Disciplining members is frequently done incorrectly. It is often arbitrary, quick, and without a fair process. This leaves the action, however valid, vulnerable to challenge. This post clarifies three “don’ts” of member discipline and expulsion.
Most member discipline matters occur in large membership, widely held societies, typically with some form of volunteer interaction. Sports societies and religious organizations are two places where tensions run particularly high. I have compiled the below list from my experience in practice, both defending claims and bringing such claims against societies.
1. You can’t terminate a member by not accepting their annual dues.
Some societies believe they can terminate a membership by not accepting an annual due or membership fee payment from someone they consider unwanted. This is not the case! I can’t stress it enough, you cannot admit someone to membership then decide, on an administrative basis, the society will simply not accept their annual due or membership fee payment to force them out of membership status.
Yet this happens! And often enough there is a recent reported decision on it: Basra v Shri Guru Ravidass Sabha (Vancouver), 2017 BCSC 1696. I recently posted on this decision, but I mention it again as it’s recommended reading.
This is different from a member choosing not to pay their annual dues, which may put them not in good standing and lead to their membership being terminated (typically set out in the bylaws). But the intentional or negligent decision to not accept a payment received is an irregularity in the fair and transparent activities of the society and will be set aside.
Note that a member who has had previous, legitimate, and fair disciplinary action taken can be expelled provided it is done in compliance with the Act. This was recently done at the time of a pending annual membership renewal in Roberts v. Vernon Pickleball Association, 2018 BCSC 1834. I note that Roberts did not explicitly consider Basra, nor do I know if it was argued. The case also did not address in any detail whether the expelled member, whose membership renewal was placed into pending status and had numerous justified prior disciplinary actions against them, was given a final chance to respond. Based on the facts both in the case and as reported by CBC, it looks like this irregularity was remedied in the society’s favor, though not explicitly as it was brought as an oppression proceeding. This is distinguishable from Basra which was based on a prior failure to take disciplinary action — that disciplinary action (not taken within a reasonable time) cannot be dredged up to be used in future [Added October 25, 2018].
2. You can’t pass a bylaw to automatically terminate or expel anyone who brings or contemplates a court proceeding against you.
Societies lawyers and insurers everywhere would rejoice if this were possible. I know several who would high five. Any member discipline requires notice and an ability to make submissions (s.70, Societies Act). A suspension or expulsion cannot be “automatic”. This is non-compliant with the Societies Act and likely would be found to be oppressive.
You may make operational decisions suspending member privileges, subject to the bylaws. I take the position that privileges of membership, above the right to receive notice of meetings and voting, may be revoked or suspended, subject to a fair hearing at a later reasonable date (determined by the importance of the decision to the member). This is often the case in sports societies, where a play suspension is issued against a problematic player (or parent). Consider as well a squash club that pulls the ability to book a court from a member with a record of bad behaviour; the member may still attend meetings and vote but does not have the added privilege of court booking. Consider a member that falls within the disciplinary or harassment policy — he or she can still vote and attend meetings, but he may be prohibited from participation in certain activities or from engaging with staff or volunteers. This all depends on the bylaws and the structure of the society, of course.
3. If you are to discipline or expel a member, you must be fair.
I have written so many member-side letters explaining fairness to boards, and given lectures on the topic. Too often, in a society with a dispute, those in charge have the best intentions but do not respect the due process mandated by the Societies Act. Always take a calm, rational, and transparent approach to discipline or expulsion — without it, your society’s decision is vulnerable to challenge.
The Societies Act sets out the basic procedural fairness rules applicable to member discipline or expulsion (in s.70):
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.
At a minimum, the society:
1) must have a valid reason for disciplining the member. Discipline based on a dislike of someone’s personality, desire or lack of desire to be involved in the society, or reasons other than actual misconduct or misfeasance of some sort is arbitrary and will not stand.
2) should undertake a fact finding function and consideration of remedies. It is not enough to receive a complaint and act on it. There must be some kind of active consideration of the complaint, such as speaking to the complainant and validating that the incident occurred. It is also advisable to prepare a memo summarizing the complaint, take statements from other witnesses, etc. Some organizations use a judicial committee to investigate complaints to streamline this function. At this point, an assessment of the complaint and whether it is behaviour actually contravening a bylaw, purpose, or policy of the society should be undertaken. If it does not or it has nothing to do with membership (“Joe will only volunteer for events he enjoys” or “Bob talks too much at the AGM”) it is advisable to terminate the discipline process at this point and take action through compliance or another route.
3) must give a copy of the complaint to the member to be disciplined; must provide an outline of the discipline proposed; and must provide a chance to make submissions. This may or may not include an in-person hearing. It could be as simple as a written response. A reasonable time must be given to make submissions.
4) must actually consider the submissions. It cannot make its decision with a closed mind. If the decision is made by someone other than the membership (the Board, a judicial committee, etc), written reasons should be provided.
5) must make an actual decision, rather than delaying a decision indefinitely.
6) there is no requirement for an appeal, but some organizations have an appeal process, either to the board, membership, or arbitration.