



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Hong 
          v. Young Kwang Presbyterian  Church of Vancouver,







2007 
          BCCA 29



Date: 20070111





Docket: CA033948

Between:

Taek
Ky
Hong and Young Ha 
    Jung

Appellants

(
Petitioners
)

And

Young 
    Kwang Presbyterian Church of Vancouver

Respondent

(
Respondent
)






Before:


The 
          Honourable Madam Justice Ryan




The 
          Honourable Madam Justice Newbury




The 
          Honourable Mr. Justice Hall



Oral Reasons for Judgment




T. 
          Armstrong

C. Alexander


Counsel for the Appellant




B. 
          Clark


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver
,
British Columbia







9 January 2007




Place 
          and Date of Judgment:


Vancouver
,
British Columbia







11 January 2007



[1]

RYAN, J.A.
: On 8 March 2006 Mr. Justice Crawford dismissed 
    the petition of Mr. Hong and Mr. Jung which sought an order setting aside 
    the 15 August 2004 amended bylaws of the respondent Young Kwang Presbyterian 
    Church of Vancouver (the Church) on the basis that substantive notice of the 
    proposed amendments was not given pursuant to the provisions of the
Society 
    Act
, RSBC 1996 c. 433 and the bylaws of the Church passed thereunder.

[2]

The appellants say that while the Supreme Court Justice adverted to 
    the proper test for notice, he erred in its application to the facts of this 
    case.

[3]

The appellants are members of the respondent Church.  On 15 August 
    2004 the Church held a general meeting at which, by special resolution, a 
    number of amendments to the existing bylaws were passed by the membership.

[4]

Section 23 of the
Society Act
provides that a society 
    may amend its bylaws by special resolution.  A special resolution is defined 
    in s. 1 as :

(a)    a resolution passed in a general 
    meeting by a majority of not less than 75% of the votes of those members of 
    a society who, being entitled to do so, vote in person

(i)         of which the notice that the bylaws provide, 
    and not being less than 14 days' notice, specifying the intention to propose 
    the resolution as a special resolution has been given

[5]

Section 60 of the
Society Act
requires that the members 
    must be given 14 days notice of a general meeting.

[6]

Section 13 of the bylaws of the Church in effect as of 15 August 2004 
    required that:

(1)        
    Notice of a general meeting must specify the place, day and hour of the meeting, 
    and, in case of special business, the general nature of that business.

(2)        The accidental omission to give notice of a meeting to, or 
    the non-receipt of a notice by, any of the members entitled to receive notice 
    does not invalidate proceedings at that meeting.

[7]

Special business is defined in s. 15 of the bylaws as all business 
    conducted at the meeting with the exception of specified matters.  Special 
    resolutions are not listed as an exception.

[8]

If there are regulations to the
Society Act
which relate 
    to special resolutions, they were not referred to us.

[9]

Thus, so far as I have been able to discern, the
Society Act
requires only that notice be given specifying the intention to propose the 
    resolution as a special resolution.  And, the bylaws only demand notice of 
    the general nature of the special business.

[10]

The parties are agreed however, that the case law requires a member 
    of a society be given sufficient notice to allow the member to consider the 
    proposal so that he or she may determine whether the member wishes to attend 
    the meeting, and to determine the questions or concerns the member may have 
    surrounding the proposal for discussion.

[11]

The appellant also relies on the decision of
Armstrong v. Clark
[2002] B.C.J. No. 1009 where Scarth J., following English authority, held 
    at para. [30] that:

In the case of special resolutions they must be passed in the exact form 
    appearing in the notice and may not be amended at the meeting.

[12]

The facts in the case at bar are complicated by the fact that the members 
    of the Church are Korean speaking, that all notices sent to the members are 
    in Korean, all meetings are conducted in the Korean language, but the bylaws 
    of the Church filed under the
Society Act
are in English.

[13]

In the case at bar a notice of the general meeting, in Korean, was 
    sent on 28 July 2004 to the members of the Church.  The notice package contained 
    other documents as well.  English translations of the documents were provided 
    to the court by the appellants.  The respondent Church accepted that the translations 
    were accurate.  In his examination of the material the Supreme Court Justice 
    remarked that the translations were stilted.  This is an understatement.  
    The translations may be literal translations but their meaning is almost impossible 
    to comprehend.

[14]

The Supreme Court Justice accepted that the 28 July notice was accompanied 
    by a complete set of the proposed new bylaws in the Korean language.

[15]

On 1 August 2004 a question and answer session about the upcoming 
    meeting was held in the church after the regular church services.

[16]

The general meeting was held on 15 August 2004.  The membership of 
    the Church is said to be approximately 140.  The appellant provided an English 
    translation of the proceedings of the meeting.  The translation indicates 
    that 137 members attended the meeting.  Some, but not all of the proposed 
    amendments were discussed by the members attending the meeting.  The amendments 
    were passed by the required majority.

[17]

The appellants complain that the notice sent to the members would not 
    have made clear to the members that the enclosed package of bylaws were in 
    fact the proposed amendments.  In particular, they submit that the package 
    did not contain a set of the existing bylaws so that a member could make a 
    comparison between those bylaws and the proposed changes.

[18]

The appellants submit that the amendments to the bylaws resulted in 
    a concentration of power in the hands of the directors by changing their numbers, 
    changing quorums and voting majorities and the definition of a member in 
    good standing.  They say that the notice was confusing at best and conveyed 
    nothing to the membership that would enable them to make an informed decision 
    about whether they ought to attend the meeting or to formulate questions that 
    might arise had the proper information been given to them.

[19]

As I stated at the beginning of these reasons, the appellants accept 
    that the Supreme Court Justice enunciated the proper test he was to apply.  
    Their point is that his conclusion that the proper notice was given, was unreasonable 
    in the circumstances.

[20]

The respondents position is that the appellants have not demonstrated 
    that the conclusion of the Supreme Court Justice that the notice was sufficient 
    was unreasonable.  Given the difficulties with the English translations of 
    the notices and accompanying documents, I am inclined to agree.

[21]

That said, I am also of the view, that the sub-text of the reasons 
    for judgment reveals the conclusion of the Supreme Court Justice that by the 
    time of the vote the membership, almost all of whom attended the meeting, 
    had an understanding of the nature and consequences of the proposed amendments.  
    In such circumstances, I would apply the provisions of s. 85 of the
Society 
    Act
which provides:

85
(1)  Despite anything in 
    this Act, if an omission, defect, error or irregularity occurs in the conduct 
    of the affairs of a society by which

(a) a 
    breach of this Act occurs,

(b) there is default in compliance with the constitution or bylaws 
    of the society, or

(c) proceedings at, or in connection with, a general meeting, a meeting 
    of the directors of the society or an assembly purporting to be such a meeting 
    are rendered ineffective,

the 
    court may

(d) either of its own motion or on the application of an interested 
    person, make an order

(i)  to rectify or cause to be rectified or to negate or modify or 
    cause to be modified the consequences in law of the omission, defect, error 
    or irregularity, or

(ii)  to validate an act, matter or thing rendered or alleged to 
    have been rendered invalid by or as a result of the omission, defect, error 
    or irregularity, and

(e) give 
    the ancillary or consequential directions it considers necessary.

[22]

I would find that proper notice was given and dismiss the appeal.

[23]

NEWBURY, J.A.
: I agree.

[24]

HALL, J.A.
: I agree.

[25]

RYAN, J.A.
: The appeal is dismissed.

The Honourable Madam Justice Ryan


