



COURT OF APPEAL FOR ONTARIO

CITATION: Watto v. Immigration Consultants of Canada
    Regulatory Council, 2018 ONCA 376

DATE: 20180418

DOCKET: C64622

MacFarland, LaForme and Epstein JJ.A.

BETWEEN

In the Matter of the an Application Under Section
    253 of the
Canada Not-For-Profit Corporation Act
,
SC 2009, C.
    23

And in the Matter of Rules 14.05(2) and 14.05(3)
    of the
Rules of Civil Procedure

And in the Matter of the Eligibility of Muhammad
    Amir-Afzal Watto to be Nominated for Election as a Director of the Immigrant
    Consultants of Canada Regulatory Council

Muhammad Amir-Afzal Watto

Applicant (Appellant)

and

Immigration Consultants of Canada Regulatory
    Council

Respondent (Respondent)

and

Attorney General of
    Ontario

Intervenor

William J. Macintosh, for the appellant

Natalie M. Leon, for the respondent

Heard and released orally: April 12, 2018

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 30, 2017, with reasons reported at
    2017 ONSC 6440.

REASONS FOR DECISION

[1]

The appellant is a member of the respondent not-for-profit corporation. In
    2013, the appellant unsuccessfully campaigned to be elected to the Board of Directors
    of the respondent. Statements the appellant made during his campaign have
    spawned a number of legal proceedings between the appellant and respondent. Effective
    May 22, 2014 the respondent amended bylaw 2016-1 (the Bylaw) to provide that
    no member involved in litigation with the Board would be eligible for
    nomination, election or appointment to the Board.

[2]

The appellant has challenged the Bylaw in a number of ways, the most
    recent being this application under s. 253 of the
Canada Not-For-Profit
    Corporations Act
,
S.C. 2009 C. 23, for a declaration that the Bylaw
    is oppressive, unfairly prejudicial, and unfairly disregards his interests as a
    member of the respondent.

[3]

On October 24, 2017, the application judge considered submissions from
    counsel, including for the Attorney General of Ontario, on the applicability of
    the
Limitations Act, 2002
,
S.O. 2002, C. 24 to the appellants
    application. He proposed to bifurcate the proceeding and adjourn the hearing to
    November 2, 2017 to hear argument on the merits, if necessary.

[4]

On October 30, 2017, the application judge delivered detailed reasons
    dismissing the application. He held the
Limitations Act
applied and
    went on to find that the application was brought out of time.

[5]

On appeal, the appellant argues the application judge erred in concluding
    that he did not have the power to postpone the upcoming election for the
    respondents Board of Directors. The appellant claims this order would have
    given him time to adduce further evidence on the application. The appellant has
    not filed transcripts of the proceeding and instead relies on an affidavit he
    swore on January 18, 2018. The affidavit is not evidence that the application
    judge refused to make such an order. Moreover, the application judge notes in
    his reasons that the appellant was content to proceed with his argument on the
    record before the court.

[6]

We see no error or unfairness in the application judges decision to
    proceed with the application and determine the limitations issue on the basis
    of the record before him.

[7]

The appellant also requests permission to argue, for the first time
    before this court, that the Bylaw had retrospective effect. This argument goes
    to the merits of the appellants claim in the application. Our determination of
    the first issue  that the application was properly statute-barred  renders
    any argument on the merits irrelevant.

[8]

We have determined that we are not going to permit this new issue raised
    this morning to be argued before the court. It is not, in our view, in the
    interest of justice to do so. And so the appeal will proceed simply on the
    issues already raised in the materials and of which counsel for the respondent
    has had notice.

[9]

The appeal is therefore dismissed. Costs are awarded to the respondent
    on a partial indemnity basis fixed in the amount of $9,636.45 inclusive of
    disbursements and HST.

J. MacFarland J.A.

H.S. LaForme J.A.

Gloria Epstein J.A.


