Court of Appeal for Ontario

Date: 2006-11-27 Docket: C44998

Re: Rexdale Singh Sabha Religious Centre and Akal Funeral Home (Applicants/Appellants) – and – Harlaikjinder Chattha, Narinder Singh, Surjit Singh Gill, Ranjit Hans, Major Singh, Sukdev Singh Randhawa and Hansra Enterprises Inc. c.o.b. as Sanjh Savera Publishing (Respondents/Respondents in Appeal)

And Re: Harlaikjinder Chattha, Narinder Singh, Surjit Singh Gill, Ranjit Hans, Major Singh and Sukhdev Singh Randhawa (Applicants/Respondents in Appeal) – and – Rexdale Singh Sabha Religious Centre, Sikh Spiritual Centre Toronto and Akal Funeral Home (Respondents/Appellants)

Before: Labrosse, Doherty and Blair JJ.A.

Counsel: Alan Lenczner and Dena Varah for the appellants Neil M. Abramson and Linda Godel for the respondents

Heard & Released Orally: November 23, 2006

On appeal from the order of Justice Francine E. Van Melle of the Superior Court of Justice, dated January 24, 2006.

Endorsement

[1] This is an appeal from the decision of Van Melle J., which granted the respondents the relief they sought by fixing the membership of three charitable corporations and requiring a meeting to be convened by the existing directors of these corporations within 30 days for the purpose of electing new directors by means of a fair vote.

[2] John L. Finnigan appeared for the new Board of Directors elected on March 16, 2006, pursuant to the order of the application judge. He took no position on the merit of the appeal.

[3] The Corporations Act R.S.O. 1990, c. C.38 provides that upon incorporation, each applicant becomes a director and member of the corporation. The Act provides that persons may be admitted to membership thereafter by resolution of the Board of Directors.

[4] No proper procedure was ever taken to change the members of these corporations in accordance with the Act. There was a total failure to comply with the Act. We cannot agree with the application judge’s conclusion that four of the five directors of Rexdale can be taken to have approved the creation of the list of the members.

[5] It remains that the proper directors and members of the three corporations are the applicants for the letters patent of each corporation.

[6] The Act also provides that one-tenth of the members may request the directors to call a meeting of a corporation. Mr. Lenczner, on behalf of the appellants, is content that we by-pass this requirement and order a meeting to be called and fix a date for the meeting of the members of each corporation as this court is entitled to do under s. 297 of the Act.

[7] It follows that the appeal is allowed and an order is made declaring that the directors and members of each corporation are the original applicants. We order that the meetings be held within 30 days of this date.

[8] We make no order as to costs.

"J.M. Labrosse J.A." "Doherty J.A." "R.A. Blair J.A."