COURT FILE NO.: CV-16-3460-00
DATE: 20180911
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAT P. MALIK, DINESH CHANDER, SOM KAPOOR, ANURADHA SHARMA AND BIPEN KAKKAR
v.
HINDU SABHA, PARVEEN SHARMA, PRABHAT KAPUR, SHARWAN KUMAR AGARWAL, ASHOK KAPOOR AND ASHWANI JOSHI
BEFORE: Daley RSJ.
COUNSEL: W. Jaskiewicz, for the Plaintiffs
Mark A. Klaiman, for the Defendant, Hindu Sabha
Parveen Sharma, in person
HEARD: August 31 and September 4, 2018
REASONS FOR DECISION ON MOTION FOR INTERIM AND INTERLOCUTORY INJUNCTION
[1] On September 4, 2018, following submissions from counsel on that date as well as on August 31, I granted the plaintiffs an interim interlocutory injunction staying the election of the Board of Directors of the defendant Hindu Sabha temple which is presently scheduled for September 10, 2018, until the plaintiffs’ motion presently returnable during the week of November 19, 2018, is adjudicated. I advised counsel that my written reasons for this ruling would follow and these are my reasons.
[2] The plaintiffs instituted the within action in 2016 and recently brought a motion seeking a variety of relief including an order allowing for the calling of an Annual General Meeting for the Purpose of Electing a Board of Directors and Trustees of the respondent religious temple, Hindu Sabha.
[3] This motion came before Van Melle J. on August 24, 2018 and as it was determined that as this pending motion was a long motion scheduled on a regular motions list, a new date was scheduled for the hearing of this motion, namely during the week of November 19, 2018.
[4] As an election of the Board of Directors of the defendant temple was scheduled for September 10, 2018, the plaintiffs therefore brought a motion seeking an interim interlocutory injunction staying the holding of the election pending the full adjudication of the plaintiffs’ motion now returnable for the week of November 19, 2018.
[5] The management of the defendant temple has been most chaotic for several years with competing factions within the membership and congregants involved in lengthy, complex and expensive litigation over the management of the temple and its operations.
[6] A preliminary jurisdictional objection was taken by the defendants in response to the injunction motion on the basis that the moving plaintiffs did not have standing to bring the pending motion returnable in November, 2018 nor this injunction motion as they were not members of the temple, as defined by the temple’s General Operating By-Law Number 7 (the “Constitution”).
[7] Other than for the plaintiff Anuradha Sharma (“Sharma”), there is no evidence that the remaining plaintiffs are presently members or congregants of the defendant temple. In her affidavit sworn on August 29, 2018, the plaintiff Sharma deposes that she has “been a member of Hindu Sabha for over 20 years and… a regular and devoted attendee of the Temple”.
[8] The Constitution defines “member” as follows: “means a member of the Corporation and includes both a Voting Member and a General Member but were this General Operating By-Law contemplates Members exercising a right to vote, then such reference shall be deemed to be restricted to Voting Members only.”
[9] The affidavit submitted by Sharma does not disclose whether or not she is a Voting Member or a General Member. She further deposes in her affidavit that she had served on the Board of Directors for the temple and that she had held the position of Program Director before the election was held on August 8, 2016, following earlier litigation involving the temple.
[10] There is confusing and conflicting affidavit evidence on both sides regarding the membership of the temple, and the nature of the membership held by various parties, however there is no evidence contradicting the evidence contained in Sharma’s affidavit where she deposes that she has been a “member” and a devoted attendee of the temple for 20 years.
[11] The use of the word “member” standing on its own in this affidavit could be considered ambiguous and vague, when considered in the context of the definition section of the Constitution, which expressly defines “Member” as well as the differences between a “General Member” and a “Voting Member”, however the status of the plaintiffs as members of either type defined in the Constitution is not determinative of the question as to whether or not the plaintiffs or any one of them have standing to bring this motion and seek injunctive relief.
[12] Standing has been defined as: “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right”: Soldier v. Canada (Attorney General), 2009 MBCA 12, [2009] MJ No. 32 at para 29 (Man. C.A.).
[13] Also, as noted by the Ontario Court of Appeal in Public Service Alliance of Canada v. Canada (Attorney General), 2002 CanLII 19258 (ON CA), [2002] O.J. No. 4831, standing concerns whether a person with legal status has a sufficient connection with the matter before the court to be permitted to participate in the resolution of the matter: Morden & Perell: The Law of Civil Procedure in Ontario, 1st Edition, LEXIS-NEXIS at p. 297.
[14] It was urged on behalf of the defendants that none of the plaintiffs had proffered evidence to demonstrate that they had standing to bring this motion for injunctive relief and further the motion for declaratory relief regarding the holding of an election.
[15] In Archibald J.’s decision in The Polish National Catholic Church of Canada v. Polish National Church and Anthony A. Mikovsky, 2014 ONSC 4501 standing was considered with respect to a party seeking declaratory relief. It was noted at para 33 that where a party is seeking declaratory relief, there must be both a dispute and a sufficient level of legal privity between the parties and the litigant must demonstrate that he or she has a right which has been infringed by or requires protection from the other party. If the right cannot be demonstrated, the party does not have standing and the court does not have declaratory jurisdiction.
[16] Archibald J. went on to refer to the following statement in The Law of Declaratory Judgments at page 23:
A proper case for a declaratory judgment generally requires some privity in law between parties concerned, an existent right and an interference or dispute concerning the right. The petitioner who has no right in the nature of a claim capable of being enforced or redressed in a civil action cannot seek a judicial declaration for the evident reason that he cannot take advantage of or suffer the consequences of such an order: the lack of standing to sue robs the court of its declaratory jurisdiction.
[17] At the heart of the dispute between the plaintiffs and the defendants is the assertion that the plaintiffs and others referenced as persons, who have signed a petition included in the plaintiffs’ motion record, were denied application forms so that they could apply to become members of the defendant temple. The only uncontradicted evidence supporting the position that the plaintiffs, or one of them, was in some form a “member” and a congregant or devotee of the temple is contained in the Sharma affidavit. While the description of “member” by Sharma in her affidavit is ambiguous when one considers the language in the Constitution, her uncontradicted statement that she is a devoted attendee of the temple, in my view, establishes that there is a sufficient level of legal privity between Sharma and the defendant temple, recognizing that the relief sought at this stage of the litigation is equitable injunctive relief prohibiting the holding of an election of directors for the temple.
[18] Furthermore, I am satisfied that there is a dispute as between the plaintiff Sharma and the defendants, and in particular the defendant Parveen Sharma based on the evidence contained in paragraph 5 of her affidavit sworn August 29, 2018, wherein she deposes that she had requested membership application forms from various individuals, including Parveen Sharma but none were provided to her.
[19] The only evidence offered in response to Sharma’s evidence on this point is contained in the supplementary affidavit of Parveen Sharma sworn on August 30, 2018, wherein he deposes at paragraph 11(a) that he never refused to provide membership forms to the witness Sharma, but he states that he observed Mr. Saili provide membership forms to Sharma’s husband in August 2016. It is notable that Parveen Sharma does not state that he personally provided such membership forms to Sharma.
[20] I therefore find that the plaintiff Sharma does have standing to bring the within motion for injunctive relief on the basis that she seeks to be a member, as defined by the Constitution of the defendant temple, and on the basis of her un-contradicted evidence as to the denial of membership forms being provided to her, her rights are at stake and in dispute and the legal privity as between Sharma and the defendant temple is sufficiently proximate that equity must recognize her as having standing to seek equitable injunctive relief.
[21] As to the remaining plaintiffs, given the absence of evidence as to their rights and legal privity vis a vis the defendant temple I cannot reach the same conclusion.
[22] Having determined that the plaintiff Sharma does have standing to prosecute this injunction motion, the test for an interim interlocutory injunction in RJR - MacDonald must now be considered: RJR – MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] SCJ No 17.
[23] The test to be considered can be summarized as follows:
(i) Is there is serious issue to be tried?
(ii) Will there be irreparable harm if the stay is not granted?
(iii) Does the balance of convenience justify granting a stay?
[24] With respect to the first branch of RJR – MacDonald, namely whether there is a serious issue to be tried, the court held that this question should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on its merits. The court should only go beyond a preliminary investigation into the merits when the result of the interlocutory injunction will in effect amount to a final determination of the action.
[25] Counsel for the defendants devoted significant time in his submissions in drilling down into the evidentiary record, which ultimately may be necessary on the hearing of the pending motions scheduled for November, 2018, however that level of investigation is not appropriate or necessary at this preliminary stage.
[26] While I agree with counsel for the defendants that simply a dispute as between the competing parties as to the facts is not determinative of the question of whether or not there is a serious issue to be tried, I have concluded that that is not the case here. The plaintiff Sharma and those who signed the petition introduced in evidence, who number in excess of 300, have met the low threshold of demonstrating that there is a serious issue to be tried given their assertion that they have been excluded from the opportunity to apply for membership in the temple by having been denied membership applications. I am thus satisfied that the plaintiff Sharma’s evidence, when considered within the context of all of the evidence adduced, demonstrates that there is a serious issue to be tried.
[27] With respect to the second branch of the test as to whether or not irreparable harm will be occasioned to the plaintiff in the event the plaintiff is disenfranchised from voting in the pending election, I have concluded that the loss of a right to vote constitutes irreparable harm that cannot be compensated in money and as such the evidentiary record adduced satisfies the second branch of the test: see Deol v. Ontario Khalsa Darbar, 2015 ONSC 6256; Pandher v. Ontario Khalsa Darbar, [2006] O.J. No. 1933.
[28] As to the third branch of the test, namely does the balance of convenience justify or favour the granting a stay, I have concluded that it does on the basis that maintenance of the status quo is in the interests of all of the parties, including the defendant temple, so as to allow the questions raised on the plaintiff’s motion to be resolved in November, 2018.
[29] It is of note that the election presently scheduled for September 10, 2018 is out of time under the requirements of the Constitution and in order to have been timely it should have been held prior to August 6, 2018, that being the second anniversary following the last director’s election. It is also notable that the plaintiffs’ motion, now returnable in November, was served upon the Defendants on August 1, 2018 and the presently constituted Board of Directors of the temple chose to call for the election to be conducted on September 10, 2018. While these facts are certainly not determinative of the determination of the balance of convenience, they are factors to be weighed in considering this branch of the test.
[30] In the result, the interim interlocutory injunction as referenced above is granted and an order shall issue accordingly.
[31] Counsel for the plaintiffs shall serve and file submissions with respect to costs of no longer than 3 pages, including a Cost Outline within 15 days and similar submissions shall be filed by counsel on behalf of the defendants within 15 days thereafter. No reply submissions are to be filed.
Daley RSJ.
DATE: September 11, 2018
COURT FILE NO.: CV-16-3460-00
DATE: 20180911
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAT P. MALIK, DINESH CHANDER, SOM KAPOOR, ANURADHA SHARMA AND BIPEN KAKKAR
v.
HINDU SABHA, PARVEEN SHARMA, PRABHAT KAPUR, SHARWAN KUMAR AGARWAL, ASHOK KAPOOR AND ASHWANI JOSHI
BEFORE: Daley RSJ.
COUNSEL: Bhupinder Nagra, for the Plaintiffs
Mark A. Klaiman, for the Defendant, Hindu Sabha
Rinku Deswal, for the Defendants, Prabhat Kapur, Sharwan Kumar Agarwal, Ashok Kapoor and Ashwani Joshi
Parveen Sharma, in person
REASONS FOR DECISION ON MOTION FOR INTERIM AND INTERLOCUTORY INJUNCTION
Daley RSJ.
DATE: September 11, 2018