



COURT OF APPEAL FOR ONTARIO

CITATION:
Sikh
    Cultural Society of Metropolitan Windsor v. Kooner, 2012
ONCA 401

DATE:  20120613

DOCKET: C54645

Rosenberg, MacPherson and Cronk JJ.A.

BETWEEN

Sikh Cultural Society of Metropolitan Windsor,
    Mohinder Singh Kandola, Gurbax Singh Wahid, Harjinder Singh Kandola, Kulbir
    Kaur Bhola, Balwinder Kaur Mann, Gian Singh Chandan and Pritam Kaur Chandan

Applicants (Respondents on Appeal)

and

Sukhdev
    Singh Kooner, Avtar Singh Kooner, Gurfateh Singh Kooner, Manjinder Singh
    Kooner, Inderpal Singh Dhanoa, Gurjit Singh Gill, Ravinder Singh (Mavi),
    Amarjit Singh Nijjar, Jatinder Singh Rai, Harpreet Singh Labana, Gurmeet Singh,
    Satnam Singh Matharu, Lehmber Singh Pahl, Surinder Kaur Matharu, Manjinder Kaur
    Kooner, Rajinder Kaur Kooner, Kamaljit Singh Sidhu, Sukhpreet Kaur Sidhu,
    Gurbaksh Singh Sidhu, Sattya Kaur Bath, Baldev Singh Brar, Rajveer Kaur Nijjar,
    Surjit Singh Riyat, Daljit Singh Sidhu, Govinder Singh Sarao
and

Giacomo Ramieri

Respondents (
Appellants
)

Matthew Wilton and Gregory Graham, for the appellants

Edwin G. Upenieks and Kiran Gill, for the respondents

Heard: June 6, 2012

On appeal from the judgment of Justice Mary-Jo Nolan of
    the Superior Court of Justice, dated November 1, 2011.

ENDORSEMENT

[1]

The appellants raise only two issues on this appeal from the judgment of
    Nolan J. First, the appellants submit that the application judge erred in her
    interpretation of 
bona fide
member. Second, they submit that she
    erred in upholding the August 2010 freezing order. It is unnecessary to set out
    the factual background. The application judge has fully set out the background
    of this unfortunate dispute, including the history of the litigation between
    the two factions.  Her reasons can be found at 2011 ONSC 5513. For the
    following reasons the appeal is dismissed.

Bona Fide
Member

[2]

This issue turns on the interpretation of Articles II and III of the
    Constitution of the Sikh Cultural Society of Metropolitan Windsor and, in
    particular, on Article III(1), which sets out the voting privileges of members:

Right to vote at all meetings/elections of the Society provided
    he/she is a
bona fide
member of the Society. A
bona fide
[member] is a member who has paid his/her annual membership dues for the last
    two years.

[3]

In accepting that the list of 301
bona fide
voting members (the 301
    list) was valid, the application judge implicitly accepted that a member could
    be a
bona fide
member if he or she had paid dues for the last two calendar
    years. The appellants submit that the application judge erred in her
    interpretation and that the phrase paid his/her annual membership dues for the
    last two years means that the member must have been a member for the past 24
    months. They say that a contextual approach leads to this interpretation.  That
    context includes the fact that this is a religious organization and it is only
    by being in the organization for two years that the member demonstrates a sufficient
    commitment to the values and objectives of the organization to be eligible to
    vote and be on the Executive Committee. In effect, the appellants argue for a
    type of probationary membership.

[4]

We do not accept this submission. In our view, neither the plain wording
    of the Constitution nor the context requires such an interpretation. To the
    contrary, the objectives set out in the Constitution are entirely consistent
    with the principle that the Society welcomed new members and did not intend to
    discriminate between new members and members who had been members for longer
    times on the basis suggested by the appellants. The only commitment set out in
    the Constitution, to distinguish
bona fide
members from other members,
    is the financial commitment of having paid annual membership dues for the last
    two years.

The Freezing Order

[5]

A short review of the chronology is necessary to understand the purpose
    of the freezing order and why we agree with the trial judges disposition of
    this issue. In December 2009, seven members of the Society were acclaimed as
    the new Executive Committee (the NEC). Notwithstanding that the election had
    been uncontested, the former Executive Committee (the FEC) failed to hand
    over the books, records, keys, and other official documents of the Society to
    the NEC. In December, other disputes began to emerge. In particular, the FEC
    purported to expel two of the recently elected members of the NEC. The
    resolution to expel the two members was subsequently quashed by Rogin J. on
    June 11, 2010. In the meantime in January 2010, the NEC began an application
    seeking, among other things, an order requiring the FEC to immediately transfer
    control of the Society to the NEC. By the end of February 2010, most of the
    records and other documents had been turned over to the NEC.

[6]

However, beginning in January persons believed to be supporters of the
    appellants disrupted services and threatened members of the NEC. One of the
    members of the NEC was ambushed by assailants and bullets were fired into the
    living room of another NEC member. As a result of these incidents, the NEC
    installed surveillance cameras in various areas of the Societys premises.

[7]

The appellants then took steps to organize a non-confidence motion.
    There were irregularities in the process for this non-confidence motion,
    centring in part on the membership list. In particular, rather than using the
    301 list that had been approved by the NEC, the appellants used their own
    membership list, referred to in the proceedings as the 248 list. The
    non-confidence motion was held August 21, 2010 and succeeded.  At this same
    meeting, a new Executive Committee was purportedly elected.  The members of
    this 2010 new Executive Committee and their supporters entered the Gurdwara on
    August 22 and purported to take control of the Society.  They broke locks on
    the Societys office and dismantled the security system.

[8]

After learning of the takeover, the NEC passed a resolution on August
    22, 2010 freezing memberships in the Society. This resolution forms the basis
    for the appellants other ground of appeal.  The operative part reads as
    follows:

Executive Committee has decided to freeze the membership of
    Sikh Cultural Society of Metropolitan Windsor with effect from August 21, 2010
    until further notice and/or until the matter of forcible seizure,
    non-confidence motion and other related issues, is finally decided in Court as
    per constitution of SCSMW.  All the congregation will be informed as soon as
    possible that after August 21, 2010 until further notice, no new membership
    applications and/or membership fee/dues will be accepted and donations paid
    will not be counted towards membership fees/dues.

[9]

Following the takeover, the respondents brought a second application. 
    On August 31, 2010, Quinn J. declared that the non-confidence motion was void
    and of no effect. He also granted an interim injunction that restrained the appellants
    from going within 1,000 metres of the Society building and ordered them to give
    to the respondents immediate and unfettered access to and possession of the
    premises, including all business and financial records, locks, keys, access
    codes, cameras, wiring, DVRs, electronic records relating to the security cameras,
    all other electronic records belonging to the Society, collection boxes,
    ballots and voting records. The balance of this second application was
    adjourned to October 15, 2010, to allow the respondents to file responding
    material.

[10]

On
    October 15, 2010, Thomas J. ordered that the injunction continue with some
    amendments that permitted the appellants to attend the Gurdwara on Sundays to
    attend services. On December 6, 2010, Thomas J. continued the injunction
    essentially on the same terms and adjourned the hearing of the application to
    March 2011. Nolan J. heard the application for several days in March and June
    2011 and then reserved her decision. While the decision was under reserve, the
    application judge requested further written submissions. All this occurred
    against the backdrop that the Constitution required a further election in
    December 2011. The application judge delivered her reasons for judgment on
    October 31, 2011.

[11]

The
    appellants have never moved to set aside the freezing order.  They nevertheless
    argue that the validity of that order was before the application judge. That
    appears to be the case because the application judge dealt with the freezing
    order and upheld it. She wrote as follows:

The issue of membership has also been complicated by the
    resolution of the NEC on August 22, 2010 to freeze memberships and to not
    permit persons making donations to attribute those funds to their membership
    obligations. I find that this resolution was a validly passed resolution in
    accordance with the Constitution and the
Corporations Act
. As well,
    there is no application before the court which seeks to set aside that
    resolution on the grounds that it is invalid or
ultra vires
the powers
    of the Executive Committee. Even if there was such an application, given the
    turmoil at the Gurdwara between various factions, there were reasonable grounds
    on which a responsible Executive Committee could make such a decision.

[12]

In
    argument before us, the appellants did not take the position that the NEC did
    not have the power to make the freezing order.  Rather, they submit that once
    Quinn J. made his order on August 31, 2010, there was no further need for the freezing
    order and that its effect was anti-democratic because it froze out any new
    members from taking part in the 2011 election and could interfere with the
    voting in the 2013 election. Further, any other matters, such as a new
    non-confidence motion, would be based on the frozen membership.

[13]

We
    agree with the application judge.  The NEC had the power to make the freezing
    order and it was justified at the time it was made. As indicated, the
    appellants have never moved to set aside the order. By the time the application
    judge came to deal with the many issues involved in the application, the 2011
    election was on the horizon. It was eminently sensible to leave matters as they
    were. The freezing order, and the injunction, had restored calm to the Society.
    There is no basis for interfering with the application judges decision.

[14]

That
    said, unless the appellants now seek leave to appeal from this courts
    disposition of this appeal, it seems to us that by its own terms the freezing
    order is now spent.  The matter of forcible seizure, non-confidence motion and
    other related issues referred to in the freezing order has now been dealt with
    by the application judge and by this court. In view of our decision upholding
    the application judges decision as to the interpretation of
bona fide
members, there remains ample time for new members to now become
bona fide
members before the December 2013 election.

[15]

Accordingly,
    the appeal is dismissed with costs fixed at the agreed sum of $35,000,
    inclusive of disbursements and all applicable taxes.

Signed:        M. Rosenberg J.A.

J. C. MacPherson J.A.

E. A. Cronk J.A.

Released: MR JUNE 13, 2012


