Hofer et al. v. Hofer et al.

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.

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.

None of the property, either real or personal, of the said Colony shall ever be taken, held, owned, removed or withdrawn from the said Colony, or be granted, sold, transferred or conveyed otherwise than by the Board of Directors, and if any member of the said Colony shall be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-

[Page 969] 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

[Page 970] 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

[Page 971] 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-

[Page 972] 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

[Page 973] 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

[Page 974] 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

[Page 975] 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.

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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.

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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.

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.

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.