Hofer et al. v. Hofer et al., [1970] SCR 958

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

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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.

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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

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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.

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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

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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.

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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.

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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

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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

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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

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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-

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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

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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

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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-

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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

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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

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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

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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

[Page 976]

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 1961 they signed a document entitled “Articles of Association of the Interlake Colony of Hutterian Brethren of the Post Office of Teulon in the Province of Manitoba, Dominion of Canada”. Those Articles of Association include the following provisions:

2. The purposes for which the said Colony is formed are: To promote, engage in and carry on the Christian religion, Christian worship, and religious education and teachings, and to worship God according to the religious belief of the members thereof; and to engage in and carry on farming, stock-raising, milling, and all branches of these industries, and to manufacture and deal in such products and byproducts as may be considered by the Directors to be in the best interests of the Colony and for the purposes aforesaid, to hold, own, and possess such real and personal property as may be necessary.

[Page 977]

3. The Colony shall be comprised of all persons who sign these Articles. No person shall become a member of the Colony and be permitted to sign these Articles, until he or she shall have:

(a) Attained the full age of seventeen years.

(b) Become a member and communicant of the Hutterian Brethren Church.

(c) Been chosen and elected to Membership upon a majority vote of all the male members of the Colony present at any annual, general, or special meeting of the Colony.

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.

[Page 978]

33. Each and every member of the said Colony shall give and devote all his or her time, labor, services, earnings and energies to the said Colony, and the purposes for which it is formed, freely, voluntarily, and without compensation or reward of any kind whatsoever, other than as herein expressed.

34. The members of the said Colony shall be entitled to have their husbands, wives and children, who are not members thereof, reside with them, and be supported, maintained, instructed and educated by the said Colony, according to the rules, regulations and requirements of the said Colony, and the Christian religion, Christian worship, religious education, teachings and belief promoted, engaged in and carried on by the said Colony, during the time and so long as they obey, abide by and conform to the rules, regulations, instructions, and requirements of the said Colony.

35. Whenever any member of the said Colony shall die then his or her husband, wife and children who are not members thereof, shall have the right to remain with, and be supported, instructed and educated by the said Colony, during the time and so long as they give and devote all of their time, labor, services, earnings, and energies to the said Colony, and the purposes thereof, and obey and conform to the rules, regulations and requirements of the said Colony, the same as if the said member had lived.

37. The Community, or Association, or Colony hereby created shall not be dissolved without the consent of all of the members thereof.

The parties with their families moved to the Interlake Colony on December 20, 1961. Benjamin Hofer, one of the appellants, had by that time begun to be attracted by the teachings of the Radio Church of God and by March, 1964, he and David Hofer, another appellant, had both become converted to the beliefs of that Church. These differed from those of the Hutterite Church in many respects. For instance, the Radio Church of God did not regard community of property as a part of its faith. It did not believe in the Christian festivals as observed by the Hutterian Brethren and it condemned the eating of pork. The two dissidents became subscribers to a monthly magazine published by the Radio Church of God and entitled “The Plain Truth”.

On March 3, 1964, no less than twenty ministers of the Hutterite Church came from other

[Page 979]

colonies to Interlake and talked to the two dissidents in an attempt to re-establish their faith. A second and unavailing effort was made on March 13 when twenty-four ministers came from other colonies and the two dissidents were asked if they did accept a Church penalty of “unfrieden”. Both dissidents refused and challenged the authority of the ministers to impose it. The penalty was however imposed and meant that the two dissidents were shunned by the rest of the Colony and their families were subjected to various indignities.

On June 13, 1964, the two dissidents, Benjamin and David Hofer, were expelled.

A year later, it became apparent that the other two appellants, John Hofer and Joseph Hofer, had also abandoned the Hutterite faith in favour of the Radio Church of God. Attempts to bring them back to the Hutterian faith were unsuccessful and in the end they were also expelled.

By their action, the appellants sought a declaration that they were still members of the Interlake Colony together with an order for the winding-up of its affairs, the appointment of a receiver, an accounting of its 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 are no longer members of the Colony, and are 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.

Appellants’ action was dismissed and respondents’ counter-claim was allowed by Dickson J. and this judgment was affirmed by the Court of Appeal of Manitoba.

In my view, the first question to be considered is the legal nature of the Colony. Having heard a great deal of evidence respecting the beliefs of the Hutterian Brethren Church, the trial judge found as a fact that the Interlake Colony is a congregation of that Church. I have no doubt that if the question is approached as the trial judge did, namely by looking how the matter is considered according to the teachings of the Hut-

[Page 980]

terians, this is the correct conclusion. However, it appears to me that this is not the manner in which the question must be approached for legal purposes. What is religion, what is a Church in the eyes of the law does not depend on the religious beliefs of any confession, at least under a regime of freedom of religion.

In Walter et al. v. Attorney General of Alberta et al.[7], this Court decided that the fact that Hutterites consider as part of their religion the holding of land as communal property does not mean that legislation controlling such holding is in relation to religion. Martland J. said for the Court (at pp. 392-3):

The fact that a religious group upholds tenets which lead to economic views in relation to land holding does not mean that a provincial legislature, enacting land legislation which may run counter to such views, can be said, in consequence, to be legislating in respect of religion and not in respect of property.

Religion, as the subject-matter of legislation, wherever the jurisdiction may lie, must mean religion in the sense that it is generally understood in Canada. It involves matters of faith and worship, and freedom of religion involves freedom in connection with the profession and dissemination of religious faith and the exercise of religious worship.

In Robertson and Rosetanni v. The Queen[8], Ritchie J. said for the majority (at pp. 657‑8):

It is said on behalf of the appellants that freedom of religion means “freedom to enjoy the freedom which my own religion allows without being confined by restrictions imposed by Parliament for the purpose of enforcing the tenets of a faith to which I do not subscribe.” It is further pointed out that Orthodox Jews observe Saturday as the Sabbath and as a day of rest from their labours, whereas Friday is the day so observed by the members of the Mohammedan faith, and it is said that the Lord’s Day Act imposes an aspect of the Christian faith, namely, the observance of Sunday on some citizens who do not subscribe to that faith.

My own view is that the effect of the Lord’s Day Act rather than its purpose must be looked to in

[Page 981]

order to determine whether its application involves the abrogation, abridgement or infringement of religious freedom, and I can see nothing in that statute which in any way affects the liberty of religious thought and practice of any citizen of this country. Nor is the “untrammelled affirmations of religious belief and its propagation” in any way curtailed.

The practical result of this law on those whose religion requires them to observe a day of rest other than Sunday, is a purely secular and financial one in that they are required to refrain from carrying on or conducting their business on Sunday as well as on their own day of rest. In some cases this is no doubt a business inconvenience, but it is neither an abrogation nor an abridgment nor an infringement of religious freedom, and the fact that it has been brought about by reason of the existence of a statute enacted for the purpose of preserving the sanctity of Sunday, cannot, in my view, be construed as attaching some religious significance to an effect which is purely secular in so far as non-Christians are concerned.

If the evidence respecting the operations of the Colony is considered on the basis that the legal nature of that association is to be determined by reference to generally accepted principles and not by reference to the tenets of the Hutterians, it becomes evident that it is a commercial undertaking, not a Church. The land is used essentially for growing crops and raising livestock and while some part of the production is consumed by the members of the Colony and their families, the major part is sold in the same manner as the product of any similar undertaking whether owned by an individual, a joint stock company or a co-operative association. Of course, some small part of the land is used for a place of worship but it is clear that looking at the matter according to ordinary principles, this is only an extremely minor part. For legal purposes, it can no more be controlling than the use of two small rooms: one for the chaplain’s office, the other for board meetings, in a large building otherwise occupied for commercial purposes could be considered as putting a property in the class of “properties occupied by a youth association” in L’Association catholique de la Jeunesse canadienne-française v. La Cité de Chicoutimi[9].

[Page 982]

It must also be noted that if the Articles of Association rather than the teachings and theories of the Hutterian Church are examined, it becomes apparent that two distinct purposes are enumerated in art. 2: religion and industry, the industrial purpose being described in the following way:

to engage in and carry on farming, stock-raising, milling, and all branches of these industries, and to manufacture and deal in such products and by-products as may be considered by the Directors to be in the best interest of the Colony.

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.

With great deference to the trial judge and the judges of the Court of Appeal, it was wrong to decide the case by the application of rules of law governing churches. In my view, the situation from the point of view of religion must be said to be that the members of the Colony and their families formed a congregation of the Hutterian Brethren Church. This distinction between the Church and the Colony is fully recognized in the Articles of Association. One of the qualifications for becoming a member of the Colony is to have (b) Become a member and communicant of the Hutterian Brethren Church.

It is clear that the Church in this provision of the Articles means the unincorporated religious community. This is not to be identified with The Hutterian Brethren Church, a corporation incorporated by the Parliament of Canada (1951, 15 Geo. VI, c. 77).

From a religious point of view, the dissenting tendencies of Benjamin and David Hofer were obviously of concern to the whole Church and not merely to the Interlake congregation and this may explain why a large number of ministers of other

[Page 983]

congregations together with the local minister concerned themselves with the situation, and in fact made the decision first to impose a Church penalty and ultimately, when the appellants did not repent from their dissent, to expel them from the Church.

Before considering the effect of that decision with respect to the subsequent expulsion from the Colony, it seems convenient to examine the status of Churches in Canada. It is clear that the basic principle is freedom of religion. I see no reason for not applying in Manitoba the following statement of the legal situation in Quebec that was made by the Privy Council in Despatie v. Tremblay[10]:

The religious position in the Province of Quebec in 1774, was therefore that every individual had the right to profess and practise the Catholic religion without let or hindrance. But it must be borne in mind that this is a privilege granted to the individual. There is no legislative compulsion of any kind whatever. He may change his religion at will. If he remains in the Roman Catholic community he may, so far as the law is concerned, choose to be orthodox or not, subject to the inherent power of any voluntary community, such as the Roman Catholic Church, to decide the conditions on which he may remain a member of that community unless that power has been limited in some way by the past acts of the community itself. In other words, each member of the Roman Catholic community in Quebec possessed the same privileges as any other citizen so far as religious freedom is concerned, save that he was not subject to any of the disabilities which then and, for a long time after, attached to Protestant dissenters. The Legislature did not put over him as a citizen any ecclesiastical jurisdiction. The decisions of the ecclesiastical Courts that existed in the Roman Church bound him solely as a matter of conscience. The Legislature gave to their decrees no civil effect nor bound any of its subjects to obey them. Indeed, the Act in art. 17 expressly reserves to His Majesty the power to set up Courts of ecclesiastical jurisdiction in the Province and to appoint judges thereof, although that power seems never to have been acted upon. But what has just been said must not be misunderstood. The law did not interfere in any way with the jurisdiction of any ecclesiastical Courts of the Romal Catholic religion over the members of that communion so far as questions of conscience were concerned. But it gave to them no

[Page 984]

civil operation. Whether the persons affected chose to recognize those decrees or not was a matter of individual choice which might, or might not, affect their continuance as members of that religious communion. But that was a matter which concerned themselves alone.

It will be noted that freedom of religion includes the right for each individual to change his religion at will. While Churches are otherwise free like other voluntary associations to establish whatever rules they may see fit, freedom of religion means that they cannot make rules having the effect of depriving their members of this fundamental freedom. In my view, this is precisely what these Hutterians have been attempting to do. With respect to the indignities suffered by appellants and their families, the learned trial judge said:

The application of pressures upon a deviant, through shunning, deprivation of privileges, and the like, follows Hutterian custom and was intended to make the non-conforming deviant once more conform. Some of the indignities and mistreatment suffered by plaintiffs and members of their families appear strange and repellant, and on occasion excessive, although there can be no doubt that within a religious community stern discipline must be observed if the community is to survive.

With deference, it appears to me that the learned judge’s comments are based on a misconception of the extent of the power that may properly be exercised by Church authorities on communicants. He is clearly assuming that this may be whatever the rules of a Church provide for. In other words, the decision in the Courts below proceeds on the assumption that religion extends to whatever a particular congregation may choose to include in it and that the religious authority is co-extensive with such definition. This is contrary to the proper legal conception of religion whereby its scope is limited to what is commonly so considered and the extent of religious authority is limited to what is consistent with freedom of religion as properly understood, that is freedom for the individual not only to adopt a religion but also to abandon it at will.

[Page 985]

The evidence shows that the rules and practices of this religious group make it as nearly impossible as can be for those who are born in it to do otherwise than embrace its teachings and remain forever within it. As the trial judge has noted, it is unusual for Hutterian children to be allowed to go beyond Grade 8 education. They have no right at any time in their life to leave the colony where they are living unless they abandon literally everything. Even the clothes they are wearing belong to the colony and, according to the judgments below, they are to be returned to it as its property by anyone who ceases to be a member of the Church.

Such a construction of the contractual relationship between the members of the Colony means that they really cannot exercise their right of freedom of religion. If the rights of the Church and of the Colony are fully enforceable as the Courts below have held them to be, it is really legally impossible for them to leave because to do so they must do what the respondents did not hesitate to characterize as “stealing from the Church”, in other words committing a crime (Criminal Code, ss. 2(37), 269, 280). It does not seem to me that it is a proper answer to say that these rights will not be enforced to the limit. This is precisely what the British Court of Appeal refused to admit with respect to a contract with a money lender that was not nearly as harsh as the contract embodied in the Articles of Association (Horwood v. Millar’s Timber and Trading Co. Ltd. [11]). In that case, the Master of the Rolls said at p. 311:

Is it open for a man in consideration of a sum of cash to bind himself not to leave the house where he is, not to sell any of his furniture and effects in the house or in any future house he may move into, which furniture is not the subject of any charge in favour of the mortgagee; is it open to him to say “Whatever property I may have I will not give any kind of security upon it for any sum of money or for any debt which legally or morally I may desire to pay”? Such a covenant would prevent the man from employing a doctor or a surgeon in the case of illness in his family, and would prevent him from

[Page 986]

raising money for the maintenance of his wife and children, or for the education of the latter. I think this is a deed which the law must recognize as bad on grounds of public policy of the most well-established kind.

He had previously stated the applicable principle in the following words, at p. 311:

It seems to me that if as a matter of construction I come to the conclusion that the contract is one which puts the covenantor in the position—I cannot think of a better word at the moment to express my view—of adscriptus glebae, as the villein used to be called in mediaeval times, on the ground of public policy the law will not recognize such a thing. No one has a right so to deal with a man’s liberty of action as well as his property, and the law says it is contrary to public policy.

In the present case, through the Articles of Association if construed and applied as embodying therein the rules of the Hutterian Church, each of the appellants was literally made adscriptus glebae and, in my view, such a result is contrary to public policy.

At this point, consideration must be given to the fact that in 1931, 1935 and 1938 a total of thirteen Acts were passed by the Legislature of Manitoba to incorporate as many Hutterian colonies under the name of “… Hutterian Mutual Corporation”. The preamble of the first of those Acts is typical and is as follows (Statutes of Manitoba, 1931, c. 103):

WHEREAS a religious community of farmers exists in this province under the name of Barickman Colony of Hutterian Brethren, who have associated themselves together for the purpose of promoting and engaging in the Christian religion, Christian worship and religious education and teachings according to their religious belief, and of having, holding, using, possessing and enjoying all things in common, and who are desirous that the said religious community may be incorporated;

AND WHEREAS Samuel J. Hofer, Michael D. Decker, Jacob Wipf, David J. Hofer, Peter Hofer, Samuel Hofer, David J. Decker, John D. Hofer, Michael Tschetter, Michael Hofer, Peter P. Hofer, Jr., Samuel S. Hofer, David D. Decker, Joseph P. Hofer, Michael S. Hofer, Samuel S. Hofer, members

[Page 987]

of the said religious community, have by their petition prayed that they be incorporated under the name of “Barickman Hutterian Mutual Corporation” for the objects hereinafter set forth;

Section 1 of the Act incorporates the persons named in the preamble “together with all other persons who are or shall from time to time become members of the corporation”.

Section 2 includes the following provisions:

2. The objects of the said corporation are:

(a) to promote, engage in and carry on the Christian religion, Christian worship and religious education and teachings, and to worship God according to the religious belief of the members of the corporation;

(b) to engage in, and carry on farming, stock-raising, milling, and all branches of these industries; and to manufacture and deal with the products and by-products of these industries;

* * *

Section 5 provides for vesting the land of the Colony in the corporation.

Section 8 read as follows:

8. No individual member of the corporation shall have any assignable or transferable interest in the corporation or in any of its property, real or personal.

Sections 12 and 13 provided for the private property of members to become common property upon admission to membership and that expelled members would not be entitled to any property of the corporation.

Sections 8, 12 and 13 together with the corresponding provisions in the twelve other Acts of incorporation were repealed in 1948 (c. 24).

The Act incorporating the Barickman Colony was considered by this Court (Barickman Hutterian Mutual Corpn. v. Nault et al. [12]). It was held that the corporation thus constituted was a “farmer” within the meaning of The Farmer’s

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Creditors Arrangement Act, 1934 as being a “corporation” within the meaning of the Bankruptcy Act. Kerwin J. (as he then was) speaking for a majority said of that corporation at p. 232:

… its principal occupation as carried on by its members does consist in farming or the tillage of the soil. I see nothing, therefore, to withhold the benefit of the Act from the appellant merely because of the reference in its objects to the promotion, etc., of the Christian religion.

It will be noted that a corporation with objects and purposes substantially identical with those of the Interlake Colony was found to be a “farmer” devoted to the promotion of the Hutterian religion not a Church of that religion.

This must be contrasted with the case where the same definition of the Bankruptcy Act had previously been sought to be applied to what was admittedly a Church corporation, a parish “fabrique” governed by the Province of Quebec Parish and Fabrique Act, R.S.Q. 1925, c. 197. The Quebec Court of Appeal held that the Bankruptcy Act did not apply (Fabrique de la Paroisse de St-Gabriel de Brandon v. Sarrazin[13]). Leave to appeal to this Court was refused[14], Davis J. saying at p. 421:

I have no doubt that the Bankruptcy Act was never intended to apply to a parish or church or other religious body.

In my view, the incorporation of some Hutterian colonies by the Legislature of Manitoba in no way indicates that it was deemed consistent with public policy to have Hutterian colonies established as Churches to be treated as religious organizations and governed by rules of law applicable to Churches. The fact is that the corporations thus created as well as the colonies established by articles of association are not religious bodies because they do not exist solely for religious purposes. The religious motive for their creation does not prevent them from being ordinary trading corporations or associations. In Keren Kayemeth Le Jisroel Ltd. v. Commissioners

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of Inland Revenue[15], the House of Lords, when the State of Israel did not yet exist, rejected the contention that because the actual living in Palestine is an essential part of the Jewish religion, an association established for the purpose of acquiring land in Palestine for settling Jews on such land could rightly be considered as formed for the advancement of religion. Lord Tomlin said at p. 657:

It is quite true that the minds of those who are intimately concerned with the working of this association may be affected by religious motives and religious sentiments in taking the part which they do take in the work which this association performs, but, none the less, the object of the association is not to do something which is in itself religious; it is not, in any sense in which the words, as English words, can be construed, creating a trust for the advancement of religion.

In my opinion, this reasoning is directly applicable to this case and the association or partnership with which we are concerned must be considered not as a Church but as a commercial organization. The fact that its members were prompted by religious motives in setting it up does not alter its nature and confers no legal authority over its affairs upon the Hutterian Brethren Church authorities. As it appears clearly from the evidence that the exclusion of the appellants was not really the act of the only proper authority, the Board of Directors of the Colony, but the act of the group of the ministers who decided that the appellants must be expelled from the Church, it becomes unnecessary in my opinion to consider the regularity of the proceedings leading up to the exclusion resolution. They were in any case clearly vitiated by reason of the fact that the Board of Directors did not really reach the decision to expel them; they did it purely as a result of obedience to the dictates of Church authorities in the erroneous view that their authority to expel the appellants from the Church included the authority of so directing.

I cannot agree that on their proper construction the Articles of Association provide for auto-

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matic expulsion of any member who is expelled from the Church. Such expulsion would be in the nature of a forfeiture of the whole of 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 which I cannot find. In any event, I am of the opinion that 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 religious or charitable organizations that may be subject to the rules applicable to Churches and as to which no opinion is expressed.

In the Court of Appeal Freedman J.A. said:

Here, however, the vital point is that Benjamin and his brothers had by their own free and voluntary act precluded themselves, so long as they continued to be members of the Colony, from the luxury of adopting or espousing doctrines alien to Hutterianism. Outside the Hutterian Brethren Church, and not as members of the Colony, they possessed (and still possess) the ordinary rights of free citizens to follow any religious beliefs they might desire, or indeed no religious beliefs, if that should be their inclination. But within the Colony they were Hutterites, pledged by solemn obligation and specific covenants to adhere to the religion of the Hutterian Brethren Church. Their rejection of that religion and their acceptance in its place of the doctrines of the Church of God could only be a disruptive influence in a close-knit and united Colony.

With respect, I fail to see on what basis freedom of religion can be so circumscribed. Of course, inside a church no one can be allowed to disrupt services by challenging the tenets of the religion according to which they are conducted. But, as this Court in effect held in the Barickman Colony case, the colony is a farm not a church. No one can contract out of freedom of religion, no one can by acquiring a large tract of land establish one religion over that area and exclude freedom of religion therefrom. The authorities already cited make it abundantly clear that such freedom is a matter of public policy.

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It is of some significance that in Manitoba The Religious Societies’ Lands Act, R.S.M. 1954, c. 225, limits the land that a religious society may hold to a maximum area that is small by comparison with that which is held by the Inter-lake Colony. The following provisions of that Act are to be noted:

2. (1) In this Act,

* * *

(c) “religious society” means a religious society, church, or congregation, of Christians or Jews in Manitoba.

3. (1) A religious society may, in the name of trustees subject to this Act, hold

(a) land not exceeding three hundred acres to be used for the site of a church, chapel, meeting house, residence of a minister, or for the support of public worship and the propagation of Christian knowledge or for other like religious or congregational purposes;

(b) lands not exceeding twenty acres to be used subject to subsection (2) for a cemetery.

Those provisions show that if the Colony was considered as a Church it would be holding land largely in excess of the maximum area fixed by law. I do not find it necessary to consider what the legal consequences would be in that view because I agree with Freedman J.A. that the proper rule to apply in the instant case is that which was enunciated by Wynn-Parry J. in the case of In re Hartley Baird Ltd. [16] as follows:

In the interpretation of such a commercial document as articles of association, the maxim ut res magis valeat quam pereat [it is better for a thing to have effect than to be made void] should certainly be applied, and I propose to interpret these articles in the light of that maxim.

It appears to me that the application of that rule supports the view already expressed that the Colony is a farmers’ association not a Church and that members are not subject to expulsion for the reason that they cease to be members of the Hutterian Church. It follows that the resolutions

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whereby the appellants were expelled should be declared void and they should be declared to be members.

Because, in the opinion of the majority, this appeal fails, it becomes unnecessary to consider what further remedies should be allowed.

As to costs, this is a case where all parties throughout appear to have acted in accordance with their sincere view of what their respective religious beliefs required. I would therefore order the costs of all parties in all Courts to be paid out of the assets of the Colony.

Appeal dismissed with costs, PIGEON J. dissenting.

Solicitors for the plaintiffs, appellants: Yanofsky & Pollock, Winnipeg.

Solicitors for the defendants, respondents: Fletcher, Baker & Wolchock, Winnipeg.