Court File and Parties

Court File No.: CV-22-00000250-0000
Date: 2025-03-20
Ontario Superior Court of Justice

Between:
Manoravy Thillainathan, Applicant
and
Hindu Temple Society of Canada, Thambirajah Vignarajah, Sateesh Paturi, Paramanantharajah Thambyayah, Krishnarao Venkataraman, Sivarama Krishnan, Raghavan Madanagopalan, Srinivas Venkatesh, Krishnan Gowrishankar, Kidambi Raj, Veluvolu Basavaiah, Ravivarman Balasubramaniam, Jeyaganeshan Paramalingam, Piranavan Sivapatham, Varatharajan Thambidurai, Rathy Ponnampalam, Sujeetha Rajasingham, Sivakumar Mailvaganam, Kandasamy Nagasivakumaran, Arul Mylvaganam, Mahesh Aravamudan, Raghavan Hariharan, Nadarajah Ravindran, Ponnampalam Paramanathan, Murugupillai Pavalaghanthan, Chelliah Sivabasgaran, and Sivanathan Thillaiyampalam, Respondents

Appearances:
Oleg Roslak, for the Applicant
Vitali Luchko, for the Respondent, Hindu Temple Society of Canada

Heard: February 21, 2025

Reasons for Decision

Charney J.:

Introduction

[1] This proceeding concerns a motion and a cross-motion.

[2] The Applicant, Manoravy Thillainathan, has brought a motion to amend his Notice of Application and file supplementary affidavits in support of the Application.

[3] The Respondent, Hindu Temple Society of Canada (HTSC), opposes the motion and has brought a cross-motion to have the Application dismissed, primarily on the ground of mootness.

[4] In order to understand the parties’ respective positions, it is necessary to review the history of this proceeding.

Procedural History

[5] This Application was commenced by the Applicant as an urgent application on January 24, 2022.

[6] The Applicant, Manoravy Thillainathan, is the former president of Respondent HTSC.

[7] The Respondents are the HTSC and the 26 officers and directors of the HTSC in 2022. None of these named individuals are currently officers or directors of the HTSC.

[8] The Application sought four primary orders:

i. An Order that the Respondents immediately implement certain resolutions passed at the 2020 Annual General Meeting of the HTSC;

ii. An Order that the 2021 Annual General Meeting and election of the directors that took place on December 12, 2021 be declared invalid;

iii. An Order “that the 2021 Annual General Meeting and election of directors be reconstituted in compliance with the provision of the Corporations Act, R.S.O. 1990 c. C38”; and

iv. An Order appointing an inspector to investigate the affairs and management of the HTSC.

[9] Given its purported urgency, the Applicant sought an early hearing date, and the Application was scheduled to be heard on February 14, 2022.

[10] When the matter came before the Court, the Applicant had not yet filed his Application Record and was not ready to proceed. In his Endorsement that day, Bale J. stated:

This application was set for hearing today. The date was given to the applicant on January 19, 2022 on the basis of urgency. In an email from [the Trial Coordinator] to applicant’s counsel of the same date, it was made clear that “[t]he court expects all parties to be ready to proceed, with all material filed, and added to Caselines.”

However, counsel were not ready to proceed this morning. Mr. Ali [counsel for the Applicant] asked that we proceed with a scheduling hearing. Mr. Luchko’s [counsel for the Respondent HTSC] response was that scheduling a hearing today would be premature given that the application record has not been served, that his client needs to report the claim to its insurer, and that the position of the balance of the 27 respondents needs to be ascertained.

Last November, the applicant considered the application to be urgent because she sought to have the court make certain rulings in advance of the Temple’s annual general meeting scheduled for December 12, 2021. However, as that date has passed and the election was held, I do not see the application to be urgent at this time.

[11] Bale J. directed the parties to schedule a telephone case conference to deal with scheduling after the Applicant served his Application Record. The Application Record was served on April 4, 2022.

[12] The matter returned to Bale J. for a video conference on August 29, 2022, and he approved the following timetable:

a) Delivery of Responding Records: October 31, 2022
b) Delivery of Reply Record: November 28, 2022
c) Cross-examinations: January 31, 2023
d) Delivery of Facta: In accordance with the Rules
e) The Application was placed on the Long Hearing Running List

[13] The records were delivered in accordance with a) and b) of the timetable, but the HTSC took exception to certain paragraphs in the Applicant’s reply affidavit, and brought a motion to strike those paragraphs on the basis that they raised new issues that were not addressed in the Responding materials.

[14] The motion was heard by Bale J. on March 29, 2023. He struck out certain paragraphs in the reply affidavit, granted the HTSC leave to deliver an affidavit responding to certain other paragraphs by April 24, 2023, and ordered that the time for the completion of cross-examinations be extended to July 14, 2023.

[15] The HTSC complied with this timetable and filed its responding affidavit on April 24, 2023.

[16] On April 28, 2023, counsel for the HTSC was advised that the Applicant had retained new counsel.

[17] On June 18, 2023, the new counsel for the Applicant advised counsel for the HTSC that he intended to amend the Application. No further steps were taken by the Applicant until December 15, 2023, when the Applicant’s counsel wrote to counsel for the HTSC seeking leave to amend his Application. Counsel for the HTSC advised that the HTSC would not consent to the amendment. The Applicant’s Notice of Motion was served on May 13, 2024, and was originally scheduled as a short (under one hour) motion to be heard July 17, 2024. The motion record was served on July 15, 2024.

[18] The motion was adjourned sine die by the Associate Justice since the motion could not be heard in less than an hour and should be heard at the same time as the HTSC’s cross-motion.

Proposed Amendments

[19] Some of the proposed amendments are inconsequential. For example, the Applicant wants to amend his Notice of Application to rely on the Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15 and the HTSC by-laws.

[20] Others are more significant. In addition to the appointment of an “inspector” to investigate the affairs and management of the HTSC, the Applicant would add, “in the alternative, or in conjunction with” an inspector, “an Order appointing a monitor of the affairs of the HSTC”.

[21] The most significant is the Applicant’s request to amend the Notice of Application to challenge the election held on December 17, 2023, and ask the Court to declare that election invalid.

Additional Affidavit Evidence

[22] The December 2023 election occurred more than a year after November 28, 2022, when the Applicants filed their responding record in accordance with the timetable established by Bale J. Moreover, this allegation relates to events that occurred well after the July 14, 2023 deadline for the completion of cross-examinations. Accordingly, there is currently nothing in the Applicant’s Application Record or Responding Record that makes any reference to the December 17, 2023 election.

[23] Nor is there anything in the Application Record to support the appointment of a “monitor”.

[24] Accordingly, in addition to a request to amend the Notice of Application, the Applicant has also requested leave to file four supplementary affidavits:

• Manoravy Thillainathan, dated July 14, 2024
• Vimalan Sibagurunathan, dated July 15, 2024
• Rathy Ponnampalam, dated July 15, 2024
• Sanmugasuntharam Thirunavukkarasu, dated May 19, 2024

which make allegations of financial mismanagement and the conduct of the December 17, 2023 election.

[25] While the Applicant did not request leave to amend the timetable set by Bale J. on March 29, 2023 in their Notice of Motion, in his oral submissions he did request such an amendment as ancillary to the relief claimed in his Notice of Motion.

[26] The supplementary affidavit of Manoravy Thillainathan is the most substantive. It includes evidence relating to activities that predate the filing of the Application Record on April 4, 2022. This affidavit addresses the following issues:

a. An allegation that the 2021 Board of Directors suspended three members of the Board contrary to the HTSC by-laws. These three members are Nalayini Brodie, Nirmala Kathiravelu (suspended on October 28, 2021) and Shan Thirunavukkarasu (suspended in October 2022). None of these Board members are parties to this Application.

b. Allegations relating to the HTSC’s management of financial affairs in May and June 2006.

c. Allegations of “false information” provided by Thambirajah Vignarajah, the 2021 President of HTSC, when he was interviewed on a “Facebook telecast” relating to the decision of the Board to permit electronic voting in the December 2020 election.

d. Alleged violations of policies and procedures with respect to spending by the Board when it selected a florist to provide floral services for the temple in 2020 and 2021.

e. Alleged violations of policies and procedures with respect to basement renovations commenced in October 2022.

f. Alleged violations of policies and procedures with respect to a $1 million budget approved by members on March 19, 2023.

g. Alleged violations of policies and procedures with respect to the installation of security cameras in 2019.

h. Allegations that a person named Thambirajah Vignarajah, who was president of the temple in 2021 and 2023, falsely represented himself to be a civil engineer and was appointed to install a new temple ceiling in 2017 and to replace the ceiling in 2023.

i. Allegations that Thambirajah Vignarajah opposed the installation of a traffic light near the temple in 2021.

j. Allegations that the board of directors improperly amended by-laws and introduced a new by-law at a special meeting on March 19, 2023.

k. Allegations that a person named Sanmugasuntharam Thirunavukkarasu was expelled by the Board of Directors from worshipping at the temple in December 2023 for voicing concerns with respect to the management of finances by the HTSC. Sanmugasuntharam Thirunavukkarasu is not a party to this Application, although he has filed an affidavit which is made an exhibit to Mr. Thillainathan’s affidavit.

[27] Mr. Thillainathan’s affidavit states that the affidavit is made in support of “an application to appoint an inspector and monitor”.

Positions of the Parties

[28] The Applicant contends that after the Application was commenced, he learned that the HTSC’s “lack of compliance with the HTSC’s by-laws expanded far beyond just financial mismanagement and failure to implement the 2020 resolutions and included numerous other violations”. He retained new counsel in April 2023, and concluded that the only way to ensure that the HTSC and its board members complied with the by-laws was to appoint a “monitor”, rather than just an “inspector” as he initially sought. This additional claim for relief requires additional evidence to support it.

[29] The Applicant argues that the financial mismanagement of the temple’s funds and the board members’ lack of compliance with the temple’s by-laws are both on-going issues. He argues that the issues relating to the 2023 election are intertwined with the issues relating to the 2021 election, and it would be most efficient for the two matters to be combined into one application.

[30] The Applicant argues that there is no prejudice to the Respondents in permitting the expansion of the Application and amending the timetable set by Bale J. to permit the Applicant to file a supplementary Application Record. No cross-examinations have yet occurred, no hearing date has been scheduled, and the Respondent will have the right to file responding affidavits.

[31] The Applicant argues that Rule 26.01, which permits amendments to pleadings at any stage, applies by analogy to a Notice of Application. Rule 26.01 provides:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[32] The Respondent opposes the amendment and the new affidavits. It argues that the original relief requested in the Notice of Application is now moot. While the Respondent cannot prevent the Applicant from bringing a new application to challenge the 2023 election and to appoint a monitor, it should be commenced as a new application, and not tacked on to the existing moot application. The Applicant should not be allowed to continuously restart the Application process in order to attempt to preserve claims that became moot because of his own delay.

[33] In addition, the Respondent argues that much of the proposed new affidavit evidence is inadmissible hearsay or should be struck as scandalous.

[34] The Respondent argues that the Applicant brought this Application as an urgent application more than three years ago but has failed to comply with timetables set by Court order. The Applicant should not be granted another indulgence to expand the Application. Much of the proposed new evidence relates to allegations that arose prior to the commencement of the Application in January 2022, and could have been included in the original Application Record served in April 2022. It is an abuse of process to permit the Applicant to disregard the timetables set by Bale J. and to file new affidavit evidence and seek to expand the issues in the Application in contravention of that timetable.

Parties to the Application

[35] As a preliminary matter, I note that there are 26 former officers and directors of the HTSC who were named as Respondents in the Notice of Application. None of these persons are currently officers and directors of the HTSC, and none of them were involved in the 2023 election.

[36] I asked the Applicant’s counsel whether the current directors and officers of the HTSC had to be added as Respondents if his intention was to challenge the 2023 election and the current practices of the Board of Directors. He advised that it was, in his view, an error to name the 26 directors and officers in the original Notice of Application (he was not counsel for the Applicant when the Application was commenced), and that he had instructions to discontinue the Application as against the 26 named directors/officers. He took the position that it was not necessary to name the current directors/board members to obtain the relief sought. Only the HTSC had to be named as the Respondent.

[37] Counsel for the HTSC agreed with this position. He took the position that the only necessary party is the HTSC.

[38] None of the 26 named former directors and officers of the HTSC appeared at this hearing or were represented by counsel.

[39] Accordingly, I will accept this concession by counsel for the Applicant, and order that the Application is discontinued as against the 26 named former directors and officers of the HTSC. Only the HTSC continues to be a Respondent in this Application.

Analysis

[40] I accept the Applicant’s position, that, as a general principle, a notice of application may be amended in the same manner as a statement of claim and that the principles under Rule 26.01 apply by analogy: 873091 Ontario Ltd. v. 9695443 Canada Inc., 2021 ONSC 6902, para 18.

[41] As such, the Applicant should be granted leave to amend the Notice of Application except in the limited circumstances set out by the Court of Appeal in Klassen v. Beausoleil, 2019 ONCA 407, para 25:

[Rule 26.01] is framed in mandatory terms: the court must allow the amendment, unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action…

[42] I am satisfied that any prejudice in this case could be compensated for in costs and another revised litigation timetable.

[43] The present case is more complicated, however, because in addition to the amendment to the Notice of Application, the Applicant also seeks to amend the court-ordered timetable and file additional affidavit evidence. Since the Applicant’s evidence was completed when it filed its Reply Record on November 28, 2022 (subject to cross-examinations on the affidavits filed) most of the proposed amendments to the Notice of Application are pointless unless the Applicant is also permitted to file additional affidavit evidence.

[44] The amendments to the Notice of Application and the additional affidavit evidence are a package deal in this case. At this stage of these proceedings, no amendments to the Notice of Application should be permitted unless there is admissible evidence to support the amendments.

[45] The filing of evidence on applications is governed by Rule 39.02(2), which establishes when a party to a motion or application may deliver affidavits for use on the motion or application. It provides:

(2) A 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 and 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.

[46] The Applicant argues that there have not been any cross-examinations (notwithstanding the July 14, 2023 deadline for completion of cross-examinations imposed by Bale J.), and so they should be able to file additional affidavits.

[47] Another limit on an Applicant’s right to file additional affidavits is the timetable ordered by the Court. This was explained by Perell J. in Johnson v. North American Palladium Ltd., 2018 ONSC 4496, paras 11–15. His discussion is helpful context to this issue in this case:

Although there is no specific rule of civil procedure that orders or organizes the presentation of the evidence for a motion or application, typically on a motion or application, the moving party or the applicant delivers his or her notice of motion or notice of application along with supporting affidavit material, and then the responding party or the respondent delivers his or her responding affidavit to oppose the motion or application. Sometimes, there is reply evidence from the moving party or applicant. When the exchange of affidavits is completed, then the motion or application may proceed to cross-examinations. The modern practice is for the court to set a timetable or schedule or the parties to agree to a timetable for the motion or application covering the exchange of affidavits, the cross-examinations, and the exchange of factums.

Although there is no specific rule of civil procedure that applies, with some modifications, the law against case-splitting regulates the delivery of the reply affidavit and the rule against case-splitting also regulates the argument at the hearing of the motion or the application. Where the parties or the court set a timetable for the exchange of affidavits for a motion or application, the reply evidence should generally be limited to proper reply; i.e., with evidence that complies with the rule against case splitting.

The rule against case-splitting that applies at hearings and trials restricts reply evidence and reply submissions to matters raised by the defendant or responding party and does not permit the plaintiff or applicant to deliver new evidence. The rationale is that the defendant or respondent is entitled to know and to respond to the case being made against him or her, and, therefore, the plaintiff or applicant should not split his or her case and take the opponent by surprise and without an opportunity to respond. It is intrinsically unfair for a plaintiff, applicant, or moving party to add new evidence or new argument after the defendant, respondent, or responding party has completed his or her evidence and argument. Reply evidence is admissible only when defendant, respondent, or responding party has raised a new matter that could not be reasonably anticipated by the plaintiff, applicant, or moving party or where the reply evidence is in response to an issue enlarged by the opponent in a manner that could not have been reasonably foreseen.

The standard for permissible reply evidence, however, is less strict for motion and application procedure than the standard applied at trial. When the reply evidence for a motion or application is introduced before the cross-examination and the hearing on the merits, a less rigorous standard applies. Once cross-examinations begin, the admission of reply evidence is governed by rule 39.02 (2) of the Rules of Civil Procedure, discussed below, and the standard for admitting reply evidence is higher, but still not as strict as the standard at trial.

On motions and applications, in appropriate circumstances, the court has a discretion to admit the improper reply evidence and to allow the opponent to respond with a sur-reply affidavit. Ultimately, it is a balancing exercise, with the goal of ensuring that each party has a fair opportunity to present its case and to respond to the case put forward by the other party. [Emphasis added.]

[48] Where the Court sets a timetable, the parties are expected to comply with it and failure to comply with a Court ordered timetable may be sanctioned (Rule 3.04(4)).

[49] In the present case, the Applicant originally scheduled the Application as an urgent application to be heard on February 14, 2022. Notwithstanding this early hearing date, the Applicant did not file an Application Record, and the case was adjourned.

[50] A timetable was set by Bale J. after the Applicant served his Application Record on April 4, 2022. The Responding Application Record was to be served on November 28, 2022, but the Applicant included improper reply evidence in his responding record, giving rise to a new timetable. The HTSC was given leave to deliver a further responding affidavit by April 24, 2023. There were to be no more affidavits after that date. The time for cross-examinations was extended to July 14, 2023, but the Applicant did not schedule any cross-examinations.

[51] I appreciate the Respondent’s frustration. The Respondent has complied with all of the Court’s deadlines, while the Applicant has cavalierly ignored the Court ordered timetable and sought to continuously supplement his evidence and expand his Application. This is a misuse of judicial resources and borders on an abuse of process.

Mootness

[52] The original Application sought an Order that the 2021 Annual General Meeting and election of the directors that took place on December 12, 2021 be declared invalid and an Order “that the 2021 Annual General Meeting and election of directors be reconstituted in compliance with the provision of the Corporations Act”.

[53] The HTSC argues that this portion of the original Application is now moot.

[54] HTSC board members are elected at the annual general meeting (AGM) and serve 3-year terms. At every AGM one third of the board member positions are up for election. Following the completion of their term, HTSC board members are not permitted to run for another board member position for 3 years.

[55] At the time when the Applicant commenced his Application, the 26 HTSC board member Respondents were at various stages of their 3-year terms. These 3-year terms have now all expired. As of the start of 2025, none of the 26 HTSC board member Respondents held a board member position at HTSC. None of the persons elected at the 2021 AGM remain on the board. Two have passed away. The HTSC board of directors who were elected at the 2021 AGM have all been replaced with new directors, who were elected at the December 2024 AGM.

[56] Since the commencement of this Application in January 2022, HTSC has held 3 AGMs, in December of 2022, 2023, and 2024. The Applicant has not challenged the validity of the 2022 and 2024 AGMs; the validity of the 2023 AGM is raised in the proposed amendment to the Notice of Application.

[57] A proceeding is moot where the “tangible and concrete dispute has disappeared”, that is, when there is no live controversy that requires resolution between the parties: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. The court may nevertheless exercise its discretion to hear a moot case. One factor to consider is whether the court’s decision will have a practical effect on the rights of the parties: Borowski, at p. 360.

[58] I agree that the challenge to the election of directors at the 2021 AGM is now moot. Since none of the 26 members of the HTSC board elected in the 2021 election remain on the board, there is no purpose to an Order declaring that election to be invalid. Nor could there be any purpose to an Order that the 2021 “election of directors be reconstituted in compliance with the provision of the Corporations Act”. Given the passage of time, there can be no purpose to holding another 2021 election. The Court’s decision on these issues will have no practical effect on the rights of the parties.

[59] Due to the Applicant’s delays, this issue has gone from urgent to moot, and now, three years later, is farther from a hearing date than it was when the Application was commenced.

[60] Another issue in the original Application is the Applicant’s request for an Order that the Respondent immediately implement certain resolutions passed at the 2020 Annual General Meeting of the HTSC. The 2020 AGM resolutions were quashed at the 2021 AGM by a vote of the majority of members. The Respondent argues that the Court has no authority to Order the new board of directors (currently the 2024 board of directors) to implement the 2020 resolutions. That is an issue that goes to the merits of that part of the Application. This issue does not, however, appear to be moot.

Appointment of an Inspector or Monitor

[61] The Original Application requests an Order appointing an “inspector” to investigate the affairs and management of the HTSC. The proposed amendment requests the appointment of “monitor of the affairs of the HSTC.”

[62] Both requested orders are problematic in their present form because they lack any details or particulars. This concern precludes the proposed amendment to add a “monitor” in its current form.

[63] The courts may be asked to appoint receivers, monitors or inspectors under a number of statutes: Business Corporations Act, R.S.O. 1990, c. B. 16, ss. 161–162; Canada Business Corporations Act, R.S.C., 1985, c. C-44, s. 229; Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, s. 174; Canada Not-for-profit Corporations Act, S.C. 2009, c. 23, s. 242; Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s. 243; Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101; Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, s. 11.7.

[64] In order to appoint a receiver, monitor or inspector, the Court requires certain information, in particular, the identity of the proposed receiver, monitor or inspector, and how they will be paid. The identity of the proposed receiver, monitor or inspector must be specified in the order sought. The Application to appoint a receiver, monitor or inspector is accompanied by an affidavit from the proposed receiver, monitor or inspector indicating their consent to act in that capacity. The decision to appoint a monitor may well turn on the identity of the proposed monitor. Without this information, the Court is being asked to make an incomplete and abstract order, and the parties will have to return to court to obtain (and probably argue about) an additional order to appoint a particular person in that capacity. That is not an efficient use of judicial resources. “Litigation is not to be conducted by instalment”: Shearer v. Oz, 2021 ONSC 7844, para 5.

[65] The proposed amendment to appoint a monitor does not include any of that required information.

[66] Neither did the original Notice of Application with respect to the Applicant’s request for the appointment of an inspector. There is nothing I can do about the original Notice of Application at this point, but I am not prepared to permit the Applicant to amend the Notice of Application to include another incomplete and abstract order at this late stage in the proceedings.

[67] When the Applicant is in a position to identify the person he wants to act as the monitor, he may renew this part of the motion.

Admissibility of New Affidavits

[68] The admissibility of affidavit evidence on an application is governed by Rule 39.01(5). It limits hearsay evidence in applications to “facts that are not contentious”. Rule 39.01(5) provides:

(5) An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.

[69] In addition, just as an amendment to the pleadings will not be permitted if the proposed pleading is scandalous, frivolous or vexatious, the Court should not permit the Applicant to file additional affidavit evidence if it falls into any of these categories: Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, para 27.

[70] In reviewing the supplementary affidavit of Manoravy Thillainathan, I will divide it into the same 5 headings as the affidavit.

a) 2021 Board of Directors’ Violations of HTSC By-Laws with Respect to the Suspension of Members (paras. 3–9)

[71] These paragraphs allege that the 2021 Board of Directors suspended three members of the Board contrary to the HTSC by-laws. These three members are Nalayini Brodie, Nirmala Kathiravelu (suspended on October 28, 2021) and Shan Thirunavukkarasu (suspended in October 2022).

[72] None of these board members are parties to this Application. Mr. Thillainathan does not have standing to challenge the suspension on behalf of these three members.

[73] None of these three Board members has sworn their own affidavit.

[74] Mr. Thillainathan’s allegations are based exclusively on hearsay evidence from the three named board members, and these paragraphs are therefore not admissible.

[75] At para. 8 of Mr. Thillainathan’s affidavit, he attaches a 2006 Report of V.B. Sharma, the Chartered Accountant for the Temple. Based on this Report, he alleges that $80,000 in donations went missing in 2006. There is no explanation as to why, if relevant, this 2006 Report was not made part of the original Application Record in April 2022.

[76] Mr. Thillainathan further alleges that a person named Iswarakumar Thuraisingham was responsible for these missing funds. Iswarakumar Thuraisingham is identified as a “current member” of the HTSC. Iswarakumar Thuraisingham is not a party to this Application. It is not clear to me why these nearly 20 year old allegations are made against a non-party to the Application. They appear to be included only for the purpose of maligning a non-party and are therefore scandalous and inadmissible.

b) Board of Directors Provided False Statements (paras. 10(a)–(e))

[77] Mr. Thillainathan alleges that Thambirajah Vignarajah, the 2021 President of HTSC, gave “false information” when he was interviewed on “Krishna Live Facebook telecast” in June 2021. These allegedly false statements related to the decision of the Board to permit electronic voting in the December 2020 election, statements about the validity of the 2020 AGM resolutions and voting procedures, and the reasons for a protest staged in 2020 by some of the members, including Mr. Vignarajah, against the 2020 temple leadership, and the reasons for another protest in June 2021.

[78] There is no explanation as to why these allegations were not set out in the Application Record filed on April 24, 2022.

[79] The Facebook telecast is not appended as an Exhibit to the affidavit, and Mr. Thillainathan does not indicate whether he has a copy or transcript of the telecast. In any event, these allegations are also irrelevant to the relief requested in the Notice of Application, and therefore scandalous. Whether the 2020 AGM resolutions are valid will depend on whether the 2020 Board of Directors followed the correct procedure when the resolutions were passed in 2020, not what Mr. Vignarajah is alleged to have said about the subject when he was interviewed in June 2021. The allegations relating to the reasons for the protests in 2020 and 2021 appear to be irrelevant to any of the relief claimed in the Notice of Application.

c) Violation of Policies and Procedures with Respect to Spending (paras. 11–33)

[80] Mr. Thillainathan makes numerous allegations relating to the alleged violations of policies and procedures with respect to spending by the Board and financial mismanagement, including allegations relating to:

a) The selection of a florist to provide floral services for the temple in 2020 and 2021.
b) Basement renovations commenced in October 2022.
c) A $1 million budget approved by members on March 19, 2023.
d) The installation of security cameras in 2019.
e) Thambirajah Vignarajah, who was president of the temple in 2021 and 2023, falsely representing himself to be a civil engineer and being appointed to install a new temple ceiling in 2017. Due to Mr. Vignarajah’s “lack of experience and use of poor-quality materials” the ceiling became rusty and had to be redone in 2023.
f) Thambirajah Vignarajah’s opposition to the installation of a traffic light near the temple in 2021.

[81] These allegations all relate to the Applicant’s proposed amendment to request the appointment of a monitor. Since I am not allowing the amendment to appoint a monitor, I will not grant leave to admit this evidence at this time. I make no comment as to its relevance or admissibility should the Applicant bring a proper amendment for the appointment of a monitor.

d) Board of Directors’ Improper Amendment of the By-Laws and Introduction of a New By-Law (paras. 34–36)

[82] Mr. Thillainathan alleges that the board of directors improperly amended by-laws and introduced a new by-law at a special meeting on March 19, 2023.

[83] He also alleges that in 2016 the board under the leadership of Thambirajah Vignarajah amended the by-laws with only 35 members present, contrary to the requirements set out in the by-law requirements.

[84] The allegation relating to the 2023 by-law is unrelated to the original Application, and appears to be related only to the request to appoint a monitor. Since I am not allowing the amendment to appoint a monitor, I will not grant leave to admit this evidence at this time.

[85] The allegation relating to the 2016 by-law is unrelated to any relief requested in the Notice of Application or the proposed amendments. Again, there is no explanation as to why it was not referenced in the April 2022 Application Record.

e) Retaliation for Voicing Concern

[86] Mr. Thillainathan alleges that a person named Sanmugasuntharam Thirunavukkarasu was expelled by the Board of Directors from worshipping at the temple in December 2023 for voicing concerns with respect to the management of finances by the HTSC.

[87] Sanmugasuntharam Thirunavukkarasu is not a party to this Application. Mr. Thillainathan does not have standing to challenge the expulsion on behalf of Mr. Thirunavukkarasu. Neither the Application nor the proposed amendments request relief with respect to this expulsion.

[88] For some reason that I do not understand, Mr. Sanmugasuntharam Thirunavukkarasu’s affidavit is attached as an exhibit to Mr. Thillainathan’s affidavit.

[89] The paragraphs in Mr. Thillainathan’s affidavit are inadmissible hearsay.

[90] Mr. Thirunavukkarasu is not a party to this Application, and the circumstances relating to his expulsion from the temple are not relevant to the relief requested by the Applicant.

Additional Affidavits

[91] The Applicant also seeks to admit two additional brief affidavits.

[92] The first is by Vimalan Sibagurunathan, another member of the HTSC. His brief affidavit refers to the June 19, 2021 protest that he engaged in with about 60 other HTSC members, and complains that members of the 2021 Board of Directors blocked his emails. Given my conclusion that the issues relating to the election of the 2021 Board of Directors are now moot, this affidavit does not pertain to any live issue in the Application and will not be admitted.

[93] The second proposed affidavit is by Rathy Ponnampalam, also a member of the HTSC. His affidavit complains about the HTSC basement renovations in 2021, which he states were not approved by the board, and cost $50,000 despite an initial estimate of $25,000. This affidavit is sworn to support the appointment of a monitor. Since I am not allowing the amendment to appoint a monitor, I will not grant leave to admit this affidavit at this time.

Conclusion

[94] This Application has become something of a mess. Rather than complying with the original timetable and having the Application heard on its merits, the Applicant has delayed the proceedings and now seeks to expand the issues and the evidence to deal with matters that were not in existence when the Application was commenced.

[95] Based on the foregoing, I make the following Orders:

a) The Application is discontinued as against the 26 named former directors and officers of the HTSC. Only the HTSC continues to be a Respondent in this Application.

b) The relief claimed at paras. 1(b) and 1(c) of the January 20, 2022 Notice of Application is dismissed as moot.

c) The Applicant’s request for an Order granting leave to amend the Notice of Application is granted with respect to paras. 1(b), 1(c), 1(d), 9, 12, 14, 25 and 26 of the Draft Amended Notice of Application.

d) The Applicant’s request for an Order granting leave to amend the Notice of Application to request the appointment of a monitor to monitor the affairs of the HTSC (paras. 1(e) and 15–18 of the Draft Amended Notice of Application) is dismissed, without prejudice to the Applicant’s right to seek the amendment with the proper details and supporting affidavits.

e) The Applicant’s request for an Order granting leave to amend the Notice of Application to request an order declaring the election held on December 17, 2023 invalid (paras. 1(f) and 19–24 of the Draft Amended Notice of Application), is dismissed, without prejudice to the Applicant’s right to commence a separate application to seek this relief.

f) The Applicant’s request for an Order granting leave to file the affidavits of Manoravy Thillainathan, Vimalan Sibagurunathan, Rathy Ponnampalam, and Sanmugasuntharam Thirunavukkarasu, is dismissed, without prejudice to the Applicant’s right to request the admission of these affidavits in conjunction with a motion under para. (d) or an application under para. (e) above.

Costs

[96] If the parties are not able to agree on costs, the Respondent may serve and file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this Decision, and the Applicant may serve and file responding submissions on the same terms within a further 15 days.

Justice R.E. Charney
Released: March 20, 2025