B.C. Court of Appeal Upholds Decision on Membership Admission
November 2020 Charity & NFP Law Update
Published on November 26, 2020

By Esther S.J. Oh


The Court of Appeal for British Columbia dismissed an appeal by the Delta Hospice Society (the “Society”) of a trial court ruling on the admission of members in the November 13, 2020 Farrish v Delta Hospice Society decision. Differing views on medical assistance in dying (“MAiD”) led to a disagreement between certain members of the Society that were in support of MAiD and the Society’s Board of Directors (“Board”) of whom a majority took a position that was not in support of MAiD. The Board had called a membership meeting to obtain membership approval over proposed significant changes to the Society’s constitution and bylaw prohibiting MAiD. The member petitioners alleged, in part, that in the period of time leading up to the membership meeting, the Board had refused membership to many applicants who did not support the Board’s position, while granting membership to those applicants who were in support of their position.

As discussed in the August 2020 Charity & NFP Law Update, on the issue of the Board’s rejection of membership applications that were not in support of its position, the court found that, “unless the criteria for membership are set out in the bylaw, the directors do not have the discretion to deny membership on some other basis that they themselves determine.” The Society’s bylaw had contained generic wording stating that “…on acceptance by the directors [a person] is a member.”

The Society appealed the trial court’s decision, arguing that the trial court committed an error in law “in finding that the Board’s conduct in rejecting applications for membership from those seen as pro‑MAiD or potentially pro‑MAiD, contravened the Act or Bylaws so as to justify the orders granted by the chambers judge.”

The Society argued that the trial court had erred by treating its past practice with membership applications (i.e. an open approach, granting membership to anyone who applied and paid an application fee) as being binding. The Court of Appeal stated that this fact was important, as it was ultimately relevant to questions of bad faith and remedy. Although the Society’s past practice was not decisive when considered in isolation, the Society’s bylaws contained no membership criteria and did not require anything other than payment of a fee. The Board therefore did not have discretion to determine membership based on anything other than that. The Court of Appeal stated that “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 [Board] to apply their own private criteria to keep out others who think differently than they.” The Court of Appeal indicated that if the Board’s proposed special resolutions to amend the Society’s governing documents were adopted, those new amendments would be similarly respected and enforceable by courts.

The Society argued that the “underlying Charter values” of freedom of association and freedom of conscience should inform a statutory discretion that was exercised by the trial court. While the Court of Appeal accepted that Charter values should not be ignored by courts in resolving private disputes, it concluded that the Charter rights “do not equate to, or indeed support, a right of the Board to control the Society’s membership lists on the basis of criteria not stated in the Bylaws,” and that a finding in favour of the Society would constitute the court’s acceptance of the directors’ acts, which were intended to exclude from membership those with opposing views.

Finally, while the Court of Appeal reiterated that it is not the role of courts to interfere on the issue of whether the Society should carry out programs that facilitate MAiD, the Court of Appeal did recognize that courts may intervene under the remedial provisions of the Act where a society acts in breach of its Bylaws or the Act. Based on these findings, the Court of Appeal dismissed the Society’s appeal.

This case underscores the importance of clearly drafting governing documents for an organization in order to reflect the intended parameters to apply. Further, when dealing with membership matters, charities and not-for-profits should ensure that their actions are in compliance with the provisions contained in their governing documents, as well as applicable incorporating legislation.


Read the November 2020 Charity & NFP Law Update