COURT FILE NO.: 204/04

DATE: 20050110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, JARVIS AND SWINTON JJ.

B E T W E E N:

DONALD LEE, MAN CHE LEE AND BOON FONG LEE

Appellants

• and -

LEE’S BENEVOLENT ASSOCIATION OF ONTARIO, KONG MING LEE, BIG YEUNG LEE, HING CHIU LEE, YUK BALI LEE, WAH FAT LEE, HUI KING LEE, KIM SIT LEE, WING CHUN LEE, YIU CHIU LEE, TZE SUEN LEE, MAN YUI LEE

Respondents

William K. Andrews, Q.C., for the Appellants

Kenneth Hill, for the Respondents

HEARD: January 10, 2005

SWINTON J.: (Orally)

1This is an appeal from the decision of Nordheimer J., dismissing an application pursuant to s.297 of the Corporations Act, R.S.O. 1990, c.C.38.

2Nordheimer J. found that a general meeting had been held and the notice of the meeting was adequate. There is evidence to support his conclusions. While he found that there was an irregularity in the election, he exercised his discretion not to order a new election, given that the evidence did not show that the irregularity went to the heart of the process or led to a result which does not reflect the wishes of the majority.

3The appellants rely on the following sentence in paragraph 12 of the endorsement:

“Non-profit organizations such as the Association should not be required to adhere rigorously to all of the technical requirements of corporate procedure for their meetings as long as the basic process is fair.”

4We find the basis for Nordheimer J.’s decision is set out in the final sentence of paragraph 12:

“Absent some demonstrated evidence that any irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority, the court should be loathe to interfere in the internal workings of such groups.”

5We find the sentence relied on by the appellant to be obiter dicta. In Re Burlington Association for the Mentally Retarded, [1981] O.J. No. 289 (H.C.J.), there was clear evidence of ballot box stuffing, and no effort had been made by the previous directors to address the irregularity. Here, the applicants failed to show that the irregularity led to the infringement of rights or privileges of any party. Therefore, the appeal is dismissed.

CARNWATH J.

6The endorsement on the back of the record reads: “The appeal is dismissed for reasons given orally in court by Swinton J. Costs to the respondent fixed on a partial indemnity basis, payable in 30 days. Fee: $2,600.00, plus disbursements, plus applicable GST.”

CARNWATH J.

JARVIS J.

SWINTON J.

Date of Reasons for Judgment: January 10, 2005

Date of Release: January 18, 2005

COURT FILE NO.: 204/04

DATE: 20050110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT