Farrish v. Delta Hospice Society

2020 BCCA 312 Farrish v. Delta Hospice Society

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Farrish v. Delta Hospice Society, 2020 BCCA 312 Date: 20201113 Docket: CA46892 Between: Sharon Farrish, Christopher Pettypiece, and James Levin Respondents (Petitioners) And Delta Hospice Society Appellant (Respondent) And Attorney General of British Columbia Respondent (pursuant to the Constitutional Question Act) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice DeWitt-Van Oosten The Honourable Mr. Justice Voith On appeal from: An order of the Supreme Court of British Columbia, dated June 12, 2020 (Farrish v. Delta Hospice Society, 2020 BCSC 968, Vancouver Registry File S205648). Counsel for the Appellant, via videoconference: G. Trotter A. Polizogopoulos Counsel for the Respondents, S. Farrish, C. Pettypiece and J. Levin, via videoconference: B.W. Dixon S.T.C. Warnett Counsel for the Respondent, Attorney General of British Columbia, via videoconference: F. Zaltz Place and Date of Hearing: Vancouver, British Columbia October 7, 2020 Place and Date of Judgment: Vancouver, British Columbia November 13, 2020 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice DeWitt-Van Oosten The Honourable Mr. Justice Voith Summary: Appeal from order made under the Societies Act (the "Act") to admit improperly rejected applicants to Delta Hospice Society (the "Society").

Held: Appeal dismissed. Chambers judge had not erred in law in finding that the Board acted contrary to the Bylaws of the Society, which gave no discretion to reject applicants for membership based on their apparent views towards medically‑assisted dying ("MAiD"). It is not the role of courts to resolve the debate as to whether MAiD should be provided by the Society. However, courts may intervene under the remedial provisions of the Act where a society acts in breach of its Bylaws or the Act. Charter values of freedom of association and freedom of conscience do not support a right of the Board to control the Society's membership lists, and by extension the outcome of proposed special resolutions, on the basis of criteria not stated in the Bylaws. Court of Appeal declined to consider Notice of Constitutional Question challenging the validity of ss. 104 and 108 of the Act as it had not been raised in court below. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] On its face at least, this appeal turns on the interpretation of the Constitution and Bylaws of a non-profit society, the Delta Hospice Society. For many years it has provided palliative care and support to persons "in the last stages of living" in Delta, B.C. Over the past several months, however, members and others have become embroiled in an intense debate, in public view, as to whether the purposes of

the Society permit, or should permit, medically-assisted dying (referred to by the parties as "MAiD"); and more recently, whether the Society's Constitution and Bylaws should be changed to reflect religious principles that would clearly preclude it from providing MAiD to patients on its premises. The dispute has expanded to include the assertion of Charter rights of freedom of conscience and freedom of association by the Society, which now challenges the constitutional validity of certain remedial provisions of the Societies Act, S.B.C. 2016, c. 18 (the "Act"). These provisions were the basis on which the court below made the orders now appealed by the Society. [2] The chambers judge below observed, correctly, that it was not her role to resolve the debate as to whether MAiD should be provided by the Society; and in my view it is also possible for us to decide the appeal without 'entering the fray' or overstepping the bounds of justiciability. Factual Background Constitution and Bylaws [3] The Delta Hospice Society has been in existence since 1991. At all times material to this appeal, the Society's Constitution stated its purposes as follows: 2.1 To provide compassionate care and support for persons in the last stages of living, so that they may live as fully and comfortably as possible. 2.2 To utilize and coordinate community services, professionals, volunteers and family to

care for the needs of the patient. 2.3 To support and counsel family members in their bereavement. 2.4 To recruit volunteers and provide training in palliative care. In addition, screen, supervise and support volunteers as well as co-ordinate volunteer/patient interaction. 2.5 To educate the community and provide resource material about hospice/palliative care and the aims of the society. 2.6 To promote public awareness about the society for the purpose of acquiring financial support. [4] The Society's work is carried on primarily through the operation of the Irene Thomas Hospice and the Harold and Veronica Savage Centre for Supportive Care in Delta. The Society employs medical and administrative staff and operates these facilities on land it leases from the Fraser Health Authority ("FHA"), an agency of the provincial government. The FHA provides operating funds of approximately $1.5 million per year. Members of the Society have contributed thousands of hours annually for the comfort and support of palliative care patients and have raised millions of dollars from donors (including, I assume, members of the public) to build the hospice buildings on the leased land. [5] Bylaw 4 of the Society states simply that "A person may apply to the directors for membership and on acceptance by the directors is a member." (My emphasis.) This wording is the wording suggested by the "model"

bylaws provided by regulation under the Act. The Society's Bylaw 5 requires members to "uphold the Constitution" and under Bylaw 8, a member may be expelled by special resolution, provided he or she is given notice of the resolution and an opportunity to be heard at the members' meeting. Bylaw 9 states: All members are in good standing except a member who has failed to pay his or her current annual membership fee, or any other subscription or debt due and owing by the member to the society. [6] The chambers judge found at para. 49 of her reasons that throughout the Society's entire history until late 2018, membership had been dealt with on an "open" basis -- i.e., that anyone who applied and paid the subscription fee of $25 was granted membership. This conclusion is supported by the evidence of the petitioners, who have all served as Directors: Ms. Farrish deposed, for example, that during her tenure on the Board and as acting Executive Director, the Board did not "exercise any role in vetting applications for membership. New members were added to the register as a matter of course, upon receipt of their application and membership fee." Mr. Pettypiece, a former President, deposed that throughout his tenure, "the Society staff, under the leadership of the Executive Director, processed all memberships on behalf of the Board" and that to his knowledge, no applications were

rejected. Mr. Levin was also unable to recall any membership applications being rejected, including in the lead-up to the Society's 2019 general meeting. Events of 2019-2020 [7] It was of course not until the decision of the Supreme Court of Canada in Carter v. Canada (Attorney General) 2015 SCC 5 that medically-assisted suicide was decriminalized in Canada. The Criminal Code, R.S.C., 1985, c. C-46 was amended accordingly on June 17, 2016, through An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), S.C. 2016, c.3. [8] In December 2017, the FHA announced that it would require hospices in the Province, other than religious or "faith-based" organizations, to make MAiD available in their premises. (The Society had been sending patients who requested MAiD, to other facilities.) Writing in January 2018 in response to a letter from the FHA threatening to terminate funding, the Society's then Executive Director requested an exemption from the implementation of MAiD for all hospice palliative care ("HPC") sites. Among other things, Ms. Macey stated: The society provides comfort and care for the dying. Based on the World Health Organization's definition of HPC which includes not to hasten death, [the Society] is excluded from offering MAiD at the Irene Thomas Hospice by the mandate of its constitution. . . . HPC, by the World

Health Organization's definition of not hastening death, meets the same criteria as [FHA] HPC program. Clearly, based on what hospice palliative care does, it should be exempt from MAiD. There should be consistency in BC in the delivery of HPC and in the delivery of MAiD. As MAiD has choices for location of implementation, all HPC sites should be exempt from MAiD. [Emphasis added.] [9] I set out below a basic narrative of the events that followed: July 2019 When Ms. Macey went on sick leave, the petitioner Ms. Farrish took on the role of acting Executive Director. She began advocating for MAiD to be provided by the Society, which the FHA required as a condition of future funding. As noted by the chambers judge below, at this time the Society had approximately 160 members. October-November 2019 A membership drive was conducted which brought the total number of members to about 400. November 6, 2019 Mr. Levin, then President of the Society, proposed a resolution at a meeting of the Board of Directors to permit MAiD, but notice of this resolution had not been given. Four Directors voted in favour and four voted against. Three Directors resigned in protest against the lack of notice. November 20, 2019 Another Board meeting was held at which the Directors passed a pro-MAiD resolution by a vote of 4:1. November 28, 2019 The Society's annual general meeting was held, at which all the

Directors who were then standing for re-election were 'voted out', including Mr. Levin. According to the appellants' factum, the term of office of the petitioner Mr. Pettypiece also expired. The Society had approximately 620 members at this time. November 30, 2019 The Society's newly-constituted Board voted to reverse the previous resolution of November 20, with the result that MAiD would not be permitted. Ms. Farrish's position as acting executive director was 'suspended' in an in camera portion of the meeting. December 2019 ꟷ May 2020 The Society continued to receive a high volume of applications for membership. February 25, 2020 FHA gave notice of termination of the Society's contract for palliative care services, advising that it would cease funding effective February 2021 if the Society did not permit patient access to MAiD in its premises. April/May 2020 A membership list delivered by the Society to counsel for the petitioners revealed that as at April 15, 2020, the Society had over 1400 members. The Board had accepted applications for membership from more than 800 persons and rejected 310 applications on the basis that the applicants were not known to support the anti-MAiD position of the Board. These applicants received rejection letters dated May 20, 2020. The letters gave no reason for the rejections. May 22, 2020 A Notice of Extraordinary General Meeting was

forwarded to members by the Board, proposing the adoption of a new constitution and bylaws at a meeting to be held on June 15, 2020. [10] The changes proposed in the Notice of Meeting were set out in separate special resolutions for the amendment of the Constitution and the replacement of the Society's Bylaws by a new set, attached as a schedule to the Notice. Obviously, the purpose of the proposed changes was to bring the Society within the classification of a religious organization that would be exempt from FHA's MAiD requirements. The form of constitution proposed by the Board was as follows: 1. Name -The name of the Society is DELTA HOSPICE SOCIETY.

2. Purposes - The purposes of the Society are: 2a To function as a Christian community that furthers biblical principles governed by the Triune God. 2b To continue the healing ministry of Jesus Christ. 2.1 To provide compassionate care and support for persons in the last stages of living, so that they may live as fully and comfortably as possible, until their natural death. 2.1a To uphold and defend that all people are created equally in the image of God and God alone is to be the giver and taker of life. 2.2 To utilize and co-ordinate community services, professionals, volunteers and family to care for the needs of the patient. 2.3 To support and counsel family members in their bereavement. 2.3a To provide and facilitate pastoral care to patients and their families. 2.4 To recruit volunteers and provide training in palliative care. In addition, screen, supervise and support volunteers as well as co-ordinate volunteer/patient interaction. 2.5 To educate the community and provide resource material about hospice palliative care and the aims of the society. 2.6 To promote public awareness about the society for the purpose of acquiring financial support. 2.7 To fulfill God's calling to serve the sick and dying, and to follow Christ's teachings and example in all we do. The proposed bylaws also referred to a new purpose and mission "in alignment with the beliefs, principles and

ethics of the Christian faith." Under the heading "Values of the Society", the bylaws would expressly affirm the belief of members in the sanctity of all human life and "reject euthanasia as fundamentally contrary to this belief". The Apostles' Creed was set out in the bylaws as representing the members' Christian faith. (There was no evidence as to how many members would cease to be eligible for membership by reason of other religious affiliations or beliefs.) [11] The new bylaws would define "euthanasia" as the "practice of intentionally ending a life, including when requested by the patient" (my emphasis); and define "Palliative Care" thus: Palliative Care, as defined by the World Health Organization and stated as follows: improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other physical psychosocial and spiritual problems. Palliative care affirms life and regards dying as a normal process and intends neither to hasten or postpone death. [Emphasis added.] The new bylaw 2.3 would prohibit the provision of "euthanasia" on the Society's premises and require that in order to be accepted for membership, an applicant be "committed to advancing the purposes as defined in the

Constitution and supporting the activities of the Society." The Petition [12] By petition filed June 5, 2020, the petitioners, who are long-time members of the Society, asserted that the incumbent Directors' rejection of pro-MAiD applicants contravened the "open" membership contemplated by the Bylaws and was a breach of the Directors' duties to act honestly and in good faith, and that the Board was seeking to "radically alter" the Constitution and Bylaws through an "unfair and undemocratic process." The petitioners sought various forms of relief under ss. 53, 80, 104 and 108 of the Act, including an order cancelling or postponing the meeting scheduled for June 15; a declaration that the Notice of Meeting contravened the Act and the Bylaws; an order that the Society provide the petitioners with a list of all members and a list of those persons whose membership applications had been rejected since November 28, 2019; an order rectifying the register of members to include those 310 applicants; and a declaration that the affairs of the Society were being conducted in a manner oppressive and unfairly prejudicial to the petitioners. [13] The petitioners obtained short leave on June 5 and the matter was heard on an expedited basis on June 12, 2020 by Madam Justice Fitzpatrick. She was able to give oral reasons that day, which are indexed as 2020 BCSC 968. The Chambers Judge's

Reasons [14] As Fitzpatrick J. observed, the petitioners asserted two main bases for their challenge to the Board's actions in calling the Extraordinary General Meeting -- first, that the voting process contemplated in the meeting materials was "not allowed"; and second, that: The composition of the Society's membership has resulted from improper actions on the part of the Board of directors. The petitioners argue that the Board has improperly denied memberships to certain persons, in breach of the Act and the Bylaws. Specifically, the petitioners argue that these actions were in breach of the directors' duty to act in good faith pursuant to s. 53 of the Act. [At para. 20(b); emphasis added.] The Canadian Charter of Rights and Freedoms was referred to at para. 84 of the Society's Response, but does not appear to have been argued before the chambers judge. [15] Fitzpatrick J. set out section 53 (Directors' duties), 80 (court orders respecting general meetings), 104 (contraventions of the Act or bylaws) and 108 (correction of records) of the Act at para. 21 of her reasons. Also relevant is s. 105, which allows the Court to correct or cause to be modified any "defect, error or irregularity" in the conduct of the internal affairs of a society that results in a contravention of the Act, a default in compliance with bylaws of the society, or an action that is inconsistent or contrary

to its purposes. (Section 105 closely resembles s. 85 of the previous Societies Act, R.S.B.C. 1996, c. 433, which was repealed in 2016.) All these provisions are reproduced in their entirety in the schedule of legislation attached to these reasons. The "Process" Issue [16] At all material times, Bylaw 22 of the Society provided: i) A member in good standing present at a meeting of members is entitled to one vote. ii) Voting is by show of hands. iii) Voting by proxy is not permitted. [Emphasis added.] As the chambers judge noted, the Bylaws do not allow for voting by mail. The Notice of Meeting, however, stated: In order to protect and preserve the health and safety of our members, the Board of Directors has moved to hold this special meeting by way of a Telephone Conference, followed by a mail-in ballot to vote on the proposed resolutions. A mail-in ballot has been chosen specifically so that members who may not be available to participate in the telephone meeting are still permitted to vote on the resolutions, since voting by proxy is not permitted under the bylaws. [Emphasis added.] [17] Section 83 of the Act states: (1) Unless the bylaws of a society provide otherwise, a person who is entitled to participate in a general meeting may do so by telephone or other communications medium if all of the persons participating in the meeting, whether by telephone, by other

communications medium or in person, are able to communicate with each other. (2) Subsection (1) does not obligate a society to take any action to facilitate the use of any communications medium at a general meeting. (3) If one or more members of a society vote at a general meeting in a manner contemplated by this section, the vote must be conducted in a manner that adequately discloses the intentions of the members. [18] As a result of the COVID-19 pandemic, the Province issued a ministerial order (No. M116), which permitted corporate meetings to be held by telephone or other media, provided all persons at the meeting could communicate with each other and vote. This applied notwithstanding any enactment to the contrary. The chambers judge found that MO116 did not authorize the Board to authorize the use of mail-in ballots. In her words: I do not accept the Society's submission that the MO116 provision quoted above is somehow ambiguous. It is clear to me that the BC government chose to allow some change in the meeting procedures to accommodate the realities of the COVID‑19 pandemic. However, MO116 says nothing in respect of the means of voting. In my view, the result is that one must return to the Act and Bylaws in terms of what method of voting "at the meeting" the Society has approved. [At para. 30; emphasis added.] [19] Since the Board had taken no action to adopt a system

that would permit members to vote other than by personal attendance at the meeting and Bylaw 22 permitted only voting by show of hands, the judge concluded that the Notice of Meeting violated the Bylaws and the Act. On that basis alone, she said, the general meeting scheduled for June 15, 2020 could not proceed. Again in her words: It is necessary that the voting process for the Meeting be clearly set out to the members so that they are aware of how they may exercise that very important right. At this late stage, I am unable to see any basis on which I can salvage the process to the point that the Meeting could possibly proceed next Monday. [At para. 36.] This "process" portion of the judgment is not challenged on appeal. Membership Applications [20] The chambers judge then turned to what for us is the primary issue -- the Board's treatment of membership applications in the months leading up to the proposed Extraordinary General Meeting. It will be recalled by late November 2019, the Society had approximately 600 members. Eventually, the judge found, the membership list increased to some 1,400 people, including approximately 800 "new names". At the time of the hearing below, counsel for the Society estimated that the membership was around 1,500. As mentioned, approximately 310 applications had been rejected by the Board, which gave no reasons for the rejections. [21] The judge

referred to the evidence of two Directors concerning the 310 rejections: Both Ms. Ireland and Rev. Martel interpret the Constitution as excluding the provision of MAiD by the Society. However, it is clear enough that this interpretation is not shared by all members, including the petitioners. Ms. Ireland states in her Affidavit #1 that the Board rejected many applications for membership for good reasons: 47. When the board of directors reviewed new applications for membership, it decided that it would only approve the applications for membership of those applicants who could be determined to be able to uphold the Constitution of the Society. If such a determination could not be made, or if it was clear that the applicant could not uphold the Constitution, the application was rejected. This review was based on the Societies Act which states that members must uphold the constitution and bylaws. It is clear enough from Ms. Ireland's affidavit alone that the Board has sought to screen membership, allowing only those that could be determined to uphold the Constitution as she and others on the Board interpret it. However, what the Board has also effectively done is deny membership to people who, in the past, would have been granted membership. The Board has done so with the express intention of preventing those who would have become "new" members from voting on what is to be a very

important decision in the direction of the Society. [At paras. 47-8, 53; emphasis added.] [22] Rev. Martel deposed: Rejected applications included applications by individuals who had been clearly opposed to the Purposes of the Society and its Constitution, including, but not limited to those individuals who swore affidavits in support of the petition. With others that were declined, we had to make decisions based on the abundance of caution because there was a campaign with Dying with Dignity Canada and an activist Facebook Group called the "Delta Hospice Discussion", which was set up to infiltrate the Society and go against our Constitution. [At para. 58.] [23] At para. 54, the judge rejected the Society's argument that the Board had had "full discretion" to determine membership under the Bylaws. On this point, counsel for the petitioners had cited Kaila v. Khalsa Diwan Society, 2003 BCSC 1223, De Guzman v. Philippine Community Centre Society 2007 BCSC 591 and Yukon Government (Registrar of Societies) v. Humane Society of Yukon 2013 YKSC 8. In the judge's analysis, these cases stood for the proposition that "Unless the criteria for membership are set out in the bylaws, the directors do not have the discretion to deny membership on some other basis that they themselves determine." (At para. 52). [24] The chambers judge also rejected the Society's argument that Bylaw 5 permitted

the Board to exercise its discretion to "screen" membership applications by determining whether a person would prospectively, as a member, "uphold the Constitution". A similar argument had been rejected in Peel (Regional Municipality) v. Greater Toronto Airports Authority [1999] 5 M.P.L.R. (3rd) 101 (Ont. S.C.J.), aff'd. (2000), 130 O.A.C. 68 (Ont. C.A.), discussed in Yukon Government at paras. 11-15. In the latter case, the Court ruled that a bylaw similar to Bylaw 5 did not allow the directors of a Yukon society to "screen applicants for an 'anticipatory breach' of the bylaws once that person became a member." (At para. 55.) [25] Returning to the case at bar, Fitzpatrick J. then reasoned: It is clear enough from those very stark words that the Board has sought to only allow people into the Society who they have confirmed as willing to vote in favour of the Board's interpretation of the Constitution or who might have a reasonable likelihood of doing that. Anyone who has indicated a contrary view or who cannot be confirmed to have the "correct" view is denied membership. The Board has sought to ensure that the new members only include those who share their views. In my view, this is not the open and democratic process that is the objective for the Society as evidenced by the Act and the Bylaws. Simply, the clear inference from the circumstances here is that the Board has been

attempting to manipulate the membership for voting purposes at the Meeting. [At paras. 59-60; emphasis added.] [26] She concluded that the Board had acted contrary to the Bylaws and the Act, and that even if the Directors had had any discretion in respect of membership, they had acted with an "improper purpose" and their actions "lacked good faith". (Citing Yukon Government at paras. 16-37.) She expressly declined to comment on the appropriateness of the proposed changes to the Constitution and Bylaws, but stated that a "level playing field" would ensure that the "community" could "participate in the Society as they have been doing for decades, and properly exercise their views as members towards the future direction of the Society." (At para. 63.) [27] In the result, the judge cancelled the proposed Extraordinary General Meeting and set aside the Notice of Meeting. She ordered that within 14 days of the hearing, the Society provide the petitioners with a list of all members, and a list of applicants whose memberships had been rejected on or after the annual meeting on November 28, 2019. Importantly, the register of members was to be rectified to include the names of all persons whose applications for membership had been rejected. As well, she ordered that in light of the contentious nature of the case, the Society should seek directions of the Court before giving notice of any

later general meeting. Given the foregoing, she found it unnecessary to deal with the petitioners' prayer for a remedy for oppressive conduct under s. 102(1) of the Act, or for unfairly prejudicial conduct under s. 102(2). [28] The Society filed its Notice of Appeal in this court on June 18, 2020, and an amended one on July 3, 2020. It did not seek any remedy with respect to the cancellation of the Extraordinary General Meeting or the irregularity of the Notice; these are now moot. The appeal is therefore limited to the chambers judge's orders that membership lists and related information be delivered to the petitioners; that the rejected applicants be registered as members; and that the Society seek the directions of the Court before holding any other general meeting. [29] On June 25, 2020, a justice in Chambers in this court granted a stay of Fitzpatrick J.'s order pending the hearing of the appeal or further order. We extended the stay at the end of the hearing in this court, pending disposition of the appeal. [30] On July 15, 2020, the Society served a Notice of Constitutional Question on the Attorney General, stating that it would be seeking a declaration that ss. 104 and 108 of the Act unjustifiably infringe s. 2(d) and s. 2(a) of the Charter and "are of no force and effect to the extent that the Impugned Sections authorize a court order requiring a society to admit as a

member an applicant whom the society concludes does not share the purposes of the society as set out in its constitution." The Attorney General appeared at the appeal hearing to respond to the constitutional challenge, which had not been advanced in the court below. On Appeal [31] In their factum, the Society asserts the following errors on the part of the court below: 37. The chambers Judge erred as follows: a. In finding jurisdiction to order the forced admission of members who do not share the society's purposes, which in turn was based on the following errors: i. Treating applicants for membership in a private society as possessing a legal right to be admitted into membership upon making application and paying the required fee, akin to a right to vote in provincial elections; ii. Failing to defer to the Society's members' interpretation of its Constitutional purposes, which is a non-justiciable matter of moral philosophy; iii. Finding that she had jurisdiction over a private society's membership decision without finding any basis to distinguish the jurisdictional bars in the recent Supreme Court of Canada case of Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 [Wall]; iv. Interpreting her grant of discretion under the Societies Act without any consideration of the freedom of association and freedom of conscience of DHS [the Society]

and its members to not associate with those who do not share their communal conscientious beliefs and purposes as expressed in the DHS Constitution; and v. If the grant of discretion under the Societies Act authorized the order made, failing to read down the relevant provisions as inconsistent with the Charter; b. In ordering the admission of applicants due to wrongly finding that the membership rejections were made in bad faith or for an improper purpose, which in turn rested upon the following errors: i. Misinterpreting the Model Bylaws upon which the society's membership bylaw is based in finding that it does not grant the board the discretion to reject membership applications submitted by those opposed to the Society's purposes; and ii. Treating past practice in processing membership applications as binding even in the face of a change of circumstances that fundamentally shifts the parameters of the membership admission process (here, the commencement of a public and co-ordinated campaign to infiltrate the Society and overwhelm the existing membership to reverse the members' interpretation of their own Constitution). [32] Before addressing these specifically, I propose to review in general terms the applicable law concerning the following: 1. The jurisdiction of a court of law to determine issues arising in private associations as recently discussed in Highwood Congregation

of Jehovah's Witnesses (Judicial Committee) v. Wall 2018 SCC 26, on which the Society heavily relies; and justiciability as it relates to issues of religious or conscientious belief, also as discussed in Highwood; 2. The applicability of "Charter values" to disputes among members of private associations; 3. The general structure of societies, including the relationship between directors and members, under the Act; 4. The meaning of "palliative care"; and 5. Membership requirements and membership applications in private societies or other organizations. I will then attempt to apply the law in response to the Society's grounds of appeal, and will deal last with the Charter challenge advanced in respect of ss. 104 and 108 of the Act. Jurisdiction and Justiciability in the Context of Private Associations [33] I start with the Society's contention that the Supreme Court of Canada's recent decision in Highwood has made it clear that a court does not have the jurisdiction to interfere in a membership dispute arising in (any) private organization. In Highwood, the Judicial Committee of a congregation of Jehovah's Witnesses had "disfellowshipped" a member after he had engaged in behaviour found to be sinful. As the Court noted at para. 3, the Congregation was an unincorporated voluntary association and had no statutory foundation or legal personality. The member, Mr. Wall, sought

judicial review of the Committee's decision on the basis that it was procedurally unfair. [34] The two lower courts concluded that they had jurisdiction and could proceed to consider the merits of his application, but the Supreme Court of Canada allowed the Committee's appeal, stating succinctly at the outset of the reasons: There are several reasons why this argument must fail. First, judicial review is limited to public decision makers, which the Judicial Committee is not. Second, there is no free‑standing right to have such decisions reviewed on the basis of procedural fairness. In light of the foregoing, Mr. Wall has no cause of action, and, accordingly, the Court of Queen's Bench has no jurisdiction to set aside the Judicial Committee's membership decision. Finally, the ecclesiastical issues raised by Mr. Wall are not justiciable. [At para. 2.] [35] The Court noted a line of authorities in which judicial review had been made available in the past with respect to decisions of churches and other voluntary associations. These cases could be grouped into two categories -- the first relying on the "misconception" that incorporation by a private Act operated as a statutory grant of authority to churches so constituted; and the second relying on the characterization of the association or decision at issue as "public" in nature. In the second group, the Supreme Court stated, the

courts had failed to distinguish between "public" in a generic sense and "public" in a "public law sense". In the words of Rowe J. for the Court: In my view, a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision-maker's exercise of power. Simply because a decision impacts a broad segment of a public does not mean that it is public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making. [At para. 20; emphasis added.] [36] In the Court's analysis, Highwood raised no issues about the rule of law; the Congregation had no "constating private Act"; and it was not exercising any state authority. (See para. 22.) Even if Mr. Wall had filed a "standard action" by statement of claim, moreover, no civil or property right was threatened by the impugned decision. Thus, the Court ruled, his membership "should remain free from court intervention". Rowe J. continued: Indeed, there is no free‑standing right to procedural fairness with respect to decisions taken by voluntary associations. Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice or that the complainant has exhausted the organization's internal processes. Jurisdiction depends on the presence of a legal right which a party seeks to have

vindicated. Only where this is so can the courts consider an association's adherence to its own procedures and (in certain circumstances) the fairness of those procedures. [At para. 24; emphasis added.] The Court found "nothing resembling a contractual right" between Mr. Wall and the Congregation: No basis has been show that Mr. Wall and the Congregation intended to create legal relations. Unlike many other organizations, such as professional associations, the Congregation does not have a written constitution, by-laws or rules that would entitle members to have those agreements enforced in accordance with their terms . [At para. 28; emphasis added.] [37] The Court allowed the appeal in Highwood for the foregoing reasons, but Rowe J. went on to provide some "supplementary" comments about justiciability, beginning at para.

32. He confirmed that "secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion." (At para. 36, citing Syndicat Northcrest v. Amselem 2004 SCC 47.) But this statement was not absolute: he also endorsed the following passage from Lakeside Colony of Hutterian Brethren v. Hofer [1992] 3 S.C.R. 165: 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 bona fide. The foregoing passage makes clear that the courts will not consider the merits of a religious tenet; such matters are not justiciable. [At para. 37; emphasis added.] [38] As

well, Rowe J. referred to Bruker v. Marcovitz 2007 SCC 54. There, Justice Abella for the majority had quoted with approval a passage from M.H. Ogilvie, Religious Institutions and the Law in Canada (2nd ed., 2003) as follows: Subject to any protections accorded to individuals and religious groups pursuant to the Canadian Charter of Rights and Freedoms, which have yet to be worked out in detail by the courts, religious institutions and persons in Canada are subject to the sovereignty of Parliament and the sanctioning powers of the state invoked by the courts when disputes concerning religion are brought for resolution. Nevertheless, the courts have expressed reluctance to consider issues relating to religious institutions, evidencing some embarrassment that internal church disputes should be determined by secular courts and doubting the appropriateness of judicial intervention. The courts have stated that they will not consider matters that are strictly spiritual or narrowly doctrinal in nature, but will intervene where civil rights or property rights have been invaded. [Emphasis added by Abella J.; pp. 217, quoted in Bruker at para. 42.] Charter Values [39] Finally on the issue of justiciability "raised another way", the Supreme Court in Highwood noted with apparent approval the suggestion made by the dissenting judge in the court below that religious matters are not

justiciable, partly because freedom of religion is protected by s. 2(a) of the Charter. Rowe J. cited RWDSU v. Dolphin Delivery Ltd. [1986] 2 S.C.R. 573, which in his analysis had held that: the Charter does not apply to private litigation. Section 32 specifies that the Charter applies to the legislative, executive and administrative branches of government the Charter does not directly apply to this dispute as no state action is being challenged, although the Charter may inform the development of the common law . In the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute. [At para. 39 of Highwood; emphasis added.] [40] I note that more recently, in A.B. v. C.D. 2020 BCCA 11, this court said "the law is clear that the Charter does not apply to judicial orders made in private disputes," also citing Dolphin Delivery. The Court continued, however: In Young v. Young, [1993] 4 S.C.R. 3 and P.(D.) v. S.(C.), [1993] 4 S.C.R. 141, L'Heureux-Dubé J. applied this principle to court orders made in private family law disputes, but held that underlying Charter values are not to be ignored by courts when making such decisions. The Attorney General points out recent judicial and academic commentary that has been critical of the consideration of Charter values in

making decisions interpreting legislation: see Ojeikere v. Ojeikere, 2018 ONCA 372, Miller J.A.; E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893; Gehl v. Canada (Attorney General), 2017 ONCA 319, Lauwers and Miller JJ.A. While each of these cases involved different circumstances, the primary concern expressed is that reasoning based on Charter values lacks the doctrinal rigour of a traditional Charter analysis, which must also consider the competing principles in s.

1. The Attorney General also points to Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, where the Court held that Charter values had no role to play in interpreting legislation in the absence of an ambiguity. This court applied the same principle in the family law context in J.E.S.D. v. Y.E.P., 2018 BCCA 286. It is clear the Charter values have no role to play in interpreting legislation in the absence of an ambiguity. The reluctance to apply Charter values to statutory interpretation is based on the fact that the Charter applies directly to legislation and applying Charter values on top of that would distort the interpretation process: see R. v. Rodgers, 2006 SCC 15 at para.

19. Here, however, the issue does not involve interpreting legislation per se, but rather whether orders permissible under legislation should nonetheless be made in light of Charter values. We appreciate that there are limits on a consideration of Charter values in this context. Such considerations do not engage traditional Charter analysis but simply take into account important underlying values that are embodied in the Charter when orders are sought that may interfere with an individual's rights, such as freedom of expression. In taking these values into account, it is also important to recognize that no Charter rights are absolute, but are subject to the reasonable limits imposed by s. 1. [At paras. 203-5; emphasis added.] The Court chose to impose a "limited conduct order" in order to protect the best interests of the child A.B., and stated at para. 214 that this order was consistent with the values underlying ss. 2(a), (b) and 7 of the Charter. [41] The Society asks us to take to take a similar approach in this case, arguing that rights relating to freedom of conscience and of association of members of the Society are threatened by Fitzpatrick J.'s order. This is an alternative to its arguments relating to the validity and applicability of ss. 104 and 108 of the Act, as sought in the Notice of Constitutional Question. [42] Returning to Highwood, I take from it the

following legal principles: a. Judicial review is generally available only where there is an "exercise of state authority" that has a sufficiently "public" character; b. For legal purposes, a decision will be considered to be "public" only where it raises questions about the limits of an administrative decision‑maker's exercise of power. In the Court's words, "The relevant inquiry is whether the legality of state decision-making is at issue." (At para. 21.); c. Courts do not have the "institutional legitimacy or capacity" to deal with theological or religious issues or to "consider the merits of religious tenets." (At para. 31.); d. However, where the association in question has a written constitution or bylaws, members may properly resort to the courts (although not for judicial review) in order to have such "contracts" enforced; and e. Unless a "state action" is being challenged, the Charter does not apply directly to disputes involving private associations. Societies under the Societies Act [43] Highwood and cases following it involved "voluntary associations" not incorporated by statute. (At para. 18, the Court found that churches incorporated by private Act do not operate under a statutory grant of authority; consequently, such organizations are also regarded as voluntary or private associations.) We are concerned here, however, with a society that was incorporated under

the previous Societies Act, R.S.B.C. 1996, c. 233, and continued under the new Act, which came into effect in 2016. Its present Bylaws were filed in June 2017 to bring the Society into compliance with the new legislative provisions. [44] As the Attorney General points out in his factum, the enactment of the Act was preceded by the circulation of a White Paper by the Ministry of Finance in August 2014. (See also the earlier Consultation Paper on Proposals for a New Societies Act by the British Columbia Law Institute dated August 2007.) The White Paper proposed a new statute that would maintain the basic framework of the then Society Act, but "update and supplement that law with new corporate rules and procedures from the Business Corporations Act [S.B.C. 2002, c. 57], and other corporate legislation (such as a broad palette of court remedies.)" (At p. 1). The Paper continued: the legislation should ensure protection of the rights of members of societies, in particular the fundamental right to set the direction of the society. Members must have access to information, and the ability to collectively act to maintain control. Going to court may be a last resort, but modern legal remedies should be available. [At p. 2.] New proceedings such as oppression actions, derivative actions, and court-ordered investigations into the affairs of societies, were proposed consistent with the

corporate model. [45] As finally enacted, the Society Act retained a structure that resembles corporate legislation in its large outlines: a society is incorporated and given the powers and capacities of a natural person; incorporation is carried out by the filing of a constitution and bylaws with the Registrar of Societies; directors are generally elected by members annually and are required to act in the best interests of the society; general meetings of members are required inter alia for the election of directors and for the passing of special resolutions (usually requiring approval by two-thirds of those voting); and as already mentioned, court orders may be sought to prevent or correct contraventions of the Act. Sections 104 and 108 were added, mirroring ss. 228 and 230, respectively, of the Business Corporations Act. [46] Like the relationship between a company and its shareholders, the relationship between a society and its members is generally described as a contractual one, or at least as resembling a contractual one. In Kwantlen University College Student Association v. Canadian Federation of Students - British Columbia Component, 2011 BCCA 133, this court approved the comments of Bouck J. in Ireland v. Victoria Real Estate Board (1987), 13 B.C.L.R. (2d) 97, who stated: One question which arises is whether the relationship between the members and an incorporated

society such as the board is converted from one based on contract to one founded on statute. In my view, the rights and obligations remain essentially contractual in nature notwithstanding incorporation. All the Society Act does is compel inclusion of provisions governing membership and the like in the bylaws and regulations, but it does not specifically define the rights to membership nor the conditions under which it may be revoked. In that sense it contrasts with professional organizations, which are governed by statute. They spell out how a person may become a member and in what instances he or she may be expelled or disciplined. By-laws of a society incorporated under the Society Act are much like the articles of association of a company. Articles of association of a company "constitute a contract between the company and the shareholders which every shareholder is entitled to insist upon being carried out": Theatre Amusement Co. v. Stone (1914), 50 S.C.R. 32 at 37, 6 W.W.R. 1438, 16 D.L.R. 855 [Alta.]. [At paras. 15-6; emphasis added.] [47] Similarly, in Bhandal v. Khalsa Diwan Society of Victoria, 2014 BCCA 291, the bylaws of a society were said to be "essentially contractual in nature". The Court emphasized that one of the "cardinal rules" of contractual construction is that the various parts of an agreement are to be interpreted "in the context of the intentions of the

parties as evident from the contract as a whole". (Citing BG Checo International Ltd. v. British Columbia Hydro & Power Authority, [1993] 1 S.C.R. 12 at 23-24; see also Samra v. Guru Nanak Gurdwara Society, 2008 BCCA 202 at paras. 53-61; and Sarjit Singh Gill v. Khalsa Diwan Society (S.C.B.C., Vancouver Registry No. A993150), dated December 3, 1999; Garcha v. Khalsa Diwan Society - New Westminster 2006 BCCA 140 at para. 9; and Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta 2015 ABCA 101 at paras. 67-71.) Another cardinal rule of contractual interpretation is that the meaning of the contract is not determined according to the subjective views of the parties, but according to the ordinary and grammatical meaning of the words used, consistent with the circumstances known to the parties: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at paras. 47-9. [48] Of course, the contract between a society and its members is an unusual one in that members may come and go and the "context" is subject to change. (Here, for example, medically assisted dying was decriminalized.) In this regard, membership resembles to some extent adherence to a standard form contract, as discussed in Ledcor Construction Ltd. v. Northbridge Indemnity Ins. Co. 2016 SCC 37 at paras. 22-24. In addition, the terms of the contract are supplemented and restricted by the Act: s. 44(3) provides, for example,

that a person is not "qualified" to be a director if he is undischarged, bankrupt or has been convicted of certain offences. (Additional qualifications may be specified in the bylaws.) It is also worth noting that the contractual relationship exists only between the society in question and its members. Applicants for membership may not invoke contractual rights: see Re London Humane Society, 2010 ONSC 5775 at para. 30, Yukon Government at para. 19, and Sandhu v. Siri Guru Nanak Sikh Gurdwara at para. 71. [49] Both before and after the new Act came into effect, this court has affirmed that although a court must not "intervene by substituting [its own] judgment for the judgment of the tribunal on a matter of substance within the tribunal's jurisdiction", it does have the (statutory) jurisdiction to intervene on questions of the construction of the bylaws of societies. Thus in Kwantlen, the Court reasoned: It is true, as contended by the CFS-BC, that the courts have said that they will not generally intervene to construe the policies of voluntary organizations, nor will they interfere with discretionary decisions taken by them. We accept the summary of the law given by Brenner J. (as he then was) in North Shore Independent School Society v. B.C. School Sports Society, [1999] B.C.J. No. 143 at para. 37 (S.C.), as accurate: These cases show that the courts are prepared to interfere

with the decision of a domestic tribunal where it can be shown that the tribunal exceeded its jurisdiction or failed to comply with the rules of natural justice or otherwise acted in bad faith. What these cases also demonstrate is the reluctance of the courts to intervene by substituting the court's judgment for the judgment of the tribunal on a matter of substance within the tribunal's jurisdiction. Section 85 of the Society Act specifically contemplates the courts making orders to ensure that the rights of society members under the society's bylaws are not transgressed. Where the matter brought before the court is an issue of the construction of provisions of the bylaws that define the fundamental rights of members in respect of the society's operations, it is clear that the court has jurisdiction to intervene, and need not defer to the bylaw interpretations espoused by the society. [Paras. 31-2; emphasis added.] (The "domestic tribunal" referred to in B.C. School Sports was the governing body of the defendant society.) [50] British Columbia courts have found it necessary and appropriate on many occasions to "interfere in the internal affairs" of societies where and to the extent that the bylaws or the Act are being contravened. This includes societies that have express religious purposes. As the Attorney General observed in his factum, none of these societies is exempt from

compliance with the provisions of their bylaws or the Act. The Court's ability to remedy a contravention was not regarded as a broad jurisdiction, at least under the previous legislation: see Sarjit Singh Gill v. Khalsa Diwan Society, decided under s. 85 of the previous Society Act. In that instance, Low J., as he then was, reasoned: The Court must find irregularities or errors before it has jurisdiction under s.

85. In my opinion, there must be some connection between any irregularity proven and the relief sought. The authority under this section is to correct the problem and make necessary ancillary and consequential directions. The scope of this section is not very broad and the court's discretion is not unfettered. [At para. 20; emphasis added.] (See also Re Khalsa Diwan Society of Victoria at para. 10; De Guzman at paras. 22-6; Kaila v. Khalsa Diwan Society at para. 36; Garcha v. Khalsa Diwan Society at para. 19; Hara v. Khalsa Diwan Society 1999 BCCA 409 at paras. 1, 10-1.) The new sections 104 and 108 of the Act may be seen as broadening the remedial jurisdiction of the Court to some extent. [51] The Society did not refer us to any authorities that have disagreed with or doubted the foregoing line of cases, and I have not located any. I also note the comments of Jane Burke-Robertson, Terrance S. Carter and Theresa L.M. Man, the authors of the Corporate and Practice Manual for Charities and Not-for-Profit Corporations (updated to June 2020): The action of admitting or refusing to admit new members must be carried out in good faith, without conflict of interest and with a view to the objects of the corporation. For example, a board could be found to be exercising bad faith if a number of candidates equally fit the membership criteria and the board consistently admitted only those

persons who they knew could be counted on for a favourable view. [At §6B.4, 6-11.] Palliative Care [52] I set out again here for convenience the Society's purposes as stated in its Constitution: 2.1 To provide compassionate care and support for persons in the last stages of living, so that they may live as fully and comfortably as possible. 2.2 To utilize and coordinate community services, professionals, volunteers and family to care for the needs of the patient. 2.3 To support and counsel family members in their bereavement. 2.4 To recruit volunteers and provide training in palliative care. In addition, screen, supervise and support volunteers as well as co-ordinate volunteer/patient interaction. 2.5 To educate the community and provide resource material about hospice/palliative care and the aims of the society. 2.6 To promote public awareness about the society for the purpose of acquiring financial support. The phrase "palliative care" is mentioned in Bylaws 2.4 and 2.5 in connection with training and education. It does not appear to be a 'stand-alone' purpose. Rather, the providing of compassionate care and support for persons in the "last stages of living" and the co-ordination of services, volunteers and family to care for the "needs of the patient" appear to be the primary substantive objectives. [53] The Society pleaded, and submits on the appeal, that the implementation

of MAiD in the Society's facilities would directly contradict its purposes and practice over the past several years. Counsel emphasized the stipulation in Bylaw 2.1 that compassionate care and support are offered so that people in the "last stages of living may live as fully and comfortably as possible". (My emphasis.) The suggestion seems to be that assisted dying would be separate from the "last stages of living". [54] Mr. Trotter referred us to a definition of "palliative care" formulated by the World Health Organization. It described the term to mean "providing relief from pain and other distressing symptoms, affirming life and regarding dying as a "normal process"; and intending "neither to hasten or postpone death": World Health Organization, "Definition of Palliative Care", online. Recently, the World Health Organization amended its website to delete the foregoing definition, which has not been formally replaced with any other. However, the website does now state that: Palliative care is an approach that improves the quality of life of patients (adults and children) and their families who are facing problems associated with life-threatening illness. It prevents and relieves suffering through the early identification, correct assessment and treatment of pain and other problems, whether physical, psychosocial or spiritual. Addressing suffering involves taking care of

issues beyond physical symptoms. Palliative care uses a team approach to support patients and their caregivers. This includes addressing practical needs and providing bereavement counselling. It offers a support system to help patients live as actively as possible until death. [World Health Organization, "Palliative Care: Fact Sheet" (5 August 2020), online: https://www.who.int/news-room/fact-sheets/detail/palliative-care.] [55] Dictionary definitions of palliative care do not generally mention medically assisted dying. The Oxford English Dictionary (11th ed., 2004) defines "palliative" as "relieving pain or alleviating a problem without dealing with the cause". The Canadian Oxford Dictionary (2nd ed., 2004) defines "palliative care" to mean "medical care provided for the terminally ill, aimed at relieving symptoms." [56] The website of Health Canada advises: What is palliative care? If you have a life threatening condition or a serious illness, palliative care can: · help improve your quality of life · reduce or relieve your physical and psychological symptoms · help you have a more peaceful and dignified death · support your family and those who care for you while you are dying and afterward. [Government of Canada, "Palliative Care", online. [57] In Cuthbertson v. Rasouli 2013 SCC 53, the Court recognized a close connection between palliative care on one hand and the removal

of life-support equipment and its inevitable consequence on the other hand. The main issue was whether the withdrawal of life support came within the definition of "treatment" under Ontario's Health Care Consent Act, 1996, S.O. 1996, c. 2, such that the consent of the patient or persons on his behalf was required. The Supreme Court agreed with the argument that the removal of a ventilator came within the "treatment package" covered by the statute; and described a close connection between withdrawal of life support and palliative care: Furthermore, withdrawal of life support, on the evidence here, entails the provision of palliative care. The case law of the Board suggests that this will generally be the case. Physicians regularly administer palliative care upon the removal of life support: see K.(A.), (Re) [2011 CarswellOnt 15179 (Ont. Cons & Capacity BD)] at p. 21. what seems clear is that palliative care will be inevitably administered in Ontario hospitals as part of the process of withdrawing life support in cases like Mr. Rasouli's. The simple fact is that appropriate medical care at the end of life, including palliative care, is closely tied to the withdrawal of life support. In summary, withdrawal of life support aims at the health-related purpose of preventing suffering and indignity at the end of life, often entails physical interference with the patient's body, and is

closely associated with the provision of palliative care. Withdrawal of life support is inextricably bound up with care that serves health-related purposes and is tied to the objects of the Act. By removing medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamental way. The physicians' attempt to exclude withdrawal of life support from the definition of "treatment" under s. 2(1) of the HCCA cannot succeed. [At paras. 64, 67-8; emphasis added.] [58] Two years later, the Supreme Court of Canada decided Carter. It found that the provisions of the Criminal Code regarding medically-assisted suicide violated s. 7 of the Charter relating to the right to life, liberty and security of the person. The Court affirmed the trial judge's findings, which were grounded partly in evidence that assisted suicide regimes have worked satisfactorily in some other countries. The trial judge concluded that "it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care, including palliative care interventions aimed at reducing pain and avoiding the loss of personal dignity". (At para. 106; my emphasis.) The Supreme

Court went on to reason: In dissent at the Court of Appeal, Finch C.J.B.C. accepted the argument that the right to life protects more than physical existence (paras. 84-89). In his view, the life interest is "intimately connected to the way a person values his or her lived experience. The point at which the meaning of life is lost, when life's positive attributes are so diminished as to render life valueless, . . . is an intensely personal decision which 'everyone' has the right to make for him or herself" (para. 86). Similarly, in his dissent in Rodriguez, Cory J. accepted that the right to life included a right to die with dignity, on the ground that "dying is an integral part of living" (p. 630). . . . This said, we do not agree that the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot "waive" their right to life. This would create a "duty to live", rather than a "right to life", and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment. The sanctity of life is one of our most fundamental societal values. Section 7 is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life "is no

longer seen to require that all human life be preserved at all costs" (Rodriguez, at p. 595, per Sopinka J.). And it is for this reason that the law has come to recognize that, in certain circumstances, an individual's choice about the end of her life is entitled to respect. It is to this fundamental choice that we now turn. An individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician's assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person. [At paras. 60, 63, and 66; emphasis added.] [59] It is clear that for many members of the Society, providing MAiD would transgress a strongly-held moral tenet, whether religious or conscientious. Just as passionately, the petitioners hold the view that medically-assisted dying, having been recognized in Canada as a Charter‑protected right, should form part of the options available to hospice patients at the end of their lives. I express no

opinion on this question, which lies beyond the bounds of justiciability. However, it seems to me at least debatable as a legal or contractual matter whether the Constitution as written, and in particular the reference to "compassionate care and support for persons in the last stage of living", precludes making MAiD available to patients in the Society's hospice facilities. [60] Fortunately, the meaning of "palliative care" in the Constitution is not the question before us. The question for this court is whether the chambers judge erred 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. Membership and Membership Applications [61] I turn next to the statutory provisions governing, and case-law informing, membership in societies under the Act. Section 11 of the Act requires that a society's bylaws contain provisions respecting membership, including: (i) the admission of members and any rights and obligations arising from membership, (ii) if there is more than one class of members, a description of each class and the rights and obligations that apply to each class, and (iii) if members may cease to be in good standing, the conditions under which that may occur; Subsections 2 and 3 of s. 11 also state: (2) Without

limiting subsection (1), a society may, in its bylaws, adopt, with or without alteration, all or any of the set of provisions that are, by regulation, prescribed and designated as the "Model Bylaws". (3) A society must not have bylaws that contain a provision that is inconsistent with this Act, the regulations or any other enactment of British Columbia or Canada, and if a provision of the bylaws is inconsistent with this Act, the regulations or any other enactment of British Columbia or Canada, the provision has no effect. Bylaws may be amended only by special resolution of the members: s. 17(2). [62] Sections 69 and 70 deal with the termination of membership and the expulsion of members: Termination of membership 69 (1) A member's membership in a society terminates when (a) the member's term of membership, if any, expires, (b) the membership terminates in accordance with the bylaws, (c) the member resigns, (d) the member, in the case of an individual, dies or, in the case of a partnership or corporation, dissolves, or (e) the member is expelled in accordance with the bylaws or under section 70 (2). (2) Unless the bylaws provide otherwise, the rights of a person as a member of a society, including any rights in the property of the society, cease to exist when the person's membership in the society terminates. Discipline and expulsion of member 70 (1) The bylaws of a society may

provide for the discipline or expulsion, or both, of members. (2) Unless the bylaws provide otherwise, a member of a society may be disciplined or expelled by special resolution. (3) Before a member of a society is disciplined or expelled under subsection (2) or the bylaws, the society must (a) send to the member written notice of the proposed discipline or expulsion, including reasons, and (b) give the member a reasonable opportunity to make representations to the society respecting the proposed discipline or expulsion. [Emphasis added.] [63] As we have already seen, the Society's Bylaw 4 states: A person may apply to the directors for membership in the society and on acceptance by the directors is a member. (My emphasis.) Under Bylaw 5, "Every member must uphold the constitution and comply with these bylaws in the following ways". The phrase "following ways" refers to members' rights to inspect documents and to keep all payroll records confidential. It is silent about any conduct, acts or omissions of members that might be regarded as constituting a 'failure to uphold' the purposes of the Society. [64] Under Bylaws 8 and 9, a member may be expelled by special resolution. A member the Directors propose to expel must be given notice of the meeting and an opportunity to be heard at it. The chambers judge found at paragraph 51 of her reasons that historically: the Society's Board

has interpreted the Bylaws as simply requiring that a person send in an application form and a fee as being the sole [criterion] upon which a decision as to membership was made. Bylaw 4 does not reference any other criteria for membership. Nor does Bylaw 4 endow the Board with any discretion as to the grounds upon which membership may be accepted or rejected. Bylaw 4 only says that on acceptance by the directors, a person is a member. [At para. 51; emphasis added.] [65] Counsel did not bring to our attention any case 'on all fours' with this case, but those referred to by the chambers judge at paras. 52 and 55 of her reasons are relevant. In Peel, a Mr. Parsons challenged a decision of the directors of the Greater Toronto Airports Authority, a corporation without share capital incorporated under Part II of the then Canada Corporations Act. Each municipality in the vicinity of an airport was entitled to nominate two members and under bylaw 5.3, each member was ex officio a director. Before being appointed to the board, a nominee was required to notify the board in writing of any circumstance that would pose an actual or perceived conflict of interest "in his capacity as a Director". [66] In response to a newspaper ad, Mr. Parsons applied to fill a vacancy on the board and for this purpose signed a "declaration of no conflict". He attended an interview with a governance committee

of the board. Two of the interviewers formed the view that he would not always represent, "first and fully and unalterably" the corporation's best interests. The board notified Mr. Parsons that the committee believed he had a conflict of interest and thus did not meet the criteria for appointment as a member or director. Mr. Parsons remonstrated, but the directors rejected his objections at a subsequent meeting. He sued on the basis of published federal Principles of Accountability, asserting that the directors had incorrectly interpreted the bylaws; that there was no evidence before the board that reasonably supported the existence of a conflict of interest; and that in any event, the directors had breached a duty of fairness owed to him as an applicant. [67] Part of the Court's long and detailed analysis related to what Mr. Justice Cullity referred to as "anticipatory disqualification" -- i.e., disqualification based solely on the ground that the board believed the nominee would not in future always act in the best interests of the Authority. (At para. 66.) On this topic, Cullity J. reasoned: While I believe I would not be justified in concluding that a valid anticipatory revocation or disqualification would never be possible in cases of personal conflicts, or that such decisions could never be made on the basis of the nominee's intention to act against the best interests of

the respondent, I believe that, to be valid, such decisions would require compelling evidence of the existence of such an intention or, if that is too high a standard, evidence that does so with a high degree of probability. I do not believe that the by-laws can reasonably be construed as conferring power on the board to disqualify a nominee by way of an anticipatory revocation simply because the board decides it is more probable than not that the nominee will not always act in the best interests of the respondent. A fortiori, the board cannot exclude nominees simply because it is doubtful whether their future conduct will be properly motivated, because of doubts that their views of the best interests of the respondent will coincide with those of the incumbent members or because it is anticipated that they may be difficult to work with. Nor do I accept that it is the role of the board to speculate "conceptually" about the possibility that facts might arise that would cause a nominee not to act in the best interests of the respondent. [At para. 67; emphasis added.] Cullity J. concluded that the directors' decision to refuse to appoint Mr. Parsons was in violation of the Authority's bylaws. He granted a declaration that the board was obliged to appoint him for a term of office commencing on the date of appointment. (At para. 97.) The Court found it unnecessary to deal with the

claim of procedural unfairness. The order was affirmed on appeal. [68] Another Ontario case, Re London Humane Society, 2010 ONSC 5775, involved a society whose bylaws were somewhat similar to those with which we are concerned. The bylaws of the society ("LHS") stated: The members of the Corporation shall be those persons who are approved by the Board of Directors and who pay the Corporation the dues or fees determined by the Board of Directors. [Emphasis added.] In 2009, the board notified members that annual membership fees had changed and that membership applications had to be completed annually. By early 2010, all of the 800 monthly donors' memberships had expired. New membership forms were not made available until January 2010, after the expiration date. A membership drive was conducted and eventually 117 applications were received, of which 109 were approved and eight declined. No reasons were given for their being declined. In the chambers judge's words: No reasons were given for declining eight applications for example, Ms. Judy Foster, Executive Director of the LHS at the relevant time, was unable to articulate a clear reason for declining the application of Ms. Marie Blosh, one of the respondents; stating only that the LHS felt that Ms. Blosh would not support the objects of the corporation. [At para. 12; emphasis added.] [69] The judge reasoned that since the bylaws

contained "only a very broad power in the Board to approve members and there were no statutory or regulatory provisions guiding the exercise of the Board's power", any governing principles were "grounded in the common law". (At para. 27.) The directors owed a fiduciary duty to the society, but not to the members directly or to the eight applicants who had been rejected. Similarly, the rules of natural justice were found not to apply to the rejected applicants "or at the most only very minimally". Last, neither the directors nor the LHS had any contractual relationship with the eight applicants; thus no "substantial duties to follow the rules of natural justice" were owed to them. (At para. 30.) [70] However, one duty was found to apply -- a duty to act in good faith "as required by the common law". "Good faith" was defined in Black's Law Dictionary (9th ed., 2009) as: [a] state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business or (4) absence of intent to defraud or to seek unconscionable advantage. Conversely, bad faith was defined as "dishonesty of belief or purpose". The judge continued: The evidence in the present case is that the Board is unable to articulate a specific reason for refusing to admit the eight refused applicants as

members to the LHS, other than that Ms. Blosh would not support the objects of the corporation. However, there was nothing in Ms. Blosh's application that indicated that she opposed the objects of the LHS. She was involved in other community activities related to animal welfare and had been a member of the LHS the previous year. At a minimum, the Board's decision regarding Ms. Blosh was arbitrary. While arbitrariness is not part of the above definition of bad faith, the arbitrary exercise of discretion has been associated with bad faith in a number of cases (citing Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140 ). While the LHS Board is not a public body, it does derive its authority to act from its bylaws, which are enacted under discretion granted by the Corporations Act. As such, arbitrariness alone may ground a decision that the LHS Board acted in bad faith. There is some suggestion in the evidence that the decision regarding Ms. Blosh's application was founded in political or ideological divisions. It is improper for a Board of Directors to reject members of ideological differences. [Citing Pathak v. Hindu Sabha (2004), 48 B.L.R. (3d) 207 (ONSCJ) para. 9. [At paras. 32-35; emphasis added.] [71] Since it was likely the eight applicants had been rejected if not arbitrarily, then because of possible ideological differences, the judge ruled that the board had exercised its

power in an "inappropriate" manner. (At para. 36.) He granted an order deeming the eight applicants to be members of the LHS for all purposes. (At para. 39.) [72] I have already mentioned Kwantlen University College. It concerned a British Columbia society, whose board of directors (referred to as the "Executive Committee") consisted of representatives from various student organizations. One of the society's standing resolutions required that before being "ratified" by the Executive Committee, a nominated local representative must have taken an oath of office and provided proof of his or her nomination to fill the position on the Committee. (See para. 9.) The society declined to ratify the appointment of a Mr. Robertson, who represented the Kwantlen University College Student Association, for membership on the Executive Committee, apparently because of his previous campaigning in favour of de-federation in a recent referendum. (See para. 16.) [73] This court affirmed the order of the Supreme Court to the effect that Mr. Robertson was to be recognized as a member of the Executive Committee under what was then s. 85 of the Society Act. The society's bylaws were construed as giving each student institution the right to elect its representatives to the Committee. As the Court stated: That method of selection of directors fully complies with the requirements of s. 24 of the Society

Act. The bylaws do not provide for the Executive Committee to "nominate, elect or appoint" the local representatives. The "ratification" role of the Executive Committee was intended to be a limited one. The Executive Committee was entitled to satisfy itself that Mr. Robertson had been duly elected and designated, that he was a member in good standing of both the KSA [Kwantlen Student Association] and the [society], and that he had agree, by oath or affirmation, to assume the duties of a director. It was not entitled to go further and determine whether it considered him to be a worthy member of the Executive Committee. In purporting to exercise discretion to approve or disapprove an elected director, the Executive Committee took on a role that it did not have under either the bylaws or s. 24 of the Society Act. [At paras. 44-5; emphasis added.] [74] Yukon Government is perhaps the most analogous to the case at bar. It involved a dispute among various directors and former directors of a Yukon society ("HSY"). Complaints were made to the registrar concerning alleged irregularities and breaches of the bylaws. One of the complainants proved that she was a member, but her name did not appear on a membership list that had been provided to the registrar. After an investigation, the deputy registrar found that the board had for some time denied access to the membership list to "active

members"; that it had denied at least six applications for membership for reasons set out in letters of denial sent to the applicants; that some applicants had been provided with documents purporting to set out criteria for membership, but these criteria had not been approved by the membership; and that the membership list was incomplete. (See para. 26.) The registrar issued orders requiring the society to, inter alia: immediately grant membership to the six applicants to whom membership was denied as well as to any and all individuals who have applied to date. I order the HSY board to ensure that future membership applications are processed, as a matter of course, without delay and without a standard screening process by the board, unless and until the HSY membership adopts bylaws permitting such screening and such bylaws are approved by my office. [At para. 27; emphasis added.] [75] The dispute soon reached the Supreme Court of Yukon, where counsel for HSY argued that as long as the directors honestly believed they were acting in the best interests of the society, were motivated by loyalty to the society, were free of conflicts of interest, and were acting in good faith, their decisions to deny memberships must be upheld. (At para. 8.) The Court did not agree. It held that: as will soon become apparent, HSY's defence centers on the subjective belief of the individual

respondents that they were acting in the best interests of HSY at all material times. However, there are two fatal flaws to this position: (1) it ignores HSY's own bylaws; and (2) the respondents cannot be said to have been acting in good faith if their decisions to deny memberships were based on unreasonable grounds. [At para. 9.] Gower J. noted in particular the society's bylaw 3, which stated: An individual or corporation may apply for membership in the society, but no person or corporation who satisfies the criteria for membership shall be denied membership. In his analysis, the only criteria for membership in the bylaws were that one must apply and pay the appropriate membership fee. It followed that "anyone who applies for membership and pays the applicable fee should be accepted as a member. There is no discretion to screen applicants." (At para. 10; my emphasis.) [76] HSY submitted that "screening criteria" could be implied from its bylaw 4, the terms of which were very similar to those of the Society's Bylaw 5 in the case at bar. HSY's bylaw 4 stated: Every member shall uphold the constitution and comply with these bylaws. Gower J. declined to infer such a broad power to screen membership applications. Relying in part on Kaila v. Khalsa Diwan Society, he agreed that "the exact terms of the society's bylaws must be read to determine membership eligibility." (At para. 13

of Kaila.) Further, he said: HSY's current counsel argued that implicit board authority to screen prospective members must necessarily be implied to prevent a potentially absurd result - that the board would have to accept as a member even a known animal abuser. Again, I disagree. Under its current bylaws, the board has no such screening authority. However, in the event such a result is obtained, the board or the members could immediately attempt to expel the new member by a special resolution of members passed at a general meeting pursuant to s. 7 of the Schedule A default bylaws. The Registrar came to the same conclusion in his report of September 10, 2012. [At para. 15; emphasis added.] As well, he distinguished Peel on the basis that it had involved very specific criteria to be applied to applicants for appointment to the board, whereas in Yukon Government, there were no criteria for determining membership in the Society. (At para. 13.) [77] As for the argument that the directors had been acting in good faith because they honestly believed they were acting in HSY's best interests, the judge observed that subjective good faith does not supply a defence to a breach of fiduciary duty by a director. (At para. 18.) He quoted extensively from London Humane Society, concluding that even if a higher duty was required where societies are involved, clear and unambiguous evidence

would still be required to justify the board's exclusion of applicants for membership on the basis of "anticipatory breaches." On the evidence, he found that HSY's decisions to refuse applicants "clearly failed to meet that standard." (At paras. 24, and 31-37.) The Court declared inter alia that in failing to grant memberships to the six persons whose applications had been denied, HSY had breached its bylaws. (At para. 64.) Standard of Review [78] No particular issues regarding the applicable standard of review are raised in this case. The well-known formulation in Housen v. Nikolaisen 2002 SCC 33 applies. Analysis [79] I have set out the Society's grounds of appeal at para. 31 above, but since they are obscured by unhelpful partisan commentary, I prefer to reframe the legal issues raised on the appeal as follows: Non-Charter Arguments · Did the judge wrongly fail to defer to "the members' interpretation . of the Society's purpose", which is said to be a "non-justiciable matter of moral philosophy"? · Did the chambers judge err in finding the Court had jurisdiction to intervene "without finding any bases to distinguish the jurisdictional bars" applied in Highwood? · Did the chambers judge err in treating the Society's past practice regarding membership applications as "binding"? · Did the chambers judge err in finding bad faith on the part of the Board? · Did the chambers judge

err in finding the Board did not have the discretion to reject membership applications "submitted by those opposed [or thought to be] to the society's purposes" and in ordering the "forced admission" of such persons? Charter Argument · Did the chambers judge err in failing to apply the Charter directly to this dispute, or in failing to consider the "Charter values" of freedom of association and freedom of conscience of the Society and/or its members? A final issue raised by the Society as to the chambers judge's failing to strike out or 'read down' the relevant provisions of the Act as inconsistent with the Charter, falls to be considered in connection with the Notice of Constitutional Question near the end of these reasons. [80] Deference to Board's View: In connection with the first question, the Society focuses in its factum on the chambers judge's observation at para. 47 that while the current Board interprets the Society's Constitution as precluding the provision of MAiD by the Society, some of its members hold "dissenting" views. This fact, the Society submits, "does not give the courts the right to prefer the dissenters' views over those of the majority and their elected board." It submits that the interpretation of its Constitutional purposes was a "matter for the members' delegates -- the directors -- to make, who 'may exercise all the powers that the Society may

exercise and do.'" (See Bylaw 24.1.) [81] With respect, the chambers judge did not "prefer" the views of one group over the other; nor did she express an opinion as to whether the Society could or should provide MAiD. She stated specifically at para. 4 that it was not her role to resolve that question, and indeed it was not before her. The issues the chambers judge had to decide were legal ones relating to the Board's conduct in 'screening' and rejecting 310 membership applications on the basis of criteria not set out in the Bylaws. The authorities supported the conclusion that this conduct was not authorized and that, in Fitzpatrick J.'s words, "Unless the criteria for membership were set out in the bylaws, the directors do not have the discretion to deny membership on some other basis that they themselves determine." (At para. 52.) This would have been the case regardless of whether the Society was a religious organization or not. [82] Highwood: As to whether the chambers judge erred in "finding that she had jurisdiction over a private society's membership decisions" without having any basis to "distinguish the jurisdictional bars" referred to in Highwood, it is unclear whether Highwood was even cited to Fitzpatrick J. Even if it was mentioned in counsel's arguments, Highwood was clearly distinguishable. Judicial review was sought in that case and there was nothing resembling

a contractual relationship between the Congregation and its members. As well, there was no statutory basis for Mr. Wall's claims, while here the petitioners sued under ss. 53, 80, 104 and 108 of the Act. These provisions are aimed at protecting the processes and rights of members, including "how a person may become a member and in what instances he or she may be expelled or disciplined". (Ireland v. Victoria at 102-3.) [83] Accordingly, I cannot agree with the Society's argument that Highwood should have been applied in this case; nor with its suggestion that Highwood supersedes or effectively overrules the many cases decided under the remedial provisions of the Societies Act or its predecessors. [84] Remaining Questions: I propose to treat the questions regarding "past practice", "bad faith", and the Directors' discretion to reject applications for membership together, since they are all concerned with what the Society submits is a "flood" of new applicants who are seeking to overwhelm the organization to act contrary to its purposes. Counsel argues that the chambers judge treated the Society's past practice in connection with membership applications as "binding", and that this was erroneous in light of the "new and very public existential threat" to the Society. According to its factum: [the previous] approach may be sufficient to protect a society when dealing with just a

trickle of hostile applicants, as in Yukon Government, but it is clearly not sufficient to deal with a flood of organized applicants, intent on infiltrating and taking over the society. [The Society's] bylaw 8 permits a member to be expelled only by a majority member vote at a general meeting. Obviously, this will provide no protection where the number of new applicants have -- intentionally and all at once -- overwhelmed the existing membership such that they control all general meeting votes. The coup will be a fait accompli against which the existing members will have no remedy. Only by keeping hostile applicants out of membership in the first place can the integrity of the society be maintained. [At para. 96; emphasis added.] [85] Again, with respect, I cannot agree with the Society's position. The chambers judge did not treat the "open" approach taken by the Board to membership applications as "binding". The fact that in the past, applications had been granted automatically upon payment of membership fees was relevant to the narrative and supported the finding that it was because of the recent debate concerning MAiD that the Directors suddenly changed their practice. (The Society acknowledged this fact in its factum.) This change in turn was relevant to the questions of bad faith and remedy. But the "past practice" was not decisive on any issue of law. Rather, the chambers

judge's conclusion rested on the crucial fact that the Bylaws made no reference to any criteria for membership other than the payment of fees. The Directors were found not to have "full discretion" under the Bylaws to determine membership on the basis of their own views or on the basis of speculation about applicants' views. (At para. 54.) In my opinion the chambers judge's interpretation of the Bylaws has not been shown to be wrong, whether the conclusion is characterized as one of law or one of mixed fact and law. (See generally Sattva and Ledcor, supra.) [86] Having found that the Directors did not have the "discretion to deny membership upon some other basis that they themselves determined," the chambers judge went on at para. 61 to conclude that the Board had acted contrary to the Bylaws and the Act, had acted "with an improper purpose" and had "lacked good faith." She relied in part on Yukon Government at paras. 16-37 (see paras. 74-7 above), in particular the findings that the directors' refusal of the membership applications in that instance had not been supported by "clear and unambiguous evidence"; that "perceived and anticipatory breaches" of the LHS constitution were insufficient; and that the directors could not be said to have acted in good faith in denying the applications. As well, the Court found at para. 33 that the directors' decision was "arbitrary" and that

"the arbitrary exercise of discretion has been associated with bad faith in a number of cases." Arbitrariness alone could ground a finding of bad faith in that it was "improper" to reject members "on the basis of ideological differences." (At paras. 34-5.) [87] While in my opinion it would have been sufficient for the chambers judge in the case at bar simply to find that the Board had acted beyond its authority such that the remedial provisions of the Act were properly invoked, I cannot say her finding of "bad faith" was clearly and palpably wrong. I emphasize that Fitzpatrick J.'s characterization of the Directors' conduct was directed not to their conscientious beliefs concerning MAiD, but to their rejecting membership applications without any basis in the Bylaws for doing so. [88] Obviously, those in control of the Society at present believe the majority's conscientious and/or religious beliefs are at peril. Membership drives resembling political campaigns have been conducted by persons the Board regards as "hostile" and have brought the Society into the public spotlight. No doubt many longstanding members feel a sense of injury, given the stalwart support they have provided to the sick and dying over many years. It is due to their efforts that the Society has been able to build and operate its hospices. However, 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 Directors to apply their own private criteria to keep out others who think differently than they. Like all societies under the Act, the Society is governed by majoritarian principles and is not frozen in time. New members may disagree with past practices and are entitled to seek to effect change, either within the confines of the constating documents, or by amending those documents if the requisite two-thirds majority is met. As Mr. Dixon argued, if the Directors were found to have had a discretion to apply criteria not specified in the Bylaws for membership, the relationship between the members and the Board would be "stood on its head", effectively putting them in charge of the composition of the membership and, indirectly, of the voting at general meetings. This is not the structure contemplated by the Act, which calls for the election of Directors by members and requires members' approval for the expulsion of members. [89] Of course the Society is a private body in the sense that it is not an agency of government, and membership is voluntary in the sense that it is not required by law. But this does not signify that the Directors are, under the present Constitution and Bylaws,

entitled to deny membership applications for reasons not spelled out in the Bylaws. If the Constitution or Bylaws had stated clearly that membership was restricted to persons subscribing to a particular opinion, ideology, or religion, the situation would be different. Many of the cases that have been before British Columbia courts, for example, involved societies formed for the purpose of furthering the Sikh faith. In Re Khalsa Diwan Society of Victoria, the Court gave full effect to a provision in the bylaws authorizing the executive committee of the board to establish reasonable criteria for membership. Tyrwhitt-Drake L.J.S.C. observed that: The executive has to be satisfied as to the religious qualifications of an applicant, which renders its duties by no means pro forma. They are extremely important to the spiritual community of which the society is the secular arm. [At para. 5.] [90] Another example may be found in De Guzman, where the Court did not question the validity of a bylaw that restricted individual membership to Filipino nationals by birth, affinity or sanguinity residing in British Columbia. At the same time, the directors in De Guzman were not permitted to impose additional conditions without a members' resolution amending the bylaws accordingly. As the Court stated: As I interpret the bylaws, the only power the directors have in relation to membership is to

consider whether or not an applicant meets specifications set forth in the bylaws, mainly the attributes associated with birth, affinity, or sanguinity, participation in scheduled or unscheduled events or projects, and demonstration of an interest in promoting the goals and objectives of the society. It is not open to the directors, as I construe the bylaws in their present form, to consider any other bases upon which to approve, or refrain from approving, an application for membership. [At para. 8; emphasis added.] [91] Obviously, De Guzman and Khalsa Diwan (Victoria) are distinguishable from the case at bar. If the special resolutions now proposed by the Board are passed, however, the new constating documents will be similarly respected and enforceable by courts of law according to their terms and the Act. Charter: Direct Application? [92] The Society's argument as set out in its factum combines (and in my view confuses) various points of law concerning the potential application of the Charter to this case. Although the Society's primary submission seems to be that "Charter values" should inform a statutory discretion that was exercised by the chambers judge (as occurred, for example, in Young v. Young [1993] 4 S.C.R. 3 and A.B. v. C.D.), there are also suggestions in the factum that the Charter applies directly to the parties' dispute, because either the remedial provisions

of the Act or the chambers judge's orders constitute "governmental action". [93] The former suggestion would fall to be considered in connection with the Notice of Constitutional Question, which seeks as one alternative the reading down of the Act so as to exempt the Society from ss. 104 and 108. The latter notion -- that the Supreme Court of British Columbia is an organ of "government" that in making the orders it did, violated the rights of freedom of conscience and of association of the Society or its members -- warrants some brief discussion here. [94] One begins with s. 32 of the Charter, which provides that the Charter applies to the "Parliament and Government of Canada" and to the "legislature and government of each province". Thus the late Professor Peter Hogg wrote in Constitutional Law of Canada (5th ed., Supp., loose-leaf ed.): This [s. 32] is an exhaustive statement of the binding application of the Charter. It follows that the Charter applies only where there has been governmental action of some kind, that is, action by the Parliament or Government of Canada or by the Legislature or a government of a province. The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations

between private persons and private persons. Private action is therefore excluded from the application of the Charter. [At §.37.2(h); emphasis added.] In support, Professor Hogg cited inter alia RWDSU v. Dolphin Delivery Ltd. [1986] 2 S.C.R. 573, Tremblay v. Daigle [1989] 2 S.C.R. 530, Stoffman v. Vancouver General Hospital [1990] 3 S.C.R. 483, and Sagen v. Vancouver Organizing Committee (2009) 313 D.L.R. (4th) 393 (B.C.C.A.). [95] In Dolphin Delivery, MacIntyre J. for the majority of the Court, stated: While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for purposes of Charter application the order of the court with an element of governmental action. This is not to say that courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they are to act as neutral arbiters, not as contending parties involved in a dispute. To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation. All cases must stand, if carried to completion, with an enforcement order and if the Charter precludes the making of the

order, where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter. In my view, this approach will not provide the answer to the question. A more direct and more precisely-defined connection between the element of government action and the claim advanced must be present before the Charter applies. [At 600-01; emphasis added.] [96] However, Professor Hogg noted at §37.2(f) that in some cases decided shortly after Dolphin Delivery, there were suggestions from the Supreme Court of Canada that where a statute was applied by a court to what would otherwise be a "purely private" dispute, the Charter might become applicable: see BCGEU v. British Columbia [1988] 2 S.C.R. 214, per Chief Justice Dickson at 243, and R. v. Rahey [1987] 1 S.C.R. 588 at 633. Hogg rationalized the apparent divergence from Dolphin Delivery thus: The ratio decidendi of Dolphin Delivery must be that a court order, when issued as a resolution of a dispute between private parties, and when based on the common law, is not governmental action to which the Charter applies. And the reason for the decision is that a contrary decision would have the effect of applying the Charter to the relationships of private parties that s. 32 intends to exclude from Charter coverage, and that ought in principle to be excluded from Charter coverage. Where, however, a court order

is issued on the court's own motion for public purpose (as in BCGEU), or in a proceeding to which government is a party (as in any criminal case, such as Rahey), or in a purely private proceeding that is governed by statute law, then the Charter will apply to the court order. [At § 37.2(f); emphasis added.] Hogg did not cite any authority for the last underlined clause above. I note however that in Young v. Young, the Court held that the Charter did not apply even though the case involved an order made under s. 16 of the Divorce Act. (At paras. 138-141). Similarly in A.B. v. C.D., the Court held that the Charter did not apply directly, even though the court orders at issue were made under various sections of the Family Law Act. (See paras. 203-5.) [97] In Highwood, decided 34 years after Dolphin Delivery, the Supreme Court unanimously endorsed the statement that "the Charter does not apply to private litigation. Section 32 of the Charter specifies that it applies to the legislative, executive and administrative branches of government." (Citing Dolphin Delivery at 603-4; my emphasis.) The Charter did not apply in Highwood, since in Rowe J.'s words, "no state action is being challenged, although the Charter may inform the development of the common law." (At para. 39; my emphasis.) Obviously, the Supreme Court of British Columbia is not part of the executive or administrative

branches of government; but it is not clear whether that is the end of the matter. Arguably, the case at bar is "governed by" the Societies Act and thus falls outside the scope of a "purely private dispute". [98] This remains an open question, although some authorities suggest that a direct and specific program that has the effect of violating Charter rights must be shown before the Charter will apply to a private dispute. In Eldridge v. British Columbia [1997] 3 SCR 624, for example, the Charter was found to be applicable to the hospital in question because it was "implementing a specific government policy or program". (At para. 43; see also Young v. Young at paras. 138-9 and AB v. CD at paras. 203-5.) It seems doubtful that the remedial provisions of the Societies Act, which are facially 'neutral' in their operation, could be regarded as implementing a specific policy or program. As the Attorney General argued, the Act is "broadly drafted legislation that is intended to confer discretion on the Court to remedy a situation where a society may be acting unlawfully, violating its own bylaws, or acting in a manner inconsistent with or contrary to its purposes." (An example of a specific governmental policy that is relevant to this case is the FHA's denial of provincial funding to hospices that do not provide MAiD. As we have seen, the FHA currently exempts only religious

organizations from this policy; it does not recognize the potential for conscientious objections. See generally R v. Big M Drug Mart [1985] 1 S.C.R. 295; Wilson J. in R v. Morgentaler [1988] 1 S.C.R. 30; Roach v. Canada (Minister of State for Multiculturalism & Culture) [1994] 2 F.C. 206; Mouvement laïque québécois v. Saguenay (City) 2016 SCC 16 regarding freedom of conscience.) [99] Since the issue was not raised directly in this case and was not fully argued by either side, however, it would not be appropriate for us to attempt to decide it in the case at bar. [100] Charter Values: I turn next to the issue, which is raised clearly by the Society in its submissions, of whether the "underlying Charter values" of freedom of association and freedom of conscience should have been considered as informing the judge's decision in this case, as occurred in Young v. Young. For purposes of this discussion, I will assume that the Society has a "corporate conscience", and is entitled to assert these freedoms on its own behalf in this proceeding. This assumption was not challenged by any of the respondents herein. [101] In my opinion, the underlying Charter values of freedom of conscience and freedom of association simply do not fall to be so considered in this case. Neither the Act nor the Court's orders (which may or may not reflect the exercise of a "discretion" within the meaning of

Young v. Young) restrict the right of anyone or any group to hold or express a particular belief or moral tenet; nor do the Act or the orders preclude anyone from associating with anyone else or declining to do so. Membership in the Society is entirely voluntary. Members or groups of members may come and go. Most importantly, neither the Act nor the orders affect the ability of the Society to restrict its activities or its membership eligibility on the grounds of religion, conscience or any other basis. This ability was not in question. What is threatened is the ability of the Board to control the outcome of the special resolutions proposed to be passed at the Extraordinary General Meeting. [102] With respect, in the absence of clear criteria in the Society's Bylaws, there is no such "right" of control. Those members who are now described as "dissenters" and those persons whose applications were excluded from membership also have rights of conscience and freedom of association under the Charter. The chambers judge did not prefer one view or the other; she merely found that the Directors had exceeded their powers in imposing their own views when reviewing membership applications. The appropriate remedy was to order the admission of the 310 rejected applicants and require the register of members to be rectified accordingly. If this court were to find that the Directors' conduct

was justified because of the necessity to defend against what counsel for the Society described as a "hostile takeover", it would clearly be preferring one side over the other. Again, it is for the members to vote in accordance with their conscientious and/or religious beliefs in favour of or against the proposed Resolutions. [103] Accepting, then, that Charter values are "not to be ignored" by courts in resolving private disputes, I conclude that Charter rights of conscience and freedom of association 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. As the Attorney General suggests, any other disposition of this case would give the Court's imprimatur to acts of the Directors that were intended to exclude persons holding different views than theirs. I agree with the Attorney that this would be disrespectful of Charter values. [104] I would not accede to any of the foregoing grounds of appeal. Constitutional Challenge [105] I turn finally to the constitutional challenge mounted by the Society directly against ss. 104 and 108 of the Act. As the petitioners emphasize in their factum, no evidence was adduced and no argument was made in the court below concerning the validity or applicability of these sections based on an inconsistency with or infringement of Charter rights. [106]

The petitioners properly point out that this court will generally not consider arguments not advanced in the court below, especially without a complete evidentiary record. This principle has particular resonance in constitutional cases, where the required Oakes analysis now entails a vast amount of evidence, expert opinions, case-law and possible intervenors in most instances. As this court stated in Law Society of British Columbia v. Parson 2016 BCCA 435: I note that S. did not challenge the constitutional validity of s. 203 in the court below. While she attempted to include a Charter challenge in her arguments on the appeal, this Court refused to hear such a challenge on the well-established basis that Charter challenges will not, or narrowly, be allowed to be made for the first time on appeal: R. v. Ubhi (1996) 81 B.C.A.C. 161; R. v. Olson (1993) 28 B.C.A.C. 288; R. v. Vidulich (1989) 37 B.C.L.R. (2nd) 391 (BCCA); R. v. Millar 2004 BCCA 234 at para.

13. In the case before us, it would have been inappropriate to entertain a Charter challenge, as the record in the court below was not developed with a view to examining the constitutional validity of the legislation. See also Huang v. Vancouver General Hospital 2020 BCCA 294; L. v. Lilgert 2014 BCCA 493 at para. 14. [107] For this reason, I would decline to entertain the constitutional challenge at this late date. I must say also that it seems extremely unlikely the challenge to ss. 104 and 108 of the Act could have succeeded in any event. These provisions are designed simply to ensure that the rights of members are protected and that the Act is generally complied with. They do not have the purpose or effect of violating Charter rights of conscience or association. It is open to any group of people who have some belief or objective in common, to join together and pursue their clearly stated purposes. When they obtain the advantage of corporate personality in the form of a society under the Act, however, the society itself and its directors become subject to provisions such as ss. 104 and 108 and its members acquire contractual rights and obligations inter se that may be enforced by courts of law. Fresh Evidence [108] Finally, I note that the Society seeks to adduce into evidence an affidavit of Ms. Ireland sworn July 15, 2020. The affidavit simply adds more information

concerning what she refers to as a "co-ordinated campaign to overwhelm" the Society's membership by the pro-MAiD camp. In my view, this information, if admitted, would not change the result in this case and is merely an updated version of evidence before the chambers judge. I would dismiss the application for the admission of this evidence. Disposition [109] For the reasons given, I would dismiss the appeal and order that the interim stay of the order of the chambers judge below expires on the date of the release of these reasons. "The Honourable Madam Justice Newbury" I agree: "The Honourable Madam Justice DeWitt-Van Oosten" I agree: "The Honourable Mr. Justice Voith"

LEGISLATIVE PROVISIONS Societies Act, R.S.B.C. 1996, c. 433 Duties of directors 53 (1) A director of a society must, when exercising the powers and performing the functions of a director of the society, (a) act honestly and in good faith with a view to the best interests of the society, (b) exercise the care, diligence and skill that a reasonably prudent individual would exercise in comparable circumstances, (c) act in accordance with this Act and the regulations, and (d) subject to paragraphs (a) to (c), act in accordance with the bylaws of the society. (2) Without limiting subsection (1), a director of a society, when exercising the powers and performing the functions of a director of the society, must act with a view to the purposes of the society. (3) This section is in addition to, and not in derogation of, any enactment or rule of law or equity relating to the duties or liabilities of directors of a society. (4) Nothing in a contract or the bylaws of a society relieves a director from (a) the duty to act in accordance with this Act and the regulations, or (b) liability that, by any enactment or rule of law or equity, would otherwise attach to the director in respect of negligence, default, breach of duty or breach of trust of which the director may be guilty in relation to the society. Powers of court respecting general meetings 80 (1) On the application of a member or

director of a society, the court may order that a general meeting be called, held and conducted on the notice, on the date, at the time, at the location or in the manner the court directs, (a) if it is not feasible to call, hold or conduct the meeting on the notice, on the date, at the time, at the location or in the manner required under this Act or the bylaws, or (b) for any other reason the court considers appropriate. (2) The court may order that the quorum under section 82 [quorum] be varied or dispensed with at a meeting called, held and conducted under this section. Compliance or restraining orders 104 (1) This section applies if (a) a person contravenes or is about to contravene a provision of this Act, the regulations or the bylaws of a society, or (b) a society is carrying on activities that are inconsistent with or contrary to its purposes. (2) On the application of a member or director of a society in relation to which this section applies or another person whom the court considers to be an appropriate person to make an application under this section, the court may make an order, (a) in a case described in subsection (1) (a), directing the person who has contravened or is about to contravene a provision referred to in that subsection to comply with or refrain from contravening the provision, or (b) in a case described in subsection (1) (b), directing the society to

refrain from carrying on activities that are inconsistent with or contrary to its purposes. (3) If the court makes an order under subsection (2), the court may make any ancillary or consequential orders it considers appropriate. Court may remedy irregularities 105 (1) This section applies if an omission, defect, error or irregularity in the conduct of the activities or internal affairs of a society results in (a) a contravention of this Act or the regulations, (b) the society acting inconsistently with or contrary to its purposes, (c) a default in compliance with the bylaws of the society, (d) proceedings at, or in connection with, a meeting of members or directors of the society, or an assembly purporting to be such a meeting, being rendered ineffective, or (e) a resolution consented to by members or directors of the society, or records purporting to be such a resolution, being rendered ineffective. (2) Despite any other provision of this Act, if an omission, defect, error or irregularity described in subsection (1) occurs, (a) the court may, either on its own motion or on the application of a person whom the court considers to be an appropriate person to make an application under this section, make an order (i) to correct or cause to be corrected, or to negative or modify or cause to be modified, the consequences in law of the omission, defect, error or irregularity, or (ii)

to validate an act, matter or thing rendered or alleged to have been rendered invalid by or as a result of the omission, defect, error or irregularity, and (b) the court may make any ancillary or consequential orders it considers appropriate. (3) Unless the court orders otherwise, an order under subsection (2) does not prejudice the rights of a third party who has acquired those rights for valuable consideration and without notice of the omission, defect, error or irregularity that is the subject of the order. Applications to court to correct records 108 (1) In this section, "basic records", in relation to a society, means (a) the society's (i) constitution, (ii) bylaws, (iii) statement of directors and registered office, (iv) register of directors, and (v) register of members, (b) the minutes of any meeting of members or directors, and (c) any resolution passed by the members or directors, if the resolution is not included in the minutes referred to in paragraph (b). (2) If information is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, a society's basic records, the society, a member or director of the society or another person whom the court considers to be an appropriate person to make an application under this section may apply to the court for an order that the basic records be corrected. (3) On an application under this

section, the court may make any order it considers appropriate, including an order (a) requiring the society to correct one or more of its basic records, (b) restraining the society from calling or holding a general meeting or doing any other act before the correction is made, (c) determining the right of a party to the application to have the party's name entered or retained in, or deleted or omitted from, basic records of the society, and (d) requiring a person to compensate a party who has incurred a loss as a result of a matter referred to in subsection (2).