A Recent Canadian Post-Secondary Education Law Case

Facts

A number of faculty members (the Petitioners) at Simon Fraser University (the University) in British Columbia voiced concerns regarding two resolutions passed in June 2024 by members of the Faculty Association of Simon Fraser University (the Faculty Association).

The Faculty Association was established in 1965 as a non-unionized professional association registered as a society under the Societies Act, S.B.C. 2015, c. 18 (the Act). In 2014, the Faculty Association was certified as a bargaining agent and trade union under the Labour Relations Code, R.S.B.C. 1996, c. 244. The Faculty Association is therefore both a society and a trade union. Faculty Association Membership is mandatory for anyone eligible for membership, which includes 1200 faculty, librarians and other academic staff.

The Faculty Association’s constitution sets out its purposes:

a) Assert the integrity of the academic profession;
b) Defend academic freedom in teaching and research;
c) Promote the welfare of all faculty members;
d) Foster high standards of excellence in teaching and scholarship; and
e) Act as the sole bargaining agent of all faculty members employed by the University and regulate relations between faculty members and the University through collective bargaining.

The Faculty Association had an unchallenged practice of debating political and social issues of interest to the membership, including:

a) A campaign to protest the arrest and torture of a professor in Uruguay for his political affiliations;
b) A campaign to end torture, abduction and oppression by agents of the Pinochet regime in Chile;
c) Opposition to the Trans Mountain Pipeline by Kinder Morgan; and
d) University divestment from fossil fuels in light of the climate crisis.

In April 2024, the Faculty Association Executive received two proposed motions from members, for debate at the Faculty Association annual general meeting (AGM), taking place on May 8, 2024. The Executive determined that the motions would be put to a referendum by electronic vote after the AGM, to allow the greatest number of members to participate.

The Gaza Resolution

The legal issue was whether the Resolutions being challenged by the Petitioners were inconsistent with the Faculty Association’s stated purposes.

The first motion (which, upon adoption became the Gaza Resolution) was in response to Isreal’s assault on Gaza resulting in more than 110,000 Palestinians dead or wounded, including over 230 teachers, 95 university professors, and three university presidents. The motion urged University administration to:

1) Condemn Isreal’s destruction of the education system in Gaza, calling for an immediate and permanent ceasefire and an end to ‘scholasticide’ in Palestine.

2) Suspend all institutional partnerships with Israeli academic institutions and divest from Israeli commercial interests pending termination of Israel’s policies of military occupation and apartheid;

3) Support Palestine’s universities and educational sector through inter-institutional cooperation; and

4) Commit to placements, fellowships, and scholarships for new students from Palestine, and hardship funds for students affected by the war on Gaza. 

The Divestment Resolution

The relevant Custodial Statement of Endowment Investments indicated that the University owned shares in corporations linked to war contracting and military arms and equipment production. The second motion called upon the University to divest from corporations engaged in military arms production, anchoring a commitment to the University’s Responsible Investment Policy (B10.16).

Both motions were vigorously debated at the AGM. Voting on the motions occurred in June 2024. The Gaza Resolution passed, with a total of 700 members casting ballots (333 in favour; 326 opposed; 41 abstained). The Divestment Resolution passed, also with 700 members casting ballots (423 in favour; 244 opposed; 33 abstained).

Shortly thereafter, the Faculty Association Executive submitted the Resolutions to the University, calling upon the University administration to act upon them.

Cause of Action

Faculty Association members (the Petitioners) brought a petition under s. 104 of the Act, asking the Court to order that the Faculty Association refrain from acting on the two June 2024 resolutions (the Resolutions), and declaring those resolutions void or invalid on the basis that they were inconsistent with the Faculty Association’s stated purposes.

The Petitioners argued that the taking of stances on divisive geopolitical issues and the advancement of political causes – the essence of the Resolutions – was inconsistent with the Faculty Association’s purposes. They further argued that members of the University community were free to advocate for political stances on their own, or through other groups and organizations, but not through the Faculty Association (with mandatory membership for faculty), whose actions and activities were constrained by its stated purpose. 

Section 104 allows for the restraint of action that is contrary to or inconsistent with a society’s purposes. The Petitioners bore the persuasive burden of establishing that the Resolutions were inconsistent with the purposes of the Faculty Association.

Legal Issue

The Court’s task was to assess the Faculty Association’s purposes, and the extent to which the Resolutions were consistent with those purposes, on an objective basis. 

The legal issue was whether the Resolutions being challenged by the Petitioners were inconsistent with the Faculty Association’s stated purposes. 

Decision

The petition was dismissed. The Court found that a purposive approach to the interpretation of the Faculty Association’s purposes was required, and that the Resolutions were not inconsistent with those broadly worded purposes pursuant to s. 104(1)(b) of the Societies Act. 

Reasons

Interpreting Section 104 of the Societies Act

Section 104 of the Act allows for the restraint of action that is contrary to or inconsistent with a society’s purposes. Here, the parties agreed that declaratory relief was available pursuant to that provision. The question for the Court was whether the Faculty Association had acted inconsistently with its purposes regarding the Resolutions.

In determining whether the Faculty Association acted consistently with its purposes under the Act, one consideration was respect for the reasonable expectations of the members. The relationship between a society and its members is generally a contractual one, or at least resembling a contractual one (Farrish v. Delta Hospice Society, 2020 BCCA 312 at para 46).

The Court agreed with the Faculty Association regarding a more restrained approach to interfering with the decisions of a private society. Here, the Court determined that its role was to consider whether the exercise of the Faculty Association’s discretion to forward the Resolutions to the University for action was consistent with the purpose of that discretion (Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7).

The Petitioners could not convince the Court that a strict approach to interpreting the Faculty Association’s purposes was warranted. In the Court’s view, a purposive, rather than restrictive, approach was called for.

Determining the Resolutions

The Court rejected the Petitioner’s arguments that the Faculty Association’s purposes were geographically bounded to the University itself or limited to labour relations and faculty welfare. Additionally, in the Court’s view, defending academic freedom – a broad societal concept – did not have a narrow definition or precise scope.

Overall, the Court was satisfied that the wording of the Gaza Resolution – the most divisive within the membership – sufficiently aligned with the Faculty Association’s purposes of asserting the integrity of the academic profession, the defence of academic freedom in teaching, and the fostering of high standards in teaching and scholarship. Further, the Court found that the Divestment Resolution was connected to, and not inconsistent with, the Faculty Association’s stated purpose to promote the welfare of its members and as the union of those members.

Mandatory Nature of Union Membership

The Court was not convinced that mandatory Faculty Association membership detracted from how members could seek to influence University policies. Nor was the Court convinced that the language of the constitution defining the Faculty Association’s purpose as promoting the welfare of all faculty members invoked a requirement for consensus regarding resolutions impacting collective welfare. Instead, the Court agreed that there was no requirement for the Faculty Association to influence working conditions or promote member welfare only through grievance procedures, and that the Faculty Association was free to do so in many ways.

Altman v. Faculty Association of Simon Fraser University, 2025 BCSC 1690 (British Columbia Supreme Court).

Authored by Anna Zadunayski LLB, MSc. 

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