Latin American Senior Citizens Cultural Association of Edmonton v. Govea, 2013 ABQB 478

Court of Queen’s Bench of Alberta Citation: Latin American Senior Citizens Cultural Association of Edmonton v. Govea, 2013 ABQB 478 Date: 20130827 Docket: 1303 03335 Registry: Edmonton Between: Latin American Senior Citizens Cultural Association of Edmonton Applicant - and - Armando Govea, Claudio Riveros, Edith Segura, Elsa Verholen, Carmen Ferradas and Luis Miranda Respondents _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _________________________________________ ______________

Summary [ 1 ] The membership of the Latin American Senior Citizens Cultural Association, “LASCCA”, a not-for-profit society incorporated under the Societies Act , is deeply, and perhaps almost equally, divided as to who should represent the society. Armando Govea, who was elected as President of LASCCA in October 2012, orally resigned the office at a general meeting of the society held on January 5, 2013; his resignation was accepted on that day. On January 10, 2013, certain directors held a meeting during which written confirmation was given to Mr. Govea that his resignation was accepted. Mr.

Govea then changed his mind about resigning and purported to take steps to continue as the President of the society, to form a separate board of directors and perhaps to enroll new

members. [2] In the result, there is, first, a dispute about who is entitled to act for LASCCA and, second, if Mr. Martinez is entitled to actfor LASCCA, there is a dispute about whether the applicant has established the necessary pre-requisites for an injunction. [3] The application for an injunction is denied. [4] Mr. Martinez is authorized to act for LASCCA. Mr. Govea’s oral resignation was effective: an oral resignation of office in asociety incorporated under the Societies Act is effective so long as the resignation is clear and unambiguous.

Such a resignation need notbe in writing, as does the resignation from office in a corporation. When Mr. Govea resigned as President, the by-laws of LASCCAentitled the directors to appoint the Vice-President to act as President until the next annual general meeting. The Vice-President then hadauthority to appoint someone to act on behalf of LASCCA. [5] Instead of an injunction, the proper remedy in a situation such as this is to order the applicant to call an annual generalmeeting for the election of a board of directors and for any other business as soon as practicable after the issuance of this decision.

Themembers entitled to vote at such a meeting are those members in good standing as of January 10, 2013. Cases and authority cited [6] By the Respondents: Saggu v. Ramgarhia Gursikh Society of Edmonton, 2006 ABQB 754; Business Corporations Act,R.S.A. 2000, c. B-9; Societies Act, R.S.A. 2000, c.S-14. [7] By the court: Kirby v Amalgamated Income Limited Partnership 2009 BCSC 1044; Hong v Young Kwan PresbyterianChurch of Vancouver 2007 BCSC 502; Rhee v Korean Society of British Columbia for Fraternity and Culture (BC SC), [1993] B.C.J. No. 1048. Appendix A: LASCCA By-laws 1. Background

a) Factual [8] Latin American Senior Citizens Cultural Association, LASCCA, was incorporated in 1990 pursuant to the Societies Act. OnMarch 5, 2013, LASCCA brought the within originating notice seeking an injunction against the respondents which prevented them fromusing the name LASCCA and from purporting to represent LASCCA.

The application also asked for: replevin of LASCCA chattels; anaccounting; a direction than any contracts entered into by the respondents in the name of LASCCA be declared null and void; an orderdirecting LASCCA’s banker to remove Armando Govea and Claudio Riveros as signing authorities for LASCCA; and related remedies.Medardo Azocar states that he is the elected Vice-President and acting president of LASCCA; Mr.

Azocar has authorized OscarMartinez, who states that he is a Director of LASCCA, to give instructions with respect to this application. [9] On March 22, 2013, on notice, LASCCA obtained an order adjourning the hearing of the originating application to April 3,2013 and stating that, until further order of the court, LASCCA’s property may not be used or divested other than in the ordinary courseof business. [10] On March 28, 2013, the respondents brought a counter-application seeking an injunction that would require Oscar Martinez toimmediately cease representing himself as authorized to act on behalf of LASCCA, for replevin of LASCCA property and confirming theresolutions passed by the respondents on February 10, 2013. [11] LASCCA’s By-laws, adopted in 1994, are attached as Appendix A.

It is not clear on this application if, at the relevant times,all board members met the criteria set out in the MEMBERS portion of the by-laws. The only types of resolution which, according to theby-laws, must be passed by “special resolution” are a resolution to borrow money, a resolution to disqualify a director and a resolution toexpel a member.

Although there is a reference in the by-laws to the fact that members shall not “interrupt or bring up issues out of theprogramed Agenda”, there is nothing in the by-laws requiring the circulation of an Agenda a certain number of days prior to a meeting. [12] LASCCA has a casino license with the Alberta Gaming and Liquor Commission.

The court assumes that, as a result of theefforts made in connection with that license, LASCCA has accumulated monies in three bank accounts, the total of which is known to allmembers but is not reproduced exactly here for privacy reasons; but which is between $150,000.00 and $200,000.00. [13] LASCCA has asked the respondents for the minutes and other records of the society.

To date, that request has not been met.Therefore, the outline of the chronology of events from September 2012 to the present is made by the applicant from the recollection ofthe affiant, without recourse to the society’s formal records. [14] LASCCA held an election for its board of directors in September 2012. By a vote of 12 to 10, Luis Miranda was electedPresident of the society. However, Mr. Miranda orally resigned within half an hour of the election results being announced andattempted to appoint Armando Govea as President.

As a result of objections to this attempted treatment of the President’s office, newelections were held in October, 2012. As a result of those elections, again by a very slight majority, Mr. Govea was elected as President.The complete board of directors as elected in October, 2012 is as follows: Armand Govea President

Medardo (Lito) Azocar Vice-president Edith Segura Secretary Jacoba Figuroa Vice-secretary Claudio Riveros Treasurer Elsa Verholen Vice-treasurer Oscar Martinez First director Carmen Ferradas Second director [ 15 ] In January 2013, an audit committee, formed to review LASCCA’s bank accounts reported that it did not find any problem with the bank accounts. Mr. Riveros was the Treasurer. [ 16 ] The respondent Govea, and indeed the respondent Riveros, both acknowledge that, at a general meeting of LASCCA on January 5, 2013, Mr. Govea orally resigned the office of President.

The membership of LASCCA accepted his resignation by a vote of 17-3. Mr. Azocar then became President, presumably as a result of his position as Vice-president. [ 17 ] On January 8, 2013, Messrs Martinez, Azocar and Riveros went to the bank where LASCCA maintained its accounts to change the signing authority for LASCCA’s bank accounts from Govea to Azocar.

However, the bank refused to change the signing authority without some written confirmation of the replacement of Govea by Azocar. [ 18 ] At a directors’ meeting on January 10, 2013, with the respondent Govea present, directors Azocar, Figuroa, Martinez, Verholen and Riveros confirmed Mr. Govea’s resignation and, at Mr. Govea’s request, provided him with written confirmation that his resignation had been accepted. Directors Segura and Ferradas were not present at the January 10 meeting; Ms.

Segura’s absence had been excused; she had not attended meetings in some time and was not expected to attend meetings in the near future. Ms. Ferradas had not attended a directors’ meeting since October 2012 and was not considered to be an active director. [ 19 ] On January 25, 2013, the premises where LASCCA held its meetings were condemned by Alberta Health Services. [ 20 ] On February 3, 2013, Mr. Govea and a group of some 10 members of LASCCA, including Mr. Martinez but not including any of the individuals who comprise the Azocar/Martinez group, met with the Gaming Commission.

Apparently the Commission told the persons present at the meeting that, until they received something in writing which confirmed that Mr. Govea was no longer president of LASCCA, they would continue to deal with Mr. Govea as representing LASCCA. The Commission also apparently told Mr. Riveros to pay the rent on the new premises which the Govea group had arranged. [ 21 ] The next general meeting of LASCCA was held on February 9, 2013. The date for this meeting had been set either at the January 5, 2013 general meeting or at the January 10, 2013 directors’ meeting.

However, because of the intervening event of January 25 about the society’s condemned location, on February 7, 2013, notice of a substitute meeting place - the Ukrainian Cultural Centre - was given by Ms. Figuero and Mr. Martinez. There is a dispute between the parties concerning who received notice of the change of location of the meeting. Certain written resolutions were unanimously passed, with one abstention, by those present at the meeting. The applicant asserts that the resolutions were passed by individuals representing more than 75% of the members present at the February 9, 2013 meeting.

Those resolutions were: 1. That Armando Govea be removed as President of the society; 2. That Claudio Riveros be removed as Treasurer of the society; 3. That Jacoba Figuroa be elected as Treasurer of the society; 4. That the following members be removed as signing officers of the society: Armando Govea, Luis Miranda and Claudio Riveros; 5.

That the following persons be elected signing officers of the society, and that any two of the following signing officers be and are authorized to sign, on behalf of the society, any and all financial or other documents with the society’s bankers, and that such execution of any document by any two of said signing officers shall be binding upon the society and its members: Medardo Azocar, Jacoba Figueroa, Oscar Martinez and Elias Soto; and, 6. That Armando Govea’s membership in the society be revoked effective immediately. [ 22 ] Between January 10, 2013 and February 9, 2013, Mr. Govea, Mr. Riveros and Ms.

Segura held a meeting and decided that they would remove LASCCA’s property from the condemned premises. Mr. Riveros acknowledges that he did not give notice of that meeting or of the removal of LASCCA property to any of the individuals who were perceived to be in the Martinez group; his explanation is that he “forgot” to do so. [ 23 ] On February 10, 2013, Azocar, Figuroa and Martinez, along with 10 other members of LASCCA, received letters signed by the respondents purporting to revoke their memberships, all under LASCCA seal.

b) Legislative [ 24 ] For ease of reference,

section 9 of the Societies Act is reproduced hereunder: Application for incorporation

9(1) Persons desiring to become incorporated under this Act shall make and subscribe an application for incorporation in the prescribed form, and also bylaws agreed on by them for the government of the society, and shall transmit the application and bylaws together with documents relating to corporate names that are prescribed by the regulations and an incorporation fee as set by the regulations, to the Registrar.

(2) The application shall set out (

a) the intended corporate name of the society, and (

b) the purpose or purposes for which incorporation is desired.

(3) The application shall be accompanied with any information respecting the subscribers to the application that may be required by the regulations under the Agricultural and Recreational Land Ownership Act and

section 35 of the Citizenship Act (Canada) in the form and manner prescribed by those regulations.

(4) The bylaws that accompany the application shall contain provisions for all the following matters: (

a) terms of admission of members and their rights and obligations; (

b) the conditions of withdrawal of members and the manner, if any, in which a member may be expelled; (

c) the mode and time of calling general and special meetings of the society and number constituting a quorum at any of those meetings and rights of voting; (

d) the appointment and removal of directors and officers and their duties, powers and remuneration; (

e) the exercise of borrowing powers; (

f) the audit of accounts; (

g) the custody and use of the seal of the society; (

h) the manner of making, altering and rescinding bylaws; (

i) the preparation and custody of minutes of proceedings of meetings of the society and of the directors, and other books and records of the society; (

j) the time and place, if any, at which the books and records of the society may be inspected by members. 2. Was Mr. Govea’s oral resignation effective? [ 25 ] Mr. Govea’s oral resignation was effective. [ 26 ] There is no provision in the Societies Act which deals with the formalities of resignation.

[27] The respondents suggest that it would be appropriate, in the absence of a specific legislative provision, to look to therequirements of the Business Corporations Act for guidance. With respect, I disagree. When the Legislature passed the Societies Act, itwas well aware of the provisions of the Business Corporations Act.

By deliberately choosing not to adopt the type of formalities found inthe latter statute, the Legislature was implicitly, if not explicitly, rejecting the need for the type of formalities found in the latter statute. [28] In the absence of explicit legislative provisions relating to resignations in Alberta societies incorporated under the SocietiesAct, I begin with general principles relating to resignation. Those principles were recently helpfully referred to by Metzger J. in Kirby asfollows: 128 Mr. Justice N.H.

Smith succinctly summarizes the law on resignation…. 129 An apparent resignation made in "a spontaneous outburst of anger", and especially if accepted without proper deliberation, maynot constitute true intention to resign: Cox v. Victoria Plywood Co-operative Assn., (BC SC), [1993] B.C.J. No. 2788,2 C.C.E.L. (2d) 78 (S.C.), at paras. 17-18, quoting Widmeyer v. Municipal Enterprises Ltd. (1991), (NS SC), 36C.C.E.L. 237, 103 N.S.R. (2d) 336 (T.D.). 130 An employee may revoke an offer of resignation before it is accepted, particularly so if the offer is made in the heat of themoment: Turner v.

Westburne Electrical Inc., 2004 ABQB 605, 36 C.C.E.L. (3d) 227, at para. 50. 131 An employer who receives an ultimatum from an employee may treat it as a resignation, or may instead attempt to come to anunderstanding by which the employee remains continuously employed: Billows v. Canarc Forest Products Ltd., 2003 BCSC 1352, 27C.C.E.L. (3d) 188, at paras. 43 and 58. 145 Third, even if the proposed compromise required the board's approval before rejecting Mr. Kirby's resignation, this would notnegate Mr. Kirby's implied revocation of his resignation. As either revocation by Mr.

Kirby or rejection by Amalgamated is sufficient toprevent an acceptance of the resignation on May 17, 2000, the issue of board approval makes no difference. 146 Furthermore, Mr. Kirby's April 14, 2000, resignation offer was open for acceptance only for a reasonable time. Over a month hadpassed between Mr. Kirby's ultimatum and the board's purported acceptance of his resignation.

I find that a reasonable person, viewingthis situation objectively, would consider that the April 14, 2000, offer of resignation had lapsed by May 17, 2000. 147 Therefore, I find that the resignation offer of April 14, 2000, was both revoked and rejected no later than the April 25, 2000,meeting held between Mr. Kirkham, Ms. Parker and Mr. Kirby. Mr. Kirby was fired on May 17, 2000. [29] In

summary, then, a resignation, and its acceptance, can be effected by actions other than writing. The actions constitutingresignation and acceptance of resignation must, however, be clear. [30] The next step is to consider whether there is a difference between resignations in general and resignations of officers. TheBusiness Corporations Act requires corporate officers to tender resignations in writing. Clearly, if the Legislature wanted to impose asimilar requirement on officers in societies, it had a ready-made guide for doing so.

In my view, by establishing a “bare bones”framework for societies, the Legislature was recognizing that societies can be of such different types that it would be inappropriate tosaddle all societies with excessive formalities; societies are left to devise for themselves the formalities they wish to follow and they canchoose to be as formal, or as informal, as the membership decides. [31] Some of this approach to the regulation of in-house procedures for societies was captured by obiter comments, that iscomments that were not necessary to the decision, made by Smith J. in Hong: 66 I would add these observations. 67 This decision addresses the need for compliance with the formal governance process that has been adopted by the Church.

It doesnot reflect poorly on the Church as a faith community. 68 There has been a substantial amount of litigation over the Church's governance rules. This has occurred at considerable expense toall involved, including the members of the Church whose voluntary contributions fund the defence of this litigation. That membershiphas declined substantially since 2002.

Moreover, there appears to be few candidates who are prepared to stand for election to theSession's governing positions. 69 On a number of occasions the courts have commented on their reluctance to become involved with the operation of a society'sinternal affairs, preferring that disputes over such matters be resolved by the members of the society. In this case, all partiesacknowledged difficulty in discerning the meaning of the "two ballots rule". That difficulty was caused, in part, by the "stilted"translation from Korean into English. Such

interpretation difficulties will continue to plague the Church unless its bylaws are redrafted in

a manner that clearly reflects the intention of the Church's membership and are adopted by the members at a properly constituted general meeting. 70 In comparison, bylaw provisions that include the formalities of the Church's governance procedure are clear. Examples of such formalities include the requisite notice for a general meeting and the requirement that an election be held by secret ballot. Those formalities must be complied with under the Act . 71 Incorporated societies are required to conduct their affairs in accordance with the Act , their constitution and their bylaws.

Faith communities, on the other hand, generally embrace a consensus-based decision making process. Consensus-based decisions reward flexibility, team building and respect for and trust in one another. Adherence to formal procedural rules does not provide the same rewards. 72 Those who would impose a rigid, inflexible approach to internal governance issues, by frequent challenges to procedural rules and formalities, will impede their community's ability to achieve a broad-based consensus for the resolution of its internal issues.

The ongoing challenge for the Church will be to maintain the flexibility and good-will of its faith community's consensus-based decision making, while at the same time ensuring that the procedural rules and formalities of its society are followed. [ 32 ] Although LASCCA is not a church, the above-cited decision is helpful because it does deal with the organization of in-house formalities of a society whose members’ mother tongue is not English; in those ways, the facts of that case are similar to this case.

As in that decision, the way in which members are to be admitted to LASCCA, and the other matters raised in this application, are internal governance matters which courts are poorly placed to decide. Indeed, in a situation such as the one here, given not only the deep divisions of the membership but the evidence that the membership may be almost equally divided, the membership may wish to attempt mediation or arbitration of their differences, and, if that is not successful, the winding up of the society. [ 33 ] In the circumstances here, even the competing affidavits make it clear that Mr.

Govea intended to resign, and did resign, and that even if there were events at the meeting of January 5 that provoked a merely reactive resignation, Mr. Govea’s intention and will to resign remained constant until at least January 10, and, that the board of directors accepted his resignation. That time lapse evidences a settled intention to resign. No writing was required from either side. [ 34 ] The fact that the Gaming Commission and the bank wanted something in writing is an entirely separate matter.

Understandably, in the absence of some proof of resignation and acceptance of resignation, those institutions would prudently decide that they should continue to deal with the individuals who were last formally presented as being authorized to act for LASCCA. Indeed, Mr. Govea should have provided to the bank and to the Commission the evidence of his resignation in writing. In any event, however, once the Commission and the bank are advised that Mr. Govea legally resigned and his resignation was legally accepted, and that Mr.

Govea wrongfully refuses to acknowledge the resignation by providing written instructions to that effect, the court assumes that both the Commission and the bank will proceed on the basis that Mr. Govea has, in law, resigned as President of LASCCA and that he no longer has any signing authority at the bank in relation to LASCCA. 3. What was the effect of Mr. Govea’s resignation? [ 35 ] Having determined that Mr. Govea’s resignation was effective, we must then go on to consult the by-laws of LASCCA to determine what options were open to the remaining directors of the society.

As will be seen, the by-laws state: Obligations of the Vice-President . . .

b) If the office of the President becomes vacant, the Directors may appoint the Vice-President or any other Director to be the President until the next annual general meeting. [ 36 ] Faced with Mr. Govea’s resignation, the remaining members of the Board were entitled to ask Mr. Azocar to act as President until the next annual general meeting. On the other hand, since the word used in the by-laws is “may”, the remaining directors could presumably have chosen a different course of action, such as calling a new election, as indeed they had done a few months earlier when Mr.

Miranda had resigned the office of President. However, whichever remedy to the resignation was chosen by the directors, the by- laws clearly intended that remedy to apply only to the next annual general meeting. The by-laws provide that the annual general meeting is to be held in March of every year; Mr. Riveros swears in his affidavit that, in reality, LASCCA held its annual general meeting in September of 2012 and in September for some years prior to 2012.

Perhaps because of that history or perhaps because of the various upheavals which occurred in LASCCA’s operations between September 2012 and early February 2013, no annual general meeting of LASCCA was called for March, 2013. [ 37 ] However, from the date of the acceptance of Mr. Govea’s resignation, which was January 10, 2013 at the latest, the directors were entitled to appoint Mr. Azocar as acting President and Mr. Azocar was entitled to ask Mr. Martinez to initiate these proceedings. [ 38 ] Having resigned from the presidency of LASCCA, Mr.

Govea had no right to refuse to give a notification in writing of his resignation as President to the Gaming Commission and to LASCCA’s bankers. Mr. Govea had no right to continue to hold himself out as the President of LASCCA, to appoint a separate board of directors and to purport to make decisions on behalf of LASCCA. [ 39 ] On the other hand, the remaining directors of LASCCA were not entitled to ignore the by-laws in relation to the disqualification of members of the board of directors or the expulsion of members. [ 40 ] One of the attributes of membership mentioned in the By-laws is “active “.

That term is not defined very precisely in the by- laws: see the definition of Category A of Members, “According to the Law active members are those whose ages are sixty (60) years old

and up”. A term in a by-law such as the one in the case here should be interpreted reasonably: Rhee. The term “active” implies that some members are non-active; the by-laws themselves suggest that non-activity can be forgiven, retroactively, by the board of directors. As of January 10, 2013, no elected directors of LASCAA had been disqualified or removed. Therefore, as of January 10, 2013, all directors of LASCCA were entitled to be treated in the same way in relation to such matters as notice of meetings. [ 41 ] When Mr. Govea resigned as the President of LASCCA, it is possible that he remained as a member of the board of directors. The by-laws state only: Disqualification of Directors:

a) The disqualification of a member or members of the Board shall be passed by a Special Resolution determined by the Board of Directors or the Members and must be approved by 75 per cent of the votes in a General Meeting. Example of Reasons are: violation of the Association’s By-laws, or absence to three consecutive regular meetings, unless provided an acceptable reason for the absence that is acceptable to the other Directors. [ 42 ] Similarly, the by-laws state that a member can only be expelled from the society by a 75% vote:

Article No. 2 Rights and obligations of the Members . . .

k) To expel a Member of the Association is necessary (75%) seventy five per cent of the votes of active members in a General Meeting. [ 43 ] Interestingly, those two provisions of the by-laws do not read in exactly the same way. The difference in the wording allows the possibility that a director can be disqualified by a vote of 75% of members – both active and non-active – present at a general meeting but that a member can only be expelled by 75% of all active members of the society who must also be present at a general meeting. If the latter

interpretation were the correct one, then the applicant’s attempt to expel Mr. Govea would not have been successful. 4. Did the society have a mandatory process for admitting new members? [ 44 ] It has not been established on this application that the society had a formal process for admitting new members. [ 45 ] Mr. Riveros indicates that the process for admitting new members into LASCCA is: the applicant submits an application form to the board of directors; the board of directors discusses the application; the board of directors must approve the new member by simple majority.

If this process was ever adopted by LASCCA, there is no evidence of such adoption on this application. [ 46 ] Whatever process had been adopted for approving new members, that process applied equally to the Martinez group and to the Govea group. 5. Were the February 9, 2013 resolutions passed by the Martinez group lawfully passed? Can Mr.

Martinez speak on behalf of LASCCA? [ 47 ] The February 9 resolutions were not lawfully passed. [ 48 ] In coming to that conclusion, I have taken the following into account: - although the society did have provision for emergency meetings, the February 9 meeting was not an emergency meeting. As the applicant itself states, the February 9 meeting had been set early in January. The only issue which, to the knowledge of the applicant group, had arisen between January 10 and February 9 was the condemnation of the usual meeting premises.

That led to a need for notification of a new location on an emergency basis, but not to an entitlement for an emergency meeting; - all directors had to be given notice of a directors’ meeting. However, on this application there is a dispute about whether some of the directors were given notice of a meeting on February 9. The weight of the evidence suggests that some of the members of the board of directors were not, in fact, given notice of the February 9 meeting. [ 49 ] In the result, the resolutions passed at the February 9 meeting were not valid. 6.

Is the applicant entitled to an injunction? [ 50 ] The applicant is not entitled to an injunction.

[ 51 ] In coming to that conclusion, I have taken into account the fact that the applicant has not complied with LASCCA’s internal governance rules: - an injunction is an equitable remedy. In other words, the competing equities – the requirements of fairness - must be weighed. Here, although the applicant was entitled to appoint the vice-president as acting president, that state of affairs should, according to the by-laws, only have continued until the next annual general meeting. In the absence of a formal change to the by-laws, that meeting should have been held in the first week of March.

The most recent elections - those which were contested - actually took place in September and October, 2012. It may be, therefore, that at some time LASCCA varied its by-laws with a view to holding its elections in September rather than in March; however, on this application, there is no evidence that the by-laws have been over-ridden in this respect.

Therefore, the fairest thing to do is to try to put the parties back into compliance with the by-laws, by requiring an election now to stand in the stead of the election that should have been held in March; - similarly, there appears to have been a failure by the applicant to respect LASCCA’s by-laws with respect to the expelling of Mr. Govea. [ 52 ] Since LASCCA has not complied with its own governance rules, it is not entitled to an equitable remedy, 7.

Remedy granted: holding annual general meeting with the membership as it existed on February 4, 2013 [ 53 ] Although the applicant is not entitled to an injunction, the court has concluded that, it is in the interest of all parties that it should exercise its discretion under the Judicature Act to order that LASCCA should, as soon as is practicable, hold an annual general meeting at which there will be elections and that the only persons who are entitled to notice of, and to vote at, such a meeting is the membership of LASCCA as it stood at January 10, 2013. [ 54 ] It appears on this application that, since January 10 2013, both the Govea group and the Martinez group may have recruited individuals to become members of LASCCA.

These individuals should not be recognized as members of LASCCA. If there is, in fact, an established procedure for admitting new members to LASCCA, having resigned his position on January 10, 2013 at the latest, Mr. Govea was not in a position to be on the committee which admitted new members.

Having failed to give some members of the existing board of directors notice of the February 9, 2013 meeting, the Martinez group did not have the authority to approve new members. [ 55 ] Moreover, the fairest approach to the problems which have beset LASCCA is to try to deal with the situation as it existed at the last time when the by-laws were complied with, that is immediately after the January 10, meeting. Therefore, even if there had been new members properly admitted after that date, in fairness those members should not be allowed to have a say in the election that should have been called in March 2013. 8.

Referral to case management for advice and directions [ 56 ] In a situation of this type, it appears to me that the members of LASCCA would be best served by case management. For example, it is not clear on this application who the members of LASCCA were on January 10, 2013: the respondents who have control of LASCCA’s records have not given the applicant access to the membership ledger. Mr. Riveros has spoken in his affidavit of “re- registering membership” – a procedure which is not described in the by-laws. Mr. Martinez calls into question the membership list proposed by Mr. Riveros. Similarly Mr.

Martinez calls into question the status of the Verholen, Segura and Ferradas members of the board, although, from the material before me, no steps were actually taken to remove those individuals from the board until after January 10, 2013. A case management judge could help the parties to devise ways in this these disputes, as well as any other procedural disputes which remain, could be resolved in the most effective and the least costly manner. Indeed, a case manager could assist the parties in determining what types of process the parties might now engage in to resolve their overall differences. 9.

Costs [ 57 ] In light of the divided success on this application, tariff costs will be paid for both the applicant and the respondents from LASCCA. Heard on the 19 th day of August, 2013. Dated at the City of Edmonton, Alberta this 26 th day of August, 2013.

J.B. Veit J.C.Q.B.A. Appearances: Sean Warshawski, Ritzen Olivieri LLP for the Applicant Jose A. Delgado, Bishop & McKenzie LLP for the Respondents Appendix A L A S C A (sic) LATIN AMERICAN SENIOR CITIZENS' CULTURAL ASSOCIATION OF EDMONTON The standard By-Laws of the Latin American Senior Citizens Cultural Association shall apply to all of it's members. PRINCIPLES • To promote the well being of Senior Citizens • Shall preserve autonomy from any other organization or institution. • The business of the Association will be conducted without monetary gain for the members. Any profits or increments to the Association shall be used for the purpose of promoting its objects. OBJECTIVES

a) To contribute in the development of Alberta and Canada and to overcome barriers. inequality of conditions and

opportunities.

b) To contribute in the integration of our community into the Canadian society.

c) To promote and encourage good co-operation with other Associations of Senior Citizen of Alberta. To share with them and with the Canadian Society our principles and goals.

d) To assist and provide guidance to people qualify by Law as senior citizens.

e) To develop a community environment that will support human development and growth, both as individuals and as members, of responsible communities through democratic participation.

f) To provide English courses for the membership in order to facilitate their prompt integration into the Canadian society.

g) To provide with Spanish courses to those members whose language is other than Spanish.

h) To preserve the Latin American culture, customs and folklore. .- 2 - Lasca -By-Laws MEMBERS

a) The Association recognized three (3) categories of members: --CATEGORY (

A) According to the Law active members are those whose ages are sixty (60) years old and up. --CATEGORY (B) . Any member over 55 years old. This Category shall vote at any meeting and form no more than 30 per cent of the Board of Directors. --CATEGORY (

C) The Association will consider friends

(Voluntary) any member whose age is under 55 years old. No one in this Category shall form part of the Board of Directors; however, shall have the right to vote in the affairs of the Association.

ARTICLE No. 1 Obligations of the Board of Directors

a) Officers of the Association shall not receive· any payment or benefit for services provided as Officers or Directors.

b) Regular meetings of the Board of Directors shall be held at least two times a month.

c) The Board of Directors shall inspect books and records of the society, at any time. Audit of Accounts

a) The Board of Director or the Members shall appoint at- least two members to audit general records and reports to the General Annual Meeting. Exercise of Borrowing Powers

a) The Society may borrow money by the introduction of a special resolution of the members. It must be approved and signed by at least seventy five (75%) per cent of the active members. (Categories "A" and “B"). Disqualification of Directors:

a) The disqualification of a member or members of the Board shall be passed by a Special Resolution determined' by the Board of Directors or the Members and must be approved by 75 per cent of the votes in a General Meeting. Example of Reasons are: violation of the Association's By- Laws, or

-3 – Lasca –By-Laws absence to three consecutive regular meetings, unless provided an acceptable reason for the absence that is acceptable to the other Directors. Obligations of the President

a) The President shall represent the Association's internal and external affairs.

b) Shall preside at all meetings of the Association and shall preside at all meetings, of the Board of Directors.

c) The President is in charge of all committees of the Association.

d) The President shall, with the Secretary or Treasurer, sign, execute and deliver all operations (deeds), agreements, purchases, mortgages, leases and other legal documents that are approved by the Directors or the members.

e) The President together with the Treasurer or the Secretary shall countersign all cheques, notes, letters; bill of exchange and other financial documents.

f) The President shall provide to the annual general meeting or any other meetings of the Association the Board of Director's report of the affair of the Association.

g) The President may be call all meetings of the Association. Obligations of the Vice-President

a) Where the President is absent or unable to act the Vice-

President shall take charge of the Association.

b) If the office of the President becomes vacant, the Directors may appoint the Vice-President or any other Director to be the President until the next annual general meeting. Obligations of the Secretary

a) The Secretary shall attend all meetings of the Association, of the Board of Directors and the Committees and keep minutes of any meeting. With the President shall sign, execute, and deliver any correspondence or document of the Association.

b) The Secretary shall conduct the correspondence of the Association and shall be in charge of all records, books, papers documents and the seal of the Association. Shall register and keep records of all members of the Association.

c) The meetings of the Association may be called by the President or by any five Directors, and it shall be the duty of the Secretary to cause the notice of any of meetings of the Association. Obligations of the Treasurer

a) The Treasurer shall receive and deposit in a bank previously selected by the Association all monies of the Association and shall issues receipts therefore.

b) The Treasurer shall, with the President or any other person appointed for the purpose, sign all cheques, notes, bills of exchange and other documents necessary to carry on the business of the Association.

c) The Treasurer shall be responsible for keeping of a proper set of books, showing accurately the dealings of the Association, and shall present a full and detailed account of

receipts and disbursements to the Board of Directors whenever requested by them, and shall prepare for presentation to the annual general meeting of the Association, a complete statement of its financial position. Any member have the right to see the books at any time he or she wishes.

d) The Treasurer and the Vice-Treasurer shall be in charge to supervise the standing of the Association.

e) Delegation of Duties: If the office of the Treasurer becomes vacant, the Directors may appoint the Vice-President, Vice-Secretary, Vice-Treasurer, or any other Director to be the President until the next annual general meeting.

ARTICLE No. 2 Rights and Obligations of the Members

a) Each year the members of the Association shall elect or re- Elect the members of the Board of Directors at the Annual General Meeting.

b) The members shall elect the members of the Board by a secret ballot, unless the members decide a show of hands.

c) Members shall maintain good and responsible relationship within the Association.

d) The members shall not interrupt or bring up issues out of the programed Agenda.

e) Every member shall maintain a good responsible behavior during the meetings.

f) Members shall respect the decisions of issues voted by the members at any meeting of the Association.

g) Any member may be suspended if absent to four regular general meetings in a period of one year, unless provide a reason for the absence that is acceptable to the Board of the Directors. There is no need to pass an special resolution.

h) Member shall inspect any books and records of the society at any time by notifying the Board of Directors.

i) If the Association find out that any of it's members is/are putting at risk the name of the Organization the member shall be penalized accordingly with the seriousness of the fault or the offense.

j) The Board of Directors may be fine, suspend, or ask a Member to leave the association. If according to the Board of Directors a Members shall be expelled from the Association. There a need exist to pass an Special Resolution.

k) To expel a Member of the Association is necessary (75%) seventy five per cent of the votes of active members in a General Meeting.

l) Members shall not borrow any money for personal or another use out of the organization.

ARTICLE No.3 Regular General Meetings

a) A regular general meeting shall be held the first week of each month.

b) The meetings may be called by the President, the Vice- President or by the Secretary or any other authorized Director or Members, if the President, the Vice-President, the Secretary or any other of the Board of Director are absent or unable to do so by the Association.

c) The Board of Directors shall cause notice of the meeting giving time and place at least seven (7) days notice before the meeting.

d) The general policies for the Association shall be set by the membership in general membership meetings.

e) The quorum for any general membership meeting shall be no less than ten active members.

f) The voting shall be decided by a secret ballot, unless the members decided a show of hand.

g) Any member in good standing shall be eligible to vote at any meeting of the Association. Special Meetings

a) Special meetings shall he held at any time. and may be called by the Board of Directors or any other (

s) previously authorized by the Members. The Board of Directors may decided time and place least 7 days before the meeting.

b) The quorum shall not be less. than ten (10) active members.

c) Emergency meetings of the members shall be held at any time. The Board of Directors may decided time and place with at least 24 four hours (twenty four) notice before the meeting. Annual General Meetings

a) The Association shall call the members to an Annual General Meeting. The meeting may be held the first week of March of each year.

b) The members shall follow this Agenda: Reading and adoption of Minutes, business arising from minutes, Report of the Board of Directors and of any Committees, Unfinished business,

nominations and election of the Board of Directors, New Business and Adjournment.

c) Report of Members appointed by the Board of Directors to audit general records and reports of the Association.

d) The meetings may be called by the President, the Vice- President or by the Secretary or any other authorized Director or Members, if the President, the Vice-President, the Secretary or any other of the Board of Director are absent or unable to do so by the Association.

e) Each year at the Annual Meeting the members of the Association shall nominate, elect or re-elect the members of the Board of Directors.

Article No. 4 Voting Procedures :

a) The following voting procedures shall apply for the election of the Board:

b) Two members in good standing will be selected to conduct and control the elections period.

c) Any member in good standing shall be eligible to vote and to be elected or re-elected as Director of the Association.

d) The voting shall be decided by a secret ballot, unless the members decided a show of hand.

e) The ten (10) elected members shall elect --among them-- the people who will be.in charge of the Board of Directors of the Association. (The President; Secretary etc.) - 7 –Lasca –By-Laws

f) Members shall nominate the candidates to the Board of Directors at the General Annual Meeting.

ARTICLE No.5 Changes and corrections

a) This By-Laws shall be subject to corrections and changes through an Special Resolution and approved by seventy five (75%) per cent of the active Members.

b) The Association shall notify and call the members with not less than 21 days notice.