An Ontario court voided a charity’s by-law and the members’ meetings held under it. The same gaps are probably in many by-laws.
In February 2026 the Ontario Superior Court of Justice set aside a by-law of the Windsor/Essex County Humane Society, along with the members’ meetings and corporate actions that followed it, and ordered a new annual meeting. The case is Chifor et al. v. Windsor/Essex County Humane Society, 2026 ONSC 667. The Society appealed and then abandoned the appeal, so the decision stands.
In June 2024 the board passed a by-law to make the directors the only members. Two weeks later it terminated the executive director. Then 224 people applied for membership and paid the fee. The board “deferred” their applications and held a special meeting on October 4, 2024, where 27 recognised members confirmed the by-law by a simple majority. The court found the board had acted arbitrarily and in bad faith, declared the qualifying applicants to be members, and declared the by-law void.
Ontario charities and non-profits incorporated under provincial law are now governed by the Not-for-Profit Corporations Act, 2010 (ONCA). These are the five things I would check, in this order.
1. Who your members are
Find the membership article in your by-law and read the conditions. Then ask whether the organisation applies them. The Windsor by-law required board approval of each member, and for years nobody was approved; people paid and were treated as members. The court said the requirement had been “honoured in its breach,” and would not let the board enforce it for the first time against people it expected to vote against it.
If your by-law requires approval, approve members by board resolution, against written criteria, every time. If you do not intend to do that, amend the by-law so it matches your practice.
The resolution should name each applicant and record the date of the application, the fee received and the criteria the applicant met. If the board defers an application, the minutes should say why, and the same reason should apply to every applicant in the same position. Windsor deferred 224 applications at once while a dispute was under way, and that was part of what the court found arbitrary.
2. How your ONCA by-law was confirmed
Directors can amend a by-law by resolution under section 17 of ONCA, and the members confirm it at their next meeting by simple majority. There are three exceptions: provisions on the transfer of a membership, on how notice is given to voting members, and on how members vote when they are not at the meeting — proxy, mail or electronic ballot. The court held that by-law changes on those subjects need a special resolution, which is two-thirds of the votes cast.
Many transition by-laws adopted before the October 18, 2024 deadline changed exactly those notice and absentee voting rules. Pull the minutes. If they say “carried” with no count, or the count was under two-thirds, put a confirming special resolution on the agenda of your next members’ meeting. The Ontario Bar Association has asked the province to change this rule, but it has not been changed.
Also check that the by-law went to the members at all. Under section 17, a by-law the directors pass that is not submitted to the next members’ meeting, or is rejected there, stops having effect from that point.
3. Your record date and register
The court used the record date to decide who was a member: applicants who met the criteria and had paid before it were in. Fix a record date for every members’ meeting, and keep a members’ register that someone can produce on request. A spreadsheet of donors is not a register.
The register should show each member’s name and address, the class of membership if there is more than one, and the dates the person became and stopped being a member. Before notice of a meeting goes out, have someone reconcile the register against the board’s membership resolutions and the fee receipts.
4. How a director is removed
Under section 26 of ONCA, members can remove a director by ordinary resolution at a special meeting, and under section 60, members holding 10 per cent of the votes can requisition one. If you have an open membership, that is the mechanism a group of unhappy supporters will most likely use. The board should know the numbers: how many members there are, and what 10 per cent of them is.
Once a valid requisition arrives, the directors must call the meeting, and if they do not, the requisitioning members can call it themselves. Decide in advance who will check the signatures on a requisition against the register.
5. Whether you want an open membership at all
Many Ontario charities have a closed membership, in which the directors are the only members, and that is lawful. The Windsor board’s difficulty was that it made the change during a dispute, with a simple majority, while refusing new members. In 2025, in Barrie & District Association of Realtors v. Information Technology Systems Ontario, 2025 ONSC 3388, the same court upheld a membership change that was made for a stated governance reason and through the proper procedure.
If your board wants to close the membership, do it in a year when nothing turns on it, give notice to every existing member, and get two-thirds.
All five checks can usually be done in one board meeting. Circulate three documents beforehand: the current by-law, the minutes of the members’ meeting that confirmed it, and the members’ register.
Koby Smutylo is a business lawyer and principal of Smutylo Law+, with offices in Victoria, Vancouver, Ottawa and Markham. He has practised for more than 25 years, including as in-house counsel to public and private companies, and he advises entrepreneurs and owner-managed businesses. www.lawyercorporation.ca / koby@lawyercorporation.ca
