George Chifor, Steuart Bruce and Dexter Robinson v. Windsor/Essex County Humane Society, 2026 ONSC 667

CITATION: Chifor, et al. v. Windsor/Essex County Humane Society, 2026 ONSC 667

COURT FILE NO.: CV-24-34179

DATE: 20260204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

George Chifor, Steuart Bruce and Dexter Robinson

Applicants

– and –

Windsor/Essex County Humane Society

Respondent

COUNSEL:

Andrew Colautti, for the Applicants

Ellen Snow, for the Respondent

HEARD: December 11, 2025

KALAJDZIC J.:

OVERVIEW

1The Windsor/Essex County Humane Society (“the Society”) is a registered charity subject to the Ontario Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15 (the “ONCA”). The Society has 12 directors, six senior staff, and dozens of employees and volunteers. It receives both government funding and significant financial support through private donations.

2In early June 2024, the Society’s Board of Directors (“the Board”) passed a by-law to overhaul its corporate governance structure (the “June 2024 By-law”). Among other changes, the Board resolved to move from an open membership model – by which anyone could become a voting member of the Society with few conditions – to a closed membership model. In a closed membership model, to be a member an individual must also be a director of the Society. The practical effect of this governance model is to eliminate the distinction between directors and members, vest any voting rights solely with the Board, and eliminate all other members.

3Importantly, the June 2024 By-law was not to take effect until the Society’s Articles of Amendment were approved later in the fall.

4Two weeks after the June 2024 By-law was passed, the Board terminated the employment of the Society’s long-time Executive Director, Melanie Coulter, without cause. According to all parties, Ms. Coulter’s termination was very controversial among employees, volunteers, and the public at large.

5In July and August 2024, well over 100 individuals signed up to become members of the Society using the Society’s new online portal. They paid the requisite membership fee and were advised that they would have voting rights at the next Annual General Meeting.

6The Board did not anticipate this dramatic increase in membership. The directors suspected that the new members were Ms. Coulter’s supporters and would not have the best interests of the Society at heart. The directors did not formally approve the members and did not permit them to vote at a special meeting held on October 4, 2024. At this meeting, a simple majority of the membership voted to approve an amended version of the June 2024 By-law that took immediate effect.

7The applicant, Steuart Bruce, is one of the members who was not permitted to vote at the October meeting. The other applicants, George Chifor and Dexter Robinson, were voting members at the October meeting but who now, as a result of the passage of the June 2024 By-law, are no longer eligible members of the Society. All three applicants contest the Board’s conduct. They seek to set aside the June 2024 By-law on the basis that the Board acted in bad faith, and did not comply with the ONCA.

8This application is not about the wisdom of the Board’s decision to move to a closed membership governance model, nor is it about the controversial termination of Ms. Coulter’s employment. This application concerns only two questions:

Did the directors act in bad faith when they did not approve the new members?
Does the ONCA require that the June 2024 By-law be approved by a two-thirds majority of the members, rather than a simple majority?

9For the reasons that follow, my answer to both questions is “yes”.

BACKGROUND

10The following facts are uncontested.

11A 2019 by-law set out the conditions for membership in the Society. To be eligible for membership, an individual had to:

a. be 18 years of age or older;

b. be a resident of or employed in the territory served by the Society; and

c. pay membership fees as established by the Board.

12Under the same 2019 by-law, at least 14 days’ notice to members was required prior to annual meetings, and only a member could be a proxy for another member.

13Under s. 7.04 of the 2019 by-law, Board approval of an application for membership was required. All parties agree, however, that this provision was honoured in its breach. The Board did not pass formal resolutions approving any new members between 2019 and 2024, but still treated such individuals as members with voting privileges.

14On June 11, 2024, while Ms. Coulter was still Executive Director, the Board passed the by-law moving to a closed membership model, for the ostensible reason that it was sometimes difficult to get a quorum of ten people. The June 2024 By-law also amended the annual meeting notice requirements from 14 days to ten days and stipulated that proxies need not be members of the Society.

15Two weeks later, on June 25, 2024, Ms. Coulter was terminated without cause. She remained a member of the Society after her termination.

16Ms. Coulter’s termination received intense media scrutiny. She had served as Executive Director of the Society for more than 15 years and enjoyed considerable public support.

17Shortly thereafter, the Board appointed Rob Moroz as interim Executive Director.

18In a mid-July email to Mr. Moroz, Emma Truswell, an employee of the Society and its Outreach Coordinator, proposed adding a membership link to the Society’s website because of the number of people calling the front desk to become members. Mr. Moroz told Ms. Truswell to proceed. The online portal went live on July 18, 2024. It was advertised in the Society’s monthly newsletter which was sent to approximately 19,000 people.

19Both the solicitation for new members and the standard email confirming receipt of the online applications stated that members had voting privileges at Annual General meetings.

20At a Board meeting held on July 23, 2024, the directors discussed the online membership drive. By this point, at least three directors had renewed their annual memberships using the online portal. The Board met twice in August and, in at least one of the meetings, discussed the new members and whether they could vote.

21Mr. Moroz checked with staff on multiple occasions regarding the number of new members. On September 4, 2024, he was advised that a total of 224 members (both old and new) had signed up and paid their dues.

22The Board met again on September 10, 2024. By this point, Mr. Moroz had ordered that the portal be deactivated. Sometime between June 11 and September 10, 2024, the directors learned that the 2019 by-law required formal Board approval of new members. The Board passed a resolution stating that only individuals who were members before June 11, 2024, would be considered voting members. The Board “deferred” approval of any new membership applications.

23A special meeting of the members was held on October 4, 2024. The Board recognized only 27 members as eligible to vote. A simple majority of those members – 17 in favour and ten against – approved the June 2024 By-law. The by-law now included an amendment that removed the stipulation that it would not take effect until Articles of Amendment were issued.

24As a result of the June 2024 By-law, only the directors were members of the Society. On October 7, 2024, these members voted to approve the Articles of Amendment.

ISSUES

25This application raises two questions:

Issue 1: Did the Board of Directors act in bad faith by refusing to approve the memberships of individuals who signed up after June 11, 2024?

Issue 2: Does the ONCA require that the June 2024 By-law be passed by a special two-thirds majority of the members?

ANALYSIS

Issue 1: Did the Board of Directors act in bad faith by refusing to approve the memberships of individuals who signed up after June 11, 2024?

a) Legal Framework

26 Section 43 of the ONCA mandates that directors must discharge their duties in good faith when exercising their powers of office. Even where decisions are made in technical compliance with the corporation’s own by-laws, the court may intervene if directors of a corporation have acted in bad faith or contrary to the rules of natural justice: Chu v. The Scarborough Hospital Corporation, 2007 33757 (Ont. Div. Ct.), at para. 22; Barrie & District Association of Realtors v. Information Technology of Systems Ontario et al., 2025 ONSC 3388, 177 O.R. (3d) 207, at para. 120; London Humane Society (Re.), 2010 ONSC 5775, at para. 29.

27“Bad faith” is defined as “[d]ishonesty of belief or purpose”: London Humane Society, at para. 32. Decisions that are arbitrary are actions in bad faith: London Humane Society, at paras. 32-34. Similarly, actions taken for an oblique, illegitimate, or collateral purpose are the hallmarks of bad faith: Pal v. Chatterjee, 2013 ONSC 1329, at para. 46.

28Courts are reluctant to interfere in the internal affairs of a voluntary organization, and may do so only in narrow circumstances, such as where the organization has acted in bad faith and where a legal right of sufficient importance is at stake: Hellenic Congress of Quebec v. Canadian Hellenic Congress, 2020 ONSC 2224, at para. 66. Nevertheless, courts have an important role to play in scrutinizing decisions made by societies—discretionary or otherwise—to ensure they stay within the bounds of what their constitution and by-laws allow: Sidhu v. Kalgidhar Darbar Sahib Society, 2024 BCCA 402, at para. 42.

29Pursuant to s. 48(1) of the ONCA, conditions for becoming a member must be outlined in the corporation’s by-laws. Unless explicitly outlined in the by-laws, directors do not have the discretion to deny membership unilaterally, or on the basis of ideological differences. For example, in London Humane Society, the board was unable to articulate a clear reason for declining eight membership applications, stating only that the directors felt that the applicants would not support the objects of the corporation. The court found the applications were rejected in bad faith and deemed the eight applicants to be members for voting and all other purposes.

30Similarly, the B.C. Court of Appeal found that the board of a hospice acted arbitrarily and in bad faith when it denied membership to individuals who supported medically assisted dying. The court held that it was improper to reject members based on ideological differences if particular conscientious or ideological views were not requirements for membership under the by-laws of the corporation: Farrish v. Delta Hospice Society, 2020 BCCA 312, 43 B.C.L.R. (6th) 211, at paras. 86-88, leave to appeal ref’d [2020] S.C.C.A. No. 479.

b) Membership Recruitment

31In mid-July 2024, the outreach coordinator for the Society sought and obtained approval from the acting Executive Director, Mr. Munoz, to add an online application portal to the Society’s website. This was the first time that the Society offered memberships through its website.

32Counsel for the respondent describes the membership drive as “unauthorized.” I reject that description for the following reasons:

a. Mr. Munoz reported directly to the Board. He approved the portal and its advertisement in the monthly newsletter.

b. There is no doubt that the directors knew about the membership drive at the time it was happening. Some directors, including the Chair, used the online portal to renew their own memberships in July 2024.

c. The membership drive was discussed by the Board at its meetings on July 23 and August 13, 2024. The Society refused to produce the minutes of its meeting on August 27, 2024.

33There is no evidence that the Board viewed the membership drive as “unauthorized” during the period in which the portal was active. None of the minutes produced by the Society show directors questioning the validity of the membership drive. What the minutes do reveal is that the directors became concerned about the number of individuals applying and how those individuals would vote, as evidenced by the following exchange at the July 23^rd meeting:

Andrew T-K: Do you know what the numbers are for membership.

Rob M. [Moroz]: I can find that out on Wednesday.

Tammy W.: They are organized. I see it in their chats. The volunteer coordinator sent out a plea to volunteers to get memberships.

Rob M.: I am stomping out inappropriate communications when I hear it.

Kyla P.: If they file in advance then they can’t stand up and vote us off.

Holly S.: They have to have their membership 28 days in advance. […]

Rob M.: The Board has to explain where they are at with ONCA and with openings on the Board […] There are two openings, Andrew and Kyla resigning. Matt [Carlini] and Alex are standing for re-election.

Andrew T-K: Do we have an effective date for the new Chair and Vice-Chair to take over?

Tammy W: I’m ok with that but it still has to go to the AGM. If they bump Matt and Jason, then two more positions are open.

Rob M.: They want all the Board out. We need to minimize the rioting. The Board needs to talk.

Andrew T-K: We need to wait.

Rob M.: We need to mitigate-talk. The five positions can represent renewal and a new way. We need to get ahead of things. There will be five fresh faces on the Board.

Holly S.: How many new members are there?

Andrew T-K: Rob [Moroz] will get that for us on Wednesday.

Andrew T-K: Did MC give the staff direction not to renew their membership?

Tammy W.: It is now on line. [emphasis added]

34By September 4, 2024, the Board was aware that over 100 people had submitted and paid for individual or family membership applications using the Society’s online portal, and that up to 224 voting members existed by that date. By September 10, 2024, Mr. Moroz had directed staff to take down the member recruitment webpage.

35The Board may not have initiated the membership drive, but the interim Executive Director authorized it, and the directors were aware of it for months before the online portal was deactivated. Counsel for the respondent did not point me to any provision in any by-law that required a formal Board resolution for membership recruitment to take place. I find that no such resolution was required.

36In addition, even if the membership drive was motivated by concern about Ms. Coulter’s termination, this is part of the democratic process enshrined in non-for-profit corporate governance law. It is not grounds to deny membership: Farrish, at para. 88.

c) Conditions for Membership

37Between June and September 2024, the operative by-law, in effect since 2019, imposed few conditions for membership: applicants had to be 18 years of age or older, live or work in the territory served by the Society, and pay the requisite fee.

38Section 7.02 of the 2019 by-law also stated that “[m]embership in the Society shall commence upon acceptance by the Board of the new Member’s application in the prescribed form.” Section 7.04 further stipulated that “recommendation of membership by a simple majority resolution of the Board made at a duly constituted meeting of the Board” was a condition precedent to admission to the Society.

39The Society’s evidence at the hearing, however, was that, historically, the Board did not formally approve member applications. Even the current Chair of the Board, Matt Carlini, joined the Society as a member without approval by a Board resolution. His evidence was that there was no standard practice for the admission of new members, in part, because there were very few new members. Indeed, in the decade prior to June 2024, only seven individuals became new members. These members were either employees or directors of the Society, or their spouses.

40Sometime between June 11 and September 4, 2024, the Board became aware of the requirements of ss. 7.02 and 7.04 of the 2019 by-law, and that those provisions had never been followed. By resolution passed on September 4, 2024, the Board purported to correct that error by declaring that only persons who were members on or before June 11, 2024, were approved to be members of the Society. The Board’s rationale for choosing this cut-off date is described in the preamble of the resolution:

F. Insofar as the best interests of the Corporation, the Board is concerned that applications for membership received after the Executive Director’s employment ended may be from persons who do not have a broad-based interest in the Corporation but rather a singular interest in the identity of the Executive Director, which singular interest may be polarizing and divisive and not in the best interests of the Corporation.

G. Insofar as respecting the rights of those persons who may be entitled to natural justice, it is noted that, as at June 11, 2024 when the Board approved By-law Number: June 11, 2024, the Board was not then aware of its omission in recommending and accepting memberships. The Board simply assumed that those persons who applied through the Corporation’s website were properly members and as such the Board believes that formalizing such memberships now and allowing such members to confirm, reject or amend By-law: June 11, 2024, is in accordance with the Corporation’s interpretation of ONCA, is in the best interests of the Corporation and respects any entitlements that such persons may have to natural justice.

H. Insofar as acting in good faith to any persons entitled to be treated with good faith, it is noted that persons who submitted membership applications after June 11, 2024, even if admitted as members to the Corporation, would not have a vote to confirm, reject or amend By-law: June 11, 2024 according to the Corporation’s interpretation of section 17 of ONCA and if By-law June 11, 2024 is confirmed, such persons will never have a vote, as the only members will then, ex officio, be the directors of the Corporation. Thus, the Board believes that its good faith obligation to post June 11, 2024 applicants for membership will not be breached by suspending its consideration of their applications for membership until after the apparent members existing as at June 11, 2024 have an opportunity to consider By-law June 11, 2024 and then only if consideration in that regard remains relevant. [emphasis added]

41A plain reading of the September 4, 2024, resolution, therefore, confirms that:

a. the Board was not aware of ss. 7.02 and 7.04 until after June 11, 2024;

b. the Board turned its mind to the ONCA and the requirements to act in good faith;

c. the Board assumed that people who applied to be members after June 11, 2024 were only interested in reinstating Ms. Coulter, rather than being interested more broadly in the Society; and

d. the Board assumed that people who submitted membership applications after June 11, 2024, would not have the right to vote to approve or reject the June 2024 By-law because it would have retroactive effect if approved, and would result in only directors being eligible members of the Society.

42In my view, the Board proceeded on two erroneous assumptions. First, the June 2024 By-law explicitly stated that it would not take effect until Articles of Amendment were passed, which themselves required a two-thirds majority approval of the membership. When originally passed by the Board, the June 2024 By-law was not going to have retroactive effect and therefore could not justify the pre-emptive disenfranchisement of the new members.

43All members were entitled to vote and either approve or reject the June 2024 By-law. It does not help the Board’s argument that it later put forward an amended version of the June 2024 By-law – one that deleted the condition that it would not take effect until Articles of Amendment were passed, to ensure that the By-law would have retroactive effect. The necessity for member approval of a by-law amendment is rendered meaningless if a board can manipulate procedure to ensure that members who may not approve the by-law are unable to vote against it.

44Second, the Board was wrong to assume that the new members were only interested in reinstating Ms. Coulter. Leaving aside the question of whether an interest in Ms. Coulter’s reinstatement is incompatible with a broader interest in the Society, the directors could not discharge their obligations in good faith on the basis of presumptions. Mr. Carlini admitted under cross-examination that neither he nor any other director spoke with the prospective members or vetted their applications to determine why they wished to be members.

45The evidence adduced in the application confirms that the directors erred in assuming that the new members were not interested in the Society more broadly. Approximately half of the new members were either employees, volunteers, or donors of the Society. For example, the applicant, Mr. Bruce, testified that he joined as a member because of his years of volunteer work for the Society, and that he had no interest in seeing Ms. Coulter reappointed. Donors, volunteers, and employees are precisely the kind of people one would expect to have a genuine interest in the workings of the Society.

46Even if the strict wording of the 2019 by-law gave the Board the discretion to deny or approve members, the Board could not exercise that discretion arbitrarily on the basis of considerations not set out in the by-laws or Articles of Incorporation. Section 48(1) of the ONCA requires any and all membership criteria to be contained within the by-laws of a not-for-profit corporation. As a result, the Board could not deny membership because of a concern that new members would vote to remove the Board, or on the assumption that they would vote to reject a by-law. Denying memberships on such ideological or collateral grounds is contrary to the directors’ obligations of good faith: London Humane Society, at paras. 32-24; Farrish, at paras. 86-88.

47Counsel for the respondent submitted that the business judgment rule compels me to defer to the Board’s view that the closed membership model was in the Society’s best interest, and that the steps taken to give effect to that decision were sound. In other words, the ends justify the means.

48As I noted at the outset of these reasons, I am not reviewing the Board’s decision to move from open to closed memberships. That the June 2024 By-law might be in the Society’s best interests, however, does not relieve the Board of its obligations to put the by-law to a vote, and to do so without stacking the deck to reach the desired outcome.

49I find that, by deciding that it would not approve any new memberships received after June 11, 2024, the Board acted arbitrarily and in bad faith. They acted upon considerations not grounded in the by-laws or Articles of Incorporation, and with the primary motivation to ensure that members it perceived – without proof – to be aligned against the Board, did not vote on the June 2024 By-law or the Articles of Amendment. Accordingly, all individuals who submitted their application forms, paid their dues prior to the October 4, 2024, meeting, and otherwise met the conditions for membership set out in s. 7.03 of the 2019 by-law, are deemed to be members.

50By operation of s. 54 of the ONCA, the “record date” that determines which members are entitled to vote at a particular meeting of members was September 13, 2024, or the business day prior to the date on which notice of the October 4 meeting was provided. As a result, all persons deemed to be members as of September 13, 2024, were entitled to vote at the October 4 meeting. Because they were not permitted to do so, the resolution approving the June 2024 By-law is of no force and effect.

Issue 2: Does the ONCA require that the June 2024 By-law be passed by a special two-thirds majority of the members?

51The applicants also submit that the June 2024 By-law is void because it was not approved by a two-thirds majority of those permitted to vote. The applicants’ argument that a two-thirds majority is required turns on a question of statutory interpretation, namely, the meaning of s. 17(1) and its interplay with s. 103(1).

a) General Principles of Statutory Interpretation

52The starting point for all questions of statutory interpretation is the oft-cited principle in Rizzo & Rizzo Shoes Ltd., Re, 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

53 Section 10 of the Interpretation Act, R.S.O. 1990, c. I. 11, also provides that every Act “shall be deemed to be remedial.” It directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.”

b) Relevant Statutory Provisions

54 Section 1 of the ONCA defines “ordinary resolution” as a resolution passed by a simple majority vote. “Special resolution” is defined as “a special meeting of members of the corporation duly called for the purpose of considering the resolution and passed at the meeting […] by at least two-thirds of the votes cast.”

55Sections 17(1) and (2) state as follows:

By-laws

17(1) Unless the articles or the by-laws otherwise provide, the directors may by resolution make, amend or repeal any by-law that regulates the activities or affairs of the corporation, except in respect of a matter referred to in clause 103 (1) (g), (k) or (l). [emphasis added]

Member approval

(2) The directors shall submit the by-law, amendment or repeal to the members at the next meeting of the members, and the members may confirm, reject or amend the by-law, amendment or repeal by ordinary resolution. 2010, c. 15, s. 17 (2).

56A by-law, amendment, or repeal is effective as of the date of the directors’ resolution: s. 17(3). If the members reject the by-law, or if the directors fail to submit it to the members as required under s. 17(2), the by-law ceases to have effect: s.17(4).

57 Section 103(1) of the ONCA falls under Part XI “Fundamental Changes.” Section 103 is entitled “Articles of Incorporation” and provides that a “special resolution of the members is required to make any amendment to the articles of a corporation” [emphasis added]. Subsections (g), (k), and (l) refer to amendments that:

(g) add, change or remove a provision respecting the transfer of a membership;

(k) change the manner of giving notice to members entitled to vote at a meeting of members;

(l) change the method of voting by members not in attendance at a meeting of the members.

c) Three Possible Interpretations of s. 17(1)

58On its face, s. 17(1) is ambiguous. What do the exceptions for matters listed in s. 103 mean for the making of by-laws by directors?

59Based on the submissions of the parties, and my own reading of the provision, there are three possible interpretations:

Original text

17(1) Unless the articles or the by-laws otherwise provide, the directors may by resolution make, amend or repeal any by-law that regulates the activities or affairs of the corporation, except in respect of a matter referred to in clause 103 (1) (g), (k) or (l).

(2) The directors shall submit the by-law, amendment or repeal to the members at the next meeting of the members, and the members may confirm, reject or amend the by-law, amendment or repeal by ordinary resolution.

(3) Subject to subsection (5), the by-law, amendment or repeal is effective from the date of the resolution of the directors. If the by-law, amendment or repeal is confirmed or confirmed as amended by the members, it remains effective in the form in which it was confirmed.

Applicant’s proposal

Directors may make by-laws about the affairs of the corporation and must submit such by-laws to the members for confirmation by ordinary resolution except where the by-law pertains to a matter listed in ss. 103(1)(g), (k) or (l). By-laws involving matters listed in ss. 103(1)(g), (k) or (l) must be approved by special resolution, the standard set out in s. 103.

Respondent’s proposal

Directors may make by-laws about the affairs of the corporation and by virtue of s. 17(3), such by-laws take immediate effect unless the by-law pertains to a matter listed in ss. 103(1)(g), (k) or (l). By-laws involving matters listed in ss. 103(1)(g), (k) or (l) must be approved by ordinary resolution, the standard set out in s. 17(2), to take effect.

Directors may make by-laws about the affairs of the corporation and must submit them for approval by ordinary resolution of the members pursuant to s. 17(2). Directors are not permitted to make by-laws about matters listed in ss. 103(1)(g), (k) or (l).

d) The Interplay Between s. 17(1) and s. 103(1)

60The applicants submit that the carve-out contained in s. 17(1) for matters referred to in s. 103(1)(g), (k), and (l) means that a resolution making, amending, or repealing a by-law that affects the transfer of memberships, changes the manner of giving notice to members, or changes the method of proxy voting, must be approved by a special resolution (two-thirds) of members. In other words, directors may amend and repeal any by-law by way of a director’s resolution that is ratified by an ordinary resolution of members, except when the by-law involves a change enumerated in ss. 103(1)(g), (k), or (l). In the case of by-laws in the enumerated categories, approval by special resolution of the member is required.

61The respondent offers a very different interpretation of the statutory scheme. The respondent suggests that the carve-out in s. 17(1) is for by-laws that do not have immediate effect by virtue of s. 17(3) and that must be approved by ordinary resolution of the members to take effect. All other directors’ resolutions making, amending, or repealing by-laws take immediate effect by operation of s. 17(3) and remain in effect unless rejected by a simple majority of members at the next meeting of members. In other words, s. 17(3), that states a by-law made under s. 17(1) takes effect immediately, does not apply to by-laws involving matters set out in ss. 103(1)(g), (k), or (l).

62Both parties agree that the provisions are not clearly drafted. Both parties accept that matters listed in ss. 103(1)(g), (k), and (l) receive special treatment. They do not agree what that special treatment entails.

The Society’s Proposed Interpretation

63The Society’s suggested interpretation involves the reading-in of an exception to s. 17(3). Although s. 17(3) states that the by-law is effective from the date of the resolution of the directors, the Society submits that the provision does not apply to by-laws involving matters listed in the carve-out. The enumerated exceptions must be approved by ordinary resolution of the members before they take effect.

64I note that s. 17(4), which refers to by-laws “ceasing to have effect” if they are rejected by, or not submitted to, the members, would also be inapplicable to the exceptions since the by-laws in the enumerated list never take effect if they are rejected by or not submitted to the members.

65There is no language in either s. 17(3) or (4), however, that suggests they are inapplicable to by-laws involving matters listed in ss. 103(1)(g), (k) or (l). Section 17(3) stipulates that it is “subject to subsection (5)” (an exception not relevant to these proceedings); the Legislature could have included a further exception related to by-laws in the carved-out categories. It did not do so.

The Applicants’ Proposed Interpretation

66The applicants submit that on a plain reading of ss. 17(1) and (2), all by-laws made, amended, or repealed by directors must be submitted to the members at the next meeting and confirmed by ordinary resolution, unless the articles or by-laws provide otherwise, or unless the by-law relates to a matter referred to in s. 103(1)(g), (k) or (l). Subsections 17(2), (3) and (4) apply generally to by-laws, rather than just to the exceptions.

67The applicants then submit that the enumerated exceptions – by-laws related to matters set out in ss. 103(1)(g), (k) and (l) – require special resolutions of the members to be confirmed, rather than ordinary resolutions.

68The applicants’ proposed interpretation is not without its challenges. Section 103 requires a special resolution of members specifically when amending articles of incorporation. There is nothing in the language of s. 103 that purports to apply to by-laws. Section 17(2) also refers only to ordinary resolutions.

69In support of their position, the applicants rely on the decision of Mathai J. in Barrie. At para. 61, in a section entitled “Governing Principles”, Mathai J. made the following observation:

Subsections 17(1) and (2) and paragraph 103(1)(d) of ONCA provide that directors may by resolution amend any by-law that regulates the activities or affairs of the corporation, including to change a condition required for a member. By-law amendments are subject to member ratification, with changes to conditions for membership requiring a two-thirds special members’ resolution.

70Counsel for the respondents distinguish Barrie on the basis that the not-for-profit-corporation in that case required changes to membership conditions to be done by way of amendment to the Articles of Incorporation confirmed by two-thirds of members. I do not read His Honour’s statement as specific to the case before him, but rather, as part of his general discussion about the ONCA contained in paras. 59 to 73 of the decision.

71Nevertheless, I respectfully disagree with His Honour’s observation insofar as he refers to s. 103(1)(d) and “changes to conditions for membership” requiring a special resolution of members. Recall that the default in ss. 17(1) and (2) is that by-laws must be confirmed by ordinary resolution of members. The carve-out for by-laws that arguably require confirmation by special resolution is limited to matters referred to in ss. 103(1)(g), (k), and (l). Section 103(1)(d) is not listed as an exception to the default rule. I disagree, therefore, that by-law amendments affecting “conditions for membership” (s. 103(d)) require a two-thirds special members’ resolution.

Third Possible Interpretation

72The only other possible interpretation of s. 17(1) is that directors can generally make by-laws that regulate the affairs of the corporation and must submit them for confirmation of the members pursuant to s. 17(2), but they cannot make, amend or repeal any by-law in respect of a matter referred to in clause 103(1)(g), (k) or (l). Neither party proposed this strictly textual interpretation.

73I reject this interpretation given the scheme of the ONCA as a whole. Such a prohibition would not make sense for organizations such as the Society that have only one class of members and are therefore permitted by the ONCA to set out the terms and conditions of membership in their by-laws, as opposed to their Articles. Directors must be statutorily permitted to make by-laws related to membership transfers, notice to members, and proxy voting in the absence of such provisions in their Articles.

74In any event, interpreting s. 17(1) to mean that directors may only make changes to the matters set out in ss. 103(1)(g), (k), and (l) by way of amendments to the Articles is functionally equivalent to the applicant’s proposed interpretation, that directors may make those changes by way of by-laws. Both require approval by two-thirds of the membership.

The Interpretation Most Consistent with the ONCA

75I find that by-law amendments affecting the transfer of memberships (s. 103(1)(g)), changing the manner of giving notice to members (s. 103(1)(k)), or changing the method of proxy voting (s. 103(1)(l)) require a two-thirds special members’ resolution. On a plain reading of s. 17(1) and (2), by-laws may be confirmed by ordinary resolution. By-laws “in respect of a matter referred to” in the enumerated exceptions, however, are given special treatment. They are considered fundamental changes and require confirmation by special resolution, which is the default in s. 103. This is the most logical interpretation of the carve-out contained in s. 17(1), one that gives effect to the special treatment accorded to the three enumerated exceptions, that is harmonious with ss. 17(3) and (4), and that is consistent with the goals of the statute.

76In a 2010 News Release, the Ministry of Government and Consumer Services described the goals of the new Not-for-Profit Corporations Act as “enhancing corporate governance and accountability”, “harmonizing with other Canadian jurisdictions that have modern legislation, such as the Canada Not-for-Profit Corporations Act”, and “enhancing member democracy.” While such statements are not dispositive of questions of statutory interpretation, they are relevant considerations.

77Other sections of the ONCA expand members’ rights. For instance, s. 43 imposes a new statutory duty of care for directors to act honestly and in good faith. Section 51 allows members who are aggrieved by disciplinary action or termination of membership to apply to the court for relief. Section 191 gives the court broad remedial powers to allow any complainant to apply for review of the conduct of directors. Together, these provisions are consistent with the stated intention of the ONCA at the time it was introduced, to enhance member democracy.

78Permitting directors to make or amend by-laws in respect of the three enumerated categories – but with the requirement of confirmation by special resolution – is also consistent with the Canada Not-for-Profit Corporations Act, SC 2009, c. 23. Section 152(1) of the federal statute is almost identical to s. 17(1):

152(1) Unless the articles, the by-laws or a unanimous member agreement otherwise provides, the directors may, by resolution, make, amend or repeal any by-laws that regulate the activities or affairs of the corporation, except in respect of matters referred to in subsection 197(1).

79Section 152(2) stipulates that the directors must submit the by-laws to the members for confirmation by ordinary resolution.

80Both s. 197 of the federal Act and s. 103 of the ONCA address member ratification of certain fundamental changes to governance. Section 197(1) of the federal statute is similar to s. 103(1) of the ONCA but makes clear that it applies to both articles of incorporation and by-laws: “A special resolution of the members […] is required to make any amendment to the articles or the by-laws of a corporation” in respect of several enumerated matters, including transfers of memberships, notice to members, and proxy voting. [emphasis added.]

81Counsel for the Society argues that Ontario could have included “or the by-laws” in s. 103(1) and because it did not do so, the court should refrain from reading those words into the provision.

82I do not agree that reading the words “or the by-laws” into s. 103(1) is necessary or appropriate. The omission of those words may have been intentional. Unlike the federal statute, the carve-out in s. 17(1) of the ONCA is limited to three clauses listed under s. 103(1). Conversely, the carve-out in s. 152(1) of the federal Act is with respect to all matters listed in s. 197(1). Given that all matters listed under s. 197(1) require special resolution, whether contained in a by-law or the articles, the inclusion of “or the by-laws” in s. 197(1) reflects how ss. 152 and 197 operate together.

83In the Ontario scheme, however, by-laws affecting matters referred to in ss. 103(1)(a)-(f), (h)-(j) and (m) of the ONCA only require confirmation by ordinary resolution under s. 17(2), while articles involving such matters require special resolutions pursuant to s. 103. Because s. 103 presumptively requires confirmation by special resolution for all matters listed in that section, adding “by-laws” to the provision would contradict s. 17(2) and its presumption that by-laws involving matters other than those listed in ss. 103(1)(g), (k) and (l) need only be confirmed by ordinary resolution of members.

84While the carve-out in the ONCA is more limited than the carve-out in the federal statute, a plain reading of s. 17(1) reveals that the Legislature intended to treat by-laws respecting transfers of membership, notice to members, and proxy voting differently than other by-laws. The differential treatment is the requirement of a special resolution. This is the most logical interpretation of the interplay between ss. 17(1)-(3) and 103(1) of the ONCA. Most by-laws may be made, amended, and repealed by directors and must be confirmed by an ordinary resolution of the members at the next members’ meeting or they cease to have effect. But those by-laws relating to matters listed in ss. 103(1)(g), (k), and (l) require confirmation by a special members’ resolution, the default standard under s. 103. This interpretation is consistent with the intent of the ONCA to increase director accountability, enhance member democracy, and improve harmonization with the federal statute.

d) Application to Facts

85The June 2024 By-law concerned matters enumerated under ss. 103(1)(g), (k), and (l). In light of my finding that the ONCA requires such a by-law to be confirmed by a special members’ resolution, the approval of the June 2024 By-law by a simple majority at the October 4, 2024, meeting did not comply with the statute. Accordingly, the June 2024 By-law ceased having any force and effect no later than October 4, 2024.

DISPOSITION

86For the reasons given, the court makes the following orders and declarations:

a. The June 2024 By-law passed by resolution of the directors on the same date ceased having any force and effect no later than October 4, 2024.

b. The special members’ meeting held on October 7, 2024, and the Annual General Members’ meeting held on December 20, 2024, were not held in accordance with the provisions of the ONCA and all business conducted at those meetings is void ab initio.

c. The 2024 Annual General Members’ meeting must be re-held by the respondent within 60 days of this Order.

d. The list of members appended as Exhibit 10 to the Affidavit of Kimberly Barrett sworn November 10, 2024, is deemed to be the full and final list of members entitled to vote at the 2024 Annual General Members’ meeting.

e. The respondent shall serve notice of the 2024 Annual General Members’ meeting on all individuals identified in the list referred to in para. (d), above, no later than 14 days prior to the date of the meeting.

f. Any vacancies on the Board of Directors that arose on or after October 4, 2024, and all other matters and business put before the members on December 20, 2024, shall be voted on by all members entitled to attend the Annual General Members’ meeting to be held in accordance with paras. (c) to (e) above.

87If the parties cannot agree on costs, the applicant may file submissions of up to five pages in length, plus a costs outline, within 15 days of these reasons. The respondent may file submissions of the same length, plus a costs outline, within 15 days of receipt of the applicant’s submissions.

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Jasminka Kalajdzic

Justice

Released: February 4, 2026