2022 MBKB 197, 2022 MBKB 197

Date: 20221024 Docket: CI 22-01-37188 (Winnipeg Centre) Indexed as: Canadian Federation of Students et al. v. The University of Manitoba Students’ Union Cited as: 2022 MBKB 197 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) Appearances : CANADIAN FEDERATION OF STUDENTS AND ) CANADIAN FEDERATION OF STUDENTS – ) Bernice R. Bowley and SERVICES, ) Michael O. Badejo, Articling ) Student-at-Law , plaintiffs, ) for the plaintiffs ) - and - ) ) Todd C.

Andres and ) Graham Fuga , ) for the defendant THE UNIVERSITY OF MANITOBA STUDENTS’ ) UNION, ) ) JUDGMENT DELIVERED: defendant. ) October 24, 2022 harris j. introduction [ 1 ] The Canadian Federation of Students and Canadian Federation of Students – Services (“CFS”) moves for interlocutory injunction to prohibit the University of Manitoba Students’ Union (“UMSU”), or anyone on its behalf, from conducting a referendum regarding UMSU’s continued membership in CFS, scheduled to take place on October 27 – 28, 2022, as well as other related activities. For the reasons which follow, the motion is dismissed with costs.

BACKGROUND [ 2 ] The CFS is a national students’ union representing over 500,000 students from more than 63 universities and colleges across Canada. UMSU is a student-governed association representing students at the University of Manitoba and has been a member of CFS since 2005. [ 3 ] Over recent years, UMSU had become dissatisfied with CFS representation on a number of issues and has sought to withdraw from membership with CFS.

While the bylaws of CFS set out a process for withdrawal (referred to as “decertification”), UMSU rejects that process as being applicable to it saying that it is bound by the process set out in The University of Manitoba Students’ Union Act (the “ Act ”) and its own bylaws.

Section 8.2(3) of the Act requires that UMSU’s membership in an external organization must be affirmed by the board every two years. The motion to affirm membership in CFS was defeated in each of 2018, 2020 and 2022. [ 4 ]

Section 8.2(4) of the Act directs the board to take all required steps to terminate the membership if the membership is not affirmed by a majority vote.

An attempt to decertify in accordance with CFS bylaws in 2020 was scuttled by CFS, which refused to allow the online collection of signatures despite the COVID-19 pandemic, which prevented in-person collection of signatures. [ 5 ] At the 2020 Annual General Meeting (“AGM”), UMSU and the University of Toronto Students’ Union brought forward a number of motions to amend the referenda procedure, but according to Carly Frey, Governance Executive Assistant of UMSU, none of the motions were discussed or voted on. Attempts to amend the bylaw regarding the decertification process were defeated at CFS’s AGM in 2021.

[6] In September 2022, in accordance with its bylaws, UMSU gathered a petition with over 1,180 student signatures petitioningUMSU to conduct a referendum on the issue of continued membership in CFS (“UMSU Petition”). UMSU also circulated a petition, inaccordance with CFS bylaws, petitioning CFS to conduct a referendum on the issue of continued membership in the CFS. [7] As a result of the UMSU Petition, UMSU’s Board of Directors passed a motion on September 22, 2022 which directed UMSUto:

a) hold a referendum on continued membership in the CFS with a question, “are you in favour of continued membership in theCanadian Federation of Students?”;

b) run the referendum in accordance with UMSU’s governing documents and allow opportunities for interested students to apply as a“side”;

c) appoint Eric Johnson as Chief Returning Officer for the referendum; and

d) hold a referendum with one week [sic] commencing on October 10, 2022. [8] Activities with respect to this referendum have been ongoing at the University of Manitoba campus; both “yes” and “no” sideshave organized and have been campaigning. [9] On August 30, 2022, CFS issued a Statement of Claim in this court seeking unremitted membership fees from UMSU coveringthe period from 2018 through to 2022. The Statement of Claim was amended on October 14th to seek relief with respect to thereferendum, including an interim/interlocutory and permanent injunction.

ANALYSIS [10] The test for granting an interlocutory injunction set out in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), 1994 SCC 117, [1994] 1 S.C.R. 311 (“RJR-MacDonald”): [48] Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or aninterlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious questionto be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.

Finally,an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending adecision on the merits. Is there a serious issue to be tried? [11] UMSU says that there is no serious issue as it cannot be said that whether UMSU can hold a lawful referendum pursuant to itsbylaws is a question that needs to be answered as its activities are within the scope of its bylaws.

CFS says that its bylaw, by whichUMSU is contractually bound, predates the 2015 UMSU bylaw and that the UMSU bylaw cannot retrospectively affect the rights of theparties (Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 171 at p 279). [12] UMSU also asserts that CFS has repudiated the contract through its refusal to address numerous issues which have been tabled byUMSU over recent years, as well as failing to accommodate UMSU in its request for online voting during the pandemic, the cumulativeeffect of which entitles UMSU to consider the relationship repudiated, freeing UMSU to pursue its own decertification process. [13] The threshold for determining a serious question to be tried is a low one (RJR-Macdonald at para 54).

I am satisfied that there isa serious question to be determined as to whether UMSU is bound by the bylaws of CFS. Will CFS suffer irreparable harm if the injunction is not granted? [14] In Ahlul-Bayt Centre, Ottawa v. Canada (National Revenue), 2018 FCA 61, the court recognized that irreparable harm must beclearly established: [15] It is a long-established principle that irreparable harm cannot be inferred, but must be established by clear and compellingevidence: Cheder Chabad, above at para. 26. General assertions cannot establish irreparable harm.

Nor can “[a]ssumptions, speculations,hypotheticals and arguable assertions, unsupported by evidence”; they carry no weight. Instead, “there must be evidence at a convincinglevel of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless [an extension] isgranted”: Gateway City Church v. Canada (National Revenue), 2013 FCA 126, 445 N.R. 360 at paras. 15-16. [15] On this part of the test, CFS has failed to provide any “clear and compelling” evidence as to the irreparable harm.

Corey Grist,the Director of Operations and Services of CFS asserts, without evidence, that allowing UMSU to proceed with its referendum willseriously undermine the voting process and may result in similar disruptions at other campuses in that other local student associationsmay attempt to follow the example of UMSU (emphasis added). Other concerns articulated by Mr. Grist are equally speculative. Thereis no evidence of a “real probability” irreparable harm will result if the injunction is not granted. The balance of convenience [16] Finally, the balance of convenience favours UMSU.

It appears that CFS’s concerns are not be so much about the process as towhich bylaws govern the decertification process, but the possibility of an outcome which leads to decertification and a loss of revenue. Mr. Grist deposes that “should UMSU proceed with the referendum in contravention of the Bylaws, and the result of that referendum is

the decertification from the CFS, the CFS will lose not only UMSU’s current student members, but an infinite number of future UMSU members and the associated membership fees….” The goal of CFS appears to be preventing decertification. [ 17 ] If this court was to grant an injunction to stop this referendum from taking place because it does not accord with the bylaws of the plaintiff, the effect would be to silence the voice of UMSU’s members. Whether the results of the referendum are binding or lead to any change is for the parties, or perhaps the court, to determine after the vote takes place.

In the meantime, members of UMSU have the right in a free and democratic society to express their views. [ 18 ] The motion is dismissed with costs. J.