2016 QCCA 51, 2016 QCCA 51

Lee c. Chinese Kuomingtang of Canada (Montreal Branch) Inc. 2016 QCCA 51 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-09-024407-140, 500-09-024413-148 (500-17-055582-103, 500-17-048858-099) MINUTES OF THE HEARING DATE: January 20, 2016 CORAM: THE HONOURABLE françois pelletier , J.A. geneviève marcotte , J.A. Étienne parent , J.A. N o : 500-09-024407-140 (500-17-055582-103) APPELLANTS ATTORNEY CHACK-SANG LEE TIDO LU YUNG-TSUN WU BRYANT CHANG ERIC JON TONY KOCK YIN Mtre ALAIN TREMBLAY (Ouellet Nadon et Associées) RESPONDENTS ATTORNEY CHINESE KUOMINGTANG OF CANADA (MONTREAL BRANCH) INC.

CHINESE NATIONALIST LEAGUE OF CANADA (MONTREAL BRANCH) CHARLES HO Mtre RONALD ACHIM (Audet F.G. & Associé

s) IMPLEADED PARTY ATTORNEY

REGISTRAIRE DES ENTREPRISES DU QUÉBEC N o : 500-09-024413-148 (500-17-048858-099) APPELLANT ATTORNEY 77 th EXECUTIVE COMMITTEE OF THE MONTREAL CHINESE NATIONALIST LEAGUE Mtre ALAIN TREMBLAY (Ouellet Nadon et Associées) RESPONDENTS ATTORNEY CHARLES HO HSIANG-HIE HSIH HSIU FONG HENRY WU YU-SHIA SHEH MIN-KONG WONG KUN-MING LEE CHI-SANH CHANG TA-CHI CHI Mtre RONALD ACHIM (Audet F.G. & Associé

s) IMPLEADED PARTY ATTORNEY CHINESE NATIONALIST LEAGUE OF CANADA (MONTRÉAL BRANCH) INC. On appeal from a judgment rendered on April 3, 2014 by the Honourable Justice Stephen W. Hamilton of the Superior Court, district of Montreal. NATURE OF THE APPEAL : Ownership of a building Clerk: Mihary Andrianaivo Courtroom: RC-18

HEARING 9:35 Commencement of the hearing. Submissions by Mtre Tremblay. 10:14 Recess of the hearing. 10:18 Resumption of the hearing. By the Court: Judgment – see page 3. Conclusion of the hearing. Mihary Andrianaivo Clerk BY THE COURT JUDGMENT [ 1 ] The appeals are DISMISSED WITH COSTS and the reasons will be deposited at the Court office in the very near future. françois pelletier , J.A. geneviève marcotte , J.A. Étienne parent , J.A. Lee c. Chinese Kuomingtang of Canada (Montreal Branch) inc. 2016 QCCA 51 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024407-140 , 500-09-024413-148 (500-17-055582-103, 500-17-048858-099) DATE: January 21, 2016

CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. GENEVIÈVE MARCOTTE, J.A. ÉTIENNE PARENT, J.A. 500-09-024407-140 CHACK-SANG LEE TIDO LU YUNG-TSUN WU BRYANT CHANG ERIC JON TONY KOCK YIN APPELLANTS - Defendants v. CHINESE KUOMINGTANG OF CANADA (MONTREAL BRANCH) INC. CHINESE NATIONALIST LEAGUE OF CANADA (MONTREAL BRANCH) CHARLES HO RESPONDENTS - Plaintiffs and REGISTRAIRE DES ENTREPRISES DU QUÉBEC Impleaded Party 500-09-024413-148 77 TH EXECUTIVE COMMITTEE OF THE MONTREAL CHINESE NATIONALIST LEAGUE APPELLANT - Plaintiff v.

CHARLES HO HSIANG-HIE HSIH HSIU FONG HENRY WU YU-SHIA SHEH MIN-KONG WONG KUN-MING LEE CHI-SANH CHANG TA-CHI CHI RESPONDENTS - Defendants and CHINESE NATIONALIST LEAGUE OF CANADA (MONTREAL BRANCH) INC. Impleaded Party REASONS FOR THE JUDGMENT RENDERED ORALLY ON JANUARY 20, 2016 [1] This is an appeal of a judgment rendered on April 3, 2014 by the Quebec Superior Court, District of Montreal (the Honourable Stephen W.

Hamilton), concerning a dispute between two rival groups within the Montreal Chinese community regarding the ownership of a building located in the Chinatown district of Montreal (" the Building "). [ 2 ] The legal dispute arose as a result of the Chinese Nationalist League of Canada (Montreal Branch)’s (" the Montreal Association ") decision to split from the Chinese Nationalist League of Canada (" the Canadian League ") in October 2009, following a change of leadership within the Canadian League and its realignment with the Kuomingtang Taipei, a Chinese political party headquartered in Taiwan. [ 3 ] This split occurred a number of years after the contestation of elections held in 2001 within the Montreal Association, which led to a previous series of legal proceedings.

A first judgment rendered on October 14, 2005 by the Quebec Superior Court (Tingley, J.) (" the Tingley judgment ") upheld the results of the election process carried out by the Respondents in March 2001, where Respondents Ho and Fong became directors of the Montreal Association.

It also denounced the Taipei Group’s unsuccessful attempt to take over the Montreal Association and the corporation that it controlled, the Chinese Kuomingtang of Canada (Montreal Branch) inc. (" the Corporation "). [ 4 ] Earlier, the Canadian League had recognized the results of the election held in March 2001 and continued to recognize the results of the subsequent elections held within the Montreal Association every two years from thereon. [ 5 ] That was until the president of the Canadian League passed away.

His successor was more aligned with Kuomingtang Taipei and Respondent Ho of the Montreal Association expressed his disappointment with this. Ho was expelled from the Canadian League in May 2009. [ 6 ] Meanwhile individual Appellants Lee, Lu, Wu, Chang, Jon and Yin, who were allies of the Kuomingtang Taipei in Taiwan,

had become directors of the Appellant 77 th Executive Committee of the Montreal Chinese Nationalist League (" the 77 th Committee ").

They instituted a Motion of eviction against the individual Respondents in March 2009, in which the 77 th Committee eventually replaced them as sole Plaintiff. [ 7 ] On October 7, 2009, Appellant Lu filed documents with the Registraire des enterprises to change the name of the Corporation and to replace the individual Respondents as directors with the individual Appellants. [ 8 ] In response, the Montreal Association voted in favour of terminating its affiliation with the Canadian League and advised it in writing on October 17, 2009 that "the Headquarters and our [Montreal] Branch would operate as two distinct identities based on mutual respect and non-interference…". [ 9 ] On October 21, 2009, Appellant Lu entered the Building, changed the locks and alarm system, placed a notice on the door warning that trespassing would not be tolerated and notified the tenants of a change in ownership.

Respondent Ho called the police and forced Appellant Lu to leave the premises. Locks were again replaced and the alarm reset. [ 10 ] In November 2009, the Canadian League advised the Montreal Association to stop using the Chinese Nationalist League name and expressed its disappointment with the split, further stating that, "We regret the fact of your Branch resolution gaining distinct operational independence from our League".

From thereon, the Canadian League asked the 77 th Committee to take over the activities of the Montreal Association. [ 11 ] In January 2010, the Respondents sued the individual Appellants in damages. [ 12 ] The Motion of eviction and the claim for damages were joined for trial and heard before Hamilton, J., of the Quebec Superior Court, who rendered the judgment now in appeal. [ 13 ] The trial judge dismissed the Motion for eviction (500-09-024413-148), granted the claim for damages in part against certain Appellants (500-09-024407-140) and ordered that the Appellants stop interfering with the operations of Corporation and the Montreal Association.

He also ordered that the Corporation records, which had been illegally modified in October 2009, be rectified. [ 14 ] The judgment provides a detailed review of the relevant facts of the case which led the trial judge to recognize the validity of the Montreal Association’s split from the Canadian League, which took place on October 17, 2009 and its rightful ownership of the Building since. [ 15 ] The trial judge held that the split had been decided by the Montreal Association following a democratic process held in compliance with its by-laws and that, based on the exchange of correspondence at the time, it had been accepted by the Canadian League. [ 16 ] The trial judge concluded, based on the evidence, that the Corporation had been the registered owner of the Building since 1946, when said Building was transferred to the Corporation and that the Corporation held the Building in trust for the Montreal Association.

He found that the Montreal Association predated the Canadian League, as it had been established in 1914 prior to the Canadian League (founded in 1929) and that, as a result, it was a separate association and not merely a branch of the Canadian League. There was no specific evidence adduced to support the proposition that the Montreal Association had ceased to have a separate existence and become a branch of the Canadian League between 1929 and 2004.

He also took note of the fact that the Montreal Association had continued to pay for and administer the Building throughout the years, either directly or through the Corporation, independently from the Canadian League, as it was entitled to do so in virtue of the Canadian League by-laws.

He also pointed out that there was nothing in these by-laws that provide for any transfer of the property of an association to the Canadian League. [ 17 ] The trial judge concluded that the Montreal Association, currently run by an executive made up of members of the Ho faction (the Respondents), had remained the rightful owner of the Building after the split, having since continued its existence as an independent association with the capacity to own the Building. [ 18 ] Having recognized that the Montreal Association was the rightful owner of the Building, the trial judge dismissed the Motion of eviction. [ 19 ] He also refused to declare that Appellant 77th Committee is the sole representative of the Canadian League in Montreal and to order the expulsion of the individual Respondents from the Kuomingtang, on the basis that these issues are matters to be decided by internal management but also given his serious reservations as to the interest of the 77 th Committee to raise these issues in the absence of the Kuomingtang or the Canadian League.

Moreover, given these reservations as well as the fact that the use of the name by the Montreal Association predates its use by the Canadian League, he denied the 77 th Committee’s request to prohibit the Montreal Association from using the name of the Chinese Nationalist League or Kuomingtang, while also pointing out that those names are not proprietary because they are generic. [ 20 ] In both situations, the trial judge reserved the rights of the Kuomingtang Taipei and Canadian League to raise these issues in the future. [ 21 ] Finally, the trial judge concluded that the Corporation was entitled to damages totalling $7,812.61 from certain Appellants, but dismissed the Respondents’ claim for punitive damages and extra-judicial fees, along with Respondent Charles Ho’s personal claim in damages. [ 22 ] In appeal, the Appellants are asking the Court to re-examine the evidence adduced at trial in order to conclude otherwise than did the trial judge, without however pointing to any specific overriding or palpable error on his part. [1] [ 23 ] They fail to demonstrate that the trial judge erred in concluding that there was a valid split on the part of the Montreal Association which had an existence separate from the Canadian League and that the Montreal Association was and remains the rightful

owner of the Building, regardless of its split from the Canadian League. [ 24 ] Furthermore, the Court finds no merit to Appellants’ contention that the trial judge contradicted the findings of the Tingley judgment and contravened the principle of res judicata. There is no such contradiction. In 2005, Tingley, J., was merely called upon to rule on motions seeking declaratory and injunctive relief and damages arising from the contested election held within the Montreal Association in 2001 and the Kuomingtang Taipei’s unlawful interference into the Montreal Association’s affairs.

The context was different as were the legal and factual issues; the ownership of the Building was not at issue and the Montreal Association’s split from the Canadian League had not yet taken place. [ 25 ] Given this Court’s conclusion regarding the Montreal Association’s rightful ownership of the Building, the Appellants’ additional submissions, with respect to the trial judge’s errors in finding that the attempt "to take over the Building" in October 2009 constituted a civil fault on the part of the Appellants and that the Corporation records must be rectified to reflect the corporate situation prior to October 2009, must also fail. [ 26 ] These are the reasons why, at the hearing, the Court dismissed the appeals with legal costs.

FRANÇOIS PELLETIER, J.A. GENEVIÈVE MARCOTTE, J.A. ÉTIENNE PARENT, J.A. Mtre Alain Tremblay OUELLET NADON ET ASSOCIÉES For the appellants Mtre Ronald Achim AUDET F.G. ET ASSOCIÉS For the respondents Date of hearing: January 20, 2016