RE: CK s Appeal 2018 UTGSU Board of Appeal 2

Transcription

1 RE: CK s Appeal 2018 UTGSU Board of Appeal 2 Decided: November 1 st, 2018 Chair: Patrick Garon-Sayegh Vice-Chair: None Panelists: Andrei Munteanu; Mary Vourakes; David Ross Hall; Lauren MacEachern CONTENTS Introduction 1 Procedural Note: Vice-Chair Absent 2 General Timeline 3 I. Did the motions to amend the Bylaw and Policy, adopted on April 30 th, 2018, violate Policy G4.2 regarding the Policy & Operations Committee? 4 (a) Did the P&OC lack quorum? 5 Ruling 7 (b) Were the two meetings in March held in an irregular manner? 8 Ruling 10 (c) If yes to either of the above, could General Council validly adopt the contested amendments despite the procedural deficiencies found leading up to the amendments adoption? 11 Ruling Did the motions to amend the Bylaw and Policy, adopted on April 30 th, 2018, violate Policy i13 on Anti-Discrimination? 13 Ruling Did the motion to amend the Bylaw, adopted on April 30 th, 2018, violate Bylaw 14 regarding amendments to the Bylaw? 16 Ruling 17 INTRODUCTION [1] This Appeal concerns motions adopted by the UTGSU s General Council on Monday, April 30th, The adopted motions amended the UTGSU Bylaw and the UTGSU Policy to transform the ad hoc UTGSU BDS Committee into a standing committee of the UTGSU. The Appellant, CK, challenged the General Council s adoption of the motions on the following three grounds: I. The motions violated Policy G4.2 regarding the Policy & Operations Committee; 1 / 18

2 II. III. The motions violated Policy i13 regarding anti-discrimination; and The motion to amend the Bylaw violated Bylaw 14 regarding amendments to the Bylaw. [2] The Appellant argued that the motions could be overturned on the basis of any one of these three grounds. [3] The Board of Appeal (hereafter the Board ) has rejected the Appellant challenge. [4] Before proceeding to the Board s ruling on each of the three grounds raised by the Appellant, a note regarding the procedure followed by the Board in this Appeal is called for. PROCEDURAL NOTE: VICE-CHAIR ABSENT [5] The Board s Vice-Chair must be appointed by General Council, pursuant to Bylaw A Vice-Chair has yet to be named to the Board for the year, for reasons outside the Board s control. [6] Upon learning that a Vice-Chair could not be appointed before the Board s scheduled meeting on November 1 st, 2018, the Board s Chair contacted the Parties (the Appellant, the BDS Committee, the Chair of General Council, and the Internal Commissioner as Chair of the Policy & Operations Committee) and informed them of the situation. [7] The Chair offered the Parties the possibility of proceeding without a Vice-Chair, with the Chair casting the deciding vote only in the event of a split decision between the panelists. In the Chair s opinion, this possibility is in conformity with the spirit and intent of Bylaws , (c). Moreover, proceeding without a Vice-Chair was a means of allowing the Appeal to be decided more expeditiously. This was desirable in light of the significant delays that the Appeal already suffered from once again for reasons outside the Board s control. [8] All four Parties explicitly consented to proceeding without a Vice-Chair, and the Board proceeded with its meeting. 2 / 18

3 GENERAL TIMELINE [9] This decision is based on the following general timeline of events leading up to the General Council s adoption of the challenged motions. Further details regarding each of these events will be added as the analysis unfolds. [10] On November 29 th, 2017, the Appellant contacted the UTGSU s Internal Commissioner 1 to express interest in participating in the Policy & Operations Committee (hereafter P&OC ). The Internal Commissioner replied the same day, stating that she would keep the Appellant informed of the next P&OC meeting, which would take place in the new year. 2 [11] On January 24 th, 2018, the Appellant once again contacted the Internal Commissioner to follow-up on the s. 3 The Appellant states that he never received a response to this second . 4 [12] At the February 26 th General Council meeting, the BDS Committee notified the General Council that it would seek to bring Bylaw and Policy amendments for a BDS Standing Committee. This can be seen in the minutes of the February 26 th meeting. 5 [13] The BDS Committee took the decision to proceed with bringing the amendments to the General Council by first going via the P&OC. In its written submissions, the BDS Committee explains that this decision was taken following discussions with the Chair of the P&OC (Internal Commissioner), who told the BDS Committee that, to follow normal practice at the Union, this process should be carried out before the next General Council meeting, scheduled to take place on March 26 th. [14] The P&OC therefore met twice in March. The first meeting was held on March 6 th. The second meeting was held on March 13 th. Three members of the BDS Committee were present at these meetings, along with the Chair of the P&OC. The minutes of these 1 The position of Internal Commissioner currently held by a different person. 2 thread forwarded to the Board on November 1 st, Ibid. 4 Appellant s oral submissions to the Board on November 1 st, Appendix B of the BDS Committee s submission, page 3. 3 / 18

4 meetings have been submitted by both the Appellant 6 and the BDS Committee. 7 The BDS Committee explains that Following those meetings, the full text of the drafted amendments and the minutes of the meetings were included in the package of documents sent to Council before its March 26 th meeting. 8 [15] The General Council met on March 26 th. The General Council then met again on April 30 th and adopted the challenged motions to amend the Bylaw and Policy. I. DID THE MOTIONS TO AMEND THE BYLAW AND POLICY, ADOPTED ON APRIL 30 TH, 2018, VIOLATE POLICY G4.2 REGARDING THE POLICY & OPERATIONS COMMITTEE? [16] In his written submissions, the Appellant argues that the motions were not validly submitted to the General Council, and that the General Council could therefore not adopt them. The Appellant s argument mainly rests on whether the P&OC was operating within the framework set out for this Committee s operations in the UTGSU Policy. More specifically, the argument rests on whether or not the P&OC had quorum. The Appellant also makes a subsidiary argument: that the way in which the P&OC proceeded in this matter especially with respect to the meetings held on March 6 th and 13 th in an irregular manner. These irregularities deprived the motions opponents of the opportunity to speak, and generally vitiated the process that led to adoption of the contested motions. [17] The Board is therefore faced with two questions: (a) Did the P&OC lack quorum? (b) Were the two meetings in March held in an irregular manner? [18] In the event that Board answers either of these questions in the affirmative, a third issue is raised: 6 Appendix D of the Appellant s submission. 7 Appendix F of the BDS Committee s submission. 8 BDS Committee s submission, page 7. 4 / 18

5 (c) Could General Council validly adopt the contested amendments despite the procedural deficiencies found leading up to the amendments adoption? [19] Each of these issues is discussed in turn. (a) Did the P&OC lack quorum? [20] The relevant provisions of the UTGSU Policy read as follows: G4.2 Policy and Operations Committee G4.2.1 The Policy and Operations Committee shall act as the body that coordinates efforts to deal with policy implementation and promotion of policies and operations that the Union has decided to undertake. [ ] G4.2.2 The Committee s base membership shall, at minimum, consist of: The Internal Commissioner who shall act as Chairperson of the committee (non-voting; will only vote to break tie votes as per Rules of Order); A general member who shall act as Vice-Chairperson of the committee (voting); Two additional general members of the Union (voting). G The above base membership of the committee shall serve as quorum for the committee. G The above members shall be confirmed by General Council at its first meeting following the beginning of a session of Council. G4.2.3 The Committee shall, additionally, be open to all Members of the Union. G New members of the committee shall gain voting rights within the committee at the second meeting of the given committee which they attend. G4.2.4 If a member who has been contributing to the base membership ceases to attend the committee, another voting member may be considered in their stead via a motion of the committee. 5 / 18

6 G All major membership changes within the Committee must be noted in reporting to Council. [21] Whether or not the P&OC had quorum turns of whether G applies to the three BDS Committee members that joined the P&OC in March. [22] In the Appellant s view, the P&OC never obtained quorum. In his written submissions, he argues that the three members of BDS Committee were not confirmed by the General Council as base members the P&OC, per G Confirmation took place neither at the March 26 th nor the April 30 th General Council meeting. [23] In his oral submissions to the Board, he added that no base membership had been confirmed for the P&OC for the year. This was not contested by the other Parties. [24] In support of his position, the Appellant also pointed to past practice of the General Council, and submitted the minutes of the September 27 th, 2016 General Council Meeting. 9 These minutes show that the General Council voted to confirm the new members of the P&OC at that particular meeting. [25] In their written submissions, the BDS Committee and the Chair of the General Council argue that G did not apply. In their view, all that was required for the members of the P&OC in this case was that (i) they have voting rights and (ii) that they be noted in reporting to General Council, per G Their argument rests on characterizing the three BDS Committee members who attended the two P&OC meetings in March as new members of the P&OC. [26] Regarding voting rights, the BDS Committee and the Chair of the General Council point out that the members of the BDS Committee acquired P&OC voting rights at the second P&CO meeting on March 13 th, per G [27] Regarding being noted in reporting to General Council, the BDS Committee and the Chair of the General Council dispute the Appellant s claim that past practice required that General Council vote to confirm (per G ) the P&OC s members in the case. 9 Appendix H of the Appellant s submission, pages / 18

7 [28] The BDS Committee s position complements that of the Chair of the General Council. According to them, the Policy only requires that the new members be noted in reporting to the General Council, per G They argue that this requirement was met for the following reasons. First, the minutes of the March 6 th and March 13 th P&OC meetings clearly indicate the names of the new members of the P&OC. Second, these minutes were sent to General Council prior to the General Council s meeting on March 26 th. Third, the General Council was told at the March 26 th meeting that the P&OC was recently active and that the minutes of the meetings had been sent to them. Fourth, as a practical matter, oral reporting of Committee activities including the activities of the P&OC is limited during General Council meetings. In order to save time during meetings, the General Council members receive packages (such as the one containing the minutes of the two March meetings of the P&OC) well in advance. General Council members have the opportunity to review the documents and raise any concerns they have at the meetings. [29] In light of the foregoing, therefore, the BDS Committee and the Chair of the General Council argue that the new members of the P&OC were in fact noted in reporting to the General council, as required by the Policy (G ). And therefore, since G does not apply, in their view, to the new members of the P&OC, the P&OC had quorum and could validly present the proposed amendments to the General Council. [30] According to the Appellant, however, even if the new members of the P&OC were noted in reporting to the General council, they were not confirmed by General Council. The Appellant s position therefore rests on the application of G to the three BDS Committee members of the P&OC. Ruling [31] The Board found that G applied in this case, and that the members of the P&OC committee should have been confirmed by General Council. [32] This finding rested on the fact that no base membership for the P&OC had been confirmed before the meetings in March In the absence of an initial base membership, provisions regarding new members of the P&OC did not apply: in order to 7 / 18

8 have new members, the P&OC had to have base members in the first place. The P&OC, therefore, did not have quorum. (b) Were the two meetings in March held in an irregular manner? [33] In his written submissions, the Appellant argues that if the process surrounding the two March meetings of the P&OC had been pointed out to the General Council members, it would likely have drawn the suspicion of Council members. He argues further that the April 30 th General Council vote to adopt the challenged amendments to the Bylaw and Policy might have turned out differently had that been the case. He also argues that by holding two meeting in March that were only a week apart, the P&OC deprived opponents of the BDS Standing Committee from making their voices heard at the Committee level. [34] In their written submissions, the BDS Committee and the Chair of the General Council disagree with the Appellant. According to them, the General Council s members were well informed of the two P&OC meetings held in March. They were informed of this when they were sent their information packages in preparation for the March 26 th meeting of General Council. These packages contained both the minutes of the two P&OC meetings in March and the full text of the proposed amendments to the Bylaw and Policy. The minutes clearly state the attendance and subsequent ratification of P&OC members. Moreover, at the March 26 th General Council meeting itself, General Council members were explicitly notified of these coming amendments by the Chair of the P&OC Committee. 10 Therefore, by the time the General Council voted on the amendments on April 30 th, General Council members had had the full text of the challenged amendments for over a month. General Council members were also well aware, as of March 26 th, of the process that had led up to the amendments being proposed to them (i.e. the two P&OC meetings in March and the P&OC membership). [35] The BDS Committee adds that the Appellant s claim that General Council members would have been suspicious of the process does stand up to scrutiny. General Council members were aware of the process, and could have raised any issue they saw at either the March 26 th or the April 30 th General Council meeting. In addition, the motion 10 Submission of the BDS Committee, page 7. 8 / 18

9 to adopt the challenged amendments to the Bylaw and Policy were debated at the April 30 th General Council meeting. The BDS Committee writes: At that debate, the appellant was one of the main speakers against the motion and very openly registered his objections against the Policy & Operations Committee s process and implored Council to reject the motions on this basis. These objections are noted in abridged form in the minutes of the meeting (Appendix E). As noted, Council members had access to the same documents on which the appellant based his own objections, and other remarks and questions were made relating to the Policy & Operations Committee s recommendation. Following this, Council voted by over the required two-thirds threshold to approve the proposed Bylaw and Policy amendments. 11 [36] Finally, the BDS Committee argues that the two P&OC Committee meetings held on March 6 th and March 13 th were called and held in a transparent manner. Two calls to join the P&OC were sent out to the general UTGSU membership in the UTGSU Digest, which is distributed via union-wide, on March 1 st and on March 8 th. These calls were therefore sent ahead of both meetings, and included the time and place where both meetings would be held. The text of first call reads as follows: 5. UTGSU Policy and Operations Committee Meetings Are you a graduate student interested in policy and governance? Looking to get involved in your students' union? The UTGSU is holding meetings in March to review policies and bylaws of the union. The first meeting will take place on Tuesday, March 6 from 1:00 pm to 2:00 pm at 16 Bancroft Ave (UTGSU Building top floor) and the second meeting will take place on Tuesday, March 13th from1:00 pm to 2:00 pm at 16 Bancroft Ave (UTGSU Building top floor). If you have any questions, please 11 Submissions of the BDS Committee, page 9 and Appendix E. 9 / 18

10 contact Sarah, the UTGSU Internal Commissioner, at 12 [37] In his oral submissions before the Board, the Appellant noted that he relied on the Internal Commissioner replying to his inquiries regarding the P&OC s activities. By not replying to his inquiries, the Internal Commissioner unfairly excluded him from the process. [38] The Appellant also called into question the Internal Commissioner s impartiality in this matter, in light of information provided by the BDS Committee in its written submissions. In its submissions, the BDS Committee writes that the Internal Commissioner notified them that the Appellant had complained to her about the P&OC s members i.e. the BDS Committee members. 13 For the Appellant, this suggests that the Internal Commissioner unduly favored the BDS Committee. Ruling [39] The Board found no justiciable irregularity in the facts presented, even though some of the ways in which the Internal Commissioner and P&OC proceeded in this matter were sub-optimal. [40] Regarding the Internal Commissioner s failure to respond to the Appellant s s: this behavior appears inconsiderate, but it could be explained by a number of factors. For example, she could simply have forgotten. The Board was not given evidence specific enough to support a finding of malicious intent. [41] A similar reasoning applies to the Internal Commissioner informing the BDS Committee of the complaints made by the Appellant. This may have been indelicate. But it does not, in and of itself, constitute an action so grave as to vitiate the P&OC s entire process, or the General Council s vote on April 30 th. [42] Nothing in the Bylaw or Policy required that the Internal Commissioner personally follow-up with the Appellant. Nor did anything in the Bylaw or Policy 12 Submission of the BDS Committee, page 7 and Appendix D. 13 Ibid, page / 18

11 prohibit the Internal Commissioner from discussing the Appellant s complaints with the BDS Committee. [43] The P&OC s March activities were advertised via mass s. This was sufficient to inform the Appellant, along with all other members of the UTGSU, that the P&OC was going to review the Bylaw and Policy. Nothing in the Bylaw or Policy required that these s specify which aspects of the Bylaw and Policy would be reviewed. [44] Finally, the Board was not convinced by the Appellant s arguments to the effect that the General Council might have voted differently had it been made aware of the P&OC s process. First, these are highly speculative arguments. Second, the evidence shows that the General Council was well aware of the BDS Committee s role in bringing the amendments forward. (c) If yes to either of the above, could General Council validly adopt the contested amendments despite the procedural deficiencies found leading up to the amendments adoption? [45] Given that the Board answered question (a) in the affirmative, it had to decide whether the P&OC s lack of quorum prevented the General Council from adopting the challenged amendments to the UTGSU s Bylaw and Policy. [46] In its written submissions, the BDS Committee argues that the decision to pass or reject Bylaw and Policy amendments lies strictly with General Council, no matter what the process leading up to it. This appeal is, in effect, against the Council s decision to pass these amendments. The Letter of Appeal provides no evidence that Council s vote was tainted in a way that undermines the legitimacy of the vote. ([ ] Council members had all the information they needed to judge the matter.) 14 [47] In his oral submissions, the Appellant argued that the Bylaw constitutes the UTGSU s fundamental document. Consequently, amendments to the Bylaw can only be 14 BDS Committee submission, page / 18

12 adopted if all procedural requirements are scrupulously met, including P&OC having quorum. Ruling [48] The Board found that Bylaw and Policy amendments must be passed following the specific procedures set out in Bylaw 14 and Policy G1.3 G1.4. [49] No arguments were made to the effect that an amendment provision of either the Bylaw or Policy was violated. Nor was evidence brought forward to support such a finding. [50] Nothing in the above provisions restricts the channel through which amendments are brought to the General Council. [51] The fact that the P&OC lacked quorum is immaterial for the purposes of the amendments, since nothing stopped the BDS Committee from bringing the amendments directly to the General Council. [52] Moreover, nothing in the Bylaw or Policy imposes particular consequences on a committee s lack of quorum, let alone consequences so drastic as restraining General Council s power to vote on amendments that were brought to it in conformity with existing amendment procedures. [53] The General Council decided to adopt the challenged amendments in light of the information it had at the time. There is no evidence that the General Council was misled or otherwise unaware of what it was doing. The General Council may have mistakenly thought that the P&OC had quorum, but there is no evidence to suggest that the vote would have turned out differently had it been informed of this fact. [54] In the absence of a Bylaw or Policy provision restricting the General Council s power to vote on the challenged amendments in this case, the Board found no justification for interfering with the General Council s decision. [55] Greater restrictions of General Council s power to adopt amendments may be called for, given the significance of the Bylaw and Policy for the UTGSU s operations. But 12 / 18

13 at this stage, the precise nature and scope of these restrictions are best left to the UTGSU s political process. 2. DID THE MOTIONS TO AMEND THE BYLAW AND POLICY, ADOPTED ON APRIL 30 TH, 2018, VIOLATE POLICY I13 ON ANTI-DISCRIMINATION? [56] The BDS movement, according to the Appellant, discriminates against Israelis based on nationality. The Appellant argues that by amending the Bylaw and Policy to create a BDS Standing Committee, the General Council violated Policy i13 on Anti- Discrimination. [57] The BDS Committee and the Chair of the general Council strongly disagree. Their position shares a key common point: that the Board of Appeal has already decided essentially the same argument in a prior appeal. [58] The Board s prior decision 15 concerned a motion passed at the December 4th, 2017 Annual General Meeting of the UTGSU s members. The motion would have required that the General Council amend the Bylaw to make the BDS Ad Hoc Committee a standing committee. The Board overturned this motion on the basis that it was inconsistent with the amendment process set out in Article 14 of the Bylaw. [59] However, the Board of Appeal also addressed the question as to whether or not it could require motions to conform to the UTGSU s issue policies which include the Anti- Discrimination Policy (i13). The Board of Appeal found that it does not have the authority to require that motions adopted by members at UTGSU s Annual General Meetings conform to the UTGSU s issue policies. 16 The Board reasoned that its judicial role is more procedural than substantive. Requiring that AGM motions adhere to the Union's issues policies would bring the Board into a more substantive evaluation of the [contested] motion. The appellant's argument would essentially raise the issues policies to the level of constitutional principles. Nothing in the Union's by-law or policy supports that view. This is not to say that anti-discrimination is not an UTGSU Board of Appeal Ibid at para / 18

14 important value of the Union; Policy i13 makes the contrary plain. Issues policies might help to interpret other parts of the Union's by-law and policy. But it is not within the function of the Board of Appeal to overturn decisions of the AGM which do not cohere with its interpretation of the issue policies. 17 [60] The BDS Committee and the Chair of the General Council both argue that the Board of Appeal s precedent should apply to the present Appeal and be dispositive of the question under review. The BDS Committee sees no reason why the Board should diverge from its previous decision. The Chair of the General Council submits a line of reasoning that complements the Board of Appeal s precedent. He writes: It is my opinion that the relationship of the anti-discrimination policy to the activities of the [BDS] Committee does not lend itself to a clear and uniquely correct interpretation. Rather, it is a complex matter that necessitates the consideration of multiple, competing factors. As such, whether the activities of the Committee constitute a violation of the UTGSU s anti-discrimination policy is matter best decided by a political body, the UTGSU Council. As the UTGSU Council has seen fit to renew the Committee s status as an ad hoc committee of the UTGSU on several occasions and as recently as September of this year, I take this to be an indication that it is the belief of the Council that this is not the case. 18 [61] The Chair of General Council further submits that the Board of Appeal cannot legitimately set aside a decision that is political in nature and that has been taken by the elected representatives of the UTGSU membership without a clear and compelling reason to do so and that the arguments presented do not disclose such a reason. 19 [62] The Appellant disagrees that the Board of Appeal s precedent applies, for the following two reasons. First, he argues that the Board s discussion in that decision 17 Ibid at para General Council Chair written submissions, page General Council Chair submission, page / 18

15 specifically concerns a motion passed by an AGM, whereas here we are dealing with motions passed by General Council. Second, he argues that the General Council did not make efforts to specifically interpret the Anti-Discrimination Policy. 20 Ruling [63] The Board found that it s previous decision applies to the present Appeal. [64] Just as it is not within the function of the Board of Appeal to overturn decisions of the AGM which do not cohere with its interpretation of the issue policies, 21 it is not the Board s function to overturn decisions of the General Council that do not cohere with its interpretation of Policy i13. [65] In both his written and oral submissions, the Appellant argued that the General Council did not meaningfully interpret Policy i13. In the Appellant s view, debating the adoption of the amending motions and their potential conflict with Policy i13 was insufficient to count as interpretation a more positive act of interpretation would have been required. The Board rejected this argument because in its view the General Council did in fact interpret Policy i13. By adopting the amending motions, the General Council was interpreting Policy i13 as compatible with said motions. [66] Does this make Policy i13 on Anti-Discrimination superfluous? It does not. This decision and the one before it deal with the relationship between legislative acts and the UTGSU s issues policies. The extent to which other acts and decisions taken by UTGSU bodies can be reviewed in light of Policy i13, and the remedies available if and when acts are found to be in violation of Policy i13, has yet to be decided. 20 from the Appellant to the Chair of the Board of Appeal, May 16th, UTGSU Board of Appeal 1 at para / 18

16 3. DID THE MOTION TO AMEND THE BYLAW, ADOPTED ON APRIL 30 TH, 2018, VIOLATE BYLAW 14 REGARDING AMENDMENTS TO THE BYLAW? [67] In his written submissions, the Appellant argues that the challenged motion to amend the Bylaw violated Bylaw 14 regarding amendments to the Bylaw. The Appellant specifically invokes section of the Bylaw, which reads as follows: The Representatives may, by resolution passed by two-thirds (2/3) majority vote of the Representatives or their designated alternatives present and voting at a meeting of the General Council, make, amend, or repeal any Bylaw not contrary to law, the Act, or Letters Patent that regulate the affairs of the Corporation. [emphasis added] [68] According the Appellant, the challenged Bylaw amendment that created the BDS Standing Committee violates because the amendment is contrary to law. In support of this claim, the Appellant points to an Ontario statute, the Discriminatory Business Practices Act. 22 [69] The Act prohibits discriminatory business practices. Such practices are defined to include a number of acts, all of which are prohibited by the Act. 23 The Appellant specifically invokes that the Act prohibits people from refusing to engage in business with a second person, 24 where the refusal is on account of an attribute of the second person. The Act defines attribute as including the race, creed, colour, nationality, ancestry, place of origin, sex or geographical location of the person, and includes the race, creed, colour, nationality, ancestry, place of origin, sex or geographical location of a person connected with the person or nationals of a country with the government of which the person conducts, has conducted or may conduct business RSO 1990, c D.12 [the Act]. 23 See Act at section 4(1). 24 Ibid. 25 Ibid at section 4(2). 16 / 18

17 [70] According to the Appellant, the BDS Committee would be tasked with encouraging GSU members, the broader UofT community and UofT itself to refuse to do business with Israeli companies, and other companies that do business with Israel and Israeli companies. 26 [71] This, in the Appellant s opinion, violates the Act, and therefore violates of the Bylaw. [72] The Appellant invokes, in support of his argument, a decision which applies the Act: Beauchamp v. North Central Predators AAA Hockey Assn. 27 [73] The BDS Committee and the Chair of General Council strongly disagree with the Appellant. The BDS Committee argues that neither the Act nor the Beauchamp decision apply to the BDS Committee s activities. The BDS Committee argues further that the Appellant has provided no evidence that the Act has been contravened in any way. The BDS Committee argues further still that the Appellant s reasoning regarding the Act s is fundamentally vague and flawed. [74] Both the BDS Committee and the Chair of the General Council argue that the Board of Appeal should not concern itself with the interpreting statutes and case law. Ruling [75] As a preliminary matter, the Board rejected the argument that it should not concern itself with the interpreting statutes and case law. If the Board of Appeal were to follow the BDS Committee and the Chair of the General Council on this point, the words contrary to law in of the Bylaw would become inoperative. This would run contrary to the Board of Appeal s previous decision, where the Board found that it is the final authority within the Union on the interpretation of the Union's by-laws and 26 Appellant s written submissions CanLII 5468 (ON SC) [Beauchamp]. 17 / 18

18 policy. 28 The Board cannot act as this authority if it cannot interpret whether or not amendments are contrary to law. [76] The Board then turned to the question of whether or not the motion that amended the Bylaw is contrary to the Act. [77] The Board found that the motion was not contrary to the Act because the UTGSU is not a person engaging in business. [78] The Beauchamp decision is dispositive on this point. Ontario Superior Court of Justice found that the Act applied only to persons engaging in business. In interpreting this expression, the Court stated that the test is whether the organization has as its preponderant purpose the making of profit. If the preponderant purpose is not to make profit, then it is not a business. 29 The Court added that In order for [a person s] activities to be characterized as business, the preponderant purpose of the activity must be for the purpose of profit or material gain. If there is another preponderant purpose, to which any profit is merely incidental, then the activity will not be classified as a business. 30 [79] The UTGSU, like the hockey leagues in Beauchamp, is not engaging in business because it s preponderant purposes is not to make profit. The Act, therefore, does not apply to the UTGSU, and the motion to amend the Bylaw does not violate Bylaw ** UTGSU Board of Appeal 1 at para Beauchamp at para Ibid at para / 18