COURT OF APPEAL FOR ONTARIO
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Kanagasabapathy Chandrasegaram
Applicant (Appellant)
and
Canadian Tamil Medical Association and Thanu Ruban
Respondents (Respondents)
Mark Donald, for the appellant
John Aruldason, for the respondents
Heard: June 30, 2021 by video conference
On appeal from the order of Justice Jasmine T. Akbarali of the Superior Court of Justice, dated March 16, 2021, with reasons reported at 2021 ONSC 1969.
REASONS FOR DECISION
1The appellant, Dr. Kanagasabapathy Chandrasegaram, appeals the decision of the application judge, which upheld the election of the directors and officers of the respondent, the Canadian Tamil Medical Association (“Association”), at its February 8, 2020 annual general meeting. At that meeting, the respondent, Dr. Thanu Ruban, was elected Chair of the Association.
2At the hearing, we dismissed the appeal, with reasons to follow. These are those reasons.
3The appellant’s submissions are largely a repetition of those he made to the application judge. Uniting his discrete submissions is the common complaint that the application judge failed to interpret the provisions of Article 6 of the Association’s Bylaws as a whole, resulting in an erroneous interpretation of the opening section of that Article. We see no such error. The Bylaws are poorly drafted and contain internal inconsistencies. The application judge endeavoured to interpret specific provisions of Article 6 in light of the Bylaws as whole, in the context of the Association’s historic governance practices. As we shall discuss below, her resulting interpretations of specific provisions of Article 6 were reasonable and free from palpable and overriding error.
4As his first particular submission, the appellant submits that the application judge erred in holding that as the incumbent Vice-Chair of the Association he was not automatically entitled to become the next Chair of the organization. The application judge wrote, at paras. 21, 23, and 24 of her reasons:
On Dr. Chandrasegaram’s theory, upon his election as Vice Chairman, he had been elected to a six-year term and did not require re-election each year. This is inconsistent with bylaw 6.5i) which provides that all officers shall be elected annually at the annual general meeting. The minutes of the annual general meeting for 2019 and 2018 disclose that all board members, including all officers, were elected to their positions at the annual general meeting.
In my view, the failure to automatically elevate Dr. Chandrasegaram to Chairman is not an irregularity. The bylaws are drafted assuming that, in most circumstances, the Vice Chairman will become the Chairman. However, it is not reasonable to interpret the bylaws to provide for a six-year term to commence on the election of someone to the position of Vice Chairman in view of the very limited circumstances under which a board member can be removed from the board. On Dr. Chandrasegaram’s interpretation, as long as the Vice Chairman/Chairman was solvent, and undisciplined by their professional body, the CTMA would be stuck for six years without recourse with someone whose sole contribution to the organization was to attend every third directors’ meeting.
In any event, the bylaw providing for re-election of “all officers” is clear – all officers, including the Chairman and Vice Chairman, are elected annually. In this respect, CTMA has acted in accordance with the bylaws, as the minutes document the annual re-election of officers.
Those findings by the application judge were firmly anchored in the evidence and a holistic interpretation of the Bylaws. We see no reversible error in them.
5As his second submission, the appellant argues that the application judge erred by failing to find that Dr. Ruban’s candidacy was irregular because she had not filed a nomination form at least 28 days prior to the AGM, which the appellant contends is a requirement of section 6.6 of the Bylaws.
6Section 6.6 requires the Board of Directors to strike a Nomination Committee, chaired by the Chair Person Elect, that “shall call and receive nominations for various posts of the Board for the coming year”, and that committee shall send “nomination forms” to “all members at least 28 days before the Annual General Meeting.” According to the incumbent Chair, Dr. Bahe Rajendran, as a matter of historical practice the Association did not follow that process, did not strike a nominations committee, and usually dealt with nominations on the day of an AGM. In the present case, the appellant, as Chair Person Elect, did not strike a nomination committee at least 28 days before the 2020 AGM.
7Before the application judge, the appellant argued that section 6.6 required a candidate for an office to file a completed nomination form at least 28 days before the AGM.
8The application judge described the events that led up to the contested nominations for Chair at the AGM in paras. 25-31 of her reasons. The key events in the lead up to the 2020 AGM were: (i) the appellant assumed that as Vice-Chair he would automatically become the new Chair; (ii) Dr. Ruban advised the incumbent Chair, Dr. Rajendran, around mid-January 2020 that she intended to run for Chair; (iii) the Board did not start the process of establishing a Nomination Committee until the week of the AGM; and (iv) during that week, the incumbent Chair disclosed that two candidates were seeking the office of Chair.
9We see no palpable and overriding error of fact in the application judge’s recitation of the events. In the unusual circumstances the application judge faced, we regard as reasonable her conclusion, at para. 30, that any inconsistency between section 6.6 and the manner in which Dr. Ruban was nominated for the Chairman position did not render the election irregular.
10We would add two observations on this issue. First, the appellant’s position on this issue starts from the proposition that as Vice-Chair he was automatically entitled to become Chair. The application judge held to the contrary. We see no reversible error in that finding.
11Second, notwithstanding that s. 6.6 contemplated the Chair Person Elect would chair the Nomination Committee, it would have been inappropriate for the appellant to sit on the committee that would propose the nominee to the office of Chair which both he and Dr. Ruban were contesting. As a matter of proper governance practices, it would not be appropriate for a candidate to a contested office to head up a nominating committee that proposed the candidate for that very office.
12As his third submission, the appellant contends that the election was irregular because eight new members were admitted to the Association at the AGM without prior vetting or approval by the incumbent Board. The application judge held that the Association’s practice was to admit new members at the AGM without prior vetting by the Board. That holding finds support in the evidence. Further, the application judge canvassed the conflicting evidence about how many new members were brought to the AGM by each of Dr. Ruban and the appellant. The application judge dealt with that issue by stating, at paras. 36-38:
The evidence is that Dr. Ruben carried the vote by two to one margin. The concerns Dr. Chandrasegaram raises are insufficient to establish that the irregularities led to a result which does not, or even may not, reflect the wishes of the majority of the organization. This conclusion is supported by the fact that not a single other member of CTMA has filed an affidavit in support of Dr. Chandrasegaram’s application.
Moreover, it is not necessary to consider Dr. Chandrasegaram’s argument that granting membership to eight new members at the annual general meeting was a violation of section 124(1) of the Corporations Act, R.S.O. 1990, c. C.38, because, even if it were, the number of new members admitted were too few to have impacted the results of the election.
I thus conclude that, to the extent that there were irregularities in the election at the February 8, 2020 annual general meeting of CTMA, the irregularities did not go to the heart of the electoral process and did not lead to a result which does not reflect the wishes of the majority of the organization. Dr. Chandrasegaram’s application is dismissed.
13We see no reversible error in that analysis.
14For these reasons, we dismissed the appeal.
15The appellant shall pay the respondents their costs of the appeal and the motion before Thorburn J.A. fixed in a total amount of $15,000, inclusive of disbursements and applicable taxes.
“David Brown J.A.”
“L.B. Roberts J.A.”
“B. Zarnett J.A.”