Court of Appeal for Ontario

CITATION: Bhagria v. 316697 Ontario Inc., 2015 ONCA 243

DATE: 20150410

DOCKET: C59546

Feldman, Benotto and Brown JJ.A.

In the Matter of the Trust for a Charitable Purpose, 316697 Ontario Inc. o/a Hindu Sabha

BETWEEN

Inderjit Bhagria and Sanjiv Sharma

Appellants (Applicants)

and

316697 Ontario Inc. o/a Hindu Sabha, Purshottam Dhupar, Parveen Sharma, Bipen Kakker, Anuradha Sharma, Dinesh Chander, Raj Kaicker, Pat Malik, Sat Malik, S.K. Agarwal, Prabhat Kaput and Varinder Saili

Respondents (Respondents)

Application Under the Charities Accounting Act, R.S.O. c.C. 10, s. 10 and the inherent jurisdiction of the Ontario Superior Court of Justice in charitable matters

Mark Wiffen, for the appellants

Mark A. Klaiman, for the respondents

Heard and released orally: April 2, 2015

On appeal from the judgment of Justice Lemon of the Superior Court of Justice, dated September 25, 2014.

ENDORSEMENT

[1] The parties were involved in a dispute about membership and voting rights in connection with a Hindu temple. The appellant objects to the finding by the application judge that the alleged irregularity in the September 24, 2007 By-Law No. 7 vote was not established. He asserts that the judge misapprehended and misapplied the burden of proof. We do not agree.

[2] The test was set out by McLachlin J., (as she then was) in Leroux v. Molgat (1985), 1985 CanLII 229 (BC SC), 67 B.C.L.R. 29 as follows at para. 3:

Thus the main issues are whether irregularities are established, and, if so, whether the defendants responsible for the conduct of the election have shown that such irregularities did not affect the result.

[3] Although Lemon J. did not articulate the test specifically, he effectively found that the appellant had not "established an irregularity". Therefore, the burden of proof never shifted. We agree.

[4] The evidence of the handwriting expert, which, at best, impugned the provenance of some of the membership applications, did not go so far as to show that any non-member actually voted by proxy or in person at the meeting. The onus was on the appellant to show that there was an irregularity, as in the case of Beanibazar Social & Cultural Society of Toronto, Canada v. Nuruddin, [2003] O.J. No. 4475, before the onus shifts to the respondent to show that the established irregularity or irregularities did not affect the result. Because the onus on the respondent is onerous once the burden has shifted, it is important that allegations of irregularity are first "established" with clear, relevant evidence.

[5] On the issue of costs, we agree with the application judge that this is not public interest litigation. However, we accept the submission of the appellant that the application judge misapprehended a significant piece of evidence that he relied on to support his award of substantial indemnity costs, that is, he did not mention that the impugned letter of June 16, 2006 was retracted two weeks later.

[6] On that basis, it is appropriate to set aside the award of substantial indemnity costs and substitute an award of partial indemnity costs fixed at $20,000, inclusive of disbursements and HST. Costs of the appeal to the respondent fixed at $10,000 inclusive of disbursements and HST.

"K. Feldman J.A."

"M.L. Benotto J.A."

"David Brown J.A."