Court File and Parties
MOTION HEARD: 20220909
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kamaljit Singh, Sadhu Singh Brar, Gurinder Singh and Ranjit Singh Toor, Applicants
AND:
Sikh Spiritual Centre Toronto, Respondent
BEFORE: Associate Justice Jolley
COUNSEL: Howard Reininger, counsel for the moving party applicants
Mark Wiffen, counsel for the responding party respondent
HEARD: 9 September 2022
REASONS FOR DECISION
[1]
Overview
The applicants bring this application seeking reinstatement of their membership in the respondent centre. In their amended notice of application, they argue that the meeting terminating their membership was not properly called. They also argue that the information the respondent provided to the membership about them was false and intentionally misleading. While they do not dispute that the respondent can terminate membership on proper grounds, they argue that it has not done so here, due to this allegedly false information.
[2]
Background
On this motion the applicants seek leave to deliver a further affidavit to address what they say is a new ground advanced by the respondent in support of the termination of their memberships, notwithstanding that they have already cross-examined on the respondent’s affidavit.
3In its responding affidavit, the respondent gave three reasons for terminating the applicants’ membership: (1) unpaid contractors which had not been disclosed; (2) failure to turn over all books and records; and (3) payments made to a former director.
4The applicants cross examined the respondent’s deponent on his affidavit on 12 August 2021. The applicants allege that during that cross examination, the respondent provided a new reason for its termination of the applicants’ memberships, namely that it had been required to pay a $24,871.10 fine to the City of Toronto pursuant to a notice of default issued under the Provincial Offences Act as a result of misconduct by the applicants. The documents in support of that allegation were provided in answer to an undertaking. In a follow up answer, the respondent alleged that it had been convicted of failing to comply with an order under the Building Code at a time when the applicants were supervising construction on the respondent’s behalf.
[5]
The Law
The parties are agreed on the law. Rule 39.02(2) provides that party who has cross examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent. The court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.
6In order for leave to be granted, the court must be satisfied that the evidence is relevant, that the respondent will not suffer non-compensable prejudice and that there a reasonable explanation why the evidence was not included. (First Capital Realty Inc. v. Centrecorp Management Services 2009 CanLII 75631 at paragraph 9).
[7]
Analysis
The respondent argues that the evidence concerning this City fine is not relevant for two reasons. First, there is settled law that the reasons for the termination of membership in a body such as the respondent are irrelevant in an application such as this one. The only issue before the applications judge is whether the respondent complied with its procedural obligations in the holding of a members’ meeting. Second, it argues that it does not intend to rely on this fourth issue as a ground of termination and its counsel is prepared to undertake to the court not to do so and, to alleviate any concerns, proposes that that portion of the transcript simply be redacted on consent.
8On the first argument, the respondent may succeed in this argument at the hearing of the application, but the applicants have not so limited their application. They seek an order for reinstatement not just on the grounds of an improperly called meeting but also on the basis that the information provided to the respondent’s membership was false and intentionally misleading. They argue as part of the grounds that the respondent can terminate membership on proper grounds but has not done so here, due to this allegedly false information. This is an issue for the applications judge, who will determine the proper scope of review in the course of hearing argument. If the respondent is correct in its interpretation of the law, it will be entitled to seek its costs of responding to this peripheral issue.
9On the second argument, I accept that the respondent has no intention of relying on this issue as part of any grounds for termination of membership. It argues that if this further affidavit is permitted, it will be required to incur unnecessary costs to respond to it. While I appreciate that the respondent does not intend to rely on these grounds, and his offer to undertake that position to the court is appreciated, it is possible that this allegedly false information was provided to the membership and influenced some members to vote in favour of termination.
10There is no non-compensable prejudice to the respondent, who can cross examine the applicant on this new affidavit, should it wish. While it argues that there is a cloud over its membership composition, the best way to remedy that, in my view, is to have all relevant information before the applications judge so the matter can be dealt with expeditiously.
11Lastly, the respondent argues that the applicants were aware of what information was provided at the 13 June 2021 meeting because they attended and participated in it, making submissions on why their memberships should not be terminated. There is no reason they could not have addressed this new and allegedly false information in their affidavit sworn 14 July 2021, after the meeting was held. Either they have no explanation for not addressing this fourth issue, if it was raised, or, more likely, this issue was not raised at the meeting, in the respondent’s submission, and the further affidavit should be disallowed.
12Having reviewed the June affidavit, it seems its focus was on the three grounds advanced by the respondent in its affidavit for its decision to move to terminate the applicants’ memberships. The applicants did not raise this fourth issue, as it was not raised in the respondent’s affidavit, even though it may or may not have been discussed at the meeting. On that basis, I find there is a reasonable explanation why the evidence was not included in the initial affidavit. Equally importantly, in fairness to the applications judge, if she or he determines that the grounds for termination are relevant, it makes sense that all the evidence be before the court so the issue can be determined.
[13]
Disposition and Costs
I fix costs of the motion at $2,000 payable in the cause and in the discretion of the applications judge who will have assessed the weight, if any, given to this further affidavit. Leave is granted to the applicants to serve and file the affidavit of Gurinder Singh, sworn 20 June 2022, as found at Exhibit “D” to the affidavit of Judy Dodd sworn 20 June 2022 in support of this motion.
Associate Justice Jolley
Date: 12 September 2022