Three lawsuits involving student clubs suing students’ unions, alleging they were improperly denied funding, were heard by Ontario Superior Court Justice Paul Perell on January 24 at Osgoode Hall. The eight-hour-long hearing included the suit against the University of Toronto Mississauga Students’ Union (UTMSU) by three members of UTM Students for Life (UTMSFL).
UTMSFL is an anti-abortion student group that filed a suit against the UTMSU in January 2016. Diane Zettel, Cameron Grant, and Chad Hagel are the three UTMSFL members listed as the applicants of the lawsuit.
The court simultaneously held hearings for two similar lawsuits. Speak for the Weak, another anti-abortion group at Durham College and the University of Ontario Institute of Technology (UOIT), is suing the Student Association of Durham College and UOIT, while the Ryerson Students’ Union (RSU) faces a suit from members of the Ryerson Men’s Issues Awareness Society.
Marty Moore is the lawyer representing the three clubs and is a staff lawyer with the Justice Centre for Constitutional Freedoms (JCCF), a non-profit advocacy organization tasked with “defend[ing] the constitutional freedoms of Canadians through litigation and education,” according to its mission statement. It has also represented Trinity Western University in its lawsuit against the Law Society of Upper Canada.
The UTMSU and RSU are being jointly represented by Alexi Wood and Jennifer Saville of St. Lawrence Barristers LLP. Woods and Saville previously represented the RSU in Grant v. Ryerson Students’ Union, 2015, another case involving a anti-abortion student club denied recognition from its student union. The judge sided with the RSU in that case.
Legal questions
While defending the clubs, Moore spoke of the close relationship between student unions and the publicly funded universities to which they are attached.
“If the University of Toronto Students’ Union decided to adopt the Bahá’í Faith and expressly made it a part of its documents in accordance to its letters patent, I think we would understand that its relationship with the publicly funded institution would begin to have to jeopardy there,” argued Moore. “The reality is that public institutions and the common law, which applies to public institutions, should take into account the fundamental values that apply on that campus.”
“[These are] not the arguments that I’m putting forward today, but I do recognize that that is one of the possible approaches that a court could take,” said Moore. He cited Rakowski v. Malagerio, 2007, a case also presided over by Perell, in which it was decided courts had the authority to intervene in student union policies.
Saville told the judge that student unions are private corporations, regardless of the fact that they operate on public university campuses, citing the Grant v. Ryerson Students’ Union case, where the judge ruled that student unions aren’t subject to public law. Wood expanded on this, adding that all UTMSU members, including those involved in the UTMSFL, had the right to vote on or run for the UTMSU Board of Directors and shape the union’s policies if they disagreed with them.
Perell responded, “There are some things where democracy is not the answer. Hitler got elected, with due process.”
UTMSFL’s case
Moore forewent any allegations of ideological bias; the crux of his submission was the allegation that the three unions went against their own policies and bylaws.
The UTMSFL members allege that the UTMSU informed them that the club would not be granted official club status due to its anti-abortion stance. In his submission, Moore told the judge that the UTMSU subsequently changed its reasoning and attempted to deny the club for technical violations. It is alleged that the UTMSU told the club, which only had three executive members, that it needed four executives in order to qualify for official club status and that it had to amend its constitution to be compliant with the UTMSU’s requirements and elect a fourth executive at a general meeting.
“[Then-UTMSU Vice-President Campus Life Russ Adade] kept on coming up with new requirements, including, at the end, ‘I have to be present at your meeting when you vote.’ The applicants said, ‘Fine, come to our meeting. We’ll do a re-vote. We’ll re-enact our constitutional amendments,’” Moore told the judge.
The applicants also allege that Adade brought five people who were not members of UTMSFL to attend the meeting and vote against the election of the fourth executive.
Wood pointed out that in cross-examination, Adade denied allegations of stacking the deck at that meeting and actually tried his best to help UTMSFL meet the UTSMU’s requirements to qualify for clubs funding.
“We have an affidavit from Mr. Adade, who says he doesn’t do that, and we asked him on cross and he denied it on cross. He said that these members attended on their own,” Wood told the judge. “They had come to him, they had talked to him about [UTMSFL] and he said, ‘If you have issues with [UTMSFL], go to the meeting on the 23rd and talk to [UTMSFL] there.’”
Wood also told the judge that UTMSU-recognized clubs are required to be open to all UTMSU members and that all UTMSU members can therefore vote in the club elections. The only exception, Wood said, is if the club lays out different voting rights in its constitution. “[UTMSFL] did not put into their constitution any restrictions on who could vote,” she continued.
According to Wood, Adade sent an email to UTMSFL after the general meeting, explaining the next steps and expressing willingness to continue working with the club to get its club status approved. The student union board then received an email from Moore saying that UTMSFL was commencing legal proceedings.
It is unknown when the court will reach a decision, although the decision for Grant v. Ryerson Students’ Union came out nearly 10 months after the hearing.
