COURT FILE NO.: CV-18-930-00 DATE: 2018 10 16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHRISTOPHER HOLDER, VANETTE GORDON, OLIVE TAYLOR and DELROY GORDON Applicants

A. Cofman, for the Applicant

- and -

MARK WRAY, KAYWANA WRAY a.k.a. STACEY WRAY, JOSEPHINE ROCHE, KAREN WHITE, ROSE WRAY, CLARENCE BRISSETT and KINGDOM OF HEAVEN EMBASSY MINISTRIES INC. Respondents

R. Soni for the Respondents Mark Wray and Kaywana Wray T. Gujral for the Respondents Josephine Roche, Karen White, Rose Wray, Clarence Brissett and Kingdom Of Heaven Embassy Ministries Inc.

HEARD: July 11, 12, and August 28, 2018, at Brampton

REASONS FOR DECISION

Emery J.

[1] An independent Christian Church known as the Kingdom of Heaven Embassy Ministries (the “church”) was established in Brampton in or around 2009.

[2] A significant number of people attend this church on a regular basis. There are many people who have also made significant contributions of their time and resources over the years. Most, if not all of these people consider themselves to be members of the church.

[3] The Kingdom of Heaven Embassies Ministries Inc. (the “corporation”) is a not for profit corporation incorporated under the Canada Corporations Act, and is now continued under the Canada Not-for-Profit Corporations Act, SC 2009, Ch. 23. The corporation holds all of the assets of the church, including title to the church building and property, and its bank accounts.

[4] The corporation also employs individuals who provide services to the church, notably its pastor, Ralph Somers. Mr. Somers was terminated by the board of directors of the corporation on or about October 30, 2017.

[5] The church has been a house divided since Mr. Somers was terminated from his position as pastor. Mr. Somers and his termination have become a lightning rod for issues that have consumed the congregation of the church as well as the directors of the corporation. This conflict has opened up underlying issues that are surfacing as a result.

[6] The applicants are four members of the congregation of the church who have commenced this application against the directors of the corporation and Kingdom of Heaven Embassy Ministries Inc. itself. The application requires this court to determine who is a member of the corporation. The answer to this question will dictate who has a vote for the election of directors. An election of directors will in turn determine the composition of the board for making decisions regarding the business and operation of the church, access to and management of its assets, and who it employs.

[7] The emerging conflict is apparent from the body of evidence that has been given in the affidavits filed for and against the notice of application.

[8] The respondent directors have filed several of the affidavits in response to the application. The applicants bring this motion to strike all or parts of those affidavits. The motion also seeks an order striking affidavits given by other members of the congregation of the church that support the position taken by the respondent directors.

[9] Although Kingdom of Heaven Embassies Ministries Inc. is named as a respondent, the corporation has not retained counsel or filed a Notice of Appearance.

How the church and the corporation came to be

[10] Mark Wray and Kaywana Wray met Mr. Somers in 2001 at a church called Light and Life Ministries. Mr. Wray was the worship minister at this church at the time. Mr. Somers, who lived in Jamaica, would often visit this church and preach.

[11] In 2006, Mr. Wray told Mr. Somers that he was welcome to join him in ministry if God ever spoke to him about coming to stay in Canada. Mr. Somers did not respond at the time. However, Mr. Somers answered Mr. Wray by 2008 when he told him that it was time for them to start a church.

[12] Mr. Wray and his family poured all of their resources into starting the new church. Mr. Wray describes how he and his family involved Mr. Somers in the entire planning process by regularly paying his expenses to fly to and from Jamaica.

[13] It was Mr. Wray’s intention to become the head pastor of the new church. As Mr. Somers had more experience in pastoring, Mr. Wray trusted him about making day to day decisions for the ministry behind the scenes. Mr. Somers ultimately suggested that this arrangement would be ideal, and a way for Mr. Wray as the senior pastor to sponsor Mr. Somers as he immigrated to Canada.

[14] The Kingdom of Heaven Ministries Inc. was incorporated under the Canada Corporations Act as a corporation without share capital on May 12, 2009. Mark Wray, Kaywana Wray and Josephine Roche were the three applicants for the Letters Patent, and they became the “members” in the corporation.

[15] The by-law enacted by the corporation contained provisions relating to conditions for its membership. Paragraph 9 of the corporation’s by-law provides that “membership in the Corporation shall be available only to individuals in furthering the Corporation’s purposes, and who have applied for and been accepted into membership by the Corporation by resolution of the board or in such other manner as may be determined by the board.”

[16] Mr. Wray has given evidence that the board, which consists of the three original members, has never accepted any other person into membership by resolution or in such other manner as the board has determined.

Stated basis for the application, and for the relief requested

[17] The four applicants have brought this application to regularize the operations and management of the corporation. They ask the court an essential question that is fundamental to the relationship between the church and the corporation: are those people who are members of the congregation are also members of the corporation? They ask this because members of the corporation have a vote on the election of directors. This is important to the parties on this application because the board of directors has the decision making power to re-hire Mr. Somers as pastor of the church.

[18] The applicants also seek leave to commence a derivative action pursuant to section 251 of the Canada Not-For-Profit Corporations Act on behalf of the corporation for suspected malfeasance against current directors. The respondents named in this application are the current directors.

[19] In the application, the applicants also asked the court for access to, and disclosure of corporate documents and records, many of which have now been ordered, and for interim and permanent injunctive relief.

The affidavits under challenge

[20] Mark Wray’s affidavit sets out facts relating to the establishment of both church and corporation as he is one of its founding members and a director of the corporation. In other paragraphs, he describes facts relating to the conduct of Mr. Somers as pastor of the church.

[21] Kaywana Wray, also known as Stacey Wray, is married to Mark Wray, although they are currently separated. Ms. Wray has given an affidavit as a director of the corporation in which she explains how the church was founded. In her affidavit, she also describes certain actions and statements made by Mr. Somers as pastor of the church that are controversial.

[22] Josephine Roche was also a founding member of the corporation. She has given an affidavit as a director that contains a number of factual details about the conduct of Mr. Somers as pastor of the church. She also makes reference to evidence given by Mr. Brissett and by Bernadine Matthews, who also swore an affidavit on April 10, 2018 in response to the application.

[23] Karen White is a director of the corporation. She has sworn an affidavit as a member of the board of the corporation.

[24] Rose Wray has also sworn an affidavit as a director of the corporation.

[25] Clarence Brissett has sworn an affidavit as a director of the corporation.

[26] Marcelo Gondim has sworn an affidavit as a member of the congregation of the church.

[27] Leandra Gondim is married to Marcel Gondim. Ms. Gondim has sworn an affidavit as a member of the congregation. In her affidavit, Ms. Gondim refers to audio recordings that allegedly capture statements made by Mr. Somers, although those audio recordings have not been attached in any form.

[28] The following members of the church congregation have also filed affidavits that are the subject of this motion: a) Garth Smith b) Samuel Christie c) Vincent Miller d) Rena Murray e) Beverly Blair f) Kaidan Allen g) Monique Brissett h) Barbara Taylor i) Beverly Hines

Analysis

[29] The applicants seek an order striking all or those parts of the impugned affidavits specified in Schedule A to the applicants Factum, under Rules 25.11 and 39.01(5). Those paragraphs that the applicants attack were amended by Mr. Cofman in the submissions he made on their behalf when the motion was heard.

[30] There are three things that are irrefutable on this motion.

[31] The first is the legal answer to an objection the respondents made to the applicability of Rule 25.11 on this motion because the affidavits under challenge have been filed with respect to an application. While the language of the rule speaks of striking out all or part of a pleading or other document in terms of an “action”, the scope of Rule 25.11 was expanded by Rule 38.12. The powers provided to the court under Rule 25.11 now apply, with necessary modifications, with respect to a document filed on an application.

[32] Second, it is now settled law that a document includes an affidavit within the meaning of Rule 25.11: Allianz Global Risks US Insurance Co. v. Canada (Attorney General), 2016 ONSC 29 (Ontario Master).

[33] Third, Mr. Gujral advised the court on a previous appearance that the respondents he represents had commenced their own application naming Ralph Somers as an applicant, among others. While there may have been arguments that affidavit evidence from certain affiants filed on that cross-application might have been relevant to both applications, the court had no way of making that determination as the cross-application was never put before the court. In any event, Mr. Gujral advised the court that the cross-application would be withdrawn, thereby removing that concern.

Rule 25.11

[34] For clarity, Rule 25.11 reads as follows:

STRIKING OUT A PLEADING OR OTHER DOCUMENT

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court. R.R.O. 1990, Reg. 194, r. 25.11.

[35] There was time when the jurisprudence on motions to strike documents leaned away from granting preliminary motions to strike affidavits before the hearing of the main motion or application, preferring to leave evidentiary rulings to the judge hearing the motion or application. This school of thought was captured by Justice Dambrot’s decision in 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario ) 10 Ltd..

[36] The respondents refer to Jama v. McDonald’s Restaurants, [2001] O.J. No. 1068, where the court held that motions to strike should be granted only in the “clearest of cases.” In that case, the court was dealing with a motion to strike facts that may add complexity but did not outweigh their potential probative value. The balancing of prolix or prejudicial pleadings against relevance was also discussed in Clement v. McGuinty. See also Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd., [2007] O.J. No. 3769, reversed on other grounds at (2008) 2008 ONCA 644, 92 O.R. (3d) 347 (Ont. C.A.).

[37] In 1196303 Ontario Ltd. V. Glen Grove Suites Inc., 2012 ONSC 758, Justice D.M. Brown, as he then was, held that the proper time to strike an affidavit would be at the hearing of the motion on which it was filed. He was of the view that a pre-emptive motion should only be brought in the rarest, and the most extraordinary of cases.

[38] Whether a motion arises in such rare or extraordinary circumstances to make the order requested, or it is better to defer the evidentiary screening of evidence until the main event must be considered on a case by case basis. There are certainly cases where the judge before whom the preliminary motion is brought will not be the judge who is to ultimately hear the application. In those cases, there may be no benefit or utility in having a different judge make an advance ruling on affidavits for any number of reasons.

[39] There is another line of authority that holds a preliminary motion to strike is properly brought before the same judge who will hear the main motion or application. This line of authority is represented by Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 (SCJ). According to this view, the court, faced with the “sheer volume” of evidence on an application, may strike affidavits or other documents to enhance the efficiencies of having a properly defined record. This provides an economy of benefits that recognizes the limited resources of the judicial system.

[40] An advance ruling on striking all or parts of an affidavit can save the court the time of hearing and deciding evidentiary issues. A motion to strike can screen out evidence that is ultimately extraneous to the real issues between the parties, and that only increase the high cost of litigation. The motion to strike, used judiciously, provides the means by which to weed out frivolous or vexatious evidence that could require reply evidence, and might otherwise widen the scope of any cross-examination that is later found unnecessary. Although there are arguments for and against striking an affidavit in whole or in part prior to the main event, it is a discretionary order to make in the right circumstances. One “special reason” to make such an order in advance of the main hearing would be where the affidavit at issue is “clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party.” See Allianz Global Risks at paragraphs 18 and 19, and Neighborhoods of Windfields Ltd. Partnership v. Death.

[41] The approach set out in Lockridge v. Ontario is applicable to the circumstances in the case before me, as I will be hearing the application on its merits early in 2019. I therefore consider it appropriate to decide the issues raised by the applicants’ motion to strike affidavit evidence in advance of the application. It is to those questions I now turn.

[42] In Bramer v. Toronto Lawn Tennis Club, 2017 ONSC 1737, the court discussed two specific reasons favouring an order to strike an affidavit on an interlocutory motion before the application was argued. First, impugned material that is clearly inadmissible should be struck out where it would involve unreasonable cost or require that the responding party file voluminous additional materials in response to it. Second, the court should not permit all or part of an affidavit that is clearly scandalous and vexatious. This would include evidence that is clearly irrelevant and impugns the behaviour or character of a party.

[43] The court in I.F.Propco noted that merely because evidence in an affidavit is irrelevant is not a ground for striking that part of an affidavit under Rule 25.11. However, evidence that is irrelevant but is included in an affidavit for the purpose of injuring or impugning the character of an adverse party can be said to be scandalous, frivolous or vexatious depending on the complexion of that evidence.

[44] Several reasons were discussed by the court in Adjey v. Chickery Holding LLC., 2017 ONSC 794 for striking certain paragraphs that impugn the character of the applicant. Those reasons include situations where paragraphs are clearly irrelevant and address issues outside the scope of the application. This would include evidence meant to embarrass the other party.

[45] I see no reason why the same principles should not apply to finding that evidence given in respect of a witness who is clearly aligned with the interests of an adverse party is scandalous or vexatious.

[46] What is meant by “scandalous”, “frivolous” or “vexatious” on a motion to strike under Rule 25.11 was discussed by this court in the case of George v. Harris, 2000 CarswellOnt 1714. In that decision, Justice Epstein (as she then was) put forth the following definitions:

20 The next step is to consider the meaning of "scandalous", "frivolous" or "vexatious". There have been a number of descriptions provided in the multitude of authorities decided under this or similar rules. It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety.

[47] Bearing in mind the definitions judicially considered in George v. Harris, the reasons of the court in Belokon v. Kyrgyz Republic, 2015 ONSC 5918 are particularly helpful. In Belokon, the court found that all or part of an affidavit may be struck or expunged in advance of a hearing if it introduces information that is scandalous in the sense that it is so extraneous to the issues on the application that the intended purpose and effect for giving that evidence can only be to create prejudice against the other party.

[48] It is therefore appropriate to strike all or any parts of an affidavit that are clearly irrelevant to the issues on the application where the facts given in evidence are intended to impugn the character of the other party or a fundamental witness, or to create prejudice with the result the evidence given is scandalous, frivolous or vexatious. Evidence that is irrelevant is not enough. Evidence given in an affidavit that is not relevant but seeks to embarrass, scandalize or prejudice a person or a position taken in the litigation is too much, and should be taken out.

[49] In deciding this motion, I have drawn a distinction between evidence in the responding affidavits of a theological or financial nature that is irrelevant and given to impugn the character or conduct of Mr. Somers as pastor of the church, and evidence that describes certain acts or statements of Mr. Somers directed to specific people. Many of those paragraphs of the former kind are scandalous or vexatious, and subject to censure under Rule 25.11.

[50] In the context of the evidence as a whole, and recalling the fundamental issue about what it means to be a member of the corporation, how Mr. Somers treated possible members is relevant. That treatment could impact the number of individuals who have voting rights if they are found to be members of the corporation. Paragraphs containing evidence of this nature is not subject to an order to strike. As Justice Dambrot elegantly put it in I.F.Propco, “If material is relevant, it cannot be scandalous ( cite omitted ); but irrelevant material is not, for that reason alone, scandalous.”

Rule 39.01(5)

[51] The applicants also rely upon Rule 39.01(5) to strike the impugned affidavits, or those parts they argue are offensive to the Rules. Rule 39.01(5) reads as follows:

39.01(5) An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit. R.R.O. 1990, Reg. 194, r. 39.01 (5).

[52] An affidavit for use on an application must also comply with Rule 4.06, which specifies what affidavits in a civil proceeding must contain, and the permitted source of the evidence given. Subrule 4.06(2) provides that an affidavit shall be confined to the statement of facts within the personal knowledge of the affiant, or to that evidence the affiant could give if testifying as a witness in court, except where the rules provide otherwise.

[53] Rule 39.01(5) is one such rule. This rule permits an affiant to give evidence in relation to an application on information and belief. The net result of reading the two rules together is that: a) an affidavit on an application must state the source of the affiant’s information and belief if the facts are not within that persons own knowledge, and b) must be confined to facts that are not contentious.

[54] The central intent behind the limitations of Rule 39.01(5) is of course to prevent the giving of hearsay evidence in a procedure that is summary in nature, yet available to seek a final order.

[55] The respondents invite this court to permit those portions of the affidavits under attack even though they may involve hearsay evidence. They argue that it is open for the court to accept that evidence under the principled approach to hearsay described in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.

[56] The moving parties submit that several paragraphs in various affidavits at issue contain evidence that is contentious in nature. They argue that still other paragraphs in those affidavits do not give evidence that was seen or heard by the affiant and that the source of the facts has not been given as Rule 39.01(5) requires.

[57] Counsel for the respondents disagree with the plaintiffs’ characterization that the responding material at issue is contentious as no affidavits on the challenged evidence have been filed. They go so far as to question the evidentiary basis for bringing this motion without filing supporting affidavits or other evidence on the motion itself.

[58] The answer to this argument is clear. The Divisional Court in Resolute Forest Products Inc. v. 2471256 Canada Inc., 2016 ONSC 5398 held definitively that a motion to strike does not require affidavit evidence from the moving party for the court to conclude that adding factual issues, unrelated to the principal issues in the proceeding, will make it unwieldy for the parties and the court to deal with.

[59] The responding parties also submit that the plaintiffs have conflated the concept of what they consider to be contentious issues on the case, with what are contentious facts. In this case, that would be drawing a fine line. In Ontario (Attorney General) v. Paul Magder Furs Ltd., 1989 CarswellOnt 872, the court held that a contentious fact would “appear to be something that is in dispute or to which there are differences between contending parties.” This statement applies to the question of evidence concerning Mr. Somers on the issues in dispute. The evidence given in those affidavits about his person or his conduct as pastor of the church is therefore evidence relating to contentious facts.

[60] I have no difficulty concluding that extraneous evidence about Mr. Somers and his conduct as it relates to his termination as the pastor of the church is not only contentious, but also outside of the corporate governance issues framed in the application.

[61] There is ample reason for the respondents to object to the form or content of one or more of the affidavits that are now filed in response to the application because they do not comply with Rule 39.01(5). However, there is no provision in either Rule 39.01 or in Rule 4.06 that empowers the court to strike any affidavit for noncompliance. The moving parties rely upon Rule 25.11 (b) as the authority they ask the court to exercise to actually make the order to strike. Unless the noncompliance amounts to an abuse of the court’s process under subrule 25.11 (c), a ground they did not argue, there is no legal basis to consider that objection until the application is heard on its merits.

Disposition of the motion with respect to the affidavits

[62] The moving parties take the position that the affidavits, or alternatively those parts of the affidavits specified in their factum and in argument are not relevant to the matters at issue on the application. It is the further position of the moving parties that this evidence is given to impugn the character and conduct of Mr. Somers as pastor of the church in particular, and by extension the validity of the respondents’ position on this application. The moving parties argue that this evidence makes the affidavit where this evidence is given scandalous and vexatious, and subject to the motion to strike under Rule 25.11.

[63] The responding parties submit that the evidence given in the affidavits under attack is relevant, if not to the merits of the application, then in support of those issues as the evidence is narrative that provides context for the actual issues.

[64] The respondents also submit that the evidence given is based on personal knowledge where there is no attribution of another source. They further submit that the facts they intend to show through that evidence are not contentious, and properly before the court on the application.

[65] The prayer for relief and the grounds relied upon in the notice of application define the issues on the application. The notice of motion and the submissions of counsel with reference to Schedule A in the factum of each party sets out their respective positions as to what paragraphs, if any, should be struck from an affidavit with respect to that application.

[66] On the basis of the submissions made, and on applying the rules that permit the court to strike all or part of an affidavit, I make the following findings:

1. While many of the paragraphs in the affidavits sworn by Mark Wray and by other affiants that are challenged on this motion may contain contentious evidence contrary to Rules 39.01(5), or fail to give sources of that evidence if outside the knowledge of the affiant, no rule or other legal basis has been provided as a ground for an order to strike those paragraphs. The evidentiary value of these paragraphs and paragraphs like them in other affidavits are better left to the hearing of the application to determine.
2. Paragraphs 8, 10, 11, the last line of 14, 19, 32, 33, 36, 37, 38, 53, 54, 56, the last sentence of 59, the last sentence of 61 and 65 in the affidavit of Mark Wray are irrelevant to the issues defined by the notice of application. The effect of the evidence given in these paragraphs is to impugn either the character or conduct of Mr. Somers to embarrass him and therefore the applicants. As a result, this evidence is scandalous or vexatious. Those paragraphs and sentences are therefore struck.
3. Paragraphs 9, 26, the fifth and sixth sentences of 37, 40, 41, 46, 49 to 56 and the last sentence of 57 in the affidavit of Kaywana Wray are struck as they are scandalous or vexatious for the same reasons this court has struck paragraphs from the affidavit of Mark Wray.
4. Paragraphs 15, 28, 35, 43 to 45, 49, and 50 to 68 in the affidavit of Josephine Roche are struck as scandalous or vexatious.
5. Paragraphs 8, 11, 12 to 32 and 34 to 37 in the affidavit of Karen White are struck as scandalous or vexatious.
6. Paragraphs 11, 15 to 32 and 36 to 39 in the affidavit of Rose Wray are struck as scandalous or vexatious.
7. Paragraphs 29, the third and fifth sentences of 30, second and third sentences of 32, 41 to 67, as well as 70 and 72 in the affidavit of Clarence Brissett are struck as scandalous or vexatious.

[67] The following paragraphs from those affidavits described below are also struck because they are scandalous or vexatious because they are irrelevant and impugn the character or conduct of Mr. Somers: a) Marcelo Gondim: 20 to 49 (and Exhibits C and D); b) Leandria Gondim: 14, 16, 17, 18 and 20 to 32; c) Garth Smith; 3 to 7; d) Samuel Christie: 3, and 5 to 8; e) Vincent Miller: 10 to 20; f) Rena Murray: 13 to 20; g) Beverley Blair: 6 to 13; h) Kaidan Allen: 13 to 15; i) Monique Brissett: the third and fourth sentences of 14, 21, 22, and 30; j) Barbara Taylor: 5 to 20; and k) Beverley Hines: none.

[68] Mr. Cofman advised the court during the motion that the applicants have no objection if the respondents are granted leave to amend any part of the affidavits struck. Therefore, leave is hereby granted for the respondents to amend by filing fresh affidavits that conform to these reasons by November 30, 2018.

[69] The balance of the applicants’ motion is dismissed.

[70] Although certain paragraphs of the affidavits challenged on this motion remain part of the evidentiary record, this decision should by no means be taken as accepting the evidence given in any paragraph of an affidavit as admissible or put before the court in proper form. This motion was decided with a focus on what parts of an affidavit should be struck for specific reasons, and on grounds prescribed by Rule 25.11 for that relief. Whether the remaining paragraphs will survive further scrutiny on the hearing of the application in terms of admissibility, or otherwise under the rules or the law of evidence, is another matter entirely.

Costs

[71] If any party seeks costs, they may file written submissions setting out their claim by October 24, 2018. This submission shall consist of no more than two pages, not including any offer to settle the motion, time dockets or disbursement receipts. A responding party shall then have until October 31, 2018 to file responding submissions limited to the same extent. No reply submissions are permitted without leave.

[72] All submissions on costs may be sent to my judicial assistant, Ms. Melanie Powers by email at melanie.powers@ontario.ca or by fax at 905-456-4834 in Brampton.

Emery J.

Released: October 16, 2018