Judgement of the Supreme Court of Canada
October 29, 1992
Daniel Hofer Sr., Daniel Hofer Jr., Larry Hofer,
David Hofer, Paul Hofer Jr., Leonard Hofer and
John Gerald Hofer
v.
Michael Wollmann, Jacob Hofer and Joshua Hofer, in their representative capacity for and on behalf of Lakeside Colony of Hutterian Brethren, Lakeside Holding Co. Ltd. and Lakeside Colony Ltd. Respondents
Indexed as: Lakeside Colony of Hutterian Brethren v. Hofer
File No.: 22382.
1992: May 5; 1992: October 29.
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for manitoba
Administrative law -- Natural justice -- Fair hearing -- Proper notice -- Church membership -- Interplay of Act, church constitution, articles of association and church tradition -- Church tradition of reconciliation through acceptance of discipline offered by the church with non-acceptance resulting in self-expulsion -- Member refusing discipline and considered expelled -- Whether authority to expel lying with board established under the Act or with the church acting in traditional manner -- Whether adequate notice given of meetings of the church considering the issue.
Members of the Hutterian Brethren Church live in colonies and hold property communally. Only baptised adult males vote in colony meetings where a quorum is four-fifths of the voting members and most decisions are reached by consensus without a formal vote. The church's institutional framework is derived from (a) the tradition and custom of Hutterites; (b) the Articles of Association entered into by the colony members; (c) the Constitution of the Hutterian Brethren Church and Rules as to Community of Property; and (d) An Act to Incorporate the Hutterian Brethren Church.
Hutterites strive to achieve a community life characterized by peace and harmony and in part achieved through obedience to the rulings of the church's senior elders. One principle held by the Hutterites is that of punishment and of reconciliation through the acceptance of punishment by the offending party. The traditional punishment is Absonderung or shunning -- a person is avoided by members of the congregation, in varying degrees, from eating and worshipping alone to complete avoidance by the community. A person not accepting his punishment, and therefore reconciliation, is considered to have removed himself from the church rather than being expelled by the church.
This appeal deals with the attempts of a Hutterite colony to have the courts expel Hofer Sr. and those who supported him (three other members and three residents who had not yet become members) from the colony. A number of questions arose as to the interaction of the various parts of the church framework. A key question was whether expulsion could be effected by a Board of Managers operating under the church's constitution or whether it could be effected by traditional church council not provided for in the constitution.
The dispute giving rise to the circumstances of this appeal began with conflicting claims to the patent rights to a hog feeder. Hofer Sr., of the Lakeside Colony claimed to have discovered the mechanism but another Hutterite colony had patented a similar feeder and the assignee of that patent moved to enforce its patent rights. Hofer Sr. refused to stop manufacturing his feeder when requested by his colony. The issue was considered at a general meeting of the colony's voting members. The chairperson asked Hofer Sr. to leave when he persisted in speaking and suggested that he be shunned at meals and during worship. Hofer Sr. refused to repent and accept the punishment. After further discussion, he was told that he was "expelling himself" by refusing to accept the discipline and that he was no longer a member of the church. No formal vote was held; it was a matter of consensus on the part of those present. A further meeting was held 10 days later to see whether Hofer Sr. would repent and seek readmission to the colony. The underlying premise was that the decision made at the prior meeting was properly made. Hofer Sr. had been informed of the meeting but did not attend.
Hofer Sr. requested that the matter be considered by a "higher court" of the church at the first meeting. Church ministers meeting for other purposes raised the matter and only reluctantly acquiesced to this request after considerable delay and much bitterness in the colony. Appellants refused to attend the meeting set up for the purpose and the ministers participating decided that the shunning should be increased to no association of any kind with the appellants. Appellants received no further notice of their colony's meetings and the colony decided that they could no longer be tolerated in the colony.
Despite the decision to invite Hofer Sr. to a meeting of this "higher court" of the church, Hofer Sr. and two others received letters from the lawyers for the colony informing them that they had been expelled from the colony and requiring them to vacate the colony lands by a date which would have been before the date scheduled for the higher church court. They did not leave the colony, and the statement of claim in this action was filed. The colony asked that the court order the appellants to vacate the colony land permanently and to return all colony property to the colony. It also asked that the court make a declaration that certain appellants were no longer members of the colony.
In the colony's view, Hofer Sr. had removed himself from membership in the colony and that the three members who supported him were automatically removed from membership because of that support and that no meetings were necessary to consider the matter. No notice of the initial or any further meeting was given them. The three young persons, who were not yet members and who supported Hofer Sr., were asked to leave the colony. They had no notice that their expulsion would be considered at the meeting that ordered their expulsion. Indeed, they were not even warned of their possible expulsion unless they changed their ways.
The colony succeeded at trial before Ferg J., and the judgment was upheld on appeal. The issue here is whether the Court should assist the respondent Hutterite colony in enforcing its expulsion of the appellants from the colony. In order to determine this question, the Court must decide whether the expulsion was carried out according to the applicable rules and the principles of natural justice.
Held (McLachlin J. dissenting): The appeal should be allowed.
Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The courts are slow to exercise jurisdiction over the question of membership in a voluntary association, especially a religious one. Jurisdiction has been exercised, however, where a property or civil right turns on the question of membership. The colony considered the issue to be property while the members affected saw it as being contractual.
The statutory corporation and the association created by the church's constitution are neither wholly identical nor wholly distinct. The Act casts only the top layer of the structure established by the constitution into legislative form ostensibly because the corporation's raison d'être was to deal with external threats that affected each Hutterite conference equally. The church corporation and the church should therefore be seen as technically distinct entities which in practice have the same members and are governed by the same managers at the same meetings. The authority within the church to expel is therefore not be limited to a body of the corporation (the Board of Managers), since the statutory corporation governed by the Act is a distinct entity from the church governed by the constitution.
The written documents and the authority which they outline are primary only from an external viewpoint. A long-standing tradition provides a kind of notice to the member of what rules the association will follow. Voluntary associations are meant largely to govern themselves, and to do so flexibly. Therefore, tradition or custom which is sufficiently well established may be considered to have the status of rules of the association on the basis that they are unexpressed terms of the Articles of Association. In many cases, expert evidence will be of assistance to the Court in understanding the relevant tradition and custom.
The tradition that a group of ministers appointed by the Senior Elder can finally decide issues referred to them by the Senior Elder is a valid rule on this standard. The constitution does not expressly forbid such delegation. It merely gives the Conference Board a certain power without specifying how it is to be exercised. The undisputed tradition is sufficient to authorize the further delegation of this power.
The colony may expel a member of the colony (under the authority of s. 46 of the constitution and s. 39 of the articles). Section 23 of the constitution gives the conference the power to expel a member from the church, which would mean that he was automatically expelled from the colony by virtue of s. 39 of the articles. Section 39 of the articles and s. 46 of the constitution both refer to a vote to expel a member, and various reasons for which a member might be expelled, such as disobedience. In the articles, it is reasonably clear what requirements must be met and that a member may be expelled upon a majority vote for various causes. The constitution is curiously inconsistent with the articles on this point. Section 46 of the constitution provides that a member may be expelled upon a majority vote, or upon various causes (as opposed to for various causes). This minor difference in wording implies that expulsion may be automatic following certain causes, without the requirement for a vote. The policy of the law clearly is that a vote is normally required unless it is clearly stated that certain conduct automatically brings about expulsion.
The constitution, while implying certain causes warrant expulsion without a vote, does not state how they are to be determined. The articles, therefore, are not inconsistent with the constitution when they demand a vote in order to establish cause. In demanding a vote, the articles merely fill in a lacuna in the constitution. Whether a vote has been taken is essentially a question of fact, and need not be formal. Given the Hutterite preference for operating by consensus rather than by formal votes if possible, it will be a question of fact in any given situation whether a consensus has been reached that is sufficiently unambiguous to qualify as a vote.
It is possible to resign from a voluntary association through conduct evidencing an intention to resign. The appellants' conduct did not point to such an intention.
Non-members may only be expelled for failure to abide by and conform to the rules, regulations, instructions and requirements of the colony. The articles and constitution are silent as to who should make this determination. It was not necessary to resolve that point.
The content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations and an unbiased tribunal.
A member must be given notice of the cause for which he is to be expelled. It is insufficient merely to give notice that the conduct of a member is to be considered at a meeting. The member who is to be expelled must also be given an opportunity to respond to the allegations made against him. There is some flexibility in the scope of the opportunity required. The defendants raised the question of bias but it was not necessary to discuss this issue here.
Natural justice requires procedural fairness no matter how obvious the decision to be made may be. Natural justice requires that notice be given of a meeting to consider the matter and that an opportunity be given to make representations concerning it. This may not change anything, but it is what the law requires. The notice given Hofer Sr. was defective: the procedural defects of the earlier meeting were not cured by holding the second meeting because the purpose for calling the second meeting was not to reconsider the decision taken at the first. This conclusion applied to all further meetings which were held, especially since they were all held after the statement of claim had been issued. The other appellants were given no notice whatsoever of the decision to be made concerning their status in the colony. Daniel Hofer Sr. and his sons were not expelled and have remained members of the colony throughout and the three young defendants have maintained a right to remain on the colony.
The status of the property which the appellants have been accumulating raised an ancillary issue. The colony had asked for an order that the defendants return all colony property to the colony. Given the provisions of the Articles of Association relating to the ownership of property, it seems possible that the colony would be entitled to such an order even though the defendants have not been validly expelled. However, the order for the return of property was not sought on the basis that the defendants were still members, but rather on the basis that they had been expelled. Therefore, the action should be simply dismissed, preserving the right of the colony to take other proceedings to protect its property if that should be required.
Per McLachlin J. (dissenting): The particular procedures dictated by natural justice depend on the facts of the case. Advance notice of a decision is not required where the purpose of the notice requirement is fulfilled. Formal notice was not necessary here to permit the appellants to present their defence. Indeed the concept of formal notice did not arise because appellants' expulsion was essentially self-expulsion, freely chosen by them with full knowledge of the consequences. The colony did not need to give notice of debate concerning a decision which is not theirs to make. If some sort of decision to expel were made by the colony, the appellants were fully aware in advance of what was to be decided and had full opportunity to present their defences.
Cases Cited
By Gonthier J.
Referred to: Ukrainian Greek Orthodox Church of Canada v. Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, [1940] S.C.R. 586; Lee v. Showmen's Guild of Great Britain, [1952] 1 All E.R. 1175; Baird v. Wells (1890), 44 Ch. D. 661; Hofer v. Hofer, [1970] S.C.R. 958; Organization of Veterans of the Polish Second Corps of the Eighth Army v. Army, Navy & Air Force Veterans in Canada (1978), 20 O.R. (2d) 321; John v. Rees, [1970] Ch. 345; Hofer v. Waldner, [1921] 1 W.W.R. 177; Cohen v. The Congregation of Hazen Avenue Synagogue (1920), 47 N.B.R. 400; Young v. Ladies' Imperial Club, [1920] 2 K.B. 523.
By McLachlin J. (dissenting)
Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; C.D. v. Tramble (1985), 68 N.S.R. (2d) 53; R. v. Halifax-Dartmouth Real Estate Board; Ex parte Seaside Real Estate Ltd. (1964), 44 D.L.R. (2d) 248; Camac Exploration Ltd. v. Oil and Gas Conservation Board of Alta. (1964) 47 W.W.R. 81; Hofer v. Waldner, [1921] 1 W.W.R. 177; Hofer v. Hofer, [1970] S.C.R. 958.
Statutes and Regulations Cited
Act to Incorporate the Hutterian Brethren Church, S.C. 1951, c. 77, ss. 2, 3, 4, 5, 6, 7 to 15.
Articles of Association of the Lakeside Colony of Hutterian Brethren, ss. 4 to 11, 13, 21, 32 to 35, 39, 42.
Constitution of the Hutterian Brethren Church and Rules as to Community of Property, ss. 1, 2(a), (b), (f), 3 to 18, 6, 13, 19 to 32, 23, 29, 33 to 47, 34, 35, 40, 41, 43, 46.
Authors Cited
Chafee, Zechariah, Jr. "The Internal Affairs of Associations Not for Profit" (1930), 43 Harv. L. Rev. 993.
Dussault, René and Louis Borgeat. Administrative Law: A Treatise, vol. 4, 2nd ed. Translated by Donald Breen. Toronto: Carswell, 1990.
Forbes, Robert E. "Judicial Review of the Private Decision Maker: The Domestic Tribunal" (1977), 15 U.W.O. L. Rev. 123.
Jones, David Phillip and Anne S. de Villars. Principles of Administrative Law. Toronto: Carswell, 1985.
Ogilvie, M. H. "The Legal Status of Ecclesiastical Corporations" (1989), 15 Can. Bus. L.J. 74.
Stoljar, S. J. "The Internal Affairs of Associations". In Legal Personality and Political Pluralism. Edited by Leicester C. Webb. Melbourne: Melbourne University Press, 1958.
APPEAL from a judgment of the Manitoba Court of Appeal (1991), 70 Man. R. (2d) 191, 77 D.L.R. (4th) 202, dismissing an appeal from a judgment of Ferg J. (1989), 62 Man. R. (2d) 194, 63 D.L.R. (4th) 473. Appeal allowed, McLachlin J. dissenting.
Donald G. Douglas, for the appellants.
Michael F. C. Radcliffe, Roy H. C. Baker, Q.C., and William R. Murray, for the respondents.
The judgment of La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
Gonthier J. -- The issue in this case is whether the Court should assist the respondent (plaintiff) Hutterite colony in enforcing its expulsion of the defendants from the colony. In order to determine this question, the Court must decide whether the expulsion was carried out according to the applicable rules and the principles of natural justice.
The respondents (hereinafter the plaintiffs) brought this claim in their representative capacity, on behalf of the Lakeside Hutterite Colony, Lakeside Holding Co. Ltd., and Lakeside Colony Ltd. The colony itself is a voluntary association whose members have all agreed to Articles of Association. The holding company is the owner of the land on which the colony members reside, and owns the land in trust for the colony. The colony corporation leases the land from the holding company, and operates a farming enterprise thereon. The relationship between these entities does not raise any issues in this case, so I will simply refer to them collectively as "the colony."
The defendants all currently reside on colony land. Daniel Hofer Sr., Daniel Hofer Jr., Larry Hofer and David Hofer are all members of the colony, unless, of course, the colony has in fact expelled them from membership. The latter three are Daniel Hofer Sr.'s adult sons. Paul Hofer Jr., Leonard Hofer and John Gerald Hofer are young persons who have not yet become members of the colony, since Hutterites believe in adult baptism, and baptism is required for membership. They are the sons of continuing members of the colony who are not directly involved in this claim. For convenience, I will sometimes refer to Daniel Hofer Jr., David Hofer and Larry Hofer as "the sons", Paul Hofer Jr., Leonard Hofer and John Gerald Hofer as the "young defendants", and the seven defendants together as Daniel Hofer Sr.'s group.
The colony asked that the court order the appellants (hereinafter defendants) to vacate the colony land permanently, and return all colony property to the colony. The colony also asked that the court make a declaration that Daniel Hofer Sr. and his sons were no longer members of the colony. The colony succeeded at trial before Ferg J. (1989), 62 Man. R. (2d) 194, and the judgment was upheld on appeal, O'Sullivan J.A. dissenting (1991), 70 Man. R. (2d) 191.
The defendants filed a counter-claim which was dismissed at trial, and has not been appealed.
I. The Standard of Review
The courts are slow to exercise jurisdiction over the question of membership in a voluntary association, especially a religious one. However, the courts have exercised jurisdiction where a property or civil right turns on the question of membership. As Crocket J. said in Ukrainian Greek Orthodox Church of Canada v. Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, [1940] S.C.R. 586:
. . . it is well settled that, unless some property or civil right is affected thereby, the civil courts of this country will not allow their process to be used for the enforcement of a purely ecclesiastical decree or order.
There is, however, a property right at stake in this case, especially from the point of view of the colony. If the defendants were strangers to the colony, then the colony would surely be entitled to an order barring them from the property, since that would be part of the colony's right of ownership. However, if Daniel Hofer Sr. and his sons are colony members, then they have certain rights under the Articles of Association to live on the colony and to be supported by the colony. Residents of the colony, such as the young defendants, also have certain rights which persist on certain conditions.
From the point of view of the members of the colony, these rights to remain are contractual in nature, rather than property rights. However, while contractual, the rights in question are of great importance to all concerned, and are susceptible of enforcement by the courts. As Lord Denning said in Lee v. Showmen's Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.), at p. 1180, a contractual right which permits a person to earn his livelihood is on the same footing as a property right in the context of jurisdiction over voluntary associations:
If a member is expelled by a committee in breach of contract, this court will grant a declaration that their action is ultra vires. It will also grant an injunction to prevent his expulsion if that is necessary to protect a proprietary right of his, or to protect him in his right to earn his livelihood, . . . but it will not grant an injunction to give a member the right to enter a social club, unless there are proprietary rights attached to it, because it is too personal to be specifically enforced . . . .
If the defendants have a right to stay, the question is not so much whether this is a property right or a contractual right, but whether it is of sufficient importance to deserve the intervention of the court and whether the remedy sought is susceptible of enforcement by the court. Here the rights in question are of the utmost importance and the "remedy" requested is merely that the court not intervene to enforce the expulsion. Therefore, the court must determine whether Daniel Hofer Sr. and his sons are members of the colony, and whether the young defendants are residents whose rights have not been revoked.
In deciding the membership or residence status of the defendants, the court must determine whether they have been validly expelled from the colony. It is not incumbent on the court to review the merits of the decision to expel. It is, however, called upon to determine whether the purported expulsion was carried out according to the applicable rules, with regard to the principles of natural justice, and without mala fides. This standard goes back at least to this statement by Stirling J. in Baird v. Wells (1890), 44 Ch. D. 661, at p. 670:
The only questions which this Court can entertain are: first, whether the rules of the club have been observed; secondly, whether anything has been done contrary to natural justice; and, thirdly, whether the decision complained of has been come to bonâ fide.
This analysis is consistent with Hofer v. Hofer, [1970] S.C.R. 958. In that case, a number of Hutterites were expelled following their conversion to another religious faith. In giving effect to that expulsion, Ritchie J. noted, at pp. 972-73, that the appropriate rules had been followed and the principles of natural justice observed. This is also the standard applied by the trial judge and the majority of the Court of Appeal in the present case. Indeed, the colony accepts that it must act in accordance with its own rules and the principles of natural justice in expelling members, and accepts the jurisdiction of the court to make the determination whether they have done so.
II. The Institutional Framework To answer the question whether the expulsion of the defendants was done fairly and in accordance with the applicable rules, one must first identify what fairness requires and what the applicable rules are. Before doing this, it is necessary to have an understanding of the institutional framework within which the Lakeside Colony operated.
There are four sources of the rules which make up the institutional framework within which the Lakeside Colony operates. These are: (a) the tradition and custom of Hutterites; (b) the Articles of Association entered into by the colony members; (c) the Constitution of the Hutterian Brethren Church and Rules as to Community of Property; and (d) An Act to Incorporate the Hutterian Brethren Church, S.C. 1951, c. 77.
A. The Constitution of the Hutterian Brethren Church
A convenient starting point is the Constitution of the Hutterian Brethren Church and Rules as to Community of Property. This document is in the form of Articles of Association, and was executed by the representatives of 60 Hutterite colonies across Canada on August 1, 1950. Membership has since grown to include many more colonies, some in the United States. The preamble recites that the Hutterite Brethren Church has continuously existed since the 16th Century, and that there are at present many widely scattered colonies, for which reason it is deemed advisable to reorganize the church.
Article 1 defines the name of the church as the Hutterian Brethren Church. Article 2 defines the objects and purposes of the church as follows:
(a) To obtain for its members and their dependent minors, as also for the novices, helpers, children and persons in need under its care, without distinction of race, class, social standing, nationality, religion, age or sex, spiritual, cultural, educational and economic assistance based upon the life and mission of Jesus Christ and the Apostles, in the spirit and way of the first Christian community in Jerusalem and of the community re-established by Jacob Hutter in 1533 at the time of the origin of the "Baptisers' movement" in such a way that the members achieve one entire spiritual unit in complete community of goods (whether production or consumption) in perfect purity in mutual relationships, absolute truthfulness and a real attitude of peace, confessing and testifying by word and deed that Love, Justice, Truth and Peace is God's will for all men on earth. All the members, and especially the Elders, are responsible for carrying out the objects of the Church by following exactly the spontaneous direction of the Holy Spirit and by mutual stimulation and education.
(b) Complete dedication in the work for the aims and objects of the Church is expected from all members thereof. The capital and surplus produce and surplus funds of each individual congregation or community of the Church is to be used by such community for social work to which the Church is constantly dedicated, helping poor, weak and sickly persons who need, ask for and accept this help, especially children, and for the purchase of lands, stock and equipment for the use of such congregation or community in order that the members thereof may maintain themselves and acquire funds for the purposes of carrying out the aims of the Church.
Article 2 also defines the powers of "congregations or communities" of the church, which are the colonies. The powers of the colonies include the power to hold property of any kind. Article 2(f) gives each colony the power to make rules, regulations or by-laws so long as they are not contrary to the Constitution or the law.
The remainder of the Constitution sets up three levels of authority: the church, the conference and the colony.
1. The Church and the Board of Managers
Articles 3 to 18 define the organization of the church. It is composed of all the colonies signing the Articles and all those later admitted to membership pursuant to the Articles. The head office of the church is in Wilson Siding, Alberta. The church is divided into three conferences, the Darius-Leut, the Lehrer-Leut and the Schmied-Leut. Each conference is to select three persons to form a nine-member Board of Managers. These managers then select from amongst themselves a Senior Elder, an Assistant Senior Elder, and a Secretary. The date of an annual meeting, later amended to be bi-annual, is established. Provision is also made for special meetings, on seven days' notice.
Article 6 sets out the powers of the Board of Managers:
6.The Church dogma and Church discipline and the affairs, powers, privileges and all matters affecting and pertaining to Hutterian Brethren generally, shall be administered, managed, exercised, transacted, conducted and controlled by a Board of nine managers, three of whom shall be appointed by each of the said Conferences, provided, however, that except as to matters of a purely administrative nature, no resolution or decision of the said Board shall be binding or effective until approved, ratified and confirmed by each of the said Conferences.
2. The Conferences and the Conference Boards
Articles 19 to 32 set out the organization of each of the three conferences referred to earlier. The powers of the conference are to be exercised by a Conference Board, consisting of two delegates from each colony. These conference boards are to select from amongst themselves a Chairman, Vice-Chairman and Secretary. It seems that in practice the Chairman and Vice-Chairman are referred to as the Senior Elder and Assistant Senior Elder, as is the case with the Board of Managers of the church. Provision is made for an annual meeting, and special meetings on four days' notice.
Article 29 sets the quorum as two thirds of the total members of the Conference Board. The powers of the conference are set out in Article 23:
23. The Conference Board shall exercise control over the Church dogma and Church discipline within their respective Conference, and shall have charge of all matters pertaining to Hutterian Brethren generally within their respective Conferences, and shall have power to take such action as they deem meet in respect to matters affecting or pertaining to the Hutterian Brethren within their respective Conferences.
3. The Colonies
Articles 33 to 47 set out the organization of the colonies, referred to as "congregations" or "communities". Each colony's affairs are to be governed by its own rules, passed pursuant to Article 2(f). Article 35 sets out two criteria for membership in a colony. To be a member of a colony, a person must be a member of the church, and must be elected to membership in the colony by a vote of its members.
There are a number of Articles dealing with the ownership of property. No member of a colony owns property of any kind. All property is owned by the colony, for the common use and benefit of its members. Upon leaving a colony, or upon expulsion, a former member is not entitled to any of the colony's property.
According to Article 34, each colony is a separate economic entity, not being liable for the obligations of any other colony.
The rights and duties of members are set out in a number of Articles. The most important of these are Articles 40, 41 and 43:
40.Each and every member of a congregation or community shall give and devote all his or her time, labor, services, earnings and energies to that congregation or community, and the purposes for which it is formed, freely, voluntarily and without compensation or reward of any kind whatsoever, other than herein expressed.
41.The members of a congregation or community shall be entitled to and have their husbands, wives and children, who are not members thereof, reside with them, and be supported, maintained, instructed and educated by that congregation or community, according to the rules, regulations and requirements of that congregation or community, during the time and so long as they obey, abide by and conform to the rules, regulations, instructions and requirements of that congregation or community.
43.The husbands, wives and children of each and all of the members of a congregation or community, who are not members thereof, shall give and devote all their time, labor, services, earnings, and energies to that congregation or community and purposes for which it is formed, freely, voluntarily and without compensation of any kind whatsoever other than as herein provided, and obey and conform to all the rules, regulations and requirements of the congregation or community, while they remain in or with the congregation or community.
The expulsion of members is specifically dealt with in Article 46:
46. Any member of a congregation or community may be expelled or dismissed therefrom at any annual or general meeting of that congregation or community upon a majority vote of all the members thereof, or upon the request of such member, or by his or her having left or abandoned the congregation or community, or having refused to obey the rules and regulations and the officers of the congregation or community, or having refused to give and devote all his or her time, labor, services, earnings and energies to the congregation or community and the purposes thereof, or to do and perform the work, labor, acts and things required of him or her by the congregation or community or to attend and engage in the regular meetings, worship and service of the members of the congregation or community.
B. The Articles of Association of Lakeside Colony
The Lakeside Colony's Articles of Association were originally entered into on November 12, 1987. The preamble recites that the signatories have associated themselves into a community based on their religious beliefs, and that they have agreed to enter into the Articles for the purpose of regulating the affairs of the community.
Article 13 establishes a Board of Directors which shall have from three to seven members. The Minister of the Congregation chosen by the church is the President, and the Steward chosen by the congregation is the Secretary-Treasurer. According to Article 21, the President is the chief executive officer and head of the colony, and has the active management of its affairs.
Article 42 establishes that title to land owned by the colony is to be held by a holding company in trust for the colony.
The meetings of the colony members are governed by Articles 4 to 11. Quorum is set at four fifths of the male members of the Colony, and it is only the male members who may vote. An annual general meeting is established, of which no notice is necessary. Special meetings may be held on the order of the President. Notice of a special meeting may be given by announcement at any church meeting of the colony.
Articles 32 to 35 deal with the rights and duties of members in the same manner as does the church constitution quoted above, with minor variations. The question of property ownership is also dealt with in Articles virtually identical to those in the church constitution.
The matter of expulsion is dealt with explicitly, in Article 39:
39. Any member of the Colony may be expelled or dismissed from the Colony at any general or special meeting of the Colony upon a majority vote of the voting members thereof for his or her having left or abandoned the Colony or having refused to obey the rules and regulations of the Hutterian Brethren Church or of the Colony; for having refused to give and devote all his or her time, labor, services, earnings or energies to the Colony and the purposes thereof, or to do and perform the work, labor, acts and things required of him or her by the Colony, or to attend and engage in the regular meetings, worship and service of the members of the Colony.
Any member may resign or withdraw from membership voluntarily.
Without limiting the generality of the foregoing, any member who shall cease to be a member of the Hutterian Brethren Church shall leave the Colony and shall have no claim to any property of the Colony. We acknowledge that all Canadians have the right of freedom of religion, but we hereby covenant, promise and agree that if any of us shall change his or her religion and shall cease to be a member of the Hutterian Brethren Church, that he or she shall leave the Colony.
In the event of any group of members leaving and ceasing to reside in the Colony, for the purpose of forming a new Hutterian Colony or "daughter Colony," then those persons moving to the new Colony shall cease to be members of Lakeside Colony and shall be members of the new Colony.
C. The Act
A corporation named "The Hutterian Brethren Church" was incorporated by a private Act of Parliament entitled An Act to Incorporate the Hutterian Brethren Church. This legislation took effect on May 31, 1951. Section 1 recites the names of the petitioners for the Act, and incorporates the church. Section 2 establishes the nine-member Board of Managers. Section 3 establishes the Head Office at Wilson Siding, Alberta.
Sections 4 and 5 establish the objects of the church and the powers of the Board of Managers:
4. The objects of the Corporation shall be to engage in and carry on the Christian religion, Christian worship and religious education and teaching and to worship God according to the religious belief of the members of the Corporation.
5. The church dogma and church discipline and all the temporal affairs of the Corporation shall be administered, managed, exercised, transacted, conducted and controlled by a board of nine managers.
Section 6 provides for the enactment of by-laws:
6. The Corporation may, from time to time, make by-laws, not contrary to law, for
(a)the administration, management and control of property, business and other temporal affairs of the Corporation;
(b)the appointment, functions, duties and remuneration of all officers, agents and servants of the Corporation;
(c)the appointment or deposition of the board of managers, or any special committees or boards from time to time created for the purposes of the Corporation;
(d)the calling of regular or special meetings of the Corporation of the board of managers;
(e)fixing the necessary quorum and the procedure to be followed at all meetings referred to in the preceding paragraph;
(f)determining the qualifications of members;
(g)defining the faith and dogma of the Corporation;
(h)generally carrying out the objects and purposes of the Corporation.
Sections 7 to 15 deal with various corporate powers.
D. Hutterite Custom and Practice
Much evidence was lead as to Hutterite custom and practice in the governing of their affairs, and with respect to discipline in particular.
1. Discipline Patterns
Evidence was lead that discipline amongst Hutterites follows a characteristic pattern. When someone discovers that another is acting in an improper manner, the offending person is to be told that such action is improper, and asked to desist. If the offending person refuses to do so, then the aggrieved person is to discuss the matter with a few other persons, and jointly approach the offending person. If the offending person still refuses to change his ways, the entire community is called together to consider the matter, and a form of punishment is imposed.
Forms of punishment in the Hutterite community are all based on the exclusion of the offending person from the community, to a greater or lesser extent. The offending person may not be allowed to sit with the others in church or at meals, or there may be some other form of exclusion. At its most severe, the exclusion may be almost complete, so that the colony members will not speak or listen to the offending person for a time. This is referred to as shunning.
The reaction of the offending person to the punishment is supposed to be one of repentance and eventual reconciliation. Indeed, it is said that the punishment is "offered" to the offender, and the offender is expected to accept it. If the offender does not, he is said to excommunicate himself, since the possibility of reconciliation is spurned.
2. The Role of the Senior Elder and the Conference
Evidence was lead concerning the role of the Senior Elder in disputes between a Hutterite and his colony or between colonies. Apparently it is possible for any Hutterite to bring a grievance before the Senior Elder, and the Senior Elder will then decide whether it is a matter which deserves inquiry. If so, the Senior Elder will ask a number of ministers to investigate the matter, and a further meeting of ministers may be held to resolve the matter finally. How many ministers will be involved is at the discretion of the Senior Elder, and depends upon how serious the matter is.
Aside from this more formal process, the Senior Elder is often consulted by colonies with respect to any matter on which they wish advice. In such a case, the advice of the Senior Elder is not binding on the colony in question.
3. Voting
Evidence was led that Hutterite meetings tend to operate in terms of reaching consensus rather than always taking formal votes. Therefore, when the chair of a meeting indicates a certain position, and no objection is taken, this is seen as demonstrating a consensus.
E. The Relationship between the Sources of Authority
The relationship amongst these various sources for the institutional framework of the Lakeside Colony deserves some further discussion.
1. The Relationship between the Constitution and the Articles
From the point of view of the church Constitution, the Articles of Association are rules contemplated by Article 2(f) of the Constitution, and are therefore valid only in so far as they are consistent with the Constitution. While the members of the Association have contracted amongst themselves with respect to the Articles, they have also contracted amongst themselves and with other colonies with respect to the Constitution. Both the Articles and the Constitution are therefore the source of legal obligation between the members of the local colony. The same reasoning applies to other organizations with local associations that are themselves associated, as Blair J.A. observed in Organization of Veterans of the Polish Second Corps of the Eighth Army v. Army, Navy & Air Force Veterans in Canada (1978), 20 O.R. (2d) 321 (C.A.), at p. 341:
The relationship between national organizations and their incorporated local units is contractual. By adherence to the national organization, the members of the local association are taken to have accepted its constitution as a contract binding on them and all the members both of the local and national organization: see Carrothers, Collective Bargaining Law In Canada (1965), pp. 515-9; Brian G. Hansen, case note 61 Can. Bar Rev. 80 (1978), on Canadian Union of Public Employees et al. v. Deveau et al. (1977), 19 N.S.R. (2d) 24.
Since both the Articles and the Constitution create binding obligations, the agreement in Article 2(f) of the Constitution that the Constitution governs in case of inconsistency must simply be given effect according to its terms. Therefore, a provision of the Articles would be invalid if inconsistent with the Constitution.
2. The Relationship between the Constitution and the Act
The relationship between the Constitution and the Act is a vexed question. The defendants have argued that by virtue of the Act, only the nine-member Board of Managers of the church has the authority to expel a Hutterite. This argument receives some support from the comprehensive language of s. 5 of the Act, which provides that church dogma and discipline shall be "administered, managed, exercised, transacted, conducted and controlled" by the Board of Managers. It is argued that any unsupervised authority given to the conference or the colony by the Constitution or the Articles is a subdelegation not authorized by the Act, and therefore invalid.
However, it is quickly apparent that for the Act to have such a consequence is quite absurd. It is hardly realistic to expect a nine-member Board of Managers to supervise actively all matters of discipline throughout the hundreds of Hutterite colonies in question. This is especially so since there are real divisions amongst the three conferences, reflected in the fact that decisions of the Board of Managers, other than those of a purely administrative nature, must be ratified by each conference. Indeed, as I have noted above, it is not the actual practice of the Hutterites for the Board of Managers to be involved in individual cases of discipline.
If the true effect of the Act were to reserve to the Board of Managers all questions of discipline, then perhaps such absurdity as this occasions could not be avoided. As Ogilvie pointed out in "The Legal Status of Ecclesiastical Corporations" (1989), 15 Can. Bus. L.J. 74, at p. 81, the law of Parliament would presumably take precedence over the actual practice of the institution:
Finally, with respect to ecclesiastical law, it should be noted that there are some private Acts of incorporation which contain provisions at variance with the principles of church government of the religious body as incorporated. In these instances, presumably the doctrine of parliamentary sovereignty means that the provisions in the private Acts override any internal church law, regardless of the poor legislative draftsmanship which produced the difficulty.
As Professor Ogilvie notes in a footnote to this passage, the private Acts in question are typically drafted by the religious organizations themselves, so that if an absurdity is created, it is not imposed upon them by the government: Since private Acts are typically drafted by the religious bodies themselves, they must take full responsibility for the results of poor draftsmanship.
However, the true effect of the Act may not be to reserve all matters of discipline to the Board of Managers. In the Court of Appeal, Huband J.A. suggested that the statutory corporation and the association created by the Constitution were simply not the same entity (at p. 209):
This statutory entity was formed by the Canadian colonies of the three branches of Hutterianism in order to deal with matters of common concern, and in particular to resist governmental regulations or restrictions which might be imposed upon Hutterites. The federal corporation, however, is not involved in the operation of the Schmeiden-Leut or of the individual colonies. The federal corporation is misnamed, for the real Hutterite Brethren Church exists quite apart from the statutory entity.
This is in accordance with a brief reference by Pigeon J. to the Act in Hofer v. Hofer, supra, writing in dissent (the majority did not address the issue of the statutory corporation). Pigeon J. said at p. 982:
It is clear that the Church in this provision of the Articles means the unincorporated religious community. This is not to be identified with The Hutterian Brethren Church, a corporation incorporated by the Parliament of Canada (1951, 15 Geo. VI, c. 77).
This observation echoed the conclusion of Dickson J. (as he then was) at the trial level in that case (at p. 8 of the unreported portion of the reasons):
The function of the association is largely to represent the Hutterian Church whenever matters of common concern, like the introduction of restrictive legislation in a province, present a common danger. The association has no power in matters affecting the internal organization of the three component groups.
If the statutory corporation and the voluntary association were in fact distinct, this would solve the problem, as the Act would not apply to the association. However, the claim that the two entities are distinct does not sit comfortably with a number of features of the Act and the Constitution. The name of the organizations is the same. They have their head offices in the same town. They both have a nine-member Board of Managers, which is given largely the same powers. Most of the initial members of the boards seem to be the same persons, and the fact that the membership is not completely identical could be accounted for by the differing effective dates of the Act and the Constitution.
All this might lead one to believe that the Act and the Constitution in fact refer to the same organization. The Constitution would then presumably have the status of by-laws under the Act. However, this view has its problems as well. The Constitution is not expressed in terms of by-laws, but rather as Articles of Association. Indeed, the Constitution was adopted before the Act was passed.
The minutes of the first meeting of the Board of Managers shed some light on the matter. The meeting was held on November 7, 1951. The Act was read to the meeting. The church Constitution was also read, and unanimously "adopted" with certain amendments. New congregations in Montana were admitted to membership in the church. This was provided for in the Constitution, but not the Act. General by-laws were adopted, which dealt largely with matters of a procedural nature.
It is clear from this meeting that the Constitution does not have the status of by-laws. It is also clear, however, that the Board of Managers was purporting to act according to both the Act and the Constitution in the same meeting. This pattern has continued in later meetings, to this day. For instance, the minutes of the October 8, 1987 meeting of the Hutterian Brethren Church refer to the corporation as having been created by a "constitution" and by "legislation":
1. It was acknowledged that the name of the Hutterian Brethren Church had been styled the Hutterian Brethren Church of Canada from time to time and it was resolved by the meeting that any reference to the corporation in future herein would be properly styled the Hutterian Brethren Church in accordance with the original constitution and legislation creating the corporation. It was recognized that there was no prohibition against any colony in the United States or any place else in the world becoming a member of the Hutterian Brethren Church. [Emphasis added.]
The statutory corporation and the association created by the Constitution thus seem neither wholly identical nor wholly distinct. In analyzing the relationship between the Act and the Constitution, it is readily apparent that the Act casts only the top layer of the structure established by the Constitution into legislative form. This is consistent with the view that the purpose of the corporation was to deal with external threats that affected each Hutterite conference equally. To this end, only the top level of the institutional structure needed to be formalized in the statutory corporation. Why it was thought that a statutory corporation was necessary to this end is unclear, but this seems a logical conclusion.
The church corporation and the church should therefore be seen as technically distinct entities which in practice have the same members, and are governed by the same managers at the same meetings.
The authority within the church to expel would therefore not be limited to the Board of Managers, since the statutory corporation governed by the Act is a distinct entity from the church governed by the Constitution.
3. The Question of Tradition and Custom
The use of tradition and custom and the relationship between these and the other sources of authority is another vexing question. For instance, the defendants argue that the custom by which the Senior Elder refers questions to a small group of ministers for binding determination is an impermissible sub-delegation of the power given to the Conference Board by the Constitution. It is argued that the full Conference Board must exercise authority of this nature, not a smaller ad hoc committee appointed by the Senior Elder.
However, to rely exclusively on the written documents without reference to the tradition and custom of Hutterites would seem unwise. From a point of view inside the Hutterite society, it seems probable that tradition and custom are in fact the highest source of authority, and the written documents are merely imperfect attempts to capture these sources. Indeed, the Senior Elder of the Hutterite Church testified to this effect (at p. 537 of the Case on Appeal):
We have our individual practices, could be unwritten reasons of custom flowing from the origin of the church of the 15th century, and it still is going on like that. It is not written out, the ruling laid out with the greatest legalities that are today in the country.
It is only from an external viewpoint that the written documents and the authority which they outline seem primary. Indeed, it is difficult for a court to come to a firm conclusion as to what the tradition and custom are, and correspondingly easier to analyze the formal legal documents. This is especially so when the tradition or custom is in dispute, as it will often be when a court is called on to intervene. Especially in interpreting the tradition and custom of religious societies, the court is in great danger of falling into what Professor Chafee called the "Dismal Swamp of obscure rules and doctrines" (in "The Internal Affairs of Associations Not for Profit" (1930), 43 Harv. L. Rev. 993, at p. 1024). In this regard, Professor Chafee makes this observation (at pp. 1023-24):
In very many instances the courts have interfered in these [church controversies], and consequently have been obliged to write very long opinions on questions which they could not well understand. The result has often been that the judicial review of the highest tribunal of the church is really an appeal from a learned body to an unlearned body.
However, as Professor Chafee also recognizes, the difficulty of understanding tradition and custom is really one reason to avoid assuming jurisdiction in the first place. Once the court assumes jurisdiction, there is no alternative but to come to the best understanding possible of the applicable tradition and custom. Even in other contexts it has been held that a sufficiently well-established tradition or custom may be considered an implied term in the contract making up the Articles of a voluntary association. For instance, in John v. Rees, [1970] Ch. 345, Megarry J. suggests at p. 388 that long usage can provide sufficient authority for a set of rules even if they have not been formally adopted:
In the case of a club, if nobody can produce any evidence of a formal resolution to adopt a particular set of rules, but on inquiry the officers would produce that set as being the rules upon which it is habitual for the club to act, then I do not think the member would be free to reject those rules merely because no resolution could be proved.
In that case, the rules in question were written rather than a matter of pure tradition, but the real question is the authority of rules which have not been formally adopted, whether written or unwritten.
A long-standing tradition provides a kind of notice to the member of what rules the association will follow. We also must remember that voluntary associations are meant largely to govern themselves, and to do so flexibly. Therefore, tradition or custom which is sufficiently well established may be considered to have the status of rules of the association, on the basis that they are unexpressed terms of the Articles of Association. In many cases, expert evidence will be of assistance to the court in understanding the relevant tradition and custom.
The tradition that a group of ministers appointed by the Senior Elder can finally decide issues referred to them by the Senior Elder is a valid rule on this standard. No one disputes that this tradition exists. The Constitution does not expressly forbid such delegation. It merely gives the conference board a certain power without specifying how it is to be exercised. The undisputed tradition is sufficient to authorize the further delegation of this power.
III. The Requirements for Expulsion
A. The Applicable Rules
1. Who May Expel?
It is clear from Article 46 of the Constitution and Article 39 of the Articles that the colony may expel a member of the colony from the colony. It also seems logical that Article 23 of the Constitution gives the conference the power to expel a member from the church, which would mean that he was automatically expelled from the colony by virtue of Article 39 of the Articles. This view was expressed by Ritchie J. in Hofer v. Hofer, at pp. 970-71:
I think it to be implicit in these provisions and in the preamble to the Articles of Association that no one who was not a member of the Hutterian Brethren Church could remain a member of the Colony, and that expulsion from the Church carried with it automatically expulsion from the Colony.
Indeed, what was thought implicit in the Articles considered by Ritchie J. in that case has been made explicit in s. 39 of the Articles in this case.
2. The Requirements for Expelling a Member
In Article 39 of the Articles and Article 46 of the Constitution, there is reference both to a vote to expel a member, and various reasons for which a member might be expelled, such as disobedience. In the Articles, it is reasonably clear that both these requirements must be met. That is, a member may be expelled upon a majority vote for various causes. Of course, while a cause is required, the court will not ordinarily review the merits of the cause.
The Constitution is curiously inconsistent with the Articles on this point. Article 46 of the Constitution provides that a member may be expelled upon a majority vote, or upon various causes (as opposed to for various causes). While this is only a minor difference in wording, it implies that expulsion may be automatic following certain causes, without the requirement for a vote.
This implication would be consistent with the Hutterite understanding that a member expels himself. However, it would be too strong to say that this implication is entirely in accord with Hutterite practice. For instance, no one has suggested that there are certain things which automatically bring about expulsion in any mechanical sense. Indeed, even if the Hutterite understanding is that the colony does not expel a member but rather that the member expels himself, the colony must still decide whether a particular member has in a given situation in fact expelled himself.
The policy of the law on this point is clear: a vote is normally held to be required unless it is clearly stated that certain conduct automatically brings about expulsion. This precise point arose with regard to an Alberta Hutterite Colony in Hofer v. Waldner, [1921] 1 W.W.R. 177 (Alta. S.C.). Walsh J. dealt with the argument in the following manner at p. 182:
It is suggested in argument that the plaintiffs have by leaving the colony at Raley and asking for a part of the church property broken the condition by which they became members and have therefore ceased to be members. I was rather surprised to read this argument because of the attitude taken on this question by and on behalf of the church authorities throughout the trial. The impression left upon my mind by it was that though the plaintiffs had by their conduct in this matter broken the rules of the church and laid themselves open to exclusion from membership in it nothing to accomplish that end had been done by the authorities and the plaintiffs though offenders against the discipline of the church were still regarded as having interests which the authorities always had, and were still willing to, recognize. The frequent form of expression was that they had not been put out of the church but had put themselves out. I do not think that the forfeiture of all rights incidental to their membership followed automatically upon their commission of this offence but that some action to that end was necessary on the part of the proper authorities and that action has never been taken.
While the Constitution does imply that certain causes are sufficient to warrant expulsion without a vote, it does not state the manner in which these causes are to be determined. Therefore, the Articles are not inconsistent with the Constitution when they demand a vote in order to establish cause. In demanding a vote, the Articles merely fill in a lacuna in the Constitution.
Therefore, a vote is required in order f
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