Lee v. Yeung, 2012 ABQB 40

Court of Queen ’ s Bench of Alberta Citation: Lee v. Yeung, 2012 ABQB 40 Date: 20120117 Docket: 1103 10936 Registry: Edmonton Between: Michael Sai Cheung Lee, David Lee, Guo Chao Sun, James Fung, Phan Tram, Annie Pan, Chuck Kwan and Andy Wong Applicants - and - Florence Yeung , Andrew Wang, Hubert Hsu, John Chu, Chen Yuan Liu, Yang Gao, John Stinson, Edmonton Poon, Wah Tso, Vinh Tran, Lin Wah Chu and Bob Ning Lee Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I Introduction

[ 1 ] The Applicants apply for judicial review and seek an order setting aside the purported election of the executive board of directors of the Photographic Arts Society of Alberta held on November 21, 2010, together with other ancillary relief. The Respondents say that this matter is not justiciable and, in any event, the application is brought more than six months after the election was held and is therefore barred by the limitation provisions in the Alberta Rules of Court .

II Background Facts A The Parties [ 2 ] The Photographic Arts Society of Alberta ( “ PASA ” ) is a society incorporated pursuant to the Societies Act , RSA 2000, c F- 14 . [ 3 ] The Applicants include six of the nine elected members of the Executive Board of Directors of PASA for the period from January 2009 to December 2010. [ 4 ] The Respondents include three of the nine elected members of the Executive Board for the period from January 2009 to December 2010 as well as six other persons who were purportedly elected as board members on November 21, 2010.

B Chronology of Events [ 5 ] At a board meeting of PASA on July 18, 2010, the president of PASA, Florence Yeung, proposed the appointment of a three person election committee in preparation for an upcoming election of a new board. The three persons proposed by Yeung were Hans Choy, Dick Cho and Hairuo Zhang ( “ the Election Committee ” ).

The other members of the Board assented to the appointments as proposed. [ 6 ] The election was scheduled for November 21, 2010 with the deadline for nominations set for October 17, 2010. [ 7 ] Between November 2, 2010 and November 5, 2010, the Respondent Yeung published an open letter in three Edmonton Chinese community newspapers ( The Edmonton Chinese News , The Canadian Chinese Times and The Chinese Journal ) recommending that the scheduled election of November 21, 2010 be cancelled.

The following letter was published in each of the newspapers in both Chinese and English: AN OPEN LETTER TO THE MEMBERS Nov. 2, 2010 Dear Members of The Photographic Arts Society of Alberta: The election for the 2011 to 2012 Executive Board was scheduled for Nov. 21, 2010. Upon review of the entire process by our legal advisor, Mr. David Tam, several legal and procedural errors in contravention with the constitution of our Society have come to our attention. It is recommended that the above said election be cancelled and another election started anew with rectification of all by-law infractions.

A Special Executive Meeting will be called and a new election date will be determined. All members will then be notified of the

decision. Sorry for any inconvenience this may have caused and thank you for your continuing support of the Society! Yours truly, Florence Yeung President The Photographic Arts Society of Alberta [ 8 ] On November 8, 2010, the Election Committee circulated revised ballots for the scheduled election.

The Respondents, without the knowledge or consent of the Applicants, distributed different unauthorized election ballots for the same date, time and venue as the scheduled election. [ 9 ] The Respondent Yeung, as president of PASA and chair of the Executive Board, sought a legal opinion with respect to the validity of the elections scheduled for November 21, 2010. She received a legal opinion dated November 10, 2010 from a different lawyer than the one referred to in the open letter to the members.

In the e-mail cover letter attaching the legal opinion, the second lawyer summarized his conclusions by stating: Attached is my letter explaining my opinion that the election being held by the Society would be found by a Court to be illegal and invalid if any one or more Members of the Society challenged the election, which it is their legal right to do. As discussed, the letter also sets out a simple solution which can be enacted by the Executive Board so as to avoid any risk of the Society being brought into an expensive court challenge.

That simple solution is for the Executive Board to meet and postpone the election for no more than 2 months. ... Please forward this letter to all of the other members of Executive Board so that they can read and consider the situation. I understand that you will then be calling a Special Executive Meeting to discuss the invalidity of the election process and the risk of the Society getting involved in an expensive and unnecessary defence of an illegal election; and, to consider the simple and inexpensive solution proposed.

A solution that protects the democratic rights of all of the Society ’ s members. ... [ 10 ] On November 21, 2010, the date of the scheduled election, a special meeting of the Executive Board was held at PASA House. At that time, Yeung advised that 62 new members had joined PASA after the October 17, 2010 deadline for nominations. The other members of the Board were not informed of the new members before the scheduled election date. Yeung did not submit the names of the new members to the Membership Director of PASA as required.

The new members included 36 student/associate members who, under the current PASA Bylaws, have non-voting rights. [ 11 ] The special meeting of the Executive Board held on November 21, 2010 was attended by all members of the Board. The following decisions were made by the Board:

a) a new five member election committee was selected;

b) the scheduled election was rescheduled for December 5, 2010;

c) a list of 23 nominees for election would be validated by the Board. [ 12 ] The only outstanding issue at the special meeting was the verification of the membership of the 62 new members. [ 13 ] Following the special meeting, members of the Executive Board and some of the other members of PASA departed. However, the Respondents proceeded to carry out an election, contrary to the decision to reschedule the election for December 5, using a ballot list which included members who were not in good standing. [ 14 ] The Respondents changed the access to PASA House immediately after the purported election.

Sometime prior to December 5, 2010, the date set for the rescheduled election, two signs were put up at PASA House indicating that the House was closed until December 19, 2010. [ 15 ] The rescheduled election proceeded on December 5, 2010 under the supervision of the new five member election committee. [ 16 ] On December 9 and 10, 2010, Yeung placed a full page announcement in three Edmonton Chinese community newspapers declaring herself and the other Respondents, all of whom were elected on November 21, as the new board of PASA. [ 17 ] Pursuant to an arbitration clause contained in the 1987 Bylaws of PASA filed on March 31, 1987 with Alberta Corporate Registry, a proposal was made on January 31, 2011 for the parties to resolve their dispute by arbitration.

On March 3, 2011, the parties agreed to meet with their respective counsel to discuss a resolution of the issues and the possible appointment of an arbitrator pursuant to the dispute resolution clause in the 1987 Bylaws. [ 18 ] Unknown to the Applicants at the time, the 1987 Bylaws had been rescinded by special resolution of the members of PASA on January 9, 1993 and were replaced by new bylaws ( “ the 1993 Bylaws ” ). For reasons unknown, the 1993 Bylaws had never been filed with Corporate Registry. On March 15, 2011, the Respondent Yeung caused the 1993 Bylaws to be filed with Corporate Registry.

The 1993 Bylaws do not contain an arbitration clause. [ 19 ] On March 17, 2011, a meeting was held with counsel for the Applicants, counsel for the Respondents, a representative of the Applicants and a representative of the Respondents.

The parties attempted to reach an arrangement by which a new election would be scheduled and other ancillary matters resolved such that the new election could proceed. [ 20 ] On May 5, 2011, counsel for the Respondents ceased to act on their behalf and advised counsel for the Applicants that the Respondent Yeung refused to participate in an arbitration. [ 21 ] The Applicants filed an originating application on July 8, 2011 seeking review by the Court, and a number of remedies, including: ... 4.

An Order setting aside the election purportedly held on or about November 21, 2010 which election purportedly elected the Respondents as members of the current Executive Board of Directors of the PASA. 5. A declaration that any action in respect of the PASA by the Respondents, on their own behalf or on behalf of the PASA, with effect from November 21, 2010, is null and void and of no force and effect... ...

7. A permanent injunction prohibiting the Respondents from representing themselves individually as the members of the Board of Executives or, collectively, as the Board of Executives validly elected on or about November 21, 2010. ... 9. An Order directing that an election of the PASA Board of Executives be held as soon as is reasonably possible and, in any event, no later than two months after a decision on this application has been handed down... III Issues [ 22 ] The following issues require determination by the Court: A Is the application barred by Rule 3.15(2)? B If not, is the matter justiciable?

C If so, which bylaws and voting rights of PASA apply, and who were PASA members? D Was the November 21, 2010 election valid? IV Discussion A Is the application barred by Rule 3.15(2)? [ 23 ] The Applicants seek remedies with respect to the actions of the Respondents in relation to the election held on November 21, 2010. [ 24 ] As mentioned above, the Applicants filed an originating application on July 8, 2011 seeking review by the Court.

The Respondents argue that the Applicants failed to file their application for judicial review within the six months prescribed by the Alberta Rules of Court . [ 25 ] The Rules of Court provide: 3.2(1) An action may be started only by filing in the appropriate judicial centre determined under rule 3.3 (

a) a statement of claim by a plaintiff against a defendant, (

b) an originating application by an originating applicant against a respondent...

(2) A statement of claim must be used to start an action unless (

a) there is no substantial factual dispute, (

b) there is no person to serve as defendant, (

c) a decision, act or omission of a person or body is to be the subject of judicial review... in which case an originating application may be used to start the action. ... 3.15

(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction.

(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 [allowing the Court to extend or shorten a time period] does not apply to this time period. ... Additional remedies on judicial review 3.24(1) If an originating applicant is entitled to a declaration that a decision or act of a person or body is unauthorized or invalid, the Court may, instead of making a declaration, set aside the decision or act.

(2) The Court may (

a) direct a person or body to reconsider the whole or any part of a matter, (

b) direct a person or body to reconsider the whole or any part of a decision if the Court has set aside the decision under subrule (1), and (

c) give any other directions it considers necessary. [ 26 ] Given the combined effect of rule 13.5 and rule 3.15(2), this Court has no jurisdiction to extend or shorten the six month time period provided under the Rules for the filing and serving of an originating application for judicial review.

[27] The application filed by the Applicants is for “judicial review”, which historically was not available in relation to privatebodies. The traditional distinction between public law remedies such as mandamus and certiorari and private law remedies such as aninjunction and declaration was discussed in Knox v Conservative Party of Canada, 2007 ABCA 295, 422 AR 29, leave denied [2007]SCCA No 567, where the Court stated: 16 History may explain part of the confusion of whether a tribunal is a public body subject to public law remedies, or only a consensualtribunal subject to private law remedies.

Judicial review was originally done through the prerogative writs: certiorari, mandamus,prohibition, habeus corpus, and quo warranto. These were clearly public law remedies, and were not available to review privatelycreated tribunals. The private law remedies of injunction and declaration were not originally available as public law remedies.

This wasbecause both injunctions and declarations developed in the Court of Chancery, whereas judicial review was always done by the Court ofQueen’s Bench. 17 Upon the merger of the courts of equity and the common law courts, it quickly became apparent that the declaration and theinjunction might be useful public law remedies as well, and they came to be used for that purpose.

The situation was then that privatelaw remedies could be used in public law, but the opposite was not true: the prerogative writs were not available for private disputes. [28] After referring to procedural impediments that have since been removed, the Court concluded: 20 It follows that if a tribunal is exercising powers that do not accrue to private organizations, and that are only vested on the tribunal bystatute for the benefit of the public, then it is subject to judicial review.

Otherwise it is a private consensual tribunal and prima faciesubject only to private law remedies. [29] Despite the historical distinction between public and private law remedies, the courts have interpreted the Rules of Court asgiving teeth to the declaratory remedy in the private law context.

In Kaplan v Canadian Institute of Actuaries, (ABKB), 161 AR 321, [1994] AJ No 868 (QB), Hunt J stated: 44 It seems to me that even if certiorari will not lie against a consensual tribunal, the court possesses broad enough powers under Rule753.05 to grant the remedy it considers appropriate to the particular case, including the setting aside of an invalid decision or action... [30] In Falk v Calgary Real Estate Board Co-operative Ltd, 2000 ABQB 296, 265 AR 60, Rowbotham J considered Hunt J’sreasoning in Kaplan and concluded: 13 I find that although the Board's disciplinary tribunals are domestic, their decisions are subject to judicial review for the limitedpurposes discussed in Kaplan, supra.

The court is entitled to review the decisions to determine whether the tribunals have acted withintheir jurisdiction; to ensure that decisions within their jurisdiction are not patently unreasonable; and to prevent breaches of naturaljustice or fairness... [31] Accordingly it appears that while, historically, judicial review was only available as a public law remedy, Knox does confirmthat private bodies are prima facie only subject to private law remedies.

Kaplan and Falk emphasize that judicial review is available inrelation to decisions of private bodies for limited purposes. [32] As noted above, rule 3.24(1) provides, like the old rule 753.05, that where an applicant is entitled to a declaration that an actis unauthorized or invalid, the Court may set aside the act instead of making a declaration. Arguably, this applies primarily to review ofprivate bodies, since certiorari is available to quash decisions in the public law sphere. [33] Rule 3.15(1)(

b) provides that an originating application for a declaration or injunction must be filed in the form of anoriginating application for judicial review. Rule 3.15(2) provides that an originating application for judicial review must be filed andserved within six months after the date of the decision or act. Rule 3.15(2) establishes a limitation period for applications seeking judicialreview, but does it apply to applications for declarations or injunctions in relation to review of private bodies?

[34] The Applicants rely on Dwyer v College of Physicians and Surgeons of Alberta, (AB KB), 98 AR 81,[1989] AJ No 488 (QB) and McLean v Alberta (Minister of Justice), 2009 ABQB 102, 470 AR 371 for the proposition that adeclaration is excluded from limitation arguments. Further, in Urban Development Institute v Rocky View (Municipal District No 44),2002 ABQB 651, 321 AR 253, Kenny J reviewed a line of cases which concluded that

an act that is invalid is a nullity and it cannotbecome valid through a delay in challenging it. [35] However, Kent J in Alberta Municipal Retired Police Officers' Mutual Benefit Society v Alberta, 2010 ABQB 458, 504 AR41 at para 103 distinguished McLean on the basis that the declaration in that case was forward-looking and therefore, in substance, onlydeclaratory.

She contrasted this to situations where the thrust of the claim is remedial. [36] Further, the Court of Appeal in Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29, 505 AR72 noted at para 21 that no specific decision was being challenged in Dwyer. The Court quoted Slatter J, as he then was, in PapaschaseIndian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655, 365 AR 1, rev'd on other grounds 2006 ABCA 392, 66 Alta LR(4th) 243, rev’d 2008 SCC 14, [2008] 1 SCR: 113 The laws of England had long had a six month limitation period for an application for certiorari.

The original English statutes onlyapplied to certiorari against the decisions of Justices of the Peace, and they have no application to these proceedings, even if they didbecome a part of the law of the Northwest Territories... By 1968 (at the latest) Alberta Rule 742 applied the six-month limitation periodto all applications for certiorari, regardless of the decision-maker being impugned... 114 The Applicants in this case have not applied for certiorari, although they have applied for declarations that the various decisionsthey challenge are void.

Some case law holds that the six-month limitation period for certiorari cannot be evaded by simply asking for adeclaration of invalidity instead... Other cases suggest that time limitations do not apply to decisions that are characterized as "void", orthat the time limitation on a motion to quash does not apply to a declaration that the decision is void ... In my view the betterinterpretation is that the limitation period prevents all challenges to the decision, including the ability to challenge the alleged voidness ofthe decision. In the end, this is largely a matter of statutory

interpretation...The purpose of the limitation period is to bring certainty toadministrative decisions, and there is no obvious reason why the Legislature would exempt a large body of decisions from the rule. InAlberta the issue is in my view answered by Rule 753.05 which reads: 753.05 Subject to Rule 753.11, where the applicant on an application for judicial review is entitled to a declaration that a decision or actis unauthorized or invalid, the court may, instead of making a declaration, set aside the decision or act.

While not expressly addressing the issue, this rule clearly contemplates that no distinction is to be drawn between a motion to quash and adeclaration. It specifically states that it is "subject to Rule 753.11" which is the six-month limitation period. I accordingly conclude thatseeking a declaration is not an effective strategy to avoid the six-month limitation period for quashing a decision. I note also that publiclaw remedies are discretionary and can be denied for delay in prosecution: Chippewas of Sarnia Band v. Canada (Attorney General),(2000), (ON CA), 195 D.L.R. (4th) 135 (Ont. C.A.) at paras. 262 ff.

They can also be denied when they provide noeffective remedy. Declaring a decision to be invalid when there is no way to avoid its consequences is pointless. [37] It is unclear whether the drafters of the Rules of Court specifically intended the judicial review time limit rule to apply toprivate law remedies such as declaration and injunction. One might infer that to be the case, given the wording of rules 3.15 and 3.24(1)and the policy arguments for short limitations in both cases.

It would be difficult to argue that the reasoning of Slatter J in Papaschasewould not apply equally to review of private bodies. [38] Were it necessary to decide in this case, in my view the six month time limit would apply. However, even if it does apply, Ifind the application is not barred. [39] The 1987 Bylaws of PASA were filed on March 31, 1987 with Alberta Corporate Registry. They contained an arbitrationclause: 13.0 Disputes

A dispute arising out of the affairs of the Society and between any Member of the Society or between:

a) A Member or person who is aggrieved and has, for not more than six (6) months, ceased to be a Member, or

b) A person claiming through the Members, or aggrieved, or claiming under the Bylaws of the Society, and the Society, or anExecutive Member of the Society shall be decided by Arbitration, which shall be under the Arbitration Act of the Province of Alberta, and a decision made pursuant tosuch arbitration shall be binding on all parties and may be enforced on application to The Court of Queen’s Bench. [40] The Societies Act, RSA 2000, c F-14 provides: 15(2) No rescission or alteration of or addition to a bylaw has effect until it has been registered by the Registrar. [41] The 1993 Bylaws were filed on March 15, 2011.

By virtue of s 15(2), those bylaws had no effect until registered.Accordingly, the 1987 Bylaws of PASA were the applicable bylaws on November 21, 2010 and remained the only applicable bylawsuntil the 1993 Bylaws were filed on March 15, 2011. [42] The impugned election occurred on November 21, 2010. A proposal was made on January 31, 2011 for the parties to resolvetheir dispute by arbitration.

On March 3, 2011, the parties agreed to meet with their respective counsel to discuss a resolution of theissues and the possible appointment of an arbitrator pursuant to the dispute resolution clause in the 1987 Bylaws. [43] On March 15, 2011 - approximately four months after the impugned election - the Respondent Yeung caused the 1993Bylaws, which do not contain an arbitration clause, to be filed with Corporate Registry. The Originating Application for Judicial Reviewwas filed on July 6, 2011, within six months of the Respondent Yeung filing the 1993 Bylaws. [44] PASA is a private body.

In Kaplan, Hunt J held: 36 There are obvious differences in approach to be taken between the review of a consensual or statutory tribunal. Perhaps mostimportantly...the courts have utilized a contractual approach in reviewing the relations between a consensual body and its members. Insuch a case, the sources of the “contract” will depend upon the particular body, taking the form of a membership agreement or, as here,valid by-laws... [45] Until March 14, 2011, the Applicants were bound to abide by the requirement in the Bylaws that the dispute be decided byarbitration under the Arbitration Act.

Steps were taken with a view to submitting the dispute to arbitration. Had that occurred, the arbitralaward would have been subject to review by the courts to the extent provided under ss 44 and 45 of the Arbitration Act. [46] The bylaws applicable to this private body, PASA, are equivalent to the statutory framework applicable to public bodies.Generally, the courts refrain from interfering in the administrative process if there is an adequate alternate process available to theapplicant: McManus v Calgary (City) Police Service, 1998 ABCA 391, 228 AR 160, Harlekin v University of Regina, (SCC), [1979] 2 SCR 561.

Had the Applicants filed for review prior to March 15, 2011, the Respondents would very likely havesucceeded in having the matter struck on the basis that it would be premature for the court to intervene until alternative processesmandated by the Bylaws had been exhausted: Alberta Soccer Assn v Charpentier, 2010 ABQB 715.

[47] In my view, the Bylaws in effect until March 14, 2011 requiring arbitration suspended the start of the six month period. Theparties’ “contract” during the four months following the election required them to submit the dispute to arbitration. It would be absurd tointerpret “within 6 months after the date of the decision or act” in rule 3.15(2) as encompassing a period of time during which the partieswere bound to pursue another dispute resolution process. [48] I find that the application was filed within the relevant six month period.

B Is the matter justiciable? [49] The Respondents argue the Court has no jurisdiction to control the actions of PASA, a private body. The Respondentsacknowledge that in certain circumstances a court may review the actions of a society or other private club or organization.

However,they argue that the circumstances in which courts may conduct such a review are limited to those matters affecting the personal or legalrights of individual members, such as disciplinary proceedings, citing in particular Lee v Showmen’s Guild, [1952] 2 QB 329, [1952] 1All ER 1175 (CA) and Lakeside Colony Hutterian Bretheren v Hofer, (SCC), [1992] 3 SCR 165. They submit thatsince the Applicants were not subject to any disciplinary actions, the actions of the Respondents are not justiciable. [50] PASA is a voluntary association not unlike a country club, a sports team or a philanthropic organization.

The board ortribunal exercising governance powers over such an organization does so by virtue of the power invested in it by the constitution, bylawsand rules agreed upon by the members. It is true that courts are reluctant to interfere in the private activities of non-statutory bodies.Aggrieved members of such organizations are limited to private law remedies and only in limited circumstances.

However, members areentitled to have the constitution, bylaws and rules of the organization enforced in accordance with their terms and the properinterpretation of those terms (Knox at para 27). [51] In the Hutterian Bretheren case, the acts of the Hutterite colony did affect the individual and property rights of its members.The Supreme Court of Canada at para 1 identified the issue as being whether the expulsion of the members by the colony was carried outin accordance with the applicable rules and principles of natural justice.

The Court stated that it was not incumbent on it to review themerits of the decision by the colony to expel certain members. However, it was “called upon to determine whether the purportedexpulsion was carried out according to the applicable rules, with regard to the principles of natural justice, and without mala fides” (para10).

Gonthier J then quoted Sterling J in Baird v Wells (1890), 44 Ch D 661 at 670: The only questions which this Court can entertain are: first, whether the rules of the club have been observed; secondly, whetheranything has been done contrary to natural justice; and, thirdly, whether the decision complained of has been come to bona fide. [52] While the Hutterian Bretheren case did involve individual and property rights of the aggrieved members, courts willintervene in the private activities of non-statutory bodies where the aggrieved parties have no other remedy available to them.

In suchcases, judicial intervention is not only appropriate but can be expected. [53] In Knox, the applicants were applying to quash decisions setting the date for a nomination meeting, to set aside anacclamation, and to replace the committee chair. Although the Alberta Court of Appeal ruled that the parties were restricted by theirselection of a private law dispute resolution mechanism, the Court added: 30 It is not necessary for us to consider what would happen if the [Conservative Party of Canada] Constitution itself provided no internaldispute resolution mechanism, or rules of procedure.

In such cases, the Court might be prepared to infer certain basic proceduralprotections, and in the absence of any specific remedial procedure, the Courts would undoubtedly use their general jurisdiction toprovide the relief to which the parties are entitled. [54] Yeung took the step on March 15, 2011to cause the 1993 Bylaws to be filed. She subsequently refused to participate in anarbitration.

Accordingly, it is appropriate that this Court conduct the requested review. [55] This Court is entitled to review the impugned election to determine: whether PASA’s rules have been observed; whetheranything has been done contrary to natural justice; and whether the election result was reached in a bona fide manner.

C Applicable Bylaws, Membership of PASA and Voting Rights [ 56 ] The 1987 Bylaws were in force at the relevant times. Under clause 1.1.4, a member is defined as “ a voting member of the Society. ” Clause 1.1.5 defines “ Associate Member ” as “ a non-voting member of the Society ” . The term “ member ” as defined in clause 1.1.4, does not include an associate member. Clause 2.3.5 provided that an associate member shall be entitled to notice of and to attend all meetings of the members of the Society but shall not be entitled to any vote at such meetings.

The 1987 bylaws do not create a category of membership for students. [ 57 ] The 1993 bylaws do provide, under clause 2.3.5, that any student who is studying in the Province of Alberta and has an interest in photography and agrees to comply with the bylaws of PASA is eligible to apply for associate membership, though such application is subject to the absolute discretion of the executive of PASA. It is not disputed that all parties believed at the time that student members could only become associate members and, therefore, non-voting members.

D Validity of the November 21, 2010 Election [ 58 ] The Respondent Yeung received the legal opinion referred to in the open letter of November 2, 2010 indicating several legal and procedural errors with the election process. She received a second legal opinion on November 10, 2010 indicating that the election scheduled for November 21, 2010 would be found to be illegal and invalid if challenged by a member of PASA.

The second legal opinion proposed a simple solution to the issue: for the Executive Board to meet and postpone the election for no more than two months. [ 59 ] Yeung caused to be published in three different newspapers notice of the recommendation that the election scheduled for November 21, 2010 be cancelled “ and another election started anew with rectification of all bylaw infractions ” .

The notice provided that “ a new election date will be determined ” and all members would then be notified of the decision. [ 60 ] Clause 3.3.4 of the 1987 Bylaws provides that a majority of the executive members shall constitute a quorum at any executive meeting. On November 21, 2010, a special executive meeting was held by the then existing Executive Board. That Board, validly constituted and with authority on that date, decided that the election would be rescheduled for December 5, 2010.

A quorum was present at the meeting of November 21, 2010 when the Executive Board selected a new five member election committee and the scheduled election for November 21, 2010 was rescheduled for December 5, 2010. (Clause 3.3.4 of the 1993 Bylaws provides that seven elected executive members at any executive meeting constitutes a quorum and this provision was satisfied as well). [ 61 ] After the November 21, 2010 board meeting, members and board members of PASA left the meeting.

Yeung and the remaining members present then held an election in the absence of those who had left the meeting knowing of the Board ’ s decision to reschedule the election for December 5. Associate members with non-voting rights were allowed to vote on November 21 contrary to the provisions of the Bylaws all thought then to be in force. [ 62 ] The Respondents have not disputed any of these facts. The affidavits submitted on their behalf are of little or no use to the Court as many of the deponents acknowledge that they either could not read the affidavits or they did not understand them before signing them.

They were prepared by, or on behalf of, Yeung without the benefit of legal counsel. [ 63 ] In this case, the Respondent Yeung, in her capacity as President of PASA, received two legal opinions that an election on November 21, 2010 would be illegal and invalid. She led people to believe through the publication of an open letter in three local newspapers that an election scheduled for November 21, 2010 would not proceed and a new date would be scheduled. As President, she chaired an Executive Board meeting on November 21, 2010 during which a motion was carried rescheduling the election for December 5, 2010.

Yet, following the meeting and after members had left, Yeung conducted an election contrary to the notices she caused to be placed in newspapers, contrary to legal advice she received and contrary to a motion that was passed by the Executive Board only moments earlier. She has provided no explanation or justification for her actions. They were improper, unfair and illegal.

[ 64 ] The election conducted by Yeung and the other Respondents on November 21, 2010 was conducted to prevent legitimate and interested members from standing for election and from voting. It interfered with the rights of ordinary members to exercise their right to cast a ballot and it interfered with the rights of members who wished to stand for election to a position on the Executive Board.

The Respondents ’ act of proceeding with an election after publishing a notice that the election would be cancelled, after receiving two legal opinions that such an election would be illegal and invalid, and after passing a motion to reschedule the election for December 5, was contrary to the bylaws of PASA, contrary to the rules of natural justice and was

an act of mala fides . The election was invalid and must be set aside. V Conclusion [ 65 ] The application by the Applicants is not barred by the six month limitation period set out under rule 3.15(2) of the Alberta Rules of Court . It is justiciable. The election of the Executive Board on November 21, 2010 was invalid. The rules of the Society were not observed, it was held in a manner contrary to the rules of natural justice and it was done with mala fides . [ 66 ] The Applicants are entitled under rule 3.24(1) to a declaration that the election was invalid and an order setting aside the results.

They are entitled to an injunction prohibiting the Respondents from representing themselves as members of the Executive Board of PASA. [ 67 ] The Applicants are further entitled to an order directing that a proper election be held within 45 days of this decision. The 1993 Bylaws contemplate a fall election.

Should the parties not be able to resolve the timing of the steps to be taken under the Bylaws in order to comply with this order, they may attend before me for further direction. [ 68 ] Other issues were raised by the parties that may be addressed once a new Executive Board is in place. [ 69 ] If any party requires direction from the Court as to how to implement this decision, they are free to contact me. Costs [ 70 ] If the parties cannot agree on costs, they may attend before me within 30 days. Heard on the 29 th day of November 2011.

Additional written submissions provided on December 19, 2011 and January 13, 2012. Dated at the City of Edmonton, Alberta this 16th day of January 2012.

Eric F. Macklin J.C.Q.B.A. Appearances: Omolara Oladipo Fraser Milner Casgrain LLP for the Applicants Philip G. Lister, Q.C. Philip G. Lister Professional Corporation for the Respondents