Facebook Twitter LinkedIn Nous joindre | English

Décision

Les décisions diffusées proviennent de tribunaux ou d'organismes indépendants de SOQUIJ et pourraient ne pas être accessibles aux personnes handicapées qui utilisent des technologies d'adaptation. Visitez la page Accessibilité pour en savoir plus.
Copier l'url dans le presse-papier
Le lien a été copié dans le presse-papier
SUPERIOR COURT

JG 1116

 
 SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

 

No:

500-17-017110-035

 

 

 

DATE:

30 MARS 2004

______________________________________________________________________

 

IN THE PRESENCE OF:

THE HONOURABLE

DANIELLE GRENIER

______________________________________________________________________

 

 

GIULIANO D'ANDREA

Plaintiff

v.

ALLIANCE QUEBEC

Defendant

 

 

______________________________________________________________________

 

JUDGMENT

______________________________________________________________________

 

[1]                The Plaintiff D’Andrea has been a member in good standing of Alliance Quebec (AQ) since 1999 and the Chairman of the East Island Chapter  since  April  of 2003.

 

[2]                On July 22, 2003, D’Andrea found  a notice of receipt of a document in his mailbox  that supposedly was forwarded to him by AQ at his office located on St-Joseph Boulevard.

 

[3]                Since the notice did not have any letter or package attached to it, D’Andrea communicated with Fred Semerjian, the executive director of AQ, who advised him that AQ had forwarded him an invitation to attend a provincial board meeting  in order to answer questions with respect to certain comments that would have been quoted in two articles published in the Ottawa Citizen.

 

[4]                D’Andrea advised Semerjian that he would not be available to attend the meeting at the appointed time.

 

[5]                On  July 23, 2003, at approximately 3:56pm,  Semerjian  faxed to D’Andrea a copy of a letter dated July 18, 2003,  summoning him to the above-mentioned meeting which was to be held on July 23, 2003 at 7:00 p.m.

 

[6]                That same day, D’Andrea wrote a letter to AQ formally requesting a postponement of the July 23, 2003 meeting.

 

[7]                His request was ignored. On July 23, the members of the Board of Directors of AQ met and adopted a resolution expelling D’Andrea from AQ. The two members of the East Island Chapter who wanted to attend the meeting were asked to leave and the meeting was held in camera.

 

[8]                Two articles that appeared in the Ottawa Citizen had prompted the Board to adopt the resolution .

 

[9]                The first one on July 15, 2003 made reference to the following comments from D’Andrea:

 

“Alliance Quebec is assisting 50 people in Quebec who are fighting the language office in court . Giuliano D’Andrea, president of  Alliance Quebec’s East Island chapter, believes Mr. Tyler is encouraging “Anglophone segregation” by advocating civil disobedience that could foster hostilities  between the English and the French.

You may agree with it, you may disagree with it, but it's the law.  What you don't do is put people in harm's way by telling them not to obey the law.

                                                                                                   (exhibit P-5)

 

[10]            The July 17th article contains the following reference to D’Andrea:

 

In future attempts by Alliance Quebec to bid on the Ceased assets of citizens who refuse to pay language fines, Giuliano D’Andrea, president of the East Island Chapter of Alliance Quebec  and an affiliated think tank called Greater Quebec Movement, said his group will step in, pay the fine, become the new creditor and sue the debtor in small claims Court.

                                                                                                               (exhibit P-5)

[11]            D’Andrea is asking the Court to render a declaratory judgment stating that the resolution passed by the Provincial Board of AQ on July 23, 2003 is illegal, null and void. The arguments are threefold:

 

1.                 Alliance Quebec acted ultra vires its constitution and by-laws that do not  authorize the Board to expel a member;

 

2.                 The principles of  due process were violated;

 

3.                 The articles appearing in the Ottawa Citizen  provided AQ with a pretext to  rid  itself of an embarrassing member who has the right to express his opinions even if they diverged  from those of the Board of Directors. For that reason they argue that AQ’s decision is unreasonable.

 

ULTRA VIRES

[12]            Nothing in the constitution and by-laws of AQ authorizes the Board of Directors to expel a member. Article 3.1 entitled  Members reads as follows:

Members:

"The members of the Alliance shall be those persons and organizations who qualify for one of the prescribed classifications of membership, who agree to support its objects and general principles as expressed by the Constitution and By-Laws of the Alliance and who agree to pay the fees established, from time to time, for the prescribed classification of membership for which they would qualify".

[13]            The objects and general principals are set forth at article 2:

ARTICLE II

OBJECTS

The objects of the Alliance are those set forth in its charter, namely:

2.1               Principal Objects:

The principal objects of the Alliance shall be to foster acceptance of an open and multicultural society in the Province of Quebec, preserving the languages, culture and vitality of its diverse English-speaking peoples, regardless of their language of  origin, their communities and institutions throughout the province.

2.2               Ancillary Objects:

More particularly, but without limitation, the objects of the Alliance are to:

(1)                marshal and present the common view and opinions of its members and to afford its members a forum for the purpose of the fulfillment of the principal objects;

(2)                initiate, sponsor and support research and other programmes respecting the history, development, importance and future of the use of the English language, communities and institutions within the Province of Quebec;

(3)                represent its members through the presentation of the views and opinions of its members to government, public agencies and the public at large;

(4)                initiate, sponsor and support programmes in the fields of social action health and social services, education, human resources development and other programmes to advance fulfillment of its objectives and those of the English-speaking communities of Quebec;

(5)                promote rapprochement, respect and acceptance of cultural and language differences of all peoples of the Province of Quebec;

(6)                promote the understanding of the culture of its members and of other elements of Quebec culture, attitudes and institutions throughout Canada;

(7)                a) Promote the recognition that English is an official language of Quebec.  b) Oppose any violation of our Constitutional rights or of international standards of human rights.  c) Insist that neither the rule of law, nor contempt of court on the matter of secession, nor the overthrow of the Constitution by revolution, is negotiable.  d)  Seek from both the Provincial and Federal Governments, a clear commitment that they will not use or countenance the use of force to hold the minority peoples against their wishes, within a secessionist Quebec.  e) Encourage all English-speaking people of Quebec to join organizations which speak for them and to co-ordinate all efforts in defining a strong common message.  f)  Achieve a historic reconciliation with the French-speaking peoples of Quebec.

[14]            The powers of the Board are listed at article 6:

6.1               Board of Directors:

The composition of the Board of Directors is in accordance with By-Law IV.  The Board of Directors implements policy, manages the affairs of the Alliance, raises funds, approves budgets, commissions programmes, commits expenditures, authorizes publications, appoint and/or removes staff, according to the Human Resources Policy approved by the Board of Directors and, subject to the By-Laws, appoints Committee, fills all vacancies and discharges such other duties as may be assigned by this Constitution or by the By-Laws.

The Board of Directors may delegate, by resolution, specific responsibilities to the Executive Committee for a period not to exceed one year.

[15]            Article 6.4  deals with the removal of directors:

 

6.4               Removal of Directors

The Governing Council may remove any director or directors from office at any meeting called specifically for the purpose.  Such decision shall be determined by the affirmative vote of two-thirds of those present and voting.

[16]            D’Andrea argues that in the absence of any power to expel  a member conferred on the Board of Directors by the constitution and the by-laws, AQ had neither the power to expel him  as a member nor as  chairman  of the East Island Chapter.  He maintains that if  AQ had serious grounds of complaint, it had to initiate a recourse before the courts. D’Andrea  quotes with approval  the following comments of Lafontaine J. in Wohlk vs. The Montreal Protective Shoemakers Association[1] :

Considering that the right of making rules and regulations mentioned in the deed of partnership and conferred to the members of the association relates to and concerns only the conduct of the business of the association and not the conduct of the partner, and that by no clause in the deed of association or by any rule of law applying to this special kind of association, any of its members is prevented of engaging himself in any trade or calling whatsoever;

Considering moreover, that no resolution to expel plaintiff from the association was passed or was validly passed, that the verbal decision taken at meeting cannot take the place of such an important resolution, as the resolution of expulsion of a member from an association, and the confiscation of this rights and interest, and that a notice of expulsion cannot supplement the absence of such a resolution and have any affect;

Considering that, in the absence of power to expel, conferred to the partners by the deed of co-partnership, the defendants had not the power to expel the plaintiff from the association, and that in case of any violation of the by-laws of the partnership and of existence of serious grounds of complaint, recourse was to be had to the tribunals;

Considering that the by-law set up by the defence, was in excess of the powers and jurisdiction of the association, that this by-law is against the exercise of natural liberty (…)

 

[17]            The proposition that, in the absence of an express provision authorizing the expulsion of a member , an association such as AQ must resort to the Courts to do so appears, at first sight, surprising and  obsolescent. On the other hand, it has long been recognized that  bodies politic and  legal persons established in the public interest or  for a private interest (art. 33 C.C.P.) cannot deny rights without an express provision authorizing them to do so.

[18]            AQ is an association publicly funded (90% of its funding comes from the federal government). As such, it can be compared and put into the same category as public offices, agencies or departments.

[19]            A member is someone who agrees to support AQ’s objects and general principles as expressed by the constitution and by-laws and who agrees to pay the fees established by AQ (art. 3.1 of the by-laws).

[20]            Burke-Robertson and Drache state the Common Law principles that govern the right to expel a member from a corporation as such :

[T]he termination of membership is a matter that should be dealt with by by-law since, in the absence of termination provisions in the by-law, there is no authority for a corporation to terminate or expel any of its members.  Of course, the method of termination specified in the by-laws must not be contrary to public policy or to the charter of the corporation and it should be carried out in accordance with the rules of natural justice.[2]

                                                                                                     (emphasis added)

[21]            In Newtongrange Branch of the Scottish National Party v. Scottish National Party[3], Lord Osborne comments on the internal discipline of political parties :

[33] […]  In Brown v. The Executive Committee of Edinburgh Labour Party, at page 989, I had occasion to set forth the circumstances in which the court might interfere in the proceedings of a voluntary association and, in particular, a political party.  In that case I quoted the words of Lord Justice Clerck Aitchison in MacDonald v. Burns 1940 S.C. 376 at page 383.  There he said:

"The internal discipline of any such body is a matter of domestic concern, notwithstanding that status, or civil rights, may be involved, and it is only in extraordinary circumstances that the courts will regard it as within their competence to intervene".

[34]  Going on to consider what these extraordinary circumstances might be, he said that, speaking generally, there were two situations in which the courts would entertain actions:

"(First) Where the… association through it agencies has acted clearly and demonstrably beyond its own constitution, and in a manner calculated to affect the civil rights and patrimonial interests of any of its members, and (secondly) where, although acting within its constitution, the procedure of its judicial or quasi-judicial tribunals has been marked by gross irregularity, such fundamental irregularity as would, in the case of an ordinary civil tribunal, be sufficient to vitiate the proceedings.  But a mere irregularity in procedure is not enough.  It must be so fundamental an irregularity that it goes beyond a mere matter of procedure, and becomes something so prejudicial to a fair and impartial investigation of the question to be decided as to amount to a denial of natural justice."

[22]            In the present case, AQ has acted beyond its constitution and by-laws which do not contain any specific rules on the expulsion of members.  For that reason alone, its decision should be annulled, but there is more.  AQ has also violated the rules of natural justice, causing irremediable prejudice to D'Andrea.

 

DUE PROCESS AND VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE

[23]            D’Andrea argues that AQ violated the principles of natural justice in refusing to grant him the postponement he asked for, in refusing to forward to him copy of the rules and regulations governing the Board meeting , in holding such meeting in camera and in stripping him of his membership without a proper hearing.

 

[24]            AQ contends that D’Andrea was duly invited to attend the Board meeting  and that he failed to appear without giving any specific reason, merely stating  that he was unavailable for such a meeting. According to AQ, it is only after the resolution was passed that plaintiff finally called upon petty excuses to justify his absence. AQ also argues that the meeting was of such importance that it could not be held in the presence of outsiders be they members.

[25]            Contrary to some comments made by D’Andrea during his testimony to the effect that  he  was not properly informed of the reasons for convening a board meeting , the evidence shows that he was properly advised  by letter dated July 18, 2003 and faxed to him on July 22, 2003. The letter is explicit:

The purpose of this meeting will be to discuss certain comments made by you in the Ottawa Citizen articles of July 15th, 2003 and July 17th, 2003 regarding Bill McLeary's issues with the OLF and to review your status within Alliance Quebec as a member and as Chapter Chair of Alliance Quebec's East Island Chapter.  Copies of these articles are included with this communication.

[26]            The letter shows that D’Andrea knew that the Board could strip him of his membership. He chose not to appear, fail to reveal his real motives  and came up with a kind of pretense after the fact this pretense being that as the organizer of her constituency,  he had to accompany the Minister of Cultural Affairs, Sheila Copps, wo was touring the Mosaiculture exhibition in Old Montreal with 50 other people that specific day. No doubt D'Andrea’s excuse lacks the seriousness one would expect from someone who values his membership and his position within AQ. His testimony also shows that he had informally heard through friends that AQ wanted to dismiss him. That is probably why he did not answer the phone nor  retrieve his mail after having heard of his foreseeable dismissal. Is this enough to justify AQ’s disregard for D’Andrea’s right to an impartial hearing in accordance with due process?

[27]            In the first place, the Board was not aware of D’Andrea’s pretense or bona fide motive when it decided to strip him of his membership nor did it knew that D’Andrea was cognizant of the fate that awaited him.

[28]            Secondly, contrary to the former president of AQ’s testimony, Brent Tyler, the evidence discloses that the members of the Executive Committee who knew of D’Andrea’s request for a postponement never transmitted this information to the Board of Directors. One of the Board member, Peter Margo, a reliable and independent witness who was present during the Board’s meeting testified that he never heard anyone mention that D’Andrea had asked for a 48 hours postponement or any postponement whatsoever. According to this witness, and contrary to Brent Tyler’s assertion, the Board was never asked to vote on this matter.  Moreover, Dino Savalli, treasurer for AQ's East Island Chapter, met briefly with Brent Tyler before the Board meeting to request a postponement for D'Andrea.  According to Savalli, Tyler ignored the request.  Thereafter, Savalli and Smith (another member) attempted to participate in the Board meeting.  They were asked to leave at the beginning of the session.  Margo felt they should have been given the opportunity to speak.  However, he failed to raise objections because he was not acquainted with D'Andrea and consequently, he felt he could not contribute positively to a reversal of the situation.

[29]            Thirdly, Margo’s account of what transpired at the meeting is highly disturbing. He qualified the meeting as being that of a kangaroo court. D’Andrea’s fate was skipped through. The meeting lasted 15 to 20 minutes at the most. AQ’s president presented the members with the facts, mainly the two above-mentioned newspaper articles. The discussion that followed was brief and the vote in favor of D’Andrea’s expulsion was quasi unanimous. Margo abstained from voting. The witness said the dice were loaded and the process was nothing more than a mockery. In the witness’s own words the meeting was unnecessary and engineered and the newspapers articles were secondary information and irrelevant to the matter at hand, which was to get rid of an embarrassing member who obviously did not agree to tow the party line. The witness went on to say that if D’Andrea had been offered the opportunity to give his point of view he would have had little chance to a fair hearing and if a new meeting took place with D’Andrea being present, the result would be the same.

[30]            If the essence of natural justice resides in most part in how things are done and if due process is at the core of a democratic society, it follows inevitably that in the present case, arbitrary has prevailed over fair play. Even if AQ’s constitution and  by-laws do not contain procedural rules on how to conduct a board meeting, AQ is bound  by the duty to act fairly if it wants to maintain  a certain degree of credibility  among its members  and towards the public. That duty to act fairly in the present case includes the right to a fair hearing.

[31]            As we know, the content of the rules of natural justice vary from case to case. In the present case, due process has been violated at four levels. D’Andrea had the right to expect that his written request for a postponement would be shown to the Board members and debated during the Board meeting, that the discussion about his membership took place openly and not in camera, that the documents he requested in his letter of July 23, 2003  be forwarded to him and, if he so wished, that his lawyer be permitted to be present at the meeting. Needless to add that he also had a right to a meeting that was not a sham.

[32]            In acting the way it did AQ’s Board of Directors  deprived  D’Andrea  of his legal right to be heard according to the principles of natural justice. A 48 hour postponement was a sound request considering most people, like D’Andrea,  were enjoying their vacations at this period in time.  There was no need to hurry. If there was something urging AQ to act so quickly, it was certainly not a desire for justice.  The reason was futile : Tyler suggested he had to hasten the vote due to the fact that D'Andrea's comments were detrimental to AQ's policy in the sign issue.  Tyler said the impression was that it should be dealt with immediately because D'Andrea's comments were embarrassing.  On the other hand, Peter Margo's testimony shows that the Shawville issue was never discussed at Board meetings before July 23, 2003 and that is was not part of AQ's official policy.  According to Margo, AQ wanted D'Andrea out for political reasons.  He was advocating a strategical change in the sign issue while the executive committee members wanted to maintain the status quo they had implemented.

[33]            A corporation such as AQ, whether considered a public, semi public or private entity, has a duty to act fairly.  According to Wade and Forsith[4], even in the private sphere, members of trade unions or clubs, for example, cannot normally be expelled without being given a hearing, for their contracts of membership are held to include a duty to act fairly.

[34]            In Club de la Garnison de Québec c. Lavergne[5], the Quebec Court of Appeal held that it would generally not question the motives leading to the eviction of members in a social club, except in cases where the decision to expel has been reached capriciously or in violation of the rules of natural justice.

[35]            The Court is of the opinion that D'Andrea's expulsion was unlawful.  Not only was it made in breach of AQ's constitution and by-laws but it was the result of a speedy process aimed at getting rid of an unwanted member whose only fault was to disagree with AQ's executive committee policy in Shawville.  Whether AQ was right or not in wanting to expel D'Andrea is not an issue that the Court will consider in the present case.  Suffice to say that it could not be done without given D'Andrea the opportunity to be heard properly.  Impartiality and fairness are the pillar stones of our system of justice.  In the present case, neither was achieved.

 

FOR THESE REASONS, THE COURT :

            DECLARES that the resolution produced as exhibit P-4 and passed by the Provincial Board of Alliance Quebec on July 23, 2003, is illegal, null and void;

            ORDERS Alliance Quebec, its representatives, agents and employees to cease and desist from implementing the resolution P-4, and to refrain from taking any steps or actions which would have the effect of preventing Plaintiff from enjoining all of the rights and privileges associated with his status as a member in good standing of Alliance Quebec;

            THE WHOLE with costs.

 

 

__________________________________

DANIELLE GRENIER, J.S.C.


 

 

Me William Rigutto

(Rigutto & Associates)

Attorney for Plaintiff

 

Me Walter C. Elmore

Attorney for Defendant

 

 

 



[1]    [1918] 54 C.S. 29.

[2]    R. Jane BURKE-ROBERTSON and A.B.C. DRACHE, Non-Share Capital Corporations, Toronto, Carswell, 1995, pp. 4-25 et 4-26.

[3]    [1999] Scot. J. n° 276 (Sc.C.S.) (QL).

[4]    Sir William WADE and Christopher FORSYTH, Administrative Law, 8th ed., Oxford University Press, 440.

[5]    (1918) 27 B.R. 37, 44.

© Société québécoise d'information juridique (SOQUIJ) - Tous droits réservés  |  SOQUIJ est une société qui relève du ministre de la Justice du Québec