By Bob Kuhn

THE SUPREME Court of B.C. recently took a Korean church to task over its ongoing disputes and failure to comply with its own bylaws.

On April 18, Justice Smith delivered a somewhat gentle but nonetheless embarrassing rebuke of church members for their ongoing arguments over compliance with legal requirements governing church process.  

While she said her decision “does not reflect poorly on the church as a faith community,” she roundly criticized litigation which consumed the church for several years, resulting in “considerable expense to all involved, including the members of the church whose voluntary contributions fund the defense of this litigation.”  

While expressing reluctance about becoming involved in the church’s internal affairs,  the judge disparaged poorly drafted, confusing church bylaws, suggesting they be redrafted “in a manner that clearly reflects the intention of the church’s membership and are adopted by the members in a properly constituted general meeting.”

The dispute arose over a confusing “two ballot rule” in the bylaws of the Vancouver church.

This required that a “secret” ballot take place to elect elders of the church for terms of five years, each of whom must receive a two-thirds majority vote to be elected.  

If less than five elders were elected after the first round of voting, a “double number” of candidates who had received at least one-third of the votes would remain on the ballot for the second round.  

The vote took place in one large room with no private polling booths. Members deposited their marked ballots in a ballot box. Some apparently found this lack of privacy intimidating. The first round of voting resulted in no candidates achieving the two-thirds vote required to be elected as an elder.  

Continue article >>

The pastor announced the names of the five candidates who had received more than one-third of the votes, placed those names on the next ballot (disregarding what “double number” meant), and then announced that all five candidates had been elected to the five vacant positions.

A disgruntled member objected to the process and outcome of the election. He asked filed a complaint with the denomination, which refused to overturn the election results.  The dissatisfied church member commenced legal proceedings, which were the subject of a court hearing April 3.

The court found the election had not followed the internal rules of the church, and further determined that the ‘secret’ ballot process was flawed. To be ‘secret’ requires that a private place must be provided for voters to mark and cast their ballots.  

The judge decided the only fair result was to nullify the election and ordered a new one within 45 days, to be conducted by a proper secret ballot.

 Justice Smith concluded her reasons for judgment by effectively warning all incorporated churches they must conduct their affairs in accordance with the legal requirements, constitution and bylaws that are binding upon them.  

She declared: “The ongoing challenge for the church will be to maintain the flexibility and good will of its faith community’s consensus-based decision-making, while at the same time ensuring that the procedural rules and formalities of its society are followed.”

All churches can learn valuable lessons from this particular church fight. Draft clearly worded and understandable bylaws, and follow them. Safeguard the process of ‘secret’ ballots. And, perhaps most importantly, consider a dispute resolution process which keeps church fights out of the public courts.

Bob Kuhn is an Abbotsford lawyer with Kuhn and Co.

June 2007