Court File and Parties

COURT FILE NO.: CV-23-00061655-0000 DATE: 2024-09-20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lacey Lewis, Wanda Griffin, Bobbi Jones Japp and Wendy Wilson, Applicants AND: Niagara Regional Native Centre, Roxanne Buck, Audrey Clark, Fallon Farinacci, Elaina Jones, Brian Macaulay, Doug Paget and Sean Vanderklis, Respondents

BEFORE: The Honourable Justice L.E. Standryk

COUNSEL: Julie Mouris and Mohammed Elshafie, counsel for the Applicants Simone A. Bilato, counsel for the Respondents

HEARD: June 12, 2024 and August 16, 2024

Reasons for Decision

Overview

[1] The Niagara Regional Native Centre (the “NRNC”) is an Indigenous Friendship Centre that has served the Niagara Indigenous community for nearly 50 years. The NRNC was incorporated as a corporation under the predecessor legislation to the Not-for-Profit Corporations Act, 2010, S.O. 2010, c.15 (the “Act”).

[2] The objectives of the NRNC are to advance, foster, encourage, and promote social and cultural interests and awareness of the Niagara Indigenous community in a context of mutual understanding and respect for self-determination. The NRNC organizes projects and carries out programs to alleviate and minimize adverse social and economic conditions encountered by Indigenous peoples to improve their overall welfare and well-being.

[3] The NRNC is a member of the Ontario Federation of Indigenous Friendship Centres (the “OFIFC”) from which it receives funding.

[4] The NRNC is governed by a board of directors (the “Board”). Governance of the NRNC is required to be carried out in accordance with the provisions of the Act and the organizational by-laws. The NRNC Board most recently updated and approved the by-laws on July 12, 2022 (the “By-Laws”).

[5] This application centers on the events of a special members’ meeting of the NRNC held on February 8, 2023 (the “February 2023 meeting”) during which there was a change in the composition of the Board.

[6] The applicants in their application seek relief, which includes:

1. a declaration that the applicants’ removal as directors of the NRNC at the February 8, 2023 meeting was invalid;
2. a declaration that the election of the individual respondents as directors and officers of the NRNC at the February 8, 2023 meeting was invalid;
3. an order removing the individual respondents as directors of the NRNC;
4. an order invalidating all acts taken by the respondents purportedly acting as the Board since the February 8, 2023 meeting; and
5. an order recognizing and declaring the applicants as the sole directors and officers of the NRNC.

[7] During their submissions to the court, the respondents raised several allegations that involved the applicants' prior improper governance of the NRNC as former directors of the Board; however, the respondents have not brought a companion application or sought any relief against the applicants.

[8] The community served by the NRNC is a close-knit community. It has been deeply affected by the events of the February 2023 meeting and the ongoing dispute that is now before the court. While the parties remain firmly entrenched in their respective legal positions, they are all deeply committed to their community and recognize that much healing is needed.

[9] For the following reasons, I am satisfied that the applicants have demonstrated evidence that warrants judicial intervention in this dispute.

[10] The governance irregularities that occurred during the February 2023 meeting and which formed the foundation of board governance thereafter are incredibly concerning. The irregularities violate the By-Laws and provisions of the Act. The cumulative impact of the irregularities is of such a magnitude to strike at the heart of the electoral process of the NRNC and dampen fundamental elements of good governance: natural justice and procedural fairness.

[11] As a result, I conclude that the election of the board of directors at the February 2023 meeting was invalid, and the current board of directors subsequently elected on October 12, 2023 (the “October 2023 Board") shall continue to oversee the affairs of the NRNC until the earlier of the next annual general meeting (“AGM”) or special members’ meeting, when an election of the board of directors will take place in accordance with protocols directed by me.

Background

[12] For the most part, the factual context and relevant documents at the center of this dispute are not controversial.

[13] Letters patent created the NRNC under the predecessor legislation to the Act. The NRNC is funded by the OFIFC.

[14] A board of directors manages the affairs of the NRNC in accordance with the By-Laws. The Board is elected annually by the voting members of the NRNC at the AGM: Article VI of the By-Laws.

[15] The Board is comprised of nine directors: seven regular board members, a youth representative, and an associate member. Each director must be a voting member of the NRNC at the time of their election and throughout their term: Article VII of the By-Laws.

[16] There are three classes of membership in the NRNC. Eligibility for membership, including categories of voting members, is prescribed by Article V of the By-Laws. Membership is valid during the NRNC fiscal year which runs from April 1 to March 31.

[17] The Board is responsible for considering membership applications. Membership and voting privileges at the AGM are conditional upon completing a membership application and payment of required dues for the specific membership category. Membership ratification is a responsibility of the Board, which may occur at a meeting call for the purpose of membership ratification and falls into one of the last orders of business for the outgoing Board at the AGM.

[18] Fifty percent plus one of the directors of the Board constitutes a quorum. The Board directors elect a president, vice president, secretary, and treasurer, who comprise an executive committee.

[19] The applicants are active in the Indigenous communities of Niagara. Each volunteered on the Board in various capacities until February 8, 2023.

[20] The applicant, Lacey Lewis, became a director of the Board in 2020 and was elected president of the Board on July 12, 2022. Wanda Griffin became a director of the Board in 2017 and held the executive position of treasurer up to February 8, 2023. Bobbi Jones Japp most recently joined the Board in 2021 and served as secretary between July and October 2022. Wendy Wilson joined the Board in 2020 and held the position of secretary from December 2022 to January 2023.

[21] The respondents Roxanne Buck and Fallon Farinacci served as directors of the Board along with the applicants and Olivia Hope.

[22] The respondents Audrey Clark, Elaina Jones, Brian MacAulay, and Doug Paget did not serve as directors of the Board alongside the applicants. Each of them was a voting member of the NRNC as of February 8, 2023.

[23] The respondent Sean Vanderklis has a longstanding relationship with the NRNC, which began when he was a child. Over the years, Mr. Vanderklis has held various positions with the NRNC: he became president of the Board in June or July 2008 and resigned from that position in September 2008; he was elected to the Board in 2010 or 2011 and left the Board shortly thereafter; he was elected president of the Board in 2018 and was subsequently removed from the Board thereafter.

[24] Mr. Vanderklis was most recently elected president of the Board on February 8, 2023. He currently occupies the position of president of the Board. Mr. Vanderklis was not a voting member of the NRNC on February 8, 2023.

[25] Thomas Karl Dockstader is not a party to this proceeding. He is the former executive director of the NRNC. On December 8, 2022, Mr. Dockstader provided written notice of resignation from his employment to Lacey Lewis, then president of the Board. His resignation was accepted on December 12, 2022 and he was not required to work the balance of his resignation period through to January 7, 2023.

[26] Both Mr. Dockstader and, Mr. Vanderklis on behalf of the respondents, allege that Mr. Dockstader’s resignation was prompted by several concerns which include: improper board governance, failure of the Board to follow the By-Laws, difficulty working through complex problems with the president of the NRNC; involvement by the president and the Board in operational aspects of the NRNC customarily delegated to the executive director which exceeded the governance function of the Board; and an overall failure to govern the NRNC in the best interests of its members and community.

[27] The applicants deny the allegations made by Mr. Dockstader, Mr. Vanderklis, and the respondents.

[28] In response to Mr. Dockstader’s resignation, Fallon Farinacci and Olivia Hope resigned from the Board on December 16, 2022. Roxanne Buck resigned from the Board on December 20, 2022. Their resignations left a board of four members, which, under the By-Laws, was insufficient to achieve a quorum.

[29] As a result, on January 9, 2023, notice of a special members’ meeting was sent to 37 members of the NRNC. The notice confirmed a meeting to be held on February 8, 2023, to fill board vacancies and to discuss amendments to the By-Laws regarding residency requirements for membership eligibility.

[30] Mr. Dockstader and Mr. Vanderklis co-host a radio show and podcast (One Dish, One Mic), which is broadcast in various Canadian cities. In addition to their radio show and podcast, both men have a significant social media presence. Between December 12, 2022, and February 8, 2023, Mr. Dockstader and Mr. Vanderklis publicly voiced their concerns about the Board and discussed the principles of governance in general, both on social media and during their podcast. The applicants characterize their vocalization as a smear campaign.

[31] On January 23, 2023, Mr. Dockstader and Mr. Vanderklis attended a NRNC drum night, reiterating their concerns.

[32] Regardless of their veracity, these concerns motivated Mr. Dockstader, Mr. Vanderklis, the respondents, and other individuals to seek a change in the leadership of the Board.

[33] Before the February 2023 meeting, and in response to the public dialogue and criticism of the Board, the applicants issued three statements:

1. December 13, 2023 – denying the allegations, reiterating their commitment to serve the interests of the NRNC and Indigenous community, and requesting that questions or concerns be directed to the Board;
2. January 25, 2023 – apologizing for the disruption caused during the NRNC drum night, acknowledging the pain and loss of trust caused both to the NRNC and to the Indigenous community at large, and calling for a healing circle to re-establish harmony among the community; and
3. February 6, 2023 – reiterating the purpose of the February 8, 2023 meeting: to fill board vacancies and discuss a future amendment to the By-Laws.

[34] In advance of the February 2023 meeting, the applicants engaged an independent chairperson, Shannon Kitchens, to chair the February 2023 meeting to minimize the potential for conflict. On February 8, 2023, Mr. Vanderklis contacted Ms. Kitchens to inform her that her services may not be required because a different nomination for chair may be made from the floor.

[35] The February 2023 meeting was well attended. Twenty-five voting members of the NRNC, the applicants, stakeholders, and several community members, including a representative of OFIFC, were present.

[36] Community members and several of those in attendance were inflamed, and disorder ensued. In response, and out of concern for their own safety, the applicants told the crowd they would “stand down from the Board.”

[37] Ted Mouradian chaired the meeting at the request of the respondents. A motion was made to dissolve the Board. Ms. Buck, Ms. Clark, Ms. Farinacci, Ms. Jones, Mr. MacAulay, and Mr. Paget were elected to the Board (the “newly elected Board”). The newly elected Board ratified Mr. Vanderklis’ membership with the NRNC and elected him to the newly elected Board as president.

[38] Immediately following the February 2023 meeting, the NRNC announced the new slate of directors. The applicants’ access to NRNC accounts and email was terminated.

Preliminary Evidentiary Issue – Admissibility of Videotape Evidence

[39] In their supplementary responding record, the respondents attached five video recordings taken during the February 2023 meeting. The video recordings do not have sound.

[40] I invited counsel to provide me with written submissions regarding the admissibility of the video-recorded evidence, which I have carefully reviewed and considered.

[41] The applicants submit that the recordings are inadmissible because the respondents have failed to establish the three requirements of admissibility: accuracy in its representations of the facts, fairness and the absence of any intention to mislead, and verification on oath by a person capable of doing so: Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 93-94; Rolley v. MacDonell, 2018 ONSC 164, at para. 12, aff’d: 2020 ONCA 642.

[42] The respondents submit that the video recordings were introduced by the respondents during the cross-examination of the applicant Lacey Lewis for the purpose of impeaching her credibility.

[43] Neither party referred to the video recordings during their submissions. The affidavit material did not address the authenticity of the video recordings before me or during the examinations for discovery. Neither party referenced the video recordings in the compendiums filed. The respondents did not make any substantive submissions regarding Ms. Lewis' credibility.

There is no evidence before the court to establish the three admissibility requirements. Accordingly, I rule these five video recordings taken during the February 2023 meeting are not admissible evidence.

Issues

i. Did the applicants resign from the Board on February 8, 2023? ii. Were the applicants validly removed from the Board on February 8, 2023? iii. Was the new board of directors’ election on February 8, 2023, and the ratification of new memberships at the February 8, 2023 meeting valid? iv. Did the NRNC subsequently cure any irregularity in the February 8, 2023 electoral process? v. What is the appropriate remedy, if any, for violations of the By-Laws and Act?

Law and Analysis

[44] Nordheimer J. in Lee v. Lee’s Benevolent Assn. of Ontario, [2004] O.J. No. 6232 (S.C.), aff'd: , [2005] O.J. No. 194 (Div. Ct.), cautioned against judicial intervention in the internal affairs of non-profit organizations. Absent demonstrated evidence of irregularities that strike at the heart of the electoral process or lead to a result which does not reflect the wishes of the majority, a court should not interfere with these internal workings: Scharafanowicz v. Hamilton Regional Indian Centre, 2011 ONSC 6953, at paras. 18-19.

[45] In order for me to exercise my judicial discretion to intervene in the internal operations of the NRNC as requested by the applicants, I must be persuaded that corporate governance at the February 2023 meeting, which laid the foundation for subsequent governance and board structure, significantly impacted the electoral process, or has resulted in an outcome that does not represent the majority wishes of members the NRNC.

i. Did the applicants resign from the Board on February 8, 2023?

[46] The applicants did not effectively resign from the Board on February 8, 2023.

[47] The applicants argue that they did not resign: no formal written resignation was proffered by the applicants as contemplated by the By-Laws and required by the Act; and the applicants' statements at the February 2023 meeting that they would stand down from the Board do not constitute a valid and enforceable resignation.

[48] The respondents submit that the applicants resigned, abandoned their positions, or otherwise gave up their positions on the Board during the February 2023 meeting. Additionally, the respondents submit that accepting the applicants' resignation in the July 13, 2023 meeting minutes fulfilled the written resignation requirement of the By-Laws and the Act.

[49] In support of their position, the applicants rely on s. 25 of the Act, s. 7(1)(1) of the Not-for-Profit Corporations Act, 2010, O. Reg. 395/21 (the “General Regulation”), Cliff v. Canada, 2022 FCA 16, at paras. 13-14, and Canada v. Chriss, 2016 FCA 236, 403 D.L.R. (4th) 569, at paras. 9-14. The respondents have not provided any case law to support their position.

[50] Article 16 of the By-Laws provides that members may resign by submitting a written resignation to the secretary of the Board. The resignation shall be effective on the earlier of the date on the resignation or upon acceptance of the resignation by the Board.

[51] Section 25 of the Act provides that a director ceases to hold office when the director resigns. Section 7(1)(1) of the General Regulation to the Act mandates that the resignation be in writing. A director’s resignation is effective on the later of the time the resignation is received by the corporation or the time specified in the resignation.

[52] Both cases relied on by the applicants consider similarly worded legislative provisions under Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16, s. 121(2). In each of those cases, the courts concluded that the status of a director must be capable of objective verification. Without a communicated written resignation to the corporation, objective verification is not possible, and therefore, a resignation is not effective.

[53] There is no evidence on the record before me of a written resignation delivered to or received by the NRNC that objectively verifies a resignation by the applicants.

[54] The respondents have failed to provide any legal authority in support of their position that a purported verbal resignation subsequently accepted by the Board and recorded in the minutes of the meeting, constitutes an effective resignation capable of objective verification.

[55] Even if I were persuaded that the statements made by the applicants during the February 2023 meeting were evidence of a resignation, I am satisfied that the circumstances in which the statements were made vitiate the voluntariness of any purported resignation.

[56] The respondents have not persuaded me that the applicants abandoned their positions as directors with the NRNC.

[57] Notwithstanding the occasional use of personal emails by the applicants during their term as directors, each of them was assigned formal NRNC emails to conduct business on behalf of the Board. The respondents do not contest that access by the applicants to the NRNC email accounts was terminated by the NRNC shortly after the February 2023 meeting. The NRNC announced a new slate of directors on February 9, 2023. The minutes of the February 2023 meeting record a motion by Roxanne Buck to “dissolve the Board.”

[58] The actions by the NRNC make it clear that the applicants were no longer recognized as directors or officers of the Board.

ii. Were the applicants validly removed from the Board on February 8, 2023?

[59] The applicants submit that their removal from the Board on February 8, 2023 was invalid and in violation of the Act and the By-Laws.

[60] The applicants argue that:

1. The motion to dissolve the Board is not a motion contemplated by the Act or the By-Laws.
2. A motion to dissolve the Board to remove the applicants from the Board was made without proper notice as required by s. 27(1) and s. 55 of the Act, and s. 7(1)(2) of the General Regulation.
3. The applicants were not allowed to make a statement regarding their proposed removal from the Board.
4. The NRNC voting members and non-member community participants could not be distinguished, making it impossible to determine whether eligible members voted for the motions, including the motion to elect the new Board.

[61] The respondents acknowledge that the By-Laws do not contemplate a motion to dissolve the Board. However, they submit that the motion made by Roxanne Buck was made to demonstrate a lack of support and confidence in the Board by the members and the community. The respondents assert that the motion received tremendous support, as demonstrated by an eruption of “cheers, whoops, and yeahs” from the crowd that “echoed through Niagara-on-the Lake.”

[62] The respondents submit that while there may have been a lack of strict adherence to the By-Laws on February 8, 2023, strict compliance is not required: perfection is not the standard to which a volunteer board of directors should be held, nor is it a practice that the NRNC has historically followed.

[63] The respondents submit that the events of February 8, 2023, reflect the will and wishes of the community: the community and members wanted to be heard. They wanted new leadership, and the election of a new board of directors reflected the wishes of the majority. The respondents argue that the community called for change, which was achieved on February 8, 2023 and reaffirmed at two subsequent meetings held on July 13, 2023 and October 12, 2023.

[64] The respondents submit that, while proper process was not followed, natural justice and democracy have taken place in the halls of the NRNC. As a private, not-for-profit organization, the internal workings of the NRNC should not be interfered with.

[65] In support of their position, the respondents rely on Pankerichan v. Djokic, 2014 ONCA 709, 123 O.R. (3d) 131; Pal et al. v. Chatterjee et al., 2013 ONSC 1329; Scharafanowicz v. Hamilton Regional Indian Center; Bhadra v. Chatterjee, 2016 ONSC 4845; and Malik v. Sabha, 2020 ONSC 5535.

[66] Neither the Act nor the By-Laws contemplate a motion to dissolve the Board.

[67] Section 26 of the Act provides that members of a corporation may remove a director or directors from office by ordinary resolution at a special meeting. Section 63 of Article VII of the By-Laws provides that a director may be removed from the Board by the voting members of the NRNC at a meeting called for the purpose of removing that director by a resolution of two thirds of the voting members present. Where a meeting is called for that purpose, notice of the meeting is required.

[68] Section 27 of the Act provides that subject to the by-laws of a corporation, where a meeting is called to remove a director, that director is entitled to give the corporation a statement with reasons opposing their removal.

[69] The February 2023 meeting was not called to remove the applicants as directors of the Board. There is no evidence on the record that the applicants received prior notice of the motion calling for their removal as contemplated by s. 55 of the Act. Therefore, it follows that the applicants had no opportunity to provide a statement opposing their removal contemplated by s. 27 of the Act if they wished to do so.

[70] Governance of the February 2023 meeting was fraught with irregularities. What is most concerning is how the motion to dissolve the Board and those subsequently called to question were carried: not by a show of hands of those members eligible to vote but rather by the eruption of “cheers, whoops, and yeahs” from the crowd of nearly 100 people comprised of 25 voting members. Admittedly, the respondents acknowledge that there was no way for the chair to discern whether the loud cheers and applause represented two thirds of the voting members present and eligible to vote. No poll was requested or taken out of an abundance of caution to ensure compliance with s. 63 of Article VII of the By-Laws and the prescribed electoral process.

[71] It is impossible in these circumstances to determine whether the result of the motion reflects the wishes of the majority of NRNC members entitled to vote.

[72] The motion to dissolve the Board and remove the applicants from the Board is invalid.

iii. Was the new board of directors’ election on February 8, 2023, and the ratification of new memberships at the February 8, 2023 meeting valid?

[73] The applicants submit that the election of the new board of directors and the ratification of new membership applications on February 8, 2023 are invalid: the February 2023 meeting was not called for the specific purpose of electing a new board of directors or ratifying membership applications; the newly elected Board did not have the power to ratify new members or appoint directors, and it was impossible to determine whether only eligible members voted for the election for the purported board. The applicants submit that these fatal flaws in governance go to the very heart of the election.

[74] The applicants argue that Mr. Vanderklis' election to the newly elected Board was improper as he was not a member of the NRNC at the time of his election.

[75] In support of their position, the applicants refer to and rely on ss. 52 and 54 of the By-Laws, s. 23(2) of the Act, and Deol v. Grewal.

[76] The respondents maintain that judicial intervention into the internal workings of a not-for-profit organization is an exception. They assert that the By-Laws have historically been applied inconsistently and they contain gaps that do not prescribe a process that deals with every possible circumstance that comes before the Board. Rather than strict compliance with the By-Laws or rules of good governance, the respondents submit that the Board is required to take a more wholesome approach to board governance.

[77] The respondents urge the court to take a more results-oriented approach to the events of February 8, 2023 and the election of the newly elected Board: an approach that focuses on the outcome of the events that demonstrate the wishes of the majority. The respondents argue that this approach is critical and required in the circumstances of this case. The respondents submit that this approach is not only necessary because of the unique characteristics of the organization but also because of the Indigenous right to self-determination, the right to make decisions outside of the court system, and therefore, outside the confines and strict application of the organizational by-laws in question.

[78] The evidence before me and not disputed by the respondents, demonstrates that:

1. a new board of directors was elected February 8, 2023;
2. the February 8, 2023, meeting was not called for the purpose of electing a new board of directors;
3. the newly elected board of directors ratified membership applications;
4. the February 8, 2023 meeting was not called for the purpose of board ratification of membership applications;
5. Mr. Vanderklis was not a voting member of the NRNC when he was elected to the Board on February 8, 2023; and
6. One could not differentiate between voting members and others when stating that a motion received “tremendous” support.

[79] Each of these facts makes it demonstrably clear that the election of the newly elected Board and ratification of memberships on February 8, 2023 was not done in accordance with the by-laws of the organization, including ss. 22, 39, 45-48, 54 and 90, and s. 55 of the Act.

[80] The circumstances of this case are similar to the factual circumstances before the court in Ontario Korean Businessmen’s Assoc. v. Seung Jin Oh, 2011 ONSC 6991. In that case, association members took control of an annual general meeting and voted in a new board. The court concluded that the vote was invalid and a nullity. The court also found that the gross violations of the by-laws and rules of the association should not be rewarded; corporate governance would dissolve into the law of the jungle were a court to permit such conduct: Koreen Businessmen’s Association, at para. 45.

[81] I am similarly guided by the decisions of the courts in Vietnamese Association, Toronto v. Duong, 2023 ONSC 6203; Warriors of the Cross Asian Church v. Masih (2007), 87 O.R. (3d) 169 (S.C.); and Deol v. Grewal.

[82] The governance decisions made during the February 2023 meeting were not minor technical violations of the By-Laws. The governance violations strike at the heart of the electoral process. In the circumstances, it is impossible to determine whether the election of the newly elected Board was an act of the voting members of the NRNC.

[83] On account of the cumulative impact of the governance irregularities, I find that the newly elected Board was improperly constituted. As the newly elected Board was improperly constituted, it had no authority to ratify membership applications. Consequently, any membership applications ratified by the newly elected Board on February 8, 2023 are invalid.

iv. Did the NRNC subsequently cure any irregularity in the February 8, 2023 electoral process?

[84] A representative of the OFIFC attended the February 2023 meeting. On February 21, 2023, the OFIFC wrote to the Board to advise that the organization’s standing with the federation and its funding was at risk. The OFIFC encouraged the NRNC to call a special meeting of the members to fill board vacancies and ensure all nine board positions were filled.

[85] On April 26, 2023, counsel for the applicants wrote to the Board to identify concerns with the February 2023 meeting, to assert the applicants remain directors in good standing with the NRNC, and to demand that a special members’ meeting be convened immediately to fill the board vacancies.

[86] On April 27, 2023, the OFIFC again wrote to the Board, having completed a management review report. The OFIFC identified significant risks in the organization, including an absence of board governance. The OFIFC encouraged the NRNC to take remedial action, including the immediate call of a special members’ meeting to fill board vacancies, failing which funding would be suspended.

[87] On May 29, 2023, the NRNC provided written notice to the applicants that their membership with the NRNC was terminated effective immediately. The applicants assert that the termination was a retaliatory response to counsel’s April 26, 2023 letter. By letter dated June 7, 2023, the applicants, through their counsel, confirmed their intention to appeal the termination.

July 13, 2023 Special Members’ Meeting

[88] On June 2, 2023, the NRNC provided notice of a special members' meeting to be held on July 13, 2023. The respondents submit that the February 8, 2023, members list was used, and all voting members of the NRNC as of February 8, 2023, including the applicants, received notice of the July 13, 2023, meeting.

[89] As of February 8, 2023, the NRNC had 37 members, including the applicants. The members list utilized for the July 13, 2023 meeting contained 45 names, not including the applicants. Approximately ten individuals named on the February 8, 2023 list do not appear on the July 13, 2023 list.

[90] While Mr. Vanderklis asserts that instructions were provided to the secretary of the Board to notify the applicants of the July 13, 2023 meeting, there is no evidence on the record to substantiate that notice was delivered to the applicants. In fact, on June 2, 2023, Ms. Buck instructed the secretary of the Board that the applicants were not to receive notice of the July 13, 2023 meeting unless they succeed at their appeal, and if an appeal is received, an invitation would be extended.

[91] The respondents did not address the differences between the February 8, 2023 and July 13, 2023 member lists in their submissions. There are no membership applications or board resolutions in the evidentiary record to explain the additional names on the July 13, 2023 list.

[92] I have already concluded that membership applications ratified by the improperly constituted board of directors on February 8, 2023 are invalid. Therefore, only those members of the NRNC as of February 8, 2023, including the applicants, were entitled to receive notice and to vote at the July 13, 2023 special members’ meeting.

[93] On July 13, 2023, the board of directors elected on February 8, 2023 resigned. Minutes of the July 13, 2023 special members’ meeting record that the members of the NRNC at that meeting elected a new board of directors. Approximately 14 individuals who were members as of February 8, 2023 were present at the July 13, 2023 meeting and were entitled to vote. However, there is no evidence in the record before me that verifies only members entitled to vote did so, specifically with respect to the election of a new board.

[94] Furthermore, with respect to the termination of the applicants’ memberships, s. 51 of the Act provides that a member may be disciplined or terminated in a good faith, fair, and reasonable manner. The member must be given at least 15 days' notice of the termination with reasons and be permitted to respond to the proposed termination/discipline not less than five days before the discipline or termination of their membership.

[95] Sections 27-30 of the By-Laws speak directly to the Board’s authority to revoke/terminate membership. The By-Laws require that a member be given the opportunity to be heard no less than five days before the disciplinary action or termination becomes effective.

[96] Regardless of whether the act of termination was retaliatory, it was an act undertaken by a Board that was not properly constituted, had no authority to terminate the applicants’ memberships, and was conducted in a manner that violated the applicants’ right to be heard as required by the By-Laws and provisions of the Act.

[97] For the foregoing reasons, I find that the NRNC and its representatives continued to govern the organization in a manner that failed to comply with the organizational by-laws and provisions of the Act. This manner of governance continued to strike at the heart of the electoral process. The NRNC and its representatives failed to cure preexisting governance irregularities.

October 12, 2023 Annual General Meeting

[98] An AGM was scheduled for October 12, 2023. The AGM occurred, and a new board of directors was elected: Mr. Vanderklis, president; Roxanne Buck, vice president; Rhonda-Lynn Heafy, secretary; Elaina Jones, treasurer; Fernanda Luna, associate member; Brine Macaulay, director; Sandy Crawford, director; and Jennifer Heculuck, director.

[99] Notice of the October 12, 2023 AGM (the “2023 AGM”) to the members is not in the record before me. The NRNC 2023 membership list, updated October 10, 2023, contains a list of 30 names, nine of which were members of the organization as of February 8, 2023. Again, the applicants are not included on the membership list.

[100] Mr. Vanderklis is included on the list, notwithstanding his evidence that he resigned as a member in July 2023. It is not clear on the evidence before me if or when a new membership application was submitted by him and ratified by the Board.

[101] The NRNC took precautionary steps at the 2023 AGM to appoint Mr. Sean Longboat, chief programs officer of the OFIFC, and Michael Liddiard, legal counsel, as scrutineers of the meeting. They were also appointed to oversee the NRNC governance process. This is a sign of the NRNC’s commitment to improved governance procedures. However, there remain several gaps in the evidence that inhibit my ability to verify who is a member of good standing of the NRNC and determine whether those individuals are eligible to vote on critical issues concerning organization leadership.

[102] In addition, while the respondents argue that an apology was delivered to the applicants for the improper termination of their memberships, there is no written apology in the record or evidence of the steps taken by the NRNC to rectify the improper termination of the applicants’ memberships with the NRNC. On the evidence before me, I am not persuaded that the actions of the NRNC have cured the effects of events from February 8, 2023.

Conclusion

[103] While acknowledging the respondents’ assertion regarding Indigenous peoples’ right to self-determination, it is essential to understand that they have not challenged this court's jurisdiction to determine the issues in the dispute.

[104] The respondents have not pursued any substantive argument supported by legal authorities that allows me to conclude that the Indigenous right to self-determination ousts the binding effect and compliance with the internal governing documents of the NRNC and the provisions of the Act.

[105] Moreover, I am not convinced that compliance with the By-Laws, rules of the NRNC, and provisions of the Act is contrary to Indigenous peoples’ right of self-determination. The provisions of the Act, the By-Laws, and the rules of the NRNC are intended to incorporate principles of good governance, natural justice, and procedural fairness. These principles provide an orderly manner to facilitate an opportunity for voices to be heard and recognized. These principles enhance the ability of organizational leaders to hear and consider the will of their members.

[106] The respondents proclaim that their objective in effecting change in the NRNC leadership was to ensure that the voices of its members and the community it serves could be heard. This is an objective that is enhanced and preserved through the proper exercise of good governance.

[107] The fundamental principles of good governance, natural justice, and procedural fairness are not an impediment to Indigenous peoples’ right of self-determination. Effective and inclusive governance that preserves the right to be heard is fundamental to the right of self-determination.

[108] Discontent and concerns with leadership are bound to arise in any organization. The appropriate way to address these concerns is by utilizing channels available in the organization’s by-laws and policies and/or a process that reflects the fundamental tenets of good governance.

[109] In this case, the NRNC had a comprehensive complaint policy to address the respondents’ concerns. The respondents did not utilize it. Notwithstanding this fact, there is some evidence before the court which shows that the applicants were aware of some of the concerns raised by the respondents, and they were taking steps to address those concerns. Efforts to address the concerns may not have moved at a pace acceptable to the respondents.

[110] This said, change, particularly within a not-for-profit volunteer organization, takes time and cannot be expected overnight. It is a process that often requires open and respectful communication, care, and thoughtful consideration of different viewpoints. It requires the suspension of judgment and preconceived ideas to allow a deeper understanding and awareness of the issues that are driving the call for change. This approach requires patience and paves the way to a fully informed decision that can be made in the best interests of the organization and the community it serves.

Remedy and Order

[111] Sections 31, 61, and 191 of the Act provide the court with broad discretionary authority to make an order to ensure compliance with the provisions of the Act and/or the internal laws of an organization. Whether there has been procedural unfairness and violations of the Act and an organization’s by-laws, as in this case, broad and rigorous remedies may be warranted: Vietnamese Association, Toronto v. Duong, 2023 ONSC 6203, at paras. 8 and 12; Noori (Re), at paras. 23-24; Ontario Korean Businessmen’s Assoc. v. Seung Jin Oh, 2011 ONSC 6991, at para. 45; and Singh v. Sandhu, 2013 ONSC 3230, at para. 116.

[112] With this said, while I am satisfied that an exercise of judicial discretion as requested by the applicants is appropriate, I am mindful that declaring the October 2023 Board invalid may cause more harm to the NRNC than good.

[113] It has been almost one year since the October 2023 Board was elected. It has been over a year since the applicants have been involved with the NRNC in any leadership or governance capacity. Given the considerable time during which the applicants have not been involved with the NRNC, they are likely not apprised and have no intimate knowledge of the work conducted and decisions made by the Board during the last 19 months. Continuity of information and institutional knowledge of board work is critical to good governance. This is often why an organization staggers the terms of its directors.

[114] Therefore, I decline to interfere with the election of the October 2023 Board to reinstall the applicants as the sole directors of the NRNC.

[115] Additional remedies requested by the applicants include a declaration that all acts taken by the Board following the February 2023 meeting are invalid and of no force or effect and an order invalidating all acts taken by the respondents purportedly acting as the Board since the February 2023 meeting. The remedies requested are broad and not confined to governance decisions of the Board. I decline to grant these particular remedies in light of the potential impact they may have on any agreement or contract entered into with employees, stakeholders of, and/or third parties engaged by the NRNC over the last 19 months.

[116] For the foregoing reasons, it is hereby declared and ordered that:

1. The removal of the applicants as directors of the Board at the special members’ meeting of the NRNC held on February 8, 2023 was invalid and in violation of the Act and the By-Laws of the NRNC.
2. The election of the respondents Roxanne Buck, Fallon Farinacci, Audrey Clark, Elaina Jones, Brian MacAulay and Doug Paget as directors and officers, as applicable of the NRNC at the special members’ meeting of the NRNC held February 8, 2023 was invalid and in violation of the Act and the By-Laws of the NRNC.
3. The appointment of the respondent Sean Vanderklis as a director of the Board at the February 8, 2023 special members’ meeting was invalid and a violation of the Act and the By-Laws of the NRNC.
4. The ratification of memberships during the February 8, 2023, special members’ meeting was invalid and a violation of the By-laws of the NRNC.
5. The termination of the applicants’ memberships with the NRNC is invalid and a nullity.
6. The applicants’ memberships with the NRNC shall be immediately reinstated, conditional upon the payment of the required dues for the 2023/2024 NRNC fiscal year.
7. The board of directors elected at the October 2023 Annual General Meeting shall continue to manage the NRNC's business and affairs in accordance with its By-Laws until the later of the NRNC 2024 AGM or a special members’ meeting.
8. If the NRNC has already convened and held the 2024 AGM, it shall convene a special members' meeting within 90 days.
9. In either case, the AGM or special members’ meeting shall be subject to the following directions: a. The NRNC shall provide notice of the meeting in the usual course as required by its By-Laws; b. The members of the NRNC as of the February 8, 2023 special members’ meeting, other than those who have resigned their memberships, died, or have been terminated in accordance with the By-Laws and the provisions of the Act, shall be entitled to notice of the meeting, may attend and may vote at the meeting. c. Individuals who were not members of the NRNC or are no longer members of the NRNC as a result of this decision and who wish to apply for membership before the AGM or special members’ meeting must do so within 30 days. The October 2023 Board shall process and ratify eligible memberships within the next 45 days in accordance with the NRNC's By-Laws and policies. Any approved members shall be entitled to attend and vote at the meeting. d. Shannon Kitchens, subject to her consent, or such other individual as agreed by the October 2023 Board, shall be appointed Chair of the meeting. If Shannon Kitchens declines the appointment and the Board cannot agree on an independent third party, the parties may request a conference before me for an order appointing an independent chairperson. e. Any individual disrupting the AGM proceedings may be peacefully removed from the meeting in the sole discretion of the Chair and a majority of the October 2023 Board. f. The applicants shall be reinstalled to the newly elected Board at the AGM or special members’ meeting, resulting in five vacancies that must be filled. The newly elected Board will then elect the officers of the board of directors in accordance with the By-Laws of the NRNC and/or provisions of the Act.
10. The NRNC shall, no later than June 30, 2025, engage an independent third party to conduct a review and make recommendations regarding revisions to the organizational by-laws to ensure compliance with the provisions of the Act.
11. The NRNC shall engage an independent third party to conduct governance training for the board of directors and prepare an onboarding orientation package for all newly elected future directors no later than June 30, 2025.

Costs

[117] The applicants have requested that I consider an award of costs against the respondents. The applicants have submitted a bill of costs for my consideration. I advised counsel that I would consider the issue of costs after the release of my reasons.

[118] The parties are encouraged to resolve the issue of costs of the application between themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than three pages in length, in 12-point font, with margins set at one inch, according to the following timetable:

a. The applicants are to serve and file a bill of costs and submissions by October 31, 2024; b. The respondents are to serve and file a bill of costs and submissions no later than November 15, 2024; c. The applicants are to serve and file reply submissions, if any, no later than November 20, 2024.

[119] A copy of the written submissions shall be provided by email to the judicial assistants at st.catharines.scjja@ontario.ca in addition to filing same with the court.

[120] If no submissions or any written agreed extension are received by the court by November 20, 2024, the matter of costs will be deemed to have been settled.

L. E. Standryk J.

Date released: September 20, 2024