The legal dispute between the University of Toronto Graduate Students’ Union (UTGSU) and the Canadian Federation of Students (CFS) has come to a close, with Justice Liza Sheard ruling on July 6 that the UTGSU remains a member of the CFS.
The CFS is an organization comprised of over 80 student unions from across Canada. Its membership includes the UTGSU, the union that represents graduate students at U of T from all campuses. The federation — as well as its provincial wing, CFS-Ontario — commenced legal proceedings against the UTGSU in December 2014, following the union’s referendum in November 2014 on whether or not to remain a member.
In accordance with the CFS bylaws, quorum for the referendum was set at 1606 votes — 10 per cent of the union’s membership. Sixty-six per cent of students who cast ballots in the referendum voted against continued membership with the CFS, however, the vote was seven short of reaching quorum.
Referendum issues
The case was heard in February 2016. The UTGSU argued that Stephen Littley — the CFS-hired Chief Returning Officer (CRO) for the referendum — made decisions in an unreasonable manner and in a way that would have prevented a higher voter turnout, namely affecting aerospace students, students enrolled in online courses, and students studying abroad. The union submitted affidavits from eight students who say they were not able to vote but would have, if given the chance.
Littley did not a place polling station at the University of Toronto Institute for Aerospace Studies (UTIAS), which had 180 graduate students and is physically removed from UTSG — approximately 30 minutes by car and 60 minutes by public transit. Littley’s tour of the campuses while scouting for polling station locations did not include the Aerospace campus.
Joshua Newman, a UTGSU member who served on the union’s litigation committee, and Shu Zhang, a UTIAS student, sent requests to Littley for polling stations at UTIAS. In his response to Newman, Littley wrote that the polling stations were open nine hours a day for five days and were accessible by car or public transport.
Newman believed the travel time between UTIAS and UTSG was too far to be easily accessible. The union also presented evidence that one student could not leave the UTIAS laboratories during the hours that voting was open.
Littley defended the lack of polling stations at UTIAS during cross-examination. Littley believed that the voting hours on the other campuses were sufficiently long and the polling stations were accessible by public transit. He also cited the cost to hire another deputy returning officer at the campus and the low voter turnout of previous elections as reasons against implementing a polling station at UTIAS.
The union also took issue with the CRO’s refusal to allow ballots to be sent in by mail. There were 290 graduate students enrolled in online courses and 190 students studying abroad. The UTGSU asserted that these students were not able to vote, given the rules.
The CFS bylaws only allow for referendums to be conducted using paper ballots. The bylaws do permit mail-out ballots; Littley rejected this option, as the university administration would not provide a list of student names and addresses for privacy reasons.
The ruling
Justice Sheard rejected the UTGSU’s claims that Littley acted in bad faith by not allowing mail-out ballots: “There was no evidence at all of an intent on the part of the CRO to defraud or to seek unconscionable advantage.”
The judge agreed that without the names and addresses of UTGSU members, mail-out ballots would not have been possible. Sheard also did not view Littley’s decision for polling station locations as an exercise in bad faith: “He did so and gave his reasons, albeit reasons with which the UTGSU disagrees.”
Sheard believed that Littley was acting in good faith in his capacity as the CRO by allowing for a total of 45 hours of voting — which is higher than the minimum 17 hours of voting that the CFS bylaws mandate — and did not fault him for trying to keep costs low.
The judge was critical of the lack of online voting, as restricted under the CFS bylaws, and called it “antiquated and impractical.”
“That is particularly true in the case of a large university like the University of Toronto, which has a number of geographically spread-out campuses,” explained Sheard. “It would be easy to envision any number of situations, different from those here, in it could be argued that the voting requirements prescribed by the Bylaws lead to hardship or unfairness to some students for whom voting would be difficult or even impossible.”
Sheard believed that it was not the court’s role to interfere with or infer the bylaws and the terms of the contractual relationship between the CFS and the UTGSU.
It remains unclear how the parties involved in the case will agree upon the legal costs, which — as Sheard points out — will come out of student fees.
CFS Communications Coordinator Sarah McCue did not provide a response to The Varsity’s inquiries, nor did representatives of the UTGSU. The UTGSU’s executive assistant, Heidi Krieger, was travelling and unavailable to comment. Requests for comment sent to UTGSU fieldworker Gail Fernedes; Communications and Events Coordinator Michaelle St-Amour; Academics and Funding Commissioners Andrea Constantinof and Brieanne Berry-Crossfield; External Commissioner Cristina Jaimungal; and Executive-at-Large Elizabeth Eng went unanswered.
