Sasa v. St. Nicholas Mutual Benefit Assn. of Winnipeg

Scotia, for hearing or consideration, any matter which he thinks fit to refer, and the court shall thereupon hear and consider the same.

RE 6. The opinion of the court upon any such reference, although

S.1036, advisory only, shall, for all purposes of appeal to the Supreme Court of CalM. Canada, or to His Majesty in Council, be treated as a final judgment of the court between parties.

Had we reached a different conclusion on the merits of this appeal, the question of the jurisdiction of this Court

GERAL to entertain the appeal would have presented some diffi- NovA culty.

Appeal dismissed.

DANIEL SASS

(PLAINTIFF)

..............

APPELLANT;

Mar. 1,2. AND

April 21. ST. NICHOLAS MUTUAL BENEFIT

ASSOCIATION

OF

WINNIPEG,

UKRAINIAN

MUTUAL

BENEFIT

ASSOCIATION OF SAINT NICHO- RESPONDENTS.

LAS

OF

CANADA,

THEODORE

STEFANIK

AND

OTHERS

(DEFEND- AN TS)

.............................

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

J.-The plaintiff brings his action as a member ,of St. Nicholas Mutual Benefit Association of Winnipeg, hereinafter referred to as the " Provincial Society," and in this action he has joined a number of individuals as well as Ukrainian Mutual Benefit Association of Saint Nicholas of Canada, a body incorporated by Dominion statute for the purpose of taking over the assets and liabilities and -carrying on the work of the Provincial Society. The plaintiff claims-- (a) a declaration that certain by-laws passed by the Provincial Society are invalid;

(b) a declaration that the acts of the said society in ,establishing lodges or branches outside of Manitoba were ultra vires of the society;

(c) a declaration that the method of electing trustees or directors of the society is and always has been illegal; (d) an accounting of moneys spent by the said society in securing a charter under the Dominion Companies Act; (e) an injunction against the expenditure of further moneys for such purposes;

(f) an accounting of moneys transferred by the Provincial Society to the Dominion Society;

(g) an injunction restraining the Dominion Society from further use of the moneys transferred;

(h) an injunction restraining the defendants from surrendering the charter of the Provincial Society, except in accordance with the statutes in that behalf.

The defendant, the Provincial Society, in its defence set up various defences, among others, objections to the plaintiff's status to bring the action, alleging in particular that he was a party to such acts and, further, that by reason of laches and delay the situation has been so changed that it would be inequitable and unjust to grant the relief claimed. Subsequently, an order was made by the Referee in Chambers

The issues so set forth were tried before Mr. Justice Taylor of the Court of King's Bench and, as usually happens in cases of a partial trial, nearly all of the facts relating to the cause of action were explored. Mr. Justice Taylor held that the plaintiff was entitled to bring the action but expressly disclaimed any disposition of the question of ultra vires, holding that this was a matter which could only be properly settled when the action was tried out on its merits. From this decision the defendants appealed to the Court of Appeal and that court allowed the appeal, set aside the judgment of Mr. Justice Taylor and dismissed the action From this decision the plaintiff now appeals to this Court.

The St. Nicholas Mutual Benefit Association of Winnipeg was incorporated in 1915 under the Charitable Associations Act of Manitoba. It was given powers, two of which require special mention. The first was a power- SASS To pass by-laws to regulate the powers and duties of the officers of the association, the amount and manner of the payment of contributions, NcaoLAs dues and assessments to be paid by the members of the association, the payment of sick, funeral or other benefits by the association to its mem- AssN.oF bers, the manner of choosing officers to succeed the present officers and trustees and the manner of admission of new members, and generally such other by-laws as may be necessary for the purpose of effectually carrying Hudson J. out the objects of the association.

and secondly- To amalgamate or affiliate with any other society existing at the date hereof or which may be incorporated or formed in the future, and whose aims and purposes are similar to the above.

The charter did not otherwise limit the powers of the association to make by-laws in regard to membership or otherwise.

The Statutes of Manitoba, 1917, chap. 12, sec. 1, applied to this corporation and provided that:

unless otherwise expressly declared in the Act or instrument creating it, have and be deemed to have had from its creation the capacity of a natural person to exercise its powers beyond the boundaries of the

Province to the extent to which the laws in force where such powers are sought to be exercised permit, and to accept extra provincial powers and rights and shall, unless otherwise expressly declared in the Act or instrument creating it, have and be deemed to have had from its creation the general capacity which the common law ordinarily attaches to corporations incorporated by Royal Charter under the Great Seal.

In Bonanza Creek Gold Mining Co. Ltd. v. The King (1),

Lord Haldane, in referring to a corporation created by charter, states:

In the case of a company created by charter the doctrine of ultra vires has no real application in the absence of statutory restriction addedl to what is written in the charter. Such a company has the capacity of a natural person to acquire powers and rights. If by the terms of the charter it is prohibited from doing so, a violation of this prohibition is an act not beyond its capacity, and is therefore not ultra vires, although such a violation may well give ground for proceedings by way of scire facias for the forfeiture of the charter.

The 1917 Statute of Manitoba was repealed by the Consolidated Amendments of 1924, but then re-enacted in exact terms: chapter 35, section 24. It is said that this provision was repealed by the Manitoba Companies Act, 1932.

We are not of this opinion. Although section 24 of chapter

35, Consolidated Amendments, is included in a chapter entitled An Act to Amend " The Companies Act," it is not stated anywhere specifically to be part of the Companies (1) [19161 1 A.C. 566, at 583-584.

aso45-3

Act; nor does it appear to have been repealed by implication. In any event, most of the things complained of in the plaintiff's statement of claim were done prior to the coming into force of the Companies Act, 1932, and the proceedings leading up to amalgamation of the Provincial Society with the Dominion Society were under way and the defendants invoked the aid of section 31 of the Mani- J. toba Interpretation Act, chapter 105, R.S.M. 1913, as follows:

We are of opinion that under its charter and the above provisions of the Statutes of Manitoba the Provincial Society had power to pass the by-laws attacked by the plaintiff in his action, and also to establish branches outside the province of Manitoba and to amalgamate with, or transfer its assets to, another body having similar powers. It is not contended that the Dominion Act, Chapter 71, Statutes of Canada, 1930, gave the Dominion Society any powers dissimilar from those held by the Provincial Society, except in one particular, viz., that by section 5 of the Dominionl Act

In our opinion this restriction on future membership is not a sufficient departure from the purposes of the Provincial Society as to prevent the Provincial Society from amalgamating with, or transferring its assets to, the Dominion Society.

The plaintiff's right to sue as a member of the society in respect of its acts is limited to cases- (a) to prevent the corporation from either commencing or continuing the doing of something which is beyond its powers;

(b) to prevent the corporation carrying out something which purports to be a corporate act but which is in fact an attempt by the majority of its members to practise fraud or oppression against the minority.