The Supreme Court of British Columbia recently took a local church to task over its ongoing disputes and failure to comply with its own bylaws.
On April 18, 2007, Justice Smith delivered a somewhat gentle but nonetheless embarrassing rebuke of Church members and their ongoing arguments over compliance with legal requirements governing church process (these laws apply to most incorporated churches are governed by the Society Act of British Columbia). While she stated that her decision “does not reflect poorly on the Church as a faith community”, she roundly criticized the litigation that consumed the Church for a number of years, resulting in “considerable expense to all involved, including the members of the Church whose voluntary contributions fund the defense of this litigation”. While acknowledging reluctance in becoming involved in the Church’s internal affairs, “preferring that disputes over such matters be resolved by the members” of the Church, the judge went on to disparage poorly drafted, confusing and difficult to understand Church bylaws, suggesting that they be redrafted “in a manner that clearly reflects the intention of the Church’s membership and are adopted by the members in a properly constituted general meeting”.
The dispute arose over a confusing “two ballot rule” in the bylaws of the Vancouver church. This required that a “secret” ballot take place to elect elders of the Church for terms of five years, each of whom must receive a two-thirds majority vote to be elected. If less than five elders were elected after the first round of voting, a “double number” of candidates who had received at least one-third of the votes would remain on the ballot for the second round. However, what actually occurred was that the vote took place, as would be considered normal in most churches, in one large room with no private polling booths. Members deposited their ballots in a ballot box after marking them. Some members apparently found this lack of privacy intimidating. The first round of voting resulted in none of the candidates achieving the two-thirds vote required to be elected as an elder. The pastor, who chaired the meeting, simply announced the names of the five candidates who had received more than one-third of the votes, placed those names on the next ballot (without considering what “double number” meant) and subsequently announced that all five candidates had been elected to the five vacant positions.
A disgruntled member of the Church objected to the process and outcome of the election. He asked for a new election and also filed a complaint with the denomination. Neither agreed to overturn the election results. Ultimately, over a year later, the dissatisfied Church member commenced legal proceedings, which were the subject of a court hearing on April 3, 2007.
The Court found that the election had not followed the internal rules of the Church, and further determined that the “secret” ballot process was flawed. To be “secret” requires that a private place must be provided for voters to mark and cast their ballots. The judge decided that the only fair result was to nullify the election of the elders and ordered a new election within 45 days, to be conducted by a proper secret ballot. While not every irregularity in a church meeting would end up in an overturned result, section 85 of the Society Act allows a court to “make orders to rectify the consequences in law of the irregularity and… make ancillary or consequential directions it considers necessary”.
Justice Smith concluded her reasons for judgment by effectively warning all incorporated churches that they must conduct their affairs in accordance with the legal requirements, constitution and bylaws that are binding upon them. She challenged all churches by saying that “the ongoing challenge for the Church will be to maintain the flexibility and good will of its faith community’s consensus-based decision-making, while at the same time ensuring that the procedural rules and formalities of its society are followed”.
All churches can learn valuable lessons from this particular Church fight. Draft clearly worded and understandable bylaws, and follow them. Safeguard the process of “secret” ballots. And, perhaps most importantly, consider a dispute resolution process which keeps Church fights out of the public courts.
This article was written by Robert G. Kuhn, a lawyer who practices in charity and not-for-profit law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.
