Court of Appeal for Ontario

ONCA 401

DATE: 20120613

DOCKET: C54645

Rosenberg, MacPherson and Cronk JJ.A.

BETWEEN

Sikh Cultural Society of Metropolitan Windsor, Mohinder Singh Kandola, Gurbax Singh Wahid, Harjinder Singh Kandola, Kulbir Kaur Bhola, Balwinder Kaur Mann, Gian Singh Chandan and Pritam Kaur Chandan

Applicants (Respondents on Appeal)

and

Sukhdev Singh Kooner, Avtar Singh Kooner, Gurfateh Singh Kooner, Manjinder Singh Kooner, Inderpal Singh Dhanoa, Gurjit Singh Gill, Ravinder Singh (Mavi), Amarjit Singh Nijjar, Jatinder Singh Rai, Harpreet Singh Labana, Gurmeet Singh, Satnam Singh Matharu, Lehmber Singh Pahl, Surinder Kaur Matharu, Manjinder Kaur Kooner, Rajinder Kaur Kooner, Kamaljit Singh Sidhu, Sukhpreet Kaur Sidhu, Gurbaksh Singh Sidhu, Sattya Kaur Bath, Baldev Singh Brar, Rajveer Kaur Nijjar, Surjit Singh Riyat, Daljit Singh Sidhu, Govinder Singh Sarao and Giacomo Ramieri

Respondents (Appellants)

Matthew Wilton and Gregory Graham, for the appellants

Edwin G. Upenieks and Kiran Gill, for the respondents

Heard: June 6, 2012

On appeal from the judgment of Justice Mary-Jo Nolan of the Superior Court of Justice, dated November 1, 2011.

ENDORSEMENT

[1] The appellants raise only two issues on this appeal from the judgment of Nolan J. First, the appellants submit that the application judge erred in her interpretation of "bona fide member". Second, they submit that she erred in upholding the August 2010 freezing order. It is unnecessary to set out the factual background. The application judge has fully set out the background of this unfortunate dispute, including the history of the litigation between the two factions. Her reasons can be found at 2011 ONSC 5513. For the following reasons the appeal is dismissed.

Bona Fide Member

[2] This issue turns on the interpretation of Articles II and III of the Constitution of the Sikh Cultural Society of Metropolitan Windsor and, in particular, on Article III(1), which sets out the voting privileges of members:

Right to vote at all meetings/elections of the Society provided he/she is a bona fide member of the Society. A bona fide [member] is a member who has paid his/her annual membership dues for the last two years.

[3] In accepting that the list of 301 bona fide voting members (the "301 list") was valid, the application judge implicitly accepted that a member could be a bona fide member if he or she had paid dues for the last two calendar years. The appellants submit that the application judge erred in her interpretation and that the phrase "paid his/her annual membership dues for the last two years" means that the member must have been a member for the past 24 months. They say that a contextual approach leads to this interpretation. That context includes the fact that this is a religious organization and it is only by being in the organization for two years that the member demonstrates a sufficient commitment to the values and objectives of the organization to be eligible to vote and be on the Executive Committee. In effect, the appellants argue for a type of probationary membership.

[4] We do not accept this submission. In our view, neither the plain wording of the Constitution nor the context requires such an interpretation. To the contrary, the objectives set out in the Constitution are entirely consistent with the principle that the Society welcomed new members and did not intend to discriminate between new members and members who had been members for longer times on the basis suggested by the appellants. The only commitment set out in the Constitution, to distinguish bona fide members from other members, is the financial commitment of having paid annual membership dues for the last two years.

The Freezing Order

[5] A short review of the chronology is necessary to understand the purpose of the freezing order and why we agree with the trial judge's disposition of this issue. In December 2009, seven members of the Society were acclaimed as the new Executive Committee (the "NEC"). Notwithstanding that the election had been uncontested, the former Executive Committee (the "FEC") failed to hand over the books, records, keys, and other official documents of the Society to the NEC. In December, other disputes began to emerge. In particular, the FEC purported to expel two of the recently elected members of the NEC. The resolution to expel the two members was subsequently quashed by Rogin J. on June 11, 2010. In the meantime in January 2010, the NEC began an application seeking, among other things, an order requiring the FEC to immediately transfer control of the Society to the NEC. By the end of February 2010, most of the records and other documents had been turned over to the NEC.

[6] However, beginning in January persons believed to be supporters of the appellants disrupted services and threatened members of the NEC. One of the members of the NEC was ambushed by assailants and bullets were fired into the living room of another NEC member. As a result of these incidents, the NEC installed surveillance cameras in various areas of the Society's premises.

[7] The appellants then took steps to organize a non-confidence motion. There were irregularities in the process for this non-confidence motion, centring in part on the membership list. In particular, rather than using the 301 list that had been approved by the NEC, the appellants used their own membership list, referred to in the proceedings as the 248 list. The non-confidence motion was held August 21, 2010 and succeeded. At this same meeting, a new Executive Committee was purportedly elected. The members of this 2010 new Executive Committee and their supporters entered the Gurdwara on August 22 and purported to take control of the Society. They broke locks on the Society's office and dismantled the security system.

[8] After learning of the takeover, the NEC passed a resolution on August 22, 2010 freezing memberships in the Society. This resolution forms the basis for the appellants' other ground of appeal. The operative part reads as follows:

Executive Committee has decided to freeze the membership of Sikh Cultural Society of Metropolitan Windsor with effect from August 21, 2010 until further notice and/or until the matter of forcible seizure, non-confidence motion and other related issues, is finally decided in Court as per constitution of SCSMW. All the congregation will be informed as soon as possible that after August 21, 2010 until further notice, no new membership applications and/or membership fee/dues will be accepted and donations paid will not be counted towards membership fees/dues.

[9] Following the takeover, the respondents brought a second application. On August 31, 2010, Quinn J. declared that the non-confidence motion was void and of no effect. He also granted an interim injunction that restrained the appellants from going within 1,000 metres of the Society building and ordered them to give to the respondents immediate and unfettered access to and possession of the premises, including all business and financial records, locks, keys, access codes, cameras, wiring, DVRs, electronic records relating to the security cameras, all other electronic records belonging to the Society, collection boxes, ballots and voting records. The balance of this second application was adjourned to October 15, 2010, to allow the respondents to file responding material.

[10] On October 15, 2010, Thomas J. ordered that the injunction continue with some amendments that permitted the appellants to attend the Gurdwara on Sundays to attend services. On December 6, 2010, Thomas J. continued the injunction essentially on the same terms and adjourned the hearing of the application to March 2011. Nolan J. heard the application for several days in March and June 2011 and then reserved her decision. While the decision was under reserve, the application judge requested further written submissions. All this occurred against the backdrop that the Constitution required a further election in December 2011. The application judge delivered her reasons for judgment on October 31, 2011.

[11] The appellants have never moved to set aside the freezing order. They nevertheless argue that the validity of that order was before the application judge. That appears to be the case because the application judge dealt with the freezing order and upheld it. She wrote as follows:

The issue of membership has also been complicated by the resolution of the NEC on August 22, 2010 to freeze memberships and to not permit persons making donations to attribute those funds to their membership obligations. I find that this resolution was a validly passed resolution in accordance with the Constitution and the Corporations Act. As well, there is no application before the court which seeks to set aside that resolution on the grounds that it is invalid or ultra vires the powers of the Executive Committee. Even if there was such an application, given the turmoil at the Gurdwara between various factions, there were reasonable grounds on which a responsible Executive Committee could make such a decision.

[12] In argument before us, the appellants did not take the position that the NEC did not have the power to make the freezing order. Rather, they submit that once Quinn J. made his order on August 31, 2010, there was no further need for the freezing order and that its effect was anti-democratic because it froze out any new members from taking part in the 2011 election and could interfere with the voting in the 2013 election. Further, any other matters, such as a new non-confidence motion, would be based on the frozen membership.

[13] We agree with the application judge. The NEC had the power to make the freezing order and it was justified at the time it was made. As indicated, the appellants have never moved to set aside the order. By the time the application judge came to deal with the many issues involved in the application, the 2011 election was on the horizon. It was eminently sensible to leave matters as they were. The freezing order, and the injunction, had restored calm to the Society. There is no basis for interfering with the application judge's decision.

[14] That said, unless the appellants now seek leave to appeal from this court's disposition of this appeal, it seems to us that by its own terms the freezing order is now spent. The "matter of forcible seizure, non-confidence motion and other related issues" referred to in the freezing order has now been dealt with by the application judge and by this court. In view of our decision upholding the application judge's decision as to the interpretation of bona fide members, there remains ample time for new members to now become bona fide members before the December 2013 election.

[15] Accordingly, the appeal is dismissed with costs fixed at the agreed sum of $35,000, inclusive of disbursements and all applicable taxes.

Signed: "M. Rosenberg J.A."

"J. C. MacPherson J.A."

"E. A. Cronk J.A."

Released: "MR" JUNE 13, 2012