COURT FILE NO.: CV-20-3338-00
DATE: 2022 11 29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NARAYANASAMY ATHESIVAN, YOGARANJAN INDRALINGAM, MATHIVATHANY NITHIYANANTHAN, EASWARA PERYATHAMBY, and PARAMSOTHY KALADEVAN
Applicants
– and –
CANADA SHRI MUTHTHUMAARI AMMAN TEMPLE, SIVALINGAM VARATHARAJAH, BALAKRISHNAN KUMARAGU, VENKADASALAM SATHANANDAVADIVEL, YOGENDIRA SUTHANTHIRAJAH, PIRATHEEPAN SHANMUGALINGHAM, RAJKUMAR SIVARAJASUNTHARAM, VASUKY JEEVADASS, KARTHIK EASPARALINHGHAM, and MUNHUNTHAN RAJADURAI
Respondents
Glen Perinot, for the Applicants
Jelani Asanta, for the Respondents
HEARD: November 16, 2022
AGARWAl J.
REASONS FOR JUDGMENT
I. Introduction
[1] The applicants Narayanasamy Athesivan, Yogaranjan Indralingam, Mathivathany Nithiyananthan, Easwara Peryathamby, and Paramsothy Kaladevan apply for an order: (a) appointing a monitor over the affairs of the respondent Canada Shri Muththumaari Amman Temple; and (b) freezing all of the temple’s accounts and assets.
[2] The individual respondents are all current or former directors or officers of the temple. The applicants say that they are the rightfully elected officers or directors of the temple.
[3] The issue in this application is whether the allegations of breach of trust made by the applicants raise a serious question to be tried. The applicants have to show, on the evidence, that their claims are “neither frivolous nor vexatious”. If so, the court will consider whether it is just and convenient to appoint a monitor.
[4] Indralingam is the former (and, he says, current) treasurer of the temple. The applicants allege that the respondent Sivalingam Varatharajah, the temple’s former president, stole money from the temple. They claim that, in retaliation, the board improperly removed Indralingam as treasurer after he discovered the theft. They also allege that the temple has not had a lawful election for the board since 2017. In short, the applicants argue that the temple is so mismanaged that the only solution is to appoint a monitor to oversee its affairs.
[5] The applicants have failed to prove, on the evidence, that their allegations of breach of trust raise a serious question to be tried. There is no basis to impose a monitor over the temple’s affairs. Thus, the application is dismissed. In making this decision, I don’t purport to sanction the temple’s governance, which may need some reform. But that need is not so dire that a monitor is necessary.
II. Background
[6] The temple is a non-share, not-for-profit Ontario corporation. It is a sacred religious institution and a community centre for members of the Tamil community in the Greater Toronto Area. It was incorporated in 2011 under the Ontario Corporations Act, RSO 1990, c C.38. As of October 2021, the temple is governed by the Not-for-Profit Corporations Act, 2010, SO 2010, c 15. ONCA generally applies automatically to all Ontario not-for-profit corporations. Existing not-for-profit corporations previously governed under the Corporations Act, like the temple, have a three-year transition to make any necessary changes to their incorporating and other documents to bring them into conformity with ONCA.
[7] The respondents have put into evidence an official translation of the temple’s “Constitution 2015”. Indralingam says that there was a different constitution every time a new board was elected but he adduces no evidence to support his claim (such as admissible copies of these other constitutions). Varatharajah’s evidence is that the Constitution 2015 wasn’t “in effect while we were there” but the board “generally followed the guidelines”. He doesn’t explain what constitution or by-laws governed the temple during his term as president.
[8] Without any document that the parties say regulates the temple’s activities during the events at issue in this proceeding, I find that there were no such by-laws. That said, the temple’s governance appears to align with the Constitution 2015.
[9] The temple has ordinary and life members, who pay a monthly or annual subscription and have voting rights. The temple may have allowed devotees or worshipers to vote, even though they haven’t paid a membership fee, but I don’t know if that was a practice or an oversight.
[10] The temple is governed by a board of directors (translated to Board of Trustees in the Constitution 2015 but called “the committee” by the parties), consisting of 15 members of the temple. There are four officers, who are also directors. The directors and officers are elected by the members at an annual meeting. The directors may fill any vacancies on the board.
[11] It’s unclear how often elections were held. The Constitution 2015 says directors are elected for three-year terms. But there is some evidence that elections were held every two years.
III. Admissibility of Evidence
[12] “To be receivable…evidence must be relevant, material and admissible.” See R v Candir, 2009 ONCA 915 at para 46.
A. Links to Facebook Videos
[13] The applicants relied on two affidavits filed by Indralingam. Indralingam lists several Facebook links in his affidavit. In some cases, he does not refer to these documents as exhibits or attach them to the affidavits (Rules of Civil Procedure, r 4.06(3)). The links are purportedly to videos on Facebook that support his claims. The admissibility of a video recording depends on: (a) its accuracy in truly representing the facts; (b) its fairness and absence of any intention to mislead; and (c) its verification by oath by a person able to do so. See Sidney Lederman, Michelle K Fuerst & Hamish Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed (LexisNexis Canada, 2022) §18.131.
[14] Indralingam has not proven the accuracy of these video recordings. He does not say that he is the camera operator or an eyewitness who can testify that the videos are accurate. He has not been qualified as an expert witness to state that the representation is accurate. As a result, on that basis alone, the videos are inadmissible.
[15] It’s possible that a witness can put into evidence a video from the internet without necessarily attaching it as an exhibit (under rule 4.06(3)(b), for example). But there is a practical issue with the approach used here. To receive the evidence, Indralingam asks the court to click links in his materials to Facebook. First, there is a cybersecurity risk. Most organizations recommend against clicking links from unknown sources to avoid phishing or spoofing scams (see, for example, the Supreme Court of Canada’s guidance at https://www.scc-csc.ca/court-cour/fraud-email-courriels-eng.aspx). The parties may be known to the court, but they don’t always “own” the links in their materials.
[16] Second, judges are advised to be cautious about engaging with social media. See Canadian Judicial Council, Ethical Principles for Judges (June 2021). The court loses some control over its process when it clicks on a link in the parties’ materials. For example, does a party know when the court viewed their social media page if the judge clicks the link? Can third parties learn when the court viewed a page? Is there a risk that third parties would misunderstand the court’s purpose, thereby compromising public confidence in the judiciary? Do the parties have access to the judge’s social media information? Could the party and judge inadvertently become social media “friends” or followers? Does that risk undermine public confidence?
[17] The approach used by Indralingam here is the equivalent of attaching a map of a third party’s building where a video is stored, and asking the court to walk in, find the video, play it, and watch it, all at the risk of being robbed while doing so. Though the court should not be so cautious as to be scared of social media (or technology more broadly, to increase access to justice and reduce costs), I believe the uncertainty of what happens when the court clicks a link to Facebook or another site militates against the approach used here. If a party wants to put a video into evidence, the video should be filed somehow.
[18] Given the court’s use of CaseLines and virtual hearings, filing the video as an exhibit on a portable drive may not be efficient. Though video and audio files can be uploaded to CaseLines, another option may be for the lawyer to download the video and share it with the court using a secure file sharing platform. The video still needs to be proven under the rules of evidence but this approach reduces the practical friction.
B. Irrelevant Evidence
[19] “To determine whether an item of evidence is relevant, a judge must decide whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact more probable than it would be otherwise.” See Candir, at para 48.
[20] Indralingam seeks to put into evidence several facts that are simply irrelevant to the issues on this application:
• an alleged assault by one of the respondents, which was later resolved by a peace bond
• the temple didn’t close during COVID, resulting in a Notice of Non-Compliance from the City of Toronto
• the temple allegedly increased the donation amount from $100 to $1000
• an alleged sexual assault by one of the respondents’ associates, one of whom the applicants say is a gang member who escaped jail in India
• an alleged threat of rape by one of these same associates against a worshiper
• the temple received a Canada Emergency Business Account loan
[21] None of these facts help me determine whether the respondents have committed breach of trust by misappropriating funds or through governance irregularities. They are salacious and, in my view, solely intended to try to impair the credibility of the respondents.
C. Hearsay Evidence
[22] Though rule 39.01(5) of the Rules of Civil Procedure operates as a controlled exception to the hearsay rule, the facts must be non-contentious. Indralingam seeks to put into evidence facts about an alleged threat of rape by one of the respondents’ associates against Nithiyananthan, one of the co-applicants. This fact is clearly contentious. Even if it were relevant, it should have been put into evidence by Nithiyananthan.
D. Unofficial Translations
[23] Documents submitted as evidence are required to be in the English language or come with English translations. See Lederman, §2.01. Indralingam seeks to put into evidence at least two documents in Tamil. No official translation has been provided. They are, as a result, inadmissible.
E. Hyperlinking
[24] Though the formatting of the application records is not an evidentiary issue, it does touch on the court’s ability to receive and consider evidence. The Central West Region: Notice to the Profession and the Parties, effective April 19, 2022, requires all documents uploaded to CaseLines to be “properly formatted, indexed and bookmarked or hyperlinked to permit a judge to easily move from one clearly identified document to another clearly identified document.” The court has published CaseLines Hearings – Tips for Counsel and Self-represented Parties, which explains how to hyperlink and bookmark.
[25] Here, none of the documents filed by the parties were hyperlinked or bookmarked. Why does it matter? The failure to follow the practice direction causes delay. It makes it harder for the court to review the materials before and after the hearing. It lengthens the hearing itself as the court has to scroll through hundreds of pages to find a reference or document.
[26] Failing to hyperlink or bookmark a document in CaseLines is like, before CaseLines, giving the court a bound brief with no table of contents, no page numbers, and no tabs. That would be unheard of. Good advocacy includes competency in the technologies that the court is using, and the rules of practice governing hearings using those technologies.
IV. Legal Framework
[27] Any corporation incorporated for a religious or charitable purpose shall be deemed to be a trustee within the meaning of the Charities Accounting Act, RSO 1990, c C.10, and any real or personal property acquired by it is deemed to be property within the meaning of the Act (Charities Accounting Act, s 1(2)).
[28] As a result, the temple is a trust, and its property is trust property. Its directors are impressed with fiduciary obligations to carry out the trust (Ontario Soc’y for the Prevention of Cruelty to Animals v The Toronto Humane Soc’y, 2010 ONSC 608 at para 36).
[29] “There is an implicit acknowledgment that the fiduciary owes a duty to the public in general which supports the privileges extended to charitable corporations and to the public in particular which turns over its money to the charitable corporation for the charitable purposes it wishes to support.” See OSPCA, at para 38.
[30] The applicants’ notice of application pleads and relies on section 101 of the Courts of Justice Act, RSO 1990, c C.43, and the court’s “inherent and equitable jurisdiction”. Section 101 states: “In the Superior Court of Justice…a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.”
[31] In Re Public Trustee and Toronto Humane Society, 1987 4192 (ON SC), 60 OR (2d) 236 (Sup Ct) at para 26, the court identified three bases for the court’s supervision of a charitable trust: (a) “direction made in pursuance of the Trustee Act [RSO 1990, c T.23]”; (b) section 10(1) of the Charities Accounting Act; and (c) the court’s inherent jurisdiction.
[32] I would add to this list the court’s equitable jurisdiction under section 101 of the Courts of Justice Act (see Bus. Dev. Bank of Canada v Astoria Organic Matters Ltd., 2019 ONCA 269 at paras 38-9, which distinguishes between the court’s equitable jurisdiction under the CJA and its inherent jurisdiction as a superior court of law).
[33] The applicants do not plead or rely on the Trustee Act.
[34] Under the Charities Accounting Act, two or more persons alleging a breach of a trust created for a charitable purposes may apply to the court for any “order as it considers just for the carrying out of the trust under the law” (s 10(1)). This application shall be on notice to the Public Guardian and Trustee (s 10(2)). The applicants do not plead or rely on section 10(1) of the Charites Accounting Act as a basis for this court’s jurisdiction. In any event, the applicants have not notified the OPGT.
[35] Instead, the applicants are relying only on this court’s inherent or equitable jurisdiction, as “informed” by the Charities Accounting Act. That power gives the court “broad jurisdiction” in charitable matters, exercisable because of its “special position” in the law of charities. See Re Public Trustee and Toronto Humane Society, at para 21. The court can require a charity to “act in accordance with its charitable purposes and to intervene if charitable funds are misapplied” (OSPCA, at para 38).
[36] In OSPCA, at para 41, the court established the following legal test for the imposition of a monitor over a charity’s affairs as an exercise of the court’s inherent or equitable jurisdiction:
(a) determine whether the allegations of a breach of trust made by the applicants raise serious questions to be tried;
(b) assess and compare the nature and degree of the harm that would result from granting or not granting the relief sought, considering any need to preserve the assets, undertaking, or activities of the charity in order to enable it to continue pursuing its charitable objectives; and
(c) consider any other factor in the context of the court’s supervisory jurisdiction over charities.
[37] In oral argument, the applicants submit that the three-part test established by Justice Brown (as he was then) in OSPCA is not the burden they have to meet. Instead, they argue I need only find it is “just and convenient” to appoint a monitor. The applicants rely on Singh v Sandhu, 2013 ONSC 3230, where Justice Brown appointed a monitor over the affairs of the Sikh Spiritual Centre Toronto without referencing the three-part test from OSPCA.
[38] That case is distinguishable. The parties asked the court to set a date for a special members’ meeting under the Corporations Act. Section 297 states that the court may direct a meeting of the corporation’s members “in such manner as the court thinks fit”. The “factionalism” of the Centre’s membership was so “poisoned” that the Centre’s affairs needed to be regularized before Justice Brown would order a new election. As a result, as a condition for a new election, he appointed a monitor using his powers under section 297. In my view, Justice Brown was ordering a monitor as a term of his order directing a members’ meeting to elect new directors. He was not deciding whether to appoint a monitor under the court’s equitable or inherent jurisdiction because charitable funds were being misapplied.
[39] Though the applicants’ factum asks this court for the same “oversight and guidance…as Justice Brown was able to provide the parties in Singh”, that is not what their notice of application requests. The applicants here do not ask the court to direct a special meeting under the Corporations Act. They ask for appointment of a monitor because of alleged financial improprieties, similar to OSPCA. The relief the applicants ask for is like in Malik v Sabha, 2020 ONSC 5535. There, the plaintiffs sought an interim monitor to manage the temple’s financial affairs because of alleged governance and financial irregularities. Justice Doi applied the three-part test from OSPCA. So too here.
V. Analysis
[40] To support their claim for breach of trust, the applicants rely on two incidents: (a) the alleged misappropriation of around $400,000 from the temple’s bank accounts; and (b) failing to hold an annual meeting to elect directors and officers.
A. Alleged Misappropriation
[41] On August 25, 2019, the temple’s directors, at a board meeting, removed Indralingam as treasurer. They alleged that: (a) Indralingam misappropriated around $30,000 from the temple; and (b) he added a stranger to the temple’s payroll and issued a T4 tax slip for them. Indralingam had notice of the meeting as he attended part of it. He argues that he could be removed as treasurer only by members at an annual meeting.
[42] Sometime later, Indralingam accused the directors of misappropriating $400,000 from the temple’s bank account. Indralingam put into evidence an excerpt from the temple’s bank account statement showing $400,000 being debited from the account on September 20, 2019. He says he asked the trustees about these withdrawals and they refused to answer. Indralingam also states the respondents were not depositing donations from members and devotees to the temple’s bank account. He has adduced no evidence of this allegation. Indralingam wrote to the temple’s bank, which has since frozen the temple’s bank account.
[43] In response, the temple has produced bank statements showing that it moved $400,000 from the temple’s bank account to buy three GICs in September 2019. This evidence is uncontradicted. In reply, Indralingam changes his tune—rather than accusing the respondents of theft, he shifts to arguing that he was merely trying the hold the directors accountable in his capacity as (former) treasurer.
[44] There is no evidence of a breach of trust related to this alleged misappropriation, never mind a serious issue to be tried. Indralingam’s accusation that the board stole $400,000 of the members’ funds has no merit.
[45] In oral argument, the applicants also argued that Indralingam’s removal as director is a breach of trust. If the Constitution 2015 governs, Indralingam could only be removed by the members at a special meeting. But the applicants insist the Constitution 2015 did not govern the temple’s affairs. There is nothing in the Corporations Act governing the removal of directors of a not-for-profit. The applicants seem to be relying on a general proposition that if Indralingam was elected by the members, he can only be removed by the members. On the evidence before me, I don’t find that his removal as a director and officer by the board raises a serious issue of breach of trust. It’s unclear that the board could not remove him and given the allegations of theft and fraud against him, I don’t believe they breached the members’ trust by doing so.
[46] The applicants also argue that the Notices of Trespass sent to them are a breach of trust. Though the Notices may have been heavy-handed, I don’t believe their issuance was a breach of the directors’ fiduciary obligations to carry out the trust.
B. Election Impropriety
[47] The applicants allege that the temple has failed to hold an annual general meeting or election since 2017.
[48] Varatharajah filed documents with the Ontario government, CRA, and the temple’s banks stating that there was an annual meeting in August 2019 where directors and officers were elected. The applicants allege that this is a lie, and the individual respondents have “fraudulently and illegally” represented themselves as officers or directors of the temple.
[49] There is some confusion in the record whether there was an election in 2019. The respondents seem to be arguing that no election was needed until 2020 (i.e., at the end of the board’s three-year term), and then COVID delayed that election. But they also seem to be arguing that there was an election in August 2019. The Constitution 2015 filed by the respondents states there should be an annual meeting every 15 months—the applicants rely on this document to argue there should have been an election in 2019, but then disavow it as inapplicable to the board elected in 2017.
[50] Without by-laws, the Corporations Act requires a director election yearly (s 287(2)). But section 287(4) states that if an election is not held at the proper time, the directors continue in office until their successors are elected. The evidence before me discloses that the board was elected in 2017 and believed, in good faith, that they didn’t need another election until 2020 (because directors are elected for longer than one year). That election could not be held because of COVID. When Indralingam was removed in August 2019, the board filed paperwork with the government and its banks advising of the current directors. To the extent that they believed they needed a formal mechanism such as an election and organized a process that they believed was satisfactory, they were, perhaps, misguided but I don’t believe they acted dishonestly.
[51] The disaffected members held a meeting in January 2020 at an offsite location (because some of them were banned from the temple), which they say was an annual meeting of the temple. No one from the board was present, which is unusual if not irregular. There, around 70 “members” of the temple elected a competing board of directors, including the applicants. Varatharajah alleges that most of these individuals were not, in fact, members but mere devotees or worshipers, meaning they had no voting rights. Indralingam admitted that most of the participants in this election—including him—were devotees and not members (in that they had not paid their membership fees), which is also unusual if not irregular.
[52] Indralingam’s board engaged with the temple’s banks and landlord as the temple’s directors. Not surprisingly, this factionalism caused confusion for the banks (which continued to freeze the temple’s accounts) and landlord (who has since refused to renew the temple’s lease). More importantly, this factionalism is hurting the temple and its members, whose stated aim is to worship together. Indralingam’s board also managed to change the officers and directors listed with the Ministry of Government Services.
[53] In October 2021, the temple held an annual meeting. The members elected 15 directors, most of whom, including the temple’s officers, are not respondents in this proceeding (or alleged to have committed breach of trust). The applicants do not accept this election—they say they weren’t provided notice of the meeting and, in any event, were barred from running.
[54] These election irregularities may undermine the good governance of the temple. But the improprieties don’t rise to the level of a breach of trust. To the extent there was no required election in 2019, there is now an elected board. Further, it’s unclear, on the evidence, that the applicants had a right to vote or be elected as directors. Indralingam was removed as a director because he allegedly defrauded the temple. He, supported by the other applicants, responded with baseless accusations against the board. They have, in effect, tried to organize a coup of the temple’s board by holding themselves out to the government and the temple’s banks and landlord as the rightfully elected board (even though the status of the “members” that elected them and their status to be directors is questionable). For that reason, it’s unsurprising that the temple and board would deny the applicants’ the right to be elected as directors or vote in the election. There is no evidence of a breach of trust related to the elections, never mind a serious issue to be tried.
VI. Conclusion
[55] The applicants have made serious allegations against the temple and its directors and officers. These allegations are almost all unsubstantiated. In some cases, the allegations are scandalous, made even more so by the failure to adduce any admissible evidence to support these claims. In the meantime, the temple’s activities, to the detriment of its worshippers, have been frozen.
[56] The applicants have failed to meet their burden of showing that there is a serious issue of breach of trust. Thus, there is no basis for the imposition of a monitor over the temple’s affairs.
[57] That all said, the temple’s governance may need reform. The coming into force of ONCA and the election of a fresh board will help. In making this decision, I’m not blessing the temple’s failure to abide by appropriate corporate governance rules. Though a nonprofit run by volunteers should not be held to the standard of a public company with a professional board, the directors must not forget that our law makes them fiduciaries of the members’ trust. A court should not interfere unduly in the activities of religious organizations—the right of a religious community to determine how it will be governed is an important one. That said, it is of fundamental importance that a temple should conduct itself in accordance with the requirements of law and that its directors be elected in a fair and transparent manner. See Bala v Scarborough Muslim Ass’n, 2008 63179 (Ont Sup Ct) at para 20.
[58] More so though, the temple’s leadership (which, in the broader sense, includes the disaffected members) need to recommit themselves to the temple’s purpose. Temples play an important role for the South Asian diaspora. They provide a sense of community to new immigrants. They are a source of culture and history for the children of those immigrants. They ensure a link between the diaspora and their communities of origin. And, of course, they are a place of worship, where community members can, together, celebrate their faith and festivals. In a complex, fast-changing, and sometimes scary world, the temple is a home for religious placemaking and community building. The parties have risked dishonouring that sacred role.
VII. Costs
[59] The parties should attempt to resolve the issue of costs on their own. If they cannot do so, the respondents may file their costs submissions (three pages, double-spaced, one-inch margins), costs outline, and any offers to settle on or before December 6, 2022. The applicants may respond on or before December 13, 2022 (costs submissions of three pages, double-spaced, one-inch margins; costs outline; and any offers to settle). If I have received no submissions within these time limits, I will assume that the parties have resolved the issue and make no costs order.
Agarwal J.
COURT FILE NO.: CV-20-3338-00
DATE: 2022 11 29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NARAYANASAMY ATHESIVAN, YOGARANJAN INDRALINGAM, MATHIVATHANY NITHIYANANTHAN, EASWARA PERYATHAMBY, and PARAMSOTHY KALADEVAN
Applicants
– and –
CANADA SHRI MUTHTHUMAARI AMMAN TEMPLE, SIVALINGAM VARATHARAJAH, BALAKRISHNAN KUMARAGU, VENKADASALAM SATHANANDAVADIVEL, YOGENDIRA SUTHANTHIRAJAH, PIRATHEEPAN SHANMUGALINGHAM, RAJKUMAR SIVARAJASUNTHARAM, VASUKY JEEVADASS, KARTHIK EASPARALINHGHAM, and MUNHUNTHAN RAJADURA
Respondents
REASONS FOR JUDGMENT
Agarwal J.
Released: November 29, 2022