The Delta Hospice Society’s appeal of a court order compelling the society to admit hundreds of prospective members whose applications were blocked earlier this year has been dismissed.
In a judgment released Friday (Nov. 13), a panel of B.C. Court of Appeal judges dismissed the society’s appeal, finding the judge in the original case had not erred in law when she found the society’s board had acted contrary to its bylaws “which gave no discretion to reject applicants for membership based on their apparent views towards medically‑assisted dying (“MAiD”).”
“It is not the role of courts to resolve the debate as to whether MAiD should be provided by the society. However, courts may intervene under the remedial provisions of the [Societies] Act where a society acts in breach of its bylaws or the act,” Justice Mary Newbury wrote on behalf of herself and Justices Joyce DeWitt-Van Oosten and Peter Voith.
“Charter values of freedom of association and freedom of conscience do not support a right of the board to control the society’s membership lists, and by extension the outcome of proposed special resolutions, on the basis of criteria not stated in the bylaws.”
In February, Health Minister Adrian Dix announced the Fraser Health Authority had given the Delta Hospice Society (DHS) a year’s notice that it would terminate its contract with the society after the board voted not to provide medical assistance in dying (MAiD) at the Irene Thomas Hospice in Ladner. The facility is located on Fraser Health property, rented to the society for $1 a year, and the health authority provides the hospice with $1.5 million in annual funding, which covers 94 per cent of the 10-bed centre’s operating costs.
Members of the Delta Hospice Society (DHS) were advised in May of proposed changes to the organization’s constitution and bylaws aimed at transforming it into a faith-based society, as such groups are exempt from the requirement to deliver MAiD. An extraordinary general meeting of the society was scheduled for June 15, followed by a vote by mail-in ballot to close on June 26.
News of the proposed changes, coupled with word that hundreds of membership applications had been rejected — allegedly because the applicants did not support the board’s anti-MAiD position — drew sharp criticism from many in the community, including Delta Mayor George Harvie, Delta MP Carla Qualtrough, Delta North MLA Ravi Kahlon and Delta South MLA Ian Paton, who wrote a joint letter to Dix asking for an urgent meeting to discuss the situation.
Meanwhile, three former DHS board presidents filed a petition with the Supreme Court of B.C. in an attempt to stop, or at least postpone, the special meeting and vote, alleging notice of the meeting contravened the Societies Act, Emergency Program Act and the society’s own bylaws.
Among other actions, petitioners Sharon Farrish, Christopher Pettypiece, and James Levin asked the court to order the society to provide them with a list of all the DHS’s members (including contact information), as well as a list of all persons whose membership applications were rejected by the society since Nov. 28, 2019.
The petition, filed June 5, alleged “the board of the society has manipulated the membership list to stack the deck, by holding back for up to six months, and ultimately rejecting without basis, hundreds of membership applications by community members concerned by the direction of the society, all the while selectively accepting members supportive of their philosophy and direction. […] It is intended to change what was always an open, secular community organization into a closed, religious organization.”
A week later, on June 12, B.C Supreme Court Justice Shelley Fitzpatrick found the DHS board had acted with an “improper propose” that “lacked good faith,” contrary to the society’s bylaws and the Societies Act, by screening potential members and denying the applications of those who “indicated a contrary view or who [could not] be confirmed to have the ‘correct’ view.”
“In my view, this is not the open and democratic process that is the objective for the society as evidenced by the [Societies] Act and the [DHS’s] bylaws. Simply, the clear inference from the circumstances here is that the board has been attempting to manipulate the membership for voting purposes at the meeting.”
Fitzpatrick ordered that the meeting on June 15 be cancelled, and that the society must seek the direction of the court before giving notice of any future meetings. As well, the planned use of mail-in ballots was prohibited, and Fitzpatrick ruled the court may appoint an alternative chair for future society proceedings.
The board was also ordered to provide a list of all society members to Farrish, Pettypiece and Levin, as well as a list of all the people whose membership applications had been rejected. Further, those whose applications had been rejected by the board were to be accepted as members in good standing of the society.
The society filed a notice of appeal on June 18, amending it July 3, saying Fitzpatrick had erred in finding jurisdiction to order the forced admission of members who do not share the society’s purposes, and in ordering the admission of applicants due to wrongly finding that the membership rejections were made in bad faith or for an improper purpose.
On June 25, the court granted a stay of Fitzpatrick’s orders pending hearing of the appeal.
The DHS’s appeal was heard on Oct. 7, and the stay extended until the appeal court’s judgment was rendered on Nov. 13.
— with files from Tom Fletcher