The Martlet

Kwantlen Polytechnic will once again be represented in the Canadian Federation of Students (CFS) after a Jan. 20 B.C. Supreme Court ruling.

Justice Brenda Brown’s ruling concluded a seven-month long legal battle that pitted Kwantlen Students Association (KSA) Director of External Affairs Derek Robertson against the B.C. branch of the CFS (CFS-BC).

Representing the KSA to CFS-BC is part of Robertson’s job description as director of external affairs, a position he was first elected to in February 2008. Yet Robertson resigned from the CFS-BC executive soon after being elected, however, and then helped those campaigning in favour of the KSA leaving the CFS in an April 2008 referendum.

After 56 per cent of those who voted in the referendum voted to stay in the CFS, the KSA board reappointed Robertson as the CFS-BC representative. However, the rest of the CFS-BC exec voted against this, allowing him to take his seat. 

When Robertson was re-elected in February 2009, CFS-BC refused to ratify him again. 

CFS-BC chairperson Shamus Reid said the executive rejected Robertson because they “felt he couldn’t uphold his responsibilities as a director.”

On Jan. 20, however, Justice Brown ruled that the CFS-BC’s refusal to ratify Robertson violated both the B.C. Societies Act and CFS-BC bylaws.

The court has ordered that Robertson be returned to the CFS-BC executive and awarded legal costs to the KSA.

Robertson says that taking legal action was a last resort. 

“The KSA decided to go through the internal process of the CFS, namely going through the CFS-BC Annual General Meeting, in order to try to get me returned to the executive,” he said. 

But a motion to ratify Robertson failed at the August 2008 CFS-BC AGM. He was barred from taking his seat again at a June 2009 CFS-BC executive meeting.

“We had no choice but to go to court,” Robertson said.

Robertson says that there was “absolutely no proof” that he had breached his duties, and that he had resigned from CFS-BC before campaigning for defederation in order to avoid a conflict of responsibilities.

During the legal proceedings, CFS-BC submitted photographs showing Robertson had joined anti-CFS Facebook groups before he resigned from the CFS-BC executive. 

“Joining a Facebook group does not show your activity on that group,” Robertson said. “So they showed that I joined it, but they had no evidence of whether I wrote positive or negative things on that group.”

Robertson’s current elected term ends March 31, and there aren’t many CFS-BC meetings left before that date approaches.

Still, Robertson sees the main significance of the ruling as a precedent for boards of non-profit societies like CFS-BC.

“The court has recognized that CFS-BC was acting unreasonable,” said Robertson. 

The court also found that the B.C. Societies Act does not allow boards to employ a “discretionary ratification procedure.”

“[A board] has no right to disallow duly elected representatives from serving,” said Robertson, “because they cannot determine pre-emptively that they’re going to breach their fiduciary duty or any of the rights set out under the Societies Act.”

CFS-BC Chairperson Reid sees the court’s decision in a different light, however. 

“We believe this ruling was made in error and will have profoundly negative consequences for societies in B.C.,” he wrote in an e-mail statement. “The B.C. Societies Act provides that directors of a society are legally responsible for protecting the society from harm. Despite this legal responsibility, Justice Brown’s ruling denies directors the legal power to do so.”

Robertson disagrees with Reid’s interpretation. 

“The fact is, this ruling does not stop boards from holding their directors accountable,” he said. “If their directors breach the Societies Act and their responsibilities under the Societies Act...then they can be removed.” 

Robertson maintains that he has not done anything that he should be removed for.

“The only thing we can figure out,” he said, “is that the reason they disallowed me from being on the [CFS-BC executive] is that I campaigned to leave the CFS in our 2008 defederation referendum.”

According to Robertson, the KSA “followed the [CFS referendum] regulations to a tee.” 

After the referendum, the KSA executive publicly recognized that the majority of students, in fact, wanted to remain as members of the CFS. 

“We said, we look forward to working with the CFS,” Robertson said. “But we still recognize that there are a lot of problems within the CFS that need to change. And that’s exactly what we went on doing.”

CFS-BC is made up of 16 student unions across the province, each with a local representative on the CFS-BC executive.