Sedgwick v Edmonton Real Estate Board Co-Operative Listing Bureau Limited, 2021 ABQB 59

Court of Queen’s Bench of Alberta Citation: Sedgwick v Edmonton Real Estate Board Co-Operative Listing Bureau Limited, 2021 ABQB 59 Date:20210121 Docket: 1903 19751 Registry: Edmonton Between: Steven Sedgwick Applicant - and - Edmonton Real Estate Board Co-Operative Listing Bureau Limited Operating As Realtors Association of Edmonton Respondent Corrected judgment: A corrigendum was issued on March 12, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice S.N.

Mandziuk _______________________________________________________ Introduction [ 1 ] The Respondent operates under the trade name the Real Estate Association of Edmonton (RAE). RAE is a voluntary, non- profit, private organization registered as a cooperative under the Cooperatives Act , S.A. 2001, c C-28.1 ( Cooperatives Act ). [ 2 ] The Applicant, Steven Sedgwick (Sedgwick) is a licensed real estate agent in Edmonton. Sedgwick was a member of RAE. Following an investigation by the Real Estate Council of Alberta (RECA) - the regulatory body for real estate agents - which operates

under the Real Estate Act , R.S.A. 2000, c R-5 and its regulations, Sedgwick admitted to conduct deserving of sanction and his license to trade in real estate was suspended for three months. His broker terminated his position. This, in turn, resulted in his RAE Membership being automatically terminated in accordance with RAE’s then-in-force bylaws. This termination has not been disputed. [ 3 ] After his RECA sanctions were completed, Sedgwick applied for reinstatement to RAE. His application was denied.

His new brokerage, Realty One Group Insider (Realty One) asked RAE to reconsider its decision in accordance with RAE’s bylaws. RAE’s board upheld the original decision. Sedgwick submits that he is entitled to a remedy via judicial review of RAE’s decision to not grant his membership application or on the basis that RAE’s actions were oppressive, engaging the remedial powers found in the Cooperatives Act . Issues [ 4 ] Is the decision made by RAE subject to judicial review? [ 5 ] Does Sedgwick have a remedy under the Cooperatives Act ? Facts [ 6 ] RAE provides various services to its members.

In particular, members have access to the Multiple Listing Service (MLS) and SUPRA Key Safe (Key Safe) tools which are commonly used by residential real estate agents. [ 7 ] MLS is used by real estate agents to search for properties, identify new listings that match required criteria, perform market evaluations and engage in other functions for buyers and sellers of real estate. It also allows access to educational materials and conference, networking and social opportunities for members. [ 8 ] Key Safe is a lockbox system.

It allows real estate agents to access properties that are for sale and tracks access to those properties. [ 9 ] MLS and Key Safe are only accessible to RAE members. It is not disputed that most if not all realtors who buy and sell residential real estate in the Edmonton area (and elsewhere) use these two tools. RAE membership is needed for any agent to work in a residential real estate brokerage; to be a member of provincial and national bodies; and to access templates, information and other services. [ 10 ] Sedgwick has worked as a real estate agent since 2001.

He holds a license from RECA to carry on this profession. In addition to being a member of RAE for many years, Sedgwick had a leadership role with the organization, serving on RAE’s Board of Directors from 2013-2017 inclusive, including a year as Chair and a year as past Chair. He was given a lifetime membership as a reward for his service to the organization. [ 11 ] The RECA sanctions arose from issues between Sedgwick and two homeowners who had retained Sedgwick as their agent. It is not necessary to recite the details of the allegations or RECAs investigation in this decision.

The key fact is that on October 5, 2018, Sedgwick admitted to engaging in dishonest and unethical behaviour while acting as a real estate agent. [ 12 ] In RECA’s disposition, with an agreed statement of facts in place, RECA imposed a three-month suspension, a fine and an educational requirement. [ 13 ] Royal Lepage Noralta Real Estate brokerage (Royal Lepage Noralta) terminated Sedgwick on November 29, 2018 through a letter from the broker, Tom Shearer. [ 14 ] On November 28, 2018 RAE’s Board terminated Sedgwick’s life membership and informed him by letter dated December 4, 2018 that his life membership was terminated “for just cause”.

Sedgwick was invited to attend the Board of Directors’ meeting on December 19, 2018 to “show cause” why his life membership should not be terminated. The grounds cited related to breaches of the Real Estate Act , ss. 39(1) (b), 41 and 47(1) as well as various breaches of the “REALTOR® Code”. [ 15 ] Sedgwick emailed an apology, an explanation, and his acceptance of the decision to RAE’s CEO. [ 16 ] Sedgwick completed the suspension period and fulfilled other requirements of the RECA sanction as of March 8, 2019. His RECA license was reinstated.

He affiliated with Realty One, a different brokerage. [ 17 ] On March 11, 2019, Sedgwick applied for RAE membership by submitting the required forms and paying the fees, deposits and dues required under RAE’s bylaws in effect at the time. [ 18 ] Sedgwick’s view is that his application was accepted. He gained access to all member services.

RAE’s evidence is that once a membership application is received, the applicant gets temporary or conditional access to services pending Board approval. [ 19 ] On April 9, 2019, Sedgwick was asked to appear before RAE’s Board of Directors for a review of his membership application. The appearance was held on May 2, 2019 before a review panel. The Chair was Jennifer Lucas (Lucas). Lucas had previously worked with Sedgwick at Royal Lepage Noralta. [ 20 ] Shearer is also a member of RAE’s Board of Directors.

He was not a member of the review panel. [ 21 ] Sedgewick’s evidence is that he apologized for his conduct in an opening statement. He was asked by the panel what

measures he had implemented to prevent the problem that led to the RECA sanctions from happening again. He said that he would have all documents signed electronically so that there would never again be a client signature issue. No other questions were asked and the hearing concluded. [ 22 ] Through written minutes of a Board of Directors’ panel meeting dated May 6, 2019, the panel advised Sedgwick that his application for admission to RAE was rejected and immediately terminated his access to all RAE services. The panel said that he could reapply on February 6, 2021 contingent on completion of a number of courses.

That date represents the two-year anniversary of the terminal date of Sedgwick’s RECA suspension. [ 23 ] The panel noted Sedgwick’s remorse, but relied on the RECA findings, in particular on the agreed statement of facts, concluding that “ . . .there was reasonable evidence that Sedgwick breached both Sections 18 & 21 of the REALTOR® Code” and that “ . . . given the serious nature of his conduct he did not provide an adequate response to demonstrate that he has sufficient mechanisms in place, in his business practice, to ensure that these breaches will not occur again” (Jennifer Lucas Affidavit sworn August 28, 2020, Exhibit “O” at 2).

The panel concluded that the public and the “REALTOR® brand” were at risk. [ 24 ] Realty One requested a reconsideration of the decision. The risk management measures were reiterated and explained in more detail. Sedgwick’s personal circumstances were also described. [ 25 ] The reconsideration hearing was set for June 28, 2019 before a RAE appeal panel. Shami Sandhu, the acting broker for Realty One, appeared. Sedgwick’s evidence is that he was told that he did not have to attend, but he did, and was told that he was not allowed to speak or ask any questions. Only the broker could speak for him. Mr.

Sandhu gave the appeal panel a number of documents related to policies, procedures and agreements with Sedgwick that were designed to hold him accountable. These included specific expectations around client signatures appended to his agreement with the brokerage. [ 26 ] On July 2, 2019, the appeal panel denied the reconsideration application. Sedgwick was given leave to reapply for membership on February 6, 2021.

The appeal panel noted the “REALTOR® Code” breaches, found that the Realty One measures were not sufficient to prevent the conduct from recurring; that Sedgwick had not fully understood them when he appeared before the initial panel; and that the addendum was only recently created (June 26, 2019).

The panel said that “ . . .neither the brokerage nor Sedgwick have approached his admission of conduct deserving of sanction, with an appropriate degree of concern or discipline which was warranted in this situation” (Jennifer Lucas Affidavit sworn August 28, 2020 Exhibit “Q” at 4). [ 27 ] Sedgwick referenced some mental health issues he experienced at the time of the misconduct. The panel was not satisfied that he had explained how his health would be addressed on an ongoing basis.

The panel was strongly focused on prevention in advance of the conduct, and Realty One’s systems would only identify the conduct once it occurred. [ 28 ] Therefore, at present, Sedgwick is effectively indefinitely barred from membership in RAE with a right to reapply on (or after) February 6, 2021. Positions of the Parties Sedgwick’s Position [ 29 ] Sedgwick wants to be a member of RAE and have access to its services, most importantly, MLS and Key Safe. Sedgwick’s evidence is that “it is effectively impossible” for him to conduct business as a real estate agent without access to these tools.

Both are needed by Real Estate Agents to “list, view and sell properties” (Sedgwick’s Brief at para 15). [ 30 ] Sedgwick argues that RAE did not have authority in its bylaws to deny him membership.

He is entitled to a remedy under the provisions of the Cooperatives Act that are akin to the oppression remedy found in federal and provincial business corporation statutes: the denial of membership is “oppressive or unfairly prejudicial to, or . . .unfairly disregards” Sedgwick’s interests (Sedgwick’s Brief at para 27). [ 31 ] Sedgwick also seeks mandamus, arguing that RAE’s decision was incorrect and unreasonable and that he was not treated in a procedurally fair manner. RAE was acting, in effect, as a public body when it made the decision even though it is a private organization.

There was also a reasonable apprehension of bias against Sedgwick. [ 32 ] In terms of relief, Sedgwick asks for an order that he is qualified to be a RAE member, that the membership register include him. Alternatively, he seeks an order in the nature of mandamus directing that he be added to the membership register.

RAE’s position [ 33 ] RAE submits that “it would be unjust for the Court to grant any remedy that would require [RAE], a private and voluntary cooperative that seeks ‘to advance the integrity and professionalism’ of the real estate services provided by its members, to admit a fraudster as a member of the cooperative” (RAE’s Brief at para 4).

They characterize a finding in favour of Sedgwick’s position as “a catastrophic outcome” with national implications for private organizations, particularly one like RAE which must consider ethics and professionalism, and history of misconduct, in admitting members. [ 34 ] RAE suggests that Sedgwick is not fully remorseful or appreciative of the seriousness of his conduct.

RAE’s representative, Jennifer Lucas, deposes that conduct of this sort “constitutes professional misconduct . . . in one of its most egregious forms” (Lucas Affidavit sworn August 28, 2020 at para 77) while Sedgwick seeks to minimize his malfeasance. [ 35 ] RAE argues that there is no statutory remedy available to Sedgwick. Alternatively, if there is, RAE complied with all of its

statutory and other obligations in its decision to deny membership to Sedgwick. [ 36 ] Similarly, judicial review is not available. Alternatively, if it is available, the decision was made in accordance with RAE’s constating documents and was procedurally fair. Analysis Judicial Review Preliminary Matter Regarding Notice [ 37 ] RAE took the position in its written brief that Sedgwick failed to comply with r. 3.15(3) (

b) of the Alberta Rules of Court , Alta Reg 124/2010 which requires that an originating application for judicial review must be served on the Minister of Justice and Solicitor General or the Attorney General for Canada, or both, as the circumstances require. The specific rule is found in Subdivision 2 – “Additional Rules Specific to Originating Applications for Judicial Review”, and states: An originating application for judicial review must be served on (

a) the person or body in respect of whose act or omission a remedy is sought, (

b) the Minister of Justice and Solicitor General or the Attorney General for Canada, or both, as the circumstances require, and (

c) every person or body directly affected by the application. [ 38 ] I interpret the phrase “as the circumstances require” in 3.15(3)(

b) as a reference to the provincial or federal levels of government rather than as an importation of discretion with respect to serving the notice: Silver Willow Water Co-op Ltd v Vermillion River (County) , 2018 ABQB 952 at para 8 . [ 39 ] There is no evidence before me that this notice was given. That would seem to represent a full stop to the application for judicial review (at least at this point).

This is consistent with Graesser, J’s decision in Peter Lehmann Wines Ltd v Vintage West Wine Marketing Inc , 2015 ABQB 481 : lack of service on the Crown precluded a mandamus remedy “ [b]ecause a Crown or statutory body is always implicated in administrative law, Rule 3.15(3) ( b) . . . requires the Minister of Justice and Solicitor General for Alberta to be given notice of applications which ask the Court to contemplate any of the prerogative writs used to initiate a judicial review” (at para 47). [ 40 ] The relief sought here is prerogative in nature insofar as it arises from the judicial review argument.

Therefore, the notice must be given. [ 41 ] The issue of lack of notice was raised in RAE's written argument. The parties advised me subsequent to the issuance and publication of this decision that the requisite notice was in fact given even though that fact was not in evidence. On that basis, I will proceed to determine whether or not judicial review is available with respect to RAE’s decision.

Is RAE’s Decision Subject to Judicial Review? [ 42 ] The leading authority on whether judicial review of this type of decision by this type of decision-maker is available is Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall , 2018 SCC 26 [ Highwood ] . [ 43 ] Highwood involved a congregation of Jehovah’s Witnesses, a voluntary, unincorporated association (in the form of a religious congregation) with no articles of association or by-laws.

To become a member of the congregation, an individual must be baptized, demonstrate sufficient understanding of relevant scriptural teachings, and satisfy the congregation that they are “living to accepted standards of conduct and morality” ( Highwood at para 4 ). There are disciplinary procedures.

One of the final steps in the congregation’s disciplinary process is the disfellowship of a member. [ 44 ] The applicant in Highwood was subject to disfellowship, and after exhausting his other avenues of appeal without success he applied for judicial review under r. 3.15 of the Alberta Rules of Court , seeking an order of certiorari to declare the decision to disfellowship him void. He alleged that the congregation breached the principles of natural justice and the duty of fairness.

Additionally, he argued that the decision to disfellowship him impacted his work as a realtor as clients of his faith refused to work with him. [ 45 ] In a unanimous decision, the Supreme Court of Canada held that the purpose of judicial review is to allow courts to “’engage in surveillance of lower tribunals’ to ensure that these tribunals respect the rule of law” which can be reviewed “on the basis of procedural fairness or on their substance” ( Highwood at para 13 ).

Further, “[p]rivate parties cannot seek judicial review to solve disputes that may arise between them; rather, their claims must be founded on a valid cause of action, for example, contract, tort or restitution” ( Highwood at para 13 ). [ 46 ] The Supreme Court stated at paras 14, 17: Not all decisions are amenable to judicial review under a superior court's supervisory jurisdiction. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.

Even public bodies make some decisions that are private in nature — such as renting premises and hiring staff — and such decisions are not subject to judicial review. In making these contractual decisions, the public body is not exercising "a power central to the administrative mandate given to it by Parliament", but is rather exercising a private power. Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.

… Although the public law remedy of judicial review is aimed at government decision makers, some Canadian courts, including the courtsbelow, have continued to find that judicial review is available with respect to decisions by churches and other voluntary associations.These decisions can be grouped in two categories according to the arguments relied on in support of the availability of judicial review.Neither line of argument should be taken as authority for the broad proposition that private bodies are subject to judicial review.

Bothlines of cases fail to recognize that judicial review is about the legality of state decision making. [Citations omitted] [47] The first category of decisions referred to by the Court in Highwood incorrectly asserts that “incorporation by a private Actoperates as a statutory grant of authority” (at para 18).

However, private acts are necessarily not of general application and are thereforelimited in their effect. [48] The second category relates to decisions made by voluntary associations that are not incorporated under a statute and requiresconsideration of whether the decision is “sufficiently public in nature” (Highwood at para 19). Justice Rowe expands on this questionstating at para 20: In my view, a decision will be considered to be public where it involves questions about the rule of law and the limits of anadministrative decision maker's exercise of power.

Simply because a decision impacts a broad segment of the public does not mean that itis public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making. [49] The Supreme Court found no issues raised regarding the rule of law, no “constating private act”, and no exercise of stateauthority (Highwood at para 22), concluding at para 21: “[t]hus it does not follow that ‘public’ decisions of a private body — in thesense that they have some broad import — will be reviewable.

The relevant inquiry is whether the legality of state decision making is atissue.” [50] Judicial review may be available where: 1) there is an exercise of state authority, and 2) that exercise is sufficiently public(Highwood at para 14; JW v Canada (Attorney General), 2019 SCC 20 [JW] at para 101; Kissel v Rocky View (County), 2020 ABQB406 at para 92 [Kissel]; Eksteen v University of Alberta, 2019 ABQB 881 at para 11 [Eksteen]). [51] Highwood marked a shift in the law away from courts too readily engaging in judicial review of private decisions.

TheSupreme Court is clear that decisions made by groups incorporated by private acts are not always subject to judicial review.Furthermore, consideration of what amounts to a “public” decision has at times been overstated. Previously, courts considered decisionswhich may touch a “broad segment of the public” (Highwood at para 20). In Highwood, it was determined that the meaning of public inthe judicial review context “involves questions about the rule of law and the limits of an administrative decision maker's exercise ofpower” (Highwood at para 20; Eksteen at para 54).

Sedgwick’s Argument [52] Sedgwick does not argue that RAE is a public body. It is a cooperative created in accordance with the Cooperatives Act,which functions similarly to the Alberta Business Corporations Act, RSA 2000, c B-9 [BCA]. RAE is a private organization. [53] Sedgwick states that the test hinges on whether RAE’s decision is “public in nature and made by a public body, or as wesubmit in this instance, a body acting as a public body” [emphasis added] (Sedgwick’s Brief at para 53). [54] That is not the test.

Sedgwick instead must show that there is a sufficiently public exercise of state power. [55] At its core, Sedgwick argues that RAE is attempting to fulfill the same role as that filled by RECA (Sedgwick’s Brief at para53). In doing so, RAE is acting as a public body, and thereby placing itself into a position where its decisions are subject to judicialreview. There is no judicial authority supporting this line of reasoning.

At most, the argument would be that RAE is exceeding itsauthority. [56] Simply showing that RAE is occupying the same role as RECA does not mean the decision in question was an exercise ofstate power. This argument cannot succeed. [57] A similar question was considered in Senez v Montreal Real Estate Board, , [1980] 2 SCR 555 [Senez]. The appellant in that case was a real estate broker who was irregularly suspended from the Montreal Real Estate Board.

The facts aredistinguishable from the case at bar as the dispute in Senez arose from a purchase of land and an improper expulsion rather than failureto admit the appellant as a member. [58] However, the Supreme Court took note of the loss of membership amenities which included access to the MLS. Despite theeffect these benefits had on a realtor’s ability to practice in the area of real estate, the Supreme Court recognized that the board was not acould not itself regulate or administer real estate brokerage.

Those responsibilities were held by the Lieutenant-Governor in Council andthe Quebec Real Estate Brokerage Branch as specifically empowered by statute (Senez at 564-565).

The Supreme Court stated (at 556): [The board] does not belong to the category of political corporations or to that of a professional corporation as such, which the legislatorfor reasons of public interest may invest with monopolies, on which he may confer privileges or to which he may delegate a truelegislative authority, which may be effective not only against their members but with respect to the public…The Board more closelyresembles the type of voluntarily formed groups which, in English law, is known as “voluntary associations”, such as social clubs,philanthropic, sports or even professional bodies, but the by-laws of which affect only members and apply only to them[TRANSLATION] “in a manner based on agreement and of a private nature”… [Citations removed]

[ 59 ] Furthermore, even truly public organizations make private decisions. As stated in Highwood at para 14 , public bodies making decisions such as renting premises and hiring staff are exercising private power. [ 60 ] This is supported by the Supreme Court in Dunsmuir v New Brunswick , 2008 SCC 9 , which states at para 103: Where the employment relationship is contractual, it becomes difficult to see how a public employer is acting any differently in dismissing a public office holder and a contractual employee. In both cases, it would seem that the public employer is merely exercising its private law rights as an employer. Applying the Highwood Test

Part 1: Exercise of State Authority [ 61 ] The first branch of the test in Highwood considers whether there is an “exercise of state authority” but it does not define the term. Additionally, subsequent case law applying the test in Highwood is also silent on what amounts to an “exercise of state authority”. [ 62 ] Following Highwood , the Supreme Court of Canada in JW considered the jurisdiction of the courts over an internal decision about a claim for compensation under the Indian Residential Schools Settlement Agreement ( IRSSA) (at para 59).

The hearing adjudicator concluded that the claimant failed to establish his case and denied his claim. Justice Abella for the majority concurred with the Ontario Court of Appeal’s reasoning in Fontaine v Duboff Edwards Haight & Schachter , 2012 ONCA 471 that judicial review “in the administrative sense” was not available in these circumstances ( JW at para 24). [ 63 ] In a concurring opinion, Côté J held that even though the adjudicative body was a “creature of statute” created by provincial class proceedings legislation, the IRSSA is essentially a contract addressing private law tort claims.

The adjudicator's decision-making powers came from contract rather than statute or “power granted by the executive” ( JW at para 102).

The fact that the Government of Canada was a party to the IRSSA was not sufficient to engage judicial review, as “the availability of judicial review depends on the source of the decision maker’s authority, not the identity of the parties” ( JW at para 104, emphasis in original). [ 64 ] While RAE was created under the Cooperatives Act and not through a contractual power, JW clearly establishes that it is necessary to consider the source of the authority rather than the parties’ identities, even in cases where government is directly involved. [ 65 ] Eksteen involved an Associate Professor of Medicine who brought an application for judicial review of several decisions made by the University of Calgary.

After concluding an investigation regarding an alleged breach of the University’s “Research and Integrity Policy”, the Applicant’s position with the University was terminated. The Court struck his application for judicial review. Despite the University being a creature of statute with a “general research mandate”, breaches of research integrity were governed by internal policies ( Eksteen at para 12 ). As noted by Ashcroft J: “[t]he public source of Dr.

Eksteen's funding and the intersection of federal government policy with the policies of the University do not transform the Decisions into exercises of state authority” ( Eksteen at para 12 ). [ 66 ] Considering whether the decision was an exercise of state authority, the Court considered the Public Interest Disclosure (Whistleblower Protection) Act , SA 2012, c P-39.5 ( PIDA ) and whether the statutory mechanism for disclosure of wrongdoing undergirded the statutory authority for the decision. The definition of wrongdoing in the Act was separate from the University’s procedure.

As the investigation relied on the internal integrity policy and not PIDA , the decision-making authority came from internal university policies and was not statutory ( Eksteen at paras 31-33 ). [ 67 ] The applicant in Eksteen additionally argued that the “Tri-Agency Framework”, which was a federal government policy, mandated the minimum requirements of the University’s policy and therefore imported state authority. However, it was doubtful that this federal policy was law.

As there was insufficient evidence for the court to conclude that the policy itself had specific legislative authority behind it, it was “too far removed” from the decision to establish it as an exercise of state authority ( Eksteen a paras 46-47 ). [ 68 ] The court in Eksteen responded as follows to the argument that one of the University’s core functions was research and therefore the decision was an exercise of statutory authority (at para 50): The University, when conducting research, is exercising a power that is authorized through legislation.

However, the legislation does not delegate any decision-making authority regarding the specific oversight of the research and breaches of same. While the University maintains the Research Integrity Policy and the Investigation Policy, these policies were not created as an exercise of statutory authority. In other words, the legislated ability to engage in research as a university does not contain the decision-making authority which was exercised in the Decisions. [ 69 ] Finally, Ashcroft, J. in Eksteen considered whether the decision to terminate the applicant was an exercise of public authority.

As the applicant resigned rather than being terminated, the court stated: There may be circumstances where a decision of the University to discontinue a relationship with an individual providing instructional or other services could be found to be an exercise of state authority. However, the legal relationship in this case is contractual. Many corporations and institutions created by statute provide for some type of internal management and decision making structure within their constituent legislation.

It would state the test too broadly to find that any actions and decisions made by the various agents of the University are all exercises of state authority. [ 70 ] Eksteen is helpful as it reemphasizes that despite being made by a public body, individual decisions that are administrative in nature are not inevitably subject to judicial review. Furthermore, judicial review will not be available when the decision in question is internal and private, even if it shares characteristics with public legislation.

Therefore, in order to determine if judicial review is available, the analysis must consider the place of origin of the authority to make the impugned decision, and, as will be discussed below, what decision is actually being made.

[ 71 ] Turning to the present case, the putative statutory authority can be found in ss. 2 , 32 , and 33 Cooperatives Act , and s. 45 Cooperatives Regulation , Alta Reg 55/2002 : Cooperative principles 2

(1) For the purposes of this Act, a cooperative is organized and operated, and carries on business, on a cooperative basis if

a) membership is available to persons who can use the services of the cooperative and who are willing and able to accept the responsibilities of and abide by the terms of membership … Bylaws govern membership 32 Membership in a cooperative is governed by its bylaws unless this Act or the articles provide otherwise. Application for membership 33

(1) No person may become a member of a cooperative unless (

a) the person applies for membership in accordance with the bylaws, (

b) the application is approved by the directors, and (

c) the person complies with the membership provisions of the bylaws. … Contents of by-laws 45 The by-laws of a cooperative must contain the following particulars: (

a) the qualifications of members and the procedure to become a member; (

b) the rights of joint members, if any . . . [ 72 ] Ultimately, the Legislature has expressed a strong interest in membership in cooperatives, enacting several provisions which empower cooperatives to accept members and giving direction on some membership considerations. The source of this power is statute (see JW ) .

Therefore, the argument might follow that the decision to accept or exclude Sedgwick represents an exercise of state authority, particularly because the Legislature has addressed membership in cooperatives and the mechanisms of admission. [ 73 ] However, holding that decisions made by institutions created by statute such as cooperatives and corporations are exercises of state power runs afoul of the principles enunciated by the Supreme Court in Highwood and significantly risks expanding the scope of judicial review of non-public entities.

Highwood specifically characterized an organization’s hiring decisions as a private act not subject to judicial review (at para 14). The Court in Eksteen also identified this tension and noted that this would state the test too broadly. [ 74 ] While Knox v Conservative Party of Canada , 2007 ABCA 295 [ Knox ] preceded Highwood and does not rely on the same test for judicial review, it remains instructive: It should be noted that the mere fact that a tribunal or an organization is incorporated is not decisive.

There is no such thing as a common law corporation, and all corporations therefore originate through statute. There are, however, a great many private corporations and their internal workings and decisions are not subject to judicial review. As said, the corporation must be discharging public duties or exercising powers of a public nature before it is subject to judicial review.

Merely because a corporation is expressly or implicitly authorized by statute to retain staff or engage in other business does not make its decisions subject to judicial review. ( Knox at para 25 ) [ 75 ] The Supreme Court in Highwood specifically states that judicial review is for state action (at para 12). These decisions, including membership, can hardly be defined as state action or an action by the cooperative on behalf of the government.

Therefore, part of the test may require the furtherance of some goal or objective as directed by the government similar to the analysis around the application of the Canadian Charter of Rights and Freedoms , s 7,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act , 1982 (UK), 1982, c11 . Arguably, this could amount to protection of the public, however, there is nothing in any legislation directing that cooperatives act in furtherance of protection of the public. Deciding to include this as a consideration in RAE’s bylaws is a purely internal decision and aspiration. [ 76 ] The decision to refuse membership to Sedgwick fails to meet the first part of the test in Highwood . It was not an exercise of state authority, and the mere fact that RAE was organized under a statute does not make the state a source of its decision-making power.

Judicial review is not available on this basis. [ 77 ] However, I will address the second part of the test in the event that I am incorrect in my conclusion on the first part.

Part 2: A Sufficiently Public Character [ 78 ] If RAE’s decision was an exercise of state authority, the second requirement for judicial review is that the exercise of state authority possess a sufficiently public character. The factors relied on by the parties to determine this question were outlined in Kissel at

para 93 , citing Air Canada v. Toronto Port Authority, 2011 FCA 347[Air Canada] at para 60: (

a) The character of the matter for which review is sought. Is it a private, commercial matter, or is it of broader import to members of thepublic? (

b) The nature of the decision-maker and its responsibilities. Is the decision-maker public in nature, such as a Crown agent or astatutorily-recognized administrative body, and charged with public responsibilities? Is the matter under review closely related to thoseresponsibilities? (

c) The extent to which a decision is founded in and shaped by law as opposed to private discretion. If the particular decision isauthorized by or emanates directly from a public source of law such as statute, regulation or order, a court will be more willing to findthat the matter is public. Matters based on a power to act that is founded upon something other than legislation, such as general contractlaw or business considerations, are more likely to be viewed as outside of the ambit of judicial review. (

d) The body's relationship to other statutory schemes or other parts of government. If the body is woven into the network of governmentand is exercising a power as part of that network, its actions are more likely to be seen as a public matter. (

e) The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a publicentity. For example, private persons retained by government to conduct an investigation into whether a public official misconductedhimself may be regarded as exercising an authority that is public in nature. (

f) The suitability of public law remedies. If the nature of the matter is such that public law remedies would be useful, courts are moreinclined to regard it as public in nature. (

g) The existence of compulsory power. The existence of compulsory power over the public at large or over a defined group, such as aprofession, may be an indicator that the decision is public in nature. (

h) An "exceptional" category of cases where the conduct has attained a serious public dimension. Where a matter has a very serious,exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable. [79] RAE’s decision, on balance, is not of a sufficiently public character to meet the test and engage judicial review. [80] With respect to the first factor, while Sedgwick attempts to characterize this as a regulatory matter relating to the publicinterest, it is in substance a matter relating to membership in a private cooperative.

Simply because the public may, in the eyes of RAE,experience some form of detriment if Sedgwick is or is not allowed membership does not result in it being of broader import to thepublic. This is speculative in any event and requires assumptions around the level of Sedgwick’s notoriety and actual public concern. [81] It is not contested by Sedgwick that RAE is a private cooperative; it is not public in its essential nature. RAE is not chargedwith public responsibilities beyond compliance with the Cooperatives Act.

Whether or not it has endeavoured or aspired to consider thesafety of the public as an organizational goal is not relevant to the analysis. That goal resulted from a decision by the organization itselfand not a legislative charge. There is no evidence that RAE is a statutorily-recognized regulatory body. As noted in Senez, above, despitethe weight RAE’s decisions regarding membership may have on the practice of real estate within its jurisdiction, it is not a professionalregulator in the vein of RECA.

I cannot accept that RAE, in determining the question of Sedgwick’s membership, was acting as aregulatory body, which might give the decision a public nature. [82] While RAE must create bylaws to govern membership, the decision to consider public protection and RECA’s findings weredecisions made by RAE itself and potentially within the discretion of the decision-makers. No statute required that RAE take intoaccount the specific considerations – RECA sanctions – in making its decision. The decision was based on bylaws and not strictly onstatute.

Whether the exercise of discretion was within the authority granted by RAE’s bylaws at the time of Sedgwick’s application doesnot alter the analysis at this stage, as it does not render it a decision shaped on law. [83] RAE operates in relationship with other organizations such as RECA. They have a close connection, as RAE consideredRECA’s disciplinary findings in its membership decision. Further, despite RAE’s protests, it is reasonable to conclude that failing tobecome a RAE member in substance precludes a real estate agent from operating effectively in its jurisdiction.

If an applicant is notaccredited by RECA, they cannot operate in Alberta, and neither can – in practical and realistic terms - a non-member of RAE.Therefore, RAE’s ability to accept or reject members constitutes a considerable industry power within Alberta. [84] However, there is no indication RAE’s decision was controlled by a public body such as RECA. RAE’s decision to considerRECA’s findings and rely on them was purely a matter of discretion, as they also had the power to ignore those findings. [85] The suitability of public law remedies is another factor listed in Air Canada.

Sedgwick seeks mandamus, a discretionaryremedy. However, the principles required for this prerogative writ are not supported on these facts. As stated in Apotex Inc v Canada(Attorney General), (FCA), 1993 CarswellNat 820 at para 55, the principle requirements of mandamus are as follows: 1. There must be a public legal duty to act. 2. The duty must be owed to the applicant. 3. There is a clear right of performance of that duty, in particular:

a) The applicant has satisfied all conditions precedent giving rise to the duty;

b) There was (

i) a prior demand for performance of the duty, (ii) a reasonable time to comply with the demand unless refused outright,and (iii) a subsequent refusal which can either be expressed or implied, e.g., unreasonable delay.

1. Where the duty sought to be enforced is discretionary, the following rules apply:

a) In exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” ordemonstrate “flagrant impropriety” or “bad faith”;

b) Mandamus is unavailable if the decision-maker is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;

c) In the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;

d) Mandamus is unavailable to compel the exercise of “fettered discretion” in a particular way; and

e) Mandamus is only available when the decision-maker’s duty is “spent”, i.e., the applicant has a vested right to the performance ofthe duty. 1. No other adequate remedy is available to the applicant; 2. The order sought will be of some practical value or effect; 3. The Court in the exercise of its discretion finds no equitable bar to the relief sought; 4.

On a “balance of convenience” an order in the nature of mandamus should (or should not) issue. [Citations omitted] [86] Sedgwick provides no convincing argument regarding whether mandamus is appropriate in the circumstances aside fromindicating that his is essentially a public issue so a public law remedy should result (Sedgwick’s brief at para 61). Likely more evidencewould be required to establish mandamus as a proper remedy, and arguably returning the matter for a new hearing with RAE would beadequate. [87] RAE’s decision was in no way compulsory over the public at large.

This was a decision not to admit a potential individualmember. This decision does not impose any conditions over the public, except that potential applicants meet the requirements ofapplication should they choose to apply. While Sedgwick submits this decision affects all licensed real estate agents, this by definitionfails to capture the public at large and is aimed at an exclusive group. [88] Finally, there is no indication that this decision has “attained a very serious public dimension”. This decision relates only toSedgwick, an individual.

There is little public awareness in evidence. [89] The last two factors enumerated in Kissel and Air Canada may run afoul of Highwood, which states that a matter is not publicin nature simply because it affects a large population. [90] Ultimately, applying these factors here, the denial of membership is not a decision that is of a sufficiently public character asdescribed by the Supreme Court after applying the factors in Kissel and Air Canada. [91] Highwood indicates at para 20 that a “decision will be considered to be public where it involves questions about the rule oflaw and the limits of an administrative decision maker’s exercise of power.” The Supreme Court at para 13 of Highwood also referencespara 14 of Knox with approval, which states “[j]udicial review is a feature of public law whereby the superior courts under s. 96 of theConstitution Act 1867 engage in surveillance of lower tribunals to ensure that the fundamentals of legality and jurisdiction are respectedby those tribunals…[emphasis added].” [92] The Supreme Court of Canada in Manitoba Provincial Judges Assn v Manitoba (Minister of Justice), atpara 10, [1997] 3 SCR 3 described one aspect of the rule of law as “the constitutional principle that the exercise of all public power mustfind its ultimate source in a legal rule”. [93]

Section 32 Cooperatives Act requires that qualification for membership must be governed through bylaws. If RAE consideredfactors not contemplated by its bylaws when deciding membership, it may have exceeded its scope of statutory authority.

This wouldsupport a rule of law-based argument. [94] While RAE’s current bylaws permit consideration of factors such as protection of the public and character in assessingSedgwick’s application, they were not in place at the time of his application. [95] Sedgwick relies on Upper Canada College v Smith, (1920) 61 SCR 413 at 419, to find that new legislation is presumed not have retroactive application.

He argues that the bylaws in place at the time that the decision only permitted refusal ofmembership if required fees and dues were not paid; required covenants, undertakings or waiver of claims were not signed; there wasinsufficient financial creditworthiness or education; reasonable security to secure payment of dues were not provided; a history ofbankruptcy; or if they are not registered with a Broker member. However, this assertion appears to miss the point.

The Supreme Court inBarry v Alberta (Securities Commission), , [1989] 1 SCR 301 at 319 , (sub nom Brosseau v Alberta SecuritiesCommission)) explores at length several exceptions to this presumption, one of which includes “enactments which may impose a penaltyon a person related to a past event, so long as the goal of the penalty is not to punish the person in question, but to protect the public” (at319). [96] This ruling builds on Re Solicitor’s Clerk (1957), 3 All ER 617, 1 WLR 1219 (UK Div Ct) [Solicitor’s Clerk cited to All ER],which held that a statutory amendment that was made after the Appellant’s conviction for larceny allowed the disciplinary committee torule against him.

The Court held this was not truly retroactive. Instead, the amendment simply allowed the disciplinary body to considerpast convictions in relation to its future decisions. If it was truly retroactive, the disciplinary body could render anything the solicitor didfrom the time of the offence void even before the amendment (Solicitor’s Clerk at 619). The Supreme Court of Canada in Gustavson

Drilling

(1964) Ltd v Minister of National Revenue, , [1977] 1 SCR 271 [Gustavson] dealt with this distinction at 279-280: [T]he general rule is that statutes are not to be construed as having retro​spective operation unless such a construction is expressly or bynecessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have comeinto force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to itsenactment. In those instances the statute operates retrospectively.

Superficially the present case may seem akin to the second instance butI think the true view to be that the repealing enactment in the present case, although undoubtedly affecting past transactions, does notoperate retrospectively in the sense that it alters rights as of a past time…it does not reach into the past and declare that the law or therights of parties as of an earlier date shall be taken to be something other than they were as of that earlier date.

The effect, so far asappellant is concerned, is to deny for the future a right to deduct enjoyed in the past but the right is not affected as of a time prior toenactment of the amending statute. [97] In the present case, there is no argument that RAE cannot consider any relevant conduct on the part of an applicant formembership that occurred before the bylaws were passed. What is being argued is essentially that Sedgwick applied for membershipbefore the new bylaws were adopted, and therefore the considerations should be limited to the old bylaws.

By considering factors in thenew bylaws, RAE exceeded its authority under the bylaws in place at the time of application. [98] RAE argues that s. 23 Cooperatives Act confers RAE the power to act outside the express and implied provisions of itsbylaws in making its decision.

Section 23 Cooperatives Act is mirrored by s. 17 BCA and s. 16 Canadian Business Corporations Act,RSC 1985, c C-44 [CBCA]. Generally, these sections provide directors with broad authority to make decisions not specificallyempowered by legislation so long as they are not invalid for some other reason. [99] Section 17(3) BCA was discussed by the Alberta Court of Appeal in Composite Technologies Inc v Shawcor Ltd, 2017ABCA 160 at paras 162, 164-66: This statutory provision reflects a general consensus that the common law ultra vires doctrine introduced undesirable consequences intothe law.

The ultra vires doctrine deprived a corporate act that was contrary to the specific limited powers of the corporation of any legaleffect and adversely affected third parties who contracted with the corporation in good faith believing that the corporate act on whichthey relied to be one the corporation was legally authorized to undertake… … Dr. McGuinness, in Canadian Business Corporations Law, reports that the doctrine was found to cause considerable inconvenience to the conduct of commerce, which led eventually to widespread calls for itsabolition, not only in Canada, but across the common law world.

Most such jurisdictions have now attempted to rid themselves of thedoctrine. The general Canadian legislative approach towards the empowerment of a corporation begins by conferring upon thecorporation the powers of a natural person. Alberta followed this pattern.

Section 16(1) of the Business Corporations Act states that “[a] corporation has the capacity and subject tothis Act, the rights, powers and privileges of a natural person”. … The impact of this statutory personification of a corporation is significant. “[I]t is implicit in the grant of the rights, powers and privilegesof a natural person that corporations are unlimited in the powers, rights and privileges which they possess or may acquire, and likenatural persons corporations will be presumed to possess or be capable of acquiring all right, powers and privileges except to the extentthat such possession or acquisition is denied to them by law”. [100] The Court of Appeal in this case concluded that s. 17(3) BCA permitted the corporation to sell its entire interest in flexiblecomposite pipe technology under a technology transfer agreement despite failing to secure shareholder approval through specialresolution. [101] As noted above, these sections are generally relied upon to establish that directors can engage in acts that are not expresslyconferred by legislation or bylaws.

In Canadian Jorex Ltd v 477749 Alberta Ltd, 1991 ABCA 330 [Jorex] it permitted directors tocancel a special meeting previously called by the directors despite not being specifically empowered to do so (see also Oppenheimer &Co v United Grain Growers Ltd, at paras 3-4, 2 WWR 9 (MBQB)). [102] This

section may also allow directors to contravene the Cooperatives Act. LSI Logic Corp of Canada v Logani, 2001 ABQB710 relied in part on s. 16(3) to establish parenthetically that even if the purchase of fractional shares were contrary to the CBCA, theacquisition would still be valid (at para 30). [103] However, this residual power is not absolute. The court in Jorex noted that exercise of these powers cannot be for an improperpurpose.

Fraser JA (as she then was) noted at para 13: The directors' residual powers under s. 102 must be interpreted in conjunction with any other statutory provisions limiting those powers.The shareholders' right to call a special meeting may well be adversely affected if the directors were entitled under s. 102 to cancel aspecial meeting called on requisition of the shareholders. This cannot have been intended by Parliament.

Reading s. 102 of the C.B.C.A.in conjunction with s. 143 arguably means that the directors' residual powers under s. 102 would not extend to the unilateral cancellationof any meeting properly convened on the shareholders' request. At the very least, any exercise of the powers of the directors in thesecircumstances would be subject to close scrutiny by the courts. [104] Therefore, shareholders retained meaningful protection through oppression remedies, the ability to call their own meetings

which could not be cancelled by directors, or through reliance on s. 144 CBCA for a court order requiring that the meeting take place. While Fraser JA (as she then was) did not expressly consider s. 16 CBCA in this part of her analysis, as it was before her it is unlikely s. 16 CBCA would overrule these findings. [ 105 ]

Section 23 Cooperatives Act provides broad powers to cooperatives to make decisions not specifically contemplated by its bylaws or even by the Cooperatives Act . Typically, this provision is relied on to not prejudice bona fide third parties who contract with corporations who would otherwise suffer serious harm based on exceeded statutory powers.

It is unlikely these powers could be used to prejudice Sedgwick in such a way as he complied with the requirements as laid out by the bylaws at the time of his application. [ 106 ] Ultimately, there is nothing in the old bylaws which would permit RAE to consider the factors it did, which included protection of the public, the considerations made by RECA in their investigation and reaching its own conclusions on the severity of Sedgwick’s misconduct based on RECA’s findings (the latter two of which are also not present in the current bylaws, however, there is an argument that they are incorporated in the bylaws implicitly). [ 107 ] Unfortunately, Sedgwick’s submissions regarding the availability of judicial review are unsuccessful regardless of whether RAE was empowered to consider its amended bylaws following his application.

Therefore, as neither of the parties’ submissions appear to directly address the issue of the effect of a change in bylaws on an in-progress application for membership, I do not believe this is the appropriate case to decide this issue. [ 108 ] While not directly on point and distinguishable, courts have recognized the ability of professional organizations to limit the number of attempts applicants can make for membership ( Kurian v Law Society (Alberta) , 1985 ABCA 11 , 59 AR 24), even when the applicant was a “forester in training”, suggesting the change occurred during an extended application period ( Storie v Assoc of British Columbia Professional Foresters , 2000 BCSC 417 ). [ 109 ] Furthermore, one can find an analogy in s. 43(

c) of the Canadian

Interpretation Act , RSC 1985, c 1-I-21 and s. 35 (

c) of the Alberta

Interpretation Act , RSA 2000, c I-8 . Both state that repealed legislation does not “affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed”. This embodies the common law presumption regarding “vested rights” ( Gustavson at 283). Sedgwick has not established a right or privilege sufficient to prevent RAE from relying on its new bylaws ( Gustavson at 283-284). [ 110 ] Whether or not RAE’s considerations accorded with its bylaws does not determine whether the decision is subject to judicial review.

Generally, breaches of bylaws are likened to breach of contract, and do not render the decisions public. [ 111 ] In the end, Sedgwick’s application for judicial review must fail. First, this application fails the first part of the test in Highwood as the decision was not an exercise of state authority. Second, and if I am mistaken, the application also fails the second part of the Highwood test as the decision was not of a sufficiently public character. Judicial review of RAE’s decision is not available.

Oppression Remedy and Cooperatives Legislation [ 112 ] The Cooperatives Act contains remedies for those who have a complaint about the conduct of a cooperative association. The relevant provisions are:

Definitions 353 In this Part, (a) “complainant” means (

i) a member or former member; ... 357(1) On the application of a complainant, the Court may order the rectification of matters complained of if it is satisfied that (

a) an act or omission of a cooperative effects a result, (

b) the business or affairs of the cooperative are or have been carried on or conducted in a manner, or (

c) the powers of a director are being or have been exercised in a manner, that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, a member or other security holder, creditor, director or officer of the cooperative.

(2) For the purposes of subsection (1), the Court may make any order that it considers appropriate, including an order (

a) restraining the conduct complained of; ... (

c) requiring the cooperative to amend an agreement with members generally or with a particular member; (

d) regulating the affairs of the cooperative by amending its articles or bylaws or creating or amending a unanimous agreement;

... (

g) determining whether a person is or is qualified to be a member; (

h) determining any matter in regard to the relations between the cooperative and a member; ... (

o) compensating an aggrieved person; (

p) directing rectification of the registers or other records of the cooperative under

section 359 ; ... (

r) directing a special audit or an investigation under

section 289 ; (

s) requiring the trial of an issue.

(3) If an order made under this

section directs that the articles or bylaws of a cooperative be amended, (

a) the directors, members and investment shareholders must comply with section 278(5) , and (

b) no other amendment to the articles or bylaws may be made without the consent of the Court until the Court orders otherwise.

(5) No cooperative may make a payment to a member or investment shareholder under an order of the Court if there are reasonable grounds to believe that (

a) the cooperative is, or after the payment would be, unable to pay its liabilities as they become due, or (

b) the realizable value of the cooperative’s assets after the payment would be less than the total of (

i) its liabilities, and (ii) the amount that would be required to pay the holders of securities who have a right to be paid, on a redemption or liquidation, rateably with or in priority to the holders of the securities to be purchased or redeemed.

(6) An applicant under this

section may apply for an order under

section 314 instead of an order under this section. [ 113 ] I will first discuss the application of the corporate oppression remedy to cooperative legislation.

Then, I will turn to the question of standing. [ 114 ] In Collins Barrow Vancouver v Collins Barrow National Cooperative Inc , 2015 BCSC 510 , aff’d 2016 BCCA 60 , the Supreme Court of Canada’s analysis of remedies for corporate oppression in BCE Inc v 1976 Debentureholders , 2008 SCC 69 was applied to determine whether the oppression remedy should be granted under Canadian cooperative legislation: I am advised that there are no cases decided under s. 340 of the Act , but counsel for both parties agree that the principles governing oppression claims under the

Canada Business Corporations Act , RSC 1985, c C-44 (the CBCA ) (and to some extent provincial corporations statutes) apply to oppression claims under s. 340 – in particular the principles enunciated in BCE Inc. v. 1976 Debentureholders , 2008 SCC 69 . I agree with counsel.

A background paper prepared in 1998 by the Parliamentary Research Branch explained that the Act (then Bill C-5) would “bring legislation covering federal non-financial cooperatives into line with that of federal business corporations and financial institutions” and as a result, “cooperatives would be able to achieve a governance structure with easier incorporation and more clearly defined rights and responsibilities for the members, shareholders and directors.” The paper indicated that the duties of directors, as set out in s. 80, would reflect the duties set out in the CBCA , and perhaps most importantly,

Part 19, which deals with remedies and includes s. 340 , was modelled on the CBCA . The same grounds for a finding of oppression are contained in s. 340 of the Act and s. 241(2) of the CBCA . [ 115 ] To bring an action under s. 357 Cooperatives Act , Sedgwick must be a “complainant” under s. 353(a), which includes a “former member”. The Respondent argues that Sedgwick does not meet the definition of a former member because he was removed from the Cooperative automatically upon the termination of his position with his former employer.

As the legislation does not contemplate this set of facts, RAE argues he should not be considered a complainant despite a plain reading of the legislation. Sedgwick was a member of RAE. Now he is not. The fact that he was removed involuntarily (as opposed to resigning) is not material. He is a former member. [ 116 ] However, while Sedgwick is a former member and therefore a complainant, s. 357(2) Cooperatives Act requires that the act complained of be oppressive, unfairly prejudicial or in unfair disregard of “the interests of any member, security holder, creditor, director or officer …” [emphasis added].

Neither “former member” nor “complainant” are included in this list. [ 117 ] Therefore, Sedgwick has no interest that attracts a remedy under s. 357 Cooperatives Act . [ 118 ] The Alberta Court of Appeal in Shefsky v California Gold Mining Inc , 2016 ABCA 103 described one of the three governing principles of the court’s equitable jurisdiction under the oppression remedy (at para 22): [N]ot every interest is protected by the statutory oppression remedy.

Although other personal interests may be connected to a particular transaction, the oppression remedy cannot be used to protect or advance, directly or indirectly, these other personal interests. "[I]t is only

their interests as shareholder, officer or director as such which are protected": Naneff v. Con-Crete Holdings Ltd. at para 27.Furthermore, "the oppression remedy protects only the interests of a shareholder qua shareholder. Oppression remedies are not intendedto be a substitute for an action in contract, tort or misrepresentation": Stahlke v. Stanfield, 2010 BCSC 142 (B.C. S.C.) at para 23, aff'd2010 BCCA 603 (B.C. C.A.) at para 38, (2010), 305 B.C.A.C. 18 (B.C.

C.A.). [119] While Sedgwick’s interests may have been affected, he has no interests as a member, security holder, creditor, director orofficer. [120] Furthermore, it would not be correct to imply the terms “former member” or “complainant” into this list of interests.

Thisinterpretation is consistent with the purposive approach as established inf Rizzo & Rizzo Shoes Ltd, Re, a para 21,[1998] 1 SCR 27 which requires the court to read the words of the Act “in their entire context and in their grammatical and ordinarysense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” [121] A plain and ordinary reading of s. 357 Cooperatives Act indicates that while a complainant (which includes former members)may apply to the courts for rectification, the oppression, unfair prejudice or unfair disregard must be against the interests of a member,security holder, creditor, director or officer of the cooperative. [122] This list is comprehensive but does not include “former members” or “complainants”.

The definition of “complainant” is open.S. 353(a)(

v) Cooperatives Act includes “any other person who, in the opinion of the Court, is a proper person to make an applicationunder this Part”.

Section 357 Cooperatives Act does not possess the same breadth. [123] While caution must be used in relying on the exclusionary rule of statutory

interpretation to establish that because mentioningone thing implies excluding another (Turgeon v Dominion Bank (1929), [1930] SCR 67, at 71), its application here isappropriate. If the Legislature had intended that the interests of former members or complainants could ground a remedy under s. 357Cooperatives Act, it could have easily said so (R v Ochotta, 2004 ABQB 552 at paras 22-25; College of Opticians (British Columbia) vCoastal Contacts Inc, 2009 BCCA 459 at para 22). This

interpretation is consistent with a plain reading of the provision itself: a closed,comprehensive list was established by the Legislature. [124] As Sedgwick is not alleging that he was terminated from RAE unfairly, it is unlikely the Legislature intended that oppressionremedies are available in response to behaviour that does not affect any current unlisted stakeholders. [125] Sedgwick does not have an interest that is covered by the statute. He cannot avail himself of the oppression remedy.

Conclusion [126] Sedgwick’s application for relief has no hope of success under the Cooperatives Act oppression remedy and is dismissed. Hedoes not have a protected interest that engages the relevant provisions. [127] The test for judicial review requires that RAE’s decision amount to an exercise of state authority that is of a sufficiently publiccharacter. Sedgwick’s claim fails on the first part of the test. The authority granted by statute empowered RAE to develop its ownbylaws to establish membership criteria.

It is unlikely the Supreme Court in Highwood intended the first part of the test to be triggeredany time a private statutory body makes a decision. This

interpretation is generally supported by Knox. [128] Even if Sedgwick’s argument succeeds on the first part of the Highwood test, the decision is not of a sufficiently publiccharacter. [129] It is possible that on the correct set of facts a potential member whose application complies with the existing bylaws and isrejected from membership based on factors unrelated to existing requirements might be able to pursue a claim for breach of contract (seeSenez at 566-67; Aga v Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 at para 40-43; Karahalios v ConservativeParty of Canada, 2020 ONSC 3145 at para 180). [130] However, Sedgwick is arguing that his application for membership is not being considered fairly.

Courts have generallydeclined to find that a private organization’s bylaws form the basis of a contract with non-members when they apply (see generallyFarrish v Delta Hospice Society, 2020 BCCA 312 at para 48; Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101at para 71). [131] While there is less authority on this issue, courts have likewise declined to find that a unilateral contract is created akin to a callfor tenders when employers post a job with specific employment requirements that could by analogy be extended to bylaws establishingmembership requirements (see Burke v Cape Breton (Regional Municipality), 2011 NSSC 169; Roback v University of BritishColumbia, 2007 BCSC 334 [Roback]).

Briefly, in a call for tenders, an owner will outline the requirements of a job so contractors maysubmit bids. In doing so, the owner creates contract A by promising to consider bids and to enter into a later contract (Contract

B) tocomplete the work, and the contractor accepts this offer by submitting a compliant tender (see R v Ron Engineering & Construction(Eastern) Ltd), , [1981] 1 SCR 111).

While this process is superficially similar to the hiring process, courts havedistinguished these on the basis that in hiring, there is no promise to hire anyone (Roback at paras 30-31). [132] London Humane Society, Re, 2010 ONSC 5775 [London] and Yukon (Registrar of Societies) v Humane Society of Yukon,2013 YKSC 8 show that while there is typically no contract between applicants and private organizations, courts may be able tointervene if a decision maker failed to act in good faith, recognizing that arbitrary exercises of discretion can be associated with bad faith(London at para 33).

However, the Court in London relied on statutory authority apart from the Cooperatives Act to intervene in thatcase. [133] As a final note, there is also the argument that, as bylaws generally form a contract between members and the organization, as a

non-member, Sedgwick would regardless lack standing to pursue an application based on breach of contract ( Chinese Benevolent Association of Edmonton v Chinatown Multilevel Care Foundation , 2019 ABCA 339 ). However, a member may be able to bring an action for breach of contract where there is a failure to admit a person who would otherwise be qualified for membership if their admission would be relevant to the interests of current members. This might fit within the statutory oppression remedy. That is not before me in this application. [ 134 ] The submissions before me do not support Sedgwick’s position.

The complex potential application of the law of contract to these facts was not before me. [ 135 ] The application for judicial review or in the alternative relief under the Cooperatives Act is dismissed, with costs. Heard on the 16 th day of October, 2020. Dated at the City of Edmonton, Alberta this 21 st day of January, 2021. S.N. Mandziuk J.C.Q.B.A. Appearances: Philip J. Prowse Prowse Chowne LLP for Sedgwick Taylor D. Kapusianyk Gowlings WLG (Canada) LLP for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice S.N.

Mandziuk _______________________________________________________ The paragraphs 37, 40, 41 and 111 are deleted and replaced.