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What can a group do if it is denied official recognition by a governing association? What can a member do if they are expelled from a group?  What happens when there is a dispute between members?  In what circumstances and to what degree will a court intervene in the activities and decisions of groups?  

The “law of groups” applies to the activities, conduct and decisions of public and private associations.  Types of associations include a wide range of groups such as incorporated or unincorporated voluntary associations, charities, social clubs, fraternities, sororities, sports clubs, athletic organizations, schools, religious societies, trade unions, professional guilds, political parties, and NGOs.

On February 26, 2018, a trio of cases at the Ontario Superior Court of Justice involving the law of groups was released.  Justice Perell heard and decided these cases: Naggar v. The Student Association at Durham College and UOIT, 2018 ONSC 1247; Arriola v. Ryerson Students’ Union, 2018 ONSC 1246; and Zettel v. University of Toronto Mississauga Students’ Union, 2018 ONSC 1240.

In each case, the applicants had organized a student group (a pro-life group, men’s issues awareness society, and pro-life group, respectively), applied to their respective student unions for official recognition as a student group, and were refused.   The applicants sued their respective student unions seeking a variety of orders and declarations including that the decisions of the student unions were ultra vires, contrary to their internal rules, violated the principles of natural justice, and violated their Charter rights to freedom of expression and freedom of association.  All three applications were dismissed.

In deciding each of these three cases, Justice Perell provided a comprehensive and helpful review of the law of groups.  Below, we review and summarize the salient points from Justice Perell’s discussion of the law of groups.

First is the question of whether any of the three groups were sufficiently public to warrant the application of public administrative law.  Justice Perell set out a list of factors that the court will consider in making this determination:

• The character of the matter for which review is sought
• The nature of the decision-maker and its responsibilities
• The extent to which a decision is founded in and shaped by law as opposed to private discretion
• The association’s relationship to statutory schemes or governments or public authorities
• The extent to which the association is an agent of government or is directed, controlled or significantly influenced by a public entity
• The suitability of public law remedies (e.g. certiorari, mandamus, and prohibition)
• The existence of a compulsory power
• Whether the activities or decisions of the association have a significant public dimension

Absent a sufficient public element in light of the factors above, a group or association will be governed by private law.

Moreover, the Canadian Charter of Rights and Freedoms applies to an association’s activities if the association is government or if the association’s activities is considered governmental action.  In the above cases, Justice Perell concluded that a university or college student association is not government or engaged in governmental action and, therefore, not subject to the Charter.

In addition, Justice Perell noted that a court has limited jurisdiction to review the conduct and decisions of groups or associations governed by private law and will do so only if a significant private law right or interest is involved, such as if a member of a group has been expelled.

Justice Perell further confirmed in these cases that while a court will not review the merits of the association’s conduct or decision, a court may exercise its jurisdiction to decide whether the conduct or decision of an association was carried out according to the applicable rules of the association (e.g. bylaws, constitution, internal policies); in accordance with the principles of natural justice (adequate notice of what is to be determined and the consequences; an opportunity to make representations; and an unbiased tribunal or decision maker); and without mala fides.

A court can also utilize the private law remedies of injunctions and declarations.  For example, if a member is expelled from an association and a court determines it was in breach of contract, a court can grant a declaration that the association’s actions were ultra vires and may grant an injunction to protect contractual, employment, or proprietary rights of the member.

In addition, a court has the jurisdiction to review and enforce the contractual rights between an association and its members, and the contractual rights between members themselves.

In summary, the analytical framework and approach that a court will use when assessing issues involving the law of groups can be summarized as follows:

1. Does public law apply to the group? This may also include Charter scrutiny if the group is government or carrying out governmental action.
2. If public law does not apply, does private law apply?  Some private groups (e.g. book clubs) may not have envisioned a contractual relationship between them and the group or amongst themselves in which case private law may not apply.
3. If private law applies, the court will assess whether there is a reason to decline or postpone its exercise of jurisdiction.  For example, where internal rights of appeal or dispute resolution exist but have not been exhausted.
4. If private law applies and there is no reason to decline or postpone, the court will determine whether there has been a breach of contract.
5. If private law applies and there is no reason to decline or postpone, the court will determine whether there has been a breach of the principles of natural justice.

Whether you are a member of an association, or a representative of an association, it could benefit you to have some working knowledge of how the law of groups could apply to your association.