
have gone to court and expeditiously had a judge determine which of those
signatures were valid. If 9 or more of the disputed signatures were valid, the
petition would have met the 10% threshold.

[47]

The parties did not avail themselves of such discussions, with each
taking the position that its own assessment of the facts should prevail. In my
view, the bylaws do not support the primary positions of either party. Neither
the CFS‑BC, the petition proponents, nor the registrar had the power to
unilaterally come to a definitive conclusion as to the validity of the
petition. If the parties could not reach agreement on that matter, it was one
that could be resolved by the courts on the available evidence.

[48]

This Court has, on many occasions, cautioned against the use of the
summary trial rule to decide individual issues in isolation from other issues
in litigation: See, for example,
Bacchus Agents (1981) Ltd. v. Philippe
Dandurand Wines Ltd.
, 2002 BCCA 138 at paras. 6-7;
B.M.P. Global v.
Bank of Nova Scotia
, 2003 BCCA 534;
Kaler v. Kaler
, 2013 BCCA 57 at paras. 23-25;
Edward Jones v. Mirminachi
, 2011 BCCA 493 at paras. 31-32. The
current case may well be an example of a situation in which the trial courts
efforts to resolve a single, non-determinative issue has resulted in
unfortunate delays to the litigation. As no party has addressed the question of
the propriety of the judge determining the single issue in isolation from all
others, however, I will not say more about it.

Conclusion

[49]

The declaration granted by the chambers judge was in error, and should
be set aside. The question of whether the number of valid signatures on the
petition met the 10% threshold set out in the bylaws is one that can be
determined by the trial court in the litigation, on the basis of all of the
evidence that the parties adduce.

[50]

The primary positions of both the appellant and the respondents on this
appeal have been rejected. I am of the view that neither has enjoyed
substantial success on the appeal. Each party should bear its own costs.

The Honourable Mr. Justice Groberman

I AGREE:

The Honourable Mr. Justice
Donald

I AGREE:

The Honourable Madam Justice
Saunders

Appendix  CFS-BC
Bylaw Provisions

2.4       Vote on
Decertification

The individual members of the Federation belonging to a
member local union may vote on whether to decertify, subject to the following
rules and procedures:

a.     Notice

i.      Notice
of a vote on [decertification], signed by a notary public, must be delivered by
registered mail to the head office of the Federation not less than six (6)
months prior to the vote.

ii.     Notice
of the vote must include the exact dates and times of voting.

iii.    No
vote on decertifying shall be scheduled between:

- January 1 and February 15; and

- July 15 and August 31.

iv.    Failure
to adhere to the notice provisions in Articles a.i. a.ii. and a.iii. shall
invalidate the results of the vote.



c.     Voting

i.      Voting
will be conducted at voting stations or, subject to the agreement of the
Federation, at a general meeting of the member local union.

ii.     There
shall be no less than sixteen (16) hours of polling over no less than two (2)
days, except in the case of voting being conducted at a general meeting.

iii.    In the
event that polling is conducted at a general meeting, representatives of the
Federation and Federation member local unions shall be extended full speaking
rights in the meeting.

d.    Quorum

Quorum for the vote shall be that
of the member local unions or five per cent (5%) of the individual members of
the local union, whichever is higher.

e.     Chief
Returning Officer

For each referendum on
decertification, the Executive Committee shall recommend an individual to serve
as the Chief Returning Officer. The Chief Returning Officers appointment is
subject to ratification by a general meeting of the Federation.

The Chief
Returning Officer shall be responsible for:

i.      establishing
the notice requirement for the referendum and ensuring that notice is posted;

ii.     establishing
the campaign period in accordance with Section 2.4.b of this Bylaw;

iii.    approving
all campaign materials in accordance with Section 2.4 of this Bylaw and
removing campaign materials that have not been approved;

iv.    deciding
the number and location of polling stations;

v.     setting
the hours of voting in accordance with Section 2.4.C of this Bylaw;

vi.    overseeing
all aspects of the voting;

vii.   counting
the ballots following the vote; and

viii.  establishing
all other rules and regulations of the vote.

f.     Campaign
Materials

Campaign materials shall not be
misleading, defamatory or false. The Chief Returning Officer shall be the sole
arbiter of whether materials are misleading, defamatory or false.

g.    Appeals

For each referendum on
decertification, an Appeals Committee shall be appointed to adjudicate any
appeals of the referendum results or rulings by the Chief Returning Officer.
The Appeals Committee shall be composed of:

i.      one
Executive Committee member or a designate appointed by the Federations
Executive Committee; and

ii.     two
individual members elected at a Federation general meeting who are not members
of the Federations Executive Committee.

Members of the Appeals Committee
shall not campaign during a vote to decertify.

h.    Required
Majority

In order for a decertification referendum to proceed, a
majority of the individual members voting in the referendum vote in favour of
decertifying.


