Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2013 ABQB 646

Court of Queen ’ s Bench of Alberta Citation: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2013 ABQB 646 Date: 20131113 Docket: 1203 12435 Registry: Edmonton Between: Sakattar Singh Sandhu and Baldev Singh Hundle Applicants - and - Siri Guru Nanak Sikh Gurdwara of Alberta Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice R.P.

Marceau _________________________________________ ______________ I Introduction [ 1 ] The Respondent, Siri Guru Nanak Sikh Gurdwara, of Alberta (“Gurdwara Society”) is a religious society incorporated under the Religious Societies Land Act , RSA 2000, c. R-15. The Gurdwara Society owns and operates a Sikh temple and is an incorporation of this Sikh religious congregation. [ 2 ] The Applicants, Sakattar Singh Sandhu and Baldev Singh Hundle, are members of the Gurdwara Society.

They initiated this action via Originating Notice of Motion. [ 3 ] Counsel for the Gurdwara Society has characterized this application and the other related historical actions using corporate parlance: this is as a hostile takeover bid. I find that analogy is appropriate given that s. 25(1) of the Religious Societies Land Act provides the authority for a judge of the Court of Queen’s Bench to dissolve or liquidate a society under

Part 17 of the Business Corporations Act , RSA 2000, c. B-9.

[ 4 ] The Applicants request I take that step and dissolve and liquidate the Gurdwara society for a number of reasons, including that the Gurdwara Soceity has engaged in oppression: 1. when it wrongfully refused membership applications by qualified persons, and 2. failed to hold elections for the Executive Committee (i.e. table officers such as President, Vice President, Secretary, Treasurer and others). [ 5 ] Counsel for the Applicants advised the court that if the remedy of dissolution was found to be too drastic, then the court could order measures to redress the case for oppression short of dissolution. II.

Summary of Arguments [ 6 ] Both the Applicants and Respondents agree that the bylaws of the Gurdwara Society are poorly drafted and confusing. Both agree that

interpretation of these bylaws will be a necessary step for this court. [ 7 ] The Applicants say the current bylaws permit the Religious Committee of the Gurdwara Society to accept or refuse membership applications, but the Applicants argue that authority has been applied for political reasons.

The Applicants claim that an entrenched group of Gurdwara members make up and control the Gurdwara Society Executive Committee and the Religious Committee, and this bloc of persons (the insiders) thereby manage and control the affairs of the Gurdwara Society. [ 8 ] In particular, the Applicants say they have proved that since 2010 the Religious Committee has refused the applications of 80 qualified persons, principally because they are perceived as supporting the Applicants (outsiders) in their efforts to take over the management and control of the Gurdwara Society.

The Applicants observe that during this period the Religious Committee accepted 15 no-better qualified persons as members, and argues these applications were approved because these persons support the insider group. [ 9 ] The Applicants as an alternative to dissolution propose that this court order a process by which membership in the Gurdwara Society is determined on a basis other than social affiliation, that this court order: 1. an independent but religious Sikh person or persons to decide membership applications and to fix the membership roll of the Gurdwara Society, then 2. new elections of the Executive Committee. [ 10 ] The Applicants argue that the Society bylaws will require a bold but necessary step, and the court must actually revise the bylaws to provide for the election of the Executive Committee by the membership at large, in accordance with parliamentary procedure which is said to govern the proceedings of the Gurdwara Society. [ 11 ] The Applicants point out an apparent structural defect in the manner in which the bylaws provide for selection of the Executive Committee and Religious Committee.

The argument is that without the court’s intervention the present system whereby the Executive Committee is appointed by the Religious Committee and in turn, the replacement members of the Religious Committee (two per year out of five for a two year term) are appointed subject to approval of the general membership would, if the general membership refused the appointments, lead to inability of the insiders to appoint the members of the Religious Committee and in turn a complete inability to appoint persons to management, whether on the Executive Committee or the Religious Committee.

At that point the court, it would appear, could only remedy the power vacuum by dissolving the Gurdwara Society. The alternative is a court-ordered amendment of the bylaws to address this issue. [ 12 ] The Respondent, on the membership question, argues that the Applicants have failed to prove oppression of the Applicants (the outsiders). The Religious Committee acted properly when it decided to accept or reject applications for membership. In particular, the Respondent says that prospective members, as part of qualification, must subscribe to the objects and bylaws of the Gurdwara Society.

The objectives are stated in the incorporating document and, not surprisingly, are directed at maintaining and promoting the Sikh religion. Therefore, the decision to admit someone to membership is a decision made by the Religious Committee, and that decision is principally based on the religious tenets and activities of the prospective member. The Respondents argue it is a well understood legal principle that the decision whether a person is an upstanding member of any religion is a decision best left to religious authorities rather than legal authorities.

The decisions of the Religious Committee, in this case, should attract a great deal of deference. The courts, ill- equipped to make that kind of decision, should not interfere on the question of the membership list. [ 13 ] Even if the court decided the membership list is the product of oppression of the Applicants and their supporters and a formula must be devised to revise the membership list in an independent, non-oppressive manner, the Respondents argue the bylaws should be interpreted as giving the Religious Committee the power to appoint the Executive Committee without the approval of the general membership.

Secondly, the appointment of replacement members of the Religious Committee is to be made by the Executive Committee subject only to approval of the general assembly. III. Documents [ 14 ] I reproduce parts of the documents which are relevant. [ 15 ] An 11 page document headed “The Constitution, Objects and Bylaws of Siri Guru Nanak Sikh Gurdwara of Alberta” was filed with the Registrar of Corporations on June 11, 1990. The following portions are relevant. Under the Objects, I reproduce the enumeration of the Objects in full:

(

a) To maintain and promote the Sikh religion, its teachings, identity, social, cultural and philosophical heritage. (

b) To foster the spirit of fellowship and brotherhood among the followers of the Sikh religion and to promote goodwill and understanding towards their fellow Canadians of all creeds and origins. (

c) To instruct the children and the youth of the Sikh community and any other person wishing to get instruction in the Panjabi language. The Gurdwara will support those organizations which are working actively to promote and maintain the Panjabi culture and language (such as radio and T.V. programs). (

d) To work for the general welfare of the Sikhs, the Gurdwara will actively liaise with the Govenmental (sic) and non-governmental agencies to apprise them of the interests and aspirations of the Sikhs. (

e) The Gurdwara will encourage, develop and maintain an amicable relationship with local, provincial, national and international Sikh organizations; which are working to promote and protect Sikhism and its interests. It will also provide supportive role, financial and otherwise to such organizations. (

f) The Gurdwara will undertake the projects to provide classes, workshops and seminars on different subjects and trades which further the aims of the Gurdwara. (

g) To secure, collect, publish and disseminate information on the Sikh religion and on the Sikhs here and abroad. (

h) To carry out its objectives, the Gurdwara will abide by the ethics and tenets of the Sikhism as ordained by the Ten Gurus (Guru Nanak Dev Ji to Guru Gobind Singh Ji) enshrined in the eternal Guru Garanth Sahib (The Holy Scripture of the Sikhs) and the Sikh Reht Maryada ("Guide to the Sikh Way of Life" approved in 1936 by the S.G.P.C., Amritsar). (

i) To enhance and share the Sikh culture with fellow Canadians with a view to promoting multiculturalism. [ 16 ] The following excerpts from the Bylaws are relevant: 2. MEMBERSHIP (

a) Any person who is 18 years and over, and lives in Red Deer and North of that in Alberta and subscribes to the objects and bylaws of the Gurdwara may apply for its membership. Any Applicant whose activities are contrary to the objects of the Gurdwara may be refused membership by the Executive Committee of the Gurdwara. . . . 3. ELECTION OF THE EXECUTIVE COMMITTEE (

a) The selection of the Executive Committee shall be held on the first Sunday of April each year. The Executive Committee shall hand over all power to the Religious Committee as appointer for the selection. (

b) The Executive Committee shall consist of the President, the Vice-President, the Secretary, the Joint Secretary, the Treasurer, the Assistant Treasurer and three members-at-large. Two of the members-at-large must be ladies. The President, the Vice-President and the Secretary must be Amridhari Sikhs. All members of the Executive Committee not mentioned heretofore shall be as prescribed by the Sikh Rehat Maryada (the specifications of which are per paragraph (

h) of the objectives). . . . (

g) No office bearer shall hold the same position in the Executive Committee for more than two consecutive years. (

h) The new Executive Committee shall take over the charge of responsibilities from May 1 st each year. . . . 5. THE EXECUTIVE COMMITTEE (

a) The officials of the Executive Committee shall have full control of the manangement(sic), maintenance, operation and care of the lands and premises held by the Gurdwara. . . .

(

g) The quorum for the Executive Committee meetings shall be five members. . . . 6. RELIGIOUS COMMITTEE (

a) There shall be a Religious Committee consisting of five members, one of them shall preferably be the Granthi of the Gurdwara, and all of them shall be Amritdhari Sikhs. (

b) The Religious Committee shall be appointed by the Executive Committee with the approval of the General Body from the proposed names, in writing, by the members of the Gurdwara. (

c) Members of the Religious Committee shall be appointed for a two-year term and two members shall be replaced each year at the annual meeting of the General Body. . . . (

f) The decision of the Religious Committee shall be considered binding to the Executive Committee or the concerned members as the case may be. (

g) In the case of dissolution of the Executive, the Religious Committee shall carry on the operations of the Gurdwara as trustee. In such a case, the Religious Committee shall call for the election of the Executive Committee, for the remaining term, within 60 days. (

h) If any new member of the Religious Committee resigns, the other four members can appoint a new member for the Religious Committee until the next meeting of General Body. . . . 10. FUNDS, ACCOUNTING AND AUDITING . . . (

d) Each member of the Executive Committee shall have access to the Gurdwara’s books, accounts and records for inspection. (

e) Any member in good standing may inspect the books, accounts and records of the Gurdwara by giving at least seven days notice. . . . 11. THE MEETINGS . . .

(

c) Any member in good standing shall have the right to vote at all meetings. However, at the meeting held for the election of the Executive Committee, the member must have paid his membership dues before January 13 th of the year in which such elections are held. In case of a by-election or re-election of the Executive Committee, the member must have paid his membership dues 30 days prior to the election date. (

d) The quorum for all general and annual meetings shall be at least one-tenth of the total membership or 51 members, whichever is greater. . . . (

h) At any meeting, a resolution put to vote shall be decided by show of hands, unless a secret ballot is demanded by at least 25% of the members present. Unless a secret ballot is so demanded, the chairperson shall declare that a resolution has, on a show of hands, been carried or defeated. An entry to that effect in the minute book of the Gurdwara shall be conculsive(sic) evidence to the fact without proof of the number of proporation(sic) of the votes recorded in favour or against the resolution.

The vote shall be counted under the supervision of two or more scrutineers appointed by the chairperson of the meeting at which the vote was authorized. The result of the vote shall be communicated by the chairperson to the members as soon as possible. (

i) In the case of a tie of votes, the chairperson shall cast the deciding vote. . . . 12. AMENDMENTS TO THE BY-LAWS (

a) The By-Laws of the Gurdwara shall not be rescinded, altered or added to except by “Special Resolution” of the Gurdwara. Special Resolution means (

i) a resolution passed (

A) at a General body meeting of which not less than twenty-one (21) days notice specifying the intention to propose the resolution has been duly given, and (

B) by the vote of not less than seventy-five percent (75%) of those members who, if entitled to do so, vote in person. (ii) a resolution proposed and passed as a Special Resolution at a general body meeting of which less than twenty-one (21) days notice has been given, if all the members entitled to attend and vote at the general meeting so agree, or (iii) a resolution consented to in writing by all the members who would have been entitled at a general meeting to vote on the resolution in person. (

b) The quorum for such meetings shall be at least one-third of the total membership. (

c) No rescission or alteration of or addition to a By-Law has effect until it has been registered by the registrar.

. . . [ 17 ] Also attached as Page 9 with the note “June 12/90 insertion of “Constitution”, Per. Ranjit Singh Sandhu imp: PORTIONS OF THE BYLAWS WHICH MAY NOT BE CHANGED BY ANY FUTURE EXECUTIVE COMMITTEE OR GENERAL BODY: 1. Any future Executive Committee or general body may not ammend(sic) or alter Sub-section (

a) of Paragraph 3 “Election of the Executive Committee: of the bylaws in any way that encroaches on the rights given to the Religious Committee by this

section of the bylaws. 2. Any future Executive Committee or general body may not ammend(sic) or alter Sub-section (

b) of Paragraph 3 “Election of the Executive Committee” of the bylaws in any way that encroaches on the eligibility requirement of the President, Vice President and the Secretary. [ 18 ] A document headed “Resolution of Siri Guru Nanak Sikh Gurdwara of Alberta, Edmonton” filed with the Corporate Registry on June 16 th , 1992: Be it resolved as a resolution of the members of Siri Guru Nanak Sikh Gurdwara of Alberta, Edmonton, that the constitution of the religious Society be changed as follows: 1.

To change clause 2 Membership to read” Any person 18 years and older living in and North of Red Deer in Alberta only and subscribes to the objects and bylaws of the Gurdwara may apply for membership. Any applicant whose activities are contrary to the objects of the Gurdwara may be refused membership by the Executive Committee of the Gurdwara. All applications for membership will be considered by the Executive and if accepted, the applicant will be notified of acceptance.

The applicable membership fee will be held on account by the Gurdwara until a decision on acceptance or refusal of a membership application is made. 2. To change the wording of Clause 2 Membership (

B) I and II to read: I. The Executive Committee will decide the membership fee from time to time. The membership year shall be from May 1 st to April 30 th each year. II. Any person who has been a member for 3 consecutive years may apply to become a life member of the Gurdwara. The membership fee will be not less than $1000.00. We hereby certify that the above resolution was duly passed as a resolution at a meeting of the members of the Siri Guru Nanak Sikh Gurdwara of Alberta, Edmonton held on Feb 23 – 1992.

Dated at the City of Edmonton in the Province of Alberta, this 14 day of June 1992. [ 19 ] A portion of a document headed “Resolution of Siri Guru Nanak Sikh Gurdwara of Alberta, Edmonton” filed with the Corporate Registry on Nov 7, 1994: “Be it resolved as a resolution of the members of Siri Guru Nanak Sikh Gurdwara of Alberta, Edmonton, That the constitution of the religious society be changed as follows.” 1. The changes made to clause 2 of the constitution “Membership” on Feb. 23 rd , 1992 and registered with the Registrar of Corporations on June 16 th , 1992 should be considered void effective immediately. 2.

To change clause 2 of the constitution “Membership” (

a) to read: Any person 18 (eighteen) years and older living in and north of Red Deer in Alberta may apply for membership. Any applicant whose activities are contrary to the objects of the Gurdwara may be refused membership by Religious Committee of the institution. All applications for membership will be considered by the Religious Committee and at least three members of the Religious Committee will sign the acceptance. In case three members of the Religious Committee can not get together for any reason, the president of the

institution can act as one member of the Religious Committee. The applicant will be verbally notified of acceptance or refusal of the membership within 3 (three) weeks from the date the application received. . . . We the members of the Executive Committee of the institution, hereby certify that the above resolution was duly passed by the members of the Siri Guru Nanak Sikh Gurdwara of Alberta, Edmonton at a General Body meeting held on October 23 rd , 1994.

Signed this dated 30 th day of October 1994 in Edmonton, Province of Alberta President Baldev Singh Hundle Vice President Karnail Singh Mangat Secretary Joginder Singh Pannu Joint Secretary Inderjit Singh Kundan Asst. Treasurer Balbir Kaur Sandhu Member at large Sarwan Singh Dhaliwal Member at large Balbir Kaur Bathh Member at large Balbir Kaur IV. Legislation [ 20 ] The relevant portions of the Alberta legislation are: 1.

Paragraph 16 of the Religious Societies’ Land Act , RSA 200, c R-15: Constitution and bylaws 16(1) An incorporated congregation has the power by a resolution passed at a meeting of its members duly called for that purpose (

a) to amend its constitution, and (

b) to make, amend, vary and rescind bylaws regulating the conduct of its officers and servants and providing for the management of its affairs.

(2) A copy of every resolution, bylaw or amendment certified to be correct by the president or chair, and the secretary or clerk of the congregation, shall be delivered to the Registrar for registration by the Registrar.

(3) The Registrar, on being satisfied that the resolution, bylaw or amendment has been duly passed and that it is proper to do so, shall register it and on registration the resolution, bylaw or amendment takes effect from the date of the passing of it; otherwise the resolution, bylaw or amendment has no effect. 2.

Parts of Paragraph 3 and Paragraph 8 of the Judicature Act , RSA 2000, c J-2: Additional powers of Court . . . 5(3) For the purpose of removing any doubt, but not so as to restrict the generality of subsections (1) and (2), it is declared that the Court has the like jurisdiction and powers that by the laws of England were, on July 15, 1870, possessed and exercised by the Court of Chancery in England in respect of . . .

(

d) compelling specific performance of agreements and contracts, . . . (

i) the administration of justice where there exists no adequate remedy at law, and . . .

(4) The rules of decision in matters mentioned in subsection (3), except where otherwise provided, shall be the same as governed the Court of Chancery in England in like cases on July 15, 1870. . . .

General jurisdiction 8 The Court in the exercise of its jurisdiction in every proceeding pending before it has power to grant and shall grant, either absolutely or on any reasonable terms and conditions that seem just to the Court, all remedies whatsoever to which any of the parties to the proceeding may appear to be entitled in respect of any and every legal or equitable claim properly brought forward by them in the proceeding, so that as far as possible all matters in controversy between the parties can be completely determined and all multiplicity of legal proceedings concerning those matters avoided. 3.

Parts of

Part 3,

Part 17 and

Part 19 of the Business Corporations Act , RSA 2000, c B-9: Restriction on powers . . . 17(2) A corporation shall not carry on any business or exercise any power that it is restricted by its articles from carrying on or exercising, nor shall the corporation exercise any of its powers in a manner contrary to its articles. . . . Dissolution by court order 214(1) The Registrar or any interested person may apply to the Court for an order dissolving a corporation if the corporation has . . . (

b) contravened section 17(2), . . . Other grounds for liquidation and dissolution pursuant to court order

215(1) The Court may order the liquidation and dissolution of a corporation or any of its affiliated corporations on the application of a shareholder, (

a) if the Court is satisfied that in respect of a corporation or any of its affiliates (

i) any act or omission of the corporation or any of its affiliates effects a result, . . . (iii) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, or (

b) if the Court is satisfied that . . . (ii) it is just and equitable that the corporation should be liquidated and dissolved.

(2) On an application under this section, the Court may make any order under this

section or

section 242 it thinks fit. Relief by Court on the ground of oppression or unfairness 242(1) A complainant may apply to the Court for an order under this section.

(2) If, on an application under subsection (1), the Court is satisfied that in respect of a corporation or any of its affiliates (

a) any act or omission of the corporation or any of its affiliates effects a result, (

b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or (

c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, the Court may make an order to rectify the matters complained of.

(3) In connection with an application under this section, the Court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing, any or all of the following: (

a) an order restraining the conduct complained of;

. . . (

c) an order to regulate a corporation’s affairs by amending the articles or bylaws; . . . (

f) an order appointing directors in place of or in addition to all or any of the directors then in office; . . . V. Evidence [ 21 ] The following affidavits were filed: By the Applicants on August 20, 2012 : 1. Sakattar Singh Sandhu, an applicant; 2. Baldev Singh Hundle, an applicant; 3. Avtar Singh Gill, a member of the Gurdwara (temple) politically allied with the Applicants; 4. Butta Singh Gill, a member of the Gurdwara politically allied with the Applicants; By the Respondent on November 5, 2012 : 5. Bikkar Singh Randhawa, a former member on several occasions of the Executive Committee.

He is allied with the current insider group who de facto control the society as members of the Executive Committee/or Religious Committee. By the Applicants on September 13, 2013 : 6. Joginder S. Pannu, member of the Gurdwara politically allied with the Applicants. By the Respondent on September 27, 2013 : 7.

Jarnail Singh Randhawa, member of the Gurdwara, member of the Religious Committee who in 2010 and 2011 participated in the rejection of 80 membership applications of persons allied with the Applicants. [ 22 ] For clarity, I will refer to the affiants as Sandhu, Hundle, Avtar Gill, Butta Gill, Bikkar Randhawa, Pannu, and Jarnail Randhawa. [ 23 ] All but Jarnail Randhawa were questioned on their affidavit. The last questioning, that of Pannu, was held on September 23, 2013.

The affidavit of Jarnail Randhawa was filed September 27, 2013, the Friday before October 4, 2013 when the application was set to be heard and did in fact commence to be heard. The Respondent made much in argument of the fact this affidavit was not contested by questioning so it remained unchallenged. As it turns out, the affidavit of Jarnail Randhawa should not have been filed at all without obtaining a fiat from the court. [ 24 ] In May of 2013, the Trial Co-ordinator sent a message by fax to both counsel advising that October 4, 2013 was set for this special application.

The note also reminded them of the deadlines imposed by Civil Practice Note #2 so that the deadline for filing briefs and authorities was September 13, 2013 for the Applicants and September 20, 2013 for the Respondent. Paragraph 12 of Practice Note #2 states: 12.

Without leave of the judge or master assigned to the application or, in the absence of that person, another judge or master, counsel may not rely on briefs filed in respect of previous applications in lieu of new briefs, or file supplemental briefs or other materials after the deadline for filing and service of the party’s materials set out in paragraph 9. The deadlines set out by the Trial Co-ordinator are those provided in paragraph 9. [ 25 ] No fiat was obtained from me or another judge to permit the filing of this affidavit on September 27, 2013.

Given the breach of the filing deadlines I do not consider this an uncontradicted affidavit, but rather place very restricted weight on its contents and in particular paragraph 11. I note: 1. counsel for the Applicants is from Vancouver, B.C., and conducting questioning on that affidavit would have been possible had the affidavit been filed by September 20 th deadline, and then the affiant could have been questioned on September 23 rd when counsel from Vancouver was in Edmonton to attend the questioning of Pannu;

2. the most relevant paragraph 11 of Jarnail Randhawa’s affidavit was almost word-for-word a repetition of paragraph 20 of Bikkar Randhawa’s affidavit of November 5, 2012; and 3. the questioning was held on February 26, 2013 seriously brought into question the truth of paragraph 20 of Bikkar Randhawa, affidavit. I put almost no weight on paragraph 11 of Jarnail Randhawa’s affidavit. Certainly, I do find the assertion in paragraph 11, so general and lacking in individual specificity, to be an affidavit standing uncontradicted. 1.

Allegation of Bias in rejecting 80 membership applications by persons politically allied with the Applicants [ 26 ] There may be legitimate question as to whether the October 30, 1994 amendment by a Special Resolution of paragraph 11(2) in the original bylaws complies with the requirements of bylaw paragraph 12 (a resolution passed at a general body meeting with 21 days’ notice of intention to pass the resolution and where 75% of the members at meetings have voted in favour of the motion). There may also be a legitimate challenge to the resolution filed June 12, 1990 which purports to enshrine subparagraphs (

a) and (

b) of paragraph 3 “Election of the Executive Committee” as bylaws that cannot be changed by “any future Executive Committee or general body” because that contradicts paragraph 12 of the original bylaws which states under the heading “Amendments to the By-laws” that, indeed, there is a process to change the bylaws. [ 27 ] The net effect of these amendments is that the Religious Committee rather than the Executive Committee decides what membership applications are accepted.

However, these amendments do not affect the criteria on which membership may be refused, as in all forms the rules governing membership provide that any person who is 18 years and older and lives in Red Deer and north of that may apply for membership in the Gurdwara Society.

The original bylaws states that “Any applicant whose activities are contrary to the objects of the Gurdwara may be refused membership by the Executive Committee of the Gurdwara.” The post-amendment change, as noted, provides that the Religious Committee is the decision maker. [ 28 ] The clear reference to the objectives of the Gurdwara, which define the positive objectives of “maintaining and promoting the Sikh religion, its teaching, identity, social, cultural and philosophical heritage” indicates that activities inconsistent with those religious tenets are a valid ground to refuse a membership application.

In my opinion, the amendments purporting to clarify that: 1. the Religious Committee has the right to refuse membership, and 2. clarifying that an applicant must positively subscribe to the objects and bylaws of the Gurdwara, and not simply an obligation to not to act contrary to the objectives, simply mean that an appropriate membership applicant must be found to be active subscribers to the objectives of the Gurdwara. [ 29 ] I think the bylaws are sufficiently clear to indicate that during the Society’s existence either the Executive Committee or the Religious Committee had the authority to refuse membership.

Therefore, since there is uncontradicted evidence that the membership admission and refusal decisions of the Religious Committee was made by quorum (3 of the 5 members), then those decisions should be upheld unless the Religious Committee’s decision was as a result of bias or based on improper considerations; that is, in breach of procedural fairness. 2. The Membership Decision (

a) Affidavit of Sakattar Singh Sandhu [ 30 ] In his affidavit, Sandhu, one of the two Applicants, deposed that he had in the past been a member of the Society’s Religious Committee and is a member of the Society. He stated he would like to participate in the governance of the Gurdwara in the future. On April 3, 2011, without holding an election, Jarnail Randhawa announced from the Gurdwara’s stage that the Religious Committee had selected named persons as the Executive Committee.

The same applied on April 1, 2012, when, without an election being held, Gurgeet Singh of the Society’s Religious Committee announced from the Gurdwara stage that the Religious Committee had selected named persons as Executive members. [ 31 ] Sandhu further states that a number of his peers in the Sikh community, who are members of the Society’s congregation, have sought to join the Society. He says that over 80 persons who are supportive of his seeking a position on the Society’s Executive Committee have applied for membership. He refers to these applicants as “the Sandhu applicants”.

All of these Sandhu applicants were refused membership. Sandhu examined the register of members and states that since December 2010, 15 persons have been made members and none of these are political supporters of himself. It is his perception that the group of persons who control the Society are denying membership to persons who they (the insider group) believe would support his candidacy for an Executive position or the candidacy of those associated with him in the community including the co-Applicant, Baldev Hundle. (

b) Affidavit of Baldev Singh Hundle [ 32 ] Hundle, the co-Applicant, confirms the fact that 80 applicants who are politically aligned with he and Sandhu have been refused membership. He states his belief that the Society’s governance is using the Society’s membership application process to unfairly exclude members who are eligible for membership but who may support a competing group of candidates for election to the Executive Committee or the Religious Committee. Specifically, he refers to 25 membership applications he has submitted which have been refused without any reason being given for rejection.

(

c) Affidavit of Avtar Singh Gill [ 33 ] Avtar Gill is a member of the congregation of the Gurdwara (temple) but he is not a member of the Society. He deposes that there are many members of the congregation that are political opponents of the current insider group who run the Society’s Executive Committee and Religious Committee. He personally gathered and presented his own application, that of his brother Butta Gill, and 48 others. All were rejected by the Society’s Religious Committee without any reason being given.

He adds to the Applicants’ affidavits his belief that the insider group is using the membership process to unfairly exclude members of the congregation who are eligible for membership but may support a competing group of candidates for election to the Executive Committee or the Religious Committee. It is significant that he deposes that he has been attending the Gurdwara regularly since 1993. (

d) Affidavit of Butta Singh Gill [ 34 ] Butta Gill is a member of the congregation of the Gurdwara, but not the Society, and has attended the Gurdwara regularly, as part of the congregation, since approximately 1992. He deposes that on January 2, 2011, he submitted to Jarnail Singh Randhawa, a member of the Society’s Religious Committee, seven applications including the $500.00 membership fee for each application. All these applicants were politically aligned with Applicants and all were refused membership without any reason being given.

He also confirms his perception that basically there is a power struggle and the insiders are using the membership process to exclude political opponents and to maintain power and control of the Society. (

e) Affidavit of Bikkar Singh Randhawa [ 35 ] Bikkar Randhawa is the Assistant Treasurer of the Respondent Society. He deposes that, among others, the applicants have commenced various legal proceedings including an originating application filed March 16, 2011. He states that application was substantially the same as the within action involving common issues of fact and law. I note the applicants were numerous, at least 70 by my count. The Respondents were named persons including Joginder Singh Pannu and Bikkar Randhawa who I recognize as part of the insider group at that time.

It would appear from reading the originating application that the complaint about the Applicants is that they were being wrongfully, undemocratically being denied membership. That was the same complaint as in the present application. That application was apparently abandoned in March of 2011. [ 36 ] I make two observations. Firstly, the Gurdwara Society was not made a party to the proceedings which, in my opinion, precluded any remedy being granted by this court based on the Religious Societies Act which incorporates the remedies under the Alberta Corporations Act .

Secondly, evidence obtained from Bikkar Randhawa at the questioning on his affidavit shows that he considers the bringing of that action and the present action as evidence that the rejected applicants are engaging in activities which are contrary to the objectives of the Society which, of course, is a ground for rejection of applicants for membership. [ 37 ] Bikkar Randhawa’s affidavit goes on to describe the workings of the Society. He states that at a general meeting on January 9, 2011, the Applicants refused to sign the attendance sheet which was a requirement to participate at the meeting.

Paragraphs 14, 20, 21 and 22 of Bikkar Randhawa’s affidavit read: 14. To become a member of the Society, one must complete a membership application form and submit it to the Religious Committee for approval. As long as I have been a member of the Society, the Religious Committee's approach to assessing membership applications has been to review the degree to which the applicant participates in the affairs of the Gurdwara as part of the Gurdwara's congregation.

Specifically, the Religious Committee assesses the degree to which the applicant contributes to the equanimity of the congregation and the spirituality of the Gurdwara. Essentially, individuals who seek membership in the Society are expected to be actively involved with the Gurdwara and the congregation. Applicants must also be at least eighteen years of age and live in, or north, of Red Deer, Alberta. ... 20. I have been advised by members of the Religious Committee, and do verily believe, that the applications were assessed using the criteria outlined in paragraph 14 of this Affidavit.

The individuals were denied membership for one or more of the following reasons: (

a) The individuals are not members of the Gurdwara's congregation nor do they regularly attend religious services; (

b) The individuals are not known by members of the Society or are largely unfamiliar to them; (

c) The Religious Committee is not satisfied that the individuals share the values of the Gurdwara; and (

d) It is known by current members of the Society that certain individuals have engaged in behaviours adverse to the objects of the Society and its Bylaws. 21. Contrary to the allegations of the Applicants, I have been advised by members of the Religious Committee, and do verily believe, that the rejection of the 80 membership applications had nothing to do with Society politics and was wholly unrelated to Sandhu and Hundle's political aspirations within the Society. Many of the 80 individuals that applied for membership were effectively strangers to the Gurdwara.

A majority of them did not actively participate in the affairs of the Gurdwara or contribute to the equanimity of the congregation. 22. I verily believe that all denials of membership applications were made in good faith and in accordance with the Society's Bylaws. [ 38 ] Paragraph 30 of Bikkar Randhawa’s affidavit reads: 30. I verily believe that this action as started as a hostile attempt to take over the Society, the Executive and Religious Committee.

I verily believe that the intention of this court application is to cause disruption to the serenity and solemnity of the religious experience, which the Society is trying in good faith to provide its members and the general public.

[ 39 ] I note paragraph 20 states that he has been advised by members of the Religious Committee and does verily believe that the applicants were assessed using the criteria outlined in paragraph 14 of the affidavit. The fact that the affidavit was on information and belief is surprising.

No reason was given why the persons actually making the decisions did not give evidence, a failure which the Respondent attempted to remedy at the eleventh hour by filing the affidavit of Jarnail Randhawa who is a member of the Religious Committee which considered and rejected the 80 disputed membership applicants. [ 40 ] The balance of the affidavit can be reduced to a statement that in the first week of March, prior to the annual meeting on the first Sunday of April each year, a notice is given to the congregation that if they wished to become members of the Executive Committee they should apply before the end of March and the Religious Committee makes its selection of the Executive Committee on the first Sunday of April.

He further deposes that, in fact, in recent years there have been less applicants for membership on the Executive Committee than there are positions and the Religious Committee has had to scramble to find persons prepared to serve so that all positions have been filled by acclamation. I believe this is an explanation why no elections were held. [ 41 ] In paragraph 25 of his affidavit, Bakkar Randhawa deposes the Executive Committee has never disposed of an application submitted by Hundle to serve on the Executive Committee.

The reference to the Executive Committee in this paragraph may simply be an error as the allegation which I will refer to later is that a member of the Religious Committee rejected Hundle’s application out of hand. I note that although paragraph 30 of the affidavit refers to the court application as an attempt to cause disruption to the serenity and solemnity of the religious experience, it also confirms what the Applicants say that this is a contest for political control of the Executive and Religious Committee. [ 42 ] Bakkar Randhawa’s affidavit was tested by questioning.

Not surprisingly, the questioning on the affidavit followed upon the statement that memberships of the 80 applicants were rejected for one or more of four reasons (without specifying with respect to anyone of the 80 which of the four grounds applied) by inquiring as to what were the specific reasons of the Religious Committee. Bakkar Randhawa was asked the following question and made the following answer: Q. What are the Gurdwara’s values? A. That we expect people to promote Sikhism, promote peace and harmony, show a respect for one another, be truthful. Truthful is very much emphasized, okay.

Truth is actually the cardinal Sikh principal, you should tell the truth, okay. And serve the congregation, the Gurdwara, to the best of your ability. Don’t create disharmony, don’t create friction, don’t accuse people if you don’t have evidence, don’t do things that are harmful to the interest of the Gurdwara, and don’t utter threats which are not relevant. These are some of the things that I think are the values. [ 43 ] With respect to a number of applicants for membership, Bikkar Randhawa stated these persons were not known to him to be regular attendees at religious services.

However, with respect to Butta Singh Gill, he confirmed that he does attend. He was then questioned about whether Butta Gill shares the values of the Gurdwara: Q. Are you aware of whether Mr. Gill shares the values of the Gurdwara? A. I don’t think so. Q. And why is that? A. If he did that he would not bring disharmony which he has been creating since 2010. Q. How has he created disharmony? What are you referring to? A. This would, according to elaboration, we have an individual who was forbidden to attend the Gurdwara. He, knowing that he was forbidden, brought him to the service. Q.

On one occasion or on more than one occasion? A. On that one occasion, we have to be calling police to evict him, and that create disharmony. People are annoyed that this happens. And even when he comes, you know, there is always, what do you call, creation of what you call disunity the way he talks, the way he presents himself. Q. All right. How about Manvir Kaur Gill? A. I don’t know who she is. Q. Okay. How about Prabhjyot Kaur Gill? A. They - - the Gill family, Buta Singh’s wife and Avtar Singh’s wife, and you can call that they attend regularly, yeah. Q. All right.

And do those other members of the Gill family, other than Mr. Buta Singh Gill, share the values of the Gurdwara? A. By association not. What I am saying is by association being husband, brother-in-law, whatever, they may not be sharing the values of the Gurdwara. Q. So as far as you know - - so you are willing to say these people are guilty by association, is what you are saying? A. Yeah. [ 44 ] The questioning went on, but basically many persons known to Bikkar Randhawa were said by him to not share the values of the Gurdwara “by association”.

In other words, being of the family or on the other side of the power struggle. With respect to many

persons, he simply did not know them well enough to say whether they shared the values of the Gurdwara except to say by association (which I took to mean association with the applicants); they did not share the values of the Gurdwara. (

f) Affidavit of Joginder S. Pannu [ 45 ] Joginder Pannu is a member of the Gurdwara Society and has been so seen about 1989. He has served on the Society’s Executive Committee including as President, Vice-President and Secretary. He sets out that there is an insider group and they, the insider group, “would never pick anyone that we [at this point in time Pannu was part of the insider group] viewed as a threat to the insiders group’s control of the Society to serve on the Executive Committee or the Religious Committee.” [ 46 ] Paragraph 13 of Pannu’s affidavit reads: 13.

Indeed, such opponents were excluded from the committees. For example, I recall that in 2001, the applicant Baldev Hundle, and three other members supporting him (Harninder Dhesi, Harjinder Gill and Satnam Minhas) submitted applications to serve on the Executive Committee. By this time, Baldev Hundle had fell out of favour with Jarnail Randhawa and Karnail Mangat. Jarnail Randhawa, who would receive applications from members interested in serving on the Executive Committee, told me that he had received the applications of Mr. Hundle and his supporters but threw them away.

Jarnail Randhawa, Karnail Mangat and I simply did not consider those applications. At the time, I did not object to this sort of thing taking place. However, over time, I grew uncomfortable with these types of unfair practices. [ 47 ] I note that Jarnail Randhawa’s affidavit sworn September 27, 2013, does not answer the specific allegation of Pannu in paragraph 13 that in 2001, Jarnail Randhawa told Joginder Pannu that he has received the applications of Mr. Hundle and his supporters but threw them away.

The closest he comes is to say that Sandhu and Hundle have not submitted applications to serve on these committees for years. (

g) Affidavit of Jarnail Singh Randhawa [ 48 ] Jarnail Randhawa is a member of the Religious Committee. His involvement in the City’s Sikh community predates the incorporation of the Society. As I wrote earlier, he repeats in paragraph 11 what Bikkar Randhawa had deposed to in his paragraph 20. He deposes to open conflict between the outsider group intimidating the insider group. He states in paragraph 13: 13. . . . The rejection of the 80 membership applications had nothing to do with Society politics and was wholly unrelated to Sandhu and Hundle’s political aspirations within the Society,”.

My finding is that actually the rejection has everything to do with Society politics. VI. Analysis [ 49 ] There are competing affidavits. I have considered whether this application for resolution should be set for trial of the issue whether the insider group, as represented by the Executive Committee, the Religious Committee, and their supporters, have rejected 80 membership applications for failing to support the objectives of the Society or have rejected them for political reasons because rejection permits the insider group to maintain political control of the Gurdwara Society.

Such a trial would, of course, allow the introduction of viva voce evidence and would allow for days of evidence but, in my opinion, it is not likely a judge after hearing viva voce evidence would be in a better position than I am to answer the basic question. [ 50 ] I believe the evidence clearly indicates that the Gurdwara Society Religious Committee has been rejecting membership applications by persons who meet the bylaw requirements, except that they belong to or are associated with the outside political bloc. [ 51 ] I first return to the objects of the Gurdwara Society as expressed in the bylaws.

This is not an insular group, but intended to: 1. “promote the Sikh religion” (Object A); 2. “foster fellowship and brotherhood” among Sikhs and “promote goodwill and understanding” towards all Canadians (Object B); 3. promote education in Panjabi to Sikhs “and any other person” (Object C); 4. cooperate with other Sikh organizations inside and outside Canada (Object E); 5. to gather and share information on Sikh people and religious (Object G); and 6. “to promote multiculturalism” via sharing of the Sikh culture (Object I). These objectives clearly indicate an open, public institution.

The religious conditions identified as the criteria for membership are also consistent with these objects, and Object H, which may be expressed as a requirement for religious orthodoxy. [ 52 ] With that context I must conclude that the Gurdwara Society insiders excluded potential members for reasons other than the objectives of the Society: 1. The affidavits filed by both sides to the conflict attest to the power struggle between the insider group and the outsider group for political control of the Gurdwara Society.

The affidavits filed by the Applicants clearly identifies all 15 of the new members as being associated with and supporters of the insider group. The affidavits filed by the Respondent do not deny this, nor do they deny that the 80 who were refused membership are politically aligned with the two applicants who seek executive positions on the Gurdwara’s Society’s

Executives. 2. Given the rejection of every one of the 80 applicants, it defies laws of probability that each and every member falls into one ofthe four categories.

In fact, Bikkar Randhawa, when confronted with names of persons he could not say were not regular attendees atchurch services, in saying some of them were engaged in activities contrary to the objectives of the Society, had to retreat to guilt byassociation with the applicants whose principal fault was that bringing of this application and the former application seeking redress foroppressive conduct of the insider group. [53] My conclusion is that the rejection of the 80 membership candidates was for political, not religious purposes. VII.

Remedy [54] I am aware of the statements of Justice Gonthier in Lakeside Colony of Hutterian Brethren v Hofer, (SCC),[1992] 3 SCR 165 at para. 6, 97 DLR (4th) 17 that: The Courts are slow to exercise jurisdiction over the question of membership in a voluntary association, especially a religious one. [55] I appreciate also Justice Gonthier’s reluctance to rely exclusively on the written documents without reference to the traditionand customs of the Hutterites and that voluntary associations are meant largely to govern themselves and to do so flexibly. [56] That does not mean that the jurisdiction of this court cannot extend in certain ways to supervision of organizations to which aperson is voluntarily affiliated, particularly religious organizations. “[I]f there is a justiciable right, then there must be a court competentto vindicate the right ...”: Canada (Human Rights Commission) v Canadian Liberty Net, (SCC), [1998] 1 SCR 626 atpara 32.

However, the Court of Appeal has made clear in Boucher v. Métis Nation of Alberta Assn., 2009 ABCA 5 at para 12, 448 A.R.185 that in the case of the inner workings of voluntary associations that jurisdiction is limited: ... I agree with the chambers judge that the usual standard of review and grounds for judicial review of public tribunals do not apply tothe Judiciary Council.

If quashing by court order is possible, it may be limited to breach of internal rules, lack of procedural fairness, orbad faith ... [57] The Applicants allege that the Religious Committee has not conformed to bylaws of the Gurdwara Society when it rejectedthe 80 outsider membership applications. That can be viewed either as a breach of the internal rules of the Society, or decision making inbad faith. [58] There is a conflict, a power struggle for management of the Gurdwara Society. There is no evidence before me that theconflict is a religious one such as a disagreement over

interpretation of scripture or dogma. There is no evidence that the Applicants wish,if they were in power, to run the religious aspect of the Society any differently. All that is before me is a power struggle which theinsider group, who control the Society, will continue to win so long as the court does not interfere in the membership process.

Thedispute is a temporal one. [59] I note that the courts in British Columbia have had to intervene in memberships disputes: Garcha v Khalsa Diwan Society -New Westminster, 2006 BCCA 140, 223 BCAC 295; Hara v Khalsa Diwan Society - New Westminster, [1998] BCJ No 2928 (QL), 84ACWS (3d) 873 (BCSC), affirmed 1999 BCCA 409; 90 ACWS (3d) 63, Narwal v British Columbia (Sikh Cultural Society); Goshal vBritish Columbia (Sikh Cultural Society) (1982), (BC SC), 38 BCLR 230, 16 ACWS (2d) 271, and this court in Kim vKim, 2009 ABQB 608. [60] It may be that the problem lies in the fact that in Sikh incorporated societies, there is no body or group of Sikhs to whommembers aggrieved by how governance is handled can appeal, leaving the courts as the only avenue of redress.

I conclude the Applicantshave shown that the Religious Executive which decided the 80 applications did so in a manner that shows bias and unfairly oppressed theapplicants and their supporters while permitting only applicants who supported the insider power group to be members. [61] The manipulation of the membership list is analogous to the grant of a stock option which resulted in one group ofshareholders becoming majority shareholders as happened in Noble v Keho Holdings Ltd., 1987 ABCA 84, 38 DLR (4th) 368.

That casealso found that equity would intervene on behalf of a shareholder excluded from management if he could prove some underlyingobligation allowing him management participation.

In this case, both Applicants are excluded from management because management isnot allowing their supporters to become members of the Society. [62] Winding up a society, while it is the ultimate remedy, is far too drastic a remedy in that if a sale of the assets, principally thetemple, were ordered, the temple would presumably be sold to the highest bidder; that is, to the faction which had the most money to bid.That may ultimately be the only solution but I believe the membership list question can be settled short of this draconian remedy. [63] I will name myself as case manager in this matter.

I do so mindful of the observations by Justice Veit in Latin AmericanSenior Citizens Cultural Assn. of Edmonton v Govea, 2013 ABQB 478 at para. 31 who referenced with approval the approach todispute resolution in social and religious organizations identified by Smith J in Hong v. Young Kwang Presbyterian Church ofVancouver, 2007 BCSC 502 at paras. 66-72, 30 BLR (4th) 254.

A focus on consensus building, flexibility, and good-will is appropriatein situations such as this, rather than overly formalistic approaches to entities whose organizing documents may be a consequence of laypersons working in a language other than English. As Justice Veit concludes at para 56: ... A case management judge could help the parties to devise ways in this these disputes, as well as any other procedural disputes whichremain, could be resolved in the most effective and the least costly manner.

Indeed, a case manager could assist the parties indetermining what types of process the parties might now engage in to resolve their overall differences.

1. The Membership List [ 64 ] I direct that a new Gurdwawa Society membership list be prepared. All persons who are currently on the list of members of the Gurdwara Society are entered on this new court-ordered list as members. I further direct additional members shall be added to the list using the following procedure: 1. The parties shall endeavor to name a person or an odd numbered group of persons of the Sikh faith to decide upon and process new applications. If they fail to agree on a person or persons, then each party shall submit the name of one person, a member of the Sikh faith.

The two persons so selected shall select a third. The person or persons identified by either mechanism is the Arbitration Board. The Arbitration Board shall adjudicate upon new membership applications. The decision shall be by majority vote of the group. 2. The qualification for membership shall be as set out in the bylaws of the Society. 3. There will be case management. I will be the case manager but if I am unable to case manage because of absence, then Justice Paul Belzil will be the alternate case manager. Associate Chief Justice Rooke will designate myself and Justice Belzil as case managers. 4.

No new applications will be received until the Arbitration Board has settled the list as at the date of this judgment. The case manager and the Arbitration Board will consult to set a period in which new membership applications will be accepted. 5. Once the date for new applications for membership has passed, the Arbitration Board shall evaluate and either accept or reject the applications. In doing so, the Arbitration Board may permit such representations concerning eligibility as they decide are reasonably necessary.

The Arbitration Board shall then fix the membership list and that will be the list of members allowed to vote at the elections of the Executive Committee. 2. Elections of the Executive Committee [ 65 ] The parties acknowledge that the bylaws are ambiguous. The overall scheme of the bylaws seems to have been the result of lay persons copying from a precedent which contemplated selection of the Executive Committee by an election. Paragraph 3 of the bylaws is headed “ 3. ELECTION OF THE EXECUTIVE COMMITTEE”.

What follows, however, is not provision for an election at all: The selection of the Executive Committee shall be held on the first Sunday of each. The Executive Committee shall hand over all power to the Religious Committee as appointer for the selection . [Emphasis added.] [ 66 ] My comment about selecting an

interpretation which allowed for election of the Executive Committee and amending only paragraph 3(

a) and (

b) without changing paragraph 11 (

c) which specifically provides: However, at a meeting held for the election of the Executive Committee, the member must have paid his membership dues before January 13 th of the year in which such elections are held. In case of a by-election or re-election of the Executive Committee, the member must have paid his membership dues 30 days prior to the election. is borne out by the fact 11(

c) makes no sense if the Executive Committee is to be appointed by the Religious Committee. [ 67 ] The June 12, 1990 insertion of “Constitution” legally passed or not, purports to enshrine forever in the Constitution a prohibition against amendment to subsection (

a) of paragraph 3 “that encroaches on the rights given to the Religious Committee by this

section of the bylaws.” [ 68 ] There are two approaches to

interpretation of

section 3(a). One is to read 3(

a) as contradicting the heading “ELECTION” and reading the words “Selection” and “appointer for the Selection” as giving the Religious Committee the right to oversee an election of the Executive Committee by the Religious Committee. The second

interpretation is that the word “Election” is a misnomer and all the bylaws did was grant to the Religious Committee the right to select the Executive Committee giving no right to the membership to elect the Executive Committee. This latter

interpretation seems more consistent with the somewhat ambiguous juxtaposition of the words “Election, Selection, appointer for the selection”. [ 69 ] There are other components of the bylaws that lead to an opposite conclusion. Clause 6(

g) provides that if the Executive Committee is dissolved then the Religious Committee “...shall call for the election of the Executive Committee, for the remaining term, within 60 days.” Similarly, clause 11(

c) states that membership dues must be paid 30 days prior to “... a by-election or re-election of the Executive Committee ...”. [ 70 ] There is a third option granted by s. 242(3) of the Business Corporations Act . 242(3) In connection with an application under this section, the Court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing, any or all of the following: ... (

c) an order to regulate a corporation’s affairs by amending the articles or bylaws; ... [ 71 ] This solution is somewhat radical but in exercising my discretion to amend or not the bylaws, I consider the result if I interpret the bylaws as not giving any power to the membership to select the Executive Committee. The Religious Committee consists of five members, one of whom is preferably the Granthi of Gurdwara. I was told the Granthi is the equivalent of a pastor. The other four members are drawn from the membership.

Two of these four members are replaced every year and appointed for a two-year term with “the approval of the general body from the proposed names, in writing, by the members of the Gurdwara”(6(b)). The two members are

replaced each year at the annual meeting of the general body (6(e)). [72] The bylaws clearly provide that the Religious Committee is paramount and can overrule the Executive Committee. TheReligious Committee is selected by the Executive Committee, subject to membership approval. The Gurdwara Society argues that theExecutive Committee is selected by the Religious Committee, and for the purposes of this analysis I will presume that is true.

If so, thenthat leads to a fatal defect in the leadership structure of this institution. [73] In practice, the minutes show that the new members of the Religious Committee are proposed and approved at the GurdwaraSociety annual meeting. The Executive Committee proposes two names to replace the outgoing members of the Religious Committee.The minutes of the meeting then have the notation “approved” which I take to be approval, likely by a show of hands.

If the ReligiousCommittee appoints the Executive Committee then the only way the membership can have a say in the selection of management is torefuse to approve the two names proposed by the Religious Committee at the annual meeting. [74] I note the bylaws have no mechanism to address this event. Further, clause 6(

h) indicates the intention that the ReligiousCommittee composition is to always remain subject to membership approval: 6(

h) If any new member of the Religious Committee resigns, the other four members can appoint a new member for the ReligiousCommittee until the next meeting of General Body. [Emphasis added.] In this scenario an understrength Religious Committee member can appoint a replacement Religious Committee member, but only untilthe new general meeting where that Religious Committee member will be subject to Society membership approval. I also note that clause6(

h) provides no remedy to the scenario in which the membership rejected new proposed Religious Committee candidates, both on anquorum (four member) or causal (resignation) basis. [75] Presumably, if the Gurdwara Society membership were to reject proposed replacements to the Religious Committee then theReligious Committee would then have only three members, still a quorum.

However, if at the next annual meeting, the membershipagain refused to approve the two nominees, the Religious Committee would have only one member, not a quorum, and would then beunable, on the first Sunday of April in the following year, to replace the Executive Committee leaving no management and no way ofreplacing either committee of management. That power vacuum would be clear grounds for an application to dissolve the Society, whichI found to be too drastic a remedy.

However, in the case where management is unable to govern, that is the solution to which, ofnecessity, the courts will resort. [76] As I have noted the bylaws are admittedly ambiguous on whether or not the bylaws indicate that the Executive Committee iselected by the membership or selected by the Religious Committee.

As Houghton LJSC observed in Narwal v British Columbia (SikhCultural Society); Goshal v British Columbia (Sikh Cultural Society) at para 12: The by-laws and constitution of the Sikh Cultural Society do not purport to cover all eventualities to be met with in the life of the society.The document should be interpreted reasonably and in such a way as to avoid an absurd result.

See also Rhee v Korean Society British Columbia for Fraternity & Culture, [1993] BCJ No 1048 (QL) at para 14, (BCSC). [77] The analysis I have conducted indicates that if the Gurdwara Society’s position is correct then the only way that the Societymembership can remove an entrenched group from the Society administration is by placing the Society into a scenario where the Societymust be liquidated. That is both an absurd result and contrary to the Objects identified in the bylaws of the Gurdwara Society as an open,educational and religious institution.

I therefore conclude that the bylaws should be interpreted in a different manner, and the best way toachieve that result is by direct amendment to the bylaws. [78] Exercising the equitable jurisdiction of the court and the power given to the court by s.242(3)(

c) of the Business CorporationsAct, I direct the amendment of

section 3(

a) of the bylaws as follows: 3. ELECTION OF THE EXECUTIVE COMMITTEE (

a) On the first Sunday of March in each year, the Religious Committee shall notify the membership of the congregation thatnominations for the election of the Executive Committee may be submitted to it until the end of the first Saturday in April. On the firstSunday in April, the Religious Committee shall report the names of the nominees for the various Executive Committee members to thegeneral assembly. If there is more than one nominee for a position, the Religious Committee shall hold an election by secret ballot to fillthat position.

Only those members of the Society in good standing, present at the general assembly, shall be entitled to vote and may castonly one vote for each election of a member of the Executive Committee. [79] This process necessarily requires drafting and I am prepared to hear an application to word the amendment differently forclarity or ease of implementation.

It follows that the June 12/90 “insertion of Constitution” purporting to prohibit amendment of thebylaws which directly contradicts paragraph 12 of the bylaws is declared null and void. [80] I believe the result of this amendment will allow for the membership at large to elect its Executive Committee. The ExecutiveCommittee would still nominate two members of the Religious Committee each year to replace the two outgoing members and then theExecutive Committee would seek approval of its selection at the annual meeting, all as presently set out in the bylaws.

Of course, thepossibility exists that the members at the annual meeting could on two consecutive occasions refuse to approve the two ReligiousCommittee nominees leading to an inability of the Religious Committee to function. Presumably the majority of the membership havingelected the Executive Committee would typically have confidence in the Executive Committee’s choices. The Executive Committee, upfor election each year, and with a mechanism in the bylaws for replacement of members whose positions become vacant, would alwaysbe there to prevent a complete management vacuum. It would follow that 6(

f) of the bylaws:

(

f) The decision of the Religious Committee shall be considered binding to the Executive Committee or the concerned members as the case may be. should be circumscribed so that it cannot be read as empowering the Religious Committee to dictate to the Executive Committee who the Executive Committee must select to replace outgoing members of the Religious Committee. [ 81 ] I therefore direct

section 6(

f) be deleted and the following substituted: 6(

f) Except for the selection by the Executive Committee of replacement members of the Religious Committee, the decisions of the Religious Committee shall bind the Executive Committee and the members of the Society. [ 82 ] I direct that in the interim, the present management (i.e. Executive Committee and Religious Committee) remain as the management of the Gurdwara Society. [ 83 ] The parties may speak to costs by appointment or by written representation. Heard on the 4th day of October, 2013 and the 28th day of October, 2013. Dated at the City of Edmonton, Alberta this 12 th day of November, 2013. R.P.

Marceau J.C.Q.B.A. Appearances: Mr. Arpal S. Dosanjh, Gudmundseth Mickelson LLP for the Applicants Kent H. Davidson, Q.C., and Ms. Samina Thind, Miller Thomson LLP for the Respondent