Lawrence v. Toronto Humane Society, a 2006 decision of the Ontario Court of Appeal, is the leading authority on the right of access to membership lists. This case held that a member was entitled to a copy of the membership list so that he could try to influence the membership to change its approach to defending against grievances involving its unionized workforce.
The applicant, Lawrence, was an officer of a union local that was the certified bargaining agent for unionized employees of The Toronto Humane Society, a charitable corporation formed under Part III of the Ontario Corporations Act.
Lawrence became a member of the society in July 2004 and, on September 30, 20004, applied for a list of members. He complied with the requirement to deliver the form of affidavit required under the Act, swearing that he would use the list only for corporate purposes.
According to Lawrence, the Society had spent large amounts of money fighting the union's unresolved grievances at arbitration. Having the list of members would enable him to lobby the Society's members for changes to the Society's management and general labour relations policies and practices.
The Society refused to provide the requested list on various grounds. Lawrence took the Society to court over the refusal. He lost the initial application but ultimately succeeded on appeal.
In reversing the application judge and ordering the Society to provide the list of members, the Court of Appeal rejected various arguments that the Society raised in refusing access to the list.
(a) Membership Status
The court held that the right of access to the membership list extends not only to members of the Society but to members of the public as well. Access rights under the Act are not tied to the applicant's status as a member or even prospective member of the Society or to his financial or economic interests.
The Society had purported to revoke the applicant's membership retroactively. The court found this ineffective but also irrelevant to the applicant's right of access, holding that it was not open to the Society to rely on its after-the-fact revocation of the applicant's membership in the Society to defeat his right to obtain a copy of the membership list.
(b) Scope of Right of Access
The court found that the Act creates a broad right of access to the membership list, consistent with the objective of ensuring timely disclosure of corporate information. The Act also provides safeguards to the corporation and its members against the improper use of the information contained in the membership list.
The applicant is required to provide an affidavit swearing that the list will be used only for purposes connected with the corporation. Swearing a false affidavit is an offence under the Act, exposing the deponent of the affidavit to prosecution and the risk of a fine.
It is not a pre-condition to obtaining a membership list that either the corporation or the court must be satisfied that the information will be used for purposes connected with the corporation.
(c) Purpose of Request for List
The court held that the phrase "connected with the corporation" requires only a showing that there is a good faith reason for the access request. This may, but need not, include a purpose directly linked to the corporation's formal objects and purposes as reflected in its constating documents.
Advocating on behalf of the Society's unionized employees for changes to the management and labour relations practices of the Society, however unwelcome to management, affects the Society's membership as a whole and, therefore, is squarely connected with the Society Also, use of the Society's funds is a matter squarely connected with the Society.
3. Key Observations
In Lawrence v. Toronto Humane Society, the Court of Appeal provided an expansive right of access to the membership list of a society under the Act.
First, the right is open to any person, not just members. Second, an affidavit of intended use is required but the society cannot go behind the affidavit and decide whether it is truthful. The court can perform that function, if necessary. If a membership is misused, the affiant is exposed to criminal sanction and that affords the society a measure of protection. Finally, the permitted uses of the membership list will be broadly construed to cover dialogue with the general membership, effecting a change of management or corporate policies and practices and expenditure of society funds.
Like the Ontario Corporations Act before the courts in Lawrence, the Canada Not-for-profit Corporations Act also provides various persons (including members and holders of debt obligations, but not members of the public generally) access to obtain membership lists of CNCA corporations.
Providing a broad right of access is consistent with ensuring timely disclosure of corporate information and corporate democracy. Without the right, dissident members are not on an equal footing in seeking a change of directors. The access right is necessary to ensure that incumbent boards do not become entrenched (and, therefore, unaccountable) simply because it is impractical for members to effect a change, since only the board knows who the members are and only the board can effectively communicate with the general membership.
Therefore timely, unobstructed access to the membership list is a critical element in the overall governance of non-for-profit corporations.