Kandola v Gurdwara Siri Guru Singh Sabha Society, 2017 ABQB 455

Court of Queen ’ s Bench of Alberta Citation: Kandola v Gurdwara Siri Guru Singh Sabha Society, 2017 ABQB 455 Date: 20170804 Docket: 1503 03302 Registry: Edmonton Between: Harman Kandola, in his own capacity, as a life member and Chair of the Advisory Committee of the Gurdwara Siri Guru Singh Sabha Society, Edmonton, Alberta Applicants - and - Gurdwara Siri Guru Singh Sabha Society, Edmonton, Alberta Respondent _______________________________________________________ Memorandum of Reasons for Decision on Costs of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] This Decision is about the costs that arise from the Court’s Order of October 1, 2015, which resolved (either completely or,

at least, to some large extent and/or temporarily) a dispute among the members of the Gurdwara Siri Guru Singh Sabha Society (the Society), and two committees thereof, the Advisory Committee (Applicant) and the Executive Committee (Respondent), which I find was caused, in large part, by the Society’s dysfunctional, poorly drafted, By-Laws. II. Background [ 2 ] The Society is a religious society incorporated under the Religious Societies Land Act , R.S.A. 2005, c. R- 15 (the Act), which operates in accordance with the Act, and its constituting constitution and by-laws thereunder (By-Laws).

The By-Laws of the Society included two committees: the Advisory Committee and the Executive Committee. One of the main responsibilities of the Advisory Committee is to choose the members of the Executive Committee, which, primarily, manages the Society.

The Applicant, Harman Kandola (Applicant), along with the Advisory Committee (hereinafter “Applicants”), at all material times purported to be the Chair of the Advisory Committee, and, in essence, brought this litigation on behalf of the Advisory Committee. [ 3 ] This matter arose by virtue of an Originating Application, filed by the Applicants on March 5, 2015, and subsequently amended by the Order of Justice Browne on April 20, 2015 (Originating Application), wherein it was alleged that “[o]n or about December 28, 2014, the Executive Committee, without any actual or ostensible authority, and without any jurisdiction, replaced 6 members of the Advisory Committee”.

As amended, the Originating Application sought, inter alia , the following: a. a Declaratory Order that the members of Advisory Committee, prior to December 27, 2014, remain the members of the Advisory Committee; and b. costs. [ 4 ] Quickly following on the heels of the Originating Application was an Application by the Respondent Society (in essence the Executive Committee) seeking a declaration, inter alia , as to the proper identity of the members of the Advisory Committee at various times from 2013. [ 5 ] After the filing of, and questioning on, affidavits, and the Court issuing certain interim restraining and procedural orders, including the Order of Justice Browne of August 19, 2015, specifically identifying the issues for determination, the matter appeared before me for a hearing on the merits on October 1, 2015.

My Order that resulted on that day dealt with who were the members of the Advisory Committee at various times, and provided an

interpretation as to how the By-Laws were to operate, and a transitional procedure for the appointment of Advisory and Executive Committee members in the future, pending the amendment, if any, of the By- Laws to create a more clear and workable procedure.

The Order also provided that the “parties have leave to apply for ... costs [of the whole proceeding] if they cannot agree on that matter” – the matter which this Decision now addresses. [ 6 ] In the course of granting the October 1, 2015 Order, in oral reasons, in addition to determining certain collateral issues (“skirmishes along the road”), I indicated and held, on the main issues, in essence, that, inter alia : a. as discussed during argument, the By-Laws are badly written and do not properly define terms and processes; b. as a result of a., disputes between factions within the Society, primarily between the Advisory Committee and the Executive Committee had arisen, resulting in this litigation; c. my

interpretation of the By-Laws was to continue, pending any valid amendments to the By-laws, to regularize the governance process of the Society in a way that would prevent similar disputes arising in the future; and d. encouraged the parties to resolve the matter of costs between them, me reserving on that issue if not resolved by consent. [ 7 ] It took Counsel to January 4, 2016 to settle the terms of the October 1, 2015 Order. Thereafter the parties appear to have

negotiated, at least to some extent, regarding costs, but, when they could (or would not) reasonably resolve same, they came before me for a hearing on costs on August 17, 2016, at which point I reserved my decision.

While not due to any difficulty with determining costs, and while recognizing that the cost issues herein were not “a very high priority” (TR 19/41), due to conflicting demands on my judicial time not allowing me to reasonably get to that determination sooner, I regret and apologize for not rendering this Decision on Costs earlier. [ 8 ] Moving to the substance, as to costs, for reasons that may be clear from the discussion above, and on which I shall elaborate somewhat below, I find that the Applicants, on behalf of the Advisory Committee, are entitled to costs on a solicitor and own client basis, plus full, proper disbursements, from the time of instructions leading to the Originating Application in 2015 to and inclusive of August 17, 2016, as may be agreed, based on this Decision on Costs, or as may be assessed by the Assessment Officer under the Rules.

Thus, the costs are for the whole cause, including procedural and equivalent proceedings before other Justices, as this proceeding moved itself forward to conclusion. Absent consent, at any such assessment, the costs thereof will be at the discretion of the Assessment Officer, and the presumption will be, in each case, for the payment of those costs by the Society for only the successful Executive Committee or Advisory Committee – to be clear, the presumption will be that the Society will not be responsible for any unsuccessful party, the Executive Committee or Advisory Committee, only the successful party.

The following points of further elaboration as to the reasons for this Decision on Costs are set out below. [ 9 ] First, in addition to any personality disputes between the individuals on the Advisory and Executive Committees, which may not have helped, but which I could not/cannot easily resolve, the disputes arose from conflicting

interpretations of the Society’s poorly drafted By-Laws. It was in the interests of the Society that the proper governance of the Society under the By-Laws be interpreted. It is unfortunate that was not accomplished without litigation, but that appeared necessary by, and apparently precipitated by, the December 28, 2014 actions of the Executive Committee, for which, in apparent failure of the Executive Committee of the Society to stay the action therein taken, on demand of Counsel on behalf of the Advisory Committee, it appeared to have thought that it necessary to respond with legal action.

Counsel for the Applicants argued at the cost hearing (Transcript, p. 4, l. 39 – p. 5, l. 3 – hereinafter specified as follows: TR 4/39 – 5/3): ... the application was necessary. My client’s application was successful in substantially the whole case. The decision [of the Executive Committee] of December 28 th , 2014, was by virtue of [the October 1, 2015 Order] a nullity. My clients ... took a principled, good-faith stance with respect to the [By-Laws]. The Respondent never tried to work with the Advisory Committee.

In this context, I agree that, absent settlement of the issue before litigation, the litigation was necessary, because the positions were a standoff – unilateral action by the Executive Committee, failing to retreat, causing the Advisory Committee to take legal action. This is supported by the reasoning in Gill v. Bhandal , [1999] B.C.J. No. 3115, at paras. 25 - 28 . [ 10 ] The reasoning in Barron v.

Warkentin , 2005 ABCA 51 , at para. 15 , is not specifically apropos because costs are not sought by the Applicant against the Executive Committee, but rather against the Society, which the Executive Committee presumed to represent. Unlike members of an association in Barron , the Executive Committee here was not, truly, a “volunteer tribunal”, but rather a substantially equal participant in the governance of the Society, as was the Advisory Committee. Additionally, each faction paying their own costs, as in Barron , is not appropriate, as here the Executive Committee’s costs were paid by the Society.

For the same reason, Metchosin (District of) v. Metchosin Board of Variance , [1992] B.C.J.

No. 2002 , is also not helpful, because, while it might be argued that the Executive Committee “was called upon to defend its jurisdiction and did so in a proper manner”, here it did not do so successfully, but the successful challenger, the Advisory Committee, did. [ 11 ] I do not agree with, and do not find facts to support – in fact, to the contrary - the submissions of Counsel for the Respondent (TR 13/18 – 20) that the Applicant “should be criticized for not making an effort to get this thing resolved without going to court.

And it’s just as likely as not that it could have been resolved without going to court”. Moreover, while both the Executive Committee and the Advisory Committee seemed to operate in a spirit of secrecy from the other, that required production applications, that too seems to be the result of not only dysfunctional By-Laws, but also dysfunctional operations of the Society under the By-Laws.

The Society as a whole clearly needed, and needs, to have transparent governance and operations, and should be responsible for litigation costs where one of its important internal institutions, does not have access to payment of the expenses of the litigation.

My decision might have been different if the Executive Committee had funded its own expenses of the litigation, but the evidence is that the Executive Committee’s costs were paid by the Society. [ 12 ] Finally, I do not agree with Counsel for the Respondent (TR14/ 10 -11), that the Applicant, Advisory Committee, “has made these proceedings much more complicated and contention than necessary” – rather, I find that is like the old saying “the pot calling the kettle black”, as I find that both sides throughout, until my October 1, 2015 Order, seemed to litigate this with “no stone unturned”, to this extent it was, as Counsel for the Applicant argued (TR 14/13 -14) a “power struggle between the Advisory Committee and the Executive Committee”, with Counsel apparently both quite readily prepared to “gird up”. [ 13 ] Second, one faction, the Respondent, Executive Committee, had the operational authority to hire Counsel to represent its

interest, and to pay that Counsel. However, the Applicant, Advisory Committee, did not have Executive Committee permission to hire Counsel to represent the interests of the Advisory Committee, for the payment by the Society, without this cost award.

The legitimacy of both Committees to have these issues resolved was thus apparent, and of value, not for the Committees themselves, but for the Society as a whole. [ 14 ] Third, while there were allegations on both factions of one Committee trying to take over the other, and there was some evidence to support that in both cases, I find no convincing evidence that causes me to find that this was proven such as to result in a conclusion of a basis for costs against either Committee, on such allegations, in all of the circumstances.

In the result, I find no basis to conclude that there was “evidence of bad faith, malice or capricious or arbitrary conduct” (para. 15 of Barron ), on the part of, or justifying costs against, either Committee or any of its members. [ 15 ] Fourth, while various arguments were made as to the impropriety of various members of the Society, or one or both of the Committees, or Counsel on behalf of any, I find that there was nothing therein to deviate from the costs being awarded against the Society for the reasons herein.

Even if there were to have been some such allegedly inappropriate behavior, it would be difficult for the Court to determine same, without further evidence to determine the truth of the allegations.

However, in any event, that would be a waste of Counsel and Judicial time and the Society’s funds. [ 16 ] Fifth, while it was ultimately the Society that was “successful” in having its By-Laws interpreted in a way that it could carry on under its then present By-Laws, pending any amendment, it cannot be reasonably argued that the actions of the Applicants were unwarranted or unsuccessful – indeed, they resulted in this success to the Society, while finding certain actions by both the Executive Committee and the Advisory Committee inconsistent with the By-Laws. Heard on the 17 th day of August 2016.

Dated at the City of Edmonton, Alberta this 4 th day of August 2017. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Arman Chak for the Applicants James R. Vaage for the Responden t