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By Ian Moes
CHURCHES and Christian charities are typically
incorporated societies in British Columbia – like most social clubs,
sporting organizations and professional associations.
But how are the members of these associations, whether
incorporated or not, supposed to be treated? A recent decision of the B.C.
Supreme Court confirms that your parents were right: you must play fair, or
the courts will intervene.
Caroline Wang was a director of the British
Columbia Medical Association (BCMA), a society created under the Society
Act to promote the medical profession in B.C. More than 90 percent of
B.C. physicians are members.
A debate arose within the BCMA regarding how it should
be governed. One side advocated a top-down corporate approach, and the
other a representative, grassroots approach.
In an attempt to limit broadcasting dissenting views on
this issue, the BCMA board established a code of conduct for its directors.
Included was a non-compliance provision that set out a procedure for
investigating a complaint.
Wang used an online medical discussion forum as a
means of communicating matters that the board of the BCMA was considering,
and to solicit feedback.
When Wang refused to leave a board meeting where this
matter was being discussed, the board formed a committee, supposedly under
the code of conduct, to investigate her conduct, which they viewed as
“insubordination, improper and/or unethical.” Wang went to
court.
The court found that, “based on the explicit
terms of the code of conduct a committee could only be formed in one
discrete instance – when a “complaint of non-compliance with
[the] code of conduct” was made.
Simply put, because no formal complaint had been made
about Wang’s conduct, the board could not set up a committee under
the code of conduct to investigate her.
Ironically, the B.C. Supreme Court found that, because
of the board’s failure to comply with the code of conduct, it was
itself in breach of the code!
In reaching their decision, the court reaffirmed that
the relationship between the members of a voluntary association is
contractual, the terms of which may be express or implied.
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The court found that, while the express terms of the
contract are to be found, at a minimum, in the constitution and properly
enacted bylaws, the contract can be much broader – depending on the
nature of the implied contractual terms that stem from the parties’
reasonable expectations.
Implied terms require a voluntary association to:
• operate with procedural fairness;
• observe the principles of natural justice;
• give someone adequate and timely notice of a
charge brought against them, with a reasonable opportunity to respond
before an unbiased decision-maker;
• not act in bad faith.
What this means for voluntary associations, such as
churches and charities, is that they must follow not only their
constitution, bylaws and policies, but also comply with the reasonable
expectations of their members. Failure to do so results in a breach of the
contract the association has with its members and the courts can intervene
– forcing them to play fair.
Ian Moes is a lawyer with Kuhn & Company in
Abbotsford.
January 2009
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