Coombes v. National Phoenix 1984 Firearms Information and Communication Association et al., 2009 ABQB 566

• Judge: Topolniski, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 14, 2009
• Citations: 2009 ABQB 566;(2009), 488 A.R. 127 (QB)

Coombes v. Phoenix Firearms Information (2009), 488 A.R. 127 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. OC.034

Randy L. Coombes (applicant/plaintiff) v. National Phoenix 1984 Firearms Information and Communication Association, also known as the National Firearms Association, Blair Hagen and Sean Penney (respondents/defendants)

(0803 09930; 2009 ABQB 566)

Indexed As: Coombes v. National Phoenix 1984 Firearms Information and Communication Association et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Topolniski, J.

September 28, 2009.

Summary:

Coombes asserted that in 2008 he was wrongfully stripped of his place on the National Executive of the National Phoenix 1984 Firearms Information and Communication Association (NFA). Coombes applied for (1) a declaration that he was the NFA's acclaimed president and that his running mates, Denomie and Klay, were the acclaimed Vice Presidents; (2) alternatively, an order deeming that he was a member of the NFA and directing that an election for the Executive be held with him assuming the presidency and Denomie and Klay assuming the vice presidencies pending the election; and (3) an order requiring the respondent Hagen and the respondent Penney to retain counsel other than counsel for the NFA at their own expense. Coombes asserted that, inter alia, Penney was disqualified from acting as a member of the Executive as a result of the failure to pay his membership dues from 2004 onwards. Consequently, all resolutions passed by the Executive where Penney was one of a two person quorum, including the resolution to expel Coombes, were nullities The respondents asserted that the application was premature as Coombes had not exhausted the NFA's internal procedure for appealing his expulsion. Alternatively, they asserted that the NFA had waived payment of dues by Penney in recognition of his service to the organization, all of the actions complained of were made in good faith, and there was no evidence to support the request that they obtain representation separate from that of the NFA.

The Alberta Court of Queen's Bench held that the application was not premature and that it was appropriate for the court to hear the matter. The court concluded that Penny was not a voting member of the NFA and therefore was not entitled to hold executive office. Accordingly, Coombes was entitled to a declaration that he was not properly expelled in 2008. Further, Penny's nomination of Hagen and Clare for election was also a nullity. However, this did not translate into Coombes being the acclaimed president or Denomie and Klay being the acclaimed vice presidents. The most practical relief was to direct the NFA to hold its annual general meeting and election for the Executive as soon as reasonably possible in 2010. Until that time, the NFA was to address filling the vacancies created on the Executive arising as a consequence of this application. The court denied the request to have Hagen and Penny obtain separate representation at their own cost.

Administrative Law - Topic 2082

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Presumption against bias - Coombes applied for declaratory relief respecting his expulsion from the membership of the National Executive of the National Phoenix 1984 Firearms Information and Communication Association (NFA) - The respondents asserted that the application was premature as Coombes had not exhausted the NFA's internal procedure for appealing his expulsion - The Alberta Court of Queen's Bench dealt with the issue by applying three considerations - The first consideration was that of a fair hearing - There was a presumption that a member of a tribunal would act fairly and impartially absent evidence to the contrary - While Coombes might suspect that the internal appeal panel would be biased against him, he had not demonstrated a real risk of perceived or actual bias - Accordingly, he had not met the threshold of showing that the internal appeal would be unfair - The second consideration was prejudice, of which there was none - The third consideration was the sufficiency of remedy - The internal appeal process was designed to promote justice, fairness and economy in resolving disputes about the suspension or termination of membership in the NFA - Inextricably connected to the panel's determination concerning Coombes' expulsion was the issue of whether there was a proper quorum of the Executive who expelled him - That issue likely would entail hearing evidence and certainly would require interpretation of the Bylaws, which were well within the panel's purview - However, the panel lacked jurisdiction to address the issues arising from an aborted election - Accordingly, it could not provide an adequate alternate remedy - The panel's inability to deal with these issues would result in piecemeal and costly proceedings if that process first had to be exhausted - The court avoided that undesirable outcome by addressing the issues - See paragraphs 24 to 29.

Administrative Law - Topic 2100.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Evidence and proof - [See Administrative Law - Topic 2082 ].

Administrative Law - Topic 3204

Judicial review - General - Agencies or tribunals subject to review - The Alberta Court of Queen's Bench stated that courts were reluctant to interfere in the internal management of clubs - The court referred to rare cases where judicial intervention was appropriate and the limit on the questions that would be entertained - See paragraphs 21 and 22.

Administrative Law - Topic 3204

Judicial review - General - Agencies or tribunals subject to review - Coombes applied for declaratory relief, asserting that in 2008 he was wrongfully stripped of his place on the National Executive of the National Phoenix 1984 Firearms Information and Communication Association (NFA) - Coombes' membership status depended on the membership status of Penney - The Alberta Court of Queen's Bench concluded that Penney was not a voting NFA member and had therefore not been entitled to hold Executive Office - Further, any two person quorum of the Executive that involved him had acted without jurisdiction and any resolution  by such a quorum, including Coombes' expulsion and the deferral of the 2008 election, was a nullity - Coombes was entitled to a declaration that he was not properly expelled and to an order directing the NFA to accept his 2008-2009 membership renewal form - The court directed the NFA to hold its annual general meeting and election for Executive as soon as reasonably possible in 2010 - In the interim it was to address filling the vacancies created on the Executive arising as a consequence of this application - See paragraphs 32 to 45.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - [See Administrative Law - Topic 2082 ].

Administrative Law - Topic 5054

Judicial review - Certiorari - Tribunals subject to certiorari - Private voluntary organizations - [See both Administrative Law - Topic 3204 ].

Associations - Topic 404

Judicial review or statutory appeal - General - When available - [See first Administrative Law - Topic 3204 ].

Associations - Topic 1643

Expulsion of members - Invalid expulsions - Failure to follow internal rules - [See second Administrative Law - Topic 3204 ].

Associations - Topic 3005

Actions against associations and members - General - Appointment of counsel - Coombes applied for declaratory relief, asserting that in 2008 he was wrongfully stripped of his place on the National Executive of the National Phoenix 1984 Firearms Information and Communication Association (NFA) - The relief sought included an order that the respondent Hagen (NFA's president) and the respondent Penney (NFA's vice president) retain counsel other than counsel for the respondent NFA at their own expense - The Alberta Court of Queen's Bench stated that as it had resolved the matter and awarded relief, there was no need to address whether Hagen and Penney should retain separate counsel from that of NFA - However, if it were otherwise, the court would have concluded that there was no need for them to obtain separate representation - The court stated that "Ordering separate representation without a strong basis for doing so would have a palpable and chilling effect on volunteer participation in voluntary associations. The Alberta Court of Appeal's direction in Barron v. Warkentin [Alta. C.A.] that there must be evidence of bad faith, malice, capricious or arbitrary conduct to award costs against a volunteer organization resonates in this regard." - While Coombes felt that there was bad faith by Hagen and Penney's dealings with him, the evidence did not clearly support that finding - It showed a breakdown of the relationship and possible overreactions - The court was not satisfied that Hagen and Penny, individually or collectively, had acted in bad faith, capriciously, or maliciously in their dealings with Coombes - Further, there was no evidence of inconsistency between the NFA's and the individual respondents' best interests - Finally, this was essentially a request for injunctive relief, but the well established tri-partite test was not made out - See paragraphs 46 to 48.

Cases Noticed:

Lakeside Colony of Hutterian Brethren et al. v. Hofer et al., [1992] 3 S.C.R. 165; 142 N.R. 241; 81 Man.R.(2d) 1; 30 W.A.C. 1, refd to. [Introduction].

Conacher v. Rosedale Golf Association Ltd. et al., [2002] O.T.C. 113 (Sup. Ct.), refd to. [para. 20].

Kaplan v. Canadian Institute of Actuaries (1994), 161 A.R. 321 (Q.B.), refd to. [para. 20].

Street v. B.C. School Sports, [2005] B.C.T.C. 958; 2005 BCSC 958, refd to. [para. 21].

Baird v. Wells (1890), 44 Ch. D. 661 (C.A.), refd to. [para. 22].

Posluns v. Toronto Stock Exchange and Gardner, [1968] S.C.R. 330, dist. [para. 25].

Canadian Union of Public Employees, Local 3197 et al. v. Edmonton (City) et al. (1998), 212 A.R. 71; 168 W.A.C. 71; 1998 ABCA 69, dist. [para. 25].

Barron v. Warkentin et al. (2005), 380 A.R. 314; 363 W.A.C. 314; 2005 ABCA 351, dist. [para. 25].

Knox et al. v. Conservative Party of Canada et al., [2007] A.R. Uned. 180; [2007] 6 W.W.R. 551; 2007 ABQB 180, varied (2007), 422 A.R. 29; 415 W.A.C. 29; 286 D.L.R.(4th) 129; 2007 ABCA 295, leave to appeal refused (2008), 385 N.R. 390; 454 A.R. 121; 455 W.A.C. 121 (S.C.C.), dist. [para. 25].

Trumbley v. Saskatchewan Amateur Hockey Association (1986), 49 Sask.R. 296 (C.A.), appld. [para. 26].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; [1979] 3 W.W.R. 676; 96 D.L.R.(3d) 14, refd to. [para. 26].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 27].

IBM Canada Ltd. v. Minister of National Revenue (Customs and Excise) et al., [1992] 1 F.C. 663; 129 N.R. 369 (F.C.A.), refd to. [para. 30].

Boucher v. Métis Nation of Alberta Association et al. (2009), 448 A.R. 185; 447 W.A.C. 185; 2009 ABCA 5, refd to. [para. 40].

R. v. Walker (1875), 10 L.R. 355 (Q.B.), refd to. [para. 40].

Pawlett v. Newfoundland and Newfoundland (Minister of Forestry and Mines) (1984), 48 Nfld. & P.E.I.R. 74; 142 A.P.R. 74; 12 D.L.R.(4th) 755 (Nfld. C.A.), refd to. [para. 40].

Young v. College of Teachers (B.C.), [1999] B.C.J. No. 2104 (S.C.), refd to. [para. 40].

Bhatti et al. v. Nagra et al., [1993] B.C.T.C. Uned. 761 (S.C.), refd to. [para. 41].

Authors and Works Noticed:

Halsbury's Laws of England (1995) (4th Ed.- Reissue), vol. 44(1), para. 1510 [para. 40].

Stoljar, Samuel, The Internal Affairs of Associations, Legal Personality and Political Pluralism (1958), p. 67 [Introduction].

Counsel:

Frank P.K. Friesacher (McCuaig Desrochers LLP), for the applicant/plaintiff;

Kenneth G. Heintz (Venture Law Group LLP), for the respondents/defendants.

This matter was heard on August 14, 2009, by Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on September 28, 2009.