Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 SCR 165

Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165

Daniel Hofer Sr., Daniel Hofer Jr., Larry Hofer,

David Hofer, Paul Hofer Jr., Leonard Hofer and

John Gerald Hofer Appellants

v.

Michael Wollmann, Jacob Hofer and Joshua Hofer,

in their representative capacity for and on behalf of Lakeside Colony

of Hutterian Brethren, Lakeside Holding Co. Ltd. and

Lakeside Colony Ltd. Respondents

Indexed as: Lakeside Colony of Hutterian Brethren v. Hofer

File No.: 22382.

1992: May 5; 1992: October 29.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for manitoba

Administrative law ‑‑ Natural justice ‑‑ Fair hearing ‑‑ Proper notice ‑‑ Church membership ‑‑ Interplay of Act, church constitution, articles of association and church tradition ‑‑ Church tradition of reconciliation through acceptance of discipline offered by the church with non‑acceptance resulting in self‑expulsion ‑‑ Member refusing discipline and considered expelled ‑‑ Whether authority to expel lying with board established under the Act or with the church acting in traditional manner ‑‑ Whether adequate notice given of meetings of the church considering the issue.

Members of the Hutterian Brethren Church live in colonies and hold property communally. Only baptised adult males vote in colony meetings where a quorum is four‑fifths of the voting members and most decisions are reached by consensus without a formal vote. The church's institutional framework is derived from (a) the tradition and custom of Hutterites; (b) the Articles of Association entered into by the colony members; (c) the Constitution of the Hutterian Brethren Church and Rules as to Community of Property; and (d) An Act to Incorporate the Hutterian Brethren Church.

Hutterites strive to achieve a community life characterized by peace and harmony and in part achieved through obedience to the rulings of the church's senior elders. One principle held by the Hutterites is that of punishment and of reconciliation through the acceptance of punishment by the offending party. The traditional punishment is Absonderung or shunning ‑‑ a person is avoided by members of the congregation, in varying degrees, from eating and worshipping alone to complete avoidance by the community. A person not accepting his punishment, and therefore reconciliation, is considered to have removed himself from the church rather than being expelled by the church.

This appeal deals with the attempts of a Hutterite colony to have the courts expel Hofer Sr. and those who supported him (three other members and three residents who had not yet become members) from the colony. A number of questions arose as to the interaction of the various parts of the church framework. A key question was whether expulsion could be effected by a Board of Managers operating under the church's constitution or whether it could be effected by traditional church council not provided for in the constitution.

The dispute giving rise to the circumstances of this appeal began with conflicting claims to the patent rights to a hog feeder. Hofer Sr., of the Lakeside Colony claimed to have discovered the mechanism but another Hutterite colony had patented a similar feeder and the assignee of that patent moved to enforce its patent rights. Hofer Sr. refused to stop manufacturing his feeder when requested by his colony. The issue was considered at a general meeting of the colony's voting members. The chairperson asked Hofer Sr. to leave when he persisted in speaking and suggested that he be shunned at meals and during worship. Hofer Sr. refused to repent and accept the punishment. After further discussion, he was told that he was "expelling himself" by refusing to accept the discipline and that he was no longer a member of the church. No formal vote was held; it was a matter of consensus on the part of those present. A further meeting was held 10 days later to see whether Hofer Sr. would repent and seek readmission to the colony. The underlying premise was that the decision made at the prior meeting was properly made. Hofer Sr. had been informed of the meeting but did not attend.

Hofer Sr. requested that the matter be considered by a "higher court" of the church at the first meeting. Church ministers meeting for other purposes raised the matter and only reluctantly acquiesced to this request after considerable delay and much bitterness in the colony. Appellants refused to attend the meeting set up for the purpose and the ministers participating decided that the shunning should be increased to no association of any kind with the appellants. Appellants received no further notice of their colony's meetings and the colony decided that they could no longer be tolerated in the colony.

Despite the decision to invite Hofer Sr. to a meeting of this "higher court" of the church, Hofer Sr. and two others received letters from the lawyers for the colony informing them that they had been expelled from the colony and requiring them to vacate the colony lands by a date which would have been before the date scheduled for the higher church court. They did not leave the colony, and the statement of claim in this action was filed. The colony asked that the court order the appellants to vacate the colony land permanently and to return all colony property to the colony. It also asked that the court make a declaration that certain appellants were no longer members of the colony.

In the colony's view, Hofer Sr. had removed himself from membership in the colony and that the three members who supported him were automatically removed from membership because of that support and that no meetings were necessary to consider the matter. No notice of the initial or any further meeting was given them. The three young persons, who were not yet members and who supported Hofer Sr., were asked to leave the colony. They had no notice that their expulsion would be considered at the meeting that ordered their expulsion. Indeed, they were not even warned of their possible expulsion unless they changed their ways.

The colony succeeded at trial before Ferg J., and the judgment was upheld on appeal. The issue here is whether the Court should assist the respondent Hutterite colony in enforcing its expulsion of the appellants from the colony. In order to determine this question, the Court must decide whether the expulsion was carried out according to the applicable rules and the principles of natural justice.

Held (McLachlin J. dissenting): The appeal should be allowed.

Per La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The courts are slow to exercise jurisdiction over the question of membership in a voluntary association, especially a religious one. Jurisdiction has been exercised, however, where a property or civil right turns on the question of membership. The colony considered the issue to be property while the members affected saw it as being contractual.

The statutory corporation and the association created by the church's constitution are neither wholly identical nor wholly distinct. The Act casts only the top layer of the structure established by the constitution into legislative form ostensibly because the corporation's raison d'être was to deal with external threats that affected each Hutterite conference equally. The church corporation and the church should therefore be seen as technically distinct entities which in practice have the same members and are governed by the same managers at the same meetings. The authority within the church to expel is therefore not be limited to a body of the corporation (the Board of Managers), since the statutory corporation governed by the Act is a distinct entity from the church governed by the constitution.

The written documents and the authority which they outline are primary only from an external viewpoint. A long‑standing tradition provides a kind of notice to the member of what rules the association will follow. Voluntary associations are meant largely to govern themselves, and to do so flexibly. Therefore, tradition or custom which is sufficiently well established may be considered to have the status of rules of the association on the basis that they are unexpressed terms of the Articles of Association. In many cases, expert evidence will be of assistance to the Court in understanding the relevant tradition and custom.

The tradition that a group of ministers appointed by the Senior Elder can finally decide issues referred to them by the Senior Elder is a valid rule on this standard. The constitution does not expressly forbid such delegation. It merely gives the Conference Board a certain power without specifying how it is to be exercised. The undisputed tradition is sufficient to authorize the further delegation of this power.

The colony may expel a member of the colony (under the authority of s. 46 of the constitution and s. 39 of the articles). Section 23 of the constitution gives the conference the power to expel a member from the church, which would mean that he was automatically expelled from the colony by virtue of s. 39 of the articles. Section 39 of the articles and s. 46 of the constitution both refer to a vote to expel a member, and various reasons for which a member might be expelled, such as disobedience. In the articles, it is reasonably clear what requirements must be met and that a member may be expelled upon a majority vote for various causes. The constitution is curiously inconsistent with the articles on this point. Section 46 of the constitution provides that a member may be expelled upon a majority vote, or upon various causes (as opposed to for various causes). This minor difference in wording implies that expulsion may be automatic following certain causes, without the requirement for a vote. The policy of the law clearly is that a vote is normally required unless it is clearly stated that certain conduct automatically brings about expulsion.

The constitution, while implying certain causes warrant expulsion without a vote, does not state how they are to be determined. The articles, therefore, are not inconsistent with the constitution when they demand a vote in order to establish cause. In demanding a vote, the articles merely fill in a lacuna in the constitution. Whether a vote has been taken is essentially a question of fact, and need not be formal. Given the Hutterite preference for operating by consensus rather than by formal votes if possible, it will be a question of fact in any given situation whether a consensus has been reached that is sufficiently unambiguous to qualify as a vote.

It is possible to resign from a voluntary association through conduct evidencing an intention to resign. The appellants' conduct did not point to such an intention.

Non‑members may only be expelled for failure to abide by and conform to the rules, regulations, instructions and requirements of the colony. The articles and constitution are silent as to who should make this determination. It was not necessary to resolve that point.

The content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations and an unbiased tribunal.

A member must be given notice of the cause for which he is to be expelled. It is insufficient merely to give notice that the conduct of a member is to be considered at a meeting. The member who is to be expelled must also be given an opportunity to respond to the allegations made against him. There is some flexibility in the scope of the opportunity required. The defendants raised the question of bias but it was not necessary to discuss this issue here.

Natural justice requires procedural fairness no matter how obvious the decision to be made may be. Natural justice requires that notice be given of a meeting to consider the matter and that an opportunity be given to make representations concerning it. This may not change anything, but it is what the law requires. The notice given Hofer Sr. was defective: the procedural defects of the earlier meeting were not cured by holding the second meeting because the purpose for calling the second meeting was not to reconsider the decision taken at the first. This conclusion applied to all further meetings which were held, especially since they were all held after the statement of claim had been issued. The other appellants were given no notice whatsoever of the decision to be made concerning their status in the colony. Daniel Hofer Sr. and his sons were not expelled and have remained members of the colony throughout and the three young defendants have maintained a right to remain on the colony.

The status of the property which the appellants have been accumulating raised an ancillary issue. The colony had asked for an order that the defendants return all colony property to the colony. Given the provisions of the Articles of Association relating to the ownership of property, it seems possible that the colony would be entitled to such an order even though the defendants have not been validly expelled. However, the order for the return of property was not sought on the basis that the defendants were still members, but rather on the basis that they had been expelled. Therefore, the action should be simply dismissed, preserving the right of the colony to take other proceedings to protect its property if that should be required.

Per McLachlin J. (dissenting): The particular procedures dictated by natural justice depend on the facts of the case. Advance notice of a decision is not required where the purpose of the notice requirement is fulfilled. Formal notice was not necessary here to permit the appellants to present their defence. Indeed the concept of formal notice did not arise because appellants' expulsion was essentially self‑expulsion, freely chosen by them with full knowledge of the consequences. The colony did not need to give notice of debate concerning a decision which is not theirs to make. If some sort of decision to expel were made by the colony, the appellants were fully aware in advance of what was to be decided and had full opportunity to present their defences.

Cases Cited

By Gonthier J.

Referred to: Ukrainian Greek Orthodox Church of Canada v. Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, 1940 CanLII 59 (SCC), [1940] S.C.R. 586; Lee v. Showmen's Guild of Great Britain, [1952] 1 All E.R. 1175; Baird v. Wells (1890), 44 Ch. D. 661; Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958; Organization of Veterans of the Polish Second Corps of the Eighth Army v. Army, Navy & Air Force Veterans in Canada (1978), 1978 CanLII 1606 (ON CA), 20 O.R. (2d) 321; John v. Rees, [1970] Ch. 345; Hofer v. Waldner, 1920 CanLII 652 (AB SCTD), [1921] 1 W.W.R. 177; Cohen v. The Congregation of Hazen Avenue Synagogue (1920), 1920 CanLII 778 (NB SC), 47 N.B.R. 400; Young v. Ladies' Imperial Club, [1920] 2 K.B. 523.

By McLachlin J. (dissenting)

Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; Martineau v. Matsqui Institution Disciplinary Board, 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602; Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643; C.D. v. Tramble (1985), 1985 CanLII 5753 (NS SC), 68 N.S.R. (2d) 53; R. v. Halifax‑Dartmouth Real Estate Board; Ex parte Seaside Real Estate Ltd. (1964), 1964 CanLII 601 (NS CA), 44 D.L.R. (2d) 248; Camac Exploration Ltd. v. Oil and Gas Conservation Board of Alta. (1964) 1964 CanLII 462 (AB SCTD), 47 W.W.R. 81; Hofer v. Waldner, 1920 CanLII 652 (AB SCTD), [1921] 1 W.W.R. 177; Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958.

Statutes and Regulations Cited

Act to Incorporate the Hutterian Brethren Church, S.C. 1951, c. 77, ss. 2, 3, 4, 5, 6, 7 to 15.

Articles of Association of the Lakeside Colony of Hutterian Brethren, ss. 4 to 11, 13, 21, 32 to 35, 39, 42.

Constitution of the Hutterian Brethren Church and Rules as to Community of Property, ss. 1, 2(a), (b), (f), 3 to 18, 6, 13, 19 to 32, 23, 29, 33 to 47, 34, 35, 40, 41, 43, 46.

Authors Cited

Chafee, Zechariah, Jr. "The Internal Affairs of Associations Not for Profit" (1930), 43 Harv. L. Rev. 993.

Dussault, René and Louis Borgeat. Administrative Law: A Treatise, vol. 4, 2nd ed. Translated by Donald Breen. Toronto: Carswell, 1990.

Forbes, Robert E. "Judicial Review of the Private Decision Maker: The Domestic Tribunal" (1977), 15 U.W.O. L. Rev. 123.

Jones, David Phillip and Anne S. de Villars. Principles of Administrative Law. Toronto: Carswell, 1985.

Ogilvie, M. H. "The Legal Status of Ecclesiastical Corporations" (1989), 15 Can. Bus. L.J. 74.

Stoljar, S. J. "The Internal Affairs of Associations". In Legal Personality and Political Pluralism. Edited by Leicester C. Webb. Melbourne: Melbourne University Press, 1958.

APPEAL from a judgment of the Manitoba Court of Appeal (1991), 1991 CanLII 12051 (MB CA), 70 Man. R. (2d) 191, 77 D.L.R. (4th) 202, dismissing an appeal from a judgment of Ferg J. (1989), 1989 CanLII 5297 (MB QB), 62 Man. R. (2d) 194, 63 D.L.R. (4th) 473. Appeal allowed, McLachlin J. dissenting.

Donald G. Douglas, for the appellants.

Michael F. C. Radcliffe, Roy H. C. Baker, Q.C., and William R. Murray, for the respondents.

The judgment of La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by

Gonthier J. -- The issue in this case is whether the Court should assist the respondent (plaintiff) Hutterite colony in enforcing its expulsion of the defendants from the colony. In order to determine this question, the Court must decide whether the expulsion was carried out according to the applicable rules and the principles of natural justice.

The respondents (hereinafter the plaintiffs) brought this claim in their representative capacity, on behalf of the Lakeside Hutterite Colony, Lakeside Holding Co. Ltd., and Lakeside Colony Ltd. The colony itself is a voluntary association whose members have all agreed to Articles of Association. The holding company is the owner of the land on which the colony members reside, and owns the land in trust for the colony. The colony corporation leases the land from the holding company, and operates a farming enterprise thereon. The relationship between these entities does not raise any issues in this case, so I will simply refer to them collectively as "the colony."

The defendants all currently reside on colony land. Daniel Hofer Sr., Daniel Hofer Jr., Larry Hofer and David Hofer are all members of the colony, unless, of course, the colony has in fact expelled them from membership. The latter three are Daniel Hofer Sr.'s adult sons. Paul Hofer Jr., Leonard Hofer and John Gerald Hofer are young persons who have not yet become members of the colony, since Hutterites believe in adult baptism, and baptism is required for membership. They are the sons of continuing members of the colony who are not directly involved in this claim. For convenience, I will sometimes refer to Daniel Hofer Jr., David Hofer and Larry Hofer as "the sons", Paul Hofer Jr., Leonard Hofer and John Gerald Hofer as the "young defendants", and the seven defendants together as Daniel Hofer Sr.'s group.

The colony asked that the court order the appellants (hereinafter defendants) to vacate the colony land permanently, and return all colony property to the colony. The colony also asked that the court make a declaration that Daniel Hofer Sr. and his sons were no longer members of the colony. The colony succeeded at trial before Ferg J. (1989), 1989 CanLII 5297 (MB QB), 62 Man. R. (2d) 194, and the judgment was upheld on appeal, O'Sullivan J.A. dissenting (1991), 1991 CanLII 12051 (MB CA), 70 Man. R. (2d) 191.

The defendants filed a counter-claim which was dismissed at trial, and has not been appealed.

I. The Standard of Review

The courts are slow to exercise jurisdiction over the question of membership in a voluntary association, especially a religious one. However, the courts have exercised jurisdiction where a property or civil right turns on the question of membership. As Crocket J. said in Ukrainian Greek Orthodox Church of Canada v. Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, 1940 CanLII 59 (SCC), [1940] S.C.R. 586:

. . . it is well settled that, unless some property or civil right is affected thereby, the civil courts of this country will not allow their process to be used for the enforcement of a purely ecclesiastical decree or order.

There is, however, a property right at stake in this case, especially from the point of view of the colony. If the defendants were strangers to the colony, then the colony would surely be entitled to an order barring them from the property, since that would be part of the colony's right of ownership. However, if Daniel Hofer Sr. and his sons are colony members, then they have certain rights under the Articles of Association to live on the colony and to be supported by the colony. Residents of the colony, such as the young defendants, also have certain rights which persist on certain conditions.

From the point of view of the members of the colony, these rights to remain are contractual in nature, rather than property rights. However, while contractual, the rights in question are of great importance to all concerned, and are susceptible of enforcement by the courts. As Lord Denning said in Lee v. Showmen's Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.), at p. 1180, a contractual right which permits a person to earn his livelihood is on the same footing as a property right in the context of jurisdiction over voluntary associations:

If a member is expelled by a committee in breach of contract, this court will grant a declaration that their action is ultra vires. It will also grant an injunction to prevent his expulsion if that is necessary to protect a proprietary right of his, or to protect him in his right to earn his livelihood, . . . but it will not grant an injunction to give a member the right to enter a social club, unless there are proprietary rights attached to it, because it is too personal to be specifically enforced . . . .

If the defendants have a right to stay, the question is not so much whether this is a property right or a contractual right, but whether it is of sufficient importance to deserve the intervention of the court and whether the remedy sought is susceptible of enforcement by the court. Here the rights in question are of the utmost importance and the "remedy" requested is merely that the court not intervene to enforce the expulsion. Therefore, the court must determine whether Daniel Hofer Sr. and his sons are members of the colony, and whether the young defendants are residents whose rights have not been revoked.

In deciding the membership or residence status of the defendants, the court must determine whether they have been validly expelled from the colony. It is not incumbent on the court to review the merits of the decision to expel. It is, however, called upon to determine whether the purported expulsion was carried out according to the applicable rules, with regard to the principles of natural justice, and without mala fides. This standard goes back at least to this statement by Stirling J. in Baird v. Wells (1890), 44 Ch. D. 661, at p. 670:

The only questions which this Court can entertain are: first, whether the rules of the club have been observed; secondly, whether anything has been done contrary to natural justice; and, thirdly, whether the decision complained of has been come to bonâ fide.

This analysis is consistent with Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958. In that case, a number of Hutterites were expelled following their conversion to another religious faith. In giving effect to that expulsion, Ritchie J. noted, at pp. 972-73, that the appropriate rules had been followed and the principles of natural justice observed. This is also the standard applied by the trial judge and the majority of the Court of Appeal in the present case. Indeed, the colony accepts that it must act in accordance with its own rules and the principles of natural justice in expelling members, and accepts the jurisdiction of the court to make the determination whether they have done so.

II. The Institutional Framework

To answer the question whether the expulsion of the defendants was done fairly and in accordance with the applicable rules, one must first identify what fairness requires and what the applicable rules are. Before doing this, it is necessary to have an understanding of the institutional framework within which the Lakeside Colony operated.

There are four sources of the rules which make up the institutional framework within which the Lakeside Colony operates. These are: (a) the tradition and custom of Hutterites; (b) the Articles of Association entered into by the colony members; (c) the Constitution of the Hutterian Brethren Church and Rules as to Community of Property; and (d) An Act to Incorporate the Hutterian Brethren Church, S.C. 1951, c. 77.

A. The Constitution of the Hutterian Brethren Church

A convenient starting point is the Constitution of the Hutterian Brethren Church and Rules as to Community of Property. This document is in the form of Articles of Association, and was executed by the representatives of 60 Hutterite colonies across Canada on August 1, 1950. Membership has since grown to include many more colonies, some in the United States. The preamble recites that the Hutterite Brethren Church has continuously existed since the 16th Century, and that there are at present many widely scattered colonies, for which reason it is deemed advisable to reorganize the church.

Article 1 defines the name of the church as the Hutterian Brethren Church. Article 2 defines the objects and purposes of the church as follows:

(a) To obtain for its members and their dependent minors, as also for the novices, helpers, children and persons in need under its care, without distinction of race, class, social standing, nationality, religion, age or sex, spiritual, cultural, educational and economic assistance based upon the life and mission of Jesus Christ and the Apostles, in the spirit and way of the first Christian community in Jerusalem and of the community re-established by Jacob Hutter in 1533 at the time of the origin of the "Baptisers' movement" in such a way that the members achieve one entire spiritual unit in complete community of goods (whether production or consumption) in perfect purity in mutual relationships, absolute truthfulness and a real attitude of peace, confessing and testifying by word and deed that Love, Justice, Truth and Peace is God's will for all men on earth. All the members, and especially the Elders, are responsible for carrying out the objects of the Church by following exactly the spontaneous direction of the Holy Spirit and by mutual stimulation and education.

(b) Complete dedication in the work for the aims and objects of the Church is expected from all members thereof. The capital and surplus produce and surplus funds of each individual congregation or community of the Church is to be used by such community for social work to which the Church is constantly dedicated, helping poor, weak and sickly persons who need, ask for and accept this help, especially children, and for the purchase of lands, stock and equipment for the use of such congregation or community in order that the members thereof may maintain themselves and acquire funds for the purposes of carrying out the aims of the Church.

Article 2 also defines the powers of "congregations or communities" of the church, which are the colonies. The powers of the colonies include the power to hold property of any kind. Article 2(f) gives each colony the power to make rules, regulations or by-laws so long as they are not contrary to the Constitution or the law.

The remainder of the Constitution sets up three levels of authority: the church, the conference and the colony.

1. The Church and the Board of Managers

Articles 3 to 18 define the organization of the church. It is composed of all the colonies signing the Articles and all those later admitted to membership pursuant to the Articles. The head office of the church is in Wilson Siding, Alberta. The church is divided into three conferences, the Darius-Leut, the Lehrer-Leut and the Schmied-Leut. Each conference is to select three persons to form a nine-member Board of Managers. These managers then select from amongst themselves a Senior Elder, an Assistant Senior Elder, and a Secretary. The date of an annual meeting, later amended to be bi-annual, is established. Provision is also made for special meetings, on seven days' notice.

Article 6 sets out the powers of the Board of Managers:

6.The Church dogma and Church discipline and the affairs, powers, privileges and all matters affecting and pertaining to Hutterian Brethren generally, shall be administered, managed, exercised, transacted, conducted and controlled by a Board of nine managers, three of whom shall be appointed by each of the said Conferences, provided, however, that except as to matters of a purely administrative nature, no resolution or decision of the said Board shall be binding or effective until approved, ratified and confirmed by each of the said Conferences.

2. The Conferences and the Conference Boards

Articles 19 to 32 set out the organization of each of the three conferences referred to earlier. The powers of the conference are to be exercised by a Conference Board, consisting of two delegates from each colony. These conference boards are to select from amongst themselves a Chairman, Vice-Chairman and Secretary. It seems that in practice the Chairman and Vice-Chairman are referred to as the Senior Elder and Assistant Senior Elder, as is the case with the Board of Managers of the church. Provision is made for an annual meeting, and special meetings on four days' notice.

Article 29 sets the quorum as two thirds of the total members of the Conference Board. The powers of the conference are set out in Article 23:

23. The Conference Board shall exercise control over the Church dogma and Church discipline within their respective Conference, and shall have charge of all matters pertaining to Hutterian Brethren generally within their respective Conferences, and shall have power to take such action as they deem meet in respect to matters affecting or pertaining to the Hutterian Brethren within their respective Conferences.

3. The Colonies

Articles 33 to 47 set out the organization of the colonies, referred to as "congregations" or "communities". Each colony's affairs are to be governed by its own rules, passed pursuant to Article 2(f). Article 35 sets out two criteria for membership in a colony. To be a member of a colony, a person must be a member of the church, and must be elected to membership in the colony by a vote of its members.

There are a number of Articles dealing with the ownership of property. No member of a colony owns property of any kind. All property is owned by the colony, for the common use and benefit of its members. Upon leaving a colony, or upon expulsion, a former member is not entitled to any of the colony's property.

According to Article 34, each colony is a separate economic entity, not being liable for the obligations of any other colony.

The rights and duties of members are set out in a number of Articles. The most important of these are Articles 40, 41 and 43:

40.Each and every member of a congregation or community shall give and devote all his or her time, labor, services, earnings and energies to that congregation or community, and the purposes for which it is formed, freely, voluntarily and without compensation or reward of any kind whatsoever, other than herein expressed.

41.The members of a congregation or community shall be entitled to and have their husbands, wives and children, who are not members thereof, reside with them, and be supported, maintained, instructed and educated by that congregation or community, according to the rules, regulations and requirements of that congregation or community, during the time and so long as they obey, abide by and conform to the rules, regulations, instructions and requirements of that congregation or community.

43.The husbands, wives and children of each and all of the members of a congregation or community, who are not members thereof, shall give and devote all their time, labor, services, earnings, and energies to that congregation or community and purposes for which it is formed, freely, voluntarily and without compensation of any kind whatsoever other than as herein provided, and obey and conform to all the rules, regulations and requirements of the congregation or community, while they remain in or with the congregation or community.

The expulsion of members is specifically dealt with in Article 46:

46. Any member of a congregation or community may be expelled or dismissed therefrom at any annual or general meeting of that congregation or community upon a majority vote of all the members thereof, or upon the request of such member, or by his or her having left or abandoned the congregation or community, or having refused to obey the rules and regulations and the officers of the congregation or community, or having refused to give and devote all his or her time, labor, services, earnings and energies to the congregation or community and the purposes thereof, or to do and perform the work, labor, acts and things required of him or her by the congregation or community or to attend and engage in the regular meetings, worship and service of the members of the congregation or community.

B. The Articles of Association of Lakeside Colony

The Lakeside Colony's Articles of Association were originally entered into on November 12, 1987. The preamble recites that the signatories have associated themselves into a community based on their religious beliefs, and that they have agreed to enter into the Articles for the purpose of regulating the affairs of the community.

Article 13 establishes a Board of Directors which shall have from three to seven members. The Minister of the Congregation chosen by the church is the President, and the Steward chosen by the congregation is the Secretary-Treasurer. According to Article 21, the President is the chief executive officer and head of the colony, and has the active management of its affairs.

Article 42 establishes that title to land owned by the colony is to be held by a holding company in trust for the colony.

The meetings of the colony members are governed by Articles 4 to 11. Quorum is set at four fifths of the male members of the Colony, and it is only the male members who may vote. An annual general meeting is established, of which no notice is necessary. Special meetings may be held on the order of the President. Notice of a special meeting may be given by announcement at any church meeting of the colony.

Articles 32 to 35 deal with the rights and duties of members in the same manner as does the church constitution quoted above, with minor variations. The question of property ownership is also dealt with in Articles virtually identical to those in the church constitution.

The matter of expulsion is dealt with explicitly, in Article 39:

39. Any member of the Colony may be expelled or dismissed from the Colony at any general or special meeting of the Colony upon a majority vote of the voting members thereof for his or her having left or abandoned the Colony or having refused to obey the rules and regulations of the Hutterian Brethren Church or of the Colony; for having refused to give and devote all his or her time, labor, services, earnings or energies to the Colony and the purposes thereof, or to do and perform the work, labor, acts and things required of him or her by the Colony, or to attend and engage in the regular meetings, worship and service of the members of the Colony.

Any member may resign or withdraw from membership voluntarily.

Without limiting the generality of the foregoing, any member who shall cease to be a member of the Hutterian Brethren Church shall leave the Colony and shall have no claim to any property of the Colony. We acknowledge that all Canadians have the right of freedom of religion, but we hereby covenant, promise and agree that if any of us shall change his or her religion and shall cease to be a member of the Hutterian Brethren Church, that he or she shall leave the Colony.

In the event of any group of members leaving and ceasing to reside in the Colony, for the purpose of forming a new Hutterian Colony or "daughter Colony," then those persons moving to the new Colony shall cease to be members of Lakeside Colony and shall be members of the new Colony.

C. The Act

A corporation named "The Hutterian Brethren Church" was incorporated by a private Act of Parliament entitled An Act to Incorporate the Hutterian Brethren Church. This legislation took effect on May 31, 1951. Section 1 recites the names of the petitioners for the Act, and incorporates the church. Section 2 establishes the nine-member Board of Managers. Section 3 establishes the Head Office at Wilson Siding, Alberta.

Sections 4 and 5 establish the objects of the church and the powers of the Board of Managers:

4. The objects of the Corporation shall be to engage in and carry on the Christian religion, Christian worship and religious education and teaching and to worship God according to the religious belief of the members of the Corporation.

5. The church dogma and church discipline and all the temporal affairs of the Corporation shall be administered, managed, exercised, transacted, conducted and controlled by a board of nine managers.

Section 6 provides for the enactment of by-laws:

6. The Corporation may, from time to time, make by-laws, not contrary to law, for

(a)the administration, management and control of property, business and other temporal affairs of the Corporation;

(b)the appointment, functions, duties and remuneration of all officers, agents and servants of the Corporation;

(c)the appointment or deposition of the board of managers, or any special committees or boards from time to time created for the purposes of the Corporation;

(d)the calling of regular or special meetings of the Corporation of the board of managers;

(e)fixing the necessary quorum and the procedure to be followed at all meetings referred to in the preceding paragraph;

(f)determining the qualifications of members;

(g)defining the faith and dogma of the Corporation;

(h)generally carrying out the objects and purposes of the Corporation.

Sections 7 to 15 deal with various corporate powers.

D. Hutterite Custom and Practice

Much evidence was lead as to Hutterite custom and practice in the governing of their affairs, and with respect to discipline in particular.

1. Discipline Patterns

Evidence was lead that discipline amongst Hutterites follows a characteristic pattern. When someone discovers that another is acting in an improper manner, the offending person is to be told that such action is improper, and asked to desist. If the offending person refuses to do so, then the aggrieved person is to discuss the matter with a few other persons, and jointly approach the offending person. If the offending person still refuses to change his ways, the entire community is called together to consider the matter, and a form of punishment is imposed.

Forms of punishment in the Hutterite community are all based on the exclusion of the offending person from the community, to a greater or lesser extent. The offending person may not be allowed to sit with the others in church or at meals, or there may be some other form of exclusion. At its most severe, the exclusion may be almost complete, so that the colony members will not speak or listen to the offending person for a time. This is referred to as shunning.

The reaction of the offending person to the punishment is supposed to be one of repentance and eventual reconciliation. Indeed, it is said that the punishment is "offered" to the offender, and the offender is expected to accept it. If the offender does not, he is said to excommunicate himself, since the possibility of reconciliation is spurned.

2. The Role of the Senior Elder and the Conference

Evidence was lead concerning the role of the Senior Elder in disputes between a Hutterite and his colony or between colonies. Apparently it is possible for any Hutterite to bring a grievance before the Senior Elder, and the Senior Elder will then decide whether it is a matter which deserves inquiry. If so, the Senior Elder will ask a number of ministers to investigate the matter, and a further meeting of ministers may be held to resolve the matter finally. How many ministers will be involved is at the discretion of the Senior Elder, and depends upon how serious the matter is.

Aside from this more formal process, the Senior Elder is often consulted by colonies with respect to any matter on which they wish advice. In such a case, the advice of the Senior Elder is not binding on the colony in question.

3. Voting

Evidence was led that Hutterite meetings tend to operate in terms of reaching consensus rather than always taking formal votes. Therefore, when the chair of a meeting indicates a certain position, and no objection is taken, this is seen as demonstrating a consensus.

E. The Relationship between the Sources of Authority

The relationship amongst these various sources for the institutional framework of the Lakeside Colony deserves some further discussion.

1. The Relationship between the Constitution and the Articles

From the point of view of the church Constitution, the Articles of Association are rules contemplated by Article 2(f) of the Constitution, and are therefore valid only in so far as they are consistent with the Constitution. While the members of the Association have contracted amongst themselves with respect to the Articles, they have also contracted amongst themselves and with other colonies with respect to the Constitution. Both the Articles and the Constitution are therefore the source of legal obligation between the members of the local colony. The same reasoning applies to other organizations with local associations that are themselves associated, as Blair J.A. observed in Organization of Veterans of the Polish Second Corps of the Eighth Army v. Army, Navy & Air Force Veterans in Canada (1978), 1978 CanLII 1606 (ON CA), 20 O.R. (2d) 321 (C.A.), at p. 341:

The relationship between national organizations and their incorporated local units is contractual. By adherence to the national organization, the members of the local association are taken to have accepted its constitution as a contract binding on them and all the members both of the local and national organization: see Carrothers, Collective Bargaining Law In Canada (1965), pp. 515-9; Brian G. Hansen, case note 61 Can. Bar Rev. 80 (1978), on Canadian Union of Public Employees et al. v. Deveau et al. (1977), 1977 CanLII 3241 (NS CA), 19 N.S.R. (2d) 24.

Since both the Articles and the Constitution create binding obligations, the agreement in Article 2(f) of the Constitution that the Constitution governs in case of inconsistency must simply be given effect according to its terms. Therefore, a provision of the Articles would be invalid if inconsistent with the Constitution.

2. The Relationship between the Constitution and the Act

The relationship between the Constitution and the Act is a vexed question. The defendants have argued that by virtue of the Act, only the nine-member Board of Managers of the church has the authority to expel a Hutterite. This argument receives some support from the comprehensive language of s. 5 of the Act, which provides that church dogma and discipline shall be "administered, managed, exercised, transacted, conducted and controlled" by the Board of Managers. It is argued that any unsupervised authority given to the conference or the colony by the Constitution or the Articles is a subdelegation not authorized by the Act, and therefore invalid.

However, it is quickly apparent that for the Act to have such a consequence is quite absurd. It is hardly realistic to expect a nine-member Board of Managers to supervise actively all matters of discipline throughout the hundreds of Hutterite colonies in question. This is especially so since there are real divisions amongst the three conferences, reflected in the fact that decisions of the Board of Managers, other than those of a purely administrative nature, must be ratified by each conference. Indeed, as I have noted above, it is not the actual practice of the Hutterites for the Board of Managers to be involved in individual cases of discipline.

If the true effect of the Act were to reserve to the Board of Managers all questions of discipline, then perhaps such absurdity as this occasions could not be avoided. As Ogilvie pointed out in "The Legal Status of Ecclesiastical Corporations" (1989), 15 Can. Bus. L.J. 74, at p. 81, the law of Parliament would presumably take precedence over the actual practice of the institution:

Finally, with respect to ecclesiastical law, it should be noted that there are some private Acts of incorporation which contain provisions at variance with the principles of church government of the religious body as incorporated. In these instances, presumably the doctrine of parliamentary sovereignty means that the provisions in the private Acts override any internal church law, regardless of the poor legislative draftsmanship which produced the difficulty.

As Professor Ogilvie notes in a footnote to this passage, the private Acts in question are typically drafted by the religious organizations themselves, so that if an absurdity is created, it is not imposed upon them by the government:

Since private Acts are typically drafted by the religious bodies themselves, they must take full responsibility for the results of poor draftsmanship.

However, the true effect of the Act may not be to reserve all matters of discipline to the Board of Managers. In the Court of Appeal, Huband J.A. suggested that the statutory corporation and the association created by the Constitution were simply not the same entity (at p. 209):

This statutory entity was formed by the Canadian colonies of the three branches of Hutterianism in order to deal with matters of common concern, and in particular to resist governmental regulations or restrictions which might be imposed upon Hutterites. The federal corporation, however, is not involved in the operation of the Schmeiden-Leut or of the individual colonies. The federal corporation is misnamed, for the real Hutterite Brethren Church exists quite apart from the statutory entity.

This is in accordance with a brief reference by Pigeon J. to the Act in Hofer v. Hofer, supra, writing in dissent (the majority did not address the issue of the statutory corporation). Pigeon J. said at p. 982:

It is clear that the Church in this provision of the Articles means the unincorporated religious community. This is not to be identified with The Hutterian Brethren Church, a corporation incorporated by the Parliament of Canada (1951, 15 Geo. VI, c. 77).

This observation echoed the conclusion of Dickson J. (as he then was) at the trial level in that case (at p. 8 of the unreported portion of the reasons):

The function of the association is largely to represent the Hutterian Church whenever matters of common concern, like the introduction of restrictive legislation in a province, present a common danger. The association has no power in matters affecting the internal organization of the three component groups.

If the statutory corporation and the voluntary association were in fact distinct, this would solve the problem, as the Act would not apply to the association. However, the claim that the two entities are distinct does not sit comfortably with a number of features of the Act and the Constitution. The name of the organizations is the same. They have their head offices in the same town. They both have a nine-member Board of Managers, which is given largely the same powers. Most of the initial members of the boards seem to be the same persons, and the fact that the membership is not completely identical could be accounted for by the differing effective dates of the Act and the Constitution.

All this might lead one to believe that the Act and the Constitution in fact refer to the same organization. The Constitution would then presumably have the status of by-laws under the Act. However, this view has its problems as well. The Constitution is not expressed in terms of by-laws, but rather as Articles of Association. Indeed, the Constitution was adopted before the Act was passed.

The minutes of the first meeting of the Board of Managers shed some light on the matter. The meeting was held on November 7, 1951. The Act was read to the meeting. The church Constitution was also read, and unanimously "adopted" with certain amendments. New congregations in Montana were admitted to membership in the church. This was provided for in the Constitution, but not the Act. General by-laws were adopted, which dealt largely with matters of a procedural nature.

It is clear from this meeting that the Constitution does not have the status of by-laws. It is also clear, however, that the Board of Managers was purporting to act according to both the Act and the Constitution in the same meeting. This pattern has continued in later meetings, to this day. For instance, the minutes of the October 8, 1987 meeting of the Hutterian Brethren Church refer to the corporation as having been created by a "constitution" and by "legislation":

1. It was acknowledged that the name of the Hutterian Brethren Church had been styled the Hutterian Brethren Church of Canada from time to time and it was resolved by the meeting that any reference to the corporation in future herein would be properly styled the Hutterian Brethren Church in accordance with the original constitution and legislation creating the corporation. It was recognized that there was no prohibition against any colony in the United States or any place else in the world becoming a member of the Hutterian Brethren Church. [Emphasis added.]

The statutory corporation and the association created by the Constitution thus seem neither wholly identical nor wholly distinct. In analyzing the relationship between the Act and the Constitution, it is readily apparent that the Act casts only the top layer of the structure established by the Constitution into legislative form. This is consistent with the view that the purpose of the corporation was to deal with external threats that affected each Hutterite conference equally. To this end, only the top level of the institutional structure needed to be formalized in the statutory corporation. Why it was thought that a statutory corporation was necessary to this end is unclear, but this seems a logical conclusion.

The church corporation and the church should therefore be seen as technically distinct entities which in practice have the same members, and are governed by the same managers at the same meetings.

The authority within the church to expel would therefore not be limited to the Board of Managers, since the statutory corporation governed by the Act is a distinct entity from the church governed by the Constitution.

3. The Question of Tradition and Custom

The use of tradition and custom and the relationship between these and the other sources of authority is another vexing question. For instance, the defendants argue that the custom by which the Senior Elder refers questions to a small group of ministers for binding determination is an impermissible sub-delegation of the power given to the Conference Board by the Constitution. It is argued that the full Conference Board must exercise authority of this nature, not a smaller ad hoc committee appointed by the Senior Elder.

However, to rely exclusively on the written documents without reference to the tradition and custom of Hutterites would seem unwise. From a point of view inside the Hutterite society, it seems probable that tradition and custom are in fact the highest source of authority, and the written documents are merely imperfect attempts to capture these sources. Indeed, the Senior Elder of the Hutterite Church testified to this effect (at p. 537 of the Case on Appeal):

We have our individual practices, could be unwritten reasons of custom flowing from the origin of the church of the 15th century, and it still is going on like that. It is not written out, the ruling laid out with the greatest legalities that are today in the country.

It is only from an external viewpoint that the written documents and the authority which they outline seem primary. Indeed, it is difficult for a court to come to a firm conclusion as to what the tradition and custom are, and correspondingly easier to analyze the formal legal documents. This is especially so when the tradition or custom is in dispute, as it will often be when a court is called on to intervene. Especially in interpreting the tradition and custom of religious societies, the court is in great danger of falling into what Professor Chafee called the "Dismal Swamp of obscure rules and doctrines" (in "The Internal Affairs of Associations Not for Profit" (1930), 43 Harv. L. Rev. 993, at p. 1024). In this regard, Professor Chafee makes this observation (at pp. 1023-24):

In very many instances the courts have interfered in these [church controversies], and consequently have been obliged to write very long opinions on questions which they could not well understand. The result has often been that the judicial review of the highest tribunal of the church is really an appeal from a learned body to an unlearned body.

However, as Professor Chafee also recognizes, the difficulty of understanding tradition and custom is really one reason to avoid assuming jurisdiction in the first place. Once the court assumes jurisdiction, there is no alternative but to come to the best understanding possible of the applicable tradition and custom. Even in other contexts it has been held that a sufficiently well-established tradition or custom may be considered an implied term in the contract making up the Articles of a voluntary association. For instance, in John v. Rees, [1970] Ch. 345, Megarry J. suggests at p. 388 that long usage can provide sufficient authority for a set of rules even if they have not been formally adopted:

In the case of a club, if nobody can produce any evidence of a formal resolution to adopt a particular set of rules, but on inquiry the officers would produce that set as being the rules upon which it is habitual for the club to act, then I do not think the member would be free to reject those rules merely because no resolution could be proved.

In that case, the rules in question were written rather than a matter of pure tradition, but the real question is the authority of rules which have not been formally adopted, whether written or unwritten.

A long-standing tradition provides a kind of notice to the member of what rules the association will follow. We also must remember that voluntary associations are meant largely to govern themselves, and to do so flexibly. Therefore, tradition or custom which is sufficiently well established may be considered to have the status of rules of the association, on the basis that they are unexpressed terms of the Articles of Association. In many cases, expert evidence will be of assistance to the court in understanding the relevant tradition and custom.

The tradition that a group of ministers appointed by the Senior Elder can finally decide issues referred to them by the Senior Elder is a valid rule on this standard. No one disputes that this tradition exists. The Constitution does not expressly forbid such delegation. It merely gives the conference board a certain power without specifying how it is to be exercised. The undisputed tradition is sufficient to authorize the further delegation of this power.

III. The Requirements for Expulsion

A. The Applicable Rules

1. Who May Expel?

It is clear from Article 46 of the Constitution and Article 39 of the Articles that the colony may expel a member of the colony from the colony. It also seems logical that Article 23 of the Constitution gives the conference the power to expel a member from the church, which would mean that he was automatically expelled from the colony by virtue of Article 39 of the Articles. This view was expressed by Ritchie J. in Hofer v. Hofer, at pp. 970-71:

I think it to be implicit in these provisions and in the preamble to the Articles of Association that no one who was not a member of the Hutterian Brethren Church could remain a member of the Colony, and that expulsion from the Church carried with it automatically expulsion from the Colony.

Indeed, what was thought implicit in the Articles considered by Ritchie J. in that case has been made explicit in s. 39 of the Articles in this case.

2. The Requirements for Expelling a Member

In Article 39 of the Articles and Article 46 of the Constitution, there is reference both to a vote to expel a member, and various reasons for which a member might be expelled, such as disobedience. In the Articles, it is reasonably clear that both these requirements must be met. That is, a member may be expelled upon a majority vote for various causes. Of course, while a cause is required, the court will not ordinarily review the merits of the cause.

The Constitution is curiously inconsistent with the Articles on this point. Article 46 of the Constitution provides that a member may be expelled upon a majority vote, or upon various causes (as opposed to for various causes). While this is only a minor difference in wording, it implies that expulsion may be automatic following certain causes, without the requirement for a vote.

This implication would be consistent with the Hutterite understanding that a member expels himself. However, it would be too strong to say that this implication is entirely in accord with Hutterite practice. For instance, no one has suggested that there are certain things which automatically bring about expulsion in any mechanical sense. Indeed, even if the Hutterite understanding is that the colony does not expel a member but rather that the member expels himself, the colony must still decide whether a particular member has in a given situation in fact expelled himself.

The policy of the law on this point is clear: a vote is normally held to be required unless it is clearly stated that certain conduct automatically brings about expulsion. This precise point arose with regard to an Alberta Hutterite Colony in Hofer v. Waldner, 1920 CanLII 652 (AB SCTD), [1921] 1 W.W.R. 177 (Alta. S.C.). Walsh J. dealt with the argument in the following manner at p. 182:

It is suggested in argument that the plaintiffs have by leaving the colony at Raley and asking for a part of the church property broken the condition by which they became members and have therefore ceased to be members. I was rather surprised to read this argument because of the attitude taken on this question by and on behalf of the church authorities throughout the trial. The impression left upon my mind by it was that though the plaintiffs had by their conduct in this matter broken the rules of the church and laid themselves open to exclusion from membership in it nothing to accomplish that end had been done by the authorities and the plaintiffs though offenders against the discipline of the church were still regarded as having interests which the authorities always had, and were still willing to, recognize. The frequent form of expression was that they had not been put out of the church but had put themselves out. I do not think that the forfeiture of all rights incidental to their membership followed automatically upon their commission of this offence but that some action to that end was necessary on the part of the proper authorities and that action has never been taken.

While the Constitution does imply that certain causes are sufficient to warrant expulsion without a vote, it does not state the manner in which these causes are to be determined. Therefore, the Articles are not inconsistent with the Constitution when they demand a vote in order to establish cause. In demanding a vote, the Articles merely fill in a lacuna in the Constitution.

Therefore, a vote is required in order for a colony to expel a member. Whether a vote has been taken is essentially a question of fact, and need not be formal. Given the Hutterite preference for operating by consensus rather than by formal votes if possible, it will be a question of fact in any given situation whether a consensus has been reached that is sufficiently unambiguous to qualify as a vote.

I should note that it is possible to resign from a voluntary association through conduct evidencing an intention to resign, but it is not suggested that the defendants' conduct in this case pointed to such an intention.

3. The Requirements for Expelling a Non-Member

Article 39 of the Articles and Article 46 of the Constitution deal with the expulsion of members from the colony. These articles do not apply to the physical expulsion of non-members from their residence on the colony.

Initially, the expulsion of non-members does not raise an issue for the court to determine. However, Article 33 of the Articles and the equivalent Article 41 of the Constitution give members the right to have their spouse and children, who are not members, reside in the colony, but only "during the time and so long as they obey, abide by and conform to the rules, regulations, instructions and requirements of the said Colony."

Non-members may therefore only be expelled for failure to abide by and conform to the rules, regulations, instructions and requirements of the colony. The Articles and Constitution are silent as to who should make this determination. It is not necessary for the purpose of this case to resolve that point.

B. The Requirements of Natural Justice

The content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations, and an unbiased tribunal.

1. Notice

A member must be given notice of the cause for which he is to be expelled. It is insufficient merely to give notice that the conduct of a member is to be considered at a meeting. This is what was done in Cohen v. The Congregation of Hazen Avenue Synagogue (1920), 1920 CanLII 778 (NB SC), 47 N.B.R. 400 (S.C.). The member had been repeatedly disruptive at meetings of the synagogue, and notice was given of a meeting to consider his conduct. The court found, at p. 409, that this was insufficient notice for the purposes of an expulsion:

Before the plaintiff could properly be adjudged guilty of an offence warranting his suspension for life he should, according to the most elementary principles of right and justice, have been informed of the nature of the charge against him, and given an opportunity to answer the same.

Likewise in Young v. Ladies' Imperial Club, [1920] 2 K.B. 523 (C.A.), the notice indicated only that the conduct of a particular member would be reported on and discussed. The court held that this was insufficient notice to allow for a decision to expel. Sterndale L.J. agreed that it would be sufficient if the notice made it quite clear to everyone what would happen at the meeting, but decided that the notice in question did not even convey in substance what would happen (at p. 531):

I quite agree with what has been said to the effect that one ought not to examine this agenda and these notices of meetings too particularly and too meticulously; if in substance they convey to the members of the committee what is going to be done, that is sufficient, although one might have thought it might have been better done.

As is apparent in Young, adequate and timely notice is as important for two reasons. First, it gives the person who may be expelled an opportunity to consider his or her position and either see the error of his or her ways and seek reconciliation, or prepare to defend himself or herself. Second, adequate and timely notice allows the members of the group who are to make the decision an opportunity to ensure that they will be able to attend the meeting and contribute to the discussion, or perhaps to ask for an adjournment if they are unable to attend.

2. Opportunity to Make Representations

The member who is to be expelled must also be given an opportunity to respond to the allegations made against him or her. There is some flexibility in the scope of the opportunity required, but this issue does not need to be addressed in this case.

3. An Unbiased Tribunal

As Forbes observes in "Judicial Review of the Private Decision Maker: The Domestic Tribunal" (1977), 15 U.W.O. L. Rev. 123, at pp. 139-141, the requirement of an unbiased tribunal in the context of expulsion from a voluntary association raises a number of puzzling issues. There is no doubt that an unbiased tribunal is one of the central requirements of natural justice. However, given the close relationship amongst members of voluntary associations, it seems rather likely that members of the relevant tribunal will have had some previous contact with the issue in question, and given the structure of a voluntary association, it is almost inevitable that the decision makers will have at least an indirect interest in the question. Furthermore, the procedures set out in the rules of the association may often require that certain persons make certain kinds of decisions without allowing for an alternate procedure in the case of bias.

While the defendants did raise the question of bias, I would be reluctant to address the issue in any definitive manner because the appropriate standard in the context of voluntary associations was not argued by the parties before us. In light of the conclusions I reach concerning other issues, it will be unnecessary to discuss the question of bias.

IV. The Sequence of Events

A. The History of the Lakeside Colony

The Lakeside Colony found itself in a difficult position in 1979, in that it had become practically bankrupt, and its members had deviated in some respects from the practices of the Hutterite religion. A meeting of the Hutterian Brethren Church was held on April 4, 1979 to deal with this situation. Present at the meeting were all the voting members of the Lakeside Colony, and 46 ministers of the Schmieden-Leut Conference, to which Lakeside belongs.

A number of resolutions were passed at this meeting. The members of the Lakeside Colony were suspended from membership until further notice. The directors and officers of the colony were removed from office, and an acting President, Vice-President and Secretary were appointed. These persons were Michael Wollmann, Jake Hofer, and David Waldner, all members of other Hutterite colonies.

The three new officers of the colony have been referred to as "overseers" in the courts below, and the resolutions adopted at the April 4, 1979 meeting are said to have "suspended" the Articles of Association. It may be convenient to speak of the new officers as overseers. However, the minutes of the meeting simply record that they are to be the acting officers of the colony. While the Articles do not have any provision for this kind of procedure to have acting officers appointed, Article 23 of the church Constitution seems to provide ample authority for what was done. Therefore, while the operation of the Articles is certainly affected by the April 4, 1979 meeting, it seems that the Articles continue to operate with such adjustments as are necessary to accommodate the decisions taken at that meeting.

This view is more consistent with later events. The suspended members of the colony renewed their baptismal vows in 1981, and were then readmitted to full membership in the colony, and re-signed the Articles. The overseers continued as the officers of the colony, and were still in place through all of the relevant events, with the exception of David Waldner, who resigned due to poor health before 1986. The view that the Articles of Association continued to function is also more consistent with the evidence given by the Senior Elder (at p. 546 of the Case on Appeal):

Q.Sir, during this period of time, would the Colony continue to be governed by its Articles of Association?

A.Yes, as long as it is in the line with the doctrine of the Hutterian Brethren Church.

B. The Dispute over Hog-Feeders

Daniel Hofer Sr. worked in the machine shop at the Lakeside Colony. He developed a new form of hog-feeder which had an innovative design, which incorporated a "shaker" which the hog could regulate in order to obtain food. He investigated the possibility of obtaining a patent, and sent drawings of this "shaker" design to a patent agent for this purpose.

In experimenting with the "shaker" design, Daniel Hofer Sr. discovered that the pigs tended to remove a metal plate which had been part of the design, and that removing this plate allowed the pigs to choose whether to eat the food in a wet or dry condition. This "wet and dry" design that resulted was therefore invented by accident.

Meanwhile, a number of persons at the Crystal Springs Colony had invented a hog-feeder that also employed the "wet and dry" method of operation. The Crystal Springs Colony engaged the same patent agent to obtain a patent on this design. The patent was eventually issued.

Daniel Hofer Sr. eventually sent drawings of his "wet and dry" design to the patent agent, who informed him that they could not act for him with respect to that design, because of the patent which had been obtained by the Crystal Springs Colony. Daniel Hofer Sr. made a number of allegations concerning the question of whose design was first to incorporate the "wet and dry" method, and the propriety of the way in which the patent was obtained, since both he and the Crystal Springs Colony had been communicating with the same patent agent. It is not necessary to resolve those issues in this case, but merely to note that they existed. The Senior Elder knew of the accusations that Daniel Hofer Sr. was making, and satisfied himself that they had no substance. (See pp. 564-65 of the Case on Appeal).

The patent held by the Crystal Springs Colony was assigned by it to a non-colony company, C & J Jones Ltd., which had some useful expertise in the commerce of patents. The terms of the assignment were that 50 per cent of the profits from the patent would be given to the Crystal Springs Colony. The assignment was also revocable, although it was said in evidence that such a revocation would have been an unusual step.

C & J Jones discovered that another colony, the Grand Colony, was manufacturing hog-feeders covered by the patent. C & J Jones informed Grand Colony of this, and made a claim for damages. The officers of the Grand Colony went to the Senior Elder to seek advice as to what to do about this claim.

Going to the Senior Elder for advice in such a matter was a usual practice for Hutterite colonies, as noted above. However, there was a complication in this case. The Senior Elder of the Schmieden-Leut Conference is Jacob Kleinsasser, who is the Minister, and therefore President, of the Crystal Springs Colony, and it was this Colony who had originally held the patent. It was known to the other Hutterite colonies that this was so, and the Senior Elder informed them that the patent had been transferred to C & J Jones. However, the Senior Elder did not inform any of the Hutterite colonies that the Crystal Springs Colony continued to receive 50 per cent of the profits of the patent, nor that the assignment of the patent was technically revocable.

The Senior Elder encouraged the Grand Colony to settle with C & J Jones, which they did. The Grand Colony paid C & J Jones $25,000, some of which eventually was turned over to the Crystal Springs Colony.

Sometime in August 1986, the overseers at Lakeside learned of the dispute between the Grand Colony and C & J Jones. The overseers were aware that Daniel Hofer Sr. was manufacturing some feeders and after investigation ordered him to stop manufacturing the "wet and dry" feeder. The overseers told Daniel Hofer Sr. that he could continue to manufacture the "shaker" type feeder that he had invented, but not the "wet and dry" type. However, Daniel Hofer Sr. refused to stop production of wet and dry feeders, since he maintained that he had been first to invent them and that Lakeside Colony was in fact entitled to the patent, since it had been improperly issued to the Crystal Springs Colony.

The wet and dry feeders at Lakeside were observed by C & J Jones. A demand for patent infringement was made. In meeting with the patent agent and C & J Jones, the overseers examined the drawings that Daniel Hofer Sr. had submitted to the patent agent, and satisfied themselves that Daniel Hofer Sr. had invented the "shaker" design. However, the overseers also satisfied themselves that Daniel Hofer Sr. and the Lakeside Colony had no entitlement to the patent on the "wet and dry" design. It is not for this Court to decide in this case whether this was in fact so. We only note that the overseers came to this conclusion to their own satisfaction.

C & J Jones originally asked for $25,000 to settle the claim of patent infringement, but the overseers negotiated down to $10,000. The overseers then consulted with the Senior Elder. The Senior Elder indicated that he was "not involved" in the matter and that the overseers would know best what to do, but that out of court settlements seemed preferable to court settlements. The Senior Elder also congratulated the overseers for bargaining C & J Jones down from the original demand (see Case on Appeal, at pp. 292 and 575). The Colony made a settlement of $10,000 with the C & J Jones. A cheque in that amount was forwarded to the company.

Daniel Hofer Sr. was not happy that his colony had paid $10,000 for a patent infringement, since he believed that the Lakeside Colony was entitled to the patent. Daniel Hofer Sr. also thought that the overseers should have consulted the colony members more thoroughly concerning the question whether to press their claim to the patent. It seems that under ordinary circumstances, the members of a colony and in particular the directors would be consulted before decisions such as this were taken, but matters were handled differently at Lakeside due to the presence of the overseers (see Michael Wollmann's testimony at pp. 1352-56 of the Case on Appeal).

In any event, Daniel Hofer Sr. gathered some support amongst the colony members. He had the colony members sign a document which he used to convince the Bank to stop payment on the settlement cheque, something which he had no authority to do. The overseers and the Senior Elder intervened so that the cheque was paid.

C. The January 21, 1987 Meeting of the Colony

The overseers called a meeting of the members of the colony for January 21, 1987 to explain the situation and to deal with the conduct of Daniel Hofer Sr., who was continuing to manufacture the feeders despite having been told to stop. The meeting was described as an annual meeting. Everyone had notice of the meeting, though there was no explicit notice of the agenda. However, as the Court of Appeal pointed out, there could really be no doubt in Daniel Hofer Sr.'s mind as to what the meeting would be about (at pp. 213-14):

Daniel Hofer Sr. was not told, in advance, that his continued production of hog feeders was to be the subject of the January 21st meeting. But it could hardly have come as a surprise to him. His conduct in putting a stop order on the settlement cheque on January 20th brought matters to a head. It was inevitable that the conflict inspired by him should be the central focus of the meeting. Daniel Hofer Sr. does not claim that he was taken by surprise. On the contrary, he appeared to be completely ready to denounce those complaining of his conduct.

Daniel Hofer Sr. and Daniel Hofer Jr. were present at the meeting. Larry Hofer was not present at the meeting, because as an unmarried male he was not a voting member. David Hofer and one other voting member were also not present. Therefore, of the 12 voting members in the colony at the time, 10 were initially present.

The meeting began with a discussion of the patent issue. The Chairman attempted to read some of the documentation concerning the hog feeders to the meeting. Daniel Hofer Sr. became very angry, and repeatedly interrupted the Chairman, insisting that no one could stop him making the feeders. After some sharp exchanges, he was asked to leave the meeting because he was being disruptive. Michael Wollmann was chairing the meeting, and testified in this manner concerning Daniel Hofer Sr.'s behaviour at the meeting (at pp. 1229-32 of the Case on Appeal):

A.. . .

And we -- I told the audience and the brothers:

"I'm going to read and prove you what documents we have, what position we're in and then we'll rule."

Q.". . . And then we'll . . ." what?

A.Then we'll rule accordingly.

Q.Yes?

A.Well, it didn't come to that point. Daniel, in his vanity he couldn't be controlled. I warned him:

"Daniel, let me read to the members what it is."

He interfered and interfered, that we don't know what we're doing, that we don't understand.

"It's all garbage what you got."

I told him:

"Man, we got the same papers you got from the same company, which we are a great surprise what we saw yesterday, what you did on your own. We're just so shocked that we barely looked at each other for minutes. And what avenue is Daniel taking?"

We carried on and tried to stop him and said:

"Daniel, hear me out. I am the president, the chairman, I like order in a meeting, not shouting and yelling and being of a defiant attitude."

I don't like that so I said:

"Daniel, your last chance. If you don't let me read and finish whatever I have to say I'll have to take measures."

He didn't care. He just said:

"Okay, that's fine. You don't know what you're doing anyways. You did nothing more than make damage here."

"All right brothers, he is guilty. He may leave the room."

So we all agreed he is guilty, he had to leave the room.

Q.And how did you decide that?

A.How?

Q.Yes.

A.In the church, if the president or the minister with high respect makes a motion, if he finds guilty he will order the person to leave the room. And then he can come back in again and repent and promise that he will be orderly and he will be adhering to the chairman, he will be in a martyr fashion, he then will be forgiven.

Q.Do you ask for a show of hands or do you just say, I find you rebellious and defiant and I order you to leave the room?

A.If they -- we all agreed -- we all went -- we were all sick already.

Q.How did you find out what everybody else was thinking?

A.Well, as I say, if nobody gets up and vetoes this, then it's carried.

Michael Wollmann reiterated that Daniel Hofer Sr. was asked to leave solely due to his disruptive behaviour at pp. 1274-75 of his testimony.

Daniel Hofer Jr. then asked to leave because he was uncomfortable with the discussion about his father. He was allowed to do so. At this point, therefore, 8 of the 12 voting members were present.

The membership agreed that Daniel Hofer Sr. had to be disciplined by a mild form of shunning, specifically that he would have to eat separately and worship separately for a period of time.

When Daniel Hofer Sr. was called back, told of the decision and told to repent and accept it, he refused to accept the ruling, and told the overseers to go home. There was some further discussion in which Daniel was told that he was "expelling himself" by refusing to accept this discipline. After further discussion, Daniel Hofer Sr. was told by the Chairman that "he is no member, he is out of the church" and the members endorsed that ruling. The trial judge's specific finding on that point is at p. 200:

After some further discussion with him -- that he was taking it upon himself, expelling himself -- and no repentance -- he was told "he is no member, he is out of the church", by the chairman, and the members endorsed that ruling.

Despite the trial judge's finding that the members had "endorsed" the ruling, the Court of Appeal, at p. 212, suggested that no formal vote was held:

It does not appear that any formal vote was taken to confirm the excommunication of Daniel Hofer Sr. from the congregation. There was simply a common understanding that if one did not submit to absonderung [mild shunning] the only alternative was excommunication.

However, the evidence of Jacob Hofer, one of the overseers, was that the excommunication was endorsed unanimously (at p. 846 of the Case on Appeal).

The minutes indicate that Daniel Hofer Sr. then demanded to be heard by "a higher court." This demand for a "higher court" was said to be meaningless in the minutes, because such further review could not be demanded, only requested. It is acknowledged by everyone that Daniel Hofer Sr. was referring to the appeal to the authority of the Senior Elder as described above.

The Court of Appeal noted, at p. 212, that the response of the Chairman to this request for a higher court was as follows:

"Well, that's your prerogative. This remains. You have your order. We got nothing to do with you. If you want another court, go, you have freedom. Any man can go and ask for a higher court."

It seems clear that by using this language, the Chairman of the meeting was not granting Daniel Hofer Sr. a further review. Indeed, it seems that this would be a decision for the Senior Elder to make.

A question has been raised as to whether there was a quorum at the meeting at the relevant time. It is clear that the decision to expel requires a quorum, since it is a decision which must specifically be made by a vote at a meeting. The meeting had a quorum initially, since 10 of 12 voting members were present. The mild form of shunning was imposed with Daniel Hofer Sr. and Daniel Hofer Jr. absent, and the more severe penalty was imposed after Daniel Hofer Sr. had returned. It is not clear whether Daniel Hofer Jr. had returned as well.

The Court of Appeal held that the quorum issue was not significant since the colony was not being governed in accordance with the Articles of Association in any event. Given the discussion above, we cannot take this course. However, in view of the conclusion I reach that the expulsions must be set aside for lack of sufficient notice, it is unnecessary to pronounce upon the existence of a quorum.

D. The Meetings on January 31, 1987

The overseers hoped that Daniel Hofer Sr. would become penitent and therefore, before taking any further action, they allowed a cooling off period of 10 days and called another meeting for January 31, at noon. Daniel Hofer Sr. was asked to attend. He asked whether this was going to be the higher court he had requested, and was informed that it was not. He then refused to attend.

Daniel Hofer Sr. had been given no specific notice of what would be discussed. However, the Court of Appeal pointed out that it is really quite impossible that he did not know that his expulsion was the major item on the agenda. Indeed, the fact that he refused to attend because the meeting was not the higher court he had requested shows that he knew what the meeting would discuss (at p. 214):

I think there can be no doubt but that Daniel Hofer Sr. was aware that his expulsion from the Colony was to be the major item on the agenda. In his own testimony, he states that he chose not to attend because he thought it would serve no useful purpose in view of his request that the matter be considered at a higher court. By implication, he knew what was on the agenda that night.

Daniel Hofer Jr. and David Hofer did attend the meeting. A general discussion took place. A number of the colony members who had originally participated in the scheme to stop payment of the cheque to C & J Jones repented and decided that they stood with the church and respected the authority of the overseers. They were given a minor church penalty, and thereafter restored into the community (see the testimony of Michael Wollmann, at p. 1245 of the Case on Appeal). It was decided that the Senior Elder should be consulted for his advice concerning Daniel Hofer Sr.'s actions.

The overseers consulted the Senior Elder in the afternoon. The Senior Elder gave advice to the colony in a letter later read to them. The Senior Elder recited the history of the patent dispute, and the actions of Daniel Hofer Sr., and then continued in the following words (at p. 2099 of the Case on Appeal):

Therefore Daniel Hofer and all those who follow him should be separated from Lakeside, so that, if Daniel continues, perhaps Lakeside could remain free. But that is still a question. In my opinion it is only fair that this rebellion is cut off with all those who follow Daniel.

The overseers had communicated Daniel Hofer Sr.'s request that a "higher court" be convened to the Senior Elder, but the Senior Elder decided that one was not necessary. He testified in the following manner (at p. 286 of the Case on Appeal) (see also pp. 349 and 618):

And on this case is where I said -- then wrote them a small letter for his people of encouragement, that as far as I'm concerned, as far as I personally see -- I do not see no need for calling 30, 40 ministers at this moment in time and he is to submit to whatever the decision of all these brothers was and especially with that revealing that he dared to go in and take a -- make a stop payment of $10,000.00, what could keep him from drawing $10,000.00. This is where I looked into it and analyzed it. So I drafted this small letter of encouragement and of my opinion and say, "Go back to your brothers in Lakeside. This is the way I would see it, and this would be my opinion." That's as much as I feel like doing about it.

At 7:00 p.m., a further meeting was held which Daniel Hofer Sr. and his sons refused to attend. The response of the Senior Elder to the situation was read. The behaviour of David Hofer and Daniel Hofer Jr. was also discussed. All three were then dealt with together. The trial judge's finding on this point was as follows (at p. 201):

The minutes state (confirmed by Reverends Wollmann and Hofer) that "it was then agreed with the rest of the members that the above three (Daniel Hofer Sr., Daniel Hofer Jr., and David Hofer) were no more members and out of the church". The witnesses regarded this decision as final, as far as they were concerned for those three, particularly Daniel Hofer Sr., it was a question of "repent or go and leaves us in peace", that they were no longer a part of the Colony. Members could not speak to them, eat with them, worship with them, they were no longer part of the colony. Only members in peace could eat, worship and work together. The three were later relieved of their positions on the colony.

E. The Situation on the Colony in Early February

The situation on the colony deteriorated sharply in the early days of February 1987. Daniel Hofer Sr. was of the view that his request for further review had been granted by the chairman of the meeting on January 21, 1987. He was also of the view that, because this request had been granted, the overseers no longer had any authority over the colony pending that review being held (see pp. 1610 and 1674 of the Case on Appeal).

Both of these views are entirely unsupportable. As noted above, the request for further review was not granted at the January 21, 1987, and it seems quite impossible that it would have been, since this is a decision for the Senior Elder to make, not the President of the colony. In any case, even if the request for further review had been granted, this could not possibly have had the effect of automatically suspending the authority of the overseers. At most, a decision to grant further review might automatically suspend the decision to expel, and operate in this respect as a stay of proceedings. However, by no stretch of the imagination could such a decision automatically end the authority of the overseers.

In any event, Daniel Hofer Sr. and his sons took a number of actions consistent with their conclusion that the authority of the overseers was at an end. With no leadership for the colony, it was deemed necessary to hold an emergency meeting at which new officers would be elected. Only those sympathetic to Daniel Hofer Sr.'s position were invited to this meeting. Daniel Hofer Sr. was elected President of the colony and Daniel Hofer Jr. Secretary-Treasurer. This was done in a manner not contemplated by the Articles of Association. According to the Articles, the President of the colony is the minister appointed by the church. Since that time, Daniel Hofer Sr. has continued to purport to be the President of the colony and has refused to recognize the authority of the overseers in any respect.

Daniel Hofer Sr.'s group also had to make provision for the finances of the Colony and its ongoing economic activity. They opened a bank account of their own and channelled money from hog sales into it (see p. 854 of Jacob Hofer's testimony). At this point, according to the testimony of Jacob Hofer (at pp. 869-71 of the Case on Appeal), Daniel Hofer Sr. and his group were eating in the main dining hall and operating a number of enterprises on the colony premises. Since the members of Lakeside who sided with the overseers could not associate with Daniel Hofer Sr., they were forced to eat at home. The proceeds of the enterprises operated by Daniel Hofer Sr.'s group were not given to the colony, but were retained by the group.

Life on the colony had by this time divided into two distinct groups which could not associate with each other. Jacob Hofer testified that the young defendants were questioned about their involvement with the actions of Daniel Hofer Sr.'s group, and they said that they sided with Daniel Hofer Sr. and his group. At this point, they were told that they must leave their parents' homes, because they would be shunned. They did so, but Daniel Hofer Sr. had them move into the trailer which had been occupied by the overseers, and changed the locks (at pp. 875-76 of the Case on Appeal):

Q.And Leonard Hofer, John Gerald Hofer, and Paul Hofer Jr., have they been obedient to the Colony managers?

A.No, they were obedient to us until Danny got them to work for his enterprise.

Q.Tell me, sir, how they have been disobedient.

A.I'll go back, my lord, a bit where we tested the boys at the same time we tested the members. We called them all to the office trailer.

Q.When was that?

A.I couldn't tell you the date. After Danny had exposed himself that he had stopped the payment on the cheque when it was exposed. And we wanted to know how many of the young children are involved in this action. And they very nicely expressed themselves with no rebuke, can't go wrong, they're siding with Danny. And we said, "Thank you very much, but you can't live on the Colony like this, neither can you live in your house anymore like this. You will have to vacate your parents' home. Your parents are still with the church." The boys didn't say anything, but they obeyed to vacate.

But what happened, Danny came to our office and said, "Whatever you have personal here, please take it out." I says, "Why?" "The boys are moving in here." I says, "What do you mean by this?" "But where should they go?" "Come back to the church, stand down from what they have done. They don't have to go any place." "No, they're not standing down."

And no sooner had we left our office, the lock was changed on it, and we never got access to that office after. I made attempts to go back several times. I remember one time Leonard wasn't in the trailer, but he seen me enter. He come running to the trailer, and he says, "What are you looking for?"

The defiant actions of the three young defendants were confirmed by the testimony of Michael Wollmann (at pp. 1263-65 of the Case on Appeal). Apparently they had acted in a threatening manner towards the overseers. Michael Wollmann also confirmed (at p. 1304) that the three boys had been told by the overseers that they could no longer live with their parents, and the intention of the overseers was that they would leave the colony.

F. February 10, 1987 Meeting of 81 Ministers at Milltown

There was a regularly scheduled meeting of 81 ministers on February 10, 1987 at Milltown Colony. The Senior Elder had remained reluctant to call a special meeting to deal with Lakeside, but agreed to put the matter on the agenda of this regular meeting (see p. 302 of the Case on Appeal). No notice of this meeting was given to any of the defendants. The overseers and the Senior Elder outlined the events to the assembled ministers.

The Senior Elder testified (at pp. 303-4) that the meeting decided that Daniel Hofer Sr. should be invited to attend another meeting at the Woodlands Colony to consider the matter, so that Daniel Hofer Sr.'s explanation could be considered. The Senior Elder had been reluctant to extend this invitation, but a few others suggested that this be done, and the Senior Elder acquiesced. Therefore, the "higher court" requested by Daniel Hofer Sr. had now been granted.

G. The Letters and the Statement of Claim

Despite the decision to invite Daniel Hofer Sr. to the meeting at Woodlands, Daniel Hofer Sr., Daniel Hofer Jr. and David Hofer received letters on February 16, 1987 from the lawyers for the colony informing them that they have been expelled from the colony and requiring them to vacate the colony lands by February 19, which would be before the meeting at Woodlands. They did not leave the colony, and the statement of claim in this action was filed on February 25, 1987.

The attempt to have the defendants vacate the colony led to even greater civil disobedience and unrest on the colony. The trial judge described the effect of the defendants' actions on colony life as highly disruptive. Daniel Hofer Sr. and the others also began a letter writing campaign in which they made wider accusations concerning mismanagement of the affairs of the Hutterites in Manitoba. In fact, these accusations formed part of the basis of the counter-claim in this case, which was dismissed at trial and not appealed.

It might seem odd that the letters telling the defendants to vacate would be sent and the statement of claim issued despite the fact that the matter was to be considered by the upcoming meeting of ministers at the Woodlands Colony. However, it must be remembered that the expulsion is initially the act of the colony, and the statement of claim was issued on behalf of the colony. The further review is by the conference. It is possible that the decision to grant further review could have the effect of suspending the initial decision to expel, but this is not necessarily so. Michael Wollmann, one of the overseers, was asked to address this issue. His testimony suggests that in Hutterite practice the initial decision by the colony is effective until it is overturned by the conference (at pp. 1242-43 of the Case on Appeal):

Q.Is the church decision, the congregational decision, binding or effective even though he has asked for further review? Is there a stay of proceedings, or does that decision apply right then?

A.That was applied, and he is found guilty, and it was applied and it got carried. If he wants to go to the elder, and the elder sees that we were not quite on track, that's up to the elder and a few others to make that decision, not mine nor his.

However, the answer given by Michael Wollmann does not unequivocally address the issue of the interim status of the initial decision after further review has been granted. Since there was no other evidence on the point, it is difficult to establish what the Hutterite practice in this regard would be. However, it seems that this was at least the understanding of the colony, since the letters asking the defendants to vacate are otherwise premature.

H. March 11, 1987 Meeting of 41 Ministers at Woodlands

The defendants were given notice of the meeting at Woodlands, but refused to attend. They sent a letter to the meeting noting that some ministers had already invoked the court system, and indicating that they were not ready to attend. The letter indicated that the defendants would notify the ministers when they were ready to attend.

The ministers ratified the steps which had been previously taken by the colony, and decided that the degree of shunning of the defendants should be increased, so that there would be no association with them of any kind.

I. September 26, 1987 Meeting of Lakeside Colony

The defendants received no notice of the meeting of the Lakeside Colony on September 26, 1987, or subsequent meetings of the colony. This is not surprising, since from the colony's point of view the defendants were no longer members. The situation at Lakeside was discussed at some length, and the members were asked individually whether they sided with the church or with Daniel Hofer Sr.'s group.

J. April 9, 1988 Meeting of Lakeside Colony

The minutes record that the condition of Daniel Hofer Sr. and "his boys" on the colony could no longer be tolerated. According to the testimony of Jacob Hofer, Daniel Hofer Sr. and his group were still running a variety of enterprises using colony property, and the profits from these enterprises were not being turned over to the colony.

The ongoing situation was discussed, and the members agreed that the expulsion which had been imposed on January 21, 1987 was "right and just" (see p. 879 of the Case on Appeal). The minutes record that eight members signed in agreement with the excommunication of Daniel Hofer Sr., Daniel Hofer Jr., and David Hofer.

K. May 17, 1988 Meeting of 106 Ministers at Milltown Colony

The defendants had notice of this meeting, but refused to attend. The reason for this refusal is bound up with the ongoing progress of the litigation. In order to support their counter-claim, the defendants were seeking access to various records of Manitoba Hutterite colonies, and this access was being denied. The defendants sought court-ordered access, and those proceedings were adjourned in the hope that the parties might agree on the issue. The defendants thought that the plaintiffs had agreed to provide access, and then hold a meeting to consider the charges which had been made. The plaintiffs agreed to hold a meeting, but did not provide access to the records prior to the meeting. In those circumstances, the defendants did not wish to attend. They did, however, leave messages on the windshields of the vehicles of many of those who did attend.

The minutes of the meeting record that Larry Hofer was included with Daniel Hofer Sr., Daniel Hofer Jr., and David Hofer as having made the complaints in question. The events surrounding these four were discussed, and it was decided that Daniel Hofer Sr. and "those in company with him" could not be members of the church, and should vacate the colony.

The next day, a smaller group of ministers met with the managers and auditors of the joint Hutterite enterprises in Manitoba to review the complaints which had been made, and determined to their own satisfaction that they had no substance.

L. July 21, 1988 Meeting of Lakeside Colony

The defendants once again had no notice of the July 21, 1988 meeting. At this meeting, the whole situation was reviewed by members of the colony, and they decided that they had no cause to complain, either with regard to the patent issue or with regard to the wider charges which Daniel Hofer Sr. had made. The excommunication of Daniel Hofer Sr., Daniel Hofer Jr., David Hofer, Larry Hofer, and "all who associate with them" was "ratified, sanctioned and confirmed."

V. Conclusion

A. Was there a Vote to Expel?

Whether a vote was taken to expel is a perplexing question due to several aspects of Hutterite practices. Hutterite discipline is marked by a series of steps taken to withdraw from contact with a member, from mild shunning to a total avoidance of contact. At the extreme end of this range, the complete shunning for a time of a person who remains a member is difficult to distinguish from the expulsion of a member. The Senior Elder acknowledged this in his testimony (at p. 610 of the Case on Appeal):

Q.Then your note goes on, the next sentence: "It was then unanimously decided that Danny Hofer Sr. and all involved with him shall not be classed as a brother or member any longer."

Now, is that excommunication?

A.It can be. It depends on the situation. If he is no more a member, then he is dismembered. If he is no more a brother, it could be that he could be removed from brotherhood. But dismembered puts it pretty stiff.

Indeed, even after a member is expelled, it seems that the Hutterite practice is not to ask that member to vacate the colony immediately. Some opportunity is given after expulsion for the former member to repent and rejoin the colony. It is only if this seems impossible that the former member is actually asked to leave. This practice was confirmed by Jacob Hofer at p. 934 of the Case on Appeal:

THE COURT: Vacate? If he's out of the church, a vote is taken and he's excommunicated. If he doesn't come around, then he's out of the church and vacated.

THE WITNESS: Yes.

Even when a person is asked to vacate, the Hutterites do not physically eject them. This is part of the Hutterite doctrine of non-resistance. This non-resistance left the colony in a difficult position in dealing with the conduct of Daniel Hofer Sr. and his group. This is clear from the testimony of Joshua Hofer with regard to the incident when Daniel Hofer Sr. and others were loading hogs to take to market against the will of the colony (at pp. 1088-89 of the Case on Appeal):

A.My Lord, this certain morning where Dan Hofer, Sr., was taking a load of hogs to town, as they were loading we noticed they were loading hogs and we knew that they were going to take them without the management. So I phoned Mike and Jake, I believe at starlight [sic] [Colony], and told them -- asked them what the best way would be to go about stopping those hogs from going to market without the management. So physically we couldn't do too much about it.

Q.Why? Could you explain that to The Court, please, physically you couldn't do too much about it?

A.Well, we're not about to go and physically start fighting and stopping them from loading hogs.

Q.Why not?

A.It's against our religion and complete Hutterian system to go and fight with other people physically.

So we decided to report it to the local RCMP as a theft. . . .

Reporting that conduct as a theft to the RCMP instead of physically preventing it is exactly analogous to bringing the present action instead of physically removing the defendants from the colony. Michael Wollmann confirmed in his testimony that the Hutterite expectation is that when a member is expelled he will leave without being physically forced to go (at pp. 1252-53 of the Case on Appeal).

Therefore, while it is initially surprising that the expulsion of Daniel Hofer Sr. was being addressed at meetings long after the initial January 21, 1987 meeting, this ongoing discussion is in accord with Hutterite practice. Assuming that Daniel Hofer Sr. was expelled on January 21, 1987, it is consistent with Hutterite practice that his presence on the colony would be tolerated for a time, to see whether he might repent, and that further meetings would be held to discuss the situation and confirm the original decision. Indeed, such further discussion is almost inevitable if the expelled member refuses to leave -- since the Hutterites will not physically compel him to do so, discussion is the only technique available to them.

1. Daniel Hofer Sr.

The trial judge found, at p. 203, as a fact that Daniel Hofer Sr. had been expelled at the January meetings, though he did not determine whether the expulsion had taken place on January 21 or 31:

Whether the actual excommunication occurred at the meeting of January 21, 1987, at which he was present, or at the second meeting of January 31, 1987, which he refused to attend and after the overseers had consulted with the senior Minister for all the colonies, to my mind, makes no difference. The members of the Colony at the meetings were well aware of what they were doing, and in accordance with their constitution, Article 39 (supra), voted to say: "Daniel Hofer Sr. and all those who stand with him, (the other defendants) are no longer brothers, go and leave us in peace". That, to my mind, and in the minds of the Ministers, overseers, elders and members, could have no other meaning. Daniel Hofer Sr. was expelled from his church, for his total disobedience to the baptismal vows of his church, which he in fact had made on two separate occasions, when he was first baptized, and again in 1981, when all the then members of Lakeside applied for a remission of their suspensions, and renewed their vows before the whole congregation.

The Court of Appeal agreed, at pp. 212-13, and specifically determined that the expulsion had taken place on January 21:

In my view, Daniel Hofer Sr. lost his membership in the Lakeside Colony, and thus in the Hutterite Church, on January 21, 1987. There was common understanding as well, that Daniel Hofer Jr., by following and supporting his father's position, would also lose his membership. In any event, their loss of membership was confirmed at yet another meeting of the members of the Colony on January 31, 1987. At that same meeting, one David Hofer was also excluded from membership since he too had decided to take up the cause of Daniel Hofer Sr. The same fate befell Larry Hofer when he became an ally of the dissident group at a later date.

The conclusion that Daniel Hofer Sr. was expelled at the January 21 meeting is supported by the evidence. The Senior Elder testified at pp. 611-12 of the Case on Appeal that his review of the minutes of that meeting led to the conclusion that Daniel Hofer Sr. had been expelled.

Q.Are you satisfied that in reading the last paragraph on page 4, at that particular point in time once those events had been concluded, that Daniel Hofer Sr. was excommunicated from the Lakeside Colony?

A.Yes, with together the other information that was brought when first of all they had wanted him to be excluded from brotherhood, not to be in communion any more with the brothers in the dining hall nor in the worship.

And after he rejected that, then out he goes even though it could have stayed if he would have been decent only and accepted it as released from the brotherhood and be obedient to go and take his meal in separation of the rest of the faithful brothers. He could have stayed, but since he didn't, then it ultimately was an expulsion and a total exclusion, not only a part exclusion, and it is him that made the choice, not the brothers. He was asked to make a choice.

This is also confirmed by Jacob Hofer (at p. 937 of the Case on Appeal). I should note that much was made in cross-examination of Jacob Hofer of the fact that he had previously testified at the examination for discovery that the expulsion of Daniel Hofer Sr. had not taken place on January 21, 1987, but that only the first step had been taken at that time. This is certainly one view which one could take of the evidence, but there is evidence to support the view of the Court of Appeal that the expulsion of Daniel Hofer Sr. took place on January 21st, and this is the position ultimately taken by Jacob Hofer at the trial.

2. Daniel Hofer Jr., David Hofer and Larry Hofer

Daniel Hofer Jr. and the others were not expelled on January 21, 1987. This is confirmed by the Senior Elder at p. 614 of his testimony. However, Daniel Hofer Jr. and David Hofer were expelled at the January 31 meeting. This was found as a fact by the trial judge, and is confirmed by the minutes of that meeting and by the testimony of Jacob Hofer, one of the overseers (at p. 857 of the Case on Appeal). Larry Hofer was expelled by a vote at the July 21, 1988 meeting. This is the first meeting at which the expulsion of Larry Hofer is referred to specifically.

3. Paul Hofer Jr., John Gerald Hofer and Leonard Hofer

The young defendants were told by the overseers to leave the colony in the early days of February as recorded above. There is an issue whether the Articles of Association give the President of the colony the authority to determine whether the children of members have violated the conditions under which they may stay on the colony. It may be that either the directors or the colony as a whole must make this decision. However, there really was no evidence led on this point and the point has not been argued. We will assume, therefore, for the purposes of this case, that the young defendants were expelled in accordance with the relevant rules in the early days of February 1987.

B. Was there Sufficient Notice?

1. Daniel Hofer Jr., David Hofer and Larry Hofer

There is no record of any notice having been given Daniel Hofer Jr., David Hofer and Larry Hofer that their expulsions would be considered at any meeting of the colony. They did not have notice of the agenda of the January 31, 1987 meeting of the colony, and did not have notice of the July 21, 1988 meeting either. The appeal must therefore be allowed in their respect.

The reason that Daniel Hofer Jr., David Hofer and Larry Hofer had no notice of their expulsions was that to the colony members, none seemed required. It was clear after the January 21, 1987 meeting that those who acted in the way that Daniel Hofer Sr. had been acting would be expelled, and these three were obviously acting in that manner. There was really no need to give them notice -- their expulsion was automatic.

That this was the understanding of the colony is confirmed by the testimony of Michael Wollmann (at pp. 1358-59 of the Case on Appeal):

Q.It was then agreed with the rest of the members that the above three [the sons] were no more members and out of the church. Now, is that in agreement with your recollection of what took place at the meeting on the evening of January 31st?

A.They sided with their dad, automatic they go. That's unnecessarily [sic] hearings will be. We don't have to. If they voluntarily go with their dad in that form, they are out.

This understanding was confirmed by the Senior Elder in his testimony when given the hypothetical example of another Hutterite affiliating himself with Daniel Hofer Sr. (at p. 633 of the Case on Appeal):

Q.Are you saying to me, sir, then it would require no hearing, no counselling, no accusation, no approach, no discussion; simple fact that if Paul Hofer Sr., for example, affiliates himself withself [sic] with Daniel Hofer Sr., he is therefore by that act alone excommunicated?

A.He has chosen.

This was also confirmed by Jacob Hofer (at p. 1010 of the Case on Appeal):

Q.Sir, following January 31, 1987, it was the policy then of the church that if anybody sided with Daniel Hofer, Sr., that they were subject to excommunication for so doing?

A.They excommunicated themselves to side with an excommunicant.

Joshua Hofer also accepted that this was the result of the January 31, 1987 meeting (at p. 1147 of the Case on Appeal).

However, it must be remembered that natural justice requires procedural fairness no matter how obvious the decision to be made may be. It does not matter whether it was utterly obvious that Daniel Hofer Jr., David Hofer and Larry Hofer would be expelled. Natural justice requires that they be given notice of a meeting to consider the matter, and opportunity to make representations concerning it. This may not change anything, but it is what the law requires.

2. Daniel Hofer Sr.

Whether Daniel Hofer Sr. was given sufficient notice raises a different set of issues. Daniel Hofer Sr. did not have notice that his expulsion was on the agenda of the January 21 meeting, for the reason that the colony did not at that point intend to expel him. As the Court of Appeal stated, Daniel Hofer Sr. must have realized that the meeting would discuss his behaviour. When Daniel Hofer Sr.'s conduct during the meeting, and his refusal to accept the mild penalty imposed, brought his expulsion into issue, he was specifically warned, as found by the trial judge, that he was "expelling himself" if he did not repent. Despite this warning, Daniel Hofer Sr. did not accept the mild penalty, and was expelled.

There is a sense in which Daniel Hofer Sr. had notice of the charge against him and an opportunity to make representations as to whether he ought to be expelled or not. However, there were really only a few moments of notice that expulsion was being considered before the issue was actually decided. One wonders whether such short notice is really adequate when a decision of this magnitude is to be made. There is no suggestion that there was any urgency with respect to the expulsion itself, though it is clear that some discipline was required to control Daniel Hofer Sr.'s behaviour.

When considered from the point of view of the two voting members of the colony who were not present at the January 21, 1987 meeting, the notice seems even more inadequate. Those two members had no notice that the expulsion of one of their brethren was to be considered at the meeting. Of course, this is because the issue of expulsion only arose due to conduct at the meeting, but this does not change the fact that the two absent members were deprived of the opportunity to participate in those discussions. Had they known that such an important decision was to be made, it is quite possible that they could have made greater efforts to attend.

A proper procedure would have been to defer consideration of the issue of expulsion to a subsequent meeting called for that reason with adequate notice to all voting members of the colony. One can understand that this was not done in this case because Daniel Hofer Sr. was seen by the colony as having expelled himself through his conduct. However, even if the matter is viewed in this manner, a decision was required by the members of the colony recognizing the expulsion to make it effective. Natural justice required that adequate prior notice of such a decision be given to all concerned.

There is a certain irony in concluding that the colony acted in too hasty a manner in expelling Daniel Hofer Sr. at the January 21, 1987 meeting, since the colony was aware of the need for a "cooling down" period and scheduled another meeting for January 31, 1987. However, the purpose of that meeting was to see whether Daniel Hofer Sr. would repent and seek readmission to the colony. This presumes that the decision made at the prior meeting was properly made. When invited to this meeting, Daniel Hofer Sr. took the position that he was not prepared to repent, since he was disputing the original decision and had requested further review. Since the meeting on January 31 was not called for the purpose of reconsidering the decision of January 21, it cannot be seen to have cured the procedural defects at that earlier meeting. This conclusion applies to all further meetings which were held, especially since they were all held after the statement of claim had been issued.

Therefore, due to the defective notice of expulsion on January 21, 1987, the appeal must be allowed in respect of Daniel Hofer Sr. as well.

3. Paul Hofer Jr., John Gerald Hofer and Leonard Hofer

There is no evidence that the young defendants had any notice that their expulsion would be considered at the meeting which was held with the overseers in early February 1987. The young defendants were asked which group they sided with, and upon reporting that they sided with Daniel Hofer Sr. they were immediately told that they must leave the colony. They were not even warned, as Daniel Hofer Sr. was, that they would be expelled unless they changed their ways. Therefore, the appeal must be allowed in respect of the young defendants as well.

C. Conclusion

While this has been a complicated case, the whole sequence of events flows from mistaken assumptions on both sides. The colony was mistaken in assuming that Daniel Hofer Sr. could be immediately expelled at the January 21, 1987 meeting, and in assuming that once he had been expelled, anyone who joined his group could be expelled without notice and a hearing. Daniel Hofer Sr. and his group were mistaken in assuming that once further review had been requested, the authority of the overseers was immediately at an end and they were free to run the colony themselves. Given these assumptions, it is not surprising that conditions on the colony deteriorated in the manner in which they have. Perhaps matters can be resolved by the parties now that the litigation is ended and these assumptions may be cast away.

However, the courts are unable to ensure that there will be a happy ending to the disputes at the Lakeside Colony. Indeed, as Stoljar observes in his article "The Internal Affairs of Associations" in Legal Personality and Political Pluralism, the role of the courts is not to intervene to protect one group or another when disputes arise in a voluntary association, but rather to set down rules by which their relationship may be governed (at pp. 66-67):

People, as Kant said somewhere, are ungregariously gregarious. They may associate for some purpose and then may quarrel. The group, its majority or those in power, may want to expel the troublemaker; and he, in his turn, may complain of unfair treatment. Both sides may have their points, though an impartial observer may think the quarrel not worth the ado, nor the offence perhaps worth expulsion. But the observer may feel reluctant to take sides, where the dispute is between one and many. The many may seem too hasty or severe, but then they also represent, if anyone represents, the group's collective wish or purpose. Hence the root-dilemma of legal intervention: on the one hand, you do not wish to intervene because you cannot specify, often cannot understand, the parties' respective merits; on the other hand, the courts are open to everyone, and can thus be called upon to intervene, which means they must either grant or deny the right' of expulsion. But whether the courts recognize or resist that right, their task is difficult and delicate. For theirs is not a political task of shielding the greatest number' or of protecting one's right to be different. The legal task is to formulate rules which will be neutral and equal in relation to all parties.

VI. Disposition

In the result, the appeal must be allowed, the judgments below are set aside and the action dismissed. This means that Daniel Hofer Sr. and his sons have not been expelled and have remained members of the colony throughout, and that the three young defendants have maintained a right to remain on the colony.

The status of the property which the defendants have been accumulating raises an ancillary issue. The colony had asked for an order that the defendants return all colony property to the colony. Given the provisions of the Articles of Association relating to the ownership of property, it seems possible that the colony would be entitled to such an order even though the defendants have not been validly expelled. However, the order for the return of property was not sought on the basis that the defendants were still members, but rather on the basis that they had been expelled. Therefore, the action should be simply dismissed, preserving the right of the colony to take other proceedings to protect its property if that should be required.

As the defendants have prevailed, they are entitled to an award of costs in this Court and the courts below. However, their request that costs should be on a solicitor-client basis should be denied in the absence of any special circumstances which would support such an award.

//McLachlin J.//

The following are the reasons delivered by

McLachlin J. (dissenting) -- I agree with much of my colleague Justice Gonthier's excellent reasons, but cannot accede to his conclusion that the appellants were not granted adequate notice and hence were expelled unfairly, in breach of the requirements of natural justice viewed in the circumstances of this case.

As Gonthier J. points out, the content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. It follows that the court reviewing the decision under review must be careful to ensure that it fully appreciates the institutional and factual matrix in which the decision arises. The ultimate question is whether the procedures adopted were fair in all the circumstances.

The particular procedures dictated by natural justice depend on the facts of the case. As Professors Jones and de Villars put it, "what is unfair in one context may be fair in another" (Jones and de Villars, Principles of Administrative Law, at p. 240). Tucker L.J. discusses this flexible approach in Russell v. Duke of Norfolk, [1949] 1 All E.R. 109, at p. 118:

There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.

Dickson J. adopted and expanded upon these comments in Martineau v. Matsqui Institution Disciplinary Board, 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, at pp. 630-31:

The content of the principles of natural justice and fairness in application to the individual cases will vary according to the circumstances of each case, as recognized by Tucker L. J. in Russell v. Duke of Norfolk, at p. 118.

. . . In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.

Le Dain J. echoes this contextual approach in Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 654:

The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances.

In sum, a tribunal must determine a particular requirement in light of the specific circumstances of the case.

Turning to the specific requirement of notice, the authorities show that advance notice of a decision is not required where the purpose of the notice requirement is fulfilled. The obvious and important purpose of providing notice has been aptly described by Dussault and Borgeat in Administrative Law: A Treatise, vol. 4, 2nd ed., at p. 279: "The right of a person to present a defence against a decision affecting his rights or interests necessarily implies that the person receive prior notice of the facts on which the decision is based." See C.D. v. Tramble (1985), 1985 CanLII 5753 (NS SC), 68 N.S.R. (2d) 53; R. v. Halifax-Dartmouth Real Estate Board; Ex parte Seaside Real Estate Ltd. (1964), 1964 CanLII 601 (NS CA), 44 D.L.R. (2d) 248; Camac Exploration Ltd. v. Oil and Gas Conservation Board of Alta. (1964), 1964 CanLII 462 (AB SCTD), 47 W.W.R. 81.

Was the requirement of notice, viewed in this light, fulfilled in the circumstances before this Court? In my view it was. An examination of the context shows that formal notice was not necessary to permit the appellants to present their defence; indeed the concept of formal notice does not arise because the expulsion of the appellants was essentially a self-expulsion, freely chosen by them with full knowledge of the consequences. Alternatively, if one were to find that some sort of decision to expel was made by the colony, one would be bound to conclude that the appellants were fully aware in advance of what was to be decided and had full opportunity to present their defences.

I turn first to the function of formal notice in the context of this case. The majority of the judges in the Court of Appeal proceeded on the basis that this was not a case of expulsion by the colony but rather a case of self-expulsion. This conclusion is amply supported by the evidence and, indeed, acknowledged by my colleague Gonthier J. (at p. 000). Daniel Hofer Sr. had been openly and continuously disobedient to his colony and church, as the trial judge found. On the doctrine of the church, this behaviour entailed certain consequences, which all the appellants understood.

The church is predicated on voluntary submission to the rulings of the elders in authority, so as to maintain the ideal of peaceful and harmonious living. A member is at all times free to remove himself from the colony. (I use the masculine advisedly; only men can be members.) When a member is disobedient, a meeting is called to consider punishment. The punishment is usually a form of shunning or temporary separation, called Absonderung. For example, in the case of Daniel Hofer Sr., he was told he would be obliged to take his meals and worship separately from the rest of the members for a time.

Several points are important to note at this juncture. First, the "punishment" is not imposed; it is offered. It is seen as an offer to the offender, which if accepted will permit reconciliation with the other members. Second, the nature of the punishment, temporary separation, underlines the foundation upon which the church and colonies are built -- absolute harmony and unity of interest between all members. If the shunning is accepted and performed, harmony is restored and the former offender continues as a full member.

If, however, the offender rejects the punishment, as is his right, the avenue for restoration of harmony is foreclosed. The offender has cut himself off from his brethren. He has elected to excommunicate himself. The question of a formal vote to expel him never arises. It is simply a matter of what he, the offender, chooses. As Huband J.A. wrote for the majority of the Court of Appeal (1991), 1991 CanLII 12051 (MB CA), 70 Man. R. (2d) 191, at p. 212:

It does not appear that any formal vote was taken to confirm the excommunication of Daniel Hofer Sr. from the congregation. There was simply a common understanding that if one did not submit to absonderung the only alternative was excommunication . . . . The shunning is intended as a temporary condition, lasting until the individual is ready to accept the will of the community, and resume his place within it. But if it becomes clear that there is no willingness to accept the shunning, and therefore no hope of reconciliation, then the only alternative becomes excommunication, and expulsion from the Colony. Daniel Hofer Sr. recognized that in asking for a "higher court". The members of the Colony at the meeting did as well, without the need of a formal vote. As counsel for the Lakeside Colony has argued, Daniel Hofer Sr. excommunicated himself by refusing to submit to absonderung. [Emphasis added.]

There is no purpose or place for formal notice in this process. This is because there is no decision taken by the members which would require notice. The only decision taken by the members was that of offering the possibility of reconciliation through Absonderung, or shunning. That offer placed the ball in Daniel Hofer Sr.'s court. It was up to him and him alone whether he would accept the Absonderung and bring himself back into harmony with the community, or whether he would reject it and stand excommunicated.

I have earlier alluded to the principle that if formal notice will serve no purpose, then failure to give notice will not be considered a breach of the rules of natural justice. Here notice would have served no purpose, since the only decision at issue was that of the appellant Daniel Hofer Sr. It makes no sense to require the colony to give notice of debate concerning a decision which is not theirs to make. If there is no decision to make, there is nothing to give notice of. Gonthier J. alludes to this point at p. 000 of his reasons, where he observes that one can understand why notice was not given "because Daniel Hofer Sr. was seen by the colony as having expelled himself through his conduct."

Gonthier J. goes on to conclude at p. 000 that notice was required, however, by postulating a further decision which the colony was required to make after Daniel Hofer Sr. decided to reject the offer of Absonderung and hence to expel himself: a decision to "recognize" the expulsion:

However, even if the matter is viewed in this manner, a decision was required by the members of the colony recognizing the expulsion to make it effective. Natural justice required that adequate prior notice of such a decision be given to all concerned.

With respect, the evidence does not support the conclusion that a ratification of the expulsion was required to make it effective. The membership may extend to the offender a further opportunity to reconsider his position, as they did in this case by calling the meeting of January 31, but there is no evidence that they ever vote or otherwise decide to "ratify" an offender's self-expulsion. As Gonthier J. notes at p. 000, even after a member is expelled, it seems that the Hutterite practice is not to ask the member to vacate the colony immediately. I note moreover that the church's constitution appears to recognize that expulsion can take place without a majority vote: s. 46. Gonthier J. cites Hofer v. Waldner, 1920 CanLII 652 (AB SCTD), [1921] 1 W.W.R. 177 (Alta. S.C.), for the proposition that the mere commission of an offence by a Hutterite does not result in final expulsion. That may be. However, no one suggests that Daniel Hofer Sr.'s offences of disobedience alone resulted in expulsion. What is suggested, with the full support of the evidence, is that he chose to expel himself when he rejected the offer of Absonderung which the colony tendered to him at the January 21 meeting. In these circumstances, no further decision by the members was necessary to complete the process.

Alternatively, if one takes the position that the members made a decision to expel Daniel Hofer Sr. at the meeting of January 21, it is clear that Mr. Hofer was fully aware of the fact that continued defiance made continued membership in the colony impossible and that the colony would have no alternative given its theological beliefs but to view him as expelled. As the Court of Appeal found and Gonthier J. notes (at p. 000), "Daniel Hofer Sr. must have realized that the meeting would discuss his behaviour." As a twice-baptised member of the church, he must equally have known the inevitable consequence of refusal to accept the offer made as a consequence of the meeting. Nowhere is it alleged he did not appreciate these things. In short, he had full knowledge of what would happen; making formal notice was unnecessary.

Finally, the scheduling of a further meeting on January 31, for the purpose of allowing Daniel Hofer Sr. to reconsider his decision to reject the colony's offer, substantially cured any previous omission of notice, since the members were giving him another chance to come forward and be reconciled. Anything he could have said at the January 21 meeting about expulsion could have been said to equal effect January 31. On this ground too, it seems that the purpose of any required notice was served and there is no unfairness in substance.

I have been speaking mainly of Daniel Hofer Sr. The young men who followed him are in no different position, in my view. They, like him, voluntarily chose to leave. As one of the elders, Michael Wollman, put it with respect to Daniel Hofer's sons, ". . . if they voluntarily go with their dad in that form, they are out." They knew the consequences of their conduct, as Gonthier J. says of the sons of Daniel Hofer Sr. (at p. 000): "It was clear after the January 21, 1987 meeting that those who acted in the way that Daniel Hofer Sr. had been acting would be expelled. . . ." Yet they chose to follow Daniel Hofer Sr. Nor can there have been any mistake on their part. Had any one of the young people wished to maintain that he was not voluntarily leaving, he could have so indicated. The right of appeal was extended to the excommunicated members, but, as noted by Huband J.A. in the Court of Appeal, on two occasions the appellants failed to take advantage of that opportunity. In these circumstances, the absence of formal notice was at best a technicality.

Viewed as a whole, the church's manner of dealing with the appellants was open, considered and eminently fair. Repeatedly, through the long and protracted saga of this affair, the members offered Daniel Hofer Sr. and those who chose to follow him the opportunity, not only to be heard, but to change their mind and return to the church community. Repeatedly, the members' offers were spurned. In these circumstances, I cannot accede to the conclusion that the colony's conduct discloses any breach of the principles of natural justice in its dealings with the appellants. The reality was that the church's fundamental tenet of peaceful submission had clashed head-on with Daniel Hofer Sr.'s defiant spirit of independence. The church tenaciously followed its path of discussion and offers of reconciliation. Daniel Hofer Sr. equally tenaciously rejected its overtures on the ground that it was not for the church to judge him. Like Luther with Rome, the problem lay not in unfair procedures or lack of opportunities for hearing; the problem lay rather in the fundamental divergence between the parties, a divergence which doomed any proceedings, no matter how just, to failure.

I wish to add a final comment. I share the Court of Appeal's sensitivity to the apparent inequity that members who, together with their wives and children, have contributed to the assets of a colony, find themselves outside the colony without a share of the assets. But I agree with the majority in the Court of Appeal that the issue of property has not been placed before the court. The appellants sued to remain as residents of the Colony and as such to retain possession of their share of the assets of the colony. Had they made a claim for a division of the assets and judgment for their share, the court might have been called upon to revisit the question raised in Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958, where the majority in this Court held that persons expelled were obliged to leave the colony without any share of its property. But the appellants' only claim at this juncture is for the right to remain as members of the colony. It is on that basis that we must decide the case.

I would dismiss the appeal.

Appeal allowed with costs, McLachlin J. dissenting.

Solicitors for the appellants: Thompson, Dorfman, Sweatman, Winnipeg.

Solicitors for the respondents: Baker, Zivot & Company, Winnipeg.