Link: Case Summary Document
Citation:  BCCA 312
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
An appeal about improperly rejecting applicants to be members of a society.
This is an appeal from the primary decision in Farrish v. Delta Hospice Society 2020 BCSC 968. The Society, which was founded in 1991, is a not-for-profit community-based organisation that offers compassionate care and support for persons in the last stages of living, primarily through the operation of the Irene Thomas Hospice. The Society also provides support for individuals dealing with life threatening illness, and for grieving loved ones, through the Harold & Veronica Savage Centre for Supportive Care.
There were clearly two ‘camps’ within the Society – those who supported medically‑assisted dying (MAiD) and those who did not. The Society did not make MAiD available on their premises and made arrangements for those requesting MAiD to be sent to other facilities. Both ‘camps’ had organised to gain members. At least 310 members organised by Ms Farrish (pro-MAiD) had been rejected as members. Meanwhile, the membership grew steadily from 600 (March 2020) to 1400 (April 2020) and about 1500 (May 2020). The evidence of the new President was that these members had been permitted to join only if they upheld the constitution and bylaws of the Society.
Previously, the Society had had ‘open’ membership, in that anyone could join who paid the relevant fee. Membership did not depend on any particular viewpoint. However, now membership applications were being screened for relevant viewpoints. The Court below held that the Board had no discretion to do this as the constitution and bylaws did not set out any criteria for membership.
The appeal issues were that the primary judge erred in law, having no jurisdiction to direct how a Society approved persons to membership. There was no consideration of the freedom of association and freedom of conscience of the Society and its members to not associate with those who did not share their communal conscientious beliefs and purposes as expressed in the Society’s constitution. The matter of treating past practice in processing membership applications as binding and misinterpreting the society’s membership bylaw were also in issue.
It was contended that the Supreme Court of Canada’s recent decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall 2018 SCC 26 (Wall’s case) has made it clear that a court does not have the jurisdiction to interfere in a membership dispute arising in any private organisation. In that case the Court held that as no civil or property right was threatened by the impugned decision, that decision should remain free from court intervention.
In Wall’s case, the Court found that it did not have the “institutional legitimacy or capacity” to deal with theological or religious issues or to “consider the merits of religious tenets” (at ). However, where the association in question has a written constitution or bylaws, members may properly resort to the courts (although not for judicial review) in order to have their “contracts” enforced.
This case involved not an unincorporated association as in Wall’s case, but a society under the Society Act where membership was on a contractual basis. The action of admitting or refusing to admit new members had to be carried out in good faith, without conflict of interest and with a view to the objects of the corporation.
The Society was a private body, but this did not signify that the directors were, under the present constitution and bylaws, entitled to deny membership applications for reasons not spelled out in the bylaws. If the constitution or bylaws had stated clearly that membership was restricted to persons subscribing to a particular opinion, ideology, or religion, the situation would have been different.
Therefore, the Court found that the members could not be rejected as they had been by the Directors.
It was further argued that the Canadian Charter of Rights and Freedoms clauses which was invoked should inform a statutory discretion exercised by the courts. The Court concluded that Charter rights of conscience (section 2(a)) and freedom of association (section 2(d)) did not equate to a right of the Board to control the Society’s membership lists on the basis of criteria not stated in the bylaws.
Implications of the Case:
The decision of the Supreme Court of Canada in Carter v. Canada (Attorney General) 2015 SCC 5 found that medically-assisted suicide was decriminalised in Canada. The Criminal Code, R.S.C., 1985, c. C-46 was amended accordingly on June 17, 2016, through An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), S.C. 2016, c.3.
The Appeal Court noted (at -):
It is clear that for many members of the Society, providing MAiD would transgress a strongly-held moral tenet, whether religious or conscientious. Just as passionately, the petitioners hold the view that medically-assisted dying, having been recognized in Canada as a Charter‑protected right, should form part of the options available to hospice patients at the end of their lives. I express no opinion on this question, which lies beyond the bounds of justiciability. However, it seems to me at least debatable as a legal or contractual matter whether the Constitution as written, and in particular the reference to “compassionate care and support for persons in the last stage of living”, precludes making MAiD available to patients in the Society’s hospice facilities. Fortunately, the meaning of “palliative care” in the Constitution is not the question before us.
And further (at ):
Obviously, those in control of the Society at present believe the majority’s conscientious and/or religious beliefs are at peril. Membership drives resembling political campaigns have been conducted by persons the Board regards as “hostile” and have brought the Society into the public spotlight. No doubt many longstanding members feel a sense of injury, given the stalwart support they have provided to the sick and dying over many years. It is due to their efforts that the Society has been able to build and operate its hospices. However, if particular religious or conscientious views were intended to be requirements of membership, that should have been made clear in the constating documents. In the absence of clear and specific provisions in the Constitution and Bylaws, it was not for the Directors to apply their own private criteria to keep out others who think differently than they.
There is always a tension present in drafting constitutions between entrenching the founder’s views of the world and allowing for a future membership to democratically guide the organisation to meet contemporary challenges.
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