



COURT OF APPEAL FOR ONTARIO

CITATION: Chandrasegaram v. Canadian Tamil
    Medical Association, 2021 ONCA 526

DATE:  20210720

DOCKET: C69290

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Kanagasabapathy
    Chandrasegaram

Applicant (Appellant)

and

Canadian Tamil Medical
    Association and Thanu Ruban

Respondents (Respondents)

Mark Donald, for the appellant

John Aruldason, for the respondents

Heard: June 30, 2021 by video conference

On
    appeal from the order of Justice Jasmine T. Akbarali of the Superior Court of
    Justice, dated March 16, 2021, with reasons reported at 2021 ONSC 1969.

REASONS FOR DECISION

[1]

The appellant, Dr. Kanagasabapathy Chandrasegaram,
    appeals the decision of the application judge, which upheld the election of the
    directors and officers of the respondent, the Canadian Tamil Medical
    Association (Association), at its February 8, 2020 annual general meeting. At
    that meeting, the respondent, Dr. Thanu Ruban, was elected Chair of the
    Association.

[2]

At the hearing, we dismissed the appeal, with
    reasons to follow. These are those reasons.

[3]

The appellants submissions are largely a
    repetition of those he made to the application judge. Uniting his discrete
    submissions is the common complaint that the application judge failed to
    interpret the provisions of Article 6 of the Associations Bylaws as a whole,
    resulting in an erroneous interpretation of the opening section of that
    Article. We see no such error. The Bylaws are poorly drafted and contain
    internal inconsistencies. The application judge endeavoured to interpret
    specific provisions of Article 6 in light of the Bylaws as whole, in the
    context of the Associations historic governance practices. As we shall discuss
    below, her resulting interpretations of specific provisions of Article 6 were
    reasonable and free from palpable and overriding error.

[4]

As his first particular submission, the
    appellant submits that the application judge erred in holding that as the
    incumbent Vice-Chair of the Association he was not automatically entitled to
    become the next Chair of the organization. The application judge wrote, at
    paras. 21, 23, and 24 of her reasons:

On Dr. Chandrasegarams theory, upon his
    election as Vice Chairman, he had been elected to a six-year term and did not
    require re-election each year. This is inconsistent with bylaw 6.5i) which
    provides that all officers shall be elected annually at the annual general
    meeting. The minutes of the annual general meeting for 2019 and 2018 disclose
    that all board members, including all officers, were elected to their positions
    at the annual general meeting.



In my view, the failure to automatically
    elevate Dr. Chandrasegaram to Chairman is not an irregularity. The bylaws
    are drafted assuming that, in most circumstances, the Vice Chairman will become
    the Chairman. However, it is not reasonable to interpret the bylaws to provide
    for a six-year term to commence on the election of someone to the position of
    Vice Chairman in view of the very limited circumstances under which a board
    member can be removed from the board. On Dr. Chandrasegarams
    interpretation, as long as the Vice Chairman/Chairman was solvent, and
    undisciplined by their professional body, the CTMA would be stuck for six years
    without recourse with someone whose sole contribution to the organization was
    to attend every third directors meeting.

In any event, the bylaw providing for
    re-election of all officers is clear  all officers, including the Chairman
    and Vice Chairman, are elected annually. In this respect, CTMA has acted in
    accordance with the bylaws, as the minutes document the annual re-election of
    officers.

Those findings by the application
    judge were firmly anchored in the evidence and a holistic interpretation of the
    Bylaws. We see no reversible error in them.

[5]

As his second submission, the appellant argues
    that the application judge erred by failing to find that Dr. Rubans candidacy
    was irregular because she had not filed a nomination form at least 28 days
    prior to the AGM, which the appellant contends is a requirement of section 6.6
    of the Bylaws.

[6]

Section 6.6 requires the Board of Directors to
    strike a Nomination Committee, chaired by the Chair Person Elect, that shall
    call and receive nominations for various posts of the Board for the coming
    year, and that committee shall send nomination forms to all members at
    least 28 days before the Annual General Meeting. According to the incumbent
    Chair, Dr. Bahe Rajendran, as a matter of historical practice the Association
    did not follow that process, did not strike a nominations committee, and
    usually dealt with nominations on the day of an AGM. In the present case, the
    appellant, as Chair Person Elect, did not strike a nomination committee at
    least 28 days before the 2020 AGM.

[7]

Before the application judge, the appellant argued
    that section 6.6 required a candidate for an office to file a completed
    nomination form at least 28 days before the AGM.

[8]

The application judge described the events that
    led up to the contested nominations for Chair at the AGM in paras. 25-31 of her
    reasons. The key events in the lead up to the 2020 AGM were: (i) the appellant
    assumed that as Vice-Chair he would automatically become the new Chair; (ii)
    Dr. Ruban advised the incumbent Chair, Dr. Rajendran, around mid-January 2020
    that she intended to run for Chair; (iii) the Board did not start the process
    of establishing a Nomination Committee until the week of the AGM; and (iv)
    during that week, the incumbent Chair disclosed that two candidates were
    seeking the office of Chair.

[9]

We see no palpable and overriding error of fact
    in the application judges recitation of the events. In the unusual
    circumstances the application judge faced, we regard as reasonable her conclusion,
    at para. 30, that any inconsistency between section 6.6 and the manner in which
    Dr. Ruban was nominated for the Chairman position did not render the election
    irregular.

[10]

We would add two observations on this issue.
    First, the appellants position on this issue starts from the proposition that
    as Vice-Chair he was automatically entitled to become Chair. The application
    judge held to the contrary. We see no reversible error in that finding.

[11]

Second, notwithstanding that s. 6.6 contemplated
    the Chair Person Elect would chair the Nomination Committee, it would have been
    inappropriate for the appellant to sit on the committee that would propose the
    nominee to the office of Chair which both he and Dr. Ruban were contesting. As
    a matter of proper governance practices, it would not be appropriate for a
    candidate to a contested office to head up a nominating committee that proposed
    the candidate for that very office.

[12]

As his third submission, the appellant contends
    that the election was irregular because eight new members were admitted to the
    Association at the AGM without prior vetting or approval by the incumbent
    Board. The application judge held that the Associations practice was to admit
    new members at the AGM without prior vetting by the Board. That holding finds
    support in the evidence. Further, the application judge canvassed the
    conflicting evidence about how many new members were brought to the AGM by each
    of Dr. Ruban and the appellant. The application judge dealt with that issue by
    stating, at paras. 36-38:

The evidence is that Dr. Ruben carried the
    vote by two to one margin. The concerns Dr. Chandrasegaram raises are
    insufficient to establish that the irregularities led to a result which does
    not, or even may not, reflect the wishes of the majority of the organization.
    This conclusion is supported by the fact that not a single other member of CTMA
    has filed an affidavit in support of Dr. Chandrasegarams application.

Moreover, it is not necessary to consider Dr. Chandrasegarams
    argument that granting membership to eight new members at the annual general
    meeting was a violation of section 124(1) of the
Corporations Act
,
    R.S.O. 1990, c. C.38, because, even if it were, the number of new members
    admitted were too few to have impacted the results of the election.

I thus conclude that, to the extent that there
    were irregularities in the election at the February 8, 2020 annual general
    meeting of CTMA, the irregularities did not go to the heart of the electoral
    process and did not lead to a result which does not reflect the wishes of the
    majority of the organization. Dr. Chandrasegarams application is dismissed.

[13]

We see no reversible error in that analysis.

[14]

For these reasons, we dismissed the appeal.

[15]

The appellant shall pay the respondents their
    costs of the appeal and the motion before Thorburn J.A. fixed in a total amount
    of $15,000, inclusive of disbursements and applicable taxes.

David
    Brown J.A.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.


