Procedural Fairness: What does it mean for societies?
What is procedural fairness and how can we ensure that we are not breaking any rules?
Procedural fairness focuses on the process or procedure that leads to a decision, not the outcome of the decision. It provides protection to those impacted by the decision, by ensuring the decisions are made in a fair and open manner. While the requirements for a fair decision making process are fact specific, the following are always required:
Provide adequate notice to the person who the decision is about.
What is being decided?
What are the consequences of the impending decision?
Opportunity for Submissions
The person who the decision is about must have the opportunity to tell their side of the story.
This can be done in person or in writing.
Independent Decision Makers
The people making the decision must be unbiased and avoid the appearance of bias.
Do we have to follow these rules for all decisions? To whom is procedural fairness owed?
There is no absolute right to procedural fairness. Private organizations can make internal decisions, which have no legal effect outside of the private group, without worrying about being subject to judicial review of the procedural fairness of the decision. However, if a society is making a decision that affects members’ property interests, membership status or legal rights, the decision must be procedurally fair.
(For a recent SCC decision to this effect, see Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26.)
How do we handle the discipline or expulsion of members?
Societies must have a valid reason to discipline or expel members. The decision cannot be based on something arbitrary, such as personal dislike, as it must be based on actual misconduct. Courts will intervene in decisions that are made in bad faith or if a society fails to follow its own fairness procedures.
If a member makes a complaint, the decision maker should take the following steps:
Validate the facts and summarize the complaint in a written document.
Determine whether complained of behaviour contravened bylaws, policy or purpose of society.
If it does not, then there is no need to proceed with next steps.
Provide a copy of the complaint to the member who the complaint was about. Include:
Opportunity for the member to tell their side of the story;
Consider any submissions made by the member with an open mind.
Things to note:
If someone other than a general member is the decision maker (such as a Board director or committee), written reasons should be provided.
Decisions must be made within a reasonable amount of time; the society cannot indefinitely delay the decision.
While an appeal process is not required, some societies choose to create one that allows the person to challenge the decision reached. (For a more comprehensive look, see Steve Carey’s post: “Three Member Discipline Don’ts” at http://societiesact.ca/three-member-discipline-donts/ )
The member who the complaint is about can provide oral or written submissions.
To help determine whether additional fairness procedures may be required, consider the following (referred to by courts as the Baker factors):
Nature and importance of the decision
Impact of the decision on the member and whether the bylaws or policies create some kind of legitimate expectation that could support the member
If a decision is important and will have a large impact on the member, it weighs in favour of greater procedural fairness. The society could allow for an oral hearing (rather than only written submissions) and should provide written reasons for decisions. An external fact finder or mediator could be sought to help.
(A) Discipline of a Member (with bylaw provision)
You coach a minor hockey team. A player’s parent, Angry Andy gets in an argument, swearing and ultimately punching someone at the arena. The league bylaws include detailed sections about conduct and they require members to behave respectfully.
Potential Action: Conduct an investigation by speaking to the complainant and other witnesses, to validate that the incident occurred. The Board should then consider whether swearing and punching someone contravenes the bylaws, policies or purpose of the society. Because the action constitutes a breach of the bylaw that requires members to behave respectfully, the Board must give a copy of the complaint to Andy, provide an outline of the proposed discipline and provide an opportunity for Andy to respond within a reasonable timeframe. If Andy makes submissions, the Board must consider them with an open mind. If the Board is the decision-maker, it should provide written reasons for its decision. The decision is final, unless there is an appeals process set out in bylaws.
Q: Can you have Angry Andy suspended from coming to games?
A: Yes. If Andy’s misconduct amounts to a breach of the bylaws, there is a valid reason to discipline them.
(B) Discipline of a Member (without a bylaw provision)
Violet, a member of the community garden, plants English ivy and mint, invasive species that take over Rose’s lily plants. Rose complains, saying she has warned Violet about how invasive the plants are. The Community Garden Society does not have any bylaws or rules about the types of plants that are allowed in the community garden.
Q: Can the society discipline Violet?
A: Violet’s actions do not contravene any policy or purpose of the society. The Board must find another way of solving the problem, such as developing a set of rules and sharing them with members. Once that has been done, Rose could be disciplined.
(C) Non-Disciplinary Measures
Bratty Bart has a difficult personality and does not participate in the social events of the housing cooperative. Bart does not get along with Friendly Frank or Happy Holly, who also members of the cooperative.
Q: Can Frank and Holly kick Bart out of the housing cooperative?
A: No, personal dislike is not a valid reason to discipline a member. A court would likely impose more strict procedural fairness requirements in this case, as cooperative members have a property interest at stake. Frank and Holly cannot discipline Bart.
(D) Preventing Vote-Stacking
Controversial Connie wants to pass a contentious measure at her club’s next meeting. She wants to bring nine friends to the meeting and make them members, so that they can vote in favour of her measure and have it passed.
Q: Can the current members do anything to stop Connie?
A: First, have a look at the membership provisions of the bylaws. Do they allow new members to vote? Some bylaws require that someone be a person be a member for 30 days before they can vote at an AGM. Also, most bylaws state that the Board must approve new members.
(E) Religious Organizations and Expulsion of Members
A religious organization chose to close its church in a small town. There are no other nearby churches that provide the parishioners the opportunity to exercise their faith.
Q: Can the parishioners successfully challenge this decision in court?
A: Unlikely. In Ontario, the court dismissed parishioners’ application for judicial review of a decision to close a church, as the court found the decision was internal and did not affect anyone’s legal rights, property or privileges.
While courts are reluctant to interfere with the internal decisions of religious organizations, they are more likely to interfere in decisions to expel a member of a religious organization. British Columbia courts have stated that exclusion from a religious organization is more significant than exclusion from a social club. Religious organizations should take extreme care to adhere to a heightened standard of procedural fairness when seeking to expel a member.
Note that expulsion of current members attracts more fairness requirements. Disputes relating to member expulsion go before the BC Supreme Court, not the Civil Resolution Tribunal. Societies may choose to have strict rules to address the challenges surrounding the expulsion of members. For example, a book club society could create a bylaw that automatically disqualifies members that fail to read every book discussed. A society may also require members to automatically reapply every year, rather than apply for renewal.
(F) Denial of Membership
Competitive Conroy applies to be a member of a golf club. He meets all of the club’s criteria for admission, but is rejected for membership because the other members do not like him.
Q: Can he challenge this decision?
A: In theory, yes, because the Civil Resolution Tribunal may be willing to consider this issue. However, it is unclear. Courts have generally been unwilling to regulate personal relations of a society. There is no legal right to membership, and the society does not owe Conroy written reasons for their decision.