What is the test for remedial powers under s. 85 of the BC S.85(1) of the Rules of Civil Procedure and Procedure to amend a society's bylaws?

British Columbia, Canada


The following excerpt is from Gitxsan Treaty Society, 2013 BCSC 974 (CanLII):

The first objections the respondents have is to the court’s remedial powers under s. 85. They submit that the observations of Southin J.A. in Erickson v. Luggi, 2004 BCSC 52 at paras 5 and 6 are pertinent: I can only assume, or infer, that the learned judge below at the urging of the petitioners concluded that s. 85 was broad enough to permit the court to, as it did in this order, impose bylaws upon a society. In my opinion, s. 85 gives the court no such power. The power to change the bylaws is found in s. 23 and anything short of a special resolution is simply unacceptable. The court does, in my view, have the power under s. 85 if, as appears to be so here, there has been a muddle in the drafting of bylaws and an unwillingness on the part of somebody with the power to call a meeting to address the problem, to order the holding of a meeting and give directions for those who have a right to be heard at that meeting. That is as far as the matter can go. In my view, the attempt engaged in here to fill what appears to be a gap in the bylaws was ill-advised.

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