Hofer et al. v. Hofer et al.

Hofer et al. v. Hofer et al.
Collection
Supreme Court Judgments
Date
1970-05-25
Report
[1970] SCR 958
Judges
Cartwright, John Robert; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe
On appeal from
Manitoba
Subjects
Commercial law
Decision Content
Supreme Court of Canada
Hofer et al. v. Hofer et al., [1970] S.C.R. 958
Date: 1970-05-25
Benjamin Hofer, John Hofer, Joseph Hofer and David Hofer (Plaintiffs) Appellants;
and
Zacharias Hofer, Jacob Hofer and Jacob S. Hofer, as Trustees and Representatives of the Interlake Colony of Hutterian Brethren (Defendants) Respondents.
1969: February 21, 24; 1970: May 25.
Present: Cartwright C.J. and Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Associations—Churches and religious institutions—Hutterian colony—Members abandoning Hutterian faith—Dissidents expelled from church and colony—Expulsions from colony valid.
The appellants and the respondents were Hutterian Brethren and all were members of the respondent Interlake Colony. In May 1961 they signed the Colony’s Articles of Association, which contained provisions relating to, inter alia, community of property and the expulsion of members from the Colony. Some years later the appellants, who in the meantime had become converted to the beliefs of the Radio Church of God, which beliefs differed in certain fundamental aspects from those of the Hutterian Church, were expelled from the Colony. They had previously been expelled from the Church following unsuccessful attempts to bring them back to the Hutterian faith.
An action was brought by the appellants whereby they sought a declaration that they were still members of the Interlake Colony together with an order for the winding-up of the Colony, the appointment of a receiver, an accounting of the Colony’s assets and liabilities, and a direction that its assets should be distributed equally among each of the appellants and respondents. The respondents counterclaimed for a declaration that the appellants were no longer members of the Colony, and were not entitled to any portion of its property and directing them to vacate the real property owned by the Colony and deliver up possession of all personal property owned by it which may have come into their possession.
The appellants’ action was dismissed and the respondents’ counterclaim was allowed by the trial judge and this judgment was affirmed by the Court of Appeal. The appellants then appealed to this Court.
Held (Pigeon J. dissenting): The appeal should be dismissed.
Per Cartwright C.J. and Spence J.: For the reasons given by Pigeon J., the Colony must in law be treated as a commercial undertaking. As held by the Courts below the appellants were validly expelled from the Colony. The submission that the decisions to expel were vitiated because members voting for them were acting under the dictation of persons who were leaders in the Hutterian Church and not members of the Colony failed on the facts. The submission that the contract embodied in the Articles of Association, as interpreted by the Courts below was contrary to public policy and therefore void, being destructive of the freedom of religion and reducing the appellants to the condition of serfdom, was rejected.
This was not a case in which the Court could be asked to relieve against a forfeiture for by the terms of the Articles the appellants never had any individual ownership of any of the assets of the Colony.
Per Martland, Judson and Ritchie JJ.: Adherence to the Hutterite faith was a prerequisite to membership in the Colony which by its very nature was required to be composed of Hutterian Brethren and their families. Whether or not any individual was a Hutterian Brethren so as to be entitled to continue as a member of the community was a decision which could only be made by the Hutterite Church. The decision to expel the appellants was made by the Church, but it had the effect of making the appellants ineligible for continued membership in the Colony. It followed that the appellants’ contention to the effect that the Articles of Association were not properly complied with in regard to expulsion was without merit, and the alternative plea with respect to the unlimited power and control of the ministers of the Church over the personal life and property being contrary to public policy, was equally invalid. Also, the Colony was not a partnership in the accepted legal sense of that term.
There was nothing contrary to public policy in the continued existence of these Hutterian communities living as they do in accordance with their own rules and beliefs. Per Hall J.: While agreeing that the appeal should be dismissed, the unlimited power and control of the ministers of the Church under the Articles of Association might be void as being contrary to public policy in certain circumstances involving minors or others under disability as well as those who have not subscribed to the Articles. The question to this extent should be left open at this time.
Per Pigeon J., dissenting: The Colony was a farmers’ organization and not a Church and the members were not subject to expulsion for the reason that they ceased to be members of the Hutterian Church.
On their proper construction, the Articles of Association did not provide for automatic expulsion of any member who was expelled from the Church. Such expulsion would be in the nature of a forfeiture of the whole of the appellants’ worldly possessions and would divest them without compensation of an important share in very valuable assets. Under ordinary rules of construction this could not be inferred; explicit words would be required. In any event, such a provision would be unenforceable as contrary to freedom of religion and also contrary to public policy in the context of such an association or partnership as these colonies existing for commercial purposes as opposed to church bodies or other charitable organizations that may be subject to the rules applicable to churches and as to which no opinion was expressed.
APPEAL from a judgment of the Court of Appeal for Manitoba[1], affirming a judgment of Dickson J. Appeal dismissed, Pigeon J. dissenting.
D.A. Yanofsky and G.C. Pollock, for the plaintiffs, appellants.
R.H.C. Baker, S.R. Wolchock and J.A. Robb, for the defendants, respondents.
The judgment of Cartwright C.J. and Spence J. was delivered by
CARTWRIGHT C.J.—The facts and the terms of the “Articles of Association of the Interlake Colony of Hutterian Brethren” which are relevant and the contentions of the parties are set out in the reasons of my brothers Ritchie and Pigeon which I have had the advantage of reading.
For the reasons given by my brother Pigeon I agree with his conclusion as to the legal nature of the operations of the Colony. In particular, I wish to adopt the following passage in his reasons:
It is therefore contrary to the Articles of Association to say that the Colony was set up as a Church. The Articles of Association as well as the facts properly considered show that the Colony was set up both for a religious purpose and the object of operating a communal farm. In respect of the agricultural operations, the Colony cannot be considered otherwise than as a secular undertaking, it is not a charitable undertaking. Because it has among its purposes an object that cannot be classified as charitable, it follows that it must in law be treated as a commercial undertaking.
It follows from this that I must disagree in part with the view expressed by the learned trial judge in the following words:
The Articles must not be construed in a vacuum but rather in the light of Hutterianism. What is being dealt with here is a church not a business enterprise. This is clear from the Articles and from the entire evidence. The signatories are not partners. There are no partnership assets, only church assets. It is these church assets which plaintiffs are seeking to obtain, assets impressed with the trust expressed in the Articles of Association that they will be held and enjoyed in common for the purposes of the Interlake Colony of Hutterian Brethren.
In my opinion, the legal rights of the appellants are to be determined by reference to the terms of the Articles of Association, which they signed. It is neither pleaded nor proved that their agreement to these terms was other than their free act and deed.
“The Colony” is not a legal entity. At all relevant times it was the collective name given to the seven individuals who are the appellants and respondents. This is made plain by the opening words of para. 3 of the Articles:
The Colony shall be comprised of all persons who sign these Articles. No other persons signed the Articles until after April 29, 1965, the date of the commencement of this action.
For the reasons given by the learned trial judge and the Court of Appeal on this branch of the matter, I agree with their conclusion that the plaintiffs were validly expelled from the Colony. There are concurrent findings of fact as to what occurred at the meeting of June 13, 1964, at which the appellants Benjamin Hofer and David Hofer were expelled, and that of March 17, 1965, at which the appellants John Hofer and Joseph Hofer were expelled, and I am content to adopt what was said by Freedman J.A. as to the law applicable to the facts as found.
However, before leaving this branch of the matter I should mention the submission of the appellants that the decisions to expel were vitiated because the members voting for them were acting under the dictation of persons who were leaders in the Hutterian Church and not members of the Colony. In my view this submission fails on the facts. There is no suggestion that anyone who was not entitled to vote did so at either meeting and the effect of the evidence and of the findings of the learned trial judge is that each of the appellants refused to attend and engage in the regular meetings, worship and services of the members of the Colony, a ground for expulsion under art. 39.
The four appellants each embraced the doctrines of the Church of God and I agree with the view of the learned trial judge that the doctrines of that Church are aggressively hostile to, and critical of, the faith and practices of the Hutterian Brethren. It would be unthinkable that having become convinced members of the Church of God the appellants would continue to engage in the worship of the members of the Colony.
I wish to make it plain that excommunication from the Hutterian Brethren Church by the Church authorities would not ipso facto have the effect of expelling the appellants from the Colony. Such expulsion could be brought about only by action of the members of the Colony in accordance with the Articles; but by the terms of those Articles the appellants have agreed that their conduct in leaving the Hutterian Brethren Church should be a valid ground of expulsion. The principle of freedom of religion is not violated by an individual who agrees that if he abandons membership in a specified church he shall give up any claim to certain assets.
The appellants submit that the contract embodied in the Articles of Association, as interpreted by the Courts below is contrary to public policy and therefore void, being destructive of the freedom of religion and reducing the appellants to the condition of serfdom. On this branch of the matter I agree with the reasons of Freedman J.A. and have little to add.
In Fender v. St. John-Mildmay[2], Lord Atkin at pp. 10 and 11, quotes with approval a number of pronouncements on this question, one of which is that of Jessel M.R. in Printing & Numerical Registering Co. v. Sampson[3]:
It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice.
It has been said that one of the liberties chiefly prized by a normal man is the liberty to bind himself. Unless the members are free to enter into contracts of the sort set out in the Articles of Association, it is difficult to see how the Hutterian Brethren could carry on the form of religious life which they believe to be the right one. The appellants, as Freedman J.A. points out, remain free to change their religion but they have contracted that if they do so and leave the Colony, voluntarily or by expulsion, they will not demand any of its assets. This does not appear to me to be a case in which the Court can be asked to relieve against a forfeiture for by the terms of the Articles the appellants never had any individual ownership of any of the assets of the Colony.
No argument was addressed to us as to the possible application of the rule against perpetuities if it be held, as I think it should be, that the undertaking of the Colony is not a religious one and I mention that rule only so that it shall not be thought that it has been overlooked and to make it clear that I express no opinion as to its possible application.
It follows that I would dismiss the appeal. It is, I think, a matter of regret that the appellants, whose efforts have no doubt made a large contribution to the assets of the Colony, receive no compensation for their life’s work and the learned trial judge was not guilty of over-statement when he referred to the mistreatment of them and members of their families as strange, repellant and excessive; but the task of the Courts is to deal with the rights of the parties according to law.
Finally, I wish to make it plain that this judgment is limited to the facts and pleadings of this particular case.
I would dispose of the appeal as proposed by my brother Ritchie.
The judgment of Martland, Judson and Ritchie JJ. was delivered by
RITCHIE J.—This is an appeal from a unanimous judgment of the Court of Appeal of Manitoba[4] affirming a judgment rendered by Dickson J. dismissing the appellants’ action whereby they had sought a declaration that they were still members of the Interlake Colony of Hutterian Brethren (hereinafter referred to as the “Interlake Colony”) together with an order for the winding-up of the affairs of that Colony, the appointment of a receiver to gather in its assets, an accounting of all assets and liabilities of the Colony, and a direction that its assets should be distributed equally among each of the appellants and the respondents. The judgment of the Court of Appeal also affirmed the order and declaration made by Dickson J. allowing the respondents’ counterclaim and declaring that the appellants were no longer members of the said Interlake Colony and were not entitled to any portion of the real and personal property of that Colony, and directing them to vacate permanently the real property owned by the Colony and deliver up possession of all personal property owned by it which may have come into their possession.
The appellants’ main contention is that the provisions of the Articles of Association governing the conduct of the Interlake Colony to which all parties had agreed, in so far as they relate to the holding of meetings and the expulsion of members, were not complied with when the appellants were allegedly expelled from the Colony and that as a result of that unauthorized expulsion they and their families have been made to suffer abuses and indignities inconsistent with the concept of harmonious living as a Colony so that it is no longer possible for the Colony to continue and that a receiver should be appointed to wind up its affairs. In the alternative, the plaintiffs say that the Articles of Association purport to give ministers of the Church who are not parties thereto unlimited power and control over the life and property of the plaintiffs and that the agreement is therefore contrary to public policy and should be declared null and void.
In the further alternative the plaintiffs say that the Articles of Association create a form of partnership and that the provisions thereof whereby the plaintiffs purport to have been deprived of their property rights amount to a penalty or forfeiture against which a court of equity ought to grant relief by way of dissolution of the association.
The circumstances giving rise to this litigation have been fully and carefully traced by the learned trial judge and, like the Court of Appeal of Manitoba, I am satisfied to adopt the findings of fact made by him after a long and hotly contested trial; many of these findings are clearly based upon an assessment of the credibility of the witnesses who appeared at the trial and it has long been settled that this Court will not interfere in such circumstances unless it can be shown that the trial judge was clearly wrong.
The origins of the dispute between the appellants and the respondents are rooted in religious controversy and in the differences of opinion existing between the respective parties as to the true nature of the religious way of life to which they had all subscribed. The history of the Hutterian Brethren has been analyzed in the Courts below, but it appears to me to be necessary for the purpose of these reasons to outline briefly those features of the Hutterian way of life which have a direct bearing on the matters here in issue.
The history of the Hutterian Brethren goes back to the 15th century when they adopted their own form of medieval monasticism as a result of which they were persecuted in Europe and after migrating from one country to another on that continent for nearly three centuries, a small group came to the United States. Today there are 15,000 Hutterites in North America living in colonies or communities of Brethren each of which is usually limited to about 100 people and in all of which the members devote themselves to a communal form of life in which private ownership is not recognized and all real and personal property is held for the purposes of the colony and for the benefit of each and all members thereof. Membership in the Hutterian Brethren Church is a prerequisite to membership in all such colonies and the daily tasks of the members are related to and an expression of their religious beliefs.
When it is decided that a Hutterian Colony is getting to be too large, the practice is for that colony to form a “daughter” colony and it is thus that the Interlake Colony was formed by the Rock Lake Colony of Hutterian Brethren. When the decision was made to create this new Colony, and after approval had been obtained from all other colonies, it was agreed among the members of the Rock Lake Colony that they should divide into two groups, neither of which could decide whether it wished to go to the new Colony or not. This was finally decided by lot and the assets of Rock Lake were divided roughly in proportion to membership. 2,080 acres of land were then purchased for the new Colony at Interlake at $76 an acre and although these lands are referred to in the Articles of Association, which were later signed by all members of the Interlake Colony, as being held in the names of the defendants Zacharias Hofer, Jacob Hofer and Jacob S. Hofer as joint tenants and not as tenants in common as trustees for the new Colony, this is nevertheless not in accord with the certificate of title of the Interlake Colony’s lands which shows them to be registered in the names of three members of the Rock Lake Colony who later, in July 1966, executed a document declaring that they had no right to title or interest in the lands in question for their own use and benefit, but only upon trust to hold the same for the benefit of Zacharias, Jacob and Jacob S. Hofer.
It appears to me to be clear from the above that the lands in question are not held in trust for the individual members of the Interlake Colony but for the Colony as a whole and that the individual members have no beneficial interest whatever in the land upon which their Colony is situated. This is true of all colonies of Hutterian Brethren and it is in conformity with the acceptance of the principle of community of property which is fundamental to the Hutterite religion. The acceptance of this principle by all the parties to this action is made manifest by the provisions of paras. 30, 31 and 32 of the Articles of Association of the Interlake Colony to which all parties subscribed. These paragraphs read as follows:
30. All the property, real and personal, of said Colony from whomsoever, whensoever and howsoever it may have been obtained, shall forever be owned, used, occupied, controlled and possessed by the said Colony for the common use, interest, and benefit of each and all members thereof, for the purposes of said Colony.
31. All the property both real and personal, that each and every member of the said Colony has or may have, own, possess or may be entitled to at the time that he or she joins such Colony, or becomes a member thereof, and all the property both real and personal» that each and every member of the said Colony may have, obtain, inherit, possess or be entitled to, after he or she becomes a member of the said Colony, shall be and become the property of the said Colony for the common use, interest, and benefit of each and all of the members thereof as aforesaid.
32. None of the property, either real or personal, of the said Colony shall ever be taken, held, owned, removed or withdrawn from the said Colony, or be granted, sold, transferred or conveyed otherwise than by the Board of Directors, and if any member of the said Colony shall be expelled therefrom, or cease to be a member thereof, he or she shall not have, take, withdraw, grant, sell, transfer or convey, or be entitled to any of the property of the said Colony, or any interest therein; and if any member of the said Colony shall die, be expelled therefrom, or cease to be a member thereof, he or she, or his or her representatives, heirs-at-law, legatees or devisees or creditors or any other person shall not be entitled to, or have any of the property of the said Colony, or interest therein, whether or not he or she owned, possessed or had any interest in or to any of the property of the said Colony at the time he or she became member thereof, or at any time thereafter, or had given, granted, conveyed, or transferred any property or property interest to the said Colony at any time.
I am satisfied after having read a great deal of the material submitted by both sides in this case and after having considered the analysis thereof as contained in the judgments of the learned trial judge and the Court of Appeal, that the Hutterite religious faith and doctrine permeates the whole existence of the members of any Hutterite Colony and in this regard I adopt the language which the learned trial judge employed in the course of his reasons for judgment where he said:
To a Hutterian the whole life is the Church. The colony is a congregation of people in spiritual brotherhood. The tangible evidence of this spiritual community is the secondary or material community around them. They are not farming just to be farming—it is the type of livelihood that allows the greatest assurance of independence from the surrounding world. The minister is the spiritual and temporal head of the community.
It follows in my view that, notwithstanding the fact that the Interlake Colony was a pros- perous farming community, it cannot be said to have been a commercial enterprise in the sense that any of its members was entitled to participate in its profits. The Colony was merely an arm of the church and the overriding consideration governing the rights of all the Brethren was the fulfilment of their concept of Christianity. To the Hutterian Brethren the activities of the community were evidence of the living church. In this context I find it impossible to view the Interlake Colony as any form of partnership known to the law.
In the case of Barickman Hutterian Mutual Corpn. v. Nault et al.[5], this Court decided that the appellant corporation was a “farmer” within the meaning of The Farmers’ Creditors Arrangement Act, 1934, and in the course of his reasons for judgment, Sir Lyman Duff had occasion to comment on the Hutterite way of life, saying, at p. 227:
… as a religious community they aim at pursuing a way of life broadly conforming, as they conceive, economically as well as spiritually, to the “Christian principles described in the New Testament.” Their tenets and their practice include ownership of all things in common, the administration of their goods and their worldly affairs generally by persons nominated by themselves for that purpose. It is freely admitted, and it may be assumed, that the arrangements for the administration of their temporal affairs are only a means to enable them to govern their lives by what they believe to be the primitive Christian plan.
The plan to form the Interlake Colony had been conceived some time in 1960 and the seven members of the Hofer family who are now parties to this action all signed the Articles of Association in May of 1961.
There is no allegation anywhere in the pleadings that the Articles of Association were signed otherwise than as the free act and deed of the appellants. Although I conclude that the parties signed the Articles because they were Hutterian Brethren, I cannot find any submission made on behalf of the appellants to the effect that they were signed under any kind of duress. In this regard Mr. Justice Freedman in the course of his reasons for judgment in the Court of Appeal observed:
Another characteristic of Hutterianism—one that is of special significance in the context of the present controversy—is that all members renounce in favour of the Colony any right to private property. They acknowledge that all property of the Colony and of its members is forever to be owned and controlled by the Colony for the common use, interest, and benefit of the members thereof. It is pertinent to note that an express affirmation of the renunciation of private property is part of the adult baptismal service and also of the marriage service. The plaintiffs, all of them baptized as adults, and all of them married, have thus twice acknowledged this basic feature of Hutterian life and their obligation to abide by it. In addition, as is indicated below, the Articles of Association signed by them expressly recorded and declared their acceptance of this same principle, rule, and obligation.
One of the most hotly contested questions on this appeal was whether the Colony was a part of the Church so as to be governed by Church rules and disciplines and so that its members were subject to the decision of Church elders who did not live within the Colony. This dispute centred around the expulsion of the four appellants, which will hereinafter be more fully referred to, and gave rise to the contention of the appellants that although they may have been expelled from the Church they were not expelled from the Colony and that the two were quite different.
As will hereafter appear, I have formed the opinion that the appellants were validly expelled from the Colony in accordance with the terms of the Articles of Association, but in any event I think it to be an overriding consideration that under the provisions of Art. 3 of those Articles
No person shall become a member of the Colony …until he or she shall have… become a member of and a communicant of the Hutterian Brethren Church.
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. This appears to me to be borne out by the evidence and by the books and pamphlets having to do with the nature of the Hutterian Church which were submitted as exhibits. The Colony with which we are here concerned was called the “Interlake Colony of Hutterian Brethren” and in my view it is axiomatic that the members of such a Colony would have to be Hutterian Brethren which to me means that they had to comply with the beliefs and disciplines of the Hutterite Church if they were to remain in the Colony. Whether or not any member of the Colony had ceased to be a true believer in the Church doctrines was a matter for the Church authorities.
The move of the Colony to Interlake does not appear to have taken place until December, 1961, but even before leaving Rock Lake, Benjamin Hofer had begun to be attracted by the teachings of the Radio Church of God and by March, 1964, he and David Hofer had both become converted to the beliefs of that Church. The beliefs espoused by the Radio Church of God differed in certain fundamental aspects from those of the Hutterite Church. Perhaps the most important difference for the purposes of this appeal is that the Radio Church of God did not regard community of property as a part of its faith, but the bitter dispute which arose between the parties to this action centred around the fact that the members of the Radio Church of God did not believe in the Christian festivals as observed by the Hutterian Brethren and they were also opposed to the eating of pork. It can readily be seen that a tightly-knit community of Hutterian Brethren who observed the Sabbath on Sunday, recognized the Christian festivals of Christmas and Easter, and ran a profitable piggery in the Colony, would be gravely disturbed by two of its members denying these recognized religious festivals, celebrating the Sabbath on Saturday and subscribing to religious dietary laws which prohibited the eating of pork. It is only necessary to envisage a small community whose whole way of life was dedicated to the exemplification of its religious beliefs in order to understand the bitterness and discord which would be engen- dered by two members of the community abandoning certain of the religious doctrines and disciplines governing the Church of which the community was a part.
The fact that Benjamin and later David Hofer were active followers of the Radio Church of God became more evident as the months went on and as they continued to subscribe to and study the monthly magazine published by that Church which is entitled “The Plain Truth”, all members of the Colony must have been aware of their dissent from the Hutterite teaching. This was a matter of grave concern to the three respondents, who were senior members of the Colony, and on March 3, 1964, twenty ministers of the Hutterite Church from other colonies came to Interlake to talk to Benjamin and David Hofer in the hope of re-establishing their faith. This discussion lasted for eleven hours but apparently had no effect on the dissidents. A second effort was made on March 13th when twenty-four ministers from other colonies went to interview them and a further discussion was held at which Benjamin and David were asked whether they would accept the penalty of “unfrieden” which would entail their being shunned by the rest of the Colony until such time as they returned to the Hutterian faith. Both dissidents refused to accept this penalty saying that the ministers with whom they were meeting had no authority to impose it. The penalty, which is a Church penalty, was however imposed.
A further meeting of senior elders was later held at the Lakeside Colony and it was there decided that if Benjamin and David Hofer continued to hold the views that they had previously expressed they could not continue as members of the Hutterian Brethren Church and it was arranged that two of their number should go to Interlake Colony and if the dissidents could not be persuaded back into the faith they would be “struck off”. When the representatives of the elders got to the Colony they met with the male members thereof except Benjamin and David and it was decided that a further meeting would be held three days later to deal with the expulsion issue, and in the meantime an attempt would be made to get Benjamin and David to recant. The attempt was unsuccessful and a meeting was held on June 13, 1964, at which Benjamin and David Hofer were expelled. There is a direct conflict of evidence as to whether Benjamin and David Hofer were present at this meeting and it is alleged in the statement of claim that no proper meeting was ever held for the purpose of ordering expulsion. In this regard I adopt the following finding of the learned trial judge:
I find that plaintiffs Benjamin Hofer and David Hofer were at the meeting held on June 13, 1964. I find that after lengthy discussion, they were warned that they could no longer be members unless they changed their minds, to which plaintiff Benjamin Hofer, after saying that he was getting stronger every day in his religion, added, addressing the Reverend Jacob Kleinsasser, “Jake, it is no use. Do not waste time”; and plaintiff David Hofer said, “Prove me otherwise. I have my conviction. You just prove me otherwise.”
The Articles of Association require that “four-fifths of the male members of the Colony shall constitute a quorum for the transaction of business” and art. 39 provides:
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 all the members thereof, or upon the request of such member, or by his or her having left or abandoned the Colony, or having refused to obey the rules and regulations, and the Officers of the Colony, or 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 services of the members of the Colony.
In conformity with the finding of the learned trial judge, I am of opinion that Benjamin and David Hofer were expelled from the Hutterian Brethren Church and were also validly expelled from the Colony.
Almost exactly a year after the expulsion of Benjamin and David, it had become apparent that the other two appellants, John and Joseph, had also abandoned the Hutterite faith in favour of the Radio Church of God. Earnest attempts were made to bring them back to the Hutterian faith and several meetings were held with the object of getting them to change their views, but finally after the giving of due notice to them both, a meeting was held to consider the expulsion of John and Joseph. John was present at this meeting along with the three defendants and some senior members of the Church. By this time the voting members of the Colony had been reduced to five from the original seven and accordingly a quorum of four voting members was sufficient for the transaction of business. After due consideration a motion to expel was adopted with John dissenting.
I agree with the learned trial judge and the Court of Appeal that there was nothing about this meeting which was contrary to natural justice or otherwise invalid. Joseph had received due notice of the meeting and the fact that he decided not to appear did not in any way invalidate the proceedings.
It will be seen from the above that in my view adherence to the Hutterite faith was a prerequisite to membership in the Colony which by its very nature was required to be composed exclusively of Hutterian Brethren and their families. I am also of opinion that the decision as to whether or not any individual was a Hutterian Brethren so as to be entitled to continue as a member of the community was a decision which could only be made by the Hutterite Church. In the present case, as I have indicated, the decision to expel the appellants from the Colony was made by the Church, but it had the effect of making the appellants ineligible for continued membership in the Colony. It follows from this that the appellants’ contention to the effect that the Articles of Association were not properly complied with in regard to expulsion is without merit, and in my view the alternative plea with respect to the unlimited power and control of the ministers of the Church over the personal life and property being contrary to public policy, is equally invalid.
I am also of opinion, as I have indicated, that the Interlake Colony was not a partnership in the accepted legal sense of that term.
There is no doubt that the Hutterian way of life is not that of the vast majority of Canadians, but it makes manifest a form of religious philosophy to which any Canadian can subscribe and it appears to me that if any individual either through birth within the community or by choice wishes to subscribe to such a rigid form of life and to subject himself to the harsh disciplines of the Hutterian Church, he is free to do so. I can see nothing contrary to public policy in the continued existence of these communities living as they do in accordance with their own rules and beliefs, and as I have indicated, I think it is for the Church to determine who is and who is not an acceptable member of any of its communities.
For all these reasons, as well as for those so fully expressed by the learned trial judge and the Court of Appeal, I would dismiss this appeal with costs.
HALL J.—I agree with my brother Ritchie that this appeal must be dismissed for the reasons given by him but with this reservation that in certain circumstances involving minors or others under disability as well as those who have not subscribed to the Articles of Association, the unlimited power and control of the ministers of the Church under the Articles of Association might be void as being contrary to public policy. The question to this extent should be left open at this time. The appellants here were adults and as my brother Ritchie points out they all signed the Articles of Association of their own free will.
While agreeing that this appeal fails, I must, however, express my abhorrence at the treatment accorded the appellants by their erstwhile co-religionists. The insults and gross indignities inflicted on these men and their families as disclosed in the evidence is foreign to the whole concept of life in Canada, whether lived in community or not. The rigidity of the law as declared in Free Church of Scotland (General Assembly) v. Overtoun (Lord); Macalister v. Young[6], which deprives a dissident group, whether small or large, of all rights in the property and the assets of a religious community should, I think, be softened by appropriate legislation under which a formula might be devised so as to permit a dissenter and his family to leave a community such as this one in dignity and with a severance adjustment corresponding in some degree to the contribution made by the dissident member in his years of service to the community. As it is, the dissenter, as my brother Pigeon points out, cannot even claim ownership to the clothes he is wearing as he departs.
PIGEON J. (dissenting)—The appellants and the respondents were all Hutterian Brethren. They lived at and were members of the Rock Lake Colony. In 1960, the Rock Lake Colony had grown to such size that it was decided, in accordance with established practice, to split the Colony and form a “daughter” colony at Interlake, Manitoba. The members of Rock Lake Colony divided into two groups, neither of which knew whether it would go to the new colony or stay at Rock Lake Colony. This was decided by lot. The assets of Rock Lake Colony were then divided roughly in proportion to membership and 2,080 acres of land were purchased for the new colony at $76 per acre.
The seven parties to this action formed the group moving to the new colony. In May