UWOFA: to be continued

Stephen G.A. Pitel

It might be natural, when in a new environment, to seek out familiar things. As a lawyer, on becoming vice-president of UWOFA in the summer of 2016 one of my first steps was to seek to understand the legal framework within which UWOFA operated. I had no idea that what I thought would be a relatively simple review would turn into a major project.

One of my first questions was whether UWOFA was incorporated. It was, under letters patent issued by the province of Ontario in 1986. But those letters patent were in the name of “The Faculty Association The University of Western Ontario”, an inelegant mouthful, and not UWOFA. Our legal corporate entity had a name we otherwise rarely used in our day-to-day operations.

Of greater concern was the fact that UWOFA’s key governance document was its constitution.  Corporate entities do not have constitutions: they have documents which incorporate them and then by-laws made by the corporation. The statute under which UWOFA was incorporated does not provide for having something called a constitution. So the origins of our constitution needed to be explored.

Various inquiries revealed that prior to 1986 UWOFA was an unincorporated association. Such an association is able to have a constitution, and so it did. As far as I could determine, in 1986 UWOFA was advised to incorporate, which it did by obtaining its letters patent. But it otherwise took no steps to change its governing documents to bring them into the proper form or content for a corporation. For most purposes, it continued to govern itself as though it were an unincorporated association. From time to time the constitution was amended to reflect new developments, but not to reflect the requirements of the statute. For over 30 years this incongruity has persisted. 

Once this was discovered, an important decision had to be made. UWOFA is not required by law to be incorporated: it could be the bargaining agent for its members as an unincorporated association. So one solution was to surrender the letters patent and return to the pre-1986 situation. The other was to maintain the corporate form and bring the governing documents into compliance with the statutory requirements.

The Board of Directors sought advice from Goldblatt Partners LLP and received an opinion recommending staying incorporated. There are several advantages to being incorporated. A corporation is in a better position than an unincorporated association to hold and administer UWOFA’s property and to provide protection to individual officers, directors and other agents from liability for acts done on behalf of UWOFA. Accordingly, in the fall of 2016 the Board of Directors resolved to remain incorporated and to take the necessary steps to bring the governing documents into line.

The choice that then faced UWOFA was whether to revise the governing documents to align with the current Ontario statute, which is dated and likely to be substantially revised in the future, or to transfer from Ontario to Canada to take advantage of its recently-revised corporate statute. The former meant possibly two different revisions – one now and one when the Ontario law changes – or revision based on predictions about what the law might become. The latter was more straightforward since the context is known and unlikely to change. For operational purposes, it does not matter whether UWOFA is incorporated provincially or federally. Our lawyers advised us that other clients had transferred their not-for-profit corporations from Ontario to Canada to take advantage of the more modern statutory context. The process of transferring from one jurisdiction to another is called a continuance. We decided that we would seek a continuance from Ontario to Canada.

In the spring of 2017 the Board of Directors and the membership (by online vote) approved the following motion: “That UWOFA, through one or more of its officers, take the steps necessary to continue UWOFA under the Canada Not-for-profit Corporations Act under the name The University of Western Ontario Faculty Association and with a financial year-end of October 31”.

In the summer of 2017, UWOFA took the steps necessary to leave Ontario and to move to Canada, replacing the letters patent with articles of continuance. The effective date of the continuance was September 7, 2017. As part of the continuance, UWOFA did a name change so that going forward the corporate name would be the one it generally uses.

The most elaborate part of the process has been replacing the current constitution and bylaw with a series of numbered bylaws which conform to the federal statute’s requirements.  Bylaws two through eight have been prepared internally and address discrete matters including job descriptions for officers, terms of reference and staffing of committees (including the Faculty Representatives Council and the Librarians and Archivists Stewards Committee), the role and development of policies, meetings and votes of the bargaining units and negotiations. Bylaw one is the most important bylaw, dealing with fundamental issues such as membership, directors, officers and meetings. It has been prepared working with our lawyers at Goldblatt Partners LLP.  The spirit has been, for the most part, to retain the current operational approach while complying with the requirements of the statute. But we have taken the opportunity to update some of the language for greater clarity and to eliminate some elements of the current documents which are no longer practical or sensible. 

Some of the key changes are:

(i) aligning our membership with those who are in the bargaining units.  We have eliminated the optional joining of UWOFA by those for whom we do not bargain and the associate member category for those who retire.  All known members of these types have been canvassed about this change and no objections have been raised.

(ii) removing ex-officio directors.  The people who formerly held such positions can still attend Board meetings as needed but there is no need for them to be directors themselves.

(iii) clarifying the role and responsibility of the Executive Committee.

(iv) making UWOFA’s audit requirements explicit.

(v) moving the financial year end to October 31 from April 30.  This is to comply with the statutory requirement that the annual meeting must be within six months of that year end, given that we want to continue to hold the annual meeting (at which we elect directors) in the spring.

In addition, while not required by the statute, we have chosen to provide that all bylaws are amendable on a 67% majority (rather than 50%) of members voting. This mirrors the requirement in the current constitution, provides for a certain degree of stability and avoids possible confusion about which provisions would require a 67% majority and which would require only 50%.

In September 2017 the Board of Directors unanimously adopted bylaws one through eight.  Those bylaws were then confirmed by an online vote of the members in late October.  That completed the process. UWOFA is now on a sound corporate footing.

While many people have contributed to this process, I would like to particularly thank the members of the 2016-17 Policy and Governance Committee, the members of the Executive Committee, Jane Laforge (UWOFA’s Administrative Officer) and Darrell Brown and Simon Archer (our corporate lawyers).

Stephen Pitel is president of UWOFA. He is a professor in the Faculty of Law.