There has been some controversy this election about referenda – specifically, whether it is appropriate for AMS Council to take the power to redraft referendum questions. In my view, this debate is beside the point because it belies a more fundamental misunderstanding – referenda are generally only advisory in nature.
Members Have Limited Powers
There is nothing in the Society Act (currently in force), Societies Act (soon to be in force), University Act or AMS Bylaws that give the membership final say on anything but a few enumerated subjects (elections, expelling members, removing executives or directors, incur long-term debt, purchase or sell land or buildings, amending the constitution or bylaws, or levying fees). Absent a clear authority to make decisions, the members have none. This is not a controversial interpretation.
Student Council Has Most of the Power and All the Responsibility
While there is no general power over the AMS given to the members, there is a general power over the AMS given to Student Council over “the management, administration, and control of the property, revenue, business and affairs of the Society” [AMS Bylaws, Bylaw 5, Paragraph 1].
Why is this the case? Because according to the Society Act, a director of a society “must exercise the care, diligence, and skill of a reasonably prudent person” [Society Act, s 25(1)] and no bylaw can absolve them of that responsibility [ibid, s 26]. This is a positive obligation to act in the best interests of the society cannot be “fettered”; meaning directors cannot contract out their responsibility to make a decision [Kwantlen v CFS, 2015 BCSC 1954 at para 51]. This includes referenda where the directors treat the vote as binding [TWU v Law Society of BC, 2015 BCSC 2326 at paras 112-121].
On a policy basis, this is as it should be because members are responsible only to ourselves. Just like shareholders or citizens. We vote for people who will be responsible to us, but we’re not legally responsible to one another. Maybe morally, but not legally.
Therefore, Referenda Are Advisory
What this means, in my opinion, is that referenda and general meetings are advisory unless they are on a subject that is an enumerated right of the members. And this goes both ways – just as Student Council does not need to follow what many referenda direct them to do, they are also not free to simply follow the mandate of a referendum if it compromises other considerations – like the environment – that may constitute the best interests of the society [Peoples Department Stores v Wise, 2004 SCC 68 at para 42].
This creates a few implications:
- The “Bring Back the Gal” referendum is just information for Council to consider. It is still responsible to members but Council is not absolved of its responsibility to think clearly about whether a Gallery-style bar on the fourth floor of the Nest is a good use of student fees and resources.
- Part of the referendum to amend referendum procedures is unnecessary (but you can still vote for it, because it doesn’t matter). Questions that call on Student Council to do something illegal are irrelevant because they are powerless.
- Referenda, such as last year’s Boycott, Divest and Sanction question, would not have had any necessary effect if it had passed (though, as I noted last year, there were other reasons I believe it was illegal), though it would have likely have continued to be persuasive if it was a purely policy question that did not require any use of the AMS’s resources.
- Annual or Special General Meetings cannot bind AMS Council, such as the Special General Meeting that established policy positions around international tuition and required an anti-tuition campaign by the AMS (which doesn’t mean Council should not have done the same things).
And so on, and so on…
How Would This Change The AMS?
Lest I be misunderstood, I am not calling on Student Council to start ignoring referenda but to give them appropriate weight. The AMS is a member-driven organization and referenda are a helpful way for members to drive the agenda. However, Student Council should not freak out about “leading” referenda questions or bend over backwards to try and undermine referendum petitions.
Instead, it should acknowledge that referenda are not a decision it has to abide by, but an incredibly important consultation for the major constituency of the AMS that should be balanced with the interests of all aspects of the organization. Ultimately, most decisions are Student Council’s and they alone are responsible for their choices.
This is purely an opinion piece and is not legal advice from a qualified member of the Law Society of British Columbia. Do not rely on it for decision making but feel free to consider it.