2009 BCSC 59 Lutz v. Faith Lutheran Church of Kelowna

Before: The Honourable Mr. Justice Meiklem

Reasons for Judgment

Counsel for the Petitioners	C.B. Williams D. Shea
Counsel for the Respondent	S.A. Wilson U.E. Florko
Date and Place of Trial/Hearing:	August 21, 2008
	Kelowna, B.C.

The Parties and the Nature of the Application

[1] The petitioners and three other people were expelled from membership in the respondent in September 2007. The petitioners apply for a declaration that there has been an omission, defect, error or irregularity in the conduct of the affairs of the respondent, by which there was default in compliance with the respondent’s bylaws in connection with the expulsion. They apply for an order quashing the revocation of their membership and restoring them as members of the respondent.

[2] The respondent is a church congregation that is part of the Evangelical Lutheran Church in Canada (“ELCIC”). It is also registered as a society under the Society Act R.S.B.C. 1996 c. 433 (the “Act”). The petitioners’ application invokes s. 85 of the Act, as well as the relevant provisions of the respondent’s Bylaws and the principles of natural justice that apply to voluntary associations.

[3] Section 85 of the Act reads as follows:

85 (1) Despite anything in this Act, if an omission, defect, error or irregularity occurs in the conduct of the affairs of a society by which

(a) a breach of this Act occurs,

(b) there is default in compliance with the constitution or bylaws of the society, or

(c) proceedings at, or in connection with, a general meeting, a meeting of the directors of the society or an assembly purporting to be such a meeting are rendered ineffective, the court may

(d) either of its own motion or on the application of an interested person, make an order

(i) to rectify or cause to be rectified or to negate 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

(e) give the ancillary or consequential directions it considers necessary.

(2) The court must, before making an order, consider the effect of it on the society and its directors, officers, members and creditors.

(3) An order made under subsection (1) does not prejudice the rights of a third party who has acquired those rights for valuable consideration without notice of the omission, defect, error or irregularity cured by the order.

[4] Part II of the respondent’s Bylaws deals with membership. Sections 7 to 10 of that Part deal with discipline and exclusion, and read as follows:

Section 7. A member who advocates doctrines which are contrary to the Holy Scriptures and the Confessions of the Church or who is guilty of conduct that is grossly unbecoming a member of the body of Christ shall be subject to discipline.

Section 8. Discipline in the congregation shall be exercised in accordance with Matthew 18:15-18.

Section 9. Discipline shall be administered by the Congregational Council. A person who is requested to appear before the Congregational Council shall be advised in writing no less than ten days prior to the hearing. The written notice shall include the time and place of the hearing and shall specify the exact reason for the hearing. If a person fails to appear at the time and place without valid excuse, the council may proceed with the hearing and may reach its conclusion in the members's [sic] absence. Should the person be found guilty by a two-thirds vote of the members of the council, the council shall impose one the following:

a. Censure before the Congregational Council or the congregation,

b. Suspension from membership until evidence is given of sufficient repentance and amendment,

c. Exclusion from membership and denial of the Sacraments.

In the events of the imposition of (b) or (c) above, the action of the council shall be in writing.

Section 10. There shall be the right of appeal to the congregation. Right of further appeal from a decision of the congregation shall be as provided in the constitution and bylaws of the synod.

[5] The text of Mathew 18:15-18, which is incorporated by reference into the Bylaws of the respondent, is, according to the uncontradicted affidavit of an ordained minister of another Kelowna area Lutheran church that is also a member of the Evangelical Lutheran Church of Canada, as follows:

15. If your brother sins against you, go and show him his fault, just between the two of you. If he listens to you, you have won your brother over.

16. But if he will not listen, take one or two others along, so that every matter may be established by the testimony of two or three witnesses.

17. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, treat him as you would a pagan or a tax collector.

18. I tell you the truth, whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven.

Events Leading up to the Exclusion of the Petitioners

[6] The factual allegations are set out in the affidavits of the four petitioners and other members of the church supporting them, and the respondent’s Pastor, Anita Desjardins, is the primary affiant setting out the factual allegations (and, inappropriately, some opinion and argument) on behalf of the respondent. There is some conflict in the evidence, but much of that conflict is attributable to differences in perspective, or relates to relatively minor matters, and most of the important facts are not difficult to discern.

[7] One of the more difficult fact-finding tasks is determining exactly what the Council did or did not do. Pastor Desjardins is an ex officio member of the Congregational Council of the church, so I will assume that when she used the pronouns “we” and “us” in certain paragraphs of her affidavit she intended to refer to herself and that Council. However, it is very obvious on the whole of the evidence, including her own affidavit, that Pastor Desjardins played a major role as an individual protagonist in the events that I will summarize. She was, as asserted by the petitioners, their accuser, and it is also fair to characterize her as the principal moving force in the prosecution of the discipline proceedings which are the subject of this petition.

[8] Prior to the expulsion of the petitioners, there were about 110 members in the respondent’s congregation. The bylaws provide for a Congregational Council of not less than 12 and not more than 24 members elected semi annually for terms of 3 years, with approximately one-third of the terms expiring annually. At the outset of the events dealt with here there were 11 elected Council members, but 2 resigned in May 2007.

[9] The petitioner Campbell joined the congregation upon moving to Kelowna in 1987. The petitioner Broberg joined the congregation upon moving to Kelowna in 1988 and was first elected to the Council in 1989. He served on the Council for 11 of the past 19 years, and was chair or vice chair of the Council for 8 of those years. His last term as Chair ended in May 2007. His grandparents were charter members of the respondent. The petitioner Linda Lutz was a member since moving to Kelowna in 1990, and her husband since 2007, although he has attended the church since 2001. Mrs. Lutz was elected as a member of Council in November 2006. She resigned from Council on May 22, 2007, and resigned as a member on September 10, 2007.

[10] In early 2007, some members of the respondent, including the petitioners, became concerned about the prospect of the issue of blessing same-sex unions coming for a vote before the National Convention of the Evangelical Lutheran Church in Canada in July 2007. The respondent would normally be represented at that convention by Pastor Desjardins, who had become the respondent’s Pastor in November 2006. Some members were concerned that Pastor Desjardins would vote in favour of blessing same sex unions. At the February 18, 2007 Annual Congregational Meeting of the respondent, a resolution was passed which stated that “when there are motions brought forward for vote at the national convention, the congregation be made aware of the motions so that the delegate knows how the congregation feels and votes according to the congregation’s wishes”. This motion was moved by one of the seven members subsequently expelled, (not one of the petitioners), and seconded by a member of the Council, Mr. R. Heiligstzer (who resigned from Council in early May 2007).

[11] Pastor Desjardins makes it clear in her affidavit that she did not interpret the congregation’s resolution as requiring a vote or any other formal process in relation to making the convention delegate aware of the congregation’s wishes. She says that she was aware, from two days of discussion at a church conference for the four Kelowna area Lutheran churches that she had organized immediately preceding the February 18^th meeting, that 85% of the church was opposed to blessing same sex unions. She was “prepared to take these considerations into mind while voting at the National Convention”.

[12] Clearly Pastor Desjardins also did not interpret the vague resolution as requiring the delegate to vote in accordance with the wishes of the congregation, although this is apparently what the congregation intended. Mr. Lutz deposes that it was generally understood that a special congregational meeting would be convened to discuss the motions proposed at the National Convention. Pastor Desjardins says she sought direction from the Bishop and was informed that “members trust their delegates to take into consideration the views of the Congregation, their conscience and the guidance from the Holy Spirit in making their decisions and placing their votes”.

[13] By April 2007 some members were concerned that the February 18^th resolution was not going to be implemented because a meeting on the subject had not been convened by the Council. One of the later-expelled members, Mr. Ted Schoepp said that he contacted the Chair of the Council and asked her if the Council was going to call a special congregational meeting, as called for by the February resolution, or whether signatures requisitioning the meeting were necessary. Mr. Schoepp deposes that the Chair’s response was that the Council was not going to convene such a meeting and he was told to collect signatures on a petition in order to have a Special Congregational Meeting. Mrs. Magel, the Council Chairperson, disputes that this communication occurred, that her use of the phrase “go for it” when speaking to Mr. Schoepp related to something else, but this evidentiary conflict is not crucial. The Council clearly had no intention of calling a congregational meeting to follow up on the February 18, 2007 congregational resolution, and the marshalling of signatures to requisition a Special Congregational Meeting is specifically provided for in Section 2 of Part VI of the respondent’s bylaws, which states:

Special congregational meetings may be called by the Congregational Council and shall be called at the written request of one-tenth of the voting members. The call for each special meeting shall specify the purpose for which it is to be held, and no other business shall be transacted.

[14] Mr. Schoepp says that he was not actively involved in the collection of signatures, but the petitioners Mr. Lutz and Mr. Campbell acknowledge that they certainly were, and they were the first two signatories on a requisition for a Special Congregational Meeting.

[15] The bylaws would have been complied with if only 11 members (10% of the congregation) had requisitioned the special meeting, but a requisition bearing the signatures of 50 members was delivered by Mr. Lutz and Mrs. Schoepp to those in attendance at a Council meeting on May 10, 2007. (Pastor Desjardins was present, and the Council Chair was absent.)

[16] This requisition stated unequivocally the intention to pursue a resolution binding the delegate to the National Convention to “vote and vigorously promote and support all motions &/or resolutions as indicated by the majority vote of the congregational members present and voting at the Special Congregational Meeting”.

[17] Pastor Desjardins says in her affidavit that the manner in which the signatures were gathered caused division and strife in the church and demonstrated a lack of respect for the church and church leadership. She also deposes that she was unaware of the circulation of the requisition until it was delivered to Council on May 10, 2007. Her affidavit does not mention her immediate and strong reaction to the requisition during the May 13^th church service, but her reaction is prominent in the affidavits of several other deponents.

[18] In respect of the May 13, 2007 church service, Mr. Lutz says; “The Pastor did not do a regular service but instead got up and began reprimanding those members who prepared the Call for Special Congregational Meeting. I stood up and pointed out it was just a call for Special Congregational Meeting and the personal attacks had to stop.”

[19] Mrs. Lutz describes a chastizing by the Pastor and a further scolding from a member of Mutual Ministry (a church committee) and a Council member from prepared letters.

[20] Mr. Campbell describes the May 13^th event as follows:

16. At the May 13, 2007, Mother's Day service Pastor Anita and several council members proceeded to the microphone. Pastor Anita then proceeded to make several negative remarks about some troublemakers who had prepared and presented a petition to the church council. Several of the council members proceeded to make similarly negative comments from prepared statements. Some people in attendance began to respond to those comments and Pastor Anita would harshly rebuke any she did not like. Two parishioners Wallace and Isabell MacPherson asked Pastor Anita to get on with the service and when she did not respond to that comment, they left. I later learned they requested a transfer to another Lutheran Church.

17. Once the service was completed some members reprimanded the Pastor for her behaviour. I did not do so and instead gave her my usual hug and said "May God bless you".

18. In the period of time following the May 13, 2007 service, I became aware that council members were working amicably and co-operatively with those people who were involved in preparing the announcement for the Special Congregational Meeting and the language that was to be used in the ballot at that meeting. I was heartened to see that and thought the shameful exposition which occurred at the May 13, 2007 service would become history.

[21] Mr. Schoepp gives this version of the May 13^th service:

10. I attended the Mother's Day Service on May 13, 2007. My wife Dixie, who was also a member of the Respondent, was to give the Mother's Day talk to the children and had prepared to do so. To our surprise there were no children at the Mother's Day service. I found out later that Pastor Anita had contacted the parents of the children and asked them not to bring their children to the service.

11. What followed, instead of the expected service, was the ugliest thing I have ever seen at a worship service. Pastor Anita had called on people in the congregation to read out letters which personally attacked fellow members of the Respondent who had been involved in, or were thought to be involved in, the collection of signatures for the holding of a Special Congregational Meeting. There is no doubt in my mind that Pastor Anita had a strong hand in writing the letters that were read by the members.

[22] Mr. Fenson, a member since 1994, and a Council member for six of those years, including time as Chair, describes the May 13, 2007 service as follows:

2. I was present at the Mother's Day service on May 13, 2007. The Pastor ("Pastor Anita") and six members came in late. Instead of a regular service, the Pastor read from a prepared statement. She said words to the effect that we were a rotten congregation and she was ashamed of us for sneaking around and having members sign a secret petition. Then Brenda Kachinsky, a mutual ministries member, and Shelley Zinger, the council vice chair, got up and read prepared statements berating the congregation for its actions. I got up and said I didn't appreciate this. Others got up as well and asked for a service, but were ignored. Pastor Anita said if I didn't like it I could talk to the Bishop. I was so disgusted I left. I came back when the regular service started.

3. After the service was over I confronted Pastor Anita and told her that if she wanted to fight, the sanctuary was not the place for it and to call a meeting. She walked away from me.

[23] Pastor Desjardins deposes that as a result of the strife in the church, she took a medical leave on May 17, 2007 and, together with some vacation time, did not return until August 1, 2007. She says that “During my time out of the Church I read a great deal of literature on the issue of conflict within the Church to try to determine what the best way of dealing with the conflict was”.

[24] The requested special congregational meeting was scheduled and held on June 10, 2007, after eight members of Council met with Mr. Lutz and two others on May 24^th to set and discuss the agenda . There were 67 voting members in attendance at the special congregational meeting and the secret ballot vote was 56 against the blessing of same sex unions, 5 in favour, 5 undecided and 1 spoiled ballot. In Pastor Desjardins’ continuing absence on stress leave, Mr. Broberg was elected as the delegate to the National Convention in July. He subsequently attended that Convention and voted with the majority against allowing member churches of the Evangelical Lutheran Churches in Canada to bless same sex unions.

[25] Pastor Desjardins says that when she returned to the church in August it was clear to her from discussions with staff, church members and Council members that there was “a lot of remaining tension among the members and Church leaders”. This is an example of the perspectives of the participants differing - others thought the matter was behind them.

[26] The next events of significance are described from Mr. Broberg’s perspective in his affidavit #1, at paragraphs 21 to 24:

21. Pastor Anita returned from sick leave on August 5, 2007. I attended the service on August 12, 2007. During the service, Pastor Anita stated that there were troublemakers in the Congregation that would soon be dealt with according to Matthew 18:15-18.

22. Pastor Anita's remarks caused this incredible heaviness about the Church. I made an appointment with Kim, the Church secretary, for a meeting with Pastor Anita for 1:00 p.m. on Thursday August 23, 2007. Pastor Anita had mentioned Matthew 18:15-18, which prescribes a one on one meeting when someone is upset with another. To me, this would be our first meeting. I felt her comments were inappropriate and were resulting in a negative feeling in the Church. She called me and cancelled the meeting. She advised me that her week had gone to "crap" and she would call to rebook it. She never did.

23. On August 26, 2007, I attended the regular Church service. I was handed a letter asking me to attend a meeting on September 6, 2007, dated August 23, 2007.

24. At a later date, I asked her why she had not followed Matthews 18:15-18 and she told me "I am Pastor, I do not need to follow that." I was deeply shocked and offended that she felt she was above the Respondent's rules and the Bible's rules.

[27] The August 23, 2007 letter received by Mr. Broberg was in a form similar to the letters of the same date received by the other petitioners and three other people, and signed by Pastor Desjardins and the Chairperson of Council. The only differences in the text of the letters occurred in the modification of the first sentence to distinguish those of the recipients who actually delivered the petition to the Council, and in the time of day that the recipients were summonsed to attend the September 6^th meetings; the meetings were set for the different individuals at one-hour intervals. One letter was addressed jointly to Mr. and Mrs. Lutz. The operative text common to the first paragraph of these letters was as follows:

It is this Council’s intention to discuss with you your involvement in this petition. Furthermore, this Council would like the opportunity to share with you the Impact on our Ministries in relation to the manner in which this petition was organized. Therefore, we would like to meet with you on Thursday, September 6^th at [4:00-7:00 pm] in the Board Room at Faith Lutheran Church. Pastor Keith Peterson of the B.C. Synod will be in attendance to mediate this meeting.

[emphasis in original]

[28] Thereafter the letters set out the text of Part VII, Section 7 of the Bylaws of the respondent, setting out the mandate of Council “to promote congregational unity and good will, fostering mutual understanding in times of conflict and exercising discipline when necessary, under the provisions of this constitution”, and then the letters recited the provisions of Sections 8, 9 and 10 of Part II of the Bylaws which I quote in paragraph 4 above. It is worth noting that the letters contained no reference to Section 7 of Part II of the Bylaws which actually sets out the only two grounds for initiating discipline mentioned in the Constitution and Bylaws, nor did they refer to either of these grounds, namely: the advocacy of doctrines contrary to the Holy Scriptures and the Confessions of the Church, or “conduct that is grossly unbecoming a member of the body of Christ….”

[29] It is also significant to note that, notwithstanding the passing mention of discipline in these August 23 letters, Pastor Desjardins, in paragraph 26 of her affidavit, says:

The purpose of this letter, and the scheduled meeting, was to meet with the Petitioners and determine whether it was possible to resolve the differences and eliminate the conflict from within the Church.

The Exclusions

[30] None of the petitioners or the other three recipients of the letters attended the meeting as requested, electing instead to sign a joint letter of reply to the August 23^rd letter from the Pastor and Chair of Council. This letter was dated September 4, 2007 and hand delivered to the meeting at the boardroom of the church by two other members, a Mr. Logan and Mr. Fenson, on September 6, 2007. This meeting was not a meeting of the full Council, but consisted of Pastor Desjardins, the Council Chairperson and two other council members, together with Pastor Keith Peterson of the BC Synod and another Pastor who was a member of the National Council of the ELCIC.

[31] The letter delivered to the meeting by Messrs. Logan and Fenson and signed by the seven members who had received the August 23^rd letter from Pastor Desjardins and Chair of Council included a review of previous events from their perspective, which included the Chairperson of Congregational Council advising Mr. Schoepp to “go for it” and get signatures on a requisition for a special congregational meeting. The authors argued that:

We had no intent to be secretive or divisive. Because of limited time we approached those members whom we thought were like minded. We obtained 50 signatures, considerably more than required. Not all those we talked to signed. We did not coerce any to sign. We believe that all who did sign did so freely and by their conscience.

[32] They went on to recite the results of the overwhelming vote at the special congregational meeting against blessing same sex unions, and attached a copy of the minutes of that meeting.

[33] The letter also dealt with two specific procedural objections to the Council proceeding with a disciplinary hearing. These were set out as follows:

A. No specific charges have been stated in any of these letters. According to our church constitution, in order to legitimize disciplinary action, the letter must include the exact reason for the hearing (Part II, Section 9). The disciplinary letters allege that the petition was circulated but fails (sic) to allege that this action was unconstitutional nor does it specifically allege any constitutional impropriety in obtaining signatures.

B. Also, discipline is to be exercised in accordance with Matthew 18:15-18. In all of our cases, these three steps did not occur and instead we were called directly to step three - call for a meeting, with Council Chair and Pastor, not a hearing, should have been first. If no resolution would come of this meeting, then Council Chair, Council and Pastor with all of us together, with council acting as witness. Only if this meeting fails to resolve the issue between the parties a disciplinary hearing should be held. In once (sic) instance, prior to receiving this letter, Greg Broberg asked to have a meeting with Pastor Anita, one on one, to discuss the situation at church. This meeting was scheduled for Thursday, August 23, 2007 at 1 pm. Pastor Anita cancelled the meeting. She said her week went to pot, and would rebook the meeting. She did not. Subsequently, Greg received his disciplinary letter. There has been no contact since.

[34] The letter concluded with:

We had never had malicious intent against our council, Pastor or congregational members. We merely acted as directed by Chairperson, Scripture and our constitution. Our conscience and belief in the absolute authority of Holy Scripture were our guide.

Therefore we see no reason to attend the disciplinary hearings scheduled for Thursday, September 6, 2007.

May our loving and forgiving God, keep us all working together in peace for His Glory.

[35] In paragraphs 45 to 53 of her affidavit, Pastor Desjardins describes the people present at the September 6 meeting as "the ‘Discipline Committee’", and provides her perspective on the events of that day together with a mixture of argument. I will set out those paragraphs:

45. On September 6, 2007, myself, Shirley [Magel], Reta Krummel, Doug Enns, Pastor Nolan Gingrich and Pastor Keith Peterson (the "Discipline Committee") gathered at the Church to meet with the Petitioners (and other members of the Church that had been scheduled to appear). Council had agreed that this group of individuals would be the ones to meet with the members to discuss the issues. Members of Church Council had arranged to provide refreshments for the meetings to make the environment as comfortable and friendly as possible.

46. None of the Petitioners attended for their arranged times. Instead, Bud Fenson and Bill Logan appeared in the room indicating that they were there to appear on behalf of the Petitioners and the other members who were to meet with Council. They also delivered written submissions on behalf of the Petitioners. There are no provisions permitting attendance by an agent or through written submissions. Rather, the Bylaws state that a party shall attend unless he or she has a reasonable excuse.

47. The Petitioners have failed to provide to Council any excuse as to why they did not attend. Rather than attending to voice their position to Council, the Petitioners elected to send other individuals acting as their "agents" to deliver their letters. This substitution is not authorized by the Bylaws and would not further the goal of the meeting which was to discuss and resolve the Respondent's concerns about the conduct of the Petitioners.

48. In the Petitioner's absence, and as authorized by the Bylaws, Church Council met to discuss the next steps to be taken with respect to their discipline. It was decided that Council would follow the recommendations of the Discipline Committee and issue letters of exclusion. At the Council meeting on September 6, 2007 Church Council passed a motion to support the issuance of letters of exclusion to the Petitioners. A copy of the executed motion is attached hereto as Exhibit G to this my Affidavit. The motion was signed by eight out of the ten Church Council members.

49. Pursuant to the Bylaws of the Church, a 2/3 majority is required for the exclusion of a member. This threshold was exceeded with 4/5 of the Council members approving the disciplinary action.

50. In answer to paragraph 31(1) of the Petition, I say that the appropriate principles of fairness were followed at the September 6, 2007 meeting. The Petitioners were given notice of the meetings, were given the opportunity to speak to us, and reasons were given for the decisions made in their absence.

51. The Notices of the meetings between the Discipline Committee and the Petitioners that were provided to the Petitioners clearly sets out the reason for the scheduling of the meeting. The Notices were provided at least ten (10) days before the meeting.

52. Had the Petitioners attended at the hearing, they would have been given the opportunity to express their thoughts and opinions and to work with the Discipline Committee to resolve the outstanding issues and concerns. However, in a display of disrespect to the Church and the Church leadership, none of the Petitioners attended for their meetings. There are no provisions in our Bylaws that would permit the attendance at the meeting with the Disciplinary Committee through agents or written submissions.

53. Finally, the reasons provided to the Petitioners following the recommendations of Council and the passing of a motion by the Church Council clearly set out the reasons for the disciplinary decisions. Copies of the letters dated September 6, 2007 that were provided to the Petitioners are attached hereto as Exhibit H to this Affidavit.

[36] I will be dealing with several aspects of this passage from Pastor Desjardins’ affidavit in the discussion portion of these reasons. At this point I will simply comment that the only evidence from any other member of the Council present at the meetings on September 6, 2007 is from Chairperson Magel who simply says that she:

… was also involved in the discipline process of the Petitioners including the decisions to request their attendance on September 6 and the disciplinary decisions made in the Petitioners’ absences. I attended the meetings on September 6, 2007 and October 2 and 3, 2007. I have read paragraphs 39 to 64 of the Affidavit of Pastor Desjardins and agree with the comments therein and adopt them as my own (with the exception of the final sentence in paragraph 56(c)).

[37] Mr. Fenson and Mr. Logan state that they were not allowed to speak on behalf of the authors of the letter they delivered and the envelope containing the letter was simply placed in front of Pastor Peterson before they departed. I cannot discern from Pastor Desjardins’ affidavit whether or not the written submission was later read by those she describes as the “Discipline Committee”.

[38] There is no evidence other than that set out in paragraph 33 above as to how an additional four members of the Congregational Council who were not part of the “Discipline Committee” that met on September 6 joined those in that group in signing a form of resolution dated September 6 to issue letters of exclusion to the petitioners and three others.

[39] There were in fact two forms of exclusion letter sent to each individual affected and to the married couples, both dated September 6, 2007. One letter was signed expressly on behalf of the “disciplinary (sic) Committee” by Pastor Nolan Gingrich and Shirley Magel, and speaks of making a recommendation to Church Council, and the other, on Church letterhead, was signed by Mrs. Magel, Chairperson, and Doug Enns, Council Secretary. The latter may have been intended to convey the separate decision of Council, but its text does not actually do so; rather it seems to be written in the voice of the committee, and it speaks of the decision to exclude being that of “this committee, Faith Lutheran Church Council, and Pastor Anita Desjardins, and notes carbon copies going to the Church Council amongst others.

[40] The text of these letters is significant to the issues, so I will set them each out in full. The letter expressly stated to be from the “disciplinary Committee” reads as follows:

September 6, 2007

Letter of Exclusion from Membership,

___[recipient]_____, to this date you have been an adult member of Faith Lutheran Church. But have displayed a conduct which is grossly unbecoming a member of the body of Christ.

Repeatedly, you have been involved in speaking against leadership in your individual church, Faith Lutheran, Kelowna, as well as making repetitive suggestions that call into question the elected leadership of both synodical and national churches. As Martin Luther wrote in the The Book of Concord, "Large Catechism," Tappert, p. 400, regarding the eighth commandment:

The third aspect of this commandment concerns us all. It forbids all sins of the tongue by which we may injure or offend our neighbour. False witness is clearly a work of the tongue. Whatever is done with the tongue against a neighbour, then, is forbidden by God… It applies particularly to the detestable, shameful vice of back-biting or slander by which the' devil rides us.

Your repeated negative and disruptive behaviours in the course of this congregation's life have contributed to the consequence that you must now face. Namely, because you have persisted in suggesting that the leadership of your church, both pastors and bishops, provide unfaithful stewardship of the Gospel, and so you have advocated discord that is contrary to the Holy Scriptures, therefore you have yourself violated both commandment and constitutional bylaws of your church. You have sown seeds of dissention, caused upset in the congregation's life, and contributed to rebellious behaviours against pastor and bishop. Your words of accusation and menacing conduct have been deeply disturbing, and you have failed to curb your appetite for discord in the church.

Therefore, according to the bylaws of Faith Lutheran Church, Part II, section 7, your conduct is deemed "grossly unbecoming of a member of the body of Christ." You are subject to discipline in accord with Matthew 18:15-18. Your repeated, determined efforts to discredit your pastoral leaders and others in authority in the church demonstrate your lack of repentance. As prescribed by Matthew 18:17-18* you will be recommended to Church Council as one to be excluded from membership and denied the Sacraments (as per Part II, section 9) in this congregation, effective at the next sitting of the church council.

“Nolan Gingrich”

“Shirley Magel”

For disciplinary Committee

*"If the member refuses to listen to them, tell it to the church; and if the offender refuses to listen even to the church, let such a one be to you as a Gentile and a tax collector. Truly I tell you, whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven."

[41] The other letter received by the petitioners read as follows:

Faith Lutheran Church

250 Gibbs Road West, Kelowna, V IX 2W3, 765-0671

A Member of Evangelical Lutheran Church in Canada, Pastor: Anita Desjardins

[Recipient] September 6, 2007

[Address]

Dear __________

You were requested to attend a meeting of an appointed committee by Church Council today at 6pm. As you were not present by ____ pm, and according to the Constitution, a meeting was held in your absence in relation to your actions here at Faith Lutheran Church.

Be it noted that your absence at this meeting is being recognized as a display of your lack of respect to the Pastor, the Lay Leadership of this congregation and the B.C. Synod.

Furthermore, it has been noted that you have been named in influencing in a negative way the ministry of Pastor Anita Desjardins and the Church Council; and intimidating the spiritual lives of many fellow members of this church.

Your dissatisfaction with your pastor, or reactions to decisions or actions of the ELCIC, have been expressed publicly and privately, through innuendo, accusations of unfaithfulness, and slanderous comments regarding the integrity of church leadership.

Your scheming actions have contributed to distress, withdrawal of membership from this church, and malaise in the life of the congregation.

Your lack of repentant attitude has been demonstrated in repeated efforts you have made to discredit, embarrass, and humiliate pastoral leadership of Faith Lutheran Church.

Your negative influence has led to the Faith Lutheran Church Council requesting that your actions be addressed by this committee.

It is the decision of this committee, Faith Lutheran Church Council, and Pastor Anita Desjardins, that you be issued a Letter of Exclusion from Membership, and that your financial contributions statement to date will be issued within the next 14 days. Please return all church keys to the 0ffice Administrator, by September 30, 2007.

“Shirley Magel”, Chairperson “Doug Enns”, Council Secretary

cc. Bishop Gerhard Preibisch; Pastor Alfred Maier, Dean, Southern Interior Conference Pastor Nolan Gingrich, Pastor Keith Peterson, Pastor Anita Desjardins, Church Council, Faith Lutheran Church

Attempts at Appealing the Exclusions and Attempts to Ratify

[42] All of the excluded members except Mrs. Lutz signed a notice to Church Council dated September 11, 2007 requesting an appeal to the congregation as provided for in the Church Constitution and Bylaws. Mrs. Lutz reacted with a resignation, but says she did so in a state of shock at her excommunication and only because of being excommunicated. She wishes to retract her resignation and be reinstated as a member.

[43] Mr. Lutz said in his first affidavit that he attended the regular church service on September 11, 2007 and saw several of the excluded members attempt to receive the sacrament but they were passed by. He said that the request for an appeal to the congregation which was signed on that date was delivered to the church secretary on September 13 as they were directed to do by the Council Chairperson Mrs. Magel, and no response to the request for an appeal was ever received.

[44] Pastor Desjardins’ affidavit is organized under headings. The heading “Right of Appeal” precedes paragraph 54 of her affidavit, and in paragraph 54 and 55 she says the following:

54. We received a letter from the excluded members dated September 11, 2007 requesting an appeal to the Congregation of our decision to issue letters of exclusion. A copy of this letter is attached hereto as Exhibit I.

55. We arranged to have a Special Congregational Meeting on October 2, 2007 at which time we would present to the Congregation the reasons that Council decided to issue the letters of exclusion. On the following date, October 3, 2007, a vote was scheduled to have the Congregation vote on whether to support or oppose Church Council’s decision.

[45] From the juxtaposition on these two paragraphs immediately under the heading “Right of Appeal”, it appears that Pastor Desjardins means to convey that the Special Congregational Meeting was intended to be the hearing of the appeal requested by the excluded members. This was not the case, however, because, as she states in paragraph 30 of her affidavit, this Special Congregational Meeting was organized and announced on September 10, 2007. This was three days prior to the delivery of the request for an appeal which was dated September 11, 2007.

[46] Pastor Desjardins wrote a letter dated September 21, 2007 to all members of the respondent advising them of the meetings to be held on October 2 and October 3, 2007. In respect of the meeting on October 2 she described it as a meeting with the Bishop and three other Pastors “to provide an opportunity for the Church Council and Pastor to inform the congregation of the reasoning for issuing letters of exclusion from Membership and the Sacraments according to the Constitution and Pastor’s Letter of Call”. In respect of the meeting on October 3 she described it as a Special Congregational Meeting for a yes or no vote by secret ballot on the following motion: “I support Faith Lutheran Church Council in its decision to issue “Letters of Exclusion” from Membership and the Sacraments according to the Constitution, to [the seven excluded members]. Please place an X beside one: Yes, I support Council's Decision………… No, I do not support Council's decision.” This letter also stated that it enclosed a copy of a letter of exclusion, although the material does not indicate which of the two forms of exclusion letter was enclosed.

[47] Notices of the October 2 and October 3 meetings were included in the Church Bulletin on each of the two Sundays immediately preceding the meeting dates, in other words, on September 23 and September 30, 2007. The purpose of the meetings was described in the notices in the church bulletin in basically the same terms as Pastor Desjardins’ letter dated September 21, which I have quoted in the preceding paragraph, although the proposed question set out in another form of posted notice (attached to the affidavits of Mr. Lutz, Mr. Schoepp and Mr. Fenson advised that the choices would be simply: “Yes, I support Council” and “No, I do not support Council”). Oral announcements of the upcoming meetings were also made on those two Sundays.

[48] On or about September 22, 2007, the petitioners delivered a request signed by the seven excluded members and 24 additional members for a Special Congregational Meeting to be held “as soon as possible and prior to October 2, 2007” to discuss and vote on the exclusions from membership. This request was intended to be an appeal and was not granted. Although Pastor Desjardins refers to it in paragraph 57 of her affidavit as “a second request for appeal by the Petitioners”, she says, (in paragraph 57): “As indicated above, this meeting had been arranged to be held on October 2, 2007 with the Bishop present with a vote taking place on October 3, 2007.” No other comment is made as to why the request for an earlier meeting as an appeal was not responded to.

[49] Pastor Desjardins appends to her affidavit a copy of a 13-page typed document which she describes as her “report” to the congregation for the October 2, 2007 meeting. It is actually more of an impassioned submission as to why it was necessary to rid the church of the destructive conflict caused by the expelled members. It is not clear from her affidavit whether the document was actually provided in its written form to members in advance, as her description of it would imply, or simply constitutes her speaking notes for her oral presentation at the meeting. Having listened to the somewhat imperfect recording in evidence of the October 2 meeting, it appears that Pastor Desjardins, speaking as the last scheduled speaker at that meeting, condensed some portions of that document and expanded upon others. One of the points of expansion was that she understood that she shared with Council the responsibility for discipline, a point which she took from her letter of call as Pastor.

[50] Another point she expanded upon while speaking was her perception that the call for the Special Congregational Meeting, which she labels a petition, was a negative personal attack on herself. She had written that she felt powerless, defensive, deeply hurt, angry, frightened, confused and betrayed. I must say that I am unable to rationalize her perception of the call for a meeting as a negative personal attack with the actual substance of the call for a meeting and even more with the comment in her report that perhaps it was “the misrepresentation that the Pastor was behind this petition” that played a role in why the congregation, including some members of Council, signed it without reporting its existence to herself or the Council.

[51] Pastor Desjardins’ written report to the October 2 meeting summarized her view of the “petition” for the convening of a Special Congregational Meeting to implement the resolution of the February 2007 Annual Congregational Meeting in very strong terms. I quote from page 6-7:

In Summary, this petition was clearly

- A campaign smear against the Blessing Same Gender Unions, and the B.C. Synod

- A display of taking matters of the National Church’s Convention into their own hands

- A display of the lack of faith in God

- A display of lack of trust in the ELCIC Convention process

- An invasion into the privacy of Faith Lutheran Church’s membership

- misrepresentation of authority and leadership (Ted Schoepp was a Lay assistant minister, Bill Logan was Finance Chairperson)

- Coercion

- Slander

- Covert

- Fear mongering, intimidation

- Deliberate, pre-planned, organized, and executed

- Disruptive

- Secretive

Furthermore, this petition was a display of the, destructive power that [the expelled members] have in this congregation. It sends a clear message to the Pastor and Church Council and anyone in a leadership position that these people hold the power to build up or to destroy this congregation and its Pastor and leaders. And that they will do it whenever they want, and with whatever issue they want to use.

[52] It is fair to say that this was a rather extreme and subjective characterization of the “petition” and the motives of the petitioners, who, in fairness, were concerned that the resolution of the February 2007 meeting, vague though it was, was being ignored by the Church Council, and sought a forum for discussion, pursuant to the Constitution and Bylaws. The last sentence in the quoted passage is pure rhetoric that does not suggest how such a message was or could have been gleaned from the circumstances. The contentious issue of blessing same gender unions obviously raised passions on both sides. The petitioners and many others saw the beliefs or interpretations of Scripture of an overwhelming majority being ignored and potentially swept aside or neutralized. It does not necessarily follow that the passion and motivation displayed by the petitioners on this issue would not necessarily also characterize their approach on all the issues on which there might be differences within the congregation.

[53] My point in making these observations is not to review the merits of Pastor Desjardins’ opinions in respect of the call for a Special Congregational Meeting, but to illustrate the emotionally charged nature of her submissions to the congregation at the October 2, 2007 Special Congregational Meeting which she and Council called, not to hear and consider the appeal of the expelled members - none of whom were present - but to explain the decision to expel in the hope that the congregation would be persuaded to ratify the decision on the following night, October 3, 2007, which had been designated as voting night.

[54] Some speakers at the October 2 meeting were concerned about the correctness of the disciplinary process undertaken to that point, and attempted to raise some of the same points that the expelled members had raised in their letter delivered to the ad hoc discipline committee on September 6. The presider (the Bishop) deflected these concerns and repeatedly informed the meeting that the purpose of the meeting was not to judge the actions of the Pastor or Council, whom he stated had followed the proper procedure. It appears that the rationale for the decree about judging the actions of the Pastor or Council was that the Bishop (and the several other Pastors) should not be present at a meeting where the propriety of the actions of Council or the Pastor was on the agenda, since they would be compromised if matters had to be taken higher. I infer that it was this same rationale that in some part caused the expelled members to request a separate appeal hearing, prior to the October 2 and 3 meetings called by counsel.

[55] Unfortunately, the presider’s statement that such matters could be discussed at the October 3 meeting was not prophetic, because Pastor Desjardins announced at that meeting that there would be no further discussion and that the registration and voting would proceed forthwith.

[56] The expelled members were informed by letters dated October 5, 2007 that the majority of the vote supported Council’s “motion to exclude you from membership and to deny you the Sacraments, because of conduct that is grossly unbecoming a member of the body of Christ.” The letters did not disclose the vote, but it was 46 in support of the decision and 32 in opposition.

The Positions of the Parties

[57] The petitioners’ argument may be summarized as making the following points;

1.) The September 6, 2007 meeting was not formally authorized by Council. This argument is based on the uncontradicted evidence of Ruth Peters, a member of Council at the time, that she received no notice of a meeting or a resolution to constitute either a discipline committee or a discipline hearing by Council.

2.) There is no evidence that Council delegated its discipline powers to a committee, and even if they had purported to, such a delegation would have been ultra vires the powers granted in the Constitution and Bylaws.

3.) The petitioners were never provided a hearing before the Congregational Council prior to the imposition of disciplinary exclusion, as required by Section 9 of Part II of the respondent’s Bylaws.

4.) If the events of September 6, 2007 could be construed as a disciplinary hearing under the Bylaws, the process was defective in several ways, including:

a) the hearing occurred before the conditions precedent set out in Mathew 18:15-18, which requires a three step process with the aim of reconciliation, the first step being one-on-one meetings between the aggrieved parties, which had not occurred, although attempted by one of the petitioners who was met with the Pastor’s cancellation;

b) the notice of a hearing was defective in not describing the charges or the “exact reason for the hearing” as required by Section 9 of Part II of the Bylaws, and in not alleging either one of the only two grounds for discipline set out in Section 7, namely advocating doctrines contrary to the Holy Scriptures and the Confessions of the Church, or being guilty of conduct that is grossly unbecoming a member of the body of Christ;

c) the hearing proceeded in the absence of the petitioners as the charged persons even though they had delivered their valid excuses for not attending in written form and by representatives, thus satisfying the terms of Section 9 of Part II of the Bylaws;

d) the participation of Pastor Desjardins, who was the accuser in this case, as part of the disciplinary tribunal, made the accuser the judge and violated the principals of natural justice;

e) the participation of two Pastors representing the BC Synod, one of whom signed a letter of exclusion was irregular and not only violated the Bylaws which make discipline a local matter for the Congregational Council, but tainted the process where an appeal lies to the Synod;

5. The petitioners request for an appeal to the Congregation was ignored or refused, and it is no answer to say that opportunities to attend the Special Congregational Meetings of October 2 and 3, 2007 were given. In the first place, the petitioners deny ever being invited to these meetings, and even if they had been, pursuing the matter as an appeal would have been contrary to the Bylaws, Part VI, Section 2, which provide that the call for a special meeting shall specify the purpose for which it is held and no other business shall be transacted. In this case, the notice of the October 2 meeting described the attendance of the Bishop to assist Council in informing the Congregation the reasoning for issuing letters of exclusion, and made no reference to the right of appeal to the congregation.

[58] The respondent argues that it followed the progressive and escalating discipline process as intended by the incorporation of Mathew 18: 15-18 in the Bylaws. It argues that the first step was Pastor Desjardins’ Mother’s Day address to the congregation advising of the harm that was done, the second step was the scheduling of a meeting with “what has been referred to as a discipline committee”, and “if this were not successful, the last remaining step was for the Congregational Council to make a determination as to the appropriate discipline.” The quoted words are from the respondent’s written submission, which continues: “Both of these processes were scheduled to take place on September 6, 2007.”

[59] The respondent argues that the Council did not improperly delegate the administration of discipline to a committee, but rather the committee’s role was step two in the progressive discipline procedure undertaken. The committee did not make the decision to exclude.

[60] The respondent argues, in response to the petitioners’ argument that they were not afforded a proper hearing, that a hearing is not required by the Bylaws as a pre-condition to the administration of discipline. It argues that the Bylaws merely set out some provisions with respect to hearings “if” a hearing is conducted.

[61] The respondent argues that the petitioners cannot complain of not being afforded a proper hearing when it was their own decision not to attend, and the Bylaws do not permit attendance at a discipline hearing through agents, or provide for written submissions.

[62] As to the adequacy of the notice of the “hearings” of September 6, 2007, the respondent argues that the August 23 letter provided sufficient detail such that anyone would know that the proceedings were disciplinary in nature and that it was their conduct in respect of the petition that was in issue. The written submission which the petitioners and others attempted to make supports a finding that they were aware of the purpose of the hearings.

[63] The respondent asserted in argument that the meeting of October 2, 2007 was arranged to be the appeal that had twice been requested by the petitioners, that notice of that meeting was not required to be delivered directly to the petitioners, but as the meeting was a Special Congregational meeting, all that was required was compliance with one of the alternative forms of notice set out in Part VI, Section 3, namely notice provided at two consecutive Sunday church services, which did occur.

[64] The respondent argued that an appeal was held in accordance with the Bylaws and the petitioners failed to pursue available further rights of appeal to the BC Synod, which makes it inappropriate for them to bring the matter to the courts.

[65] The respondent’s written submission states “the respondent says that the principles of natural justice are only applicable to its proceedings to the extent they are codified in the Bylaws and such principles have been complied with.”

[66] Further, the respondent says that taking into account the nature of the organization at issue, the court should not require a strict application of the rules of natural justice, and in this case the respondent “has complied with the principles of natural justice in the strictest sense applicable in the circumstances. Alternatively, if the respondent has not complied with all the principles of natural justice, the Respondent says that their actions should be judged on a ‘fair play’ and ‘good faith’ basis which the Respondent says was met.”

[67] The respondent argues that if the court finds that there was a failure to comply with the Bylaws, the petitioners should be denied the remedy of reinstatement for three reasons:

1. The effect of such an order on the respondent would be to cause strife for the congregation’s leadership and within the membership;

2. Even if there are deficiencies, they are minor, and the court should honour the will of the majority who voted to exclude the petitioners;

3. Reinstatement “would have a substantial effect on the morale of the Congregation as well on the leader of the Congregation and Pastor Anita Desjardins.”

[quotes paragraph 80 of the respondent’s written argument]

[68] In the case of the petitioner Linda Lutz, the respondent argues that relief should not be granted on the additional basis that she signed a letter of resignation effective on September 10, 2007.

Analysis and Findings

Was there default in compliance with the Bylaws of the respondent?

[69] The petitioners’ allegations of non-compliance are all supported on the evidence and I find the respondent’s arguments on this issue wholly untenable.

[70] The argument that a hearing is not a precondition to administering discipline under the Bylaws could only apply, in my view, to matters in the first two stages of discipline being exercised in accordance with Mathew 18:15-18. While it is correct that applying the progressive steps prescribed by Mathew 18:15-18 might well (and hopefully could) resolve some conduct issues before they get to the stage of a hearing before the Congregational Council, it is impossible to read Sections 7 to 10 of Part II of the Bylaws as providing for exclusion from membership without a hearing before the Council and a two-thirds vote in favour of guilt by the members of Council.

[71] While it is correct that the Bylaws require the Congregational Council to appoint certain committees and provide authority to appoint “such other committees as may from time to time be necessary or advisable”, which could enable the appointment of a discipline committee, it does not follow that the Council can delegate its duties and powers under Part II Section 9 to any such committee, and I agree with the petitioners’ argument that such a delegation would be beyond the powers of the Council. The respondent however does not argue that the discipline powers of the Council were delegated, but rather that the ad hoc discipline committee was the second stage of the progressive discipline being exercised in accordance with Section 8 and Mathew. The difficulty is that that is an ex post facto re-construction of events. There was no information provided to the petitioners of the constitution of a special committee or request to attend a meeting of a committee as a stage of a progressive process. Considering that one of their written reasons for not attending what they had been told was a mediated meeting with Council on September 6, 2007 was the absence of the first two steps of the three-step process, they may well have attended if the existence of the committee and its role as step two of a progressive discipline process had been communicated. That is somewhat speculative of course, since they may well not have construed the public scolding that they received from Pastor Desjardins and others on Mother’s Day 2007 as the first step suggested by Mathew, as does the respondent’s ex post facto argument to the court.

[72] The respondents’ argument that “both processes”, namely the step 2 meetings with the discipline committee and the step 3 hearing before Congregational Council were scheduled for September 6, 2007 is not supported by the evidence. In paragraph 35 above I quote from paragraphs 47 and 48 of Pastor Desjardins’ affidavit which makes it clear that the meeting of Council that took place after the non-attendance of the petitioners and Council met “to discuss the next steps to be taken with respect to their discipline”. She does not refer to it as a meeting that had been prescheduled. Furthermore, it would not make sense to schedule a Section 9 hearing for the same date as the meetings with the discipline committee, which were scheduled over 5 one-hour periods with the individuals subject to discipline, and were scheduled with the goal, according to Pastor Desjardins “to discuss and resolve the Respondent’s concerns about the conduct of the Petitioners”. The petitioners were not invited to two meetings on the same date and to schedule a hearing as step 3 would be to presume the outcome of step 2 of the process.

[73] The respondent’s argument that the discipline committee did not make the decision to exclude is tenuous on the evidence. As can be seen from the quoted letters (at ¶40 and ¶41 above), the “Letter of Exclusion from Membership” was signed on behalf of the “disciplinary Committee” and conveys the judgment of that committee of conduct grossly unbecoming of a member of the body of Christ. The somewhat less imposing untitled letter of the same date signed on behalf of the Council, (which, by the way, erroneously states that the addressees had been requested to attend a meeting of an appointed committee), specifies that “ It is the decision of this committee, Faith Lutheran Church Council, and Pastor Desjardins that you be issued a Letter of Exclusion…”. Pastor Desjardins’ evidence is that “It was decided that Council would follow the recommendations of the Discipline Committee and issue letters of exclusion. At the Council meeting on September 6, 2007 Church Council passed a motion to support the issuance of letters of exclusion to the Petitioners.”

[74] The two letters provide similarly stated reasons for the action, citing mainly negative influences and a lack of support for and discrediting of pastoral leadership and other church leadership. It is noteworthy that both letters refer to “repeated” offences of that character, and neither makes any direct reference to the subject that the petitioners and others were originally requested to attend to discuss, namely their “involvement” in a petition and the manner in which the “petition” was organized. Clearly the stated reasons for exclusion covered matters well beyond the stated reason for the request to attend a meeting.

[75] I agree with the petitioners’ submission that the petitioners were never provided a hearing before the Congregational Council prior to the imposition of disciplinary exclusion, as required by Section 9 of Part II of the respondent’s Bylaws. The meeting of the committee could not be a Section 9 hearing. The Council certainly had the power to appoint a committee, ad hoc or otherwise, to implement step 2 of the 3-step process incorporated in the Bylaws and Mathew 18:15-18, but if that is what they intended to do, they did not execute that step properly in that the members being disciplined were not informed that that was happening. Council could not delegate to that committee any decision-making on the discipline issue. That delegation is not authorized by the Bylaws, Section 9, which sets out a procedural code that prescribes a finding of guilt by a two-thirds vote of the Council.

[76] The subsequent full Council meeting on September 6, if it occurred at all as a physical gathering, was clearly held without notice or invitation to the petitioners, who had been requested to attend the scheduled meetings at hourly intervals earlier in the evening. When the members did not attend the committee meetings, Council treated the non-attendances as adding to the unbecoming disrespectful behaviour of the members, even though the written submissions of the seven members suggest that Council may have played a role in their non-attendance by misinforming them of the nature of the meeting they had been requested to attend, and they had a reasonable objection to attending what they perceived as a discipline hearing before the Council that was procedurally flawed.

[77] There is no evidence that the Council itself considered the proper question, namely whether each of the members were guilty of the conduct described in Section 7 of Part II of the Bylaws, rather than simply voting to adopt the “recommendation” of the committee, which looks very much like a ready-made ultimate decision.

[78] On any view of the proceedings of September 6, 2007, the notice to the petitioners did not come close to adequately describing the extent of the multiple allegations which ultimately formed the basis of the decision to exclude them from membership. That is not merely a technical breach of the respondent’s Bylaws Part II, Section 9, but a breach of one of the very basic principles of natural justice that the Bylaw codifies.

[79] I agree also with the petitioners’ argument that the participation of two pastors from outside the congregation on the discipline committee would render the hearing defective under the Bylaws if it was a hearing. If this committee could, after the fact, be considered one form of step 2 under Mathew, I see no objection to their participation in that step. There is a different issue that arises in connection with whether, as BC Synod members, they were thereby prejudicing their impartiality on a possible appeal from future processes, but that problem could be solved by them recusing themselves from hearing any appeal.

[80] As for the participation of Pastor Desjardins in the attempted hearing process, I agree with the petitioners’ characterization of her as the accuser. Her own version of events does not bring that characterization into doubt. She became the accuser at the May 13, 2007 church service. Her affidavit is silent about that event, although it was sworn after the affidavits from others dealing with that service were filed. I agree that her full participation in the setting up of the meetings and in the decision of Council on September 6, 2007 is a breach of one of the basic principles of natural justice - that the accuser should not be the judge. It is no answer to say that one has to expect and acquiesce in a measure of bias in small voluntary associations, because the issue here, as it turned out, was very much centered on her very strong and persistent personal reaction to the actions of the petitioners, and it would have been a very simple matter for her to absent herself from the decision-making processes.

[81] The suggestion that Pastor Desjardins was entitled or even obligated to participate because one of the terms of her letter of call as Pastor is that she “with the Council, administer discipline”, is not persuasive. She is an ex officio member of Council in any event, which provides both duty and obligation. The Bylaws are not amended by the letter of call, and the Bylaws provide exclusive jurisdiction over discipline to the Congregational Council. Obviously the cooperation of the Pastor in that capacity is necessary to implement a decision of Council imposing a denial of the Sacraments, or censure before the Congregation, which I would infer was the reason for including the term regarding discipline in the letter of call. If fairness dictates absenting oneself from Council’s deliberations in a particular case to provide an unbiased tribunal, the letter of call provides no excuse for not doing so.

[82] Pastor Desjardins’ continued participation in arranging the Special Congregational meetings argued to constitute an appeal is also very problematic. The impassioned content of her “report” to the congregation for the October 2 meeting belies any notion that she had an open mind at any point in the proceedings on the issue of the guilt of the accused.

[83] I will not dwell in any length on my reasons for agreeing with the petitioners that the Special Congregational Meetings of October 2 and 3, 2007 and the vote on the latter date did not constitute an appeal. It should be abundantly clear from my detailed recitation of the facts that the petitioners’ submissions are correct and that there was no appeal to the congregation granted the petitioners. Pastor Desjardins and the Council called these meetings to inform the congregation of the reasoning for issuing the letters of exclusion, and to try to obtain a vote in favour of supporting Council. Constitutionally, no other business, such as an appeal on the merits of the accusations, could have been conducted. The issue was not whether or not the petitioners and others were guilty of conduct grossly unbecoming of a member of the body of Christ, as it would have been on an appeal, but whether or not to “support council” in excluding them as members. The Bishop foreclosed discussion on “judging” the actions of the Pastor or Council which obviously was crucial even to the limited question the congregation was going to vote on the next night, and he stated that he supported the propriety of the processes undertaken by Council. Notwithstanding her participation in the decision of Council, Pastor Desjardins provided an emotionally charged presentation in favour of supporting Council and emphasizing the hurt and betrayal she felt. Even in that context, the 46-32 vote was not overwhelmingly in favour of supporting Council.

[84] In conclusion, I find multiple non-compliances with the Bylaws of the respondent society in the particular ways set out above.

What Principles of Natural Justice are Applicable and were any Breached?

[85] The principles of natural justice that are applicable in the case of expulsion from a voluntary association were discussed by the Supreme Court of Canada in the case of Lakeside Colony of Hutterian Brethren v. Hofer, [1993] 1 W.W.R. 113. The content of the applicable principles is flexible and depends on the circumstances in which the question arises. The most basic requirements are notice of the cause alleged for expulsion, an opportunity to respond to the allegations, and an unbiased tribunal deciding the question.

[86] In Barrie v. Royal Colwood Golf Club 2001 BCSC 1181, Edwards J. said, at ¶59:

The requirements of procedural fairness determined by courts to apply to the disciplinary proceedings of voluntary organizations depend on the nature of the organization and the seriousness of the consequences of the discipline.

[87] The respondent argues that the only principles of natural justice applicable here are those codified in the Bylaws. I disagree. The Bylaws are quite specific in codifying the notice and opportunity requirements, and I think compliance with them would satisfy the requirements of natural justice, (and non-compliance would constitute a breach of natural justice as well as a breach of the Bylaws) but the Bylaws say nothing on the subject of bias. It is a basic principle of natural justice that to avoid bias, “no one should be judge in their own cause”.

[88] As foreshadowed above, on the evidence in this case I can only come to the conclusion that the discipline of the petitioners and the three other members was, from its inception in May 2007 and its resumption upon her return from stress leave in August 2007, primarily the Pastor’s cause. One of the main themes of her Report to the Congregation in October was that she saw herself and her pastoral authority as under attack. In my view, her participation as a judge did offend the rule against bias on the standard that I would apply in this case, which is, at a minimum, the one described in the following comments of Edwards J. in ¶70 of the Barrie case:

Another reason the courts may be reluctant to order a social club to reconsider a member discipline case is that these decisions will inevitably be made by the member’s fellow club members, who are not likely indifferent to the outcome or uninfluenced by knowledge of the case. By the very nature of this sort of domestic tribunal there can be no unbiased decision makers. The standard of procedural fairness in respect of potential bias or the apprehension of bias can therefore be no higher than the requirement that the decision makers approach the proceedings in good faith with open minds.

[89] I would only add in this case, where we are dealing with membership in a church congregation rather than a social club, the words “and with due consideration to the seriousness of exclusion to the member being disciplined.” In the case of this church society, the issue for the Congregational Council and, if there had been an appeal, for the congregation as a whole, was whether a cited member’s conduct was “grossly unbecoming a member of the body of Christ.” One petitioner describes the underlying issue of the church’s position on same sex unions which drove the conduct of the petitioners as “serious business it involves our souls”. Several deponents described the exclusion as excommunication. I infer that exclusion from membership in a church congregation is more significant than exclusion from a social club where the collegiality of the members is paramount. The church society does not have power over a member’s livelihood in the way that a union or professional association might, but it provides a sanctuary for worship and fosters the spiritual well-being of its members, including the administering of the Sacraments. A society functioning as a church congregation is more than a social club. I infer that to be judged guilty of conduct grossly unbecoming a member of the body of Christ is much more significant to a Christian churchgoer than to be judged insufficiently collegial or in breach of club rules by a golf club or other social club formed to promote common social interests.

[90] Obviously other members of the Congregational Council also had knowledge of the case and were not indifferent to the outcome, but they are entitled, in the absence of evidence to the contrary, to be presumed to have open minds and to be able put their bias aside on the issue of the petitioners’ guilt. An accuser, by definition, cannot be presumed to have an open mind, but rather is asserting the guilt of the accused, which clearly raises an apprehension of bias if the accuser then sits in judgment of the issue. In the circumstances of this case, there can be no doubt of the apprehension of bias on the part of the Pastor which exceeds the applicable standard of procedural fairness.

The Remedy

[91] Section 85 of the Act (set out in the second paragraph of these reasons) provides the court with a broad range of remedies, and provides that I must consider the effect of any order I make on the respondent society, its directors, officers, members and creditors. Although Pastor Desjardins is an employee, and not enumerated as one of those to be considered, in my view a church pastor is a singularly important employee and what affects the pastor is bound to affect the society and its members indirectly. There is no question that she would be vexed by reinstatement of the petitioners, and I will take that into consideration.

[92] The respondent relies principally on the case authority of Bhatti v. Nagra, [1993] B.C.J. No.1287 (BCSC) in support of the argument that notwithstanding non-compliance with the Bylaws, the court should make an order validating the exclusion of the petitioners because it accords with the will of the majority. The Bhatti case involved assumed, but not decided, irregularities in the entering of applicants for membership in the society’s register of members and notifying them of that before the board had actually approved the memberships. The court held that validating the results of a vote taken at a meeting where these members had voted one month prematurely (they voted two months after becoming members in good standing rather than three as required) would accord with the will of an overwhelming majority of the legitimate members of the society.

[93] The Bhatti case is too different on its facts to be very persuasive. Firstly, the breach in that case was a relatively technical one, whereas I consider the several breaches in this case to be substantial. Second, the majority vote in the present case was 46 to 32, which I would not call overwhelming. The votes referred to in the Bhatti case as overwhelming were in the range of 73 to 0, 75 to 2 and 76 to 1. Obviously the will of that size of a majority is more compelling, particularly in a situation where setting aside the result of the flawed vote would merely delay the inevitable wish of that majority.

[94] The 46 to 32 vote in this case was, as I have pointed out, 46 members marking a ballot beside one of two options, namely: “Yes, I support council”, and 32 marking the ballot “No, I do not support council”. (There is no copy of a sample ballot in evidence, but I am assuming it took the form that was set out in the notice of the meetings that was posted at the church according to several deponents.) The vote came on the evening following a meeting where the Bishop had informed the congregation that the Council had observed all the proper procedures, in direct response to members who questioned the nature of the proceedings. It is impossible to know to what extent that assurance may have influenced the votes of the undecided, but I think it is reasonable to infer that some members were influenced to support the results of what they were assured was due process who might not have done so if they understood how flawed the process leading to the exclusion had actually been, according to my reasons. It is impossible to know what the will of the majority really was, given the form of the questions and all the circumstances, but it is clear the meeting did not have the same facts and arguments before it that the court now does.

[95] There is some irony in the fact that the Pastor and Council now ask the court to uphold the will of the 46 to 32 majority supporting their actions, whereas between February 2007 and June 2007 the Pastor and Council sought to avoid the clear intention of a much larger majority who sought to bind their delegate to the National Convention to vote in accordance with the majority’s wishes on the subject of blessing same gender unions. There is of course often a good reason not to leave the recognition of minority rights or privileges to the will of the majority. Civil rights advocates have taught the world that lesson.

[96] In the Barrie case, which the respondent relies upon heavily, the court was dealing with the expulsion of a member of a golf club. Quoting a passage from Lord Denning’s judgment in Lee v. Showmen’s Guild of Great Britain [1952] 2 Q.B. 329 (Eng. C.A.), to the effect that expulsion under the rules of social clubs on the basis of conduct detrimental to the club is generally a matter of the majority opinion and nothing else, and has nothing to do with social rights or duties, Edwards J. stated at ¶63, that:

In short, the courts are reluctant to reinstate a member of a social club when other members have decided that member has acted in a manner unbecoming a member, for the obvious reason that a club must be collegial.

[97] The court in Barrie went on to state that a second reason the courts impose a less rigorous standard of procedural fairness on the disciplinary proceedings of social clubs is the likely futility of imposing too high a standard. The futility referred to is the likelihood that if the court reinstated the member, the club would simply rehear the matter and come to the same result.

[98] The court in Barrie was interpreting and applying club Bylaws which were not as detailed as those of the respondent in this case, and Mr. Barrie relied on lack of good faith and alleged breaches of the rules of natural justice, rather than on breaches of the specific provisions of the applicable Bylaws. The court concluded that the club’s board extended the appropriate degree of procedural fairness to Mr. Barrie in light of the nature of the club as a social club where collegiality is important, and the relative seriousness of the consequences of expulsion as contrasted with expulsion from a union or a professional body. Not finding the procedures defective, the court did not have to consider s. 85(2) of the Act as I must do here.

[99] Clearly the case before me is different in that I am not called upon to decide what standard of degree of procedural fairness to apply by reference to whether this is an appropriate case for intervention. I have applied the standard of procedural fairness that is largely codified in the Bylaws, save only the matter of fairness in respect of bias. I have concluded that the Bylaws were not complied with, and also that the participation of the accuser breached the appropriate standard of fairness in respect of potential bias or the apprehension of bias.

[100] In my view it is not appropriate to make an order upholding either the letters of exclusion issued by the Council or the motion of the congregation supporting the actions of the Council. There may well be some loss of morale or resumption of strife or tension within the congregation or between the Pastor and the reinstated members in the short term, but that is not sufficient reason to condone or validate what I find were serious non-compliances with the Bylaws and the applicable principles of natural justice. In my view, that would set a dangerous precedent which has the potential to cause long-lasting strife and a loss of morale which could permanently affect the success of the respondent’s purpose and mission.

[101] I do not infer that it is inevitable that the same result of exclusion will be arrived at if the respondent proceeds with discipline of the petitioners in compliance with its Bylaws and procedural fairness following my order setting aside the letters of exclusion, but there is certainly that possibility. In light of the evidence that 40 members of the respondent have left the congregation since the exclusion of the petitioners and the three other members, that possibility may be enhanced.

[102] Nothing in my reasons should be taken as a comment on the merits of the accusations against the petitioners, which is not an issue for the court. In the interests of reducing potential strife following my order, I would urge the parties to apply the utmost tolerance, open-mindedness, and good faith to understanding each other’s perspectives at the initial stages of any new discipline administered under the Bylaws. This unfortunate conflict might not have escalated if the proponents of the Special Congregational meeting called for in May 2007 had simply been more transparent and informed the Pastor directly that they were requisitioning a Special Congregational meeting, as they were specifically entitled to do under the Bylaws. This could have avoided any misinterpretation of their actions as an attack on leadership or the Pastor.

Order

[103] For the reasons stated, I order that the exclusion of the petitioners from membership is quashed and that the petitioners be restored as members of the respondent.

[104] The petitioners are awarded costs.

“I.C. Meiklem J.”

MEIKLEM J.

Citation:	*Lutz v. Faith Lutheran Church of Kelowna,*
	2009 BCSC 59