Jasminder Singh Bhandal, Kartar Singh Sidhu, Sudershan Virk, v. Jagir Singh Virk, 2013 BCSC 1969

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bhandal v.

Khalsa Diwan Society of Victoria, 2013 BCSC 1969 Date: 20131030 Docket: 13-1144 Registry: Victoria In the Matter of the Khalsa Diwan Society of Victoria 2013 Election Between: Jasminder Singh Bhandal, Kartar Singh Sidhu, Sudershan Virk, and Jagir Singh Virk Petitioners And: The Khalsa Diwan Society of Victoria Respondent Docket: 13-2354 Registry: Victoria Between: Sarabjit Singh Nagra, Gurminder Singh Dhillon Petitioners And: The Khalsa Diwan Society of Victoria, Tejbir Singh Kang, Gurnam Singh Bajwa, Rajwant Singh Purewal and Daljit Singh Dhanoya Respondents Before: The Honourable Mr.

Justice Macaulay Reasons for Judgment Counsel for the Petitioners: Jasminder Singh Bhandal, Kartar Singh Sidhu, Sudershan Virk and Jagir Singh Virk M.R. Scherr Counsel for the Petitioners: Sarabjit Singh Nagra, Gurminder Singh Dhillon J.A. Hall Counsel for the Respondents: The Khalsa Diwan Society of Victoria; Tejbir Singh Kang, Gurnam Singh Bajwa, Rajwant Singh Purewal and Daljit Singh Dhanoya J.J. Arvay, Q.C. Place and Date of Hearing: Victoria, B.C. September 11 and 12, 2013 Place and Date of Judgment: Victoria, B.C.

October 30, 2013 INTRODUCTION [ 1 ] In each of the above proceedings, pursuant to s. 85 of the Society Act , R.S.B.C. 1996, c. 433, the petitioners seek orders setting aside the March 10, 2013, election of the executive (“March 2013 election”) of the respondent, The Khalsa Diwan Society of Victoria (the “society”), and an order that a new election be held on terms agreed to by the parties or as the court orders. The petitioners also seek ancillary relief that I will only refer to later as necessary. [ 2 ] Pursuant to a pre-hearing case management order, both proceedings were heard at the same time.

These reasons are to be filed

concurrently in each proceeding. If there are any remaining matters to speak to, counsel will have liberty to apply. [3] The common law legal test for overturning an election requires a finding of a “substantial irregularity, calculated to affect theresult” (Leroux v. Molgat (1985), (BC SC), 67 B.C.L.R. 29).

Section 85 of the Society Act also applies. It reads: 85.

(1) Despite anything in this Act, if an omission, defect, error or irregularity occurs in the conduct of the affairs of a society bywhich (

a) a breach of this Act occurs, (

b) there is default in compliance with the constitution or bylaws of the society, or (

c) proceedings at, or in connection with, a general meeting, a meeting of the directors of the society or an assemblypurporting to be such a meeting are rendered ineffective, the court may (

d) either of its own motion or on the application of an interested person, make an order (

i) to rectify or cause to be rectified or to negate or modify or cause to be modified the consequences in law ofthe omission, defect, error or irregularity, or (ii) to validate

an act, matter or thing rendered or alleged to have been rendered invalid by or as a result of theomission, defect, error or irregularity, and (

e) give the ancillary or consequential directions it considers necessary.

(2) The court must, before making an order, consider the effect of it on the society and its directors, officers, members andcreditors. … [4] I conclude, for the reasons that follow, that the results of the March 2013 election are invalid. [5] Further to an additional case management order, the parties agree that the specific legal questions for determination here are: 1. Did the society comply with the provisions of its bylaws and the Society Act in the registration of new members afterFebruary 9, 2013, and the conduct of the election of society directors on March 10, 2013? 2.

If not, should non-compliance result in the court making an order under s. 85 of the Society Act or provide any otherremedy? 3. If so, what is the appropriate order? [6] The constitution and bylaws of the society were last amended by a special resolution in 2006. Among the purposes of thesociety are the preaching and advancing of the teachings of the Sikh faith and fostering the spirit of fellowship and brotherhood byfollowers of the Sikh religion. [7] Bylaw No. 1 defines the membership of the society as follows: 1.

The membership of the Society shall consist of and be confined to persons who profess the Sikh faith and adhere to the principlesthereof and any person so qualified may be admitted to membership without payment of any fee for admission as such member andsubject to compliance with these By-Laws, during the good behaviour and conformity with the principles of the Sikh religion, attendingthe religious ceremonies thereof and assisting in the maintenance of the Society according to his or her ability. [8] Most, but not necessarily all, of the members appear to support one of two factions in the society.

These factions are sometimesreferred to as traditionalist or moderate, although not every member associated with a faction describes himself or herself in those terms. [9] For the March 2013 election, the factions each nominated a slate of candidates for all of the positions to be elected. Nocandidates, other than those on the slates, were nominated. For convenience, I will describe the traditionalist slate, using the name of thecandidate for president, as the “Kang slate” and, in the same way, the moderate slate as the “Bhandal” slate.

There is no reference to thefactions in the constitution or bylaws. [10] The petitioners in Proceeding No. 13-1144 are members and were all part of the Bhandal slate in the March 2013 election. Thepetitioner in Proceeding No. 13-2354 , Sarabjit Singh Nagra, is also a member; self-described as a moderate; and was previously amember of the executive from 1991 to 1993 and 1998 to 2004. [11] The personal respondents in the latter proceeding are also members.

The co-respondents Tejbir Singh Kang and Gurnam SinghBajwa were on the Kang slate in the March 2013 election and elected president and secretary respectively. [12] The co-respondent Rajwant Singh Purewal was elected president in 2011 and continues in the new executive as past president.Finally, the co-respondent Daljit Singh Dhanoya was the previous secretary and no longer holds office. Neither of these parties disclosedany affiliation with a faction in their evidence respectively. [13] According to current Bylaw No. 7(a), each member of the society is entitled to one vote by secret ballot at the election of the

president, secretary, treasurer and seven other directors. Because only members can vote at elections of the executive, Bylaw No. 26 is ofcentral importance to the petitioners’ arguments. It describes the process for becoming a member and states: 26. Applicants for membership to the Society shall first file an application with the Secretary thereof, which said application shall besubmitted to [the] Executive at a meeting of the Executive at which time by Resolution, the Executive may admit or refuse any applicantmembership in the Society.

There are no other relevant provisions in the constitution or bylaws respecting membership in the society. When in power, thetraditionalists have rarely, if ever, followed the specific process set out in Bylaw No. 26. [14] The 2006 amendments did not affect the substance of Bylaw No. 26 but corrected an obviously erroneous reference to theexecutive approving or rejecting memberships at “a meeting of the Society” rather than “a meeting of the Executive.” [15] The evidence respecting membership registration and the accompanying entitlement to vote is somewhat at issue.

Because ofthat, I intend to first discuss some background and other less controversial evidence. PREVIOUS COURT APPLICATIONS [16] On at least five past occasions, the differing factions have required court intervention with respect to the conduct of elections.These provide important historical context. [17] In 1982, Tyrwhitt-Drake L.J.S.C. (as he then was) considered whether the process that the executive, comprised of one slate orfaction, imposed was unfair and discriminatory to the other (Khalsa Diwan Society of Victoria (Re) (1982), (BC SC),36 B.C.L.R. 293 (S.C.)).

The procedure related to the screening and registration of applicants for membership and required those whowere unknown or uncertain to the executive to attend in person at the Temple on a date before the election to give assurances of theireligibility (para. 4). Previously, it had usually been the custom of the executive, or its delegates, to deal with applications at the time ofthe elections (para. 6). [18] Judge Tyrwhitt-Drake pointed out that the other faction or slate had imposed a requirement similar to the 1982 process, when inpower in 1979 (para. 6).

He found that the 1982 process was a reversion to the 1979 process and also commented that the number ofpersons required to attend in 1982 would have been difficult, if not impossible, to deal with on the election day (para. 6). In the result, hedismissed the challenge and declined to give directions respecting the future registration of members. [19] In 1997, a group of petitioners asked the court to set aside the December 1996 election because the election process, which hadbeen in place for a number of years, did not permit a secret ballot (Nagra et al v. The Khalsa Diwan Society of Victoria, (B.C.S.C.)).

Ultimately, Bouck J. validated the election but directed that the society and its members conduct the next election “inaccordance with its bylaws as they now stand or in accordance with any lawfully amended bylaws that may exist at the time of the 1997Annual General Meeting” (para. 22). [20] In February 1999, before the upcoming election, Quijano J. made a detailed consent order that required, among other things, thecompilation of a new membership list between January 11 and 17, 1999 and February 8 to 14, 1999.

I summarize the more importantfeatures of the order for present purposes immediately below. [21] Potential members had to submit signed membership applications in person, or by a family member living in the sameresidence, at the Temple during the membership drive periods. An independent returning officer presided over an election committee toreceive the membership applications. A representative from each of the two factions served on the election committee. Unless bothrepresentatives initialled a membership application, it was not valid.

Provided they followed the procedures set out in the order, therepresentatives could receive membership applications before the appointment of the returning officer. The order provided for latemembership applications in limited circumstances but no additions to the membership list were allowed after March 1, 1999. Theelection was scheduled for March 20, 1999. [22] In October 2003, Boyd J. ordered that the same procedures be followed for an upcoming election.

Finally, in January 2005,Melvin J. ordered that the procedure and directions in the previous two orders be incorporated into his order and followed for theupcoming March 2005 election. He further ordered: 4. After the election of the Executive members in 2005, the Executive members should be subject to election in accordance with theBylaws of the Khalsa Diwan Society of Victoria as amended from time to time.

It is potentially significant that, in spite of the various court admonitions and directions to follow the bylaws with respect to registeringnew members and conducting elections, the society has never changed its bylaws in such regard. OTHER FACTORS [23] Two thousand three hundred and twelve (2,312) individuals voted in the March 2013 election.

The Kang slate defeated theBhandal slate by a margin ranging from 67, for the position of president, to 150, for the position of secretary. [24] Before the election, a spokesperson for each slate and an election committee for each slate met to establish the process to befollowed at the election. The process they agreed to was similar to that of the 1999 election. [25] By their pleadings, the parties agreed that the process agreement respecting the lead up to the election and the election, was asfollows: a. Thomas Moore would be appointed Returning Officer;

b. Only registered members of the Society would vote at the upcoming Election. c. Voting members would be required to confirm and identify their membership and would be issued ballot papers upon signing the attendance register held at the Election station. d. Driver’s licenses, passports, citizenship cards, or other approved official government documents would be accepted as valid identification. e. If the present address of a member was different than that of the identification document, the member would be required to present evidence of his or her changed address. f.

The Election would be held March 10, 2013. g. The ballot would be by secret ballot and a full executive of President, Secretary, Treasurer and seven Board members would be elected. h. The Election would take place in the Langar (Dining) Hall of the Sikh Temple, 1210 Topaz Avenue, Victoria, BC, between the hours of 8:00 a.m. and 8:00 p.m. i. Completed nomination forms were to be provided to the Society office, 1210 Topaz Avenue, between the hours of 4:00 p.m. and 5:00 p.m. on Saturday, February 6, 2013. j.

Persons who wish to withdraw their nomination could do so between the hours of 4:00 p.m. and 5:00 p.m. on Saturday, February 23, 2013 by completing and delivering signed withdrawal forms, again to the Society office, 1210 Topaz Avenue, Victoria, BC. k. Registration of new members would take place Saturday, February 2 and Saturday, February 9, 2013. New members would be enrolled at the Society offices, 1210 Topaz Avenue, Victoria, BC between the hours of 12:00 p.m. and 5:00 p.m.

On voting day, the members enrolled on February 2 or February 9, 2013 would be required to present valid identification, must be the full age of 19 years and be permanent residents of the City of Victoria or municipality situated in the south end of Vancouver Island (south of Malahat). (Emphasis added.) [ 26 ] It was further agreed that: a. There would be one Election Official at each of six Polling Stations and one Election Officer to attend the Ballot box appointed directly by the Returning Officer and there would also be one Deputy Returning Officer appointed by the Returning Officer.

The Election Officials to be the only ones working with the ballots. This was the usual practice. b. Each Slate could appoint one Assistant Election Official for each Polling Station. Over the day if an appointee vacated the position only one other could be appointed in his/her place. Appointments were to be made in writing and submitted to the Returning Officer. This practice had been followed in previous elections to avoid difficulties with language at the Polling Stations. c. Each slate could appoint two agents, only one of which could be present at the polling station at any one time. d.

Each slate could appoint two spokespeople, only one of which could be present at the polling station at any one time. e. Each slate could appoint two Voter Review Appointees to review the identification of the new registrants that were accepted at the new member registrations held February 2 and 9, 2013. f. Neither slate of candidates or the existing Executive were to remain at the polling place. [ 27 ] Significant factual and legal issues arise respecting the process agreement and the manner in which it was carried out. These include: 1.

Did the executive lawfully delegate its responsibility under Bylaw No. 26 to be carried out pursuant to the agreement; 2. Was the agreement varied to extend the time for accepting memberships up to and including the day of the election; and 3. Are the circumstances respecting the making and carrying out of the process agreement material considerations in deciding whether to make an order under s. 85(1) (

d) of the Society Act ? [ 28 ] The controverted evidence focused primarily on: first, whether there was a failure to follow Bylaw No. 26; and second, whether there was an agreement to allow registration of new members after February 9, 2013, the last date referred to in the process agreement, up to and including election day. [ 29 ] By agreement, the parties cross-examined the affiants of some but not all of the affidavits. I have considered the transcripts of the cross-examinations as well as the affidavit evidence. [ 30 ] An election in which non-members voted would obviously contravene the bylaws.

This suggests that, if the executive did not follow the process for accepting new members as set out in Bylaw No. 26, any such individuals were not entitled to vote. [ 31 ] Sarabjit Singh Nagra deposed that when he was on the executive, most recently in 2003, the directors followed the process set out in Bylaw No. 26, that is: “new member applications were considered and approved by the Directors.” [ 32 ] By way of contrast, Rajwant Singh Purewal, president for the 2011 to 2013 term, deposed that, during his tenure on the

executive, “membership applications have never been submitted to the Executive for approval.” Other members of the same executive provided similar depositions. [ 33 ] Bikkar Singh Randhawa was president for the 2009 to 2011 term.

He deposed that throughout his various terms on the executive, extending back as far as 1972: “Membership applications were never submitted to a meeting of the Executive to be approved or denied.” [ 34 ] Kuljit Singh Nagra did not directly address compliance with Bylaw No. 26 but deposed that since the order of Quijano J. the executive “has either been elected pursuant to a process similar to that followed for the 1999 election or proceeded by way of acclamation.” [ 35 ] The Bhandal slate tasked Jasbir Singh Gill to represent the slate respecting the procedures for the March 2013 election and he was on the committee envisaged by the process agreement.

He deposed that the executive had previously delegated its authority respecting membership to a sub-committee: During the years between 1998 and 2003, the Executive Committee delegated the authority to approve new members to a committee having three representatives of each faction. That group met at which time the new members who had applied for registration were approved in accordance with the bylaws. Any disagreements were resolved at this Committee.

This evidence is reasonably consistent with the terms of the consent order that Quijano J. made in February 1999 and carried forward by the orders in 2003 and 2005.

By inviting the court to make a consent order, the parties must have considered it open to the executive to delegate its responsibilities under Bylaw No. 26 to a committee. [ 36 ] I observe that Bylaw No. 12 expressly permits the executive to “delegate any of its powers to committees to be appointed from the Executive or from the membership as a whole and any Committee so constituted shall exercise the powers so delegated in accordance with these By-Laws.” [ 37 ] In the result, I conclude that, if any of the executives ever followed Bylaw No. 26 to the letter, that practice ended about the time Quijano J. made her order.

It is abundantly clear that the traditionalists, when in control of the executive, have not followed the express procedures set out in Bylaw No. 26. Instead, whenever there was to be a contested election, the executive delegated its responsibilities respecting membership applications to a committee containing representatives of each faction or slate. [ 38 ] There is no evidence that the executive, at any relevant time, met as a body to consider, admit or refuse any membership applications, including the applications submitted to the society on February 2 and 9, 2013, as set out in the process agreement.

Overall, the evidence indicates that any adult person living in the Greater Victoria community who professed to follow the Sikh faith was accepted as a member, with the concurrence of the committee, including some who first applied for membership on the day of the March 2013 election. Once accepted, all members, including the latecomers, were permitted to vote if they had the requisite identification. [ 39 ] It is fair to say that the various executives conducted the governance of the society in a casual way.

This is evident from some of the earlier court decisions and the evidence at the hearing of these proceedings. Various individuals who were on the executive at one time or another admitted they had not read the constitution or bylaws.

Several emphasized that they never followed Bylaw No. 26 and, in particular, that no executive meetings ever dealt with membership applications, including during the lead up to the March 2013 election. [ 40 ] Despite that, apart from the petitioners’ argument that the president improperly registered new members on election day in March 2013 to advantage the Kang slate, there are no other allegations of abuse of authority or that anyone was denied membership because of their support for the Bhandal slate.

Indeed, the evidence strongly suggests that no executive, or committee, ever abused its authority by refusing to accept members because of the individual’s support for one slate over the other. There is also no evidence that the president refused to register any potential new member on election day in March 2013. [ 41 ] I am satisfied that the committee established under the process agreement continued to accept membership applications after February 9, 2013. It is important to remember that the process agreement does not say that no membership applications would be accepted after February 9, 2013.

In other words, it does not provide a clear cut-off date. [ 42 ] Nor is there any cut-off date for membership applications in the bylaws. It is obvious, however, that if the executive was bound to follow the procedure in Bylaw No. 26, it would be impracticable for the executive to meet and consider membership applications on election day. [ 43 ] In December 2012, a “Notice of Election Meetings” was sent to members. The notice included, among other things, the date of the election and stated: Only registered members of the Society may vote at the election.

Voting members will be required to confirm and identify their membership, and will be issued ballot papers upon signing the attendance register held at the election station. … REGISTRATIONS: Saturday, February 2, and February 9, 2013 New members will be enrolled at the Society offices, 1210 Topaz Avenue, Victoria, BC, between the hours of 12:00 pm and 5:00 pm. New members will be required to present the above noted valid identifications.

Voting members must be of the full age of nineteen (19) years and be residents in the City of Victoria or municipalities situated in the south end of Vancouver Island (south of Malahat). As I understand the petitioners’ position, no person who became a member after February 9, 2013, should have been permitted to vote. That position, if accepted, would be contrary to Bylaw No. 7a which entitles every member to vote. It is also inconsistent with the

additional evidence set out below. Finally, it ignores the fact that the executive never met to approve any membership applications, including those made on February 2 and 9, 2013. [ 44 ] Overall, the society had close to 4,000 registered members before 2013. Two hundred and thirty (230) new membership applications were submitted by February 9, 2013. An additional 674 membership applications were submitted and accepted between February 9 and March 8, 2013. Accordingly, the committee accepted roughly 900 new members by March 8, 2013.

There is no evidence that any of those persons were denied the right to vote as members in the election despite the executive never meeting or considering whether to accept or reject the applications. A final block of 218 new members were registered and presumably voted on election day. [ 45 ] Both slates continued to submit membership applications after February 9, 2013.

Several examples, submitted by or on behalf of the Bhandal slate, are exhibited to the second affidavit of Rajwant Singh Purewal. [ 46 ] In his first affidavit, Rajwant Singh Purewal deposed that representatives of the two slates agreed at a meeting on March 6, 2013, to continue registering new members until March 7; that the new members registered up to that date would be accepted and added to a new members’ list; that no new members would be accepted on March 8 or 9 while the new members’ list was being prepared; and finally, that registration of new members would continue on election day.

Other supporters of the Kang slate gave similar evidence. [ 47 ] The minutes of the March 6, 2013, meeting included the following: It was further agreed that registration of new members be continued on the day of the election i.e. set up two separate tables in the foyer of the election hall (Langar Hall) where new persons would present mandated identifications and be registered as members, and thereafter be allowed to cast votes .

Assigned representatives from each slate would monitor these registrations. [Emphasis added.] [ 48 ] Thomas Moore, the returning officer, deposed that representatives of both factions reached an agreement on March 6, 2013, to continue registering voters at the offices of the Temple on election day. He further deposed that there was no challenge to the process during the election. Mr.

Moore also points out that polling day registration of voters is a common practice at federal, provincial and local government elections. [ 49 ] Narinder Bal is one of the Bhandal slate representatives who attended the March 6 meeting, along with others. He deposed, as follows: • There was no agreement to allow people to vote who registered after February 9, 2013. • People were free to register as members, but they were not to be eligible to vote for the 2013 election. • In every year, there has always been a cut-off date for voting eligibility. That was the same in 2013.

All persons who wished to vote had to be registered on or before February 9, 2013. Jasbir Singh Gill, another of the Bhandal slate representatives, who I referred to briefly earlier in my reasons, gave identically worded evidence on this point. [ 50 ] Balvir Dhatt was another Bhandal slate representative.

His evidence was virtually identical: • There was no agreement to allow people to vote who registered after February 9, 2013. • People were free to register as members, but they were not to be eligible to vote for the 2013 election. • All persons who wished to vote had to be registered on or before February 9, 2013. • … • I told any person who gave me a registration after February 9, 2013 that they would not be eligible to vote on March 10, 2013. • There was no agreement to allow people to vote who registered after February 9, 2013.

I consider the attempt to draw a distinction between voting and non-voting members specious and unsupported by the bylaws. [ 51 ] Why would any person register as a new member if they were told that they would not be able to vote? There is no evidence that anyone needed to be a member to attend the Temple and participate in religious, educational or social activities. The purpose of last minute registration as a member of the society is to vote.

Otherwise, why would anyone attend on election day to register? [ 52 ] The distinction that the Bhandal slate committee representatives attempt to make is a poorly disguised effort to neutralize the effect of their concession that the committee agreed to continue accepting membership applications after February 9, 2013. I do not accept it. [ 53 ] I conclude that the committee agreed to continue accepting new members until March 7, 2013, and again, on election day.

I further accept that the committee agreed that, once registered, subject only to providing the requisite identification, all new members could vote in the March 2013 election. LAW [ 54 ] At the outset of my reasons, I referred to the common law test for setting aside an election as well as s. 85 of the Society Act . As I demonstrate below, the two operate in tandem and require me to answer two questions that I paraphrase as: 1. Was there a substantial or material irregularity in the conduct of the March 2013 election; and

2. Did it improperly or deceptively influence the result of the election? Although Leroux is a British Columbia case, it did not relate to a society. Justice McLachlin (as she then was) succinctly stated the applicable principle, at para. 3: [3] An election will be set aside only if substantial irregularity, calculated to affect the result, is shown. … If the plaintiff establishes irregularities, the onus shifts to the defendants responsible for the conduct of the election to show that those irregularities were not calculated to affect the result. [Authorities omitted.] In Samra v.

Guru Nanak Gurdwara Society et al., 2007 BCSC 882 , an election case involving a society, Smart J. did not use the term “substantial irregularities” or refer to Leroux . [ 55 ] However, Smart J. determined in Samra that “material irregularities” in “membership enrolment in elections” should cause the court to intervene and invalidate the effects of actions taken in violation of the bylaws. He indicated that a “material irregularity” would be conduct that was not “fair and proper” (para. 119). The Court of Appeal affirmed this analysis ( Samra v.

Guru Nanak Gurdwara Society , 2008 BCCA 202 ) and stated, first, at para. 65, that the determination of whether there were irregularities in membership applications had to be determined through reference to the society’s bylaws to ensure transparency; and second, at para. 85, that the “defects or irregularities were material because they demonstrated the lack of compliance with the Society’s bylaw respecting membership requirements.” [ 56 ] Rather than follow the express process set out in Bylaw No. 26, the executive delegated its authority to a committee, much as it did by consenting to the 1999 court order.

Bylaw No. 12 empowers the executive without apparent restriction to “delegate any of its powers to committees,” including a committee of members. [ 57 ] I observe that, in Samra, the bylaws of the society required members to be resident of one of three communities in the lower mainland area. Under the bylaws, the executive had a power to delegate, as in the present case ( Samra, 2007 BCSC 882 at para. 6 ).

Accordingly, a closer examination of the facts of that case is necessary for an understanding of the full implications of the judgment for the present case. [ 58 ] In Samra, the executive decided in 2002 that membership in the society would terminate on June 30, 2006, unless renewed after March 1, 2006 “in accordance with the bylaws.” On April 2, 2006, the executive passed a motion establishing a process, applicable to both present and new members, that imposed certain requirements for membership, including that membership forms could only be received for acceptance at the Gurdwara office and only by the president or the recording secretary.

The structure of the membership committee was problematic for two reasons. [ 59 ] First, the committee failed to provide for any participation by the minority group in the society. Both the president and the secretary were members of the majority group and, accordingly, the minority group sought representation on the membership committee. Second, the two-person committee was contrary to the bylaws, which required a minimum of three persons on any such committee. [ 60 ] The executive did not immediately accede to the demand of the minority group.

It did add a third person to the committee, although that individual was not a member of the minority group. Eventually, in August 2006, after an extension of the deadline date for registration, the executive agreed to a new process. The new process included increasing the membership committee to four persons consisting of two from the majority group and two from the minority group.

As the chambers judge described: This permitted both groups to oversee and participate in receiving membership application forms at the sign-up table at the Gurdwara and to ensure that the requirements for membership were met by all applicants. (para. 16) [ 61 ] For a period of time, the process worked well and about 2,200 members were enrolled. The chambers judge described that process as “a model for future enrolment because it ensures that all members can be confident that there has been compliance with the Society’s bylaws” (para. 17). The validity of those memberships was never in dispute.

Accordingly, Samra implicitly confirms that an executive can, if authorized by the bylaws, delegate its authority respecting the important task of accepting membership applications. [ 62 ] The dispute ensued because additional groups sought to submit membership forms they had collected outside the transparent process, and the membership committee accepted only some of those applications.

Ultimately, the judge found that a substantial number of the accepted forms failed to comply with the bylaw requirements respecting membership. [ 63 ] Unlike the present case, there was no bylaw in Samra specifying the manner in which the executive would process membership applications.

There is, accordingly, some tension between the process in Bylaw No. 26, which nonetheless reserved all decision-making to the executive, and the process agreement which provided for equal participation by both factions or slates in the process, a process reasonably similar to what was required by previous court orders. [ 64 ] The respondents argued that the process agreement and the further March 6, 2013, agreement to extend the time for accepting new memberships amounted to a form of acquiescence to the process.

Justice Bouck partially rejected a similar argument in Nagra where the members had voted at open meetings for some time rather than by secret ballot as the bylaws required. He doubted that acquiescence, a principle of private contract law, “always applies to members of a society” (para. 16). He also stated, at para. 17: [17] The concept of acquiescence in contract applies to the original parties to an agreement or their assignees. It does not fit well into a Society’s relationship with an ever changing membership base.

Further, he observed that changes to the bylaws of a society require a 75 percent vote of the members and that the bylaws cannot be changed by contract (para. 18). Nonetheless, in exercising his discretion under s. 85, Bouck J. validated the December 1996 election but directed that the next election would be conducted in accord with the bylaws.

[ 65 ] I take from Nagra that conduct of a type that may constitute acquiescence in a private contract setting is a factor to consider in exercising my discretion under s. 85(2) to ameliorate the effect of a substantial irregularity. In that regard, I observe that the substantial irregularity in Nagra was the failure to allow voting by secret ballot, a key component of a fair and transparent election process.

I do not think it assists in determining whether there was a substantial or material irregularity here. [ 66 ] Returning to that question, I have also considered the decision of the Court of Appeal in Garcha v. Khalsa Diwan Society – New Westminster, 2006 BCCA 140 .

There the court considered the significance of irregularities respecting the membership list which had resulted in the chambers judge cancelling the original enrolment. [ 67 ] The Court of Appeal rejected the appellant’s contention that the judge erred in failing to exercise considerable restraint before intervening in the governance of a society and pointed to the difficulties concerning duplicate memberships and a lack of application forms as “clearly” justifying the order made. [ 68 ] In reaching its conclusion, the court referred with apparent approval to a previous Court of Appeal decision that stated, in part, “[t]he narrow margin by which the last election of officers of the Society was decided magnifies the importance of even a small number of irregularities” (para. 7).

The margin of victory in the current case was also narrow. [ 69 ] Absent Bylaw No. 26, I would find that the executive was entitled to delegate its responsibilities respecting the process for accepting memberships. A change to the bylaws requires the approval of 75 per cent of the members. By delegating its responsibilities directly to the process committee, the executive bypassed that requirement resulting in a less transparent process for accepting new members.

To no avail, various judges in the past have warned the society of the need to follow or amend the bylaws. [ 70 ] I conclude that there was substantial or material irregularity in the conduct of the March 2013 election. I turn next to whether it improperly or deceptively influenced the result of the election. [ 71 ] I accept that the delegation was a pragmatic decision to address the divisions and suspicions between the two factions. There was no bad faith or improper conduct intended to advance the interests of one faction over the other.

Yet the continuation of voter registration after an apparent cut-off date potentially led to confusion and accordingly, disadvantage. [ 72 ] Justice Smart, when determining the appropriate order in Samra , concluded that a cut-off date for membership applications was necessary. All members of the society, whether or not a part of a faction, are entitled to the transparency such a provision provides. [ 73 ] Garcha is also significant in relation to the objective of the remedy in cases of this type.

The court stated: “the process ordered by [the chambers judge] was the fair and appropriate one to ensure that members of the Society could have confidence that the Society elections would be conducted in a fair and orderly manner” (para. 19). [ 74 ] Although the representatives of the two factions knew that the time for accepting membership applications was extended to the day of the election, it does not follow that all individual members also knew. Nonetheless, the society invites me to respect its autonomy and refers to Sarjit Singh Gill v.

Khalsa Diwan Society (3 December 1999), Vancouver Registry A993150 (B.C.S.C.), in support of the proposition that the court should be reluctant to interfere in the internal affairs of any corporate body. In my view, respect for autonomy does not extend to countenancing a long-standing and continuing failure to follow societal bylaws or follow the process necessary to change them. [ 75 ] In the present case, there is a lengthy history of judges admonishing the society to follow its bylaws with respect to membership and the conduct of elections.

If I validate the March 2013 election, I fear that this judgment, like others, will be treated as a whisper in the wind. If it were not for the history, I might have been inclined to validate and limit my directions to the conduct of the next election. Instead, in my view, the interests of individual members require me to take a more drastic step. Only in that way can all members be confident about the conduct of future elections. [ 76 ] Section 85(2) of the Society Act directs me to consider the effect of any order I may make on the society and its directors, officers, members and creditors.

The primary purpose of my order is to halt those and undoubtedly expensive serial litigations and to replace them with a transparent regime that fairly takes into account the interests of all members. The cost and inconvenience of re- conducting the 2013 election may be offset by future savings if the society operates in accord with its bylaws. At the very least, all members should be satisfied that any result stems from a transparent process. [ 77 ] I make the following orders: 1. I declare the results of the March 2013 election invalid; 2. I make the following directions: (

a) The current executive shall remain in office pending a new election; (

b) All members registered as at the March 2013 election shall continue to be members; (

c) The new election shall be held within 90 days; (

d) The term of office for the new executive shall be until the next regularly scheduled election in March 2015; (

e) The operation of Bylaw No. 26 is hereby suspended; (

f) Until such time as the society passes a new bylaw respecting the acceptance or rejection of applications for membership, and subject to paragraphs (

g) to (

i) below, all new applications for membership shall be dealt with in the manner set out in s. 2 of

Schedule A to the order of Quijano J. dated February 2, 1999 (the “membership procedure”);

(

g) The last of the dates for receiving membership applications shall be not less than 10 days before the date of the election; (

h) No membership applications shall be accepted except on the dates as set out in the membership procedure; and (

i) The executive shall provide reasonable written notice of these directions and the membership procedure to the present members of the society not less than 20 days before the first of the dates for receiving membership applications. Counsel may speak to any other directions that may be necessary to give effect to the above. [ 78 ] There is little to be gained by imposing an order for costs on the society or any of the personal respondents in Proceeding No. 13-2354. I have found that the petitioners supporting the Bhandal slate agreed to the process that bypassed Bylaw No. 26.

There has been ample opportunity for all the parties to seek appropriate amendments to the bylaw. In the circumstances, I decline to award costs in either proceeding. “M.D. Macaulay, J.” The Honourable Mr. Justice Macaulay