Link: Case Summary Document
Citation: 2017 MBQB 123 (CanLII)
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This was an application for judicial review of decisions of the Civil Air Search and Rescue Association of Manitoba Inc (the association) and of CASARA Canada, the national body in Canada comprised of provincial/territorial associations such as that in Manitoba. Ordinarily, as a voluntary association, CASARA Manitoba’s decisions would not be subject to judicial review, except for very narrow circumstances of exception. Therefore, the questions before the court were whether such narrow circumstances were present, and if so, whether the rules of natural justice had been adhered to by the association and by CASARA Canada.
The facts turned on the submission of a claim for expenses submitted by Bell on 13 March 2010, which included an amount of $60.08 improperly invoiced (by the association’s rules) for alcohol. As a result, the board of the association resolved that in addition to repaying the improperly invoiced amount, Bell would be ineligible to serve on the CASARA Manitoba board and would lose his right of final approval for any expense claims in his region (Zone 1, which was the Winnipeg region) until 2012.
The amount remained unpaid. A complaint was later received from a CASARA Zone 3 commander of both the unpaid money and intimidation by Bell. The national body of CASARA (CASARA Canada) was called upon to investigate. Various allegations emerged, apart from the unpaid money, of bullying by Bell and actions contrary to the interests of the association. A review committee was formed by CASARA Canada.
After meeting with the committee, Bell was replaced as Zone 1 commander, stood down as a pilot, and as a training officer, and restricted from taking part in the association’s activities for a period of two years. Bell subsequently asked the association to lodge an appeal against the national Directive which had stood him down. The association did so on 22 October 2011, but CASARA Canada advised that the Directive had to be applied in Manitoba despite the appeal. Bell retained counsel.
Matters escalated, with Bell attending an association board meeting on 28 January 2012 contrary to the Directive, and CASARA Canada issuing an amended Directive concerning Bell. The association took this amended Directive to be determinative and withdrew its appeal against the first Directive. A subsequent meeting with the review committee resulted in Bell’s suspension from association activities being extended until 1 June 2015. Bell’s attempt to reinstate his membership was rejected for the 2014-2015 year and for any year thereafter.
Bell took matters further. He launched a personal appeal to CASARA Canada, and he and his supporters began a campaign to involve the Royal Canadian Air Force and the minister responsible for funding CASARA. Bell also filed access to information requests, and contacted the employer of the Manitoba association’s president.
Was judicial review available to Bell? The court said that the availability of judicial review in Canadian voluntary association cases was fact-specific. In reviewing the facts, the court found mala fides on both sides. Bell had ultimately acted against the interests of both the association and CASARA Canada, all over an amount of $60.08, which the court found ‘puzzling’ (at ). However, the CASARA bodies were not without fault either. Their actions in relation to the appeal process, in withdrawing their own document of process mid-stream, and in not following due process generally, could not ‘be permitted to stand’ (at ). Judicial review was permitted in this case (at ):
This case, from an objective point of view, is of sufficient importance as Bell was deprived of an important element of his social and family life. Bell has been a volunteer since 1995. Air rescue provides an important service to Canadians. Canada and Manitoba receive funding from the Department of National Defence to provide this valuable service. Without volunteers, the service would be diminished if not severely compromised. The Boards of Canada and Manitoba have increased responsibilities that set them apart from the boards of other volunteer organizations. Therefore, this is one of those rare cases where judicial review is warranted.
Were the rules of natural justice followed by the association and CASARA Canada? The court held that they were not (at ). The main reason for this was that CASARA Canada had Policy Number A-170 which dealt with dispute resolution, but withdrew it in the middle of this dispute. The association and the national body then proceeded as if the Policy did not apply. This was a ‘prima facie error’, which could ‘never be correct or reasonable’ (at ). Therefore, the court held that the actions taken by the association and CASARA Canada ‘violated the rules of natural justice’ by failing to follow their own Policy (at ).
Thus, although courts were not generally the appropriate venue for determining internal disputes in voluntary associations, this was an exception to that rule (at -):
Volunteer organizations must be held to account when they deny [their] members the protections contained in its foundational documents. That is a breach of the foundational principles upon which Canada and Manitoba [meaning the CASARA bodies] were founded. Anything that followed the revocation was a breach of procedural fairness, and therefore the rules of natural justice. Bell, as with any volunteer, deserves better treatment by organizations that grant them membership. If a volunteer organization is not required to follow its own rules, or if it can change the rules midstream, chaos ensues. This type of action cannot be condoned.
Relief was granted to Bell which restored his position to that which applied ‘prior to the issuance of the October 17, 2011 Directive #1’ (at ). Parties were ordered to bear their own costs since they had both acted in bad faith.
The case may be viewed at: https://www.canlii.org/en/mb/mbqb/doc/2017/2017mbqb123/2017mbqb123.html