Nunatsiaq Online
COMMENTARY: Nunavut October 17, 2016 - 1:08 pm

Legal Ease, Oct. 17

The Elks Want to Throw Me Out... What Are My Rights?

JAMES MORTON
Nunavut lawyer James Morton explains
Nunavut lawyer James Morton explains "club law."

One of the most obscure areas of law is “club law.”

This deals with the rights of members of clubs to have fair hearings when dealing with clubs they belong to. Usually in Canada the clubs involved are sporting clubs but the area of law includes pretty well all voluntary organizations. So if my Freemason Lodge decides to expel me I have certain rights to a “fair” hearing.

At the outset, while these rights can be the subject of a court application, judges are very hesitant to interfere in the internal decisions of voluntary clubs—using the Freemason example again, a judge is unlikely to know what is, and is not, expected of a Master Mason.

That said, whenever a club decision is made, procedural fairness must be followed and if it is not followed, a judge will intervene.

Procedural fairness generally consists of two elements:

• everyone has a right to have a reasonable opportunity to present their side of the story; and,

• the decision maker has to listen impartially to both sides of the story and reach a decision not influenced by bias.

The right to have a reasonable opportunity to present a case means that, subject to the circumstances, anyone facing a potentially negative decision (say expulsion or demotion) has to be told the facts to be held against them and given a reasonable opportunity to respond.

If the matter is fairly minor the level of complexity of disclosure and the right to respond can be quite low. That said, in cases where a very serious decision is to be made, say removing someone from a position of trust in an organization, the procedure necessary may be very similar to that of a full blown Court procedure.

The bias element of procedural fairness means that the decision maker must be fair and not have either an actual bias or an apprehended bias.

Actual bias is easy to understand and means, in effect, the decision maker has a closed mind and doesn’t listen to anything.

Actual bias is pretty rare but apprehended bias is somewhat more common—apprehended bias means the decision maker would be seen, by a reasonable person, as having a closed mind.

Most decisions made in private clubs can be appealed within the club to a further decision maker. So if someone is demoted in a skiing club, often there is an appeal from the coach who decided to make the demotion to the board of the club.

If you want to get a decision overturned, you normally have to make the internal club appeal before considering going to Court.

Once all the internal appeals have been exhausted there is the final remedy of seeking judicial review—that is going to a judge. Judicial review is complex, expensive and you have to move quickly.

Additionally, and as mentioned, judges do not lightly interfere in the affairs of private clubs. That said, decisions made in breach of the requirements of procedural fairness will be set aside by the Courts.

Judges will not review the substance of the decision but only the process—you are entitled to a fair process. If you were, for example, subject to some disciplinary process and not given the opportunity to present your side of the story the Courts will intervene.

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