COURT FILE NO.: CV-12-470665

DATE: 20210901

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dragan Varjacic and

Dr. Miroslav Milenkovic

Plaintiffs and

Defendants by Counterclaim

Radoslav Varjacic and Natasha Varjacic

Plaintiffs

– and –

Nenad Radoja, Svetislav Volonovic, Susan Glenn and Milan Djordjevic

Defendants and

Plaintiffs by Counterclaim

– and –

Rade Cavic, Stevo Gajic, Ljubormir Jovancevic, and Djuro Zdero

Third Parties

Dragan Varjacic, Self-Represented

Dr. Miroslav Milenkovic, deceased

Richard Parker, Counsel for

Radoslav Varjacic and Natasha Varjacic

Ben Fulton, Counsel for Nenad Radoja

Susan Glenn, Svetislav Volonovic and

Milan Djordjevic, Self-Represented

Rade Cavic and Stevo Gajic, Self-Represented

Ljubormir Jovancevic and Djuro Zdero – not participating at trial

HEARD: May 17, 18, 19, 20, 21, 25, 26, 27, 28, 31, June 1, 2, 3, and 4, 2021

REASONS FOR JUDGMENT

Justice L. Sheard

Overview and Background

[1] This litigation relates to membership in the Hamilton branch of the Royal Yugoslav Army Combatants’ Association in Canada-Draza Mihailovic (the “RYACA”) and relates, more particularly, to who has the right to determine the RYACA’s future and the future of its main asset, a 16-acre parcel of land in Stoney Creek (“the Property”). The Property was purchased on February 15, 1966[1].

[2] The RYACA is an unincorporated association and a member of The Royal Yugoslav Army Combatants Association “Draza Mihailovic” (the “Association”). The Association is an international organization founded after World War II by officers and soldiers of the Royal Yugoslav Army who fought against fascism and communism. General Draza Mihailovic was the Commander-in-Chief of the Royal Yugoslav Army at the end of the war.

[3] In 1968, a General Assembly was held in Chicago, Illinois and a codified Statute for the Association was adopted (the “Constitution”). The parties to these proceedings agree that the rights and obligations of RYACA members are governed by the Constitution.

Dispute

[4] Over the years, in the building constructed on the Property, members of the RYACA held meetings, luncheons, and listened to invited speakers. In summer, the grounds were used for picnics and as a place for member families and their friends to gather.

[5] Active participation in the RYACA dwindled over the years due to old age and death of members and an apparent lack of interest in the RYACA shown by younger generations. For these and other reasons, a dispute arose among certain members about the future of the RYACA and the Property.

[6] As explained below, the gates to the Property have been locked since April 2011 and numerous court applications have been brought respecting membership in the RYACA and who has the right to make decisions about the Property.

[7] Pursuant to court orders, any outstanding issues in the various applications were to be combined with and heard as part of this action.

[8] In this litigation, neither the plaintiffs, nor the defendants, speak with one voice: Dragan Varjacic (“Danny”), a plaintiff and defendant by counterclaim, is self-represented. The other plaintiff/defendant by counterclaim, Dr. Mirolsav Milenkovic, is deceased. His action is stayed.

[9] The plaintiffs, Radoslav Varjacic (“Roy”) and Natasha Varjacic (“Natasha”), father and daughter, are represented by counsel. While they somewhat agree with the position taken by Danny, there are not completely aligned.

[10] The defendant, Nedjad Radoja (“Ned”) is also represented by counsel. The other three defendants, Sveto Volanovic (“Sveto”), Susan Glenn (“Susan”) and Milan Djordjevic (“Milan”) are self-represented.

[11] The four defendants were members of the RYACA executive board elected on October 24, 2010 (the “2010 Board”). Throughout the trial, Ned and Susan appeared to work cooperatively with each other and to share similar positions. During the trial, it was less clear whether Ned and Susan were also acting in concert with Sveto. As for Milan, on some issues, his position and evidence ran counter to that of Ned and Susan.

[12] Rade Cavic (“Rade”), Stevo Gajic, Ljubornir Jovancevic, and Djuro Zdero were named as third parties pursuant to the order of Ramsay J., dated March 12, 2018 (“the Ramsay Order”), however, there are no identifiable third-party pleadings in the Trial Record. Messrs. Jovancevic and Zdero did not participate in the trial due to old age and poor health. Mr. Gajic did make a brief attendance at the trial but he, too, was elderly and in ill health. Only Rade participated in a meaningful way in the trial.

[13] A fundamental aspect of the dispute among the parties is the future of the RYACA. In broad terms, the plaintiffs, Rade, Mr. Gajic, and Milan are of the view that new, qualified members can be found, who will be willing and able to carry on the RYACA traditions and to sustain the RYACA both financially and through active participation. In 2015, Rade gathered together a group of interested people, eligible to become RYACA members. Rade also incorporated a not-for-profit corporation using the RYACA name: RYACA Inc., out of concern that the Property could and would be sold by Ned and that would be the end of the Property. At trial, Rade expressed the view that the RYACA should be carried on through a not-for-profit corporation.

[14] Roy and Natasha, the son and granddaughter of a founding member, had also gathered a group of past and/or eligible RYACA members. Although Natasha had no involvement with the RYACA until 2016, she has made a commitment to the RYACA and has been endorsed as a potential president of a new executive board by this group. Roy and Natasha both testified that they believe the Property could be developed in a way so as to make it financially self-sustaining and still be available for the enjoyment of RYACA members. Milan supports this vision and supports Natasha as president of a new RYACA executive board.

[15] The defendants (except for Milan) are of the view that there are no, or an insufficient number of, young persons who might be qualified to join the RYACA[2] and interested it carrying it into the future. These defendants are of the view that the Property can no longer be sustained and must be sold. The sale proceeds could then be used in a different manner to further the RYACA’s objectives, for example, by using the funds to create a scholarship.

[16] For Danny, central issues in this litigation relate to: 1) how the 2010 Board purported to terminate his RYACA membership and that of Rade and 28 other persons, not parties to this litigation; and, 2) how the 2010 Board, or members of it, proceeded to take steps to transfer title to the Property to Ned’s name, and to pursue the sale of the Property.

[17] Danny seeks a declaration that the actions taken, on and after April 9, 2011, by members of the 2010 Board to terminate certain RYACA memberships and to make decisions about the use and sale of the Property were “illegal”. By that word, I understand Danny to mean that the 2010 Board acted improperly, and not in accordance with the Constitution.

[18] I understand that Rade and Mr. Gajic support Danny’s position that the 2010 Board acted improperly when it purported to terminate the memberships of certain persons and in the actions taken by all, or some, of 2010 Board members to transfer the Property to Ned and to sell the Property.

[19] While they differ in the specifics[3], the plaintiffs and Rade all agree that this court should grant orders that would allow for new members to be recruited and an Annual General Meeting (“AGM)” to be called, at which current members could elect a new executive board and vote on the future of the RYACA and the Property.

[20] The defendants originally sought an order that the third parties vacate the Property and granting Ned the right to sell the Property. When Ned commenced his application, the taxes on the Property had been in arrears and there was a potential buyer for the Property in the wings, Whitley Rugby Inc. However, in his closing submissions, Ned stated that he no longer seeks an order for the sale of the Property. That change in position is explained by the fact that the Property is no longer in arrears of property taxes[4] and the offer to purchase made by Whitley Rugby Inc. is more than six years old, and expired.

[21] Ned, supported by Susan, asks that the plaintiffs’ claims and the third-party action be dismissed and the Certificate of Pending Litigation registered against the Property (the “CPL”) be lifted. They assert those orders will restore matters to the way they had been prior to the events of April 9, 2011 and allow for the valid and proper members of the RYACA to vote and to determine the future of the RYACA and the Property.

The Litigation

[22] While Roy and Natasha, and Ned, had counsel, the six other parties who participated in the trial were self-represented.

[23] This trial spanned 14 days. Although it took place during the COVID-19 pandemic, principally to accommodate those who were not able to participate in a virtual trial, all the parties agreed that this would be an in-person trial. On consent, Milan, who was bed-ridden, was permitted to participate in the trial via telephone. Each of the parties was given the opportunity to give evidence and to cross-examine witnesses. Most availed themselves of that opportunity.

[24] The closing submissions submitted on behalf of Roy and Natasha began: “First, let me say that I would not wish this Trial on my worst enemy.” I see this comment as a reflection of the many challenges that had to be overcome at trial.

[25] I do not propose to list all the challenges encountered at trial but do mention a few. One challenge concerned the pleadings. Pursuant to a combination of court orders, actions by and against the RYACA and the RYACA Inc. were dismissed without costs, and the unresolved issues raised in other applications involving the parties were directed to be combined with and tried as one action under this court file. The following orders are relevant: the order of Carpenter-Gunn J., dated January 26, 2016 (the “Carpenter-Gunn Order”); the order of Lofchik J., dated April 28, 2016; the Ramsay Order; and the order of Reid J., dated May 28, 2018 (the “Reid Order”).

[26] The orders permitted some procedural irregularities. For example, the Reid Order, adding Roy and Natasha as plaintiffs, did not require that they all be represented by the same lawyer. The Ramsay Order adding the third parties did not require the exchange of third party pleadings.

[27] The blending of pleadings from different applications made it difficult to tease out the issues for trial. Pursuant to the Ramsay Order, the issues at trial were to be determined at the judicial pre-trial. At the pre-trial, the issue for trial was defined: “to have membership determined so the assoc. can get going”.

[28] Another challenge for trial related to incomplete documentary production. It appeared that certain parties did not clearly understand, or perhaps ignored, their obligation to make timely documentary disclosure. As a result, throughout the course of trial, attempts were made to introduce into evidence documents that had not been previously produced.

[29] A further challenge was that certain parties did not understand the purpose or parameters of the trial. As a result, repeated and numerous directions had to be given by the court to ensure that questions were focussed on the issues and appropriate. Also, frequent admonitions from the court were required to direct the parties to refrain from giving hearsay evidence – both in their testimony and in the questions being put to a witness.

[30] Despite the challenges, the parties were given a full opportunity to present their evidence, which permitted the court to determine the core issue for trial and to make an order that will allow the RYACA membership to be fairly and properly determined so that the association can “get going”.

General Comments

[31] Despite the animosity and hurt feelings that surfaced throughout the trial, all the parties seem to share a common goal: to honour and respect the founder of the RYACA, General Draza Mihailovic and the principles for which he stood: to oppose communism, help those who have fought and suffered as a result of communism, and to create a community of like-minded followers.

[32] It is tragic that the litigants have invested so much time, money, and energy into court proceedings when those energies might have been better invested in revitalizing the RYACA. While it may be difficult for some of the litigants to see a way forward for the RYACA, that a number of former and potential RYACA members have been identified and the significant financial investment made by one potential new member – Natasha, a granddaughter of a founder, may offer some optimism.

Findings and Disposition

[33] Based on applicable law as applied to the evidence, I make the following findings and orders:

(1) I have jurisdiction to determine the issues that the parties have brought to this court. In reaching that conclusion, I have considered that:

(i) the jurisdiction to make an order concerning the occupation and sale of the Property has been acknowledged by the defendants who brought an application seeking that relief;

(ii) while Danny asks for an order determining who were members of the RYACA at a given time, the issue that is at the heart of this litigation is a dispute over the Property. Thus, the rights at issue have both proprietary and contractual aspects, over which a court may have jurisdiction[5]; and

(iii) as explained below, I need not determine who the RYACA members were as at October 24, 2010: that issue was decided by the vote held at that validly-called AGM. As set out in the Minutes of the 2010 AGM (the “AGM Minutes”), all persons present at that meeting were accepted as members, with the right to vote.

(2) under the Constitution, all memberships expire following two-years of non-payment of dues. No one has paid membership dues since 2011 or, at the latest, 2012. As a result, as at the date of trial, the RYACA no longer has any current members;

(3) under the Constitution, the executive board holds office for two years. The 2010 Board was elected at the October 24, 2010 AGM (the “2010 AGM”). On and after April 9, 2011, the 2010 Board did not organize any of the usual RYACA activities such as the summer picnics, the December 19 St. Nicholas luncheon, or any other activity or event, including an AGM, and the RYACA has effectively been inactive since then;

(4) on and after their election at the 2010 AGM, certain members of the 2010 Board determined to exclude a validly elected member of the 2010 Board – Dr. Miroslav Milenkovic – from future Board meetings. Also, Susan, Sveto, and Milan crafted and/or signed a letter purporting to notify RYACA members that their membership in the RYACA was terminated (the “Termination Letter”). That action was taken without having complied with the prior and accepted RYACA practice to give members notice of possible termination due to non-payment of dues; without having had a discussion or held a meeting of the 2010 Board to discuss and agree upon the termination of any member; in contradiction with the decision made at the 2010 AGM to accept all present as valid and voting members at the 2010 AGM; and despite that the 2010 Board had been elected by the same members who the 2010 Board almost immediately thereafter treated as non-members or members whose memberships had terminated by reason of non-payment of dues.

(5) the 2010 Board failed to called a new election and its mandate expired two years after its election at the 2010 AGM. In addition, all but Ned resigned from the 2010 Board many years prior to trial. As a result, the RYACA no longer has a valid executive board;

(6) neither the 2010 Board, nor the members of the RYACA, voted at all, or in accordance with the Constitution, to authorize, in principle or otherwise, to sell the Property. The document produced at trial that purported to record a 2015 vote orchestrated by the 2010 Board at which members are alleged to have voted to favour a sale of the Property (Exhibit 24), is neither credible nor reliable;

(7) in 2013, after the expiry of its mandate, and without taking, or recording, a vote of the members the 2010 Board, or those who remained, a “For Sale” sign was put up on the Property by or on behalf of Susan’s real estate company. As no listing agreement between the 2010 Board and/or Ned was ever signed, the “For Sale” was later taken down. In 2013, an offer to purchase was made by Whitely Rugby Inc. to buy the Property, which identified Susan as the seller’s agent. The Offer contemplated the payment of a deposit to the lawyer retained by and on behalf of the 2010 Board. The offer was not signed back by the 2010 Board and negotiations for the sale did not proceed;

(8) the lack of activity by the 2010 Board and the erection of the “For Sale” sign on the Property motivated Rade and a group of former members to incorporate RYACA Inc.;

(9) in 2015 title to the Property was conveyed to Ned (who later reconveyed the Property to the RYACA in accordance with the Carpenter-Gunn Order). This transfer was made without the knowledge or approval of the RYACA members and was not authorized by all members of the 2010 Board. No trust agreement was ever drafted to reflect that Ned held the Property in trust for the RYACA;

(10) Ned locked the gates to the Property, either after the 2010 election or after the meeting on April 9, 2011. The Property has been locked since then and is accessed pursuant to the terms of the Carpenter-Gunn Order. It is not occupied by the third parties, or by anyone. As such, there is no basis in fact, or in law, for the order sought by the defendants that certain persons “vacate” the Property;

(11) there was no evidence at trial of any active higher body of the Association with authority to manage or oversee the rebuilding of the RYACA membership or to govern the sale of the Property. That solution appears to lie with the members of the RYACA;

(12) in accordance with the order made at the pre-trial conference, the purpose of this trial was to have the membership determined so that the RYACA can “get going”. To do that, an order is needed that sets out a process to allow for a new membership list to be created and a timeline set, within which an AGM is to be held. At that AGM, and in accordance with the Constitution, the members may vote to determine the future of the RYACA and its assets;

(13) as the RYACA has neither members, nor an executive board, it lacks anyone with authority to conduct any business by or on behalf of the RYACA;

(14) given my findings, the relief sought by the defendants/plaintiffs by counterclaim is dismissed in its entirety;

(15) the relief sought by the plaintiffs is granted, in part. I order as follows:

(a) unless the parties agree otherwise, an AGM is to be held on the first Saturday next following 90 days from the date of the release of these Reasons;

(b) all those who seek to become full and valid members of the RYACA and/or to restore their membership in the RYACA, may attend at the AGM, in person, with a completed application form and $100 in cash for payment of current membership dues;

(c) prior to the completion of the AGM and the election of a new Executive Board, the completed applications and the $100 shall be held by a person as agreed to by the parties, or, failing agreement, shall be held jointly by two persons: one person whose name is put forth collectively by the plaintiffs and third parties who participated in this trial (i.e. not Ljubormir Jovancevic or Djuro Zdero), and a second person whose name is put forth by the defendants;

(d) all those who submit completed applications and tender the $100 in membership dues (to be turned over to the Treasurer elected at this AGM) and who are eligible to be full members as per Article 117 of the Constitution, shall be accepted as full and valid members of the RYACA and entitled to vote at the AGM. Article 117 reads as follows:

Following persons may be full members of the Association:

Combatants and ideological followers of General Draza Mahailovic and the National Ravna Gora Movement of both sexes and other associates and helpers of the struggle of the Yugoslav Army in the Fatherland and National Ravna Gora Movement from all other fronts, among whom a distinctive place is held by the members of the Royal Yugoslav Army who have been placed in slavery and have endured in the enemy camps all the atrocities and degradations, who have fought against the communists therein and refused to return to their plundered fatherland.

Next, all those ideological national combatants that the enemy kept imprisoning in the concentration camps and forced labour camps for their national struggle, and who have refused to return to the country, also for their national feeling reasons, ruled by the terrorist regime of the Communist Party.

Finally, also all other nationally faithful individuals who accept the ideological foundations of the National Ravna Gora Movement and the freedom-loving struggle of General Draza Mahailovic, although they have moved out of the country earlier. Also those who have defected later from the plundered fatherland and who have fully accepted the National Ravna Gora Movement ideas and have proven this with their work, while never having been members of the Communist Party.

This is to establish that there no difference (sic) exists among all the mentioned categories of persons that may become members of the Association, since all of them had one and the same goal in mind: Struggle for the King and Fatherland, for Freedom and Democracy.

Full members of the Association may also include the descendants of all the above-listed persons, regardless of their citizenship, if they accept the ideology of their ancestors.

(e) the chair of the AGM and the person designated to record the Minutes shall be as agreed to, in writing, by the parties who took part in the trial: Danny, Roy, Natasha, Ned, Sveto, Susan, Milan, Rade and Mr. Gajic. If those parties are unable to reach an agreement within 30 days of the date of the Release of these Reasons, then two persons will be chosen to act as co-Chairs and two persons will be chosen to record the Minutes.

(f) if two persons are to be chosen as co-Chairs and/or as co-Minute takers, they shall be chosen in this manner: one person shall be chosen by majority vote of the three plaintiffs and the third parties, Rade and Mr. Gajic (collectively, “Group P”), and one shall person chosen by majority vote of the four defendants (collectively “Group D”). Group P and Group D shall advise the other group of the name(s) of the person(s) they have chosen as co-Chair and/or co-Minute taker, by sending an email to each member of the other group. If either Group P or Group D fails to choose a co-Chair or a co-Minute taker by the commencement of the AGM, the other group’s nominee shall be deemed to be the Chair and/or Minute-taker of the AGM;

(g) the agenda for the AGM shall include the election of an executive Board and any others matters as may be agreed upon by the Chair or co-Chairs; and

(16) Except by court order, the Property shall not be transferred or encumbered until after the completion of the AGM and the election of a new Executive Board, as ordered above.

History of the RYACA

[34] The RYACA was part of the Association. The Association had chapters around the world, most of which have folded.

[35] The Association was formed after World War II by emigrants of the former Yugoslavia. The Constitution describes the Association as a

national-combative and social-humane organization of the General Mahailovic followers and emigration, based on the broadest democratic principles. The conceptual foundation of the Association is the national struggle of the Serbs and other nationalities of Yugoslavia for liberation, expressed through the National Movement of Ravna Gora and the struggle of the Royal Yugoslav Army under the leadership of General Draza Mahailovic.

[36] Article 3 of the Constitution sets out the tasks and objectives of the Association which include: the preservation of the memory and ethical-national values of General Mahailovic; maintaining the mutual brotherhood relations among Association members; participation in the cultural-educational work and fulfilment of the cultural-educational needs of Association members; and the establishment of healthy material foundations necessary for a successful development and survival of the Association.

[37] The founding members and their families, together with others who joined the RYACA, contributed money and hard work toward the purchase and maintenance of the Property. Monies were raised through summer picnics and at an annual lunch held on December 19, to celebrate St. Nicholas Day.

[38] The expenses of the RYACA were modest. They included property taxes and insurance, and the maintenance of the building on the Property, where meetings and celebrations were held, and which also housed historical artifacts. For decades, the RYACA membership was able to meet expenses. The Property was used as a gathering place for members, family and friends. One witness described the picnic ground as “a bit of home” for those who had lost their home, family and country. A defence witness described the Property as a place where everyone could feel they were back in the old country where, “like a band of brothers”, they shared barbecues, picnics, and listened to invited speakers.

[39] Like many organizations, as founding members became elderly and infirm and their children were occupied with caring for their parents, and raising their own families, the RYACA faced challenges. The aging and elderly members were less able to perform the physical labour needed to maintain and repair the Property and dwindling membership led to reduced revenue needed to pay for RYACA expenses.

[40] In 2008, Jelena Trkulja, then president of the RYACA, resigned for personal reasons. At Ned’s request and in consultation with Ned’s father, Nedjad Radoja (now deceased), an elder and RYACA founder, Danny stepped in as president. The Board continued with Ned as vice-president, and Sveto and Milan as co-treasurers.

[41] According to Danny, he received little help from his fellow Board members. Ned was preoccupied in caring for his ailing mother and Sveto was needed in Serbia to care for his aging parent. As a result, Danny was left mostly on his own to manage. He struggled to do so. In the late summer of 2009, Danny attempted to call an AGM. His first attempt failed, but after sending out notices via registered mail, the 2010 AGM was scheduled for October 24, 2010.

The 2010 AGM

[42] According to many of the witnesses who testified at trial, this was not a normal AGM; present were people unknown to long-time members. It appears that Danny had been recruiting new members. As recorded in the AGM Minutes, at the meeting, Danny acknowledged that some members had given him their $100 dues, which, he claims, he used to cover RYACA expenses. At the 2010 AGM and at trial, Danny stated that he had paid RYACA bills out of his own pocket, or with borrowed funds, and that he could and would produce receipts upon request. Danny also claimed that he was entitled to and asked the 2010 Board for reimbursement for RYACA expenses he incurred.

[43] Danny’s poor accounting and failure to provide receipts was a significant bone of contention.

[44] The AGM Minutes were taken by Desa Gushue (Susan’s sister) and Zivka Drobac, who spoke Serbian. Ms. Dushue was called as a witness at trial and confirmed that, while they are not a verbatim record, the AGM Minutes reflect what went on at the 2010 AGM. I accept that evidence. After Ms. Dushue’s testimony, all the parties conceded that the AGM Minutes accurately reflected what was decided at the 2010 AGM.

[45] The AGM Minutes are consistent with Danny’s trial testimony that he had encountered problems meeting RYACA expenses in the prior two years. The AGM Minutes also confirm that there were people in attendance, claiming to be members, whose application forms and membership dues had not been submitted through the proper channels, if at all. At the 2010 AGM, questions were raised about what Danny had done with the dues and donations he had collected and with rental income he was alleged to have received for use of the Property. Danny denied that he had rented the Property and/or received any rental income.

[46] Despite questions about the validity of the new members, at the 2010 AGM it was agreed that an election would be held and to “assume that the people present had paid and were members” and eligible to vote to elect a new board. The AGM Minutes reflect that 2010 Board was elected on that basis. Sveto was elected as president, Ned and Dr. Miroslav Milenkovic were elected as co-vice-presidents, Milan as treasurer, and Susan as secretary.

[47] An audit board was also appointed at the 2010 AGM and consisted of Bojana Drobac Lafond, Sofija Jovancevic and Zavan Jengenjin. The purpose of the audit board was to review the RYACA finances for the prior two years and to evaluate Danny’s management of the finances and his claim for reimbursement of expenses. It appears that Ms. Lafond is the only person on the audit board to have reviewed the RYACA financial records.

[48] Ms. Lafond testified at trial. She stated that she was at the 2010 AGM but was not an RYACA member. At trial, Roy put forth a handwritten membership list that shows Ms. Lafond as a member. The defendants dispute the accuracy of this list.

[49] Ms. Lafond’s name appears in the AGM Minutes as having brought a motion to adjourn the meeting. From that document, I infer either that Ms. Lafond was a member and that RYACA membership list put forth by Roy was accurate or that Ms. Lafond was treated as if she were a member, which is consistent with what is set out in the AGM Minutes. Ms. Lafond’s involvement in the purported audit of the RYACA records, supports either inference.

[50] Ms. Lafond testified that she was given a box of documents by the 2010 Board and asked to prepare an accounting. She testified that the documents in the box did not contain sufficient records for that task. Ms. Lafond did not know why the RYACA records were incomplete.

[51] Danny’s evidence was that when Ms. Trkulja resigned as president, she turned over her box of records to Ned. Ned, Susan and Sveto allege that Danny had removed items from the box of records turned over to Ned by Ms. Trkulja. I do not accept those allegations. There was evidence at trial that the box was in Ned’s possession and that he turned it over to persons who are not parties to these proceedings.

[52] Ms. Lafond provided a report to some members of the 2010 Board. I accept her evidence that she was unable to prepare an accounting of funds allegedly collected by Danny or disbursed by him on behalf of the RYACA. I am less confident that Ms. Lafond’s conclusion was not tainted by what she had been told by others, including members of the 2010 Board, about Danny’s alleged misappropriation and mismanagement of RYACA funds. Danny testified that no one ever asked him to produce or turn his receipts to the audit board.

[53] Ms. Lafond’s report was, apparently, accepted by 2010 Board. According to the evidence of the defendants Susan, Ned, and Sveto, Ms. Lafond’s report was a sufficient basis to terminate Danny’s membership. However, if a meeting was held by the 2010 Board at which Ms. Lafond’s report was considered or accepted, no minutes of it were taken or produced at this trial. Similarly, if a meeting was held at which the 2010 Board determined that Ms. Lafond’s report justified terminating Danny’s membership, no minutes of that meeting were taken or put into evidence at trial.

[54] Notwithstanding the days of trial time consumed with testimony relating to Danny’s alleged wrongdoings as president, as will be seen below, when Danny was told by Ned’s father that he was “out”, the sole reason given was non-payment of annual dues.

[55] I note that the defendants failed to put into evidence records that were or ought to have been in the possession of the RYACA or available to the RYACA. Such records would include RYACA banking records, to which the 2010 Board would have had access as the authorized banking officers, and membership records, some of which Sveto appeared to have with him while he gave evidence at trial, but only a portion of which was produced and put into evidence.

[56] The defendants’ lack or late production of relevant documents cannot be justified: Orders had been given directing the parties to produce documents. In addition, from almost the first day of trial, the parties were told by the court that they needed to produce all relevant documents. Notwithstanding that judicial direction, on more than one occasion, when giving evidence, a defendant produced a new document, which he or she then sought to have marked as an exhibit. In the face of proper objections, these newly-disclosed documents were not permitted to be put into in evidence at trial.

[57] Submissions made throughout the trial and in closing argument seemed to reflect a view held by the defendants, or some of them, that because the onus rested on Danny and the third parties to prove that they were valid RYACA members and that the 2010 Board improperly terminated their membership, the defendants had no obligation to produce documents that were relevant to that issue. Whether or not that perception is accurate, the defendants failed to produce relevant documents over which, they acknowledged at trial, they had possession or control. Such documents might have assisted the plaintiffs but could also have supported or corroborated the allegations made by a defendant in his or her testimony. Instead, much of the trial evidence consisted of hearsay, that was not reliable nor credible, and which could not properly form the basis of any findings of fact.

The April 9, 2011 Meeting

[58] The 2010 Board called a meeting for April 9, 2011. Although the 2010 Board did not give notice of this meeting to all persons who considered themselves members, word of it got out. When persons who believed themselves to be members arrived at the Property to attend the meeting, some were told, including Danny and Rade, that they were not welcome. Danny’s evidence was that he was handed a letter by Ned’s father saying that he and a number of other persons were all “out” – meaning they were no longer treated as members of the RYACA. According to Danny, this news “came as a shock”.

[59] The actual letter that was handed to Danny was not put into evidence but when Danny cross-examined Sveto, he showed Sveto a photocopy of what I understand to be a copy similar to the letter handed to Danny. The trial exhibit was undated and unaddressed (Exhibit 37.1). The Termination Letter appears to have been signed by Susan, Milan and Sveto. It which reads, in part, as follows:

Dear

According to are records, it show that you have not paid your membership with RYA combatants Association in the past 2 two years, your member are ended.

The Had-Hoc committee writen to you that you name and address removed from are records.

Sincerely Had-Hoc committee. (sic)

SEKRETAR BLAGAJNIK PREDSEDNIK

Svetlana Glenn-Stojanovic Milan Djordjevic Svet. R. Volanovic

[60] There is no evidence to whom, if anyone other than Danny, the Termination Letter was given. There are also unanswered questions about how the Termination Letter came to be written or signed. In his cross-examination, Sveto said he signed a letter similar to the Termination Letter but that he did not understand what it said because it was written in English. Sveto testified that there were three of them present when he signed as president.

[61] Susan did not attend the April 9, 2011 meeting. Her evidence was she arrived at the Property and saw a crowd of men and decided not to enter. As Susan did not attend the April 9, 2011 meeting, she must have signed the Termination Letter prior to that meeting; perhaps at a “Had-Hoc” gathering of Ned, Susan and Sveto. However, whether, and when, such a meeting was held is also an unanswered question: in cross-examination, Sveto admitted that he never held or attended a meeting at which members were terminated and had no knowledge of when a decision was made to terminate the 28 other members.

[62] Ned testified that he did not send out the Termination Letter but that it “would have been sent” by Susan. However, in her evidence, Susan said that she did not prepare or send out the Termination Letter because the records were kept in Hamilton and she lived in Toronto.

[63] The Termination Letter does not say that other persons were “out”, which statement was purportedly made to Danny by Ned’s late father (who was not a member of the 2010 Board).

[64] Susan testified, without supporting documents, that letters were, or would have been, sent out to known members whose membership dues were in arrears. That evidence was disputed by Danny or Rade, who denied that they or anyone else whose membership was allegedly terminated on or before April 9, 2011 for non-payment of dues, had received a letter notifying them that their memberships would be terminated for non-payment of dues.

[65] The absence of any documentary evidence to support or corroborate Susan’s trial testimony respecting termination of memberships for non-payment of dues is consistent with fact that, although the payment (or non-payment) of dues was raised at the 2010 AGM, it was agreed that all who were present at that AGM were accepted as members and allowed to vote. Also, as will be seen below, Rade’s evidence, which I accept, was that he had paid his dues and was not in arrears.

[66] As for the 28 “new” members brought to the meeting by Danny, Susan’s evidence was that a Termination Letter would not have been sent to them because those persons were never valid members. Her evidence on that point conflicts with the decision recorded in the AGM Minutes to recognize all present as members.

[67] Susan and Ned testified that, although not mentioned in the AGM Minutes, they believed that it was the duty of the 2010 Board to investigate and to confirm who was, and was not, a member. When no application forms could be found and there was no record of dues having been received by the RYACA, and despite the actual knowledge that some new members had paid their dues to Danny when he was president, the 2010 Board determined not to treat such persons as members. That determination also extended to Dr. Milenkovic, who had been elected as a vice-president at the 2010 AGM, but who was never notified of or invited to any 2010 Board meetings.

[68] Based on the trial evidence, I cannot conclude that letters were sent to the members notifying them that their membership would be terminated for non-payment of dues. Similarly, apart from Danny, I cannot conclude that any other person received a Termination Letter. In reaching that conclusion I have considered Rade’s evidence, which I accept, that his membership dues were not in arrears and that when he attended the April 9, 2011, he was told he was not welcome, but never told why his membership had been terminated.

[69] The evidence leaves me with uncertainty as to the identity of the RYACA members as at April 9, 2011 or, for that matter, as at October 24, 2010. However, based on the trial testimony, which I accept, all but Ned resigned from the 2010 Board and not one RYACA member has paid dues for well over two years. That evidence supports my finding that the RYACA no longer has any full or valid members.

[70] The evidence allows me to find, which I do, that if, and when, the 2010 Board failed to recognize as members those persons who had been accepted as members at the 2010 AGM, the 2010 Board was acting contrary to the vote taken at the 2010 AGM and, of course, the vote that elected the 2010 Board. Also, to the extent that the 2010 Board determined that the memberships of some persons should be terminated on the basis of non-payment of dues, the 2010 Board failed to follow historical practice, or the Constitution, which contemplate advance notice being given to a defaulting member. In addition, it is not clear that the 2010 Board ever considered whether the member was a senior, by whom annual dues were not even payable. Finally, the 2010 Board ignored the fact that, in some cases, the member who was being terminated had paid their dues to Danny, who was representing the RYACA as its president.

[71] In addition to the foregoing, based on the trial testimony of the members of the 2010 Board, I cannot definitively conclude that a discussion to terminate memberships ever took place among the 2010 Board members. There are no Minutes of any such discussion or of a decision made by the 2010 Board. The Termination Letter was purportedly signed by an “Had-Hoc” committee, whose authority to terminate members was not established on the evidence at trial.

Events after April 9, 2011

[72] Those who had attended at the April 9, 2011 meeting and were told that they were not welcome, left the meeting, but remained on the Property grounds. Ned called the police. The police arrived and, apparently, communicated to all present that this was a “private” matter and that no one should attend at the Property until the matter was resolved.

[73] On and after April 9, 2011, the Property has remained locked. While there was evidence that locks were cut off and replaced from time to time, the undisputed evidence is that effective on or after April 9, 2011, all normal operations of the RYACA came to a stop.

[74] The ongoing discord and the shuttering of the Property has been disastrous for the RYACA: the in-fighting alienated existing and former members and discouraged any new potential members from joining. There has been no AGM since the 2010 AGM and no elections held. Without holding its usual functions, the RYACA has not collected annual dues, or generated any other income for over a decade. It has been unable to pay the property taxes or any other expenses related to the Property.

[75] The age and poor health of the litigants has added to the harm suffered by the RYACA and its members as a result of the ongoing disputes: as mentioned Dr. Milenkovic died before trial; Milan was unable to leave his bed; Ljubomir Jovancevic, and Djuro Zdero, were too elderly and infirm to take part in the trial; and, Stevo Gajic, was able to attend trial only briefly as he was also dealing with ill health and advanced age. Other members have also died over the ten plus years that this dispute has endured.

The Litigation

[76] In July 2011, Danny sued Susan, Sveto, Ned, Milan and the RYACA in the Small Claims Court, claiming payment of $11,162 for expenses he incurred on behalf of the RYACA. The defendants retained a lawyer, Kirk McPherson, and on October 23, 2013, Danny settled his claim for payment to him of $5,000.

[77] In 2012, Danny commenced this application. In broad terms, the relief sought was: 1) to restrain Ned, Susan, Milan, and anyone acting on their behalf, from exercising any authority as RYACA executive members, including dealing with the Property; 2) a declaration that the April 9, 2011 meeting and all business conducted was invalid[6]; and, 3) a declaration that the 2010 Board’s purported termination of any RYACA membership was also invalid.

[78] In 2015, Ned issued an application in his own name and in the name of the RYACA. The latter party was removed from the pleadings. Ned’s application sought an order permitting him to sell the Property, requiring the respondents (those who remain in this action are now third parties) to vacate the Property, and costs.

[79] The age of the litigation has created its own challenges: the events that gave rise to the disputes amongst the parties occurred more than a decade prior to trial, and likely much earlier than that. Witnesses have died, memories have faded, records have gone missing and the RYACA lands have been kept locked and unused for over a decade, worsening the RYACA’s financial situation.

Efforts to Sell the Property

[80] In 2013, a “For Sale” sign was put up on the Property and Whitley Rugby Inc., a local rugby club, expressed an interest in purchasing the Property. At that time, the defendants and the RYACA were represented by Mr. McPherson. In his trial evidence, Mr. McPherson stated that he spoke with Danny’s (then) lawyer about the rugby club’s interest in purchasing the Property. Danny’s lawyer told him there was no interest in selling the Property and, according to Mr. McPherson, that was the end of it.

[81] The listing agent was Susan’s employer, Chestnut Realty. Susan’s testimony at trial on this point was that she did authorize her company to put up the “For Sale” sign but when the listing agreement did not arrive, the sign was taken down.

[82] Rade gave evidence at trial about what he did when he saw a “For Sale” sign on the Property. I pause here for a brief comment on Rade’s trial evidence. He testified twice: first, when called by Danny as a plaintiff witness, and secondly, when he testified as a third party. I accept, without hesitation, the evidence given by Rade. He presented as an intelligent and well-informed witness. His cross-examinations of the other parties similarly stood out for their focus and effectiveness.

[83] Rade’s evidence was that after the “For Sale” sign came to his attention, he attended at the Land Registry Office and discovered that on June 30, 2015, title to the Property had been transferred by the RYACA to Ned as sole owner. Rade and other disenfranchised members were concerned that the Property could be sold without a proper vote of the RYACA members. They incorporated a not-for-profit corporation using the RYACA name plus “Inc.” Rade’s evidence was that he thought the RYACA would be better protected if it was an incorporated entity.

[84] In 2015, Rade brought an application in the name of the RYACA Inc. which sought, in part, an order that Ned reconvey title to the Property from himself back to the RYACA, the CPL, and a declaration that 19 named persons, including some of the parties to this action, were full members of the RYACA.

[85] No RYACA business was conducted by RYACA Inc. and its application was dismissed, without costs, by the Ramsay Order, which also provided that certain provisions of the Carpenter-Gunn Order would remain in force, including the protocol to be followed for the parties’ access to the Property.

[86] At trial, Ned testified that on the advice of Mr. McPherson, he had taken title to the Property in his own name, to keep the ownership from being confused with the RYACA Inc. The transfer was not authorized by all the 2010 Board members, nor was it authorized by the RYACA members. Ned stated that his intention was to hold the Property in trust for the RYACA. Mr. McPherson testified that the Land Titles Act does not recognize trusts, which explains why the transfer document makes no mention of a trust. However, he also testified that he could find no record of having drafted a trust agreement.

[87] Pursuant to the Carpenter-Gunn Order, which was made on consent in the application commenced by RYACA Inc., title to the Property was reconveyed to the RYACA and the CPL (issued in that proceeding) was to remain on title until further order.

[88] On September 15, 2015, an offer to purchase was submitted to Ned by Whitley Rugby Inc., offering to purchase the Property for $550,000. A deposit of $5,000 was to be made payable to Mr. McPherson, in trust. Chestnut Park Real Estate Limited was shown as the listing brokerage and as the Co-op/Buyer Brokerage, and Susan was named as the Salesperson/Broker.

[89] Susan testified that the deposit cheque was never cashed. Ned testified that the offer was never accepted by him and that the terms of the offer were, in any event, conditional upon the seller obtaining the “consent of the membership and of the Court to the sale.” I accept that the offer was not accepted and that no binding agreement of purchase and sale was ever entered into.

Court Orders affecting the litigation

[90] As mentioned above, the Carpenter-Gunn Order set out how the Property was to be accessed by the parties. While there was evidence at trial that locks have been changed on the Property, the evidence that one or more of the parties may not have abided by the terms of the Carpenter-Gunn Order did not meet the barest threshold of reliability or credibility and I make no findings that any party had breached the Carpenter-Gunn Order. For the same reason, the defendants have not established a basis for the order they seek that the plaintiffs and or the third parties vacate the Property.

[91] In addition to ordering the dismissal of proceedings brought by or against the RYACA and the RYACA Inc. on a no costs basis, the Ramsay Order also directed that the outstanding issues raised in CV-15-554465 and CV-15-55177 continue as an action under this file number, and identified the parties.

[92] Unfortunately, the pleadings in the Trial Record were not particularly helpful to understand the issues to be decided. As a result, and as per the Ramsay Order, the issue for trial was as had been determined at the pre-trial namely: “to have membership determined so the assoc. can get going”.

The Evidence

Termination of Memberships

[93] Susan, Ned, and Sveto, all testified that if a member fails to pay membership dues for two years, the membership is terminated. I accept that evidence.

Termination of Danny’s Membership

[94] Much of the evidence given by Susan, Ned and Sveto was directed at establishing that there was good reason for terminating Danny’s membership with the RYACA. Days of trial time were spent on evidence led by these defendants concerning what they viewed to be Danny’s misfeasance during his tenure as president: he collected dues and other income without accounting for it; he incurred expenses without authority and, as Susan alleged, he “drained the coffers”. Despite the inordinate trial time expended on this issue (which included much hearsay evidence), Ned, Susan, and Sveto all testified that the reason given for terminating Danny’s membership was his failure to pay his $100 annual membership dues for a period of two years. As a result, the evidence concerning Danny’s alleged misconduct while president was, in fact, irrelevant to his termination as a member.

[95] Even if the defendants’ evidence about Danny’s conduct had been relevant, it fell well short of showing that Danny had misappropriated RYACA funds. I do not intend to review all the allegations in detail but mention two examples to illustrate the nature of this evidence. All of Susan, Sveto, and Ned testified about Danny’s unauthorized decision to arrange for the removal of a leaking oil tank and the purchase of a new propane furnace for the building on the Property and the unreasonable expense incurred by Danny, who hired roofers to repair the building’s roof, which still leaked after the repair.

[96] With respect to the oil tank, I accept the evidence given by Danny, supported by Mr. Gajic, and corroborated by Rade and Milan, that the oil tank was leaking and polluting the ground, and that the tank had to be removed. I see nothing inherently improvident or improper in Danny’s decision to replace the aging oil furnace with one that burned propane.

[97] As for paying the roofers using RYACA funds, while I accept the evidence that the roof still had leaks after it was repaired, the cheques paid to the roofers that were put into evidence by Ned during his testimony were co-signed by Milan, the RYACA treasurer at the time. From that evidence, I conclude that the cheques were issued with the knowledge and consent of, at least, the treasurer of the board. That the president, Sveto, was not aware of the oil tank and furnace replacement may be explained by the fact that Sveto spent much of the summer in Serbia. Similarly, Ned’s own testimony was that he was preoccupied with caring for his ailing mother and unable to devote time to his duties as vice-president.

[98] Susan led no reliable or admissible evidence to support her repeated assertion that Danny had “drained the coffers” of the RYACA. It is reasonable to assume, and Sveto confirmed, that the 2010 Board had, or could have obtained, access to the RYACA banking records. However, the defendants did not put into evidence the financial or banking records that might have corroborated the allegations made by Susan, which were endorsed by Ned and Sveto.

[99] In her trial testimony, Susan attempted to enter as trial exhibits certain records that she had in her possession. Susan was present throughout the trial and gave her evidence on June 1, 2021, some 11 days after the trial began. By that date, the parties had been made aware by the court that if they had previously unproduced documents that they wished to enter as trial exhibits, they should produce them immediately. The plaintiffs properly objected to the documents produced by Susan in the course of her testimony being marked as exhibits, given the lateness of their production. As a result, these records were not admitted into evidence.

[100] The defendants also failed or refused to produce other RYACA records relevant to the determination of the issues before the court. For example, Sveto brought into court a bag of documents which included an original record book of members. This book had not been produced and only certain pages of it were put forth as evidence at trial.

[101] As mentioned above, the lack of production by the defendants appeared to reflect the defendants’ view that the plaintiffs and third parties had the onus to prove their claims. For example, in the closing submissions submitted by Susan, and in those submitted on behalf of Ned, each asserted that the plaintiffs failed to meet their onus to show they were members and that they ought to have produced a copy of their membership applications or a copy of their receipt for annual dues (dating back to 2009). In fact, based on the evidence led by the defendants, it is the RYACA that would have retained application forms and maintained a receipt book that recorded dues paid. The defendants did not produce those records nor, for that matter, did they produce any such records to show that the defendants had paid their dues and were valid members.

[102] Having failed to make full and proper disclosure of relevant documents, the defendants’ attempt to enter these documents into evidence was met with justified objection by the other parties.

[103] Ned submits that the evidence led by him, Susan, and Sveto, referenced above, explains why Danny’s membership was terminated. As already noted, that “evidence” was neither credible, nor reliable. More to the point, the assertion that Danny’s membership was terminated by reason of his alleged misfeasance as president is contradicted by the Termination Letter - signed by Susan, Milan and Sveto – which states that this membership was terminated for non-payment of dues for two years.

Termination of other members

[104] The defendants challenged the evidence put forth by the plaintiffs as to who were RYACA members in 2010. The plaintiffs’ evidence respecting membership lists was cobbled together from records available to them. The defendants alleged that the plaintiffs had altered the list of members by writing in new names. No originals of any of the membership records were produced. Ms. Trkulja testified that the membership records she had kept were turned over to Ned in 2008. Ms. Trkulja testified that she did not recognize the handwriting of the person who wrote in names after she had resigned as president. I find that evidence fails to establish that the names who were added after Ms. Trkulja’s resignation, were added improperly.

[105] On balance, I conclude that the plaintiffs’ evidence as to the identity of the members in 2010 is no more, nor less, reliable than the evidence put forth by the defendants on that issue: none allows me to determine with any certainty the identity of the members who were as accepted as valid and voting members at the 2010 AGM.

[106] In his responding factum, Ned submits that long prior to 2010, Mr. Gajic had been removed as a member after he “orchestrated a scheme to change the name and to the purpose” of the RYACA. That colourful and pejorative language does not fairly describe the evidence led at trial as to why Mr. Gajic’s membership was terminated. Moreover, Ms. Trkulja’s 2006 complaint to the Association’s Court of Honour about Mr. Gajic, and the letter from the Court of Honour (Exhibit 43), were both written in Serbian. As no English translation was provided to the court, I give no weight to that documentary evidence.

[107] The trial evidence does show that Mr. Gajic’s status as a member was recognized by Danny, as president, and later by those who attended and voted at the October 24, 2010 AGM.

[108] As stated at the outset of these Reasons, I do not decide who was, or was not, a full and valid member of the RYACA in 2010: the evidence leaves me with uncertainty. Also, and as noted above, there is no evidence that the 2010 Board ever voted or decided to terminate the membership of any RYACA member. Indeed, no documentary record was put forth of any decision made by the 2010 Board after the 2010 AGM. However, the evidence respecting the April 2011 meeting and the other actions of the 2010 Board about which there is evidence, does lead to an inference that the 2010 Board treated only a small, hand-chosen few, as members.

[109] By contrast, the trial evidence is unequivocal that no party has established that he or she was an RYACA member as at the date of trial: the uncontradicted evidence is that no member paid his or her membership dues on and after 2011, or possibly 2012. On that basis, I find that as at the time of trial, there are no valid RYACA members.

The Vote to sell the Property

[110] As mentioned earlier in this reasons, Exhibit 24 is a document that the defendants assert lists the names of members who voted in 2015 on the sale of the Property. In his evidence, Ned stated that he prepared this document at the direction of his late father (whose name is on this list). At trial, Milan and Sveto, who are shown on Exhibit 24 as voting in favour of a sale, both testified that they did not cast a vote respecting the sale of the Property and, did not vote in favour of its sale.

[111] When Roy learned of a purported vote to sell the Property and saw the list of 29 persons whose votes were recorded (i.e. Exhibit 24), he contacted some persons on the list. Many told him they had not been notified of any meeting and did not vote. Roy drove to Ottawa and to Windsor to obtain evidence from persons who were shown to have voted in favour of a sale. Letters from three such persons were entered as exhibits at trial.

[112] Based on all the evidence - plaintiffs’ and defendants’ - I conclude that Exhibit 24 does not provide credible or reliable evidence that a membership vote was taken respecting the possible sale of the Property, or the outcome of such a vote.

Natasha’s “Election” as President in 2017

[113] At trial, Roy testified that he is 71 years old and works as a general contractor in Toronto. His father was a founding member, and Roy joined the RYACA in 1968. Roy asserts that his dues were paid annually to 2009 or 2010, although, until 2016, his involvement in the RYACA was limited.

[114] Roy produced a photocopy of a handwritten list of members for the years 2006 to 2015 and for 2012 to 2013 (Exhibit 6). Some of the names were written by Ms. Trkulja, when she was the president. Roy assembled a list of 37 persons that he thought were, or were entitled to be, RYACA members. In 2017, the persons on this list were contacted. Twenty-nine indicated that they would support Natasha as the president of a new RYACA Board.

[115] I cannot and do not rely on the evidence given by Roy as to the identity of the RYACA members in 2010 or 2011. The trial evidence on this issue was conflicting, incomplete, and insufficient for me to make any such finding.

[116] Natasha testified that she is a 36-year-old real estate agent and builder. As a granddaughter of a founding member of the RYACA, she is entitled to membership. Natasha did not become involved in the RYACA until 2016, at the request of her uncle, Danny, when he was concerned about a possible tax sale. Natasha has testified that starting in 2016, she thrice paid the property taxes on the Property. Natasha’s evidence was that she understood that property taxes on the Property had deliberately not been paid, so that the Property would have to be sold.

[117] Natasha testified that she does not think the founders would have wanted the Property to be sold. She estimated that it would take her about 90 days to come up with a plan to develop the Property so that it could be financially self-sustaining and remain a home for the RYACA.

[118] Natasha was candid that, while she had not been involved in the RYACA prior to 2016, she was now committed to it. For that reason, in addition to the financial investment she has made, Natasha has volunteered to run for president of a new executive board, for which she received the support of 29 persons. Natasha expressed optimism that she could recruit new, young members and would be able to develop the Property in such a way so as to preserve it for the RYACA members while generating an income to sustain the RYACA.

Positions of the Parties

[119] I reference below the arguments put forth by the parties in closing submissions, both oral and written. If a party did not make closing submissions, then their position is taken from their evidence at trial.

[120] The position taken by Danny, and by Roy and Natasha, through counsel, were similar, but not identical.

(i) Danny

[121] Danny’s focus was on his assertions that:

(a) the defendants wrongly and improperly terminated his membership in the RYACA and that of 28 others;

(b) in 2015, the defendants proceeded, without authority, to transfer title of the Property to Ned and then to entertain offers for the sale of the Property; and

(c) the conduct of Ned and other members of the 2010 Board, including Susan, who had been elected as secretary, was intended to destroy the RYACA, and for personal gain.

[122] Danny asks for an order appointing an interim operating officer and interim treasurer who might organize efforts to grow the membership, schedule a fair election of a new Board, and fundraise and seek donations of money and labour to be used for the upkeep of the Property.

[123] The relief Danny seeks comes with for three provisos:

1. That neither Roy, nor Natasha, be eligible to hold a position on the Board;

2. That a proper trust agreement be drafted to protect the Property and the RYACA’s assets in future; and

3. That all parties be ordered not to obstruct with efforts to revitalize the organization, recruit members or improve the Property.

(ii) Roy and Natasha

[124] In their closing submissions, Roy and Natasha asked for orders:

1. directing the preparation of a list of members of the RYACA who are eligible to vote;

2. setting the date for an AGM to be held within 60 days of release of these Reasons and upon full and proper notice to the members, who are to be given at least 30 days prior to the AGM;

3. dismissing Ned’s application; and

4. for costs payable on a substantial indemnity basis by the defendants, Ned, Susan, and Sveto.

[125] To understand these submissions, it helps to recall that, while Roy and Natasha are descendants of founding members, neither had any active involvement in the RYACA until long after this litigation began. However, at a time when the Property was subject to a potential tax sale because of unpaid taxes, Natasha came forth with significant funds to pay the property taxes.

[126] Natasha testified that she also made payments toward insurance on the Property and has invested approximately $80,000 of her own money in the RYACA. Pursuant the Carpenter-Gunn Order, any amounts paid by a party in respect of property taxes and/or insurance are to be paid from the sale proceeds of the Property, if it is sold. If the Property is not sold, those payments shall be a debt of the RYACA.

[127] In their reply closing submissions, Roy and Natasha oppose an order that would identify the members based on an historic membership list, and they oppose using the list of names set out at Exhibit 24. They fear that using an old list would exclude them as members of the RYACA and would prejudice Natasha’s right to recover the monies that she has invested to keep the Property from being sold.

(iii) Ned

[128] In closing submissions, Ned submits that the only thing that needs to be determined by this court is whether the plaintiffs and third parties have established that they had a valid membership in 2011 and whether their membership was terminated in contravention of the Constitution. Ned submits that the trial evidence does not support such a finding: the plaintiffs have failed to prove that their memberships were improperly terminated, and the non-parties (the 28 persons) were never members of the RYACA.

[129] Ned urges the court to look at the issues through the lens of the pleadings and to find that this court does not have jurisdiction to reinstate the membership of any persons who are not parties to this litigation. Ned submits that court ought to accept his list of the 29 persons who allegedly voted for or against the sale of the Property (Exhibit 24) as the only members of the RYACA. Alternatively, should the court find that the plaintiffs and third parties had been improperly terminated, then their names could be added to the 29 names, to bring the total number of members to 36.

[130] I note that Ned’s late father is included in the list of 29 names, which may also include others who are deceased or too elderly or infirm to take any meaningful part in the RYACA. A similar observation could be made of at least two of the third parties, who could not take plrt in the trial but whose names Ned proposes to be added to his list of 29.

[131] Ned’s closing submissions also assert that if the court granted the relief sought by the defendants, then the 2010 Board would be allowed to sell the Property because the CPL would be lifted; the plaintiffs and third parties would be required to vacate the Property; and the 29 members could then make their own determination about the Property.

[132] Ned also submitted a “factum” in which he noted that although the relief he claimed was for an order allowing the sale of the Property, such an order now seems unnecessary and, possibly, beyond the ability of the court to grant. Ned concedes that the offer to purchase made by Whitely Rugby Inc. years five ago is no longer valid and that property values have changed drastically since 2015.

[133] Ned also filed a document identified as a “responding factum”, responding to the submissions made by Roy and Natasha. In part, this document also takes issue with the written submissions submitted by or on behalf of Stevo Gajic and Milan, on the basis that their submissions were filed with the assistance of Roy, several hours after the 5 p.m. stated deadline for filing materials.

[134] In his responding factum, Ned asked the court to again consider issuing an order for the sale of the Property on the basis that a “charitable purpose” be established. Attached to the “responding factum” was an email from the Toronto Foundation to Ned’s lawyer, evidencing the Foundation’s willingness to work with the RYACA to establish the General Draza Mahailovic Scholarship Fund.

[135] Quite apart from the inappropriateness of submitting what amounts to new “evidence” in the form of an email attached to responding submissions, I note that in Ned’s trial testimony he stated that a vote of the members concerning whether to sell the Property had not been held at all, let alone in compliance with the Constitution.

[136] Finally, Ned disputes the submissions made by the plaintiffs that there are no longer any members of the RYACA and states: “Individuals become members on submission of a membership application and remain members until they resign, or are expelled.” And that the RYACA “does not want for members” as the “defendants remain members, never having resigned or having their memberships terminated.”

[137] Ned’s submissions conflict with the evidence given by Ned and Susan that members lose their membership if they fail to pay dues for two years. These submissions are a reflection of the perspective demonstrated by Ned, Susan, and Sveto respecting the plaintiffs’ burden of proof but fail to recognize the double-edged sword of their position.

[138] In summary, I understand the relief that Ned now seeks is:

(1) the dismissal of the plaintiffs’ claims;

(2) an order finding that the 29 persons named in Exhibit 24 comprise members of the RYACA;

(3) an order requiring the plaintiffs and the third parties to vacate the Property; and

(4) an order vacating the CPL so that the Property may be sold.

(iv) Sveto

[139] Sveto testified at trial but chose not to make closing submissions. Based on his testimony, I understand that he shares the views expressed by Ned and Susan concerning the authority of the 2010 Board, the decisions it made, and the decisions its (former) members now wish to see made.

[140] However, in cross-examination, Sveto acknowledged that he was not present at any meeting at which a decision was made to sell the Property and that he had not seen the list of persons who had allegedly voted in favour of the sale of the Property (Exhibit 24). Sveto stated that he had never participated in a vote respecting the sale of the Property and that he had given his proxy to Milan but had no idea how Milan voted. He also testified that the list of names of members was created by the Secretary – Susan – and that he, himself, did not know who the paid-up members were in 2009.

[141] In his testimony, Sveto acknowledged that he had a book with him in the courtroom that belongs to the RYACA and which he did not turn over to the audit committee or to anyone else. Sveto also acknowledged that he also had the RYACA bank statements, which he did not produce to the plaintiffs, nor bring with him to court.

[142] Sveto’s conduct at trial provides an example of the failure of the defendants to produce relevant RYACA records. As I am entitled to do, I draw an adverse inference from the failure of Sveto and of Ned and Susan to produce all relevant records and documents in their power, possession or control.

[143] Sveto also testified that that an RYACA executive board holds office for a period of two years and that the mandate of the 2010 Board was valid to 2012 only. I accept that evidence, which supports a finding that the RYACA no longer has a validly-elected executive.

[144] A final note about Sveto’s conduct at trial must be made. Sveto gave his evidence through a certified court interpreter. The last person to cross-examine Sveto was Rade. That examination could not be completed prior to the end of the court day. On the explicit understanding, made in open court, that the interpreter could (and would) return, Sveto’s examination was adjourned to the following trial day. On that day, Sveto was not accompanied by an interpreter. He explained that he chose not to pay for an interpreter because he assumed that the completion of his cross-examination would not be lengthy.

[145] Sveto’s decision not to return to court with an interpreter so that his cross-examination could be completed, was deliberately made: when Sveto had an interpreter, the evidence elicited by Rade in his cross-examination of Sveto was helpful to the plaintiffs and to the third parties. When Rade resumed his cross-examination of Sveto without an interpreter, Sveto’s answers were all but unintelligible.

[146] In the main, I found Sveto’s evidence to be self-serving, inconsistent, and, to a significant extent, lacking in credibility.

(v) Susan

[147] Susan filed written closing submissions on June 8, 2021, followed by a document entitled “responding factum” dated June 15, 2021.

[148] In her June 8 submissions, Susan labelled Danny as a “dishonest, disgruntled man… whose deliberate scheming and machinations grew to create this chaos”. She states that several other men “could have easily re-instated their membership at any time between 2011 and 2015 by paying their dues or by contacting any of the board members”. Susan stated further that this case is also one of “misguided revenge against one family, the Radojas” by Roy, Danny’s brother. Susan also repeats and adds to the allegations she made against Danny in her trial testimony.

[149] Susan defends her role as the real estate agent on the sale of the Property on the basis that there was a risk that the City of Hamilton would “confiscate” the Property for unpaid taxes. Susan asserts that there was an agreement in principle by the RYACA members to consider and review offers from potential buyers, but that a final offer would still require a membership vote as a well as a court order. She asserts that the sale of the Property did not go through because the price offered by the Whitley Rugby Inc. was only the starting point. No negotiations took place and so the deposit cheque was never cashed.

[150] Susan submits that the onus was on the plaintiffs to show that they were members in good standing at the time that their memberships were terminated and that they have failed to do so. She says that they ought to have produced their membership applications.

[151] That argument fails to recognize the reality that the applications would be in the possession of the RYACA.

[152] Susan asks for an order that the “illegal occupants be removed from the premises and to allow the rightful members to once again re-enter and enjoy the property that belongs to them”; and that the valid members of the RYACA be allowed to “dispense with the property as seen fit by the valid membership”. Susan also confirms that her primary concern is that the name of Draza Mahailovic remain at the core of the RYACA and that his legacy continues and that it was “never the intention at the outset in any way to sell” the Property.

[153] In her “responding factum”, Susan challenges the process by which Natasha put forth her name in 2017 as a potential president of the RYACA. Susan also takes issue with the written submissions filed on behalf of Milan, filed with Roy’s assistance: Susan asserts that Roy intimidated Milan and that the parties named as defendants in a court action commenced by Roy (that was not pursued or in issue at this trial) were “terrorized” by him.

[154] It is discouraging to read Susan’s closing submissions, based on hearsay, given the number of times throughout the course of the trial that Susan and the other litigants were admonished by this court not to give hearsay evidence. In these submissions, Susan has repeated allegations made against Danny and Roy that were not supported by proper trial evidence. Susan’s submissions concerning Danny’s alleged poor conduct as president is a repetition of the irrelevant and unsupported allegations that occupied so many days of trial.

[155] Susan completes her submissions with her views as to the use to which the Property may be put. In the absence of any expert or reliable evidence on this issue, her submissions are both irrelevant and unhelpful. Finally, Susan asks the court to consider allowing the RYACA to sell the Property on the basis that the sale proceeds could fund a General Draza Mahailovic Scholarship Fund – a charitable purpose fund – and that an ideal solution would be for the Property be sold to some group who could also cherish the memory of General Draza Mahailovic. For reasons set out above, it is beyond the scope of this trial and beyond the power of this court to make decisions about the sale of the Property or the use of the sale proceeds.

(vi) Milan

[156] Milan was brief in his oral submissions and stated simply that there was no longer any need to sell the Property because the taxes have been paid in full. He filed brief written closing submissions, confirming his support of Natasha as president, and his willingness to again act as treasurer. These submissions were filed with those Mr. Gajic, at approximately 7 p.m., some two hours past the 5 p.m. filing deadline set by the court. They were filed with Roy’s assistance.

Late Filing

[157] In emails sent to the Trial Coordinator, both Ned and Susan raised an alarm with the court concerning the lateness of the submissions filed by Mr. Gajic and Milan and concerning the involvement of Roy in their preparation and submission. Given the trial evidence that Susan and Ned failed to follow the Constitution and/or to discharge their duties as elected members of the 2010 Board, the objections raised by these defendants respecting the most trivial lack of compliance with the filing deadline by two elderly and infirm parties is particularly ironic.

[158] With respect to the complaint that Roy assisted these two elderly men in communicating their views to the court, I note firstly that the views expressed were consistent with the oral testimony given by Milan and Mr. Gajic at trial. Secondly, when compared to the many accommodations given by the court to the defendants throughout the trial by reason of the inexperience of counsel and/or lack of legal training of the self-represented parties, it does not lie in their mouths to raise such a complaint.

(vii) Rade

[159] In Rade’s submissions, he asserted that he had always been a member in good standing and that his termination by the 2010 Board was without notice, wrongful, and not in accordance with the Constitution. In his view, the termination of memberships occurred because the 2010 Board decided, without consultation with the members, to sell the Property.

[160] Rade shares the requests made by the plaintiffs to allow time for new members to be recruited, for an AGM to be conducted, and for a vote to be held on the future of the RYACA, including whether it should be carried on as a not-for-profit corporation.

(viii) Stevo Gajic

[161] Mr. Gajic’s closing submissions were completed by his son, who wrote on behalf of his father “whose health is not very good”. The submissions state that Mr. Gajic does not wish to sell the Property and would like to see the RYACA carry on under Natasha, with old and new members. While Mr. Gajic’s trial evidence was also very brief, he touched on two issues: 1. The oil tank – Mr. Gajic stated that the City had sent a letter about the oil tank, which is why Danny arranged for its removal; and, 2. The Constitution -which, he stated, says that you were elected for two years and then your term expires.

The Law and Analysis

[162] The court was referred to five cases. The represented parties both rely on Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, an appeal brought by the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral (the “Church”) from a decision of from the Ontario Court of Appeal. The respondents had been expelled from a congregation belonging to the Church (the “Congregation”) by the Archbishop of the Church. The respondents brought an action against the Church and members of its senior leadership seeking a declaration that their expulsion was null and void and for other relief. The Church moved for summary judgment on the basis that the court had no jurisdiction to review or set aside the expulsion decision. Summary judgment was granted at the first instance but overturned by the Court of Appeal. The Church appealed to the Supreme Court of Canada, which restored the decision of the motion judge.

[163] The Court stated that “[J]urisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate. In the case before it, the Court noted that “the only viable candidate for a legal right justifying judicial intervention” was contract, the existence of which must be determined on the basis of “general contract principles, and objective intention to enter into legal relations”. On the facts before it, the Court determined that there was no contract and accordingly, there was no jurisdiction for the court to intervene.

[164] While there are similarities between this case and Ethiopian v. Aga, the latter case is distinguishable. Similar to the facts here, the respondents were expelled from the Congregation, an unincorporated association. To become a member of the Congregation, again, similar to the RYACA procedure, a proposed member must complete and submit a membership application form and to pay membership fees. Also, in Ethiopian v. Aga, as here, the members who were expelled sought an order setting aside their expulsion.

[165] The Supreme Court of Canada concluded that the Ontario Court of Appeal erred when it held that there was an underlying contract between the members and the Congregation. In reaching that conclusion the Court considered that the Congregation, like many associations, including the RYACA, has had rules and Constitution and bylaws but concluded that those did not “in and of themselves give rise to contractual relations among the individuals who join”.

[166] It is the facts that distinguish this case from Ethiopian v. Aga. At para. 27, of that decision, the Supreme Court stated that courts do have jurisdiction to intervene in decisions of voluntary associations where a legal right, such as a property or civil right, that is affected by a decision. In this case, the Property is owned by the RYACA; it is the right of the RYACA members to make decisions about and control the future of the Property that is really at stake in this litigation.

[167] In contrast to the facts in Ethiopian v. Aga, in which a decision was made by the Archbishop and the affected parties were given advance notice of potential expulsion, in this case, I have found that the 2010 Board did not hold a vote or, apparently, even make a decision or to terminate the memberships of anyone who had been accepted as an RYACA member. The 2010 Board did not follow accepted practice, nor the Constitution. Further, the purported basis to terminate such membership i.e. the non-payment of dues, was factually wrong: the evidence that I accept shows that affected members had paid their dues.

[168] The actions taken by the 2010 Board in 2011 and in the years that followed left one person, Ned, with sole control over the RYACA’s largest and most valuable asset, the Property – which, according to Susan, was worth more than the $550,000 offered by Whitley Rugby Inc. in 2015 for its purchase.

[169] The evidence supports a finding that the parties whose memberships were purportedly terminated had contributed years of time, labour, and money, toward the betterment and preservation of the Property. Those contributions are in addition to and, in fact, dwarf the annual dues of $100.

[170] On the facts as I have found them, I conclude that that the actions of the 2010 Board on and after April 9, 2011 operated to deprive the members whose memberships were treated as “terminated”. I also find that the actions taken by the 2010 Board, effectively interfered with the legal and contractual right of affected members, including those of Danny, the late Dr. Milenkovic, Roy, Rade, and Mr. Gajic, to enjoy the use of the Property and to share in decision-making concerning its future use.

[171] In my view, the actions of the 2010 Board (or some of them) to transfer the Property and to take steps to sell the Property, and, thereby, to liquidate the RYACA’s only significant asset, affected the proprietary and contractual rights of all of its members. As such, the relief sought by the plaintiffs for themselves and the affected third parties, is a vindication of their legal rights, as members of the RYACA: see Ethiopian v. Aga, at paras. 29, 31, 40, 42 and 49.

[172] Based on the principles set out in Ethiopian v. Aga, I conclude that this court has authority to intervene in the affairs of the RYACA.

[173] The represented defendants rely also on the following further four cases: Colp v. Québec Fire Insurance Co., [1961 N.S.J. No. 24 (N.S.S.C.); Comeau v. Fundy Group Publications Ltd., (1981) 24 CPC 251; Cummings and Ontario Minor Hockey Association 1979 1984 (ON CA), 1979, 26 O.R. (2d) 7 (Ont. C.A.); Polish National Catholic Church of Canada v. Polish National Catholic Church, 2014 ONSC 4501.

[174] The Colp decision concerns the plaintiff’s claim to recover the money he paid for a policy of fire insurance and whether that created an insurable interest in the property. I understand this case is referenced to address the claim brought by Natasha for reimbursement of the monies that she has paid toward the property taxes, utilities and insurance on the Property. I find that case has no application to the facts here.

[175] Natasha, and anyone else who can establish that they have paid any portion of the property taxes due and owing for the Property and/or the property insurance, is entitled to be reimbursed those funds in accordance with the provisions of paragraphs 5 and 6 of the Carpenter-Gunn Order.

[176] The Comeau decision was made an interlocutory application for an order dismissing the action on the basis that an unincorporated association is not capable of being sued. Cummings was cited by Ned in support of the same principle set out in Comeau. That issue was addressed in the Ramsay Order, which dismissed the proceedings brought by or against the RYACA and RYACA Inc.

[177] Polish National, was a decision on a motion to determine whether a corporate plaintiff had legal standing to seek the relief claimed and whether the action was authorized by the corporate plaintiff. In Ned’s “Factum” dated June 8, 2021, Polish National is referenced in support of Ned’s submissions that this Court ought not to make a determination of the rights of non-parties. As set out above, I have made no such determination.

Orders

[178] For the reasons set out above, orders shall issue in accordance with paragraphs 33 (14) and (15) of these reasons.

Costs

[179] The claims brought by the defendants have been dismissed and, as such, they are presumptively liable to the successful parties for costs.

[180] The relief granted substantially favours the plaintiffs, particularly, Roy and Natasha. As such, the plaintiffs are presumptively entitled to their costs from the unsuccessful parties. In their closing submissions, Roy and Natasha seek costs against Ned, Susan and Sveto but not against Milan.

[181] While my decision is in keeping with the outcome endorsed by Rade and Mr. Gajic, they did not seek any relief and they are presumptively not entitled to receive or pay costs. I note that at trial Rade mentioned the Carpenter-Gunn Order which reserved costs of the attendance before her on that date to the trial judge. If Rade seeks to pursue an award of costs relating to that court attendance, he may make written submissions on the same terms and timetable as set out for the plaintiffs.

[182] The parties are encouraged to resolve the issue of costs. If they cannot agree, they may provide written costs submissions not to exceed five pages in length, exclusive of any Bill of Costs or Offer to Settle. The submissions are to comply with the provisions of Rule 4.01 of the Rules of Civil Procedure[7]. References to caselaw and other materials must be hyperlinked.

[183] Costs submissions from the plaintiffs, and if applicable, Rade, are to be served and filed within 14 days of the date of these reasons.

[184] The defendants against whom costs are claimed or sought shall serve and file their costs submissions 14 days after service of the costs submissions delivered by the plaintiffs and/or the third parties.

[185] The plaintiffs and, if applicable, Rade, may make responding costs submissions, which are to be served and filed within 7 days of the delivery of the defendants’ costs submissions.

[186] Costs submissions are to be e-mailed to the trial co-ordinator, with proof of service. If no costs submissions are received within 28 days of the date of these reasons, costs will be deemed to be settled and I will make no further order.

Justice L. Sheard

Released: September 1, 2021

COURT FILE NO.: CV-12-470665

DATE: 20210901

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dragan Varjacic and Dr. Miroslav Milenkovic

Plaintiffs and

Defendants by Counterclaim

Radoslav Varjacic and Natasha Varjacic

Plaintiffs

– and –

Nenad Radoja, Svetislav Volonovic, Susan Glenn and Milan Djordjevic

Defendants and

Plaintiffs by Counterclaim

– and –

Rade Cavic, Stevo Gajic, Ljubormir Jovancevic, and Djuro Zdero

Third Parties

REASONS FOR JUDGMENT

Released: September 1, 2021

[1] Part Lot 14, Con 6 Saltfleet, as in AB 3855, Stoney Creek, City of Hamilton, registered as PIN 17378-0057 (LT) and known municipally as 360 Fifth Road East, Stoney Creek, Ontario.

[2] The Constitution sets out membership eligibility.

[3] In his closing submissions, Danny sought an order preventing any of the defendants, Roy, and Natasha, from being eligible to seek a position on the new executive board.

[4] In or about 2016, Natasha personally paid approximately $64,000 to bring the insurance and property taxes current on the Property. At trial, Natasha stated that she had paid approximately $80,000 toward taxes, utilities and insurance for the Property.

[5] See Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22

[6] As noted earlier in these reasons, there is no evidence that any business was conducted at that meeting.

[7] R.R.O. 1990, Reg. 194