Saskatchewan Court of Appeal Overturns Flawed Referendum Process

In its 2007 decision in Mowat v. University of Saskatchewan Students' Union, the Saskatchewan Court of Appeal overturned the internal decision of a student association to become a member of a national student federation, despite the approval by a majority of students in a referendum.

1. Facts

The University of Saskatchewan Students' Union (USSU) was a non-profit corporation incorporated under the Saskatchewan Non-profit Corporations Act, 1995 (Act). It governs undergraduate student affairs at the University.

In 2004, the Council of USSU passed a motion to join the Canadian Federation of Students and the Canadian Federation of Students-Services (collectively, the CFS), two allied organizations that, among other things, advocate for students across Canada and pool student resources in the provision of various services.

To become a full member of the CFS, the USSU had to:

● First, hold a referendum of its members at which a simple majority voted in favour of joining the CFS.

● Second, obtain ratification of the results of the referendum by the Election Board of the USSU.

The referendum was held in the October 2015 under the supervision of a joint Oversight Committee composed of representatives of USSU and CFS. The referendum campaign was hotly contested: 3,552 students voted, with 55% voting in favour of joining CFS.

After the referendum, the Oversight Committee received several complaints from each side in the campaign. It looked into these complaints but the members of the Oversight Committee concluded that the referendum results were an accurate reflection of the will of the members of the USSU.

In accordance with USSU policies, the Elections Board was next charged with ratifying the results of the referendum. After receiving the report of the Oversight Committee, the Elections Board refused to ratify the result of the referendum because of flaws in the referendum process which, in the Elections Board's view, significantly affected the outcome of the vote. Rather than ratifying the result, the Elections Board recommended that another referendum be held with better settled and more widely disseminated ground rules.

But the Elections Board's recommendations were not followed. Instead, the Council of the USSU decided to override the decision of the Elections Board and purported to ratify the referendum result.

Robin Mowat, a former president and director of USSU and an active supporter of the "no" side in the referendum, commenced legal proceedings before the Saskatchewan Court of Queen's Bench for an order declaring the referendum to be of no force or effect. The trial court granted that order and USSU (along with CFS) sought to overturn that order in the Saskatchewan Court of Appeal.

2. Ruling

(a) Standing of Applicant

Mowat attended the University from the fall of 2000 to the spring of 2006 when he graduated. He was in his final year as a student at the University during the 2005-6 academic year when the referendum was held and the ratification decision of the Council of the Students Union was made (March 30, 2006). He immediately took steps to deal with the Council's purported ratification and commenced proceedings in May 2006, the same month in which he graduated. However, by the time the matter was argued before the trial court, Mowat had graduated.

USSU argued that Mowat did not have standing to bring the application. One of the arguments was framed on the basis that he did not represent a significant portion of the current student body and another was that he was no longer in a position to personally benefit from any order a court might make.

The Court of Appeal easily dismissed each of these arguments as to Mowat's standing. The events happened while Mowat was indisputably a member of USSU. That his application was ultimately argued a few months after he graduated could not defeat his right to bring his concerns forward. An individual's status as a student is inevitably temporary. There would be no justice in denying a student standing only because the process of reviewing the referendum results played out so slowly that he was unable to bring the matter before a court before he graduated. The Act gives the right to make an application to a member, not to a member who speaks for a significant portion of the members. In any event, 44% of the students who cast ballots in the election voted against joining the CFS.

(b) Merits

The Court of Appeal found that, having expressly amended its policy for the specific purpose of giving the Elections Board final authority with respect to the referendum, it was unfair for the Council of the USSU to then reverse field for the purposes of endorsing the referendum result. The Court of Appeal affirmed the decision of the trial court, nullifying the referendum.

3. Key Observations

This is a commendable decision on both the question of standing and adherence to the rules that the Council itself had set for the referendum.

It was arguably sufficient that the referendum was held while the complainant, Mowat, was a student at the University. When he happened to graduate is immaterial.

The referendum ground rules required a student vote and then, as a final authority, ratification by the Elections Board. Having held the referendum on that basis, it was patently unfair for Council to effectively waive the requirement for ratification, thereby removing the check on the fairness of the referendum process that the Council itself had put in place.