CITATION: Amir-Afzal Watto v ICC, 2017 ONSC 6440
COURT FILE NO.: CV-17-00583824
DATE: 20171030
IN THE MATTER OF AN APPLICATION UNDER SECTION 253 OF THE CANADA NOT-FOR-PROFIT CORPORATION ACT, SC 2009, C. 23
AND IN THE MATTER OF RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
AND IN THE MATTER OF THE ELIGIBILITY OF MUHAMMAD AMIR-AFZAL WATTO TO BE NOMINATED FOR ELECTION AS A DIRECTOR OF THE IMMIGRANT CONSULTANTS OF CANADA REGULATORY COUNCIL
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MUHAMMAD AMIR-AFZAL WATTO
Applicant
– and –
IMMIGRATION CONSULTANTS OF CANADA REGULATORY COUNCIL
Respondent
– and –
ATTORNEY GENERAL OF ONTARIO
Intervenor
COUNSEL:
William Macintosh, for the Applicant
Natalie M. Leon, for the Respondent
Josh Hunter, for the Intervenor
HEARD: October 24, 2017
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] The Respondent, Immigration Consultants of Canada Regulatory Council (“ICC”), is a non-share capital, not-for-profit corporation designated by the federal government as the regulatory body for all registered immigration consultations and citizenships consultants. ICC’s mandate is to protect consumers of immigration and/or citizenship services through regulation of consultants by promoting the benefits of using only ICC-authorized representatives.
[2] The Applicant is a member in good standing of ICC, and has been a member since ICC’s inception.
[3] The Applicant issued the within proceeding on October 3, 2017, with a return date of October 23, 2017. The application seeks an order under section 253 of Canada Not-For-Profit Corporation Act, S.C. 2009 C.23 (“the Act”) declaring that ICC’s by-law 2016-1, and in particular paragraphs 41.1(l)(m) and (n), are oppressive, unfairly prejudicial and unfairly disregard his interest as a member of ICC. The history and content of those specific by-laws will be set out in detail hereinafter.
[4] Prior to the hearing of the application on its merits, ICC argued that this application ought to be dismissed on the grounds that it was not commenced within the two year limitation period set out in the Limitations Act 2002, S.O. 2002, C. 24 (“the Limitations Act”).
[5] In response to ICC’s limitation argument, the Applicant had served a Notice of Constitutional Question pursuant to section 109 of the Courts of Justice Act R.R.O 1990 Reg. 194. Upon receipt of that Notice, the Attorney General of Ontario (“AGO”) intervened in this application and made submissions at the hearing.
[6] At the conclusion of the argument of ICC’s Limitation Act position, I took my decision under reserve. These are my Reasons.
Limitations Act 2002
[7] Pursuant to section 5(1)(a) of the Limitations Act, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of a person against whom the claim was made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.
[8] Section 5(2) of the Limitations Act and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a plaintiff with necessary evidence.
[9] As the Court of Appeal for Ontario recently held in Miaskowski v. Persaud 2015 ONSC 758 (C.A.), a plaintiff is presumed to have discovered the material facts upon which his/her claim against a defendant is based on the day the accident took place. There is an obligation upon a plaintiff to act with due diligence in determining if he/she has a claim. No limitation period will be tolled while a plaintiff sits idle and takes no steps to investigate any of the matters referred to in section 5(1)(a) of the Limitation Act.
[10] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson 2011 ONSC 102 (C.A.), “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”.
[11] Discoverability is thus a fact-based analysis. The discovery of a claim does not depend upon a plaintiff’s knowledge that his/her claim is likely to succeed, or awareness of the totality of a defendant’s wrongdoing. Knowledge of the material facts, and not the elements of a cause of action, will inform the Court’s assessment of the commencement of a limitation period. A plaintiff must show that he/she was both not subjectively aware of the factors set out in section 5(1)(a) of the Limitations Act, and that a reasonable person “with the abilities and in the circumstances of the person with the claim” would also not have been aware of these factors. In other words, the plaintiff bears the onus of leading evidence to displace both the objective and subjective components of the tests set out in section 5(1)(a) of the Limitations Act.
[12] As held in Miaskowski, a plaintiff has an obligation to establish why, with the exercise of reasonable diligence, he/she could not have discovered the identity of a defendant prior to the expiry of the applicable limitation period.
ICC’s Board of Directors
[13] ICC is governed by an elected Board of Directors. There are 15 individuals on the Board: 3 are public interest directors, while the remaining 12 are elected ICC members.
[14] ICC’S by-laws contain, inter alia, eligibility requirements for ICC’s members to be candidates for election to the Board.
[15] By-Law 2016-1 paragraph 45.1(l) was enacted and has remained in effect since 2011. Paragraph 45.1(l) states that no individual member is eligible for nomination, election or appointment to be Board of Directors “if he/she is otherwise unfit or inappropriate to act as a Director as determined by the Board in its discretion, but subject to the right of the individual to appeal to the Appeal Committee whose decision shall be final.”
The Prior Litigation
[16] In or around the fall of 2013, the Applicant campaigned to become an elected Director. According to ICC, at that time, the Applicant published defamatory comments on the internet relating to ICC, its officers, directors and staff. The Applicant subsequently failed to receive a sufficient number of votes and was not elected to ICC’s Board of Directors.
[17] As a result of the alleged defamatory statements, and prior to the 2013 election, ICC issued a defamation action against the Applicant in the Ontario Superior Court of Justice (“action #1”). This action is still outstanding.
[18] In addition to the ICC’s defamation action, four disciplinary complaints were filed against the Applicant, including complaints on behalf of other candidates and ICC’s Registrar. In response, the Applicant filed complaints against other candidates. ICC took no action on the Applicant’s complaints, and the other four 2013 complaints were ultimately abandoned.
[19] Notwithstanding the four 2013 complaints having been abandoned, in or around January 2014 those complainants and other ICC members commenced their own defamation action against the plaintiff in the Ontario Superior Court of Justice (“action #2”).
[20] Around the same time, the Applicant commenced his own legal proceeding against ICC (“action #3) which was ultimately dismissed by Order dated July 27, 2015 of my colleague Justice Glustein.
[21] In August 2015, the Applicant commenced yet another legal proceeding against some of ICC’s officers and employees (“action #4”). That proceeding was disposed of in June 2016.
The By-laws are Amended
[22] In or around the spring of 2014, ICC amended its by-laws to include paragraphs 45.1(m) and (n). Those paragraphs provide that no individual member shall be eligible for nomination, election or appointment to be Board of Directors:
(m) if he/she institutes or has instituted any suit, action or other proceeding against ICC or in any court or with any tribunal, agency or commission; and
(n) if ICC institutes or has instituted any suit, action or other proceeding against him or her in any court or with any tribunal, agency or commission.
[23] ICC”s Board of Directors passed a resolution to amend the by-laws as above on May 22, 2014. ICC states that its Board followed proper procedures in enacting the amended by-laws. Notification of the proposed amendments was provided to ICC’s members 30 days before its 2014 Annual General Meeting (“AGM”). That AGM took place on December 2, 2014.
[24] There is no dispute that the Applicant attended the 2014 AGM, and spoke out publicly against the proposed amendments. The Applicant made counter-arguments against ICC passing those amendments. Despite his efforts, the amendments were passed by an overwhelming majority and became effective as of May 22, 2014.
The Applicant’s Efforts Continue
[25] The Applicant’s efforts to oppose and/or set aside the amendments went further. In advance of ICC’s 2015 AGM, the Applicant forwarded 11 proposals for consideration, including a proposal dated August 20, 2015 that paragraphs 45.1(m) and (n) be deleted from the by-laws. ICC forwarded this proposal within its Notice of the 2015 AGM to its members.
[26] Once again, the Applicant spoke publicly against paragraphs 45.1(m) and (n) at ICC’s 2015 AGM. The Applicant’s proposal was defeated.
[27] Despite the enactment and presumptive validity of paragraphs 45.1(m) and (n), in late August 2016, the Applicant requested that he be qualified as a candidate for election to ICC’s Board of Directors. At that time, and as set out above, there was significant outstanding litigation between the Applicant and ICC. When the Applicant was advised by ICC’s Governance and Nominated Committee that he was not qualified to be a candidate for election to the Board of Directors, the Applicant pursued his right to deliver a written request that the Committee reconsider his request to be qualified.
[28] That request was received by the Committee and denied. The Applicant then sought judicial review of the committee’s decision in the Federal Court (“action #5”). That application was dismissed on January 16, 2017.
[29] After all of his efforts outlined above, the Applicant now claims in this recently commenced application that his interests have been oppressed and/or unfairly prejudiced by reason of the enactment of the by-laws in paragraphs 45.1(l) (m) and (n).
Issues to be decided
[30] Argument of ICC’s Limitations Act issue proceeded on two grounds.
[31] Before the Court was asked to determine whether the provisions of the Limitations Act applied to the specific facts in this application, the Applicant took the position that the Limitations Act does not apply in law to an application under section 253 of the Act because the Act is legislation enacted by the federal government to regulate corporation with national objects, and the provincial Limitations Act operates in conflict with the Act. Specifically, the Applicant argued that the inter-jurisdictional immunity doctrine prevents the Limitations Act - as provincial legislation of general application - from regulating entities that fall within matters exclusively assigned to the federal government.
[32] I will now decide both issues.
Issue #1 Does the inter-jurisdiction immunity doctrine prevent the operation of the Limitations Act with respect to oppression remedy claims under [section 253](https://www.canlii.org/en/ca/laws/stat/sc-2009-c-23/latest/sc-2009-c-23.html) of the [Act](https://www.canlii.org/en/ca/laws/stat/sc-2009-c-23/latest/sc-2009-c-23.html)?
[33] To begin, and as a procedural matter, the Applicant did not comply with section 109(2.2) of the Courts of Justice Act by providing the AGO with at least 15 days’ notice of Notice of Constitutional Question. That said, and with the AGO’s consent, I granted the Applicant leave to pursue the Notice of Constitutional Question on short notice.
[34] As set out by the Supreme Court of Canada in Marine Services v. Ryan Estate, 2013 SCC 44, inter-jurisdictional immunity exists to protect the basic, minimum and unassailable content of the core of the exclusive classes created by sections 91 and 92 of the Constitution Act 1867. In order to trigger the application of the inter-jurisdictional immunity doctrine, the Applicant must satisfy both elements of a two pronged test:
(a) does the provincial law trench on the protected “core” of a federal competence?
(b) if the answer to (a) is “yes”, is the provincial law’s effect on the exercise of the protected federal power sufficiently serious to invoke the doctrine of inter-jurisdiction immunity?
[35] In assessing the second prong of the test, the impugned legislation must not simply “affect” the core of a federal competence, but must “impair” it. The doctrine of inter-jurisdictional immunity requires a significant or serious intrusion into the valid exercise of a head of power.
[36] As recently held by the Court of Appeal for Ontario in Maurice v. Alles 2016 ONCA 287, oppression remedies under the Ontario Business Corporations Act R.S.O. 1990 c. B.16 are subject to the two year limitation period prescribed by the Limitations Act. Regrettably, there is little jurisprudence available on the subject of whether the two year period set out in the Limitations Act applies to corporations created under federal legislation.
[37] Turning to the Act itself, there is no explicit or implicit limitation period contained therein relating to the right to bring an oppression remedy application under section 253. In argument, it was pointed out that there are other types of limitation periods within the Act such as the following:
Section
Limitation
145(5)
An action to enforce the liability of a director for any payments contrary to the Act may not be commenced after two years from the date of the resolution authorizing the payment.
146(3)
An action against a director for an employee’s wages may not be commenced after two years of the director ceasing to hold the position of director.
263(2)
No prosecution for an offence under the Act may be instituted later than two years after a time when the subject matter of the complaint arose.
[38] The Applicant argues that by prescribing the above limitations within the Act, and leaving the oppression remedy section silent on the issue of the limitation periods, the federal government explicitly or implicitly chose not to impose any time limit upon commencing oppression remedy actions under section 253 of the Act. In my view, this is a far too simplistic approach to the issue, as the net result of the Applicant’s argument would be that there is no limitation period upon the right to bring an oppression remedy action under section 253. A closer look at the test for inter-jurisdictional immunity must thus be undertaken.
[39] Does the Limitations Act trench into key aspects of a federal undertaking, namely not-for-profit corporations? In my view, it does not. Even if it did, the Limitations Act certainly does not impair the exercise of the subject federal power, let alone in any serious or significant way.
[40] The “core” of the Act is not tied to the regulation of rights and obligation of corporation members. The Applicant’s right to pursue a statutory remedy under the Act against ICC is not an essential part of the law governing not-for-profit corporations. The purpose of the Act is to allow the incorporation of, or continuance of bodies corporate as, corporations without share capital for the purpose of carrying on legal activities throughout Canada. The Applicant has taken a far too narrow view of the Act in order to render its application to the lowest, individual/member level. The Limitations Act does not, directly or indirectly, regulate any issues under federal jurisdiction.
[41] If anything, the application of the Limitations Act to section 253 of the Act creates a defence for non-for-profit corporations that it otherwise would not have under the Act itself. How can providing a not-for-profit corporation with a defence amount to an impairment? In my view, and in furtherance of the administration of justice in this province, the Ontario legislature can determine the time limits within which Ontario courts can consider legal proceedings even if it regulates the procedure applicable to a cause of action under the Act.
[42] Finally, to the extent that the Applicant advanced a paramountcy argument in support of his position, the Limitations Act does not frustrate the purpose of the Act in any way. As such, I do not find the presence of any operational conflict between the provisions of the Act and the Limitations Act.
[43] Accordingly, the answer to Issue #1 is “No”.
Issue #2 Is the Applicant’s cause of action barred on the ground that it was not commenced within the two-year limitation period set out in the Limitations Act?
[44] The contents of paragraph 45.1(l) have remained in place since 2011. The contents of paragraphs 45.1(m) and (n) have been in effect since 2014. There is no dispute that the subject application was commenced more than two years after those specific dates.
[45] None of the affiants in this application were cross-examined upon their respective affidavits. At the outset of the hearing, I raised this issue with counsel for the parties, and asked counsel for the Applicant if he was content with proceeding on the current record before the Court. While this question was posed of counsel in the context of whether the potential presence of material facts in dispute would force the court to direct a trial of an issue or convert the application into an action, ICC’s Limitation Act’s position was to be argued before me in any event. In response, counsel for the Applicant advised that he was content to proceed with his argument the current record before the Court.
[46] The Applicant did not take issue with the fact that he attended the 2014 AGM and spoke against the proposed amendments, which he believed were specifically directed at his interests with a view to precluding him from ever being nominated. The Applicant confirmed the various proposals he submitted in advance of the 2015 AGM addressing his continued opposition to paragraphs 45.1 (m) and (n).
[47] The Applicant argued that the causes of action sought in this application “renew every day” as long as the contents of paragraphs 45.1(l), (m) and (n) remain in effect. I disagree. As directed by the Court of Appeal for Ontario in Maurice, the Court must be careful not to convert singular or oppressive actions to ongoing oppressive claims in an effort to extend limitation periods, for to do so “would create a special rule for oppression remedy claims”.
[48] I am satisfied on the record before me that, at least by the 2014 AGM, the Applicant knew that his “injury, loss or damage” had occurred, was caused by the actions of ICC, and that a legal proceeding was an (if not the) appropriate means to seek to remedy it. This is especially so given the history of litigious acts undertaken by the Applicant since 2013.
[49] In any event, section 5(2) of the Limitations Act provides that the Applicant is presumed to have known that a legal proceeding was the appropriate means to remedy his injury, loss or damage by, at the latest, late 2014. In order to overcome that presumption, the Applicant bears the onus of leaving evidence to displace the objective and subjective components of the tests set out in section 5(1)(a) of the Act, and establish why, with the exercise of reasonable diligence, he could not have discovered the necessary materials facts prior to the expiry of the limitation period.
[50] As held by Justice Perell in Nicholas v. Tétrault, 2008 54974:
“The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say the constitute elements of his or her cause of action…error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period.”
[51] Not only has the Applicant failed to lead any such evidence, the record that he has created confirms that he knew all of the necessary material facts throughout 2015-2017 as he had instituted various legal proceedings to address his opposition to paragraphs 45.1 (m) and (n).
[52] Accordingly, the answer to Issue #2 is “Yes” and this application is dismissed. The second hearing date of November 2, 2017 is thus vacated.
Costs
[53] I would urge the parties to try and resolve the issue of costs of this proceeding. Absent an agreement, they may serve and file written submissions to me in accordance with the following schedule:
(a) ICC and AGO may serve and file costs submissions within 10 business days of the release of these Reasons. Those submissions shall be no more than five pages including a Bill of Costs.
(b) the Applicant shall thereafter have an additional 10 business days from the receipt of ICC and AGO’s costs submissions to deliver his responding costs submissions which shall also be no more than five pages including a Bill of Costs.
Diamond J.
Released: October 30, 2017
CITATION: Amir-Afzal Watto v ICC, 2017 ONSC 6440
COURT FILE NO.: CV-17-00583824
DATE: 20171030
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF AN APPLICATION UNDER SECTION 253 OF THE CANADA NOT-FOR-PROFIT CORPORATION ACT, SC 2009, C. 23
AND IN THE MATTER OF RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
AND IN THE MATTER OF THE ELIGIBILITY OF MUHAMMAD AMIR-AFZAL WATTO TO BE NOMINATED FOR ELECTION AS A DIRECTOR OF THE IMMIGRANT CONSULTANTS OF CANADA REGULATORY COUNCIL
BETWEEN:
MUHAMMAD AMIR-AFZAL WATTO
Applicant
– and –
IMMIGRATION CONSULTANTS OF CANADA REGULATORY COUNSIL
Respondent
- and –
ATTORNEY GENERAL OF ONTARIO
Intervenor
REASONS FOR DECISION
Diamond J.
Released: October 30, 2017