Ultra Vires

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Ultra vires is one of those annoying phrases that law students learn in first year and start throwing around like it cost them $100+ to learn, but it’s latin for “beyond the powers”.

At this moment Student Council is debating… I couldn’t really say. But it’s definitely about the Israeli boycott, divestment and sanctions (“BDS”) movement, which seeks to build international pressure to convince Israel to do a number of things, and a proposed referendum to support BDS.

The issue of building consensus in Israel and Palestine is outrageously complicated, which raises the question of if the AMS is equipped to make an effective decision on whether to support, oppose or abstain from the BDS campaign.

Of course, this is not something unique to the AMS. For companies there are provisions of the BC Business Corporations Act allowing boards of directors to disallow shareholder proposals that are tangential to the business of the company and are for the purposes of publicity. The BC Society Act, AMS Constitution, and AMS Bylaws have no such provision but that doesn’t mean they aren’t instructive.

Societies are corporations – which just means they’re a collection of people united in a common purpose and not necessarily for profit – and their constitutions define their purpose and scope of activity. If a society or a board of directors of a society makes a decision which goes outside the powers it has been granted, the courts have the right to rectify it because the decision is ultra vires.

So far, so boring. Here’s the interesting bit: nobody ever, and I mean ever, talks about the AMS Constitution because it doesn’t have much in the way of rules or meaningful guidance but the purposes set out in it are just as important as anything in the AMS Bylaws and have real weight. The reason is because British Columbian courts have ruled bylaws are essentially a contract between the members of a society and therefore “the various parts of the contract are to be interpreted in the context of the intentions of the parties as evident from the contract as a whole”. (Bhandal v Khalsa Diwan Society of Victoria, 2014 BCCA 291 at para 28) This purposive approach is really, really, really important.

Bylaw 15 defines the powers of the society, which are the powers under which a referendum gets its authority. It says “the Society has the power and capacity of a natural person of full capacity as may be required to pursue its purposes”. This incredibly broad language essentially says the rights of the membership are only constrained by the purposes set out in the AMS Constitution.

Therefore, do the purposes of the AMS give the authority to the AMS to make pronouncements about BDS? In my opinion, there are three purposes relevant to issues of political representation:

(a) To promote, direct, and control all student activities of UBC Vancouver.

…

(c) To promote the principle and practice of student representation at all levels of decision making at the University and on all agencies or other bodies which deliberate on the affairs of its members.

(d) To advance the cause of higher learning in the Province of British Columbia.

(e) To promote unity and goodwill amongst its members.

Let’s just accept that (e) is so vague as to be meaningless. For a student body as diverse as UBC, even promoting unity and goodwill would probably create some level of division. (d) is self-evidently irrelevant to this issue. (c) speaks to the importance of student representation within the University and other agencies or bodies deliberating on the affairs of its members. Arguably, that’s one way the fossil fuel divestment campaign last year was different – it was asking the AMS to lobby the university to change its practices. In contrast, the proposed referendum asks, “Do you support your student union (AMS) in boycotting products and divesting from companies that support Israeli war crimes, illegal occupation and the oppression of Palestinians?” This is asking the AMS to restrict its own activities, which legally may be a world of difference.

Finally, there is (a) which could be a bit of a catch-all provision. My best guess would be a judge’s decision would turn on what it means to “promote, direct, and control all student activities” but I would argue it means the administration and management of clubs and like activities. I say this for two reasons: 1) historically, that is probably the most defensible meaning of the phrase throughout the history of the AMS (and probably the meaning at the time it was developed), and 2) if the phrase meant the right to advance causes other than higher learning in the Province of British Columbia, it likely would have said so. Why? Because when the constitution wants to advance a cause, it does so right there for all to see! The latter argument is probably the most significant because under the purposive approach, you have to presume the text was made for a reason, endeavour to understand that reason, and interpret it in the context of that reason.

What does this all mean? In my estimation, the wording of this proposed referendum goes beyond the purposes of the AMS but there are many different practical possibilities. It could mean 1) the proposed referendum has no force or effect and it just doesn’t matter if it is held or not, 2) Student Council, or those opposing the question, sends the question to Student Court who determines whether it is ultra vires the constitution, or 3) the referendum is held and a member of the AMS takes it to real court to have the question nullified.

I may be dead wrong about the interpretation of the constitution without a record of evidence, but if I’m right, the AMS is wasting countless people hours in the Old SUB and is going to bombard everyone with a referendum power it doesn’t have the power to ask.

And why does it matter? Simple: rules matter because if they’re not followed the AMS becomes a sandbox for the involved rather than the purpose it was intended to fulfill.

This is an opinion piece not intended to be legal advice. Small changes have been made since I’ve had the time to check the appropriate jurisprudence.