University strikes back as MacHall injunction decision postponed
By Melanie Woods and Scott Strasser, June 3 2016 —
The legal war is yet to come, but the battle over the short-term operation of MacHall between the University of Calgary and its Students’ Union continues to drag on.
The SU seeks an injunction to retain operation of the building under the currently extended 1999 License of Occupation, Operation and Management Agreement (LOOMA) for the duration of their ongoing lawsuit with university administration over MacHall’s ownership.
After a May 5 injunction hearing failed to reach conclusion due to time constraints, a reconvened hearing June 3 ended anticlimactically, as Court of Queen’s Bench Justice Kim D. Dixon postponed her decision to the end of June.
“Ultimately at this point it’s the judge’s decision,” SU president Stephan Guscott said following the announcement. “I guess we’ll have to wait and see.”
While over 80 people attended the May 5 hearing, about 60 showed up at the Calgary Courts Centre Friday. Among them were members of the University of Alberta Students’ Union (UASU) executive.
“This is all about students supporting students. What happens to one students’ union could very easily happen to another,” UASU vice-president external Mike Sandare said. “We need to come together and we need to support each other.”
Friday’s hearing comprised mostly of the university’s submissions, during which the university’s legal team countered the SU’s arguments from May 5.
“The SU has insinuated the university has taken advantage of it,” said Eugene Bodnar, who is representing the U of C in the case. “The SU wants to go back in time so they can get a better agreement.”
In his statements, Bodnar argued the LOOMA contradicts the SU’s ownership rights, and that the original 1969 agreement — which cites the SU as 55 per cent co-owners of MacHall — was terminated through later operating agreements.
Bodnar also challenged the SU’s claim that losing operational control of MacHall would cause “irreparable harm” to the SU. He said the only thing at stake is 15 per cent of the SU’s revenue, generated through rent cheques from MacHall’s third-party tenants.
According to the SU’s annual budget, revenue from third-party tenants equals about $1.9 million a year.
Bodnar said U of C vice-president finance and services Linda Dalgetty wrote a sworn affidavit on behalf of the U of C board of governors that the university would not evict the SU from MacHall. Dalgetty’s affidavit also states the university would allocate revenue generated from third-party MacHall tenants back to SU programs.
“The university has made clear many times they have no intentions of [evicting] the union from student-[sanctioned] space,” Bodnar said.
According to the university, if the injunction fails, the only thing that would change is to whom third-party tenants of the building pay their rent.
“For the students it’s pretty much business as usual,” Bodnar said. “There will be no irreparable harm to the SU if this injunction is not passed.”
Bodnar also slammed former SU president Levi Nilson’s media activity in the past year.
“It’s a lot of fear mongering and it’s all utterly false,” he said.
In the SU’s rebuttal, lawyer Michael Kwiatkowski said there is no concrete reason to believe the U of C will keep its promises as outlined in Dalgetty’s affidavit.
“We would have someone else controlling the tab,” Kwiatkowski said.
Bodnar’s response came in the hearing’s closing arguments.
“There is a plan, and it’s detailed,” he said, of where the revenue from third-party tenants would go if administration controlled MacHall.
Guscott said he has never received a formal plan from the university regarding the future of third-party tenant revenue.
“That plan that their lawyer has mentioned — that has never been shared with us,” he said.
Guscott said the SU is planning for both scenarios when the decision is released.
“If we’re unsuccessful in getting the injunction then we’ll have to make some very, very serious decisions,” Guscott said. “Because we don’t know the funds that we’ll get from the university or if we will get the funds that they mentioned.”
Justice Nixon is expected to release her written decision before the end of June.
Until a decision is released, the SU will continue to operate the building under the current LOOMA.