Supreme Court of Canada
L'union St. Joseph De Montreal. v. Lapierre, (1879) 4 SCR 164
Date: 1879-04-16
L'UNION ST. JOSEPH DE MONTREAL.
Appellants;
And
CHARLES LAPIERRE.
Respondent.
1879: Jan 29; 1879: April 16
PRESENT—Ritchie, C. J., and Fournier, Henry, Taschereau and Gwynne, J.J.
ON APPEA L FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE.)
Benefit society Expulsion of member—Prior notice not necessary under By-laws Mandamus.
L. was expelled from membership in L. U. St. J., an incorporated benefit society for being in default to pay six months' contributions, Art. 20 of the society's by-laws, sec. 5, provides that " When a member shall have neglected during six months to pay his contributions, or the entire amount of his entrance fee, the society may erase his name from the list of members, and he shall then no longer form part of the society; for that purpose, at every general and regular meeting, it is the duty of the Collector-Treasurers to make known the names of those who are indebted in six months contributions or in a balance of their entrance fee, and then any one may move that such members be struck off from the list of members of the society."
L. thereupon brought suit under the shape of a petition, praying that a writ of mandamus should issue, enjoining the company to reinstate him in his rights and privileges as a member of the society. 1. On the ground that he had not been put en demeure in any way; and that no statement or notice had been given him of the amount of his indebtedness; 2. On the ground that many other members of the society were in arrear for similar
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periods, and that it was not competent for the society to make any distinction amongst those in arrears: 3. On the ground that L no motion was made at any regular meeting.
The Court of Queen's Bench for L. C. (appeal side) held that L. should have had “prior notice “of the proceedings to be taken with the view to his expulsion.
Held: On appeal, that as L. did not raise by his pleadings the want of "prior notice," or make it a part of his case in the Court below, he could not do so in appeal.
Per Taschereau and Gywnne J. J., a member of that society who admits that he is in arrears of six months' contributions, is not entitled to " prior notice " before he can be expelled for non-payment of dues.
APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (Appeal side) rendered at Montreal, 21st December, 1877.
This was a suit instituted under the shape of a petition for a peremptory mandamus and requête libellée, by the respondent, who alleged in his petition, among other things, that, having been duly admitted, he continued for many years to be a member of the defendant society, which is a body corporate established in the City of Montreal, whose object (as stated in the petition) was and is to aid those belonging thereto in case of sickness and to secure similar assistance and other advantages to the widows and children of deceased members.
The petition further stated that the society was and is governed by a constitution and by-laws, and admitting that, on the 13th of January, 1877, the petitioner had neglected during more than six months to pay his contributions, and that it was then competent for the defendant society to strike his name from the list of members and to prevent him from any longer forming part of the said society averred that to that end it was necessary for the society duly to require the member thus in arrear to pay the said arrears and that at a general and regular meeting? The collector-treasurers
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should make known the names of those who are in- debited in six months' contributions, and then that someone should make motion that such members be struck from the list of members, and he referred to the by-laws of the society in support of this contention. The petitioner then alleged: That no request was ever made to him for the payment of his arrears either by the Treasurer, or by the Collector or his assistant. That no account was ever sent to him and that he has never known and does not know what is the amount due by him for the arrears. That no motion was made on or before the 13th January, 1877, by any member of the society defendant, at any general and regular meeting, with the object of striking from the list of members the names of those members which the collector-treasurers are obliged to make known as being indebted in six months' contributions or more and that in reality no motion was adopted to that effect. That on and before the said 13th day of January, and even after there was and there is still a great number of members who are in arrears for more than six months' contributions and who are in the enjoyment of all the benefits and advantages of membership. That the defendant society has often consented to receive the payment of more than six months' arrears from its members. That the defendant had no right to erase the name of the petitioner from its list of members under the pretext that he owed more than six months' contributions, without erasing at the same time the names of all members who likewise owed more than six months' contributions The petition further alleged that on the 23rd of April, 1877, the petitioner presented himself at a general and regular meeting of the society defendant held at the society's ordinary place of meeting, and that there and then the petitioner did offer, in presence of the president, the officers and members of the society
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assembled in regular meeting, in good current money, the sum of $20.00 to pay the arrears which he may; have owed the defendant, that he might be again received as a member of the said society, which the defendant illegally and unjustly refused, and that ever since the said the 13th of January the defendant has refused to reinstate the plaintiff petitioner in his rights and privileges as a member of the said society, and that illegally and fraudulently and without cause or reason: wherefore the petitioner prayed that a writ of mandamus should issue, enjoining the defendant to reinstate the petitioner in his rights and privileges as a member of the said society.
To this requête libellée and to the writ of mandamus the defendant filed an exception péremptoire, wherein the defendant society says and alleges that it avails itself of the important admissions contained in the requête libellée, to wit, that the petitioner was indebted for more than six months and that he has been regularly expelled from the society.
That in fact the petitioner was well and duly expelled, according to the constitution and by-laws of the said society, conjointly with twelve other members in default like himself, by a resolution adopted unanimously at a meeting of the society held in the assembly hall on the 8th day of January, 1877.
That the said resolution of expulsion was in order and had been preceded by the reading of the names of the members in default whom the society desired to expel,—that the defendant is not obliged to collect at their domiciles the contributions of members in arrears, but that, on the contrary, the members are obliged to pay all their contributions, fines and other dues at the hall of the said society where it holds its meetings and where all its business is transacted, at the general, as well as at the weekly meetings.
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That the right of the defendant to expel its members in arrears is optional, and it is responsible therefore to no one.
That the defendant has a right to expel either all or any part of its members in arrears, and it considers of essential importance the power to expel when it chooses, and those whom it chooses, consulting merely the Opportunity of circumstances and its own well understood interests wherefore the defendant prayed, that the writ of mandamus be quashed, and, that the requête libellée be dismissed.
For answer to this peremptory exception the petitioner replied, declaring that all the facts tending to contradict the allegations of the requête libellée are false and unfounded in fact wherefore the plaintiff, persisting in the conclusions by him taken in his said requête prayed that the peremptory exception should be dismissed.
The plaintiff filed the following articulations of facts to be proved by him, to which the defendant gives the respective answers following:
“Articulation 1. —Is it not true that before the month of January last, (1877) the plaintiff was a member of the society defendant? Answer.—Yes, but liable to be struck off.
“Articulation 2. Is it not true that when the name
of the defendant was erased from the list there were at the same time other members in arrears with the payment of their contributions, whose names remained on the said list? Answer. Yes.
“Articulation 3. Is it not true that in the month of January last and at the time of the institution of. this action, there were persons owing more than six months' contributions who are still in the enjoyment of the rights and privileges of members of the society defendant? Answer. Yes a number remain members,
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but the fact of being in arrears deprives them of some of the benefits.
“Articulation 4.—Is it not true that all the facts allegged in the said requite are true? Answer.—No."
Certain extracts from the constitution and by-laws of the society were produced in evidence and admitted, whereby it appeared that each candidate for admission to membership promised to be faithful to the by-laws of the society. That by article 5 of the by-laws the regular contribution of members was forty cents per month, payable each month; and by article 11 that it was the duty of the collector-treasurers to collect those dues during the meetings, and at each regular and general meeting to call over the names of members who were indebted in contributions for six full months or over * * *; and by article 22 that every member who should fail to attend any general and regular meeting should be liable to a fine of 5 cents without appeal except in cases of sickness or absence from the city; and by article 20 sec. 5, that when a member should have neglected during six months to pay his contributions, the society might erase his name from the list of members and he should then no longer form part of the society; that for this purpose it should be the duty of the collector-treasurers at every general and regular meeting to make known the names of those who are indebted in six months' contributions, and then that any one might move that such members be struck off from the list of members of the society; and further by sec. 6 of the same article, that every member who should have compromised the honor, the dignity, or the interests, of the society, might be expelled therefrom; that a member should be held to have compromised the honor of the society when guilty of immoral conduct, and the corresponding secretary, having warned him in writing and by order
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of the society to reform his conduct, if he does not amend his ways in the space of the month he might be expelled on motion. And by article 10 of the constitution it was provided that every member forfeits his right to the benefits and his other rights who does not fulfill the obligations required by the by-laws. And by article 7 of the constitution it was declared that the members should pay the monthly contribution as fixed by the by-laws.
There was also produced and filed as evidence in the cause an admission in writing signed by the attornies for the petitioner in the words following:
“The parties admit that the exhibits produced are true copies of the documents they purport to be, and that the name of the plaintiff was read at the meeting at which his name was erased before the motion was made for expulsion as well as the names of the members mentioned in the resolution produced in the record."
This motion, extracted from the minutes of the general meeting of the 8th January, 1877, was also produced, and was as follows: "Moved by Mr. Leclerc, and seconded by Mr. J. Bte. Massé, that the following named gentlemen be struck from the list of members of the society on account of arrears, to wit:" (here follows the names of 13 members, including the petitioner).
Upon this record and evidence the learned Judge of the Superior Court rendered judgment in favor of the defendants, considering the exceptions of the defendants to be well founded in law, and he granted the conclusions thereof and dismissed the petition of the petitioner with costs.
Mr. Carter Q. C., and Mr. Mousseau Q. C., for the appellants:
In this case the respondent was expelled for the mere cause of non-payment of his monthly contributions. In his petition he admits he was in arrears for six months
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and that it was competent for the appellants to strike his name from the list of members, and by the admission of facts which is of record admits that in accordance with the by-laws his name was read at the meeting where his name was erased before the motion was made for expulsion. Nothing else was required by the constitution and by-laws of the society. Contributions are payable at the hall where the members meet at the monthly meetings, and as all members are bound to attend these meetings, every member must be presumed to be present, and know what is going on.
The only grounds of complaint, such as laid down in his petition are three in number: 1st No mise en de-meure, or demand of payment. 2nd. Many other members of the society were equally in arrears, and the society had no right to discriminate amongst them; 3rd. No motion made to expel respondent. The Superior Court deemed these grounds insufficient and on appeal to the Court of Queen's Bench, their decision was reversed because respondent had been expelled without "prior notice." This was a new argument, it was not one of the grounds chosen in limine, before the Superior Court, and it would be a great injustice to allow it. And why? No evidence is allowed in appeal l if the point had been raised in the Superior Court the appellant would have proved a usage a coutume followed by unanimous consent, and prove that the mode of procedure to expel members in arrears was and has been the one adopted against Lapierre, and hundreds of members have in fact been struck off in the same manner.
Now we come to the merit of the contention that prior notice was necessary. Why should such a notice be necessary in the present case? Lapierre is not accused of misbehavior, of having compromised the honor or the dignity of the society. If such a charge
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had been preferred against him, notice would have been necessary, as provided and required by sub-section 6 of art. 20 of the by-laws.
Lapierre has been expelled for the mere cause of non- payment of his monthly contributions, burial dues and fines. In such cases, prior notice is not necessary.
This case is to be viewed as a matter of contract, and we contend that this by-law is equivalent to a notice. The case of Ragget v. Musgrave () is in point, and in this as in that case the rules provided for the manner of payment. When the date and the place of payment is determined as in the present instance, the law prevailing in the province of Quebec requires no mise en demeure, no demand of payment, nor any notice whatever prior to the time of payment.
The rules and by-laws of this society fall under the provisions of the Civil Code of the province of Quebec. See Arts. 1056 1131 and 1134.
The society is not and cannot be bound to pass a trial on a member on the mere question of non-payment of his dues The question of prior notice does not apply. A member of a society such as the society appellant in default is never notified in advance that he may defend himself on a charge of non-payment, and there are English authorities clear on this point. See Scratchley's Practical Treatise on Building and Lands Societies (); Card v. Carr ().
Mr. Doutre, Q. C, for respondent:
The petition sufficiently alleges the want of notice. In one paragraph it is alleged that the respondent was illegally and fraudulently and without cause or reason refused by the appellants to be reinstated in the enjoyment of all rights and privileges belonging to members. According to all authorities, when it is desired to
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deprive a member of his rights in a society; where there is a question of property, he is entitled to receive notice. This is unwittingly admitted by the appellants, who filed of record a paper, being the account intended to be sent to respondent which account contained a notice. The motion for expulsion does not ever contain any statement that the- member was in arrears for six months and that his name was erased because he was six months in arrears. It was the duty of the appellants to prove that prior notice had been given. I will refer the Court to Angell and Ames on Corporations (); King v. The Chancellor of the University of Cambridge (); Rex. v. Mayor, &c. to Liver-pool (); Grant on Corporations (); Brice on ultra vires (); Field on Corporations (); Bagg's Case (); Mereweather and Stephens on Municipal Corporations (); Schmitt v. Saint Franciscus Benevolent Society ().
The charter being silent as to conferring any power to inflict forfeiture operating ipso facto on the respondent, the appellants are governed by the common law which requires prior notice.
To say that the petitioner did not complain of want of notice is playing on words. He was taken by surprise, and thereby deprived of rights for himself, his widow and his children, to secure which he had paid contributions for twenty years. If it be sound law that such notice should have been given it was sufficient for him to say that he had been illegally expelled.
As to the articles of the Civil Code relied on by the counsel for appellants it is sufficient to say that the whole policy of our civil law has been that no lapse of
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time was fatal. By referring to art. 1069 of the Civil Code it will be found to be only applicable to commercial matters, and even this is new law. The only way the appellant could expel the respondent was according to law, and by law respondent was entitled to a notice of some kind.
Mr. Carter, Q. C., in reply:
When motion was made, it must be taken as having been made in conformity with the by-laws. The learned counsel also referred to Littleton v. Blackburn ().
RITCHIE, C. J.:—
The only matter put forward which could have availed the plaintiff in this case was the want of notice of the proceedings to be taken with a view to the expulsion of the plaintiff from the society, and his expulsion in his absence without having such notice This point was not raised in the suit by the pleadings, nor put forward in the Superior Court where the question should have been raised and tried, and so in my opinion, is not now open on appeal to plaintiff, who made it no part of his original case.
FOURNIES, J.:—
L'Intimé, membre de la société de Secours Mutuel appelante en cette cause, étant tombé en arrérages pour six mois de sa contribution mensuelle a été pour cette raison expulsé de la dite société conformément à l'article 5 de ses règlements. Cet article est ainsi conçu:
(5) Whenever a member shall have neglected during six months to pay his contributions, or the entire amount of his entrance fee, the society may erase his name from the list of members, and he shall then no longer form part of the society: for that purpose, at every general and regular meeting it is the duty of the Collector-Treasurers to make known the names of those who are indebted in six months contributions, or in a balance of their entrance fee, and then any one
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may move that such members be struck off from the list of members of the society.
Après son expulsion 1 Intimé s'est adressé à la Cour Supérieure, district de Montréal, pour en obtenir un bref de Mandamus pour se faire réintégrer dans tous ses droits et privilèges comme membre de la dite society se fondant lo. sur ce qu'il n'a pas été mis en demeure de payer et qu'aucun état de ses arrérages ne lui a été préalablement fourni; 20. Que d'autres membres se trouvant dans le même cas que lui n'ont pas été expulses, et que la société n'avait pas le droit de faire une telle distinction parmi ses membres; 30. Qu'il n'a pas été fait motion à cet effet à une assemblée générale.
L'Appelante a plaidé à la requête de l'Intimé par une dénégation générale et par une exception péremptoire dans laquelle elle allègue que l'Intimé a été expulsé conformément aux dispositions de l'article ci-dessus cité. Après contestation liée, preuve et audition au mérite, la Jour Supérieure, par jugement en date du 19 juin 1877, a renvoyé la pétition pour insuffisance de ses allégations.
Ce jugement a été renversé en appel; et l'appelante se plaint que c'est uniquement pour un motif que l'Intimé n'avait ni plaidé, ni invoqué en Jour de première instance, savoir: que lui, l'Intimé, n'avait reçu de la société aucun avis l'informant des procédés adoptés pour son expulsion, et qu'il avait en conséquence été privé de son droit de défense. C'est à cette dernière question seule que se réduit la contestation entre les parties devant cette Cour. L'Intimé le déclare formellement dans son factum.
Avant de considérer la question de la nécessité d'un tel avis dans un cas comme celui dont il s'agit, il faut d'abord savoir si la question a été soulevée et mise directement en contestation (in issue) par des allégations suffisantes dans les plaidoyers des parties
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On a vu plus haut quells sont les principaux moyens invoqués par l'Intimé pour attaquer la validité des procédés de son expulsion; mais on ne trouve nulle part dans la procédure qu'il ait allege le défaut d'avis de ces procédés pour les faire declarer nuls. * Cette allégation était nécessaire pour soulever la question et mettre la défenderesse appelante en état, si elle le jugeait nécessaire, de se justifier en prouvant que de fait un avis avait été donné. La nécessité d'une semblable allégation est admise par 1 intimé, qui pretend l'avoir faite d'une manière suffisante. Pour prouver cet avancé il nous réfère à deux endroits de sa pétition: lo. à la ligne 31, page 3, de sa pétition où, après avoir admis le droit de la société de l'expulser pour défaut de paiement pendant six mois, il ajoute " but to that end “it was necessary for the said society duly to require " the members then in arrears to pay the said arrears, "&c"; 2o dans l'allégation qui précède ses conclusions, l'intimé en se plaignant du refus de l'appelante de le réhabiliter dans ses droits, ajoute que ce refus an été fait illégalement et frauduleusement et sans cause ni raison, at and that illegally and fraudulently and without cause or reason."
Le défaut d'avis ou de sommation d'avoir à se défendre contre une motion d'expulsion peut il être considéré comme compris dans ces deux allégations?
Dans la première allégation il se borne à dire que la société ne pouvait procéder à son expulsion à moins de l'avoir requis de payer ses arrérages. Cette demande de paiement est bien différence du défaut d'avis d'avoir à se défendre contre une proposition d'expulsion, et ne peut être considérée comme son équivalent. Je ne puis trouver là l'allégation du défaut d'avis qui a été le motif unique sur lequel la Cour du Bane de la Reine a base son jugement.
Dans la dernière allégation les mots illegally, fraudulently,
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and without cause or reason, s'appliquent au refus de le réhabiliter dans ses droits comme membre, et ne sont certainement pas susceptibles d'être interprétés comme une allégation du défaut d'avis de la motion d'expulsion
Il me paraît en conséquence clair que cette question n'a pas été mise en contestation par les plaidoiries, et qu'en conséquence l'intimé n'aurait pas dû obtenir gain de cause devant la Cour du Banc de la Reine.
La contestation ayant été, lors de l'argument, réduite à ce seul point, il devient inutile de s'occuper des autres moyens invoqués dans la pétition.
HENRY, J., concurred.
TASCHEREAU, J.:—
The appellant is a benevolent society in Montreal, of which Lapierre, the respondent, was a member. By one of the rules of the society, any member who neglects during six months to pay his contributions may be expelled from it, Under that rule Lapierre was expelled on the 8th January, 1877, for non-payment of his contributions. By a writ of mandamus, he demands that the society be ordered to reinstate him as one of its members. He alleges that it is true that he had been more than six months without paying his contribution, but that his expulsion was irregularly made and illegal: 1st, Because he was not put en demeure to pay. 2nd, Because many other members of the society in arrear as he was were not expelled as he was; and 3rd, Because no motion to expel him was made at any regular meeting, according to the rules of the society.
The second of these reasons is unfounded in law and was, I believe, abandoned at the argument before us. A creditor may sue only one out of a hundred of his debtors, if he chooses; so could this society expel one of
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its members in default and allow others in the same case to remain in its ranks.
The third of the reasons invoked by Lapierre against the legality of his expulsion was that his name was not called out as being m default at any of the regular meetings of the society, according to one of its rules, and that no regular motion was ever made to expel him, according to the said rules. This ground is unfounded in fact. The motion to expel him is proved to have been duly made and adopted and he admits that his name was read at the meeting where his name was erased, before the motion was made.
I come now to the first ground of his requête libellée, that he was not asked for payment, or put en demeure before being expelled. He says:
I admit that I had not paid my contribution for more than six months, but I was not called upon to pay, and could riot be expelled from the society before being so called upon.
This contention, it seems to me, is entirely unsupported by the rules of the society.
Article 7 of its constitution says that
The members pay a monthly contribution which is fixed by the by-laws.
Article 10 that
Every member who does not fulfill the obligations required by the by-laws forfeits his rights to the benefits and his other rights,
Article 5th of the by-laws fixes the amount of the monthly contribution at 40 cents per month. Article 11 defines the duties of the treasurer and other affairs; it enacts that the treasurer shall receive from the collector-treasurers the money collected by them at each meeting, namely, at each general and regular meeting, held on the first Monday of every month. By same article the collector-treasurers are required to collect during the meeting the monies and contributions of the members They must also at each regular general meeting
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call over the names of the members indebted for six months or more.
Article 20 provides that if a member neglects during six months to pay his contributions, it is lawful and optional for the society to strike his name off the list of members, for which purpose at each meeting' thetas collectors are required to mention the names of those "who are indebted for more than, six months of contribution
Article 22 enacts that every member who fails to attend any general and regular meeting is liable to a fine of five cents except in the case of sickness or absence from the city.
Now, taking all these rules together, it seems to me that Lapierre cannot contend that the society had to request him personally to pay his contribution before expelling him. The reading of his name at a regular meeting, where he was bound to be, was the only mise en demeure that he could ask for.
The contributions of the members are payable at such meetings, since the rules say that it is at such meetings, and there only that these contributions are to be collected This reading of his name on the list of defaulters is the only demand of payment required by the contract he entered into with the society when he joined it. By the express terms of this contract he has agreed to pay forty cents a month to the society itself at its regular meetings and that if he should allow six months to elapse without paying, all his rights as a member were to be forfeited; he has agreed that in such a case his name should be called out at one of the regular meetings, and that thereupon any member might immediately move his expulsion. All this has been done: he admits that he did not pay for more than six months, that his name was called out regularly that his expulsion was therefore moved and decreed. What else could
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he ask for? Any demand of payment under our law. may be made at the place where the debt is payable. Lapierre's $ debt was payable at the meeting, where demand of payment to him was made by calling out his name according to the rules. Everything seems to me perfectly regular.
Lapierre, at the argument, invoked, as another ground against the legality of his expulsion, the absence Of prior notice. He urged that not only was a demand of payment necessary, but that the society should have notified him that on such a day a motion to expel him would be made. I do not think that as the record stands he can-avail himself of this want of notice * this case must be taken as he has himself made it. There is not a word of this want of notice in his requête libellée nor in any of the pleadings in the record. This precludes him from invoking it now. Being of that opinion, it is perhaps unnecessary for me to say what would have been the consequences of this want of prior notice if it had been pleaded. I may, however, say that I have not been able to find a single case under the French law where such a notice has been held necessary in case of expulsion for payment of contribution. These benevolent societies exist in large-numbers in France Tinder the words Association de secours mutuel l in Dalloz Repertoire, the law which regulates them is clearly demonstrated, and cases are cited but not a word of this prior notice in such a case is mentioned. The principle of our civil law which rules this case is it seems to me, that if a party is en demeure to pay he may be expelled without prior notice of the motion for his expulsion (). According to the terms of his contract with the society, Lapierre was en demeure to pay and no prior notice to him was required. And how could a notice be given to
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him? Art. 20 sub-sec. 5, of the by-laws says that when a member is six months in arrear he may beL expelled: that for this purpose, at every general meeting the names of the members so in default shall be read, and that then any one may move the expulsion. What notice does Lapierre now say he was entitled to Surely not a notice that he had been six months without paying Then can it be a notice that his name would be read as a defaulter at the regular meeting? That cannot be what he means; this calling of the defaulters is done in virtue of the by-laws and must be done, in fact, at each meeting by the collector-treasurers, upon whom this duty is imperatively imposed. It must be the notice that a motion for expelling him would be made that he means. Well any one of the members was at liberty to make that motion immediately after his, Lapierre's, name was called out as a defaulter. How could that member know before this that Lapierre was a defaulter and would be so called out and if so how could he give him notice that immediately after such calling out of his name he would move to expel him? How could the officers of the society or any one, know that such a motion would be made?
Lapierre has been, it seems to me, regularly expelled. I also notice that he had been over ten months without paying his monthly contribution of forty cents, so that he does not seem to have been harshly treated by the society.
The judgment of the Superior Court quashed his writ of mandamus and dismissed his demand. The Court of Queen's Bench reversed that jugement, and ordered the society to reinstate him as a member The appeal before us is from this last judgment. I am of opinion to allow the appeal, and to confirm the judgment rendered by the Superior Court with costs in the three courts against the respondent.
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GWYNNE J.:‑
From a perusal of the case of the record and issues joined therein, of the evidence adduced in support thereof and of the admissions made in the cause it appears that the only points presented to the learned Judge of the Superior Court for his adjudication were: 1st, Was it, or not, necessary that a demand should have been made upon the petitioner for payment of his arrears before a motion for erasing his name from the list of members should have been made or carried? And 2nd Was it, or not, competent for the society to erase the names of the petitioner and the others comprised with him in the same motion there being other members of the society equally in arrear, whose names were not erased?
True it is, that the petitioner had rested the claim assserted in his petition upon another ground also namely« that no motion was in fact made by any member of the society, nor adopted at any regular or general meeting, with the object of striking from the list of members the names of those members who were six months in arrear; but the admissions made upon that point, and the motion itself, which was produced, displace this ground of complaint and shew that the course indicated by the by-law in that behalf was strictly complied with, unless it was necessary, in order to make the motion effectual, that the names of all members in default for six months should be struck off if any were.
In these societies which are of the nature of mutual insurance societies in which the contributions of the members are the premiums paid by them for the benefits insured, it is apparent that punctual payment of the contributions imposed upon each member by the bylaws is essential to the success of the society. Every person upon becoming a member enters into a contract
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to comply with all the articles of the by-laws and. of the constitution of the society. Now, looking at the by- LU laws and constitution we find, that in the case before us, the petitioner, upon becoming a member, contracted with the society to pay monthly the contributions established by the by-laws which was a known determinate G sum, and as it was provided by the by-laws that these contributions were to be collected by the proper officer at the general regular monthly meetings, which the petitioner was required to attend under a penalty of 50. for every default the fair construction of the contract is that the petitioner undertook to pay his contributions to the proper officer every month at the regular monthly meeting of the society. It is clear, then, that upon default by the petitioner in payment of his. dues, an action for their recovery might have been maintained against him without proof of any special demand of the amount in arrear before action. Upon non-payment at the times and place agreed upon he became in complete default, but we further see by reference to sec. 5 of article 20 of the by-laws incorporated into the petitioner's contract, that he in effect contracted with the society, that in case he should neglect to pay his contributions during six months, the society might erase his name from the list of members, upon a motion being made to that effect at any general regular meeting of the society, after the collector-treasurer should make known, as was his duty to do, the petitioner was indebted in six months' contributions; while by sec. 6 of the same article it was contracted between the petitioner and the society that upon any charge compromising the honor, the dignity or the interests of the society he could only be expelled after a warning in writing should be served upon him by order of the society.
It is impossible to import into this contract the further condition, which is not expressed therein, that
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after the expiration of the six months during which the petitioner was in arrear, and. notwithstanding he may have been duly reported by the collector-treasurer as so in arrear, it was nevertheless necessary that a special demand should have been made upon him for payment of those arrears before a motion for erasing his name from the list of members could be entertained by the society.
In Rex vs. Lyme Regis (), it was held, that where residence was a condition of the enjoyment of a corporate office the corporator, in case of non-residence, might be removed, without any notice to come and reside being first given, for that he was bound to know the law under which he held office; the principle of that case appears to apply to this, for the petitioner was bound to know that by his contract he had promised to pay his contributions without any special demand at a particular time and place and that if he should make default, and therein continue for six months, he might be erased from the list of members, upon a motion to that effect made by any member of the society.
In Rex vs. Mayor of Axbridge (), upon shewing cause against a mandamus to restore a corporate officer, namely the town clerk who had been removed sufficient cause for removal was shewn the prosecuting counsel admitted there was sufficient cause of amotion, but objected that the town clerk had been removed without notice to appear and defend himself and the Court Lord Mansfield presiding declared that they would not grant the writ to restore an officer, when it was acknowledged that the corporation had sufficient cause to remove him.
This case was followed in Rex vs. The Mayor & c., of London () where the Court refused a mandamus to
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restore a corporate officer who had been suspended from an office to which emoluments were attached, without L notice, it appearing upon his own shewing that there was good ground for the suspension.
The plaintiff in his petition here expressly admits that he was in default for the full period of six months mentioned in the by-law in payment of those contributions which were in the nature of premiums, agreed to be paid by him as the consideration of the benefits assured to him; that he had broken the contract in virtue of which alone he was to continue to be a member of the society in its most essential particular and that by reason of such breach of contract it was competent for the society to strike his name off the list of members and to prevent him from any longer forming part of the society, provided only, as he contends, that a demand of payment of the arrears should be first made upon him. I do not see, as I have already said, that we should be justified in importing this proviso into the contract, and as to the other point namely, that other persons who were also in arrear for six months, were not also struck off no case has been cited in support of the contention that it was not competent for the society to erase the names of some without at the same time erasing the names of all in like default which is not clear if it be the case there were at that time others in like default whose names were not erased. The rule upon this point to be gathered from the cases is, that the Court never interferes between societies of this kind and their members where the action taken by the society has been in good faith and in the exercise of their judgment for the benefit of the society, and not founded upon mere individual caprice; where the decision has been arrived at bona fide without any caprice or improper motive, and where the plain principles of
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justice do not appear to have been violated. Osgood y.. Nelson (), Hopkinson v. Marquis of Exeter ().
In so far, therefore, as relates to the case as expressly set up on the record, the decision of the learned Judge of the Superior Court, before whom the case came in the first instance, appears to me to have been well founded, nor do I understand the learned Judges of the Court of Queen's Bench on its appeal side to reverse his judgment upon any of the special grounds upon which the petitioner, as it appears to me, rested his case, but upon this ground, namely, that in their judgment it was contrary to the principles of natural justice to erase the plaintiff's name, not because a prior demand for payment of the arrears was not first made upon him but because he had not first been served with a notice that a resolution to erase his name would be proposed to the society at some meeting named in such notice» This judgment and the application of the maxim '' nemo rebus suis interdictas exislemelur '' to this case are rested upon Rex. v. Richardson () * Rex* v. The Mayor & c .,, of Liverpool (); a passage in Angelí and Ames on corporations 3rd Ed. p. 413, citing a case of the Common-weath v. Pensyluania Beneficial Society (); and Regina v Saddler's Co ().
Now, Rex. v. Richardson was the case of the removal of a freeman of the Borough of Ipswich without sufficient cause, and Rex. v. The Mayor & c., of Liverpool, was the case of the removal of a corporator from a freehold office without sufficient cause by a court of the corporation not shewn to have been duly assembled That portion of the corporation which assumed to dismiss the officer, not being assembled upon a charter day or general day of meeting, it was among other things held that to enable a special meeting to assemble it should
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have been averred in the return to the mandamus that all the members of the court had been notified to attend.
Regina v Saddlers' Co. "was the case of a freeman of the company having been removed, upon a charge of fraud committed by him in procuring his admission, without notice of any proceeding to establish the charge against him. The remarks of the learned members of the respective courts through which the case passed to the House of Lords as to the removal of the party complaining without notice, plainly apply to the nature of the charge of which in effect he was condemned unheard, but that they do not apply to cases where there is admitted, upon the proceedings taken for the purpose 01 obtaining redress, that there was sufficient cause of removal, is apparent from the reference made by Lord Ghelmsford () to Rex. v. Griffiths (), that it is idle to grant a mandamus to restore where the party could be removed again immediately. The appositeness of the above cases, relied upon in the judgment of the Court of Appeal to the circumstances of the case before us, is not very apparent when we reflect that the plaintiff here in his petition admits that he was liable to have his name struck off for breach of his contract in its most essential particular, and that it is shewn in evidence that the action taken was taken at a general regular meeting of the society which it was the plaintiff's duty to attend, and that all the conditions concurred and proceedings were taken which he had contracted with the society should be sufficient.
As to the case in 2 Serg. and Rawl. 141, its report is very meagre; enough, however, does appear in it to weaken its authority as applicable to the case before us, even if it contained the expression of opinion entertained by a court whose judgments were binding upon us. For,
(3) 5 B. & Aid. 731.
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firstly, as to the necessity of notice of an intention to expel 50. in the given case, that point does not appear to have E been raised in the case its determination was not at all necessary to support the judgment of the Court, which proceeded upon the ground that there was no expulsion. Morover, secondly, the contention of the party applying to the Court for relief was not only that no expulsion had. in fact been effected and that therefore he was still en-titled to all the benefits of membership, but that in truth he was not liable to be expelled, for that the society was indebted to him for services as secretary in a larger sum than the amount of his arrears, so that in effect there was no sufficient cause to justifty expulsion. And lastly, the judgment professes to proceed upon the terms of the charter, and it does not appear that each member of the society had contracted as the plaintiff here has, that upon his continuing in default for the specified period, and upon his being repotted to the society at any general meeting as such defaulter, . any member might then make a motion that his name should be struck off the list of members, and that upon such motion being carried the plaintiffs right of membership should cease, and he should in fact no longer be a member of the society. In the"argument before us it was strongly urged by the learned counsel for the appellants, that the point upon which the judgmentof the Court of Queen's Bench in appeal proceeded was not raised upon the record. This contention appears to be well founded. The learned counsel for the respondent combated it upon the ground that it was sufficiently raised by force of the words " without cause or reason in the last paragraph of the plaintiff s petition, which alleges
That since the 13th of January last until this day the defendant has refused to reinstate the plaintiff petitioner in his rights; and privileges as a member of the said corporation, L' Union St. Joseph de Montréal, and to put him into the enjoyment of aright and
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privileges belonging to such membership, and that illegally and fraudulently and without cause or reason.
Now it is to be observed that what is here said to; have been illegal and fraudulent, and without cause or reason, relates to certain action said to have been taken upon the 23rd of April, when the plaintiff, after three G months' notice of his expulsion, applied to be reinstated, and has no reference to anything done or omitted at the time of expulsion in the preceding January. But, further, assuming the allegation in the last paragraph to have pointed in express terms to the removal in january, namely, that it was charged that the plaintiff's removal then was without cause or reason, that would have been insufficient to amount to an averment that the removal was illegal for want of a preceding notcce of the intended motion. Default in payment of his contributions for the period of six months constituted the cause and reason of his removal. Notice of the intended expulsion, if necessary to have been given, was part of the proceeding, necessary to effect the removal for the pre-existing cause, and cannot be said to be a part of the cause, but the general scope and frame of the petition clearly shews that its framer never had in his mind the idea that he was raising an issue upon the point of removal without notice being given of the intended motion. In the paragraph preceding the last, he alleges that three months after his expulsion, and after he had notice thereof, the petitioner applied at a general regular meeting of the society to be received again as a member, which application he says the défendant illegally and unjustly refused. The natural construction of the petition read all together, is that the plaintiff's contention was that it was illegal and unjust to refuse to receive him again, because, although true it is he had committed such default as justified his removal, yet that it was not legal to remove him because,
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1st. Payment of the arrears had not been first demanded of him; 2nd. Because he had not been reported by the collector-treasurer as having been six months, in default; 3rd. Because in fact as he alleged, no motion to remove him had been made by any member of the society as required by the by-laws, and; 4th. Because the society had no legal right to remove him without at the same time removing all others in like default.
These are the points upon which he rests his case. Now, assuming the contention of the plaintiff upon these points to fail, I cannot see upon what principle of justice, after what the plaintiff, himself alleges took place upon the 23rd of April, which appears to be a full unequivocal confirmation of what took place in January, he could with any reason be heard to urge the want of notice of the intended motion in January. After a full consideration of the matter, upon the application of the plaintiff after three months further default, the society in effect confirms the action taken in January. After this action of the society upon the 23rd of April I fail to see what legal right the plaintiff has to invoke the interferenee of the Court, (or what right the Court has) to impose upon the society the obligation against its will to receive from the plaintiff his overdue contributions so long in arrear. The society itself alone in the untramelled, bona fide exercise of its discretion, is the sole tribunal to decide whether it should, or not, waive the forfeiture of his rights, which the plaintiff's default has incurred. I see no principle upon which the Court can compel a society of this nature to waive the ground of forfeiture, and to accept now from the plaintiff payment of all arrears in condonation of his default; and if that cannot be done, it would be contrary to another principle which governs the Courts in cases of this kind, to order the name of the plaintiff to be placed again upon the list, for it would be still subject to removal for the old default, a point
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already conclusively decided upon the plaintiff's own application for a rehearing upon the 23rd of April.
Adopting the language of Mr. Justice Blackburn in Í Res. v Saddler's Co () I think that in this case. relief ought to he granted or refused according to the legal right upon the Record, and I am of opinion that the plaintiff has not raised upon the Record the point upon which the judgment of the Court of Appeal is rested and further that in view of the circumstances of this case if it had been so raised, it would not have established a legal right in the plaintiff to be reinstated, or have justified the decree made in his favor, in the face of his own admission that he had committed such a default as justified his removal, and of the evidence, which shews that the removal took place precisely in the manner in which the plaintiff contracted it might take place, and of the admission contained in the plaintiff's petition, to the effect that, upon his application upon the 23rd of April, the society deliberately refused to waive the cause of forfeiture and has substantially affirmed the action of the society in January.
The judgment of the Court of Appeal must therefore be reversed and that of the Superior Court he reinstated.
Appeal allowed with costs.
Solicitors for appellants: Mousseau, Chapleau & Archambault
Solicitors for respondents: Doutre, Doutre & Robidoux.
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