Sri Guru Nanak Sikh Centre Brampton v. Dhadda et al., 2012 ONSC 716

BRAMPTON COURT FILE NO.: CV-10-1488-00

DATE: 20120203

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SRI GURU NANAK SIKH CENTRE BRAMPTON

Plaintiff

Robert J. van Kessel and Sahar Cadili for the Plaintiff/Defendants by Counterclaim

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HARJEET SINGH DHADDA, SURPINDER SINGH DHALIWAL, BHUPINDER SINGH DHILLON, BALJIT SINGH DHILLON, KEHAR SINGH DHILLON, KEHAR SINGH GILL, PARMAJIT SINGH GILL, GURMEET SINGH GREWAL, RAJINDER SINGH KALIRAI, TARLOCHAN SINGH MANJ, JASVIR SINGH PADDA, RAM SINGH RANJI, RAJINDER SINGH SANDHU, SURINDER SINGH, SUKHWANT SINGH GILL, and RANJIT SINGH AULAKH

Sidney Klotz for the Defendants/Plaintiffs by Counterclaim

Defendants

• and -

HARJEET SINGH DHADDA, SURPINDER SINGH DHALIWAL, BHUPINDER SINGH DHILLON, BALJIT SINGH DHILLON, KEHAR SINGH DHILLON, KEHAR SINGH GILL, PARMAJIT SINGH GILL, GURMEET SINGH GREWAL, RAJINDER SINGH KALIRAI, TARLOCHAN SINGH MANJ, JASVIR SINGH PADDA, RAM SINGH RANJI, RAJINDER SINGH SANDHU, SURINDER SINGH, SUKHWANT SINGH GILL, and RANJIT SINGH AULAKH

Plaintiffs by Counterclaim

• and -

SRI GURU NANK SIKH CENTRE BRAMPTON, RANJIT SINGH MAHAL, SARWAN SINGH GILL, LACHHMAN SINGH SANDHU, SURJIT SINGH ATWAL, SULINDER SINGH, JAGJIT SINGH, DAVINDER SINGH CHHOKAR, AMARJIT SINGH MANN, HARVINDERPAL SINGH DHALIWAL, SUHKWANT SINGH RAI, TEHAL SINGH, and SARWAN SINGH SANDHU

Defendants by Counterclaim

DECISION

D.L. CORBETT J.

For the authorization, it says we have to follow the tradition. This is for anybody who disturbs the Centre’s affairs to temporarily give the suspension notice…. The tradition is that this by-law is actually tradition and what’s written in there. Tradition, without tradition you cannot – the tradition gives me the authority to control… to stop that thing if someone is disturbing the Centre…. These things – that you do not need the resolution. These suspensions have to be done at the spur of the moment…. Resolution can be in the mind also only doesn’t have to be in the actual resolution as such.[^1]

[1] It is not open to anyone involved in the plaintiff to dispense with the law because they think they are wise and know what is best. “Tradition” is not a basis for ignoring the law.

[2] The plaintiff says that the defendants, without legal justification, seized control of two Sikh temples. There was violence. Police were called. Now the plaintiff, the corporation that owns the temples, seeks to restrain the defendants from their illegal behaviour. An interim injunction has been in place from the outset. Order has now been restored. Order must now be maintained.

[3] The defendants resist the injunction. They say the plaintiff is now run by a small clique. They say that 1049[^2] members have been disenfranchised illegally. The defendants have been trying to put matters right. They say the plaintiff has mismanaged its money. The defendants say that donations are being stolen and something must be done.

[4] The plaintiff has a long sad history of conflict. And this just has to stop. It is an embarrassment: the plaintiff is an important religious, social and cultural institution. The conflicts have been riotous, often petty, and are concerned with issues of control, and not the high-minded principles cited as justifications for this lawless behaviour.

[5] Snowie J. stated, roughly ten years ago: a “more business-like approach” to managing the affairs of the plaintiff would be in everyone’s best interests. Methinks Her Honour spoke too softly. No doubt she was moved by the fact that this is a religious and charitable institution, and the members and directors are unpaid volunteers. Apparently her message did not get through to everyone.

[6] The core issues on this motion can be disposed of briefly.

[7] There is no merit in the defendants’ position on the membership issue. Partial summary judgment will issue declaring on a final basis that there are 38 members of the plaintiff, entitled to vote at members’ meetings.

[8] The defendants’ takeover of the plaintiff was illegal. This must not happen again. An interlocutory injunction will issue, as sought by the plaintiff, to remain in place until the end of the trial in this case, restraining the defendants from this conduct.

[9] The defendants have not satisfied me that an interlocutory order should be made for independent oversight of the plaintiff’s financial affairs. I do not decide whether there has been financial mismanagement: I did not have a complete record on that issue. On the record I do have, I am not satisfied there has been dishonesty or financial mismanagement. I consider it more likely that these allegations are made to interfere with the lawful management by the current board than in response to any substantial misfeasance or neglect.

[10] Further, I view the financial issues as distinct from the membership and control issues. The defendants’ efforts to tie these issues together does not justify the defendants’ illegal usurpation of the board of directors.

[11] Some of the defendants have engaged in gross misconduct in the conduct of this litigation. For them apparently, the ends justify the means. It is offensive that some defendants should perjure themselves so blatantly in their evidence. The ends do not justify the means. Through their misconduct, these defendants have, in the end, only discredited themselves.

[12] Litigation is not some childish game. It is serious process of conflict resolution. It is not acceptable to lie under oath or to falsify documents to try to win a lawsuit for control of a temple.

[13] I understand that these are emotional issues for the parties. Some of the defendants have played key roles in founding and building the plaintiff. Together with some of the plaintiffs, they have built a wonderful and vibrant institution. But they do not own it. And these defendants’ past good deeds and leadership do not justify their misconduct.

[14] On March 28, 2010, many of the defendants to the counterclaim were purportedly elected as directors of the plaintiff at the Annual General Meeting. The legitimacy of that meeting is challenged by the defendants, plaintiffs by counterclaim. Many of the defendants, plaintiffs by counterclaim, purported to requisition a meeting of the members of the plaintiff. That so-called meeting was held on April 18, 2010. At that purported meeting, the directors elected on March 28, 2010 were purportedly removed and many of the defendants, plaintiffs by counterclaim, were purportedly elected in their place. These new directors then appointed officers, took control of the plaintiff, changed the locks, and took possession of the plaintiff’s corporate records and finances.

[15] These events included violence, police involvement, and considerable local media attention. Whether one characterizes this as a corporate coup d’etat or, to use the plaintiff’s word, as an “invasion,” it was a dramatic and unsettling way in which to conduct the affairs of the plaintiff.

[16] The usurped directors retained counsel on behalf of the plaintiff and brought an urgent injunction motion before the court on April 23, 2010. My handwritten endorsement from that day reads as follows:

This motion was brought on very short notice for an injunction to restore the directors of the plaintiff to possession and control of the plaintiff. These directors were elected at an Annual General Meeting held March 28, 2010.

The respondents purported to requisition a meeting of members of the corporation. At this requisitioned meeting, held April 18, 2010, they purported to elect different directors of the corporation.

Critical to these issues is a determination of the number and identities of the “members” of the corporation.

This was an issue once before at this temple. In 2000, there was protracted litigation over control of the plaintiff, culminating in a trial of an issue before Snowie J. in March 2001. Snowie J. made several findings that are of great assistance in deciding what to do here, and I return to Her Honour’s reasons later.

The well known test for an injunction is set out in the Supreme Court of Canada’s decision in RJR MacDonald:

(1) Is there a serious issue to be tried? (clearly there is here);

(2) Will there be irreparable harm if relief is not granted? (again, clearly so);

(3) Does the balance of convenience favour granting the injunction?

Where the first two branches of the test are satisfied, as they are here, and the balance under (iii) is uncertain, some cases suggest the court should maintain the “status quo”. The trouble with the “status quo” is that it is much in the eye of the beholder. Do I preserve things as they are today? As they were prior to the purported requisitioned meeting? As they were before the Annual General Meeting? Rather than selecting an arbitrary temporal point as a “status quo”, I prefer to exercise discretion on the basis of securing a reasonable state of affairs until justice can be done when this motion is returned to court.

The Annual General Meeting was conducted on the premise that there are 38 members of the plaintiff, entitled to vote. The requisitioned meeting was convened and conducted on the basis that there are 1086 members of the corporation.[^3] This issue is critical to resolution of the injunction motion.

The plaintiff says there are 38 members. Five were the original members and thirteen were added by the end of September 1998, and the balance since that time (reference: reasons of Snowie J., para. 13: “I find that these 18 persons are the only proper members… [prior] to commencement of this litigation”.[^4]

The defendants say that an additional 725 members were admitted and approved by the board of directors on October 28, 2000, and that an additional 344 members were added in 2008.

The litigation before Snowie J. was commenced in 2000. I do not know when in that year.[^5] At issue was the identity of the directors of the corporation.

If the defendants say that the additional members added in 2000 were added before commencement of the litigation before Snowie J., then their position on this point is barred by Snowie J.’s decision. If, on the other hand, they say 725 members were added after commencement of the application before Snowie J., but in October 2000, then this raises two issues of concern:

(1) Which “directors” authorized the 725 members in 2000 – the defendants before Snowie J., or the unsuccessful plaintiffs? The unsuccessful plaintiffs were not directors, and anything they purportedly did as directors was a nullity;

(2) If there was a vast increase in membership, authorized by one side or the other, this surely would have been raised before Snowie J. at the trial before her in March 2001.

The defendants do not provide minutes of meetings or corporate resolutions to document their claim that 725 members were added in 2000. This remains an issue, and my finding today is based solely on the very limited record before me. But the circumstances and timing of adding members in 2000 leads me to doubt that this was authorized by the real directors. And this doubt causes me great concern with the claim that 344 more members were added in 2008.

Thus, on the very limited record before me, I assess the strength of the plaintiffs’ case as greater than that of the defendants.

There is a further point of concern here. The AGM was held on March 28, 2010. The defendants challenge the propriety of that meeting (since it was conducted on the basis of a membership of 38 rather than 1086). They did not take legal action to challenge the results of that meeting. Rather, they purported to hold a fresh meeting based on their tally of the membership. They ignored valid notices under the Trespass to Property Act, held their own meeting, then changed the locks, and tried to seize control of the corporation’s bank account.

The defendants may be right: if they are, then they have a valid basis for grievance. But the proper course was to bring the matter to court, and not to seize physical control of the temple in this fashion. The court simply will not tolerate this sort of lawless behavior. It inflames passions, encourages vigilantism, and can lead to violence. Even people who are right are not entitled to take matters into their own hands.

The injunction shall go, as sought, effective immediately. It is issued on a temporary without prejudice basis pending return of this matter before me on Friday May 7, 2010, at 10:00 a.m. Costs will be addressed that day or as I then direct.

I cannot leave this matter today without expressing my sorrow. The plaintiff is a vibrant and important cultural institution in the Region of Peel, and, indeed, to the Province as a whole. I do not doubt that the individuals on both sides are sincere and really have nothing at heart other than the welfare of the plaintiff and its contribution and significance to the Sikh community, which is such a vibrant feature of life in our city. If a mediated solution might be possible, the court would be very open to facilitate that when the matter comes back to court.

On the motion return date I shall:

(a) Fix a schedule for further return of the motion;

(b) Schedule further steps to ready the matter for return to court;

(c) Determine whether the matter will proceed by motion or trial of an issue;

(d) Consider terms pending return to court;

(e) Any other matters properly raised by counsel.

Note: I am not prepared to restrain the defendants from communicating directly with the plaintiff or its members, officers or directors. If the ability to communicate leads to any further undue conflict, a motion may be brought before me on short notice, or the matter may be addressed on May 7th.

[17] My endorsement from May 7, 2010 reads as follows:

Injunction continued on [the] same terms granted April 23, 2010, on the following additional terms:

1. Counsel shall establish a schedule for exchange of materials, cross-examinations, factums, and a return date before Corbett J. by May 17, 2010, following which they shall schedule a teleconference before Corbett J. no later than May 21, 2010 to fix this schedule. The return date shall be no later than August 31, 2010;

2. Counsel for the respondents having just been retained, any motion respecting non-compliance with the terms of my order of April 23, 2010 shall be brought returnable before me, at 9:30 a.m. any day that I am sitting, but not before May 18, 2010 (except with leave), to give [the] respondents’ counsel time to advise their clients respecting the requirements of my order of April 23rd, and the potential consequences of non-compliance;

3. The respondents shall provide an accounting of all money received by them on behalf of the plaintiff while they were in possession of the plaintiff’s premises. They shall do so by June 7, 2010;

4. The matter shall proceed by way of application unless the court directs the trial of an issue subsequently;

5. The claims for costs shall be addressed as costs of the application or as I may subsequently direct;

6. The claim for punitive damages for trespass shall be dealt with on the return of the application;

7. [The] requirement for [an] undertaking as to damages is waived (for reasons indicated orally at 12:15 p.m.).

[18] The scheduling teleconference took place on June 7, 2010. My endorsement from that day reads as follows:

1. This motion shall be returned before me on Friday September 3, 2010;

2. Para. 5 of my order of May 7th (para. 4 of the endorsement) is set aside; this matter was commenced as an action, not an application;

3. The parties shall agree on a schedule to bring the motion back before me on Sept. 3rd. The deadline for the statement of defence should be part of this agreed schedule. If there are scheduling disagreements, either side may schedule a teleconference with me.

[19] As I advised the parties on May 7th and June 7th, it was important that the injunction motion be completed on September 3rd. The following week I was scheduled with the court’s annual statutory meetings, and the next week I was scheduled to commence a murder trial.

[20] On August 26, 2010, Baltman J. heard a motion respecting the record to be before the court on September 3rd. Baltman J. adjourned the motion as it related to undertakings and refusals to me on September 3rd. Baltman J. dismissed a request from the defendants to bring a witness over from India and to examine Mr. Chhokar as a witness on a pending motion, in respect to the so-called “Golak Scandal”.

[21] The parties appeared on September 3rd, by which time the following issues were being pursued:

(a) The plaintiffs sought to continue the interlocutory injunction until trial;

(b) The plaintiffs sought summary judgment on one factual issue – whether there were 38 members of the plaintiff or 1087 members of the plaintiff as of March 2010;

(c) A counterclaim was commenced by the defendants and others seeking various relief, including appointment of an inspector and monitor for the plaintiff. The defendants sought to obtain these appointments on September 3rd.

[22] Four different counsel have appeared for the defendants during the brief course of these proceedings. Mr. Andrew B. Tulk appeared on short notice on the original return date of April 23, 2010. Mr. S. Dhanja appeared on May 7, 2010, and had just recently been retained. Mr. Neil Abramson appeared on the teleconference of June 7, 2010, then having been recently retained. And finally, Mr. Sidney Klotz was retained at some point over the summer, prior to the cross-examinations, and he argued the matter on behalf of the defendants on September 3, 8 and October 22, 2010.

[23] After addressing preliminary matters, argument proceeded on September 3rd and was not concluded. Argument continued on September 8th. Again it was not completed, and it was put over to October, 2010, when argument was completed.

The Plaintiff

[24] The plaintiff is a not-for-profit corporation, organized without share capital. It was created by Letters Patent in 1996.[^6] There were five incorporators: Davinder Singh Chhokar, Sarwan Singh Gill, Kehar Singh Gill, Ranjit Singh Aulakh and Baldev Singh Brar. Two of these original incorporators are among the current directors of the plaintiff and two are among the defendants. The fifth original incorporator, Mr. Brar, appears not to be involved with the plaintiff any longer.

[25] The original incorporators were the first five members of the plaintiff and the plaintiff’s first board of directors.

[26] The plaintiff owns and operates two gurdwaras in the City of Brampton, one at 99 Glidden Road, and the other at 32 Reagan Drive. It also owns land which it may use one day to construct a third gurdwara. The plaintiff’s gurdwaras are significant religious, social and cultural institutions in Brampton, and, indeed, in Canada.

[27] The rules of the plaintiff are established in its Letters Patent, its Bylaws, and the Corporations Act, which governs its affairs.

[28] As set out in paragraph 4 of the Letters Patent, the goals of the plaintiff are:

(a) to provide and operate a gurdwara (Sikh temple);

(b) to promote and operate a public library containing exclusively Sikh and Punjabi religious works for the benefit and availability of the general public;

(c) to promote and facilitate the preservation of the regular religious and spiritual heritage of the Sikhs by holding religious services, inviting religious high priests, and publishing religious literature;

(d) to preach, promote and advance the spiritual teachings of the Sikh faith, particularly of the Ten Sikh Burus, from Guru Nanak to Guru Gobind Singh as inscribed in the Holy Scriptures of the Sikh “Sur Guru Granth Sahib” by practicing the religious observances, tenets and doctrines associated with that faith; and

(e) to provide religious counseling, community and support services and employment training / job assistance to any needy immigrant or refugee.

[29] Paragraph 5 of the Letters Patent provides:

(a) The Corporation shall be carried on without the purpose of gain for its members and any profits or other accretions to the Corporation shall be used in promoting its objects.

(b) The Corporation shall be subject to the Charities Accounting Act, and the Charitable Gifts Act.

Basic Corporate Governance

[30] On April 1, 1996, the incorporators passed Bylaw #1, which sets out the rules governing the plaintiff’s business and affairs.

(a) Admission of New Members

[31] Paragraph 6 of Bylaw #1 provides for admission of new members to the plaintiff. To become a member, a person must:

(a) have worked as a volunteer or been associated with the plaintiff in the prior two years;

(b) been recommended for membership by two existing members;

(c) been recommended by two existing directors;

(d) be a resident of Brampton;

(e) be at least 18 years old; and

(f) be approved for admission as a member by the board of directors.

(b) Powers of the Board of Directors

[32] Paragraph 7 of Bylaw #1 provides that the directors have the power to manage or supervise the management of the plaintiff unless otherwise specially provided for in any unanimous agreement. There is no unanimous agreement. Thus the directors have sole authority to manage or supervise management of the plaintiff.

[33] Quorum for meetings of the board of directors is a majority of directors.

(c) Removal of Directors

[34] The members may remove a director of the plaintiff, in accordance with Bylaw #1. This may be done:

(a) by ordinary resolution of the members;

(b) at an annual or special meeting of the members of the plaintiff.

Quorum for a meeting at which it is proposed to remove a director is two-thirds of the membership.[^7] Notice of a resolution to remove a director must be given in the notice calling the annual or special meeting. Such a motion is decided by the vote of the majority of members cast at the meeting.

[35] Bylaw #1 does not grant power to a director or an officer to suspend another director. Nor is this power conferred by any statute or the common law.

(d) Powers of Officers

[36] Bylaw #1 provides that the President is charged with general supervision of the plaintiff’s affairs. The Secretary is responsible for giving all notices of meetings to members and directors, and with recording and keeping the minutes of meetings, and is the custodian of the plaintiff’s books and records. The officers are responsible to the board of directors.

[37] The defendants argue in their factum that “[t]he President has jurisdiction to make [the] decision…” to suspend directors of the plaintiff.[^8] No authority is given for this startling proposition.

[38] Paragraph 25 of By-Law #1 provides that the directors may “designate the officers of the Corporation, appoint officers, specify their duties, delegate to them powers to manage the transactions and affairs of the Corporation”. It was not argued that the directors delegated to the President the power to suspend or remove directors. Such an argument would, in any event, be incorrect: the directors cannot delegate to the officers a power that the directors, themselves, do not have. Only the members may remove a director, in the manner described above. The President and the other officers are responsible to the board of directors, not the other way around.

Philosophy of Membership

[39] By-Law #1 was drafted by Rajinder Singh Sandhu. He was asked to do this by Kehar Singh Gill and Ranjit Singh Aulakh because of Mr. Sandhu’s experience drafting bylaws for other charitable corporations. Mr. Sandhu deposed that he “personally drafted the bylaws without assistance from any of the directors”.[^9]

[40] Mr. Sandhu gave the following evidence about the philosophy of membership that was intended in Bylaw #1:

Throughout our initial meetings it was repeatedly stated to be a goal of the new charity that it be open to all persons in the Sikh community to become members and that it be governed in an entirely transparent fashion. We wanted the Sikh community in Brampton to feel a sense of camaraderie and unity through their affiliation with the [plaintiff], which we hoped would grow over time. Therefore, we were all in agreement that the number of members should not be limited in the bylaws. I therefore did not limit the number of members in the bylaws.[^10]

Kehar Singh Gill and Rajinder Singh Aulakh gave similar evidence in their affidavits.[^11]

[41] There is no ambiguity in Bylaw #1, and hence the intentions of the original five incorporators are irrelevant. Mr. Sandhu’s intentions in drafting the document enacted by the original incorporators are similarly irrelevant. Bylaw #1 and the Letters Patent do not restrict membership. However, they do not prevent the membership from subsequently deciding to limit membership by amendment or a new bylaw.

[42] It is possible to run a charitable corporation like the plaintiff with a wide group of people participating in the corporation’s activities, but a small group undertaking its management. It is also possible, of course, to have a wide voting base of members in the corporation. If Mr. Sandhu is suggesting that from the outset it was intended that the membership would reflect the congregation, and that active congregants would become members, then all that can be said is that the original five directors, including the defendants Kehar Singh Gill and Rajinder Singh Aulakh, did not act on this premise for the first five years of the plaintiff’s existence. There is no issue that the total membership of the plaintiff up to September 2000 was 18.

[43] Kehar Singh Gill describes himself as motivated by principles of inclusiveness. He characterizes the current board as working to exclude others from the activities of the plaintiff: “Sarwan Singh Gill has tried to exclude hundreds of people who worship regularly at the gurdwaras who genuinely believe they are members of the [plaintiff].”[^12] That is not a fair description of the conflict in this case. There is no evidence that there are “hundreds” of people who believe they are voting members of the plaintiff. The implication is that the current board is seeking to exclude congregants, who have been actively involved in these temples for years, from worship and the other activities of the temples. There is no evidence of this.

[44] Kehar Singh Gill deposes in his affidavit that “[m]inutes from several meetings of the [plaintiff] reflect that it was constantly a goal of the [plaintiff] to seek to add new members in an effort to raise more funds given the financial troubles suffered by the [plaintiff] over the years”. In the context in which this evidence is provided, it is disingenuous. The minutes do reflect a desire by the board of directors to increase membership in small increments, and this was done. But this does not assist in resolving the central dispute in this case: whether the board set a course to grow the voting membership massively. The minutes of directors and members meetings over the entire history show a marked absence of a “goal” to increase the voting membership in this way. For most of this time Mr. Gill was a director of the plaintiff.

Members and Congregants

[45] The word “member” refers to a person admitted to membership in the plaintiff, entitled to vote in members’ meetings of the plaintiff. The “members” elect the directors of the plaintiff corporation.

[46] “Congregants” is not a term of art. I use it to refer to persons who participate in the life of the plaintiff’s two temples. Many congregants worship and attend events at the two temples owned by the plaintiff. This does not make them “members” of the plaintiff entitled to vote for directors of the plaintiff. As described above, “members” are persons admitted to membership by the board of directors.

[47] I am satisfied that the parties to this proceeding well understand the difference between “congregants” and “members”. I am satisfied that they understand that not all persons who participate actively at the plaintiff’s two temples have been admitted to membership in the plaintiff, entitling them to vote for directors of the plaintiff.

[48] The plaintiff could decide, as a matter of policy, that “active congregants” should be “members”, and that thus the number of persons entitled to vote for directors of the corporation should be large. The plaintiff could also decide, as a matter of policy, that only a small proportion of congregants should be members entitled to vote for directors. From a legal point of view, there is no “right” or “wrong” answer to this question. It is for the plaintiff to decide, in accordance with its rules and the law.

[49] Naturally it is to be expected that these issues could become a matter of discussion within the plaintiff’s two temples, and within the broader Sikh community. To the extent this that happens, it is to be hoped that the distinction between “members of the congregation” and “members of the plaintiff” is borne in mind.

Membership History

[50] The incorporators were the first five members of the plaintiff.

[51] Between April 22, 1996 and September 6, 1998, 13 more members were added, for a total of 18 members.

[52] Four new members were added on February 29, 2004 (total membership 22).

[53] Fourteen new members were added on July 16, 2008 (total membership 36).

[54] Two new members were added on November 2, 2008 (total membership 38).

[55] The plaintiff takes the position that it currently has 38 members. The defendants take the position that 725 additional members were added in October 2000, and a further 344 were added in June 2008.

Selected History of the Plaintiff’s Affairs from 2000 to 2008

The 2000 Action

[56] In September 2000, litigation commenced concerning the identity of the directors and of the members. In the statement of claim issued September 22, 2000, the plaintiffs in the 2000 Action sought a declaration “as to who are the existing and appropriate directors” of the plaintiff and an order for a reference “to determine who is a member of the [plaintiff] and where and how the meeting of members shall be held”.[^13] The plaintiff was a party to the litigation “for the sole purpose of binding the corporation to any order….”[^14]

[57] The nature of the dispute is summarized in the statement of claim:

The Plaintiffs are eight of an original slate of fifteen directors of the [corporation] named in the last three years.

The defendants are the five of the original directors of the [Corporation] named in the last three years (sic).

During 1997, directors for the [Corporation] were appointed and other directors, including all of the defendants resigned from the directorship of the [Corporation]. The Defendants subsequently resiled from the resignations and now claim to remain directors.

The Plaintiffs state and the fact is that the documentation relating to who is and who is not currently directors of the [Corporation] is not clear but that the Plaintiffs are, at present, the sole correct and proper directors of the [Corporation].

The plaintiffs, regardless have from 1997 until June 2000 acted as directors of the [Corporation] and operated the [Corporation] without hindrance by the Defendants.

In June 2000, the defendants, without the approval, authority or knowledge of the plaintiffs, who were and are the true directors of the [Corporation] filed a Notice of Change of Directors with the Ministry of Consumer and C9omemercial relations nominally changing the records of the directors and making themselves directors. The documentation filed removed the Plaintiffs as directors. This step was taken improperly and without legal cause or justification.

Thereafter, in late August, 2000, the defendants, again without authority, changed the bank arrangements for the [Corporation] and removed some monies from the [Corporation] bank accounts transferring them to new bank accounts.

The [Corporation] is an ongoing religious organization and conducts religious service and worship on a daily basis, the main religious services for the [Corporation] occur on Sunday of each week. At that time sizeable donations are collected and transferred to the [Corporation] bank accounts.

Since the dispute over the directors has arisen, the collection of donation funds has been met with discord, riotous behaviour and violence. On numerous occasions, the police have had to become involved, and have been forced into making immediate decisions with respect to the preservation of the funds.[^15]

[58] The case proceeded to trial, in March 2001, before Snowie J.

[59] Snowie J. released her decision in June 2001. She found that there were 18 members of the plaintiff “to the commencement of the litigation”[^16] and that the five incorporators remained the five directors of the plaintiff:

I have concluded on all the evidence that the original board of directors was the target of manipulation on the part of some or all of the plaintiffs. This has been a “divide and conquer approach”. The original members of the board of directors were approached individually. They were misled by the plaintiffs and their supporters when asked to sign resignation letters produced to them. Four of the five unwittingly did so before consulting with the other members of the board of directors, having been led to believe the other members of the board were in favour and in some cases had all signed. In each case, the significance of what they were being asked to sign was misrepresented to them being described as necessary for banking, reform and/or administration purposes.

It must be understood that all these directors were and are unpaid and have full lives in addition to their board responsibilities: this is a religious organization, not a business corporation. Unfortunately, a more business-like approach to the running of the board would have been in everyone’s best interest. Once the individual original five board members realized that they had been manipulated and misled and what they had been asked to do might not be in the [Corporation]’s best interests, they did not sign a resolution accepting the resignation of the various original directors nor did they call an election to duly elect their successors. Instead, they met on May 11th and passed a resolution that they would continue to be the directors of the [Corporation] until their replacements were in place pursuant to s.287(4) of the Corporations act, and that Kehar Singh Gill would continue to be a director of the organization in any event. To date, no such replacements have been put in place. I find that the original board of directors has properly, that is, in accordance with the by-laws, continued to act as directors until this date.[^17]

[60] The decision of Snowie J. was not appealed.

Solicitation in the Sikh Community in October 2000

[61] During the course of the proceedings, the defendants in the 2000 Action sought to demonstrate that they had considerable support in the Sikh community. They circulated a large number of application forms and asked people to donate $11 each to be applied to their legal expenses.

[62] The application forms, on their face, appear to be applications to become members in the plaintiff. The application forms attest to the qualifications for membership (age, residence, association with the plaintiff). They include signatures from two recommending members and three recommending directors.

[63] Sarwan Singh Gill in his affidavit states that “[l]ittle, if any, consideration was given to the qualifications required of applicants for membership in the Corporation… as set out in paragraph 6 of the by-laws of the Corporation.”[^18] Notwithstanding this statement, the application forms, on their face, show otherwise. On a plain reading of these documents, objectively, they appear to be applications to become “members” in the plaintiff. I do not see how the documents admit to any other reading.

[64] The plaintiff points out that application forms were filled out by existing members of the plaintiff, as a show of their support for the original directors back in 2000. This is true. Application forms were provided by Kehar Singh Gill, Sukhwant Singh Gill, Ranjit Singh Aulakh, Ravinder Singh Sandhu, Paramjit Singh Gill, all of whom were already members. The plaintiffs argue that these people could not have believed they were applying for membership, since they were already members.

[65] The plaintiffs have also provided “witness statements” from some of the persons who filled out “application forms” in 2000, stating that they had understood that they were doing no more than show support for the then-existing board of directors.[^19] Many of these people were involved in other temples, and were not actively involved in the plaintiff; they signed these forms as a show of support.

[66] I can understand why some would think that persons who filled out an application form and paid the $11 fee would have believed that they were applying to be members of the Corporation. And I can understand why some would think, as some of the plaintiffs say, that these applicants ought to have been approved as members. However:

1. New members must be approved by the directors: either by resolution passed by a majority of directors at a board meeting, or by unanimous signed resolution of board members.

2. Those who applied for membership in 2000, whatever they thought might come of it, were never approved as members by the board of directors.

3. The Corporation has been run, from 2000 to April, 2010, on the basis that those who filled out applications in October 2000 were not approved by the board and did not become members of the Corporation.

[67] The signatures of three directors on the membership forms are not sufficient to approve membership. A written directors’ resolution must be unanimous.

[68] The defendants Ranjit Singh Aulakh and Kehar Singh Gill state in their affidavits that there was a meeting of directors on October 28, 2000. They state that four of the five directors were present and approved 725 new members at that time. I find that this evidence is not correct. The minutes of the meeting of October 28, 2000 contain no reference to a resolution to approve new members.

[69] The defendant Rajinder Singh Sandhu deposes in his affidavit that:

[a]t a meeting at which 4 out of the 5 directors were present on October 28, 2000, all of the directors who were present agreed to approve these applicants as members. The meeting took place in the Glidden Temple library. I believe that the 725 members were properly admitted to the [Plaintiff] on October 28, 2000.[^20]

Mr. Sandhu was not a director of the plaintiff. He says that he attended directors’ meetings in the beginning, back when the plaintiff was formed.[^21] He did not, thereafter, attend directors’ meetings, as is reflected in the minutes for those meetings. He was not present at the meeting of October 28, 2000. Therefore he cannot say that there was a directors’ meeting, or what happened at it. Mr. Sandhu’s evidence on this point is not stated to be given on information and belief. I place no weight upon it.

[70] Nowhere in Snowie J.’s reasons is it suggested that the issue of 725 new members was raised in the case before her. Accordingly, Snowie J.’s reasons do not address this issue. The defendants say this point was supposed to be raised with counsel and thence with Snowie J. This assertion is undermined by the failure of anyone to raise this point either before or after Snowie J.’s decision was released.

[71] In sum, there is nothing in the corporate records, and nothing in the judgment of Snowie J., to indicate that the 725 donors were members, or that anyone thought that they were members, by the time of the trial in March 2001. Snowie J.’s decision was under reserve for three months, and there is no evidence that anyone sought to re-open the evidence on any basis, and specifically, on the basis that the 725 donors were members.

(b) Governance from 2001 to 2008

[72] From October 2000 to March 2010, the plaintiff never gave notice of members meetings to the 725 persons allegedly added in October 2000.

[73] Whatever some may have thought in 2000, it has been clear that the current directors, the defendants, and the 725 persons who contributed money in 2000, have all acted, for nearly ten years, on the basis that the 725 donors were not voting members.

[74] In the following paragraphs I provide a few examples from the plaintiff’s history that make it clear that the plaintiff was run, throughout this time, on the basis that the 725 donors were never added as voting members.

Borrowing Bylaw – April 2006

[75] In 2006, the directors of the plaintiff decided to borrow money in order to acquire land. This was an important initiative for the plaintiff. The plaintiff required a new borrowing by-law in order to proceed with this project.

[76] The new borrowing by-law required approval from the plaintiff’s members.

[77] For this reason, a meeting of members was called for April 23, 2006. Notice was given to the 22 members of the plaintiff.[^22] Notice was not given to the 725 donors now said by the defendants to have been members at the time.[^23]

[78] The members approved the proposed by-law. On the strength of that approval, the plaintiff borrowed money and purchased land. On the basis of the defendants’ arguments, all of this was done illegally, as there was never a proper members meeting to approve the borrowing by-law.

[79] The defendants would have been aware of these facts at the time the borrowing by-law was approved. Indeed, several of them were on the board at the time, organized the meeting, and signed the minutes. They now claim that they knew it was wrong at the time, complained about it, but were outvoted. With respect, if they believed the approval of the borrowing bylaw was improper, they could not go along with it; on their evidence, they proceeded on false pretenses in 2006.

Members Meeting – April 2007

[80] At a meeting of members on April 15, 2007, it “was unanimously resolved that the members of the corporation are twenty-two and also agreed that as we are expanding the activities we should take new members.”[^24] Present at the meeting and signing the minutes were the defendants Sukhwant Singh Gill, Sarwan Singh Gill, Ranjit Singh Aulakh, Paramjit Singh Gill, and Kehar Singh Gill.

[81] These defendants now say that they disagreed but were outvoted. If that was true, then they should not have signed minutes indicating that the resolution was unanimous. They have no explanation for this.

Members Meeting – October 2007

[82] On September 9, 2007, the board decided to call a meeting of members to hold an election on October 21, 2007. The defendant Ranjit Singh Aulakh, as Secretary, was responsible for giving notice to the members of the meeting. Minutes of a directors meeting of September 23, 2007 confirmed that written notice of the members meeting was given “by hand”. This notice was given by Mr. Aulakh to 22 members of the plaintiff. The meeting of members was held on October 21, 2007, on the basis of a total membership of 22.[^25]

Genesis of the Membership Dispute

[83] Before conflict among board members between June 2008 to April 2010, the “membership issue” was not discussed. I accept the evidence of witnesses for the plaintiff that is typified by the evidence of Sarwan Singh Gill on this point:

A: I can say before 2008, 2007, we used to talk sometimes with Kehar Singh, we talked. Never mentioned those old members. Whatever we have is more than enough.

Q: Well, I think you said before 2007, 2008?

A: When we were all together in good terms.

Q: He didn’t mention it?

A: No.

Q: Okay, so I take it then after 2007 and 2008 he mentioned it?

A: No, after we never talk about new members.

Q: I know, but why did you pick a date and say before 2007, 2008?

A: Because when we are in good terms working together, it was different. After that, we never get talk in terms of any discussing like this.[^26]

Mr. Sarwan Singh Gill’s point is clear. Before “2007, 2008”, the board worked together reasonably well; members of the board were “in good terms” with each other. And during this period when they were getting along well, there was no discussion about formally approving the large tranches of members at issue in this proceeding.

[84] The voluminous paper record supports this characterization. I am satisfied that these “issues” did not emerge until there was conflict among board members for other reasons. I place the genesis of this conflict in about June 2008.

[85] The defendants argue in their factum that their silence on the 725 members for almost a decade is not a basis for drawing an inference that they knew the 725 donors had not been added as members in 2000: “[the corporate records of the plaintiff] for the 10 years before April 18, 2010 do not approve or admit the 725 as members of the Plaintiff as the Plaintiff were in the majority, and would not list them and the Defendants were in the minority”.[^27]

[86] There are several problems with this argument.

[87] First, it does not explain why the issue was not raised as a resolution before the board or at a meeting of members.

[88] Second, it does not explain why the defendants signed minutes which, by their argument now, were false: if this argument was accepted on its face, these defendants were justifying their participation in a decade-long mis-governance of the plaintiff on the basis that they were in the minority. The argument is laughable.

[89] Third, the argument does not explain why the defendants did not take steps to contest the exclusion of the 725 members for roughly a decade – until they disagreed with the other directors over other issues.

[90] The defendant Ranjit Singh Aulakh was Secretary of the plaintiff from 2000 to April 2008. As such, he was charged with the responsibility of (among other things) giving notice of meetings of members to the members, and certifying that he had done so. Throughout this period, Mr. Aulakh gave notice of meetings on the basis of the membership rolls not including the 725 donors that the defendants now say have been members since October 2000. This is explained by the defendants in their factum on the following basis: Mr. Aulakh did not give notice to the 725 donors “as the Plaintiffs who held the majority would not allow him to send the notices”.[^28] This is preposterous. In effect, Mr. Aulakh now argues that he knowingly failed to discharge his duty, and falsely attested to having given proper notice, repeatedly, from 2000 to 2008, because others told him to do so. He is prepared, today, to admit serious misconduct in his position of trust in the corporation to try to avoid the obvious inference that he knew the 725 were not members throughout this period and acted accordingly.

[91] The defendants argue in their factum that they participated in organizing a meeting of members to approve the borrowing by-law, in 2006, on the basis of 22 members, because their lawyers told them this would be expeditious: “[i]n regards to financing for the loan… to facilitate financing… they were advised by their lawyers to refer to 22 members for this purpose”.[^29] If I was to accept this argument, it would mean, in substance, that these defendants are now acknowledging that they knowingly participated in a process to obtain fraudulent approval of the borrowing by-law – that they knew there were (then) 747 members, but only gave notice to 22 of the members. This could have caused serious loss to the lender or to the non-participating members. It could be inferred, as well, from the language in which the defendants put this submissions, that the lawyers were advised that there were, in fact, 747 members, but advised the defendants to go ahead anyways on the basis of notice to only 22 members, in order to “facilitate” the loan. This is a very serious allegation to make against the lawyers. The identity of the lawyers is not specified. Evidence was not sought from the lawyers to corroborate this advice. In the absence of good faith steps by the defendants to raise this issue properly – on notice to the lawyers, and with a complete record of the advice given – I conclude that the legal advice was given on the basis that the lawyers understood there to be 22 members of the plaintiff. On this premise, the lawyer’s advice to give notice to 22 members was correct. I do not accept the innuendo in the defendants’ submission that the lawyers were told that there were 725 more members, but advised against giving those members notice to “facilitate” the loan.

[92] Sadly, I conclude that Kehar Singh Gill and Ranjit Singh Aulakh are deliberately mis-describing the history of this issue at the board to 2008.

Events in 2008

[93] Mr. Aulakh was removed as Secretary of the plaintiff at a directors’ meeting on June 22, 2008. I am satisfied that this was a precipitating event for the illegal takeover of the plaintiff by some of the defendants in late June 2008 (rather than, as claimed, a concern about investigating alleged financial improprieties in the management of the plaintiff).

[94] Kehar Singh Gill, who was then the President, purported to suspend several of the directors. He does not deny this. He says that he had this power, as the President, and that the circumstances justified his decision.

[95] The “suspended” directors were Havinderpal Singh Dhaliwal, Ranjit Singh Mahal, Davinder Singh Chhokar and Sarwan Singh Gill. Oddly, Kehar Singh Gill says that Mr. Mahal was recognized as a director and permitted to participate in one directors’ meeting, at Mr. Gill’s discretion. Apparently this was done so that there would be a quorum of directors present. Mr. Gill describes this as a legitimate exercise of his discretion as the President: suspending four directors but permitting one of them to attend and vote anyway.

[96] Following these “suspensions”, Kehar Singh Gill, together with Ranjit Singh Aulakh and Mr. Sukhwant, purported to hold meetings without giving notice to the directors that had been purportedly, “suspended”. These meetings are nullities.

[97] In cross-examination, Kehar Singh Gill took the position that the suspended directors were given notice of these meetings and could have attended, participated and voted. This is nonsense. Four or five directors, headed by Mr. Gill tried to take over the plaintiff by means of the “suspensions.” Mr. Gill’s evidence that the suspensions were, somehow, partial, is inconsistent with the whole thrust of his evidence.

[98] The premise of this evidence has another disturbing feature. It suggests that, as President, he had the discretion to decide, from moment to moment, what other directors could do. The opening quotation at the start of this decision captures it all. It does not describe corporate governance. It describes a sort of monarchy, where others serve at the pleasure of Kehar Singh Gill. And this is the governance philosophy of a defendant who claims to be pursuing transparency, democracy and inclusiveness at the plaintiff.

Removal of Corporate Records

[99] Following the “suspension” of four members of the board, Mr. Aulakh removed the plaintiff’s records from the premises of the plaintiff. He explains that he wished to make photocopies of the records. The lock to the offices was changed, by Mr. Aulakh, and as a result the “suspended” directors would not know that the records had been removed.

[100] The plaintiff’s solicitors sought return of the records in the fall of 2008. At some point the records were handed over to a solicitor for some of the defendants, Mr. Padda. Not all of the records were turned over in this way: some were retained by Mr. Aulakh.[^30]

[101] The records were not returned to the plaintiff until March, 2009. No explanation has been given for this lengthy retention of these records. Mr. Aulakh explains that he changed the locks because he had “lost” his key. The plaintiff says that this is false, because Mr. Aulakh never had his own key to the offices. I cannot resolve that factual dispute, nor is it necessary to do so for the purposes of this motion. However, it is strange indeed that the “changing of the locks” resulting from a “lost” key happened in the aftermath of the “suspension” of four board members. It looks suspiciously like part of a plan to seize control of the plaintiff, rather than a simple “loss” of the keys.

[102] There is another disturbing factor about the removal of the records. When they were returned, at least one document had been altered: the minutes of a meeting of the board in July 2004. The returned document had an entry showing the board acknowledging that 725 members had been added in 2000.

[103] Sarwan Singh Gill, a member of the current board, had previously made photocopies of minutes of the corporation, including for the meeting of July 2004. His photocopy does not include the entry acknowledging the 725 members “added” in 2000.[^31]

[104] Sarwan Singh Gill’s photocopy shows five numbered items discussed at the meeting, however there is no text for the fifth item. The original returned by Mr. Aulakh has an entry written in beside item 5 reading: “To call a General and Special meeting of members approved in year 2000.”

[105] Mr. Gill’s version would not contain an item 5, with no text, if it had been altered for the purposes of this proceeding.[^32] Further, no general or special meeting was ever called following the July 4, 2004 meeting, nor was a change of heart recorded in subsequent minutes. I am satisfied that the entry was added, and that adding it to the July 4, 2004 minutes was easy because there had been a space left in the minutes for a fifth item that had not been recorded (likely because a fifth item was not, in fact, discussed).

[106] The additional minute for the July 2004 board meeting was added to the minutes while they were in the control of Mr. Aulakh from the summer of 2008 to March 2009. It was added to strengthen the defendants’ position respecting the membership issue. I cannot conclude that all of the defendants knew about or participated in this falsification of corporate records. I cannot conclude that Mr. Aulakh, himself, made the alteration, though it is likely that he did so since it appears to be in his handwriting. I am confident that Mr. Aulakh knew the minute was false, and that Kehar Singh Gill, who had been on the board at the time, also knew the record was false. Indeed, all board members know this minute is false because they know that the board never agreed to this.

[107] If that is not enough, I note the minute is inconsistent with the defendants’ evidence that they were consistently outvoted on this issue at the board.

[108] It is sad that any of the defendants would stoop so low as to falsify the plaintiff’s records.

Purported Addition of 344 New Members

[109] The defendants, after having “suspended” four directors of the plaintiff, say that the board added 344 new members at a directors’ meeting on June 29, 2008.[^33] This “meeting” was conducted without giving notice to the “suspended” directors. This was not a proper meeting of the board of directors, and thus its actions are a nullity in any event.[^34]

[110] Further, the defendants kept “minutes” of their “meetings’ from June 29, 2008 to August 31, 2008. None of those minutes record a purported resolution of the “board” to approve 344 new members. None of these minutes record approval of the prior 725 members, or advert to these 725 people as “members” of the plaintiff.[^35]

[111] Kehar Singh Gill has produced a document which purports to be a “resolution” of the board made at the meeting of June 29, 2008. The first time this document was provided to the plaintiff was during the proceedings before me.

[112] I do not accept that it is genuine. I conclude that it was created, after-the-fact, for the purposes of buttressing the defendants’ position in this proceeding. There is no explanation for this document not being among the plaintiff’s corporate records. There is no explanation as to why no mention was made of it in the minutes kept of the June 29th “meeting”. There is no explanation as to why no evidence has been provided of notice of a meeting to approve these members. One of the directors recorded as having been at the meeting, Mahal, was purportedly suspended as a director before the meeting; Mr. Mahal denies that he was present. Two of the other persons listed as having been in attendance at the meeting deny having been there: Harjit Singh Grewal and Paramjit Singh Moondi. And further still, no notice was ever given by the plaintiff to the 344 “new members” that they had been admitted as members of the plaintiff. The defendants say that the three disputed directors were present at the meeting of June 29, 2008, but refused to sign the minutes, and that is why their names are written in at the bottom and do not include signatures. I do not accept this evidence. I note that the minutes say that the decisions taken at the meeting were “passed unanimously”, which surely could not be true if three directors present had disagreed and refused to sign the minutes.

[113] The document produced by Kehar Singh Gill, purporting to be a resolution of the board of the plaintiff, shows eight directors in attendance (out of a total of fifteen). Four of the directors had signed the resolution: Kehar Singh Gill, Ranjit Singh Aulakh, Sukhwant Singh Gill, and Paramjit Singh Gill. A fifth director, Inderpal Singh Athwal, is listed has having not been present but having submitted a proxy in favour of the resolution. Harjit Singh Grewal, Paramjit Singh Moondi, and Ranjit Singh Mahal, are listed as present “but refused to sign”. The resolution approved states as follows:

1. Approval of the new 344 applications for the membership of [the Plaintiff]

2. Membership fee waived, under generosity, who applied sincerely but fee not received.[^36]

Paragraph 2 is most “convenient” for the defendants. The stated membership fee is a nominal $11.00. If the fees had been collected, then of course it would be necessary to account for them. This blanket fee waiver would, apparently, relieve the defendants of accounting for the fees that were paid, if any: there is no reference in the “resolution” to the number of “applicants” who paid a fee, and those who did not.

[114] There is another concern about the addition of the new members. Donation receipts for $11.00 payments received from applicants for membership were issued by Mr. Aulakh and Sukhwant Singh gill. The books reflecting these donations had been missing from the corporation, and were not returned until June 15, 2010, following this court’s injunction order. Although “some” of the receipt books have now been returned, the money collected had not been turned over or accounted for the corporation by the defendants.[^37]

Alleged Justification for Suspending Directors and Seizing Control of the Plaintiff

[115] There are two allegations made by the defendants that they say justify their conduct in the summer of 2008. First, they say that the “Golak Scandal” involved theft of temple property by one of the directors, and acquiescence (or worse) by several of the other directors. Faced with this, they say, the President, Kehar Singh Gill, was entitled to take decisive action.

[116] Second, the defendants make a generalized allegation that the financial affairs of the plaintiff had not been managed with propriety or in accordance with the legislation that governs charitable corporations such as the plaintiff. In the counterclaim and cross-motion, the defendants seek to have a monitor appointed to observe the collection boxes at the temples, and they seek an accounting of donations.

[117] On this motion, the issues are whether to continue the injunction until trial, and whether to grant summary judgment on the issue of who the members are of the plaintiff. The court is not asked to grant summary judgment respecting the “Golak Scandal”. Thus the cross-motion is a request for interlocutory relief.

[118] First, I doubt that the “Golak Scandal” or other alleged financial mismanagement are truly behind the defendants’ conduct in this proceeding. It appears to be a justification rather than a reason. The incident in question took place in 2006. If truly believed by the defendants, it was a police matter from the moment it was discovered. If truly believed by the defendants, it was a matter of urgent concern for the entire membership when it was discovered. If one gets past this initial objection, there is no explanation for the failure of the defendants to take any action about these issues during the time they had seized control of the plaintiff, between June and August 2008. By their accounts, the only thing they did that could be characterized as investigating alleged improprieties was to remove the corporate records from the plaintiff’s premises, ostensibly for photocopying, and to obtain an affidavit from an Indian national that was not disclosed until responding materials were delivered on these motions, two years after the affidavit was commissioned.

[119] On the basis of the defendants’ avowals respecting their motivations, one would have thought that they would have reviewed the records carefully and pursued their concerns about misappropriation and other financial mismanagement. They did not. Even after they were ousted from the board at the end of August 2008, on the basis of the evidence before me, they still had the corporate records until March 2009, and retained copies of them after that time. They did nothing to pursue legal steps respecting their claims of misappropriation and financial mismanagement until after the injunction motion was brought by the plaintiff in April 2010. Even then, they did not assert this justification for their conduct until they delivered responding motion materials in June and July 2010.

[120] Second, even if the allegations respecting the “Golak Scandal” are true, this is not a basis on which the President, or some of the directors, could “suspend” other directors. The defendants had several options available to them, but not seizing control of the plaintiff. They could have compelled a members’ meeting (which can be requisitioned on the signature of 10% of the membership). They could have brought the matter to the attention of authorities (police and regulators of charities). They could have come to court. They could not decide that they were right, unilaterally exclude duly elected directors from participating as directors, and take control of the plaintiff. Therefore, for the central issues on these motions, it does not matter whether the allegations concerning the “Golak Scandal” are true.

[121] But I do need to comment on one aspect of the manner in which the defendants have pursued this litigation. They have attempted to side-track it with reference to this so-called scandal. This has not availed them, because to accede to that argument would be to promote vigilantism. But there is another aspect to this that bears comment here. While this court cannot, on the record before the court today, decide the merits of these allegations (and is not asked to do so), I can consider the strength of these allegations as it bears on the defendants’ request for court-ordered supervision of the plaintiff’s financial affairs.

The So-Called “Golak Scandal”

[122] There is a video that allegedly shows one of the directors, Davinder Singh Chhokar, taking money while helping to count donations at one of the temples. The video is said to have been made in 2006. Kehar Singh Gill knew about this video in 2006 or 2007: he says that he approached Mr. Chhokar about the video at that time. The video is referred to in the minutes of a board meeting dated September 9, 2007. Clearly the board knew of the video by that time.

[123] The plaintiff says that the video was made for instructional purposes. This may sound odd. Perhaps it is. But the context must be borne in mind. The temple, from time to time, brings “Hymn Singers” to Brampton from India to participate in the plaintiff’s devotions. These Hymn Singers are not accustomed to the way things are done in Canada. Apparently the video was made to illustrate to the Hymn Singers that it is not acceptable for them to take money from the collection boxes while they are in Canada, so that there is no misunderstanding.

[124] The defendants are not satisfied with this explanation. They say there were two videos, not one, and they seek to explore this further to establish that Mr. Chhokar was actually caught on film taking money from the collection box.

[125] The following is recorded in the minutes on September 9, 2007:

Due to the security reasons a video movie was recently recorded at Sri Guru Nanak Sikh Centre, 99 Glidden Rd., Brampton. It was made to inform Ragis, Granthi and employees of the Gurdwara. Six members and directors named Ranjit Singh Mahal, Kirpal Singh, Havinderpal Singh Dhaliwal, Sarwan Singh Gill, Davinder Singh Chhokar were part of the recording with the knowledge of the board of directors and members. One copy of this video was misplaced somewhere. We inform the concerned persons, if this video is misused to tarnish the image of any members or [the] gurdwara sahib, will be dealt with sternly and legally.

The minutes are signed by (among others), defendants Sukhwant Singh Gill, Ranjit Singh Aulakh, and Kehar Singh Gill.

[126] Kehar Singh Gill describes the history of this issue as follows in his affidavit:

In or about late 2007, I learned that there were serious allegations that Davinder Singh Chhokar, one of the original incorporators of the [Plaintiff], was regularly misappropriating the [Plaintiff’s] funds by counting the funds donated into the… charity box and at the same time putting the funds directly into his pocket.

A video allegedly evidencing Davinder Singh Chholar’s conduct was made and has been viewed by myself as well as numerous other members of the Sikh community. The video is commonly referred to as The Golak Scandal. It was posted on a website known as YouTube.

The allegation that funds were being misappropriated by a director of the [Plaintiff] was shocking to the Sikh community. Being President of the [Plaintiff], people started asking me about the Golak Scandal. I called Davinder Singh Chhokar for a meeting at the… temple and sought an explanation regarding the allegations made against him. Davinder Singh Chhokar admitted to misappropriation. I suggested to him that the right course of action would be to seek pardon from the congregation. Davinder Singh Chhokar said he wanted to consult with his companions before doing so.

I called him the next day and he said, “Sarwan Singh Gill feels that this is not a fit case to seek a pardon. The whole world does it. So what if I did it?” Needless to say, I was appalled at his statement.

I sought an explanation of the Golak Scandal from Sarwan Singh Gill, Ranjit Singh Mahal (who was a director whose voice could be heard in the video taken by Sukhbir Singh) and Havinderpal Singh Dhaliwal. When they did not provide me with a satisfactory explanation, I suspended all three of them from the [Plaintiff] as well as Davinder Singh Chhokar. I had delivered a copy of a Notice of Suspension to these four individuals or about early June 2008 (sic). The Notice of Suspension was signed by me and Ranjit Singh Aulakh, who was the Secretary at the time. The Notice of Suspension which was given to Sarwan Singh Gill also discussed the concerns that I had regarding financial mismanagement of the [Plaintiff].[^38]

[127] The defendants sought to support this story with an affidavit of Sukhbir Singh, which, on its face, was commissioned on July 18, 2008. There is no evidence this affidavit was ever previously delivered by any of the defendants. It was sought to be introduced after completion of cross-examinations in this proceeding. The defendants concede that this affidavit was not admissible on the motion. Mr. Sukhbir Singh was, at the time of this litigation, back in India. The defendants sought to adjourn the motion for summary judgment in this proceeding so that Mr. Sukhbir Singh could be brought to Canada from India to be cross-examined on this affidavit.

[128] I did not allow the adjournment. This motion is not about the “Golak Scandal”. There was no need to adjourn to hear from Mr. Sukhbir Singh. There was no explanation as to why this evidence was not included in the defendants’ responding motion materials. Nor was there any explanation why efforts were not made to bring this witness to Canada in a timely way. The initial injunction motion was in April 2010, and the return of the injunction motion was not until September 3, 2010. I concluded (a) the anticipated evidence was not of sufficient probative value to warrant adjourning the motion; and (b) it would be unfair to the plaintiff to adjourn the motion to permit evidence to be filed after cross examinations.[^39]

[129] The evidence of Rajinder Singh Sandhu is much of a piece with Kehar Singh Gill’s evidence. Mr. Sandhu deposes:

In or about June 2008, I was advised by Sukhbir Singh, a hymn singer from India who was sponsored by the [plaintiff] and resided in Ontario for a short time, and verily believe that in or about June 2006 he repeatedly saw one of the [plaintiff]’s directors, Davinder Singh Chhokar, misappropriating charitable donations received by the [plaintiff] by taking money out of the Golak (charity box) in the Glidden Temple and putting some of the funds into his own pocket during the process of counting the donations. Davinder Singh Chhokar is an original director of the [plaintiff] and was the President of the [plaintiff] during the material time.

I am further advised by Sukhbir Singh and do verily believe that he actually filmed Davinder Singh Chhokar placing money from the Golak into his pocket in June 2006, while supposedly counting the money in the Golak. Sukhbir Singh’s film has been watched by many members of the Sikh community, including myself, but was not circulated until approximately 2007 or 2008. The video is commonly referred to as “The Golak Scandal” in the Sikh community in Brampton.

I am further advised by Sukhbir Singh and do verily believe that he did not initially tell anyone about his belief that Davinder Singh Chhokar was misappropriating donations because he thought that he would not be believed by the Sikh community given Davinder Singh Chhokar’s position in the [plaintiff]. Sukhbir Singh further advised me and I verily believe that he was also threatened by Davinder Singh Chhokar that there would be serious consequences if he released the video.

When I learned of the conduct of Davinder Singh Chhokar, I was shocked and saddened and disappointed. I approached Davinder Singh Chhokar to discuss these allegations on several occasions over the last couple of years. However, Davinder Singh Chhokar has refused to speak to me about the allegations.[^40]

[130] There is, of course, an explanation for the video, which appears to have been accepted by the entire board of directors in September 2007. The police concluded the “theft” shown in the video was “staged”. Obviously I cannot evaluate the statements attributed to Mr. Sukhbir. They are not properly in evidence. And, even if they are true, they do not justify the actions of the defendants in June-August 2008 and March-April 2010.

[131] Kehar Singh Gill goes on to say in his affidavit: “we referred the matter to the Peel Police. I am not aware of what action the police have taken in this matter”.[^41]

[132] Mr. Gill may not have been aware before (which I doubt), but he is aware now: the police report and summary into the investigation of these allegations has been filed with the plaintiff’s materials. Police concluded that the video was “staged” and that “there were no reasonable grounds to indicate that Davinder Singh Chhokar is responsible for any of the alleged criminal activity alleged”. The police further concluded that the “allegation of fraud is weak and unsupported by any evidence” and that “this investigation can be closed unfounded”.[^42]

[133] “Unfounded”. That was the police conclusion. Of course, that conclusion does not preclude the defendants pursuing this issue in their counterclaim. But on the record before me, to this point I am not satisfied there is a basis for these allegations.

[134] The defendants now say “that this investigation was not complete and should be re-opened. In regards to the case being closed, the defendants want the file to be re-opened.”[^43] The defendants do not say why they consider the investigation “not complete.” It is suspicious that their verve to pursue this investigation arises now, rather than at the time of the events in question, or immediately after defendants seized control of the plaintiff in late June 2008.

[135] The plaintiff’s version of the facts surrounding the alleged Golak Scandal is summarized by Sarwan Singh Gill in his affidavit. I accept this evidence:

The allegations contained in the affidavits of Aulakh, Kehar, Sandhu and Dhillon regarding the purported misappropriation of money by Davinder Singh Chhokar and the Board are untrue and are very insulting.

Hymn singers regularly come from India to the Corp[oration’s Gurdwaras to sing and assist the Gurdwaras in counting the donations deposited into the Golak (charity box). The majority of hymn singers come from poor villages in India and remain in Canada for a short period of time on a work visa before returning to India. Some hymn singers, while counting cash donations, I believed, help themselves to some of the cash in the counting process.

Sometime in 2006, the Board decided it would be prudent to make a video to demonstrate to the hymn singers that if they were to take any of the donations, they would be caught, and that their actions while counting the Golak, may be recorded.

One of the hymn singers assisted in the filming of the video while Davinder [Singh Chhokar] posed as a person taking money and placing it in his pants. The Board was aware that the video was being filmed and knew the hymn singer was hiding in the ceiling. The minutes of a meeting of the Board dated September 9, 2007, which were recorded by Sukhwant, one of the defendants in this action, refer to the video at item (viii) stating that the video was made for security reasons to inform the Ragis (hymn singers) and that the recording was made with the knowledge of the Board. The minutes are signed by Aulakh and Kehar, who now, in their Affidavits, fail to mention the true purpose of the video….[^44]

[136] The defence did what it could to leverage this issue during cross examinations. For example:

Q: Wasn’t the organization and the general community concerned with the fact that they believed that monies were being stolen from the donation coffers at the Temple?

A: That’s their thinking. I don’t say there was a scandal.[^45]

The defence did not explain what it meant by “the organization” or “the general community” having this concern. If there was a general concern, it was because defendants made public statements that money had been and is being stolen from “donation coffers”, an allegation that remains unproven. The defence continually repeats the allegation as if it is fact:

A: Video taken where?

Q: In the Temple over the donation box to catch people who were stealing?

A: No such video on the scandal box.

Q: Do you know about any video?

A: Everybody knows there was a video made. Intentionally, we all knows, all the directors know.[^46]

“To catch people who were stealing”. That is how counsel phrased the question. It presupposes that theft was taking place.

[137] Several of the defendants were directors of the plaintiff and owed the plaintiff fiduciary duties. It is hard to conceive how it could have been in the plaintiff’s best interest to take these concerns to the court of public opinion rather than to a court of law.

Alleged Misappropriation of Funds

[138] The defendants argue in their factum that “they believe the current board has and is misappropriating funds controlled by the Plaintiff”.[^47] It is on this basis that they seek appointment of a monitor and “an accounting of all funds controlled by the plaintiff”.

[139] The defendants have to do more than assert a personal belief in wrongdoing to persuade the court to interfere with the management of the plaintiff by its duly elected board of directors.

[140] The few particulars of alleged “mismanagement” of funds (apart from the so-called Golak Scandal) relate to activities that took place when defendants were members of the board, activities which they themselves approved.[^48] For example, the plaintiff has donated some money, from time to time, to Ontario Gurdwaras Committee, a charitable organization that donates money outside Ontario (primarily in India).[^49] The allegation now made by the defendants is that it is inconsistent with the plaintiff’s charitable status in Ontario for funds collected by the plaintiff to be used for international aid work. If that is true (and no legal authority was provided to this court to support this argument[^50]), then no doubt it is news to management at the plaintiff: the plaintiff has donated money to other charities that do international aid work, such as the Red Cross.[^51]

[141] One of the cheques paid to Ontario Gurdwaras Committee was signed by Mr. Aulakh.[^52] When cross examined about this, Mr. Aulakh said that only the one cheque that he signed, for $5,000, was proper, reflecting the plaintiff’s share of expenses incurred by Ontario Gurdwaras Committee on behalf of several gurdwaras. This evidence is wholly incredible. Mr. Aulakh was a director throughout this time, and there is no documentary evidence that he ever once objected to money being paid to Ontario Gurdwaras Committee. Indeed, Mr. Aulakh was also a director of Ontario Gurdwaras Committee for much or all of the time that these payments were made.[^53]

[142] The defendants rely upon a cheque payable to GTS Express Inc. for $18,000. They say this payment was improper. The plaintiff says it paid this money to GTS Express to repay a loan it obtained from that company to make repairs to the temples.[^54] Rajinder Singh Sandhu deposes that “to his knowledge, no such loan was ever advanced” by GTS to the plaintiff.[^55] Mr. Sandhu does not explain why this would have come to his knowledge, since he was not a director or officer of the plaintiff. Kehar Singh Gill and Ranjit Singh Aulakh do not explain why they waited roughly seven years to challenge this transaction.

[143] The GTS cheque was issued in 2003.[^56] I make no finding as to whether it was proper or not. I do conclude that it has nothing to do with the membership issue. I also conclude that it is not a sufficient basis to appoint a monitor or auditor for the plaintiff now. If this was a serious concern for any of the defendants, they would have raised it in a timely fashion.

[144] During cross examinations, some issue was made with payments made by the plaintiff to Sikh Human Rights Group Canada. This group is a not-for-profit corporation. Mr. Aulakh had been one of three directors of this company for many years. There are many payments that have been made by the plaintiff to this company, including one that was endorsed by Mr. Aulakh himself, for about $30,000. This was back in November 2006. There does not appear to be a decision by the board approving this payment.[^57]

[145] Mr. Sandhu also points out that one cheque, made out to “cash”, for $800, was signed by Mr. Chhokar without being counter-signed.[^58] Under the Bylaws, any cheque over $500 has to be counter-signed. Mr. Sandhu says that he “brought this to the attention of Kehar Singh Gill and Ranjit Singh Aulakh”, but does not say (a) how he found out about it, or (b) when he so advised Messrs. Gill and Aulakh.[^59] This cheque was signed on November 22, 2004. This issue is not material to the central issues on this motion and does not justify interference in the affairs of the plaintiff on an interlocutory basis.

[146] The defendants suggest there was some impropriety respecting payments made to the plaintiff’s solicitors. These cheques were in payment of legal fees and were made with the approval of the board of directors.[^60]

[147] The defendants suggest there was some impropriety respecting cheques issued to “Punjabi Exchange”. These cheques were in payment of wages for various preachers who have worked at the gurdwaras and have since gone back to India.[^61]

[148] Mr. Sandhu’s affidavit includes this sweeping allegation:

I believe that many of the funds donated to the [plaintiff] in recent years have been misappropriated by directors and/or certain members of the [plaintiff], including Davinder Singh Chhokar.[^62]

This is a very serious allegation, and is not supported by the evidence presented by Mr. Sandhu in his affidavit, or in the other evidence presented by the defendants. This motion does not concern summary judgment on the allegations of financial impropriety. That question is left for another day. I have weighed the evidence to determine whether to grant the defendants’ request for a monitor and an auditor of the plaintiff’s affairs. I have concluded that a basis has not been established for that relief on an interlocutory basis. I note, however, that Mr. Sandhu’s “belief”, in the absence of facts or evidence to support it, is not worth anything. The court is concerned that very serious allegations are being made, on apparently flimsy or non-existent grounds, under the protection that is afforded to witnesses in legal proceedings. The defendants should understand that, having made these allegations, they will need to prove them or risk significant costs consequences.

[149] Kehar Singh Gill deposed that he “also raised the concern that there was financial mismanagement due to a number of cheques which were issued by the [plaintiff] for which there is no back-up documentation”. Mr. Gill further deposed that “[t]hese documents were found recently by Ranjit Singh Aulakh who had previously photocopied some of the [plaintiff’s] business records”.[^63] This photocopying was done during the period that Mr. Aulakh had the records he had taken from the plaintiff’s premises, and refused to return them. The inference I draw is that the records were taken with a view to trying to find any basis on which Mr. Aulakh and Mr. Gill could allege financial mismanagement. The transactions of which they now complain took place while they were directors. On the present record, there is no reason to doubt that they were aware of and approved these transactions at the time. In short, I conclude that Mr. Gill and Mr. Aulakh are trying to find anything and everything that they can taint the reputation of their former colleagues, in order to cast doubt on their integrity.

[150] As a side-note here, the court was bemused by the defendant’s reliance on something called the Charities Act in support of its argument that there had been financial mismanagement. There is no such legislation in Ontario. The legislation relied upon by the defendants is a statute enacted by the legislature of Prince Edward Island.

Audited Statements

[151] The plaintiff has never obtained audited financial statements. It has provided financial statements to its members, annually, at the annual general meeting. The defendants complain that the statements should have been audited.

[152] The defendants did not provide any legal authority for the proposition that the financial statements have to be audited. In any event, the alleged audit requirement has nothing to do with the defendants illegally seizing control of the plaintiff.

[153] It is necessary for the plaintiff to appoint an “auditor”, which it has done annually, as required by law.[^64] The “auditor’s” role is specified in the Corporations Act, and includes a report to the members at the annual meeting.[^65] The plaintiff’s minutes from annual general meetings disclose that an auditor has been appointed annually and has provided the required report to the membership.

[154] It appears to me that the defendants are conflating the requirement for an “auditor” in the Corporations Act with a requirement for audited financial statements. These are not the same thing. The intensity of review of the financial statements is a matter for the auditor to address with the members, and no doubt will turn on the nature and complexity of the corporation’s affairs. Audited financial statements are expensive, and one would not expect the plaintiff to incur that cost unless it was truly necessary. There is no evidence before me that such an expense is necessary or is required by law for the plaintiff. It is possible that the defendants do not understand the distinction between an “auditor’s report” under s.96 of the Corporations Act and “audited financial statements”. I suspect that at least some of them do, in which event they are exploiting the similarity in the terminology to sow confusion and distrust about the plaintiff where there is no basis to do so.

Summary

[155] Kehar Singh Gill deposes in his affidavit that the current board has purported to remove him and other directors, and purported to enact a bylaw restricting voting membership to 50, as retribution for the allegations of financial mismanagement, and to prevent the Sikh community from preventing further mismanagement:

I verily believe that the individuals who are currently in control of the [plaintiff] and who allege they were elected as directors on March 28, 2010 have not been properly elected as a result of the improper removal; of Ranjit Singh Aulakh, Sukhwant Singh Gill and I as directors. Conveniently, all of the individuals who have challenged the authority of Davinder Singh Chhokar and Sarwan Singh Gill and who have attempted to uncover alleged fraudulent activities perpetrated by directors of the [plaintiff] with respect to the [plaintiff]’s funds have been, albeit improperly, removed as directors.

I further verily believe that the individuals who are currently in control of the [plaintiff] have attempted to limit the number of members of the [plaintiff] to 50 by enacting a new set of bylaws in an effort to usurp control of the [plaintiff] and restrict individuals from raising concerns regarding affairs of the [plaintiff] which affect the entire Sikh community who regularly donate money to the [plaintiff]…. The Sikh community has expressed a grave concern that funds which have been donated by them are not being used for proper charitable purposes.[^66]

It is no wonder the broader community has “a grave concern”, given the terrible allegations Mr. Gill and his co-defendants have been making, repeatedly.

[156] I do not accept any of this. I find, rather, that Kehar Singh Gill has raised this issue, not because he has a sincere concern about it, but in order to exclude his rivals in the temple. Not having achieved his goal, he is now intent on pursuing these allegations, recklessly, and in a manner designed to alarm the Sikh community, and in a manner out of all proportion to any legitimate concerns the current evidence would raise. Perhaps these issues will assume a different light on a full record. At this stage, on this record, I conclude that they do not appear to have substance.

Order Is Restored

[157] As of the summer of 2008, there were two boards of directors. There was the “board’ arising from the illegal “suspension” of four directors by Kehar Singh Gill, and there was the valid board. A new, illegal board, was purportedly elected at an illegal members’ meeting called by the illegal board for July 20, 2008.

[158] The legal board called a members’ meeting for August 17, 2008. Notice of this meeting was given by Harvinderpal Singh Dhaliwal, in his capacity as Secretary of the plaintiff. I am satisfied from Mr. Dhaliwal’s evidence that notice was given to all members of the plaintiff. Mr. Dhaliwal’s affidavit of service of August 12, 2008, prior to the meeting, is commissioned by the plaintiff’s solicitors.

[159] In particular, notice of the meeting was given to Kehar Singh Gill, Sukhwant Singh Gill and Ranjit Singh Aulakh. By covering letter to each of them, they were told that a special meeting of the members would be held on August 17, 2008. The letter goes on:

You are invited to attend and be heard at the Meeting. Further, you may also submit to the corporation a written statement giving the reasons why you oppose or support any proposed action or resolution, as the case may be.[^67]

[160] The notices were sent by registered mail. The notices and letters sent to Ranjit Singh Aulakh and Kehar Singh Gill were not returned, and it is reasonable to infer that they received them. The notice sent to Sukhwant Singh Gill was returned unopened. It was sent to his residence, on the basis of the record of that address at the plaintiff. There is no evidence that the letter and notice were addressed improperly. I conclude that Sukhwant Singh Gill did not receive the letter and notice because he deliberately did not want to receive them. The fact the meeting was to be held was widely known in the Sikh community, as the “troubles” at the temple were a matter of public interest. I am satisfied that these defendants knew that the meeting was to happen, its purpose, and they deliberately chose not to attend.

[161] The denials of having received notice are consistent with the defendants’ overall litigation strategy. The defendants’ primary position, of course, would have been that the meeting of August 17, 2008 was not valid – that their actions in June and July had been valid, and that the board was as elected in what they characterized as a members’ meeting on July 20, 2008.

[162] Mr. Aulakh’s denial of having received notice is particularly unfortunate. He sent a letter, dated August 15, 2008, in which he acknowledges having received notice of the meeting. The objection he takes to the meeting is that proper notice had not been given to the membership which, he writes is “over 1000 members, who have been validly accepted into the membership since 2000.” On this basis, “[a]s proper notice has not been provided to the members, I take the position that any business transacted at this meeting will be invalid”.[^68] Mr. Aulakh is not being truthful when he says that he did not have notice of the meeting.

Annual General Meeting March 28, 2010

[163] On March 7, 2008, the board of directors passed a new Bylaw, By-Law #4, to replace By-Laws #1 and #3 of the plaintiff. This Bylaw establishes that:

• the size of the board of directors is 15, elected in staggered five-year terms (para. 3)

• directors may be removed by resolution of members at a members’ meeting (para. 3(f))

• officers are elected by the board of directors (para. 11)

• membership criteria are amended to include (among other things) a “good character” requirement (para. 22(c)(iv))

• the total membership is limited to 50 members, and this provision can only be changed by a vote of 2/3 of the members present and voting at a members’ meeting (para. 22(g))

• membership may be terminated “by action of the board of directors resulting in the expulsion of the member” (para. 22(j))

[164] The board directed that a members’ meeting be held to consider enacting the new bylaw. Notice of Annual, General and Special Meeting of the plaintiff, dated March 8, 2010, was sent to the 38 members of the plaintiff.[^69]

[165] The annual general meeting of the plaintiff was held on March 28, 2010. At this meeting it was proposed to pass Bylaw #4 as approved by the board of directors, which would have the effect of, among other things, limiting membership in the plaintiff to 50 persons.

[166] The defendants did not agree with the proposed new by-law, specifically with the limit on the number of members. They presented a letter expressing their concerns at the meeting on March 28, 2010. The letter is signed by the defendants Sukhwant Singh Gill, Kehar Singh Gill, Ranjit Singh Aulakh and Paramjit Singh Gill. The letter reads as follows:

We the undersigned hereby record our opposition to the proposed By-Law no. 4 of the Corporation. Specifically, we oppose the proposed section 22(d) of By-Law No. 4, which purports to restrict membership in the Corporation to fifty (50) persons.

Our position in respect to the membership of the [Plaintiff] is as follows:

• The 749 members admitted to the [Plaintiff] in October, 2000, should be officially recognized as members of the [Plaintiff] and provided full membership rights. Such rights include, but are not limited to, receiving appropriate notice for all general meetings of the [Plaintiff] and being permitted to vote at such meetings, in accordance with the Ontario Corporations Act.

• Membership to the [Plaintiff] shall be open to all persons who meet the membership criteria and pay annual nominal membership dues. Membership shall not be restricted to a predetermined number of persons. An open membership will promote inclusivity and stability of governance. It will also provide a democratic system for the governance of the [Plaintiff].

We hereby place our position on record, and request that this letter be included in the Minute Book entry of the Corporation in respect of the Annual General Meeting of March 28, 2010.[^70]

[167] There are several points to be made about this letter. First, it is notable that it does not refer to the 344 persons allegedly added as members in 2008. Second, it appears to acknowledge that the first tranche of alleged members (725, not the 749 stipulated in the letter), were never “officially recognized” as members of the plaintiff. The thrust of the letter is that the 725 people ought to be formal members.

[168] In his cross examination, Kehar Singh Gill says that what he meant by this letter was that all 1087 members of the plaintiff ought to have been given notice of the meeting of March 28, 2010. He denies that he was saying, in the letter, that the 725 persons ought to be made formal members: he says that they had been “already recognized”.[^71]

[169] The defendants Kehar Singh Gill, Ranjit Singh Aulakh, Paramjit Singh Gill and Sukhwant Singh Gill attended the March 28th meeting.[^72] The plaintiff says that these defendants engaged in disruptive behaviour, trying to stop the meeting. They were unsuccessful in these efforts and eventually left the meeting. Before they did that, they left a copy of their letter with Havinderpal Singh Dhaliwal, the Secretary, and requested that a copy be included in the minutes of the meeting. After they left the meeting, though, the defendants and other who support their views continued to cause a disturbance outside the temple, apparently in an effort to disrupt the meeting. The board directed that Peel Regional Police be called. Order was restored, the meeting was continued. By-Law #4 was approved by the membership, and directors were elected.

[170] There is nothing in the letter that objects to the alleged financial mismanagement and misappropriation that the defendants now say lies at the heart of what they have been doing since 2008.

[171] I believe that the letter of March 28, 2010 most truly reflects the defendants’ concerns. They have a different view of how the plaintiff ought to be run: they believe it should have a large membership – that this is more “democratic” and will “promote inclusivity and stability of governance”.

[172] The defendants say the “bylaws were unlawfully passed” on March 28, 2010. They say that notice of the meeting was not sent to them. They say the meeting “was not concluded” and that the plaintiff “has failed to produce records demonstrating who… attended at this meeting, who signed, or who voted at this meeting…. [T]his meeting was unlawful.”[^73] The meeting was not unlawful. It was a properly constituted annual general meeting of the plaintiff. Notice was given to the defendants, which is why and how they came to be at the meeting, with their letter of protest.

[173] The defendants’ primary concern in this motion is the membership question. It is only in response to the plaintiff’s injunction motion and motion for partial summary judgment that the defendants begin to question whether notice of the March 28, 2010 meeting was given to 38 members, and whether the meeting was concluded properly. There is good reason these issues were not raised before: they would not avail the defendants. If the court concludes (as it has) that the plaintiff has 38 members, then technical insufficiencies in the meeting of March 28, 2010 would not help the defendants much: the reasonable remedy if the March 28, 2010 meeting of 38 members was improper would be to hold another meeting of the 38 members of the plaintiff. The defendants have not asked for that, for obvious reasons.

[174] I accept the evidence of Harvinderpal Singh Dhaliwal, the secretary of the plaintiff, that he gave notice to the members of the meeting of March 28, 2010. He sent some notices by registered mail, and others he gave personally when he saw people at the temple. I accept the list of attendees at the meeting produced during Mr. Dhaliwal’s cross examination.[^74] Defence counsel pressed Mr. Dhaliwal about why this document was not produced prior to his cross examination. The answer was not given by Mr. Dhaliwal, but was obvious to the court: the formal regularity of the meeting was not in issue: the issue was whether a meeting based on a membership of 38 was valid.

Defendants’ Meeting of April 18, 2010

[175] The defendants were entitled to be unhappy with the decision of the Annual General Meeting. They were entitled to disagree with it. They were entitled to voice their disagreement.

[176] What they did, instead, was purport to call their own general and special meeting of the plaintiff, on the basis of a membership of 1087 members. I find that they knew there were not 1087 members. Their position was that there should be a large membership, and when a validly constituted meeting of the membership did not support them, they then sought to appeal to a broader community. In the notice of meeting sent out, in Kehar Singh Gill’s name, Mr. Gill styled himself as part of “Members of [the Plaintiff] in support of broader membership”. The purpose of the meeting was said to be “removing all current directors from office” and “electing directors”.[^75]

[177] The proper manner in which to requisition a meeting is to obtain signatures of 10% of the members of the corporation requiring that a meeting be called.[^76] That requisition is then presented to management of the corporation. Management is then required to call a meeting within 21 days. Only if management does not do so may requisitioning members call a meeting themselves, on notice to the membership.

[178] The defendants purported to requisition a meeting. But they failed in several respects. First, they requisitioned the meeting ostensibly on the basis of 1087 members. Since there were 38 members, and not 1087, the requisition was invalid.

[179] Kehar Singh Gill answers this objection in his affidavit. He says that they had 120 signatures, and thus more than the 10% necessary under s.295 of the Corporations Act. Of the 120 “requisitionists”, 5 were part of the core group of 38 members. Thus “[t]he requisitionists constitute more than 10% of the members (regardless of which members list is used)” and thus the board was obliged to call a meeting either way.[^77] This argument is wrong. The requisition was not to call a meeting of the 38 members. And Mr. Gill understands this perfectly well. If the requisition could be read to require the board to call a meeting of the 38 members, then it complied: the requisition was delivered, allegedly, on March 10, 2010, and the annual general meeting of the 38 members was held on March 28, 2010.

[180] The requisitions had problems associated with them as well. The defendants’ theory was that there were 1087 members of the plaintiff, all of whom had been added by November 2008. Two of the requisitioning signatures came from Kehar Singh Gill’s twin grandsons, aged 17 when they signed the requisition in March 2010. Mr. Gill’s response was twofold; first that he had not signed up his grandsons, and so it was not his responsibility, and second, they were eighteen by the time of the meeting anyways. Those answers are beside the point. Under any theory of the case, Kehar Singh Gill’s grandsons were not members entitled to requisition a meeting. They were not among the 38 undisputed members. They were not among the members allegedly added in 2000 (when they would have been 8 years old). They were not among the members allegedly added in June 2008 (when they would have just turned 16). And neither they nor anyone else had been added to the membership since November 2008. They weren’t members, period.

[181] Further, the “minutes” purportedly taken of the meeting of April 18, 2010 record 95 persons in attendance. On the defendants’ theory of the membership, they did not have a quorum, on their own minutes.[^78] Further, the 10% requirement for a requisition was not quorum for the meeting. Quorum for a requisitioned meeting to remove the directors was 2/3 of the membership, or 695 members. It is not clear that 109 of the alleged 1087 members were at the “meeting” on April 18, 2010; it is clear that 695 were not.[^79]

[182] I am satisfied that there was no proper notice given to the membership of the meeting of April 18, 2010. When this question was raised during cross-examinations, the original answer given was “[w]e had distributed flyers and we had given this notice to the Punjabi media”. Then defence counsel asked to have time to look through his papers. Then counsel for the defendants referred to signed requisitions (which are not notices of the meeting but a demand that a meeting be held). Then defence counsel said that the requisition was “better than” proof of service of notice of the meeting. Then defence counsel said “I’m told that notices were sent by the post office”. Then Mr. Aulakh said that some 550 letters had been sent out with notice of the meeting. This would not constitute notice to 1087 members, the theory on which they defendants say they were operating.[^80]

[183] Once the current board heard of the efforts by the defendants to unilaterally call a meeting, they served trespass notices on the defendants, prohibiting them from attending on the plaintiff’s premises on April 18, 2010 for the purposes of holding a meeting.

[184] It is telling that, again, the defendants deny receiving the trespass notices. It is clear from the record that they did. Their principled defense to these notices is that management may not bar them from attending a properly constituted meeting of members, since they, themselves, are members. But rather than take the principled approach, they contest the notice itself. It is so sad that these defendants, in the guise of invoking important points of principle, are prepared to tell such naked lies under oath. The notices were served by the corporation’s solicitors, as evidenced by affidavits of service. In addition, the notices were posted at the temple itself, and were handed out at the temple on the day of the meeting. The on-site surveillance cameras show the defendant Dhillon walking in the hallway of the gurdwara, reading the trespass notice he had been handed. And yet he claims under oath he did not see it.

[185] Does the oath mean absolutely nothing to the defendants? What conclusion do they think the court will draw about them when faced with such overwhelming evidence that they are prepared to lie so baldly under oath, and then persist in lying when the evidence is placed before them? With great sorrow I conclude that the defendants care nothing for telling the truth or following the law. The only explanation appears to be that, where they think their cause is just, they need not observe the basic moral tenets so fundamental in any society governed by the Rule of Law.

[186] This lawless charade continued. The defendants, operating on a premise that the membership of the plaintiff was 1087, needed 10% of the “members” for the meeting of April 18, 2010. They had a solicitor with them. They did not have sufficient supporters with them to form a quorum, on their theory of the membership. The solicitor, who had waited for 45 minutes to an hour for the meeting to start, confirmed this with Mr. Sandhu, and then left the gurdwara.[^81]

[187] After the solicitor had left, the defendants say, they got their quorum. There is no evidence that they made any effort to contact their solicitor to ask him to re-attend the meeting. There is no evidence that this is true, and on the basis of the rampant deceit of the plaintiffs I am satisfied that they never had 109 of the 1087 purported members at their “meeting”. The absence of quorum has no bearing on the legality of what was happening, but it casts further light on the spirit motivating the defendants. They were proceeding without lawful authority, on the premise of membership figures they knew to be untrue. But even on this basis, they did not have a quorum for a meeting. So they made up a story about achieving quorum, and proceeded with their “meeting” anyway.

[188] At their “meeting”, the defendants and their supporters purported to remove the board of directors that had been elected at the annual general meeting less than three weeks earlier, changed the locks, filed a Form 1 with the Ministry of Corporate and Consumer Relations, and thereby seized control of the plaintiff.

[189] The defence sought to cross examine on the charges that were laid as a result of the violence that took place at the temple on April 18, 2010. Plaintiff’s counsel objected, and correctly so.[^82] First, let me say this as clearly as I can. It is disgraceful that these disputes degenerated into violence. Those responsible should understand that they have, by their conduct, brought great shame to these temples, to the plaintiff, and to the entire Sikh community. Consider: groups of grown men, unable to agree on how to run their temple, have resorted to violence as if they were a group of pre-adolescent children. What sort of an example does this set? What sort of impression does this create in the broader community of the Sikh religion and the Sikh community?

[190] Second, it is not for this court to determine the culpability of those involved in this violence. That is for the court presiding over charges that were laid.

[191] Third, the dispositions of any charges that were laid is not relevant to the determination of this case. The defendants were clearly in the wrong in trying to hold their “meeting”, when they had no legal right to do so. They were wrong in ignoring the trespass notices served on them and posted at the temple. And their wrongful conduct was, no doubt, highly provocative. But this notwithstanding, current directors or their supporters may have gone further than the law allows in responding to this illegal conduct by the defendants. Whether they did or did not do so has nothing to do with whether the defendants were entitled to act as they did.

The Proper Course

[192] If the defendants wished to contest the validity of the annual general meeting on March 28, 2010, the proper course for them was to bring the matter to court. If the court had concluded that the meeting was improper, a fresh meeting would have been ordered, on notice to the members. If there was a dispute about whether the membership was 38 or 1087, the court would have decided that dispute.

Analysis

[193] The plaintiff seeks summary judgment on the question of whether there are 38 members of the plaintiff. The plaintiff also seeks to continue the interim injunction until final disposition of this case, and damages for trespass. The defendants also seek summary judgment on the question of whether there are 1087 members. They also seek an order appointing a monitor and for an accounting of the plaintiff’s financial affairs.

[194] The defendants’ request for a monitor and an accounting were raised by in response to the plaintiff’s motion. The factual record is not complete on these issues. These issues are not connected legally or factually with the membership question. Indeed, during the period in which the alleged financial mismanagement occurred, both current directors and some of the defendants were responsible for the management of the plaintiff.

[195] I start with the issue of summary judgment on the membership issue. I do this because the resolution of that issue has some bearing on the questions relating to the injunctive relief sought by the plaintiff and the orders sought by the defendant for a monitor and an accounting.

[196] Second, I address the issue of whether to extend the interim injunction until trial, and if so, on what terms. I address the defendants’ request for a monitor and an accounting as potential terms of an injunction granted to the plaintiff, and then alternatively, on a stand-alone basis.

[197] Third, I address the plaintiff’s request for damages for trespass against the defendants.

[198] Fourth, I address the terms of my order, costs, and managing the next steps to be taken in this litigation.

1. Summary Judgment on the Membership Issue

[199] Rule 20.04(2) provides that the court “shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence….”[^83]

[200] Summary judgment may be granted for part of a claim where there is no genuine issue requiring a trial in respect of a discrete claim.[^84]

[201] Rule 20.04(2.1) provides that, in determining whether there is a genuine issue requiring a trial:

the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interests of justice for such powers to be exercised only at trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.[^85]

[202] At the time of argument, the parties did not have the benefit of the Court of Appeal’s decision on December 5, 2011 in Combined Air Mechanical Services Inc. v. Flesch.[^86] That decision, from a five member panel of the Court of Appeal, sets out the principles that govern motions for summary judgment under amendments made to the summary judgment rules effective January 1, 2010.

[203] The motions before me were argued largely on the basis of the analysis of the summary judgment rules set out by Karakatsanis J. (as she then was) in Cuthbert v. TD Canada Trust.[^87]

[204] I did not consider it necessary to seek further submissions from the parties in light of the decision in Combined Air Mechanical. This case does not turn on nuanced differences between Combined Air Mechanical and Cuthbert.

[205] In Cuthbert, Karakatsanis J. found:

The change in the Rules from “no genuine issue for trial” to “no genuine issue requiring a trial,” together with the explicit powers of the motions judge to make evidentiary determinations permits a more meaningful review of the paper record and expressly overrules jurisprudence that prevented motions judge[s] from making evidentiary determinations. As a result, consistent as well with the new principle of proportionality in Rule 1.04(1.1), cases or issues need not proceed to trial unless it is genuinely required.

The decision itself or the test for summary judgment – whether there is a genuine issue of material fact that requires a trial for its resolution as first articulated in Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 (C.A.) – has not changed. However, the cases that have since restricted a motions judge in assessing credibility, weighing evidence or drawing factual inferences have been superseded by the powers set out in the new Rule. Both the analytical review and the availability of oral evidence have considerably broadened the motion judge’s tools in a summary judgment motion…. The motions judge must take a “hard look” at the evidence to determine whether it raises a genuine issue requiring a trial…. New Rule 20.02 provides the judge with more tools to do so.

The new rule does not change the burden of a party in a summary judgment motion. Rule 20.021 provides that a party who seeks summary judgment must move with supporting affidavit material or other evidence to support its motion. Pursuant to Rule 20.02(2), a responding party “may not rest solely on the allegations or denial in the party’s pleadings but must set out in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial.” In other words, consistent with existing jurisprudence, each side must “put its best foot forward.” The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial, although in some circumstances the interests of justice may require that a material issue should be determined at trial, upon a full evidentiary record.[^88]

[206] In Combined Air Mechanical, the Court of Appeal emphasized that the purpose of the new rule is to

eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.[^89]

[207] The Court of Appeal describes three categories of cases where summary judgment may be granted:

(1) Where the parties consent to the matter proceeding by way of summary judgment (subject to the discretion of the court);

(2) Where a claim or defence is without merit;

(3) Where the claim or defence may be disposed of on the merits where the trial process is not required “in the interests of justice”.[^90]

[208] This case could fit marginally into category 1, and does fit squarely within categories 2 and 3.

[209] The plaintiffs, of course, consent to summary judgment being granted. The defendants also seek summary judgment, but to the effect that the membership of the plaintiff includes the contested tranches of 725 and 344 alleged new members. The defendants argue that if their request for summary judgment on this issue is denied, then there ought to be a trial respecting the plaintiff’s position. In the circumstances of this case, the defendants’ position on this issue is inconsistent. Either the fact-finding process respecting these issues will be enhanced by the trial process or it will not. On balance, I take the defendants’ position on this point to be an inelegantly worded set of alternative arguments and conclude that the defendants have not consented to this issue being decided by way of motion for summary judgment.

[210] The issue respecting the 725 persons allegedly added as members in 2000 fits into both categories 2 and 3. For the reasons set out below, I am satisfied that it is too late for this claim to be advanced by the defendants or by any of the 725 persons alleged to have been added as members in 2000. I am also satisfied that in any event, as a matter of fact, the 725 persons were never added as members of the plaintiff. In coming to this conclusion, I am satisfied that I have a sufficient factual record, and that nothing would be added during a trial that would have any effect on the outcome.

[211] The issue respecting the 344 members concerns the validity of actions purportedly taken by the board during a period when the President, the defendant Kehar Singh Gill, had purported to suspend four of the directors from the board. The proceedings of Mr. Gill’s board during this period (June to August 2008) were not lawful. There are disputed facts in respect to this issue, but most of them are tangential to the core issue. On the core issue, it is not contested that Mr. Gill purported to suspend four directors. Mr. Gill and his supporters then purported to govern the plaintiff through the board of directors.

[212] There are considerable other difficulties with the defendants’ position respecting the 344 persons said to have been added in June 2008. These other difficulties are also factual, and are contested. Nonetheless, the paper record overwhelmingly supports the conclusion that the conduct of Kehar Singh Gill and those supporting him in June to August 2008 constituted an unlawful seizure of power of the plaintiff by the unlawful exclusion of four directors.

[213] In respect to the aspects of this motion that fall into category 3, I must ask myself the following question: “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”[^91] The parties have exchanged extensive affidavit evidence and conducted full cross examinations. The “hard” questions were put to the witnesses during cross examinations. The substance of the witnesses’ answers is the basis on which I draw my conclusions. In the circumstances of this case, nothing would be added by watching these witnesses as they testify. It is apparent, for example, that minutes of a directors meeting from 2004 have been altered by or at the behest of one or more of the defendants. I do not need to decide who did it, or how many of them knew about it. The impugned minute does not accurately reflect what happened at the meeting, and this is established by the overwhelming weight of the record of how the plaintiff’s affairs have been conducted. Even a bravura Academy Award performance by a witness would not overcome the written record on this point.

[214] This is largely a “document-driven case”[^92] in respect to the membership issues that fall into category 3. The conclusions that arise from the documents are reinforced by the legal principles that apply to the aspects of these determinations that fall into category 2: the lengthy delay in asserting the defendants’ position respecting the 725 persons allegedly added in 2000, which has legal significance in and of itself, also reinforces the factual determination that the 725 persons were never added as members.

[215] Two points that could militate against summary judgment must, however, be acknowledged. The “proportionality principle” adds nothing to the analysis in this case. Control and management of the plaintiff is a very important issue for all parties. This is not a case where the costs and delay of a trial would be “disproportionate” to the underlying dispute. The parties are entitled to a process that ensures that all of the relevant and material evidence is before the court, and that the court has a full appreciation of that evidence, and the narrative into which it fits.

[216] Second, the motion for summary judgment has been brought “early in the proceedings”. The Court of Appeal notes that the “best foot forward” principle could disadvantage defendants by depriving them of the ordinary process for building and presenting a case:

... [i]t will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.[^93]

[217] All of these issues initially arose on an injunction motion in which the court was asked to decide who should be managing the plaintiff pending trial. On an interim basis, the court placed the plaintiff in the hands of the directors elected at the March 2010 Annual Meeting. That election was valid only if the membership of the plaintiff is 38. If the membership of the plaintiff is 1087, the March AGM was not on notice to the membership.

[218] When the injunction motion returned after the initial order, the parties were able to place more of a record before the court. On the strength of that record, the court extended the injunction until full materials could be exchanged to argue whether the injunction ought to remain in place until trial. Critical to this analysis was the question of membership: the court has to decide whether to leave a board elected by a membership of 38 in office, or replace it with a board purportedly elected by a membership of 1087. Alternatively, it would have been open to the court to direct that a fresh meeting be held to elect a board of directors, but in this event the court would have had to decide whether 38 members were entitled to notice and to participate at the meeting, or whether 1087 members were so entitled.

[219] Accordingly, the membership issue was a key question from the outset of the injunction motion. It remained a key issue through the exchange of motion materials and cross-examinations. This is not a case where the court could have told the parties to defer the issue until a trial could be conducted. Rather, the parties had to present their evidence so that this court could decide the injunction. In these circumstances, the question then is whether the process that has been followed has generated a record that is comprehensive on the membership issue. I am satisfied that it is. The defendants’ evidence to the contrary is a compendious denial of ten years of corporate proceedings, and is bound to fail.

Effect of Decision of Snowie J.

[220] Issue estoppel means:

Once a material fact… is found to exist (or not to exist) by a court… whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppels, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceeding.[^94]

[221] Res judicata applies:

… except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.[^95]

[222] The test for issue estoppel and res judicata is as follows:

(1) that the same question has been decided or reasonably could have been decided);[^96] and

(2) that the decision was final; and

(3) that the parties or their privies to the first decision are the same as the parties or their privies to the proceeding in which the estoppels or res judicata is raised.[^97]

[223] If these elements are present, the court then exercises its discretion as to whether to apply issue estoppel to preclude litigation of a point already decided.[^98]

[224] Kehar Singh Aulakh, Ranjit Singh Aulakh and Gurmeet Singh Grewal were all parties to the 2000 proceedings and they are bound by the results.

[225] I am not comfortable that the principles of res judicata or issue estoppel could apply to the rest of the defendants in this case. They were not parties to the 2000 Action. The plaintiff has not persuaded me that there is no triable issue that they were “privies’ to the parties. “Privies” has a technical legal meaning here, and means more than that someone was aware of the proceedings, or was close to one or more of the parties. The relationship between the “privy” and the party must be such as to render the privy bound by the participation of the party in the proceeding. Thus, for example, the sole shareholder and directing mind of a company will be a privy of the company for these purposes; the principal cannot ordinarily relitigate the self-same issue decided in proceedings involving the company. Here, the defendants who were not parties, and were not among the 18 members of the plaintiff or directors, may not have been associated closely enough with others involved in the case to be bound by the result.

[226] That said, Snowie J.’s decision operates in rem, and not just in personam. She determined the membership of the plaintiff in general, and not just as it affects the parties to the proceeding. Of course, a person with an interest in the outcome, who had no notice of the proceedings, could well seek to have the question reopened on that basis, provided that person moves promptly on the issue.

[227] Snowie J. had two issues before her: the identity of the directors and the identity of the members. She decided the first question: the five original incorporators were the only directors. She did not decide the second question because the parties did not pursue it before her. However, she did decide that there were 18 members “as of the commencement of the proceedings” (September 22, 2000). This finding, itself, does not create an issue estoppel over whether additional members were added on October 28, 2000.

[228] I conclude that the parties to the 2000 Action are bound by Snowie J.’s decision, but that Snowie J. has not decided the issue of whether 725 new members were added to the plaintiff on October 28, 2000.

Abuse of Process

[229] Even though issue estoppel and res judicata are not answers to the defendants’ position, the doctrine of abuse of process could still preclude relitigation of issues that have already been decided on a final basis. Abuse of process applies where permitting a claim to be asserted would undermine the integrity of the adjudicative process.[^99] Abuse of process is a discretionary principle, not limited by set categories. It has been described as an “intangible principle” used to bar proceedings that are inconsistent with the objectives of public policy:

The doctrine can be relied upon by persons who were not parties to the previous litigation but who claim that if they were going to be sued they should have been sued in the previous litigation. This was the case in M.C.C. Proceeds inc. v. Lehman Brothers Int’l (Europe), [1998] 4 All E.R. 675 (Eng. C.A.) where the second claim was against a wholly-owned subsidiary of the defendant in the first claim. Similarly, in Solomon v. Smith (1987), 1987 117 (MB CA), [1988] 1 W.W.R. 410 (Man. C.A.), at 419-20, the purchaser unsuccessfully sued the vendor and was seeking to sue the vendor’s agent. The court found that allowing the second action to proceed would amount to an abuse of process.[^100]

[230] This temple was plunged into acrimonious litigation in 2000, to determine the membership, and the identity of the directors. Anyone claiming to be a member, or a director, who knew of that litigation, needed to come forward at that time.

[231] The basis on which it is claimed that the 725 people were added as members arises because of “application forms” they signed, in the fall of 2000 for the purpose of raising money to fund the 2000 litigation. The result of the litigation was widely publicized in the community, and within the two temples operated by the temple. The defendants must have known about the 2000 proceedings. I agree that the defendants’ long delay in asserting a claim is a bar to their claims now, but not on the basis of the doctrine of abuse of process. Snowie J. did not decide this issue and so it cannot be an abuse of process to ask another court to decide it.

Limitations

[232] The “old” Limitations Act applied at the time of the 2000 proceedings.[^101]

[233] The “new” Limitations Act came into effect on January 1, 2003.[^102]

[234] Under the “old’ Act, the applicable limitations period was six years. Under the “new” Act it is two years. The transitional provisions in the “new” Act would have the limitations period commence on the latest of (a) the date the cause of action arose; (b) January 1, 2003; (c) the “date of discoverability”.

[235] None of the alleged 725 members added in October 2000 were accorded the rights of membership, ever.

[236] It is not necessary to parse the “date of discoverability” with exactitude here. The defendants are so far out of time that any common sense analysis produces a deadline many years before the commencement of these proceedings. In my view, anyone who thought they were supposed to be “members” of the plaintiff, entitled to vote at its members’ meetings, would have realized that they were not being accorded their membership rights before January 1, 2003. Accordingly, the date of discoverability is prior to January 1, 2003, and so, under the transitional provisions in the “new” Act, the limitations period of two years began to run on January 1, 2003.

[237] The claim respecting the 725 persons allegedly added as members in October 2000 was statute barred on January 1, 2005.

[238] The defendants’ entire argument on this point is as follows: “[t]he Limitation Period argument… is not applicable to these facts”. The defendant does not specify, in its argument, why “these facts” do not give rise to a limitations defence. The defendant cites one authority in this paragraph of its factum, and it has nothing to do with limitations periods.[^103]

[239] I am satisfied that the limitations defence is a complete bar to the defendants’ claims respecting the 725 members.

Estoppel by Convention

[240] Estoppel by convention arises where:

(1) The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly).

(2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.

(3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.[^104]

[241] I am satisfied that the parties proceeded on the shared assumption that there were between 22 and 38 members between 2001 and the winter of 2009/10. The corporate documents and the corporate practice throughout this period reflect this common assumption. Estoppel by convention is a good defence to the defendants’ position, at least in respect to those defendants who were officers, directors, or among the 38 core members of the plaintiff prior to June 2008.

Estoppel by Conduct

[242] If I had concluded that estoppel by convention does not arise because of the defendants’ evidence that they never agreed that the 725 were not members, but went along with it because they were outvoted, they would still be precluded from now asserting their position by reason of estoppel by conduct.[^105]

[243] Lord Denning provided a nice summary of the principle of estoppel, summarizing the many strands of this doctrine as follows:

The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the past 150 years in a sequence of separate developments: proprietary estoppels, estoppels by representation of fact, estoppel by acquiescence and promissory estoppels. At the same time, it has sought to be limited by a series of maxims: estoppels is only a rule of evidence; estoppels cannot give rise to a cause of action; estoppels cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of any underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.[^106]

The defendants Ranjit Singh Aulakh, Sukhwant, Paramjit and Kehar Singh Gill sat as directors of the plaintiff (Mr. Aulakh as the Secretary, responsible for keeping and distributing minutes, and giving notice of members’ meetings). Throughout this time they conducted the business of the plaintiff on the basis that the disputed 725 persons were not members of the plaintiff. They signed the directors meetings (as was the custom for all directors to do for each meeting). Over and over again, by their conduct, they affirmed their belief that the 725 individuals who gave money to the plaintiff for legal fees in 2000 were not “members” entitled to vote in meetings of the plaintiff. By their conduct, they are now estoppled from asserting that the 725 were members all along.

Position of Specific Defendants

[244] The defendants are not all in identical positions in this litigation. Neither counsel took time to distinguish the legal position of each defendant with particularity. I do not consider that this is necessary for the purpose of the membership issue or in respect to the interlocutory injunction.

[245] Some of the defendants have a long history with the plaintiff, as board members, officers and members. Some have been congregants, but have not had an official role in the conduct of the plaintiff’s affairs. Others appear to have had little or nothing to do with the plaintiff before March 2010.

[246] These distinctions could matter when it comes to the application of res judicata and issue estoppel. I have declined to detail the histories of each of the defendants to show where they fit on the map of theories precluding their claims. All of them are prevented from their claims on the membership issue for the primary reasons of (a) delay in asserting the claim; and (b) my conclusion that, as a matter of fact, the 725 donors were never approved as voting members.

The 725 Were Never “Members” of the Plaintiff

[247] The preceding analysis satisfies me that the defendants are not entitled to assert a claim that the 725 persons who signed forms in 2000 are “members” of the plaintiff entitled to attend and vote at members’ meetings. Thus it is not necessary to determine whether there is a factual basis for the plaintiffs’ position on this issue. I do so, nonetheless, for two reasons. First, in case this decision should be reviewed on appeal, this is an alternative basis for my conclusion. Second, the record discloses that the defendants’ position on this issue is so devoid of merit as to justify the plaintiff’s request for summary judgment. In simple terms, the defendants have engaged in a thorough-going abuse of process in order to coat their unlawful misconduct with a veneer of legal respectability. They have failed. There is nothing respectable about what they have done, and the more they have pursued this, the more dishonourable their conduct appears to be.

[248] Oddly, in a section of their factum entitled “Conclusion”, the defendants argue as follows: “[i]t is egregious that neither the 725 nor the 344 were admitted as members of the plaintiff as they clearly should have been”.[^107] This motion is not about whether these additional members “should have been” approved. It is about whether they were, in fact, approved.

[249] As a matter of fact, the 725 were never approved as members. The purported approval of 344 members did not happen in June 2008, and in any event would have been a nullity, for the reasons I have expressed.

2. Granting the Interlocutory Injunction And Appropriate Terms

[250] An interlocutory injunction may be issued where it is “just or convenient” to do so. The three-part test for when it is “just or convenient” to grant an injunction is:

(1) Is there a serious issue to be tried?

(2) Will the plaintiff suffer irreparable harm if the injunction is not granted?

(3) Does the balance of convenience favour granting the injunction?[^108]

Setting Aside or Varying an Injunction

[251] The defendants argue that the injunction ought to be set aside because the plaintiff did not provide adequate disclosure at the return of the original injunction. They cite authority for the proposition that “if there has been material non-disclosure before the judge who granted the interlocutory injunction, then the order granting the relief must be set aside to protect the integrity of the court process and the integrity and importance of injunctive relief”.[^109] There is no merit in this submission. The defendants rely upon cases where an injunction was obtained without notice to the defendants. That was not the case here. Where a plaintiff asks the court to grant an order without notice to the other side, there is a duty on the moving party to make full and fair disclosure. That duty does not exist when the other side is given notice and is present when the injunction is argued. In this case there was very short notice. That does not affect the application of their principle. The court was aware that it did not have the defendants’ side of the story at the first return date, which is why the court scheduled a second date to hear argument on the interim injunction. I must add here that this is trite law, and the defendants, in failing to distinguish in their argument between cases where this duty exists, and where it does not, are being less than forthright with the court about the law. This is not appreciated. All parties are obliged to do their best to state the law to the court correctly.

[252] An injunction may be dissolved where “the facts as presented [now] are substantially different from the facts upon which the original order was given or have changed so dramatically that the factual underpinnings of the earlier order are no longer valid”.[^110] This is a far cry from the “full and fair disclosure requirement” on a motion brought without notice. Of course, if a proper factual basis for the injunction appeared to exist no longer, then it would be appropriate to dissolve the injunction. But hat is not the case here.

[253] The defendants also ask, in the alternative, that the injunction be varied. There is no doubt that an interim injunction may be varied at the stage an interlocutory injunction is granted extending the interim injunction until trial.[^111]

[254] The defendants ask that the “letter requirement’ in the interim injunction be set aside, and that the court appoint an inspector and an auditor.

[255] The “letter requirement” is a term of the interim injunction. It is a term that restricts the ability of the defendants to attend at the temples for the purpose of worship.

[256] I would vary the “letter requirement” to better reflect the power that the board of directors has in running the plaintiff. It is for the board to decide who may come to the temples, and on what basis. It is within the authority of the board to exclude the defendants entirely from the plaintiff’s premises. Of course, the board is answerable to the membership for everything it does, and the plaintiff has a broader interest in presenting itself to the larger community in a favourable light. No doubt the board would wish to take these factors into account in deciding whether and on what terms any of the defendants can continue to participate in any of the activities of the plaintiff. But, to be clear, the court is not ordering the plaintiff to permit any of the defendants on the premises of the plaintiff, or to engage in any particular process for deciding this issue. It is a matter for the plaintiff to decide, not the court.

[257] I do not consider the request to appoint a monitor or an auditor to be related to the injunction granted to the plaintiff. Rather, I consider this a separate request for injunctive relief requested by the defendants. Thus, in my view, the defendants should have to satisfy the court that this relief ought to be granted prior to a trial on these issues.

[258] I do not consider that the defendants have met any of the three steps in the injunction test for granting this relief on an interlocutory basis. I am not prepared to reject their claims and dismiss this claim for relief: if they wish to pursue it, they may continue with these allegations in this proceeding. But, on the record before me, I would not be prepared to rely upon their evidence. The defendants wish to interfere with the management of the plaintiff, in the first instance by taking the plaintiff over themselves, and in the second, by causing trouble for the current board. The appointment of a monitor and an auditor would be an intrusion into the ordinary management function of the board and the officers, and the plaintiffs have not persuaded me that there are proper grounds to do that.

[259] The defendants put their claim in this regard as follows: “[t]he defendants are prevented from ensuring that donations and funds are not misappropriated by the Plaintiff members”.[^112] Simply put, the defendants have no right “to ensure” the plaintiff is properly run. That is for the board to do. And that is for the entire membership to do. It is not for the defendants, on their own, to do. The court will not help them do it.

Applying the Injunction Test

[260] There is a serious issue to be tried that the defendants have acted unilaterally to seize control of the plaintiff without legal justification. They have taken steps in this regard repeatedly from the spring of 2008 to April 2010. There is good reason to believe that they would continue in this conduct if not restrained from doing so.

[261] The plaintiff will suffer irreparable harm if the injunction is not granted. The plaintiff needs to be in the hands of the lawfully elected board, which is charged with responsibility for managing its affairs. The board should not be distracted from its duties by fighting a constant rearguard action against the defendants.

[262] The balance of convenience strongly favours the plaintiff here. On the record before me, the current board is the legally elected board of directors.

[263] In addition, this case falls into that class of cases where it is difficult to maintain a neutral state of affairs pending trial. The essential fight here is over control of the plaintiff. The court has three options: to leave the current board in charge, to place the defendants in charge, or to appoint an independent third party to manage the plaintiff. The third option is neither practical nor fair in this case. The record strongly favours the conclusion that the current board is the legally elected board of directors. That factor, alone, weighs in favour of continuing the injunction until trial. In addition, the defendants have demonstrated that they will engage in self-help: they will lie, they will alter documents, and they will persist in untenable claims to promote their ambition to take over the plaintiff. The defendants argue that the current directors do not come to court with clean hands, and thus the plaintiff should not be entitled to injunctive relief. I make no comment on the relative cleanliness of the hands of the current board. That may have to await trial on the issues concerning financial irregularities. The defendants’ hands are grimy with deceit.

[264] I heard some argument that I should favour “preserving the status quo” pending trial. There is a long history of dicta about “preserving the status quo” in injunctions cases, though it is not used so much as it used to be. This case illustrates why. Which “status quo” ought to be preserved? At the time the initial injunction was heard, the defendants had seized control of the plaintiff – was that the status quo? Prior to that, the current board had been elected at the contested meeting in March 2010 – was that the status quo? Should the court go back to prior to the contested March meeting, and place the “old” board back in charge? Should the court go back further, to the contested events in 2008? What, precisely, is the status quo?

[265] In my view, a better formulation of the “status quo’ principle, at least in a case like this, is that, to the extent reasonably possible, the court should craft a remedy that permits the court to do justice at the end of the case, that is, preserving a reasonable state of affairs until justice may be done at trial. Even that analysis does not carry matters very far when the interim remedy is, in fact, the trial remedy until the trial is held. Temple life will continue, and someone must manage it until the trial is held.

[266] In that context, the defendants’ request that the court simply dissolve the injunction is impractical, and would actually endorse lawless and violent confrontation as a means for solving these sorts of disputes. In practical terms, the court has to make the call: either leave the current board in charge, or place the defendants in charge. The court can hardly make no order, and leave it to the two sides to battle it out as they have been doing.

[267] In this context the defendants argue that their request for a monitor and an auditor has force. In some business contexts it could have force. Requiring parties to keep an accounting of sales, for example, has been used when there are competing claims to the rights to make those sales (common in non-competition cases). But the plaintiff does not run a business that could be asked to disgorge its profits. The plaintiff is a not-for-profit charity. Appointing a monitor and auditor would not be for the purpose of confirming a damages award that might be made at the end of the case, but rather to supervise the day-to-day management of the plaintiff. In that respect it is more akin to appointing a receiver to manage the company’s affairs than it is to ordering an accounting for the purposes of awarding damages at the end of the case. The defendants would need a much stronger record than they have presented to this court to justify such a sweeping interference in the conduct of the plaintiff’s business prior to trial.

[268] I am also mindful, in coming to this conclusion, that the plaintiff’s revenues are a result of donations from persons who attend the temple, members and others in the community. Those persons make their own decisions about whether to donate to the plaintiff. If donors are not satisfied that proper care is being taken of their donations, they may stop making those donations: it is up to them.

[269] The defendants also ask that I dispense with the requirement in the injunction that they not be on the plaintiff’s premises, unless for a special event for which they are invited, in writing, by a member. This is referred to in argument as the “letter requirement”. I can best respond to this request by quoting from the cross examination of Sarwan Singh Gill, who is a current director:

Q: But if they wanted to come and worship in your temple, is there an objection?

A: Yes, there’s an objection.

Q: Why?

A: Because every time they come, they tried to intimidate the congregation and I believe they’re going to do it again.[^113]

Sounds reasonable to me. More to the point, though, reasonable or not, the directors of the plaintiff are responsible for managing the plaintiff’s affairs. The defendants have caused enormous trouble for the plaintiff, and in my view it is open to the directors to impose conditions on the defendants’ attendance at the plaintiff’s premises, or to bar them from attending completely.

[270] Kehar Singh Gill deposes in his affidavit that defendants “are being denied the right to practice their religion in their chosen house of worship as a consequence of a restraining order issued by this court at the plaintiff’s request.”[^114] The defendants do not have a “right” to worship at the plaintiff’s temples. Their activities have caused the plaintiff considerable difficulty and expense, and the plaintiff is within its rights to ask that they be restrained from attending there further. Given the manner in which the defendants have acted, their continued participation in temple affairs could well lead to more conflict, and even violence. It will be for the board of directors and the members of the plaintiff to decide what they will do about permitting any of the defendants to participate in the life of the plaintiff’s temples in future.

3. Remedies for Trespass

[271] The plaintiff alleges that the defendants trespassed by attending at the plaintiff’s property on April 18, 2010 for the purpose of the defendants’ meeting.

[272] “Trespass is an unjustifiable interference with possession.”[^115] There is no doubt that some of the defendants trespassed by seizing possession of the temples.

[273] The plaintiff circulated notices under the Trespass to Property Act[^116] These notices, directed to the defendants, gave them notice that they were not permitted on the premises of the plaintiff for the purposes of their purported “meeting” on April 18, 2010.

[274] The defendants, of course, claim that they were acting under colour of right in calling the meeting, and, presumably, attending it. I have found that they were wrong in this. But to add an additional hue to this story, the defendants claim not to have seen the notices under the Trespass to Property Act, which were posted prominently at the temple. There is evidence, which I accept, that some of the defendants were personally served with these notices in advance. I am convinced that, for any who did not receive personal service, the notice came to their attention from the other defendants. The defendants were acting in concert – according to them on the basis of their rights as members. Of course they were talking to each other about this meeting ahead of time – they were planning it.

[275] The core of this case is not about the finer points of the Trespass to Property Act. If the defendants had been in the right, then, though this court might have been critical of their using self-help, they would not have been trespassing. The court finds it sadly comical that the defendants provide preposterous stories in their evidence to deny having received the notices, when they obviously did. The cross examinations are replete with lies on this issue:

Q: Did you see any ‘No Trespassing’ signs in the Temple that day?

A: No, I wasn’t looking for them.

This is such a telling “tell”. The question was not whether he was looking for them; they were posted prominently. In adding the phrase “”I wasn’t looking for them”, subtly changed the question so he could answer “no”, because, of course, he could not have missed the signs that had been posted on all of the doors.[^117]

[276] I find that defendants were trespassing on April 18, 2010 when they attended the temple, and thereafter when they were in possession of the temple, until they were removed pursuant to this court’s order.

[277] This said, the essence of the wrongful conduct here was not misuse of private property, but unlawful seizure of the reins of control of the plaintiff. Even if I had concluded that the defendants were in the right in their view that membership is 1087 rather than 38, I would nonetheless have concluded that they had not acted properly in using a self-help remedy to assert their position. This should have been brought to court before matters reached the pass that they did – in April 2008, March 2010, and April 2010. Both sides are to blame for not bringing the matter to court earlier, but the principal fault lies with the defendants. The defendants should not have purported to oust part of the board on Kehar Singh Gill’s unilateral decision. Defendants should not have tried to disrupt the meeting in March 2010 using riotous and disruptive behaviour. Defendants should not have persisted in their plan to hold a meeting in April 2010 when it became clear that the current board took the position, in advance, that the meeting was not lawful and would not be permitted. Both sides engaged in a certain degree of brinksmanship, but it was the defendants who took the initiative in pursuing provocative actions, knowing they were likely to lead to confrontation.

[278] To be clear, if the defendants felt that there was conduct by board members justifying their removal in the spring of 2008, it was for the defendants to bring this to a proper members’ meeting, or, if that was not practical, to bring the matter to court. If the defendants believed the annual general meeting in March 2010 was not constituted properly, it was for them to bring the matter to court, either prior to or after the meeting. If the defendants believed they had requisitioned a proper meeting of members in April 2010, but that the board would not permit the meeting to take place, it was for the defendants to bring that issue before the court.

[279] I heard submissions about who was responsible for the violence that did take place. I say nothing about the culpability of individuals involved – that is a matter for the criminal justice process. I heard submissions respecting who had been charged by police: a charge is not a conviction. What I do say is that, regardless of whether there was criminal violence, and regardless of who may have committed it, it is clearly true that the aggressive and provocative actions of the defendants created a situation where violence was not just possible, but also likely. This may not have justified the actions of those who were present. But it is in the nature of self-help remedies and vigilantism to raise the emotional temperature of conflict and lead to an increased risk of violence.

[280] I cannot state this strongly enough. Conduct in the management of temples, such as those owned by the plaintiff, must not be permitted to degenerate to the point of physical confrontation. While I do not mean to say anything that could be read as exonerating the conduct of anyone who resorted to violence, I want the defendants to understand that this court lays the responsibility primarily on them for creating the atmosphere where violence was a reasonably foreseeable result. For this, they should be ashamed of themselves.

[281] I have not distinguished among the defendants throughout much of this decision. The particular role of individual defendants is not material in respect to the declaratory relief or the injunction. It is not the case, however, that a blanket finding can be made in respect to the trespass allegations. Nor should a remedy be fashioned for trespass on a global basis. Some of the defendants were leaders in mounting the meeting of April 18, 2010. Others were supporters. On the record before me, I am not satisfied that I can draw conclusions about the degree of culpability of individual defendants for trespass.

[282] Further, I am not satisfied that I am in a position to determine appropriate penalties for trespass at this point. Among other things, I would want to consider any costs award that may be made against the defendants before considering what, if any, monetary penalty ought to be imposed for trespass. The issues of the individual liability for trespass, and appropriate sanctions for trespass, are left to be decided either on further motion before me, or for the trial judge, as the plaintiff may elect.

Defendants’ Tactics

[283] Documents filed with the court and submissions made by counsel enjoy absolute privilege. This privilege is necessary to protect the integrity of the fact-finding process in court. Parties and their counsel must be free to pursue their claims without fear of subsequent defamation proceedings.

[284] But this does not grant parties to litigation license to make irresponsible statements. Especially when there are allegations of serious misconduct, care must be taken to separate facts from conclusions, and arguments from facts. Time and again it has been said, baldly, that the current board has “stolen donations” from the plaintiff. These are allegations, they are unproven, and they are cast in terms far too wide given the very limited record before the court. At the highest for the defendants, it can be said that the defendants have some evidence which could justify an allegation of a single instance of theft by one director in 2006. At the highest for the defendants, it can be said that there is some evidence that the current directors have declined to pursue these allegations. These facts do not justify the repeated characterization placed on these events by counsel that the current board has “stolen donations” and has been “covering up the problem”. Counsel may argue that the court should draw this conclusion from facts before the court, but counsel may not assert these conclusions as facts.

[285] This is no small point in a case that seems so incendiary. Repeat a statement over and over, with sufficient gravity of tone and self-assurance, and perhaps some people will come to believe it is true. This should not be done from the privileged position that counsel enjoys.

[286] Similarly, the parties themselves must be circumspect in the way in which they word their evidence around these issues. The court wants the evidence of the witnesses, not their personal opinions or conclusions.

[287] There is another point about the defendants’ argument. Most of their factum does not read as if it was written by counsel. It is replete with factual assertions that are (a) conclusory; and (b) not referenced to the record. This creates an enormous burden for the court, and it is not appreciated. The easiest course would be to reject, out of hand, factual assertions that are not supported by references to the record. But the goal here is not to award marks for the best factum, but to get to the truth of the matter. I have gone through the record, repeatedly, to try to tie the defendants’ version of the facts to evidence in the record. This should not be required. It is not necessary to reference every minor detail in the record, and it may not be necessary to give any references for undisputed facts. But for controversial statements, there should be some way for the court to check the record in an efficient manner.

[288] A great deal of the factum can be characterized as an unbounded screed, full of generalizations and conclusions, but light on analysis and evidence. I could not have said this without a minute review of the record, repeatedly, a far more laborious task than should have been the case.

[289] The point here is not to scold counsel, who is extremely capable and experienced. It is to make an advocacy point. The tactic of leaving the factum devoid of references to the record, and punctuated by sweeping conclusions of fact, has not availed the defendants here. The further I proceeded in the exercise of checking the factum against the record, the less reliance I could place on factual statements in the factum.

[290] A factum is written argument. That does not leave it open to deliver a written polemic. There should be a “facts” section of the factum, that underpins the argument. It is currently popular to blend facts and arguments. In my view, when this is done properly, it makes it easier to grasp the argument and evaluate the arguments. Where, as here, the recitation of the facts is the argument, and is not referenced to the evidence, the factum fails in its task to persuade. It creates suspicion in the mind of the judge. And so every controversial statement of fact must be checked to ensure its accuracy.

[291] Conclusions, or inferences, are of no value when stated baldly.

[292] Good advocacy is not the presentation of conclusions of inferences in a patterned argument. That is necessary, of course, but that is the easy part. Good advocacy is the careful selection and organization of facts that lead to the conclusions or inferences that then feed to a particular conclusion. The absence of a clear recitation of facts from which inferences or conclusions might be drawn has left it to the court to review the evidence to determine if there is evidence in the record to support the broad assertions in the defendants’ factum.

[293] It should go without saying that anything in a factum that is presented as a “fact” should be unquestionably true. Where it is sought to draw an inference from facts, or argue conclusions from facts, the court should not be left wondering where the boundary lies between “the facts” and inferences or conclusions.

[294] I repeat that the purpose of these comments is not to comment counsel personally. I know that time was limited for counsel here, and I expect there may well have been financial constraints. Nor is it to moan about how much work was involved in reviewing this case to prepare comprehensive reasons. The judge gets paid, whether it is a short or lengthy undertaking. This is an important matter for the parties and for the local community. My point is this: the style and nature of argument, the arguments raised to justify the defendants’ behaviour, and the absence of substance to much of what has been said for the defendants creates a strong impression that the deliberate tactic here was to obfuscate, perhaps in the hopes that would lead the court to throw its hands in the air, conclude that it is “too much of a muchness” to decide on a motion, and send the matter off to trial, years hence.

[295] I cannot refrain from comment on the legal argument as well. It really bothers the court when experienced counsel mis-state the law. Citing principles that apply to without notice motions without acknowledging the distinction when the motion is with notice could mislead a judge not familiar with this area of the law. Citing a Prince Edward Island statute as the law in Ontario could mislead any judge (given that the proper complete citation for the statute was not provided). Included in the defendants brief of authorities was the Court of Appeal decision in Farmers’ Mutual Insurance Company v. Pinder.[^118] The case was not cited in the factum. The case concerns whether the subrogation right of an insurer may be exercised simply upon the insurer paying the loss award to the mortgagee without the insurer establishing that it has no liability to the insured. I am sure that my legal horizons have been expanded by reading this decision, for which, surely, I must be grateful. But it has nothing whatsoever to do with the case before me.

[296] Finally, I do not want these comments to be misunderstood as a focus on advocacy rather than substance. Counsel did not lose a meritorious case for his client here. He “pulled out all the stops” here, including a few that ought not to have been pulled. But my decision is not based on advocacy decisions, but rather the record of the evidence and the law. The defendants have advanced an unmeritorious position, and have been unwavering in their defense of the indefensible. It is difficult, indeed, for counsel to find a decent argument for clients who approach things in this way. It is not for the clients to now blame the lawyers because I have been critical of defense tactics. My criticism of these tactics is but a minor rebuff compared to my conclusions about the clients themselves. The clients have lied, repeatedly and flagrantly. Their counsel has done what he can to defend them, a very difficult task.

Peroration

[297] In his affidavit, Kehar Singh Gill deposes:

I am very emotional about this case. As one of the founding directors of the [temple] it has always been my goal to include members of the Sikh community in the [plaintiff] so that the community could form a strong sense of unity. In my view, the Sikh community has a right to know whether their charitable donations have been properly utilized for their intended purposes, which is why I believe that any potential fraud must be uncovered.[^119]

Mr. Gill needs to set his emotions aside. As a founding director, and obviously one of the guiding lights of the plaintiff from its outset, he has no more right than any other member to direct the plaintiff’s affairs. Just because he feels strongly about this does not give him a basis to walk in and take over.

[298] In law, it does not matter what “numerous members of the Sikh community feel” about the issues in this case. The plaintiff is not run by “numerous members of the Sikh community”. It is run by its board of directors, elected by its voting members. If members of the Sikh community are not satisfied with the way the plaintiff is being run, then they will attend other temples, or will start new ones. They will not rush into these temples and start a riot.

4. Order, Costs and Case Management

[299] I declare that the 38 members of the plaintiff identified by the plaintiff as its voting members are the only voting members of the plaintiff.

[300] I declare that the 725 persons allegedly added as members of the plaintiff in October 2000 are not and have never been members of the plaintiff.

[301] I declare that the 344 persons allegedly added as members of the plaintiff in June 2008 are not and never have been members of the plaintiff.

[302] The interim injunction granted by this court initially on April 23, 2010, and varied thereafter by this court, shall continue on an interlocutory basis until the final disposition of the issues in this action or other court order. If the parties require direction respecting specific terms of this injunction, they shall schedule an appearance before me at 9:00 a.m. on any court day in February 2012.

[303] The allegations of trespass are adjourned to another day, either on further motion before me after costs of this motion have been decided, or to the trial judge.

[304] By February 28, 2012, the plaintiff shall provide written costs submissions, a draft judgment, and a proposed case timetable for all steps necessary to bring this matter to trial. The defendants shall provide responding submissions by March 31, 2012. There shall be no reply submissions or oral submissions on these issues unless I subsequently direct otherwise.

D.L. Corbett J.

BRAMPTON COURT FILE NO.: CV-10-1488-00

DATE: 20120203

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Sri Guru Nanak Sikh Centre Brampton

Plaintiffs

• and –

Hargeet Singh Dhadda et al.

Defendants

DECISION

D.L. Corbett J.

Released: February 3, 2012

[^1]: Kehar Singh Gill, explaining his authority, as President of the plaintiff, to unilaterally “suspend” directors of the plaintiff: cross Examination of Kehar Singh Gill, QQ 373-376.

[^2]: The defendants say that there are 1087 members of the temple, including the 38 persons the plaintiff acknowledges as members.

[^3]: The defendants allege 1087 members, not 1086.

[^4]: That is, commencement of the litigation before Snowie J.

[^5]: I now know it was on September 22, 2000.

[^6]: Plaintiff’s Compendium, tab 1.

[^7]: Bylaw #1, para. 13.

[^8]: Defendants Factum, paragraph 27.

[^9]: Affidavit of Rajinder Singh Sandhu sworn June 17, 2010, para. 9; cross-examination of Mr. Sandhu at Q.Q. 6-8.

[^10]: Affidavit of Rajinder Singh Sandhu, sworn June 17, 2010, para. 9.

[^11]: For example, Affidavit of Kehar Singh Gill, sworn June 17, 2010, para. 13.

[^12]: Affidavit of Kehar Singh Gill, sworn June 17, 2010, para. 37.

[^13]: Statement of Claim in the 2000 Action, para. 1(b) and (c),

[^14]: Statement of Claim in the 2000 Action, para. 2.

[^15]: Statement of Claim in the 2000 Action, pp 4-6.

[^16]: Decision of Snowie J., para. 13.

[^17]: Decision of Snowie J., paras. 41-42.

[^18]: Plaintiff’s Compendium, tab 8, para. 5.

[^19]: Plaintiff’s Compendium, tab 123.

[^20]: Affidavit of Rajinder Singh Sandhu, sworn June 17, 2010, para. 13.

[^21]: Cross examination of Rajinder Singh Sandhu, QQ 13-17.

[^22]: Affidavit of Service of Sarwan Singh Gill sworn April 12, 2006, Plaintiff’s Compendium, tab 125. In cross examinations, the defendants sought to establish that notice was not given to all 22 members. That is irrelevant; no one is challenging the borrowing bylaw, which has not been in place for five years. It is clear that notice was given on the basis of 22 members, and not on the basis of an additional 725 members.

[^23]: Exhibit “G” to the Affidavit of Sarwan Singh Gill, Plaintiff’s Compendium, Tab 109, is a copy of the minutes from April 23, 2006.

[^24]: Plaintiff’s Compendium, tab 19, tab 109.

[^25]: Affidavit of Sarwan Singh Gill, paras. 15-16, and Exhibits “I” and “J”, Plaintiff’s Compendium, tab 109, 126. Note that the letter giving notice was signed by “Ranjit Singh Lopoke”, a name by which Ranjit Singh Aulakh was then known.

[^26]: Cross examination of Sarwan Singh Gill, QQ 716-720.

[^27]: Defendants’ Factum, paragraph 20.

[^28]: Defendants Factum, paragraph 26.

[^29]: Defendants Factum, paragraph 23.

[^30]: Continued cross examination of Ranjit Singh Aulakh on July 15, 2010, QQ. 110-111.

[^31]: Exhibit “J” to the affidavit of Sarwan Singh Gill sworn May 4, 2010.

[^32]: As established on cross examination, minutes for previous meetings sometimes had an item number or letter with no item beside it. See, for example, minutes of October 27, 2002 and for May 22, 2003: cross examination of Ranjit Singh Aulakh, QQ. 172-179.

[^33]: Affidavit of Kehar, para. 22.

[^34]: Rajinder Singh Sandhu’s evidence on this point is nothing more than Mr. Sandhu adopting Kehar Singh Gill’s evidence on this point: Mr. Sandhu’s belief in the veracity of Mr. Gill’s evidence is nothing more than oath-helping and of no probative value: Affidavit of Rajinder Singh Gill, sworn June 17, 2010, para. 14.

[^35]: See cross examination of Kehar Singh Gill, QQ 465 – 469.

[^36]: Plaintiff’s Compendium, tab 40.

[^37]: Examples of the receipts are attached as Exhibit “F” to Kehar’s Affidavit.

[^38]: Affidavit of Kehar Singh Gill, paras. 23-27.

[^39]: Defendants’ Compendium, vol. 1, tab 19.

[^40]: Affidavit of Rajinder Singh Sandhu, sworn June 17, 2010, paras. 20-23.

[^41]: Affidavit of Kehar, para. 29.

[^42]: Affidavit of name, and Exhibit “L” to that Affidavit, Defendant’s Compendium, vol. 1, tab 15.

[^43]: Defendants Factum, paragraph 64.

[^44]: Affidavit of Sarwan Singh Gill, paras. 23-26, Defendants Compendium, vol. 1, tab 14.

[^45]: Cross Examination of Sarwan Singh Gill, Q.163, Defendants’ Compendium, vol. 1, tab 3.

[^46]: Cross Examination of Sarwan Singh Gill, QQ 170-171, Defendants’ Compendium, vol. 1, tab 4.

[^47]: Defendants Factum, paragraph 8.

[^48]: See affidavit of Sandhu sworn June 17, 2010, paras. 26-27.

[^49]: Affidavit of Sarwan Singh Gill, para. 32. Cross examination of Sarwan Singh Gill, QQ 228-231, Defendant’s Compendium, vol. 1, tab 7.

[^50]: In cross-examinations, the defendants seem to be suggesting that because the plaintiff is incorporated under the laws on Ontario, and not under the laws of Canada, its charitable activities are restricted to donations to be used within the Province of Ontario. No law was provided to me to support this proposition, and I remain somewhat unsure about what the defendants are complaining about in respect to this issue. See cross examination of Sarwan Singh Gill, Q. 243.

[^51]: Cross examination of Sarwan Singh Gill, Q. 234.

[^52]: Exhibit “M” to the Affidavit of sarwan Singh Gill.

[^53]: Continued Cross examination of Ranjit Singh Aulakh on July 15, 2010, QQ. 19-45.

[^54]: Affidavit of Sarwan Singh Gill, para. 32.

[^55]: Affidavit of Rajinder Singh Sandhu, sworn June 17, 2010, para. 26.

[^56]: Cross examination of Sarwan Singh Gill, QQ 222-224.

[^57]: Continued cross examination of Ranjit Singh Aulakh on July 15, 2010, QQ. 161-192, 219.

[^58]: Exhibit “E” to the Affidavit of Rajinder Singh Sandhu, sworn June 17, 2010.

[^59]: Affidavit of Rajimnder Singh Sandhu, sworn June 17, 2010, paras. 24-25.

[^60]: Defendant’s Compendium, vol. 1, tab 15.

[^61]: Defendants’ Compendium, vol. 1, tab 16.

[^62]: Affidavit of Rajinder Singh Sandhu, sworn June 17, 2010, para. 34.

[^63]: Affidavit of Kehar Singh Gill, sworn June 17, 2010, para. 42.

[^64]: Corporations Act, R.S.O. 1990, c.C.38, s.94.

[^65]: Corporations Act, R.S.O. 1990, c.C.38, s.94.

[^66]: Affidavit of Kehan Singh Gill, sworn June 17, 2010, paras. 40-41.

[^67]: Exhibit “S” to the affidavit of Sarwan Singh Gill.

[^68]: Cross-examination Ranjit Singh Aulakh, QQ 68-70, Plaintiff’s Compendium, tab 49.

[^69]: Exhibit 4 to the cross examination of Sarwan Singh Gill.

[^70]: Exhibit “T” to the Affidavit of Sarwan Singh Gill.

[^71]: Cross examination of Kehar Singh Gill, QQ. 550-580.

[^72]: Defendant’s Compendium, vol. 1, tab 10.

[^73]: Defendants factum, paragraphs 42-44.

[^74]: Cross examination of Harvinderpal Singh Dhaliwal, QQ. 244-280.

[^75]: Exhibit “F” to the Affidavit of Sarwan Singh Gill.

[^76]: Corporations Act, R.S.O. 1990, s.295.

[^77]: Affidavit of Kehar Singh Gill, paras. 17-18.

[^78]: Plaintiff’s Compendium, tab 129.

[^79]: Bylaw #1, para. 13.

[^80]: Cross examination of Aulakh, QQ 606-613.

[^81]: Examination of Andrew Bishop Tulk, QQ. 32-35.

[^82]: Defendants’ Compendium, vol. 1, tab 1.

[^83]: Rules of Civil Procedure, Rule 20.04(2).

[^84]: Ford Motor Company of Canada, Ltd. V. Ontario Municipal Employees Retirement Board et al. (1997), 1997 1302 (ON CA), 36 O.R. (3d) 384, 153 d.L.R. (4th) 33, 37 B.L.R. (2d) 207, at para. 46(a) (Ont. C.A.), per Osborne J.A. See also T1T2 Ltd. Partnership v. Canada (1995), 1995 7042 (ON SC), 23 O.R. (3d) 81, 38 C.P.C. (3d) 167 (Gen. Div.), at para. 2, per Borins J. as he then was. This principle is confirmed by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at note 4.

[^85]: Rules of Civil Procedure, R.20.02(2.1).

[^86]: 2011 ONCA 764.

[^87]: 2010 ONSC 830 (S.C.J.).

[^88]: 2010 ONSC 830 (S.C.J.), at paras. 10-15.

[^89]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at para. 38. (emphasis in original)

[^90]: Combined Air Mechanical, at paras. 40-44.

[^91]: Combined Air Mechanical, at para. 50.

[^92]: Combined Air Mechanical, at para. 52.

[^93]: Combined Air Mechanical Services Inc., at para. 57.

[^94]: Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44, [2001] 2 S.C.R. 460, 2001 D.L.R. (4th) 193, 10 C.C.E.L. (3d) 1, 7 C.P.C. (5th) 199 at para. 54 (S.C.C.).

[^95]: Canada v. Chevron Canada Resources Ltd., 1998 9090 (FCA), [1999] 1 F.C. 349, 52 D.T.C. 6570, [1999] 3 C.T.C. 140 per Nöel J.A., quoting Henderson v. Henderson (1843), 3 Hare 100 at 115, per Wigram, V.C.

[^96]: Canada v. Chevron Canada resources Ltd., 1998 9090 (FCA), [1999] 1 F.C. 349.

[^97]: Danyluk v. Ainsworth Technologies inc. 2001 SCC 44, 2001 CarswellOnt 2434 (S.C.C.) at para. 25, citing with approval Angle v. Minister of National Revenue (1974), 1974 168 (SCC), [1975] 2 S.C.R. 248 at 254, 47 D.L.R. (3d) 544 (S.C.C.), per Dickson J. as he then was..

[^98]: Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44, 2001 CarswellOnt 2434 (S.C.C.) at para. 33.

[^99]: Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 52.

[^100]: Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481, 194 D.L.R. (4th) 648, 139 O.A.C. 1, 5 C.P.C. (5th) 218, 61 O.R. (3d) 416 (note) (Ont. C.A.) at para. 31.

[^101]: R.S.O. 1990, c.L.15, s.45(1)(g).

[^102]: S.O. 2002, c.24, s.4.

[^103]: Briggs v. Rints et al., 2010 ONSC 4051, per Belobaba J. Indeed, the case has nothing at all to do with the case before me, aside from involving a motion for summary judgment. The reference in the factum also indicates that the defendants rely upon “other cases set out at tab 8” of the defendants’ book of authorities. There are no other cases included in tab 8 of the book of authorities, and no cases provided by the defendant anywhere in the materials that address the limitations issue.

[^104]: Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, 254 D.L.R. (4th) 1, at para. 59 (S.C.C.).

[^105]: Ibid., para. 76.

[^106]: Amalgamated Investment & Property Co. (in Liquidation) v. Texas Commerce International Bank Ltd., [1981] 3 All E.R. 577 at 584, cited with approval by Hambly J. in Schwark v. Cutting 2008 64393 at para. 60.

[^107]: Defendants Factum, paragraph 40.

[^108]: RJR MacDonald v. A.G. Canada, 1994 117 (SCC), [1994] 1 S.C.R. 311.

[^109]: Sealand Aviation Ltd. V. 1450748 Ontario Ltd., [2006] O.J. No. 985 (S.C.J.), per Mossip J. (emphasis added in the Defendants Factum, paragraph 81. The defendants also cited Hostmann-Steinberg Ltd. v. 2049669 Ontario Inc. (2009), 73 C.P.C. (6th) 302, per Strathy J. Both cases involved without notice Mareva injunctions.

[^110]: Jack Digital Productions Inc. v. Comex Foreign Exchange Inc. et al., 2007 43901 (Ont. S.C.J.), at paras. 7 and 10 and the cases cited there, per Himel J. See also Office depot Ltd. V. Canadian office Depot Inc., 2000 (2000), 2000 16113 (FCA), 186 F.T.R. 160, at para. 6 (Fed. C.A.).

[^111]: Points of Call Airlines Ltd. (Re) (1990), 1990 995 (BC SC), 79 C.B.R. (N.S.) 42 (B.C.S.C.), per Drost L.J.S.C.

[^112]: Defendants Factum, paragraph 93(ii).

[^113]: Cross Examination of Sarwan Singh Gill, QQ 242-243, Plaintiff’s Compendium, tab 101.

[^114]: Affidavit of Kehar Singh Gill, sworn June 17, 2010, para. 47.

[^115]: Bellini Custom Cabinetry Ltd. V. Delight Textiles Ltd. (2005), 34 R.P.R. (4th) 93 (Ont. S.C.J.) per Klowak J.

[^116]: R.S.O. 1990, c.T.21.

[^117]: Defendants’ Compendium, tab 22.

[^118]: 2009 ONCA 831.

[^119]: Affidavit of Kehar Singh Gill, sworn June 17, 2010, para. 49.