Commentary on Gowlings Letter
Our Area Commissioner was instructed to and did deliver a copy of a letter to each person in attendance at a meeting of the North Waterloo Scout Property Association. Some were not in attendance and some may have questions arising out of the letter. The letter in question was on the letterhead of the Gowlings law firm and was on its face addressed to Scouter Stu Eley in his capacity as a member of the Provincial Incorporated Body.
We have posted here copies of two cases which might help you put the issues raised in the letter in perspective. These are cases that were not mentioned to our members because we did not want to paint a rosy picture in advance of the meeting or lull anyone into complacency. None the less, they are of interest in light of the letter that was delivered to us as they point to the reality and exigencies of our situation. Both cases involve Scouts Canada.
The first case is one that took place between the BC Provincial Council and the Greater Victoria Region Council. Both were unincorporated bodies within the Scouts Canada structure created by the By-laws. No individual person in that matter was ordered to pay court costs. On the face of the judgement the Provincial Council lost its point and was required to pay the legal costs to the Regional Council. This case demonstrates that the proposition that Scouts can't sue Scouts or that one level of Scouting cannot use its resources to challenge another level is not tenable.
In the second case, an incorporated Scouting body in Alberta had, by some inadvertence, permitted its registration to lapse. The Anglican church challenged the right of that incorporated body to receive a gift which that Scouting Body had been bequeathed under a will. The Court allowed the Scouting registration to be reinstated and to be paid the money under the will. The Anglican Church actually lost its case against Scouts Canada. Despite that fact, the Church was not required to pay legal costs to Scouts Canada. In fact, its costs were ordered to be paid, although on a reduced basis, out of the Estate. The court did that because the Church had acted reasonably in the particular circumstances. The Scouts Canada Provincial Corporation, whose registration had been allowed to lapse through negligence, was also paid its legal cost out of the Estate. The court made the award of legal costs on a reduced basis because of the corporation's own negligence.
The cases cited in the letter that was placed in our hands deal with "strangers" in ordinary litigation who are merely seeking to be in a representative capacity by virtue of the class action rules. In the North Waterloo case, we are real representatives representing unincorporated associations, namely the chartered groups created under the Scouts Canada By-laws, that are an integral part of a charitable body.
The courts have full authority in all cases to determine all aspects of legal costs, by whom they will be paid and in what amount. What we can discern however, is that the courts, in dealing with charitable or eleemosynary organizations, take special care. They do this because the Courts have a special supervisory role when dealing with charitable bodies. The chartered groups are recognized entities within Scouts Canada as much as District, Regional, or Provincial Councils. Many have existed for over 25 years and some in our Area for well over 60 years. These groups were not created with the oblique purpose of launching speculative litigation in the hope that it would result in personal gain.
Scouter Ted is not in a position to give professional advice in this matter and he has made that point well know. Anyone who has any concerns should seriously consider obtaining their own legal advice independently of anything written by him.
