Six Legal Questions about the Student Strike

Tuesday, April 3, 2012


By Lise-Marie Gervais, Education.

Finn Makela is an assistant professor and director of the Common Law and Transnational Law programs at Université de Sherbrooke Faculty of Law.

Le Devoir: Is the strike legal?

Finn Makela: The legislation neither allows nor condemns the strike. The law is simply silent on that question. It does not say it is permitted but it does not say that it is not permitted.

Le Devoir: Are students allowed to picket?

F. M.: Absolutely. In fact, this right was clearly established in a 2002 Supreme Court ruling [R.W.D.S.U., local union 558 v. Pepsi-Cola Canada]. Anyone can picket as long as no criminal act such as assault is committed and the picket itself doesn’t consist of an offense like trespassing, public nuisance, intimidation or defamation. [...] The purpose of a picket line is to inform the public. “We are on strike here so don’t shop here because you’re hurting the workers.” That’s what the Supreme Court calls the “signal effect.” If you take away someone’s right to make their demands heard by the public you are violating their fundamental rights. But just as you’re not allowed to shout fire in a crowded theater, you can’t just picket any way you want. It’s normal that a judge would seek to better define the parameters on this issue.

Le Devoir: Are rules and by-laws voted in Student General Assemblies legally binding?

F. M.: The Act respecting the accreditation and financing of students’ associations provides that for a student association to be recognized, it has to be incorporated under the Companies Act. Compliance with internal regulations of an association will almost always be ordered by courts. For example, if the procedure has not been respected during an election or a vote, the results can be contested before courts. [...] Without legislative modifications, no one can overstep the rules and by-laws of an association to call for a secret vote.

Le Devoir: On the basis of their right to education, can students prosecute their student associations or universities? After all, they are paying for educational services...

F. M.: Student associations don’t determine whether classes are given or not. Students may feel they are bound in accordance with university statutes or that they have moral or social obligations that mean they must respect or disregard the student association’s decision, but it is not the association that decides whether classes take place. [...]

However, students could try to take their universities to court but they wouldn’t have case law on their side. There have been two such cases in Ontario. In both cases, students, claiming that since they had paid tuition they had a contract of studies, decided to sue their universities after a teacher’s strike caused classes to be postponed. In both cases, the judge recognized the existence of a kind of service contract between the two parties, but also decided that it was implicit. This gives universities ample leeway to organize classes the way they see fit.

Le Devoir: If students from a faculty on strike decide not to attend class, can they be penalized if the class is given anyways?

F. M.: In labor law, respecting a strike action that is within the norms provides you a certain protection. For example, an employer cannot fire or impose disciplinary measures on someone who is on strike. It’s different for striking student associations, the law being silent on that issue.

Can a university penalize a student for having exercised the right to strike and to freedom of association? It’s discriminatory for a university to fail a Jewish or Muslim person who decides not to attend class during a religious ceremony or the Ramadan; it must accommodate the person, within reason. The same thinking could be applied to freedom of conscience. [...]  When it comes to discrimination, everyone must be accommodated in cases of disability and freedom of religion and conscience. The same logic holds true here. [...]. To my knowledge, there are no decisions on that issue in Quebec or in Canada. So should students be penalized for having been on strike? Internal rules have to be examined. Some universities do allow missing classes for political reasons like at Université du Québec à Montréal (UQAM), where some departments have decided to cancel classes. Others do not.

Le Devoir: Does the minister have the regulatory power to cancel a semester?

F. M.: No. The minister has no say in university regulations. The only ones who have that power are the university authorities such as the board of directors. This does not mean the minister has no power. Universities receive grants from the government and the minister could use that for leverage.

Le Devoir