Editorial — Trying to define what’s in the ‘public interest’

MONDAY MORNING EDITORIAL — An email arrived in the inbox today issuing an alarm about a B.C. government white paper on proposed changes to the Societies Act. It’s worth taking a look at.

The email links to a Huffington Post article on the white paper. It worries about what it sees as a threat to free speech by incorporated societies, due to a particular section dealing with public complaints. The section is reproduced only in part by the Huffington Post article but for context the complete section is this:

Complaints by public

99 (1) A person whom the court considers to be an appropriate person to make an application under this section may apply to the court for an order under this section on the grounds that a society

(a) is conducting its activities or internal affairs with intent to defraud a person or to otherwise act unlawfully, or

(b) is carrying on activities that are detrimental to the public interest.

(2) On an application under this section, the court, with a view to remedying or bringing to an end the matters complained of, may make any order it considers appropriate, including an order referred to in section 98 (3).

(3) Section 98 (4) applies for the purposes of this section.

Section 98 (3) lays out what the court might do, such as ordering removal of a society director, setting aside a resolution or directing the society to compensate an aggrieved person. Section 98 (4) refers back to other sections.

What has environmental groups in particular worried is the phrase “detrimental to the public interest” and the suspicion it could be used for nuisance lawsuits to silence them. It’s worthwhile stating the annotation to the proposed section 99, not mentioned in the HP article:

The section provides members of the general public with the right to seek a court remedy if a society is acting in a fraudulent or unlawful manner, or is otherwise not acting in the public interest. The court can remedy the situation by making any order it sees fit, including any of the orders listed in section 98.

This provision is unique in corporate law, and reflects the special role of non-profit corporations in society. There is a general expectation that societies will act in the public interest, especially since so many of them are supported by public funding or monies solicited from the public. The risk that the provision could be used improperly (e.g. for minor matters or to pursue personal grievances) is limited because the court effectively controls the process.

That last sentence indicates the drafters of the new section are aware of the possibility it could be abused but offer the assurance that such potential is slight.

While this assurance isn’t mentioned in the online article condemning the new section, it obviously doesn’t placate those who are concerned about it. The Huff Post headline says, ‘Christy Clark’s Proposed Policy Overhaul Is Breathtakingly Stupid.’

Indeed, determining what is in the public interest, and even what “public interest” means, could keep academics and lawyers busy for years. Is it conceivable someone could take a society to court not just on environmental disagreements but over any social, religious or political issue that supposedly isn’t in the public interest? Or would this new section be limited to obvious malfeasance?

The article, and the email, warn that the public comment period on the white paper concludes on Wednesday, so time is short. (Comments can be emailed to fcsp@gov.bc.ca, it says.) Unfortunately, the alarm is being raised just now, while the white paper is dated August 2014.

Nevertheless, and despite the assurance contained in the annotation, this new “public interest” section as posited by the government needs closer examination and clearer definition.