Court of Appeal for Ontario

Date: 2018-04-12 Docket: C64622

Judges: MacFarland, LaForme and Epstein JJ.A.

Parties

Between

In the Matter of an Application Under Section 253 of the Canada Not-For-Profit Corporations Act, S.C. 2009, c. 23

And in the Matter of Rules 14.05(2) and 14.05(3) of the Rules of Civil Procedure

And in the Matter of the Eligibility of Muhammad Amir-Afzal Watto to be Nominated for Election as a Director of the Immigration Consultants of Canada Regulatory Council

Muhammad Amir-Afzal Watto Applicant (Appellant)

and

Immigration Consultants of Canada Regulatory Council Respondent (Respondent)

and

Attorney General of Ontario Intervenor

Counsel

William J. Macintosh, for the appellant

Natalie M. Leon, for the respondent

Hearing

Heard and released orally: April 12, 2018

On appeal from: the order of Justice James F. Diamond of the Superior Court of Justice, dated October 30, 2017, with reasons reported at 2017 ONSC 6440.

Reasons for Decision

[1] The appellant is a member of the respondent not-for-profit corporation. In 2013, the appellant unsuccessfully campaigned to be elected to the Board of Directors of the respondent. Statements the appellant made during his campaign have spawned a number of legal proceedings between the appellant and respondent. Effective May 22, 2014 the respondent amended bylaw 2016-1 (the "Bylaw") to provide that no member involved in litigation with the Board would be eligible for nomination, election or appointment to the Board.

[2] The appellant has challenged the Bylaw in a number of ways, the most recent being this application under s. 253 of the Canada Not-For-Profit Corporations Act, S.C. 2009 c. 23, for a declaration that the Bylaw is oppressive, unfairly prejudicial, and unfairly disregards his interests as a member of the respondent.

[3] On October 24, 2017, the application judge considered submissions from counsel, including for the Attorney General of Ontario, on the applicability of the Limitations Act, 2002, S.O. 2002, c. 24 to the appellant's application. He proposed to bifurcate the proceeding and adjourn the hearing to November 2, 2017 to hear argument on the merits, if necessary.

[4] On October 30, 2017, the application judge delivered detailed reasons dismissing the application. He held the Limitations Act applied and went on to find that the application was brought out of time.

[5] On appeal, the appellant argues the application judge erred in concluding that he did not have the power to postpone the upcoming election for the respondent's Board of Directors. The appellant claims this order would have given him time to adduce further evidence on the application. The appellant has not filed transcripts of the proceeding and instead relies on an affidavit he swore on January 18, 2018. The affidavit is not evidence that the application judge refused to make such an order. Moreover, the application judge notes in his reasons that the appellant was content to proceed with his argument on the record before the court.

[6] We see no error or unfairness in the application judge's decision to proceed with the application and determine the limitations issue on the basis of the record before him.

[7] The appellant also requests permission to argue, for the first time before this court, that the Bylaw had retrospective effect. This argument goes to the merits of the appellant's claim in the application. Our determination of the first issue – that the application was properly statute-barred – renders any argument on the merits irrelevant.

[8] We have determined that we are not going to permit this new issue raised this morning to be argued before the court. It is not, in our view, in the interest of justice to do so. And so the appeal will proceed simply on the issues already raised in the materials and of which counsel for the respondent has had notice.

[9] The appeal is therefore dismissed. Costs are awarded to the respondent on a partial indemnity basis fixed in the amount of $9,636.45 inclusive of disbursements and HST.

"J. MacFarland J.A."

"H.S. LaForme J.A."

"Gloria Epstein J.A."