Bains v Khalsa Diwan Society of Abbotsford is an appeal to the British Columbia Court of Appeal (“BCCA”) by the Khalsa Diwan Society of Abbotsford (the “Society”), incorporated under the B.C. Societies Act (the “Act”), and its directors, concerning a lower court order setting aside a decision by the Society’s board to expel 11 members of the organization and ban six of them from its premises (the “Petitioners”). The lower court decision, discussed in the April 2020 Charity & NFP Law Update, set aside their expulsions and ordered their reinstatement as members (the “Decision”). The Society appealed the Decision to the BCCA, which published its judgment on April 19, 2021.

The case involves the actions of 13 individuals who are directors and members of the executive committee of the Society (the “Executive”). The BCCA allowed the Society’s appeal in part, restoring its decision to expel the Petitioners. However, the ban by the Society of six Petitioners from the Society’s premises was found to have failed a duty of procedural fairness and did not follow the bylaws of the Society.

By way of background, on April 23, 2018, the Executive issued a written notice to Society members stating that because of “unruly behaviour” an election of directors had to be rescheduled. The Executive then decided, by special resolution, to expel the Petitioners and another member who subsequently received a year-long suspension, due to their conduct at the AGM. The notices sent directed the Petitioners to explain why they should not be expelled. A meeting was held on May 20, 2018 between the Executive and each Petitioner. On June 11, 2018, the Society posted on its Facebook page that 11 individuals had been expelled. The 12^th individual, who had apologized, was suspended for one year instead. Of the 11, six were later also banned from the Society’s premises as a result of an altercation with certain board members at a separate incident.

The lower court in the Decision found the Executive had failed to provide the Petitioners with adequate notice of the particulars of the allegations and that there was a reasonable apprehension of bias.

The BCCA stated that the lower court judge in the Decision did not address the “necessary content of the specific aspects of procedural fairness that she identified — namely, the respondents’ entitlement to notice, an opportunity to be heard, and an unbiased decision maker — in light of the circumstances of the case and of the Society and its Bylaws.” As well, the BCCA considered that the lower court erred in its Decision that that there was a reasonable apprehension of bias. The BCCA reversed the Decision and restored the Executive’s expulsion of the Petitioners. However, where the Decision judge concluded that the Society failed to abide by its own bylaws concerning the six Petitioners who were banned from the premises, that part of the Decision setting aside the ban was affirmed. The BCCA left open that the Society could revisit the question of whether six of the Petitioners should be banned from the Society’s premises by following its bylaws.

This case provides an example for charities and not-for-profits of the importance of clearly articulating the expectations of members and following their own procedures in their bylaws. It is important to note that the BCCA ruling in this matter was released prior to the SCC’s judgment in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, released on May 21, 2021 and discussed in Church Law Bulletin No. 59, which also considers issues related to the removal of members in a not-for-profit. Given the SCC judgment, it will take precedence over the BCCA by courts in other jurisdictions, but the BCCA ruling remains helpful in addressing the content of notice in matters of removing members of a not-for-profit corporation.