ABUBAKER HASSAN, ANJUM SAEED, AHMED SHOKER, ILEANA DAWOUD, v. MOHAMED HAJINOOR,, 2023 SKKB 223

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 223 Date: 2023 10 25 File No.: KBG-SA-00998-2023 Judicial Centre: Saskatoon BETWEEN: ABUBAKER HASSAN, ANJUM SAEED, AHMED SHOKER, ILEANA DAWOUD, AND MOHAMED HAJINOOR, APPLICANTS - and - MUHAMMAD MUSTAFA MASTAAN, SARIN NADUVILOTHI, SHEHLA NAZ, KHALEEQ, ZUHAIB JAHANGIR AND OMAR SHARIF, and DIRECTOR OF CORPORATIONS, RESPONDENTS Counsel: Grant J. Scharfstein, K.C., and Christine K. Libner for the applicants Jared D. Epp for the respondents ___________________________________________________________________________ JUDGMENT BARDAI J.

October 25, 2023 ___________________________________________________________________________ [ 1 ] The dispute between the parties concerns control of the Islamic Association of Saskatchewan (Saskatoon) Inc. [IAS]. [ 2 ] The IAS is a charitable not-for-profit organization registered with the Province of Saskatchewan and established in 1972. The IAS serves the Islamic community and operates a centre, including a gymnasium, library and prayer hall [Mosque] in Saskatoon at 222 Copland Crescent, Saskatoon.

The IAS has a constitution and bylaws which govern the operation of the organization and its more than 1,000 members. [ 3 ] The prayer services at the Mosque are led by an Imam. The Imam plays an important role in the operation of the IAS and in the conduct of religious services at the Mosque. In 2022, the then Imam of the Mosque, Ilyas Sidyot, was terminated by the board of directors of the IAS for cause, being financial misconduct in relation to a fundraising campaign seeking to raise money for a new mosque. [ 4 ] The decision of the board of directors to terminate Imam Sidyot was not unanimous.

Taseen Desin, a board member at the time, did not sign the letter of termination. The affidavit evidence before the Court details a struggle between two groups

within the IAS, a group supportive of Imam Sidyot and a group supportive of the decision to terminate him. [ 5 ] The conflict between these two factions within the IAS has led to allegations of social bullying, physical altercations and even the disruption of prayer services at the Mosque. [ 6 ] On March 26, 2023, a meeting of the members of the IAS was held for the purposes of electing a new board of directors. 863 members of the IAS participated in the meeting and the subsequent vote at which time, the applicants, Dr. Abubaker Hassan (president), Anjun Saeed (general secretary), Dr.

Ahmed Shoker (vice-president), Ileana Dawoud (vice-president sister) and Mohamed Hajinoor (treasurer), were elected, collectively the [Hassan Board]. Each of the positions on the board were contested in the March 26, 2023 election and in most cases, the successful candidate for each position on the board won by less than 100 votes according to the meeting records. [ 7 ] The Hassan Board, according to their evidence, took office with the aim of getting the IAS back on track.

The organization was in a state of chaos and there was a need to complete fillings and to hold an annual general meeting [AGM] to ensure the IAS did not lose its charitable status. The Hassan Board also considered the completion of a forensic audit for the purposes of looking into the alleged financial misconduct. The forensic audit, expected to cost between $65,000-$95,000, was abandoned shortly after Imam Sidyot commenced a legal proceeding for wrongful dismissal.

That action has yet to be resolved and is being defended by the IAS. [ 8 ] The election of the Hassan Board did little to resolve the conflict among members of the IAS. The decision of the Hassan Board not to proceed with an audit resulted in increased tension within the IAS membership. The respondents, collectively the [Mastaan Group], are supportive of Imam Sidyot and took steps to call their own general meeting of the IAS, petitioning the Hassan Board for a meeting.

The Hassan Board however refused to call a meeting in a timely manner and so the Mastaan Group took steps to call their own meeting for the purposes of replacing the Hassan Board. [ 9 ] Tensions continued to escalate between the two groups over the summer of 2023 resulting in allegations of personal attacks and concerns about safety being raised. These allegations got so serious that police had to become involved.

On August 20, 2023, a meeting took place at the Park Town Hotel in Saskatoon at which time, 203 members of the IAS attended and the respondents, Muhammad Mustafa Mastaan (president), Sarin Naduvilothi (vice-president), Shehla Naz Khaleeq (vice-president sister), Zuhaib Jahangir (general secretary) and Omar Sharif (treasurer), collectively the [Mastaan Board] were elected as directors of the IAS.

At roughly the same time as the meeting at which the Mastaan Board was being elected, the Hassan Board was in the process of approving the hiring of a new Imam, Imam Ebrahim. [ 10 ] At issue in the present applications is whether or not the meeting held August 20, 2023 was a valid meeting at which time a new board, being the Mastaan Board was elected.

Presently, the IAS is in a state of turmoil as there is now a situation where two competing boards are purporting to exercise authority over the affairs of the organization. [ 11 ] The Hassan Board has filed an originating application dated August 25, 2023, an application without notice dated August 25, 2023, an amended originating application dated September 21, 2023 and a second application without notice dated September 21, 2023, which all in effect seek the same relief, being a declaration that the meeting of August 20, 2023 was not valid and that the Hassan Board remains the duly elected directors of the IAS.

The Hassan Board argues that the Mastaan Board are interfering with the proper operation of the IAS by asserting authority that they simply do not have. [ 12 ] The Mastaan Board meanwhile have brought an application of their own filed September 15, 2023 in which they ask that the relief sought by the Hassan Board be dismissed and that they be declared the validly elected directors of the IAS. [ 13 ] The parties have already been before this Court on a number of occasions to deal with the without notice applications and on issues of scheduling.

The results of those appearances are set out in the fiat of Bergbusch J. dated October 2, 2023 at paragraphs 4-10: [4] On August 25, 2023, the applicants issued an originating application seeking an order setting aside and declaring invalid the election results of the Impugned Meeting and declaring them collectively to be the board of directors of the IAS.

They also filed a without notice application seeking interim orders to restrain the respondents from acting as directors, declaring the applicants to be the only directors of the IAS, and directing that the originating application be heard with notice on September 14, 2023. [5] On September 1, 2023, Justice Gerecke dismissed the application without notice but granted leave to the applicants to bring their application on notice. [6] On September 14, 2023, the originating application was adjourned to October 5, 2023 by Justice Dovell. [7] On September 15, 2023, the respondents filed a notice of application for an order that the applicants’ originating application be heard on October 5 and that it be dismissed.

The respondents also requested an order declaring them to have been validly elected directors of the IAS on August 20, 2023.

It appears that the respondents’ counsel was not yet aware of Dovell J.’s order when this notice of application was filed. [8] On September 21, 2023, the applicants filed a new application without notice seeking interim orders declaring them to be the authorized directors of the IAS, restraining the respondents from exercising any power or control over the affairs and business of the IAS, and directing changes to the corporate profile report of the IAS in conformity with those orders. [9] The applicants also filed an amended originating application, returnable October 5, 2023, that clarifies the statutory authority upon which they rely, expands upon the relief sought, and provides more particulars of the grounds for the orders sought.

Four supplemental affidavits were filed in support of the amended application. [10] On September 21, 2023, following a conference call with counsel for both sets of parties, Justice Crooks adjourned the new application without notice to September 28, 2023.

[ 14 ] Ultimately, Bergbusch J. declined to grant interim relief and set the matter over to October 5, 2023. [ 15 ] The central question raised by the competing applications is whether the August 20, 2023 meeting was properly called and carried out in accordance with the requirements of The Non-profit Corporations Act, 2022 , SS 2022, c 25 [ Act ], and the constitution and bylaws of the IAS.

At its core, the issue is whether the Hassan Board or the Mastaan Board is the properly elected board of directors of the IAS entitled to direct the affairs of the organization. [ 16 ] In support of their position, the Hassan Board has filed affidavits from Ileana Dawoud sworn August 25, 2023, Abdullah Patel sworn September 21, 2023, Abubakar Hassan sworn September 21, 2023, Ahmed Shoker sworn September 21, 2023, Ileana Dawoud sworn September 21, 2023, Arifa Rajput sworn September 29, 2023 and Ileana Dawoud sworn September 29, 2023. [ 17 ] In response, the Mastaan Board has filed the affidavits of Mustafa Mastaan sworn September 14, 2023, Mustafa Mastaan sworn September 26, 2023 and Zuhaib Jahangir sworn September 26, 2023. [ 18 ] Each of the two groups have also filed extensive briefs which were of great assistance to the Court. [ 19 ] The voluminous material filed details the extensive history between the two groups that has brought them to this point.

The material describes an escalating conflict that has gotten to the point where there are now allegations of social bullying, physical altercations, disturbances in the prayer hall, physical interference with religious proceedings, shouting matches, allegations of misinformation campaigns, allegations of lying and concerns for personal safety that have gotten so bad that police have had to become involved. Suffice it to say that the Court is deeply troubled by the behaviour detailed in the various affidavits and the accompanying videos. This behaviour needs to stop and it needs to stop immediately.

That said, the issue to be determined is not who is responsible for the decline of civility, decorum and behaviour at the IAS, rather, the only question is whether or not the August 20, 2023 meeting was properly called and conducted. Evidence Respecting the Calling and Conduct of the August 20, 2023 Meeting Hassan Board’s Evidence [ 20 ] The applicants’ position is that the August 20, 2023 meeting was not carried out in a manner that was fair and/or in accordance with the IAS’s previous practice, the organization’s constitution or principles of fundamental fairness.

They contrast the process used in March of 2023 with the process used in August of 2023. [ 21 ] The IAS uses WhatsApp to communicate with its members. The “IAS Announcements” group consists of 1,000 members. The March 26, 2023 meeting which is not in issue was overseen by Abdullah Patel. Mr. Patel’s evidence is that after several meetings to try and mediate the dispute between the two factions, it was decided that a meeting would be held to elect a new board of directors. He was appointed to act as the election chair for the election of the new board.

A joint statement was sent to the membership using the WhatsApp group so that members would know of the pending election. [ 22 ] On January 15, 2023, a nomination period began and a deadline for nominations was set for an election that was to occur on February 12, 2023. Unfortunately, Mr. Patel did not receive a verified membership list from the then board in a timely way and accordingly, the election had to be adjourned. [ 23 ] A membership list was released on March 11, 2023 and Mr. Patel sent out nomination forms to the IAS community using WhatsApp on March 15, 2023.

The community was advised of the nominations on March 20, 2023 and a final membership list was circulated on March 21, 2023. Multiple nominations were received for each position, though some of these nominees withdrew their names just prior to the election. The remaining candidates were invited to provide their platform (in writing or by video) for release to the community and were told that they would not be given a chance to address the membership on the night of the meeting. [ 24 ] The platforms received from candidates were shared with the community by Mr.

Patel as he received them, again using the WhatsApp platform. The rules for the election were circulated and a group of volunteers to help oversee the election was formed based on recommendations received from both factions. Ballots were prepared and reviewed with the election volunteers and observers. Ballots were numbered, water-marked and labeled with a check box next to the name of each candidate. [ 25 ] At the special general meeting, after a quorum was established, the then board resigned and voting for a new board commenced.

The ballots were handed out and collected and then counted in the presence of four observers and the volunteers in the IAS library. The voting was halted briefly to allow for prayers but the ballot boxes were never left unsupervised. The final vote count was signed by the four observers. There were 863 total votes cast and the results of the election, reproduced below were circulated to the membership on the evening of March 26, 2023:

[ 26 ] Within days of reporting the results of the election, Mr. Patel began receiving notes alleging that he had “rigged” the election. All election documents were turned over by Mr. Patel to his personal lawyer to be held in trust. [ 27 ] The Hassan Board’s evidence respecting the August 20, 2023 meeting is set out in the affidavits of Mr. Shoker and Ms. Dawoud. [ 28 ] Mr. Shoker’s evidence is that the Hassan Board banned political activities at the IAS due to what he describes as aggressive behaviour and social bullying that was going on.

He says he was surprised to learn that a special general meeting had been requested and had gone ahead on August 20, 2023. He says he did not know that such a meeting was going to occur and only learned of it afterward through second-hand sources. The Hassan Board did not receive any advance notice that the meeting was going ahead at a different location and was never asked to share an agenda. He says he was never provided an opportunity to be heard and describes the August 20, 2023 election as an illegal election. [ 29 ] Ms.

Dawoud’s evidence is that on August 6, 2023, the Mastaan Group posted notice of a special general meeting to “address the concerns raised in the petition submitted to the IAS Board on July 19, 2023…”. That petition dealt primarily with the decision of the Hassan Board not to perform an audit. The petition states in part: … We decided as per the

Article IV-A-8, We, 40 voting members of IAS in a good standing are exercising our vested right by submitting the below petition: As per outcome of the October 12, 2022, Special General Meeting and the commitment from the current BOD that Forensic Financial Audit will be performed on the previous IAS Board including Imam llyas. However, the current announcement (Dated July 4, 2023) from IAS board on suspension of Forensic Financial Audit based on that Imam llyas seeking legal counsel does not comply with their commitment. 1.

The announcement of July 4 th of suspending the External Forensic Audit (EFA) has intensified the mistrust on the IAS board. For the board to rebuild trust and regain the confidence, the members demand an in-person SGM to address and clarify below points regarding the suspended EFA a. Disclose the name of Auditor to ensure that competent and certified auditor was selected. b. Explain the scope in detail c. Explain the details of outcome. What has been achieved during engagement i.e., from initiation till the suspension d. The cost of EFA incurred by the IAS 2.

We, the community demanding that the board should complete the Forensic Financial Audit of the previous board including Imam and share the result with the community. Please note that a formal proposal from MNP has already been submitted to the board to conduct the Forensic Financial Audit by lrfan Mir on April 22, 2023. 3. Since there is no relation between Forensic Financial Audit and Imam llyas litigation against IAS, therefore, the board should not appoint any Imam until a formal result has been communicated / shared with IAS community. ... Signed by: Nadeem Haider & Mussawar Naeem ...

[ 30 ] On August 12, 2023, the Mastaan Group circulated a new agenda which included calls for a vote of no confidence. On the date of the meeting, the place of the meeting was changed 15 minutes beforehand according to Ms. Dawoud. [ 31 ] On August 13, 2023, the Hassan Board received a petition supporting their board signed by 189 congregants. Mastaan Group’s Evidence [ 32 ] The circumstances surrounding the August 20, 2023 meeting from the Mastaan Group’s perspective are set out in the affidavit of Mr. Mastaan. [ 33 ] Mr.

Mastaan’s evidence concerning the March 26, 2023 election is that while that election result was not challenged, “there were a number of people within the IAS community who expressed concern to me about the election with the specific concern being the voter lists that were used ( i.e. , certain members may have been given multiple ballots)”. Mr. Mastaan says that the Hassan Board was elected on a mandate to audit the finances of the IAS and investigate the allegations made against Imam Sidyot. When the Hassan Board decided not to proceed with an audit, it prompted the petition and request for a meeting.

The Hassan Board refused to call the requested meeting. Mr. Mastaan and others felt they were being ignored by the Hassan Board and decided to call their own meeting. [ 34 ] On August 5, 2023, Mr. Mastaan arranged for a special general meeting notice to be posted to the notice board of the Mosque. The August 5 notice states: SPECIAL GENERAL MEETING (SGM) NOTICE Aug 6th, 2023 Assalamo alaikum, Dear Community Members, This is to inform you that we will be holding a Special General Meeting (SGM) on Saturday, Aug 20th, 2023 at 11AM.

This meeting will be held to address the concerns raised in the petition submitted to the IAS Board on July 19th, 2023, by lead petitioners Nadeem Haider and Mussawar, signed by over 130 IAS members. The meeting will be held in accordance with the Saskatchewan Non-Profit Corporations Act

Section 11-12 Subsection 4 ( 2022, c25, s.11-1 ). At IAS 222 Copland Crescent, Saskatoon, SK, S7H 2Z5. Yours truly, Nadeem Haider and Mussawar [Emphasis added] [ 35 ] A new notice was posted on August 6, 2023 due to a typographical error in the original notice calling for a meeting on Saturday, August 20, 2023, not Sunday, August 20, 2023. The new notice includes an agenda seeking the removal of the Hassan Board.

The August 6, 2023 notice states: SPECIAL GENERAL MEETING (SGM) NOTICE Aug 6th, 2023 Assalamo alaikum, Dear Community Members, This is to inform you that we will be holding a Special General Meeting (SGM) on Sunday, Aug 20th, 2023 at 11 AM. This meeting will be held to address the concerns raised in the petition submitted to the IAS Board on July 19th, 2023, by lead petitioners Nadeem Haider and Mussawar, signed by over 130 IAS members. Agenda: 1. Vote of no confidence 2. Elect a new BOD 3. To pass a resolution and Bylaws: a. Against those individuals who violate the sanctity Human Dignity and Masjid b.

All Protest should be held outside the premises of IAS building. The meeting will be held in accordance with the Saskatchewan Non-Profit Corporations Act

Section 11-12 Subsection 4 ( 2022, c25, s.11 -1). At IAS 222 Copland Crescent, Saskatoon, SK, S7H 2Z5.

Yours truly, Nadeem Haider and Mussawar [Emphasis added] [ 36 ] The Hassan Board responded by posting a note dated August 7, 2023 objecting to the August 6, 2023 meeting notice and saying there would be no meeting called by the board and the notice was to be taken down. [ 37 ] Mr. Mastaan circulated an agenda for the August 20, 2023 meeting using WhatsApp but it is not set out in his affidavit whether he used the same chat group as was used by the previous board (being the board in place prior to March 26, 2023).

The agenda for the Special General Meeting states: Islamic Association of Saskatchewan (IAS) Special General Meeting (SGM) Agenda Date: August 20 th , 2023 Time: 11 AM Location: IAS 222 Copland Crescent, Saskatoon, SK S7H 2Z5 Dear IAS Members, We extend our warm greetings to you all and welcome you to the Special General Meeting (SGM) of the Islamic Association of Saskatchewan. The purpose of this meeting is to address critical matters that have arisen concerning the integrity, transparency, and values of our organization. Your active participation is vital to shaping the future of IAS.

The agenda for the SGM is as follows: 1. Opening and Welcome Remarks • Recitation of the Holy Quran • A brief introduction by the Chairperson. 2. Discussion of Recent Developments • An overview of the situation surrounding the commencement of the Financial Forensic Audit (FFA) and the dissemination of misleading information. • Consideration of the issue regarding notices targeting specific individuals, particularly Imam llyas Sidyot, without commensurate investigation of others involved. 3.

Loss of Community Confidence • Discussion on the loss of community confidence in the current Board of Directors due to the handling of the FFA and related matters. 4. Agenda Items for Resolution • Vote of No Confidence (Deliberation and vote on expressing a vote of no confidence in the current Board of Directors) • Selection of New Board of Directors (Election or appointment of a new set of five Board members) • Amendment to IAS Constitution: Protection of Islamic Values and Human Dignity • Presentation and discussion on the proposed amendment to the IAS Constitution to safeguard Islamic values and human dignity.

Clause (a): Revocation of Membership for Lying to the Community Clause (b): Revocation of Membership for Humiliating/Slandering/Ridiculing any human. 5. Closing Remarks • Final thoughts from the Chairperson. We urge all members to actively participate in this crucial SGM as it will help shape the future direction of IAS. Your opinions and input are invaluable, and we encourage respectful and constructive discourse throughout the meeting. Thank you for your dedication to the values and mission of IAS. We look forward to a productive and enlightening discussion.

Sincerely, Nadeem Haider & Mussawar Naeem [ 38 ] The Hassan Board challenged the information and notices being circulated by the Mastaan Group on the basis that they amounted to personal attacks. On August 19, 2023, the Hassan Board indicated that they would be restricting political activities at the IAS for safety reasons. Mr. Mastaan thereafter took steps to find an alternate location for the meeting, being the Park Town Hotel and notice was sent out to the members using WhatsApp of the new meeting location. He called and texted dozens of members about the change in venue.

On the day of the meeting, Fahim Ahmed and Dr. Omar Faye attended at the IAS to re-direct people to the Park Town Hotel for the meeting as the doors to the gymnasium of the IAS where the meeting was initially planned to occur were locked.

[ 39 ] Approximately 200 people attended the special general meeting at which time, a no-confidence ballot was passed and a new slate of directors was elected. Before the vote on new directors was taken, a call was made for other nominations but no further or other nominations were received.

The meeting minutes of the August 20, 2023 meeting indicate: Minutes of the IAS Special General Meeting (SGM) Date: August 20, 11:00 AM Venue: Park Town Hotel Agenda: Opening and Welcome Remarks Recitation of the Holy Quran Brief introduction by the Chairperson Discussion of Recent Developments Overview of the situation surrounding the Financial Forensic Audit (FFA) and misleading information dissemination Issue of notices targeting specific individuals, particularly Imam llyas Sidyot, without adequate investigation of others involved Loss of Community Confidence Discussion on the loss of community confidence in the current Board of Directors due to the handling of FFA and related matters: Agenda Items for Resolution 1.

Vote of No Confidence in the current Board of Directors. 2. Selection of New Board of Directors (Election or appointment) 3. Amendment to IAS Constitution: Protection of Islamic Values and Human Dignity a. Clause (a): Revocation of Membership for Lying to the Community b. Clause (b): Revocation of Membership for Humiliating/Slandering/Ridiculing any human. 4. Closing Remarks 5. Final thoughts from the Chairperson Minutes of the IAS Special General Meeting (SGM) The Special General Meeting (SGM) of the Islamic Association of Saskatchewan (IAS) was held on August 20 th , at 11:00 AM at the Park Town Hotel.

The meeting was chaired by Mr. Naveed Anwar, upon the request of Mr. Mussawar Naeem, the petitioner. The meeting commenced promptly at 11:00 AM . Mr. Yasir Khan as nominated by Naveed Anwar, assisted with member registration and provision of ballots, while members signed the attendance sheet. Once the quorum was met, Mr. Yasir Khan informed the chairperson to begin the meeting. Call to Order: The quorum was met at 11:30 AM . Mr. Naveed Anwar welcomed all participating members and presented the agenda of the meeting. Approval of the agenda: Mr. Naveed Anwar went over the proposed agenda and requested approval. Mr.

Sayed Iqbal moved to approve the agenda and seconded by Mr. Shafqat Cheema. Recitation of Quran: Mr. Abdullah Mustaan recited verses of the Holy Quran. Presentation of the motions as per the agenda:

The chairperson went over the first motion, which was to express a Vote of No Confidence in the current IAS Board of Directors. The motion was moved by the Muhmmad Yousuf and seconded by Mr. Sohail Ghani. The participating members were asked to vote by the Chairperson. After casting the vote for on the 1 st motion, the chairperson went over the second motion, which was to express a Vote to select five new members for the IAS Board of Directors. The motion was moved by the Muhmmad Yousuf and seconded by Mr. Sohail Ghani.

The Chairperson requested the participating members to vote, to select five new Board of Directors. Due to time constraints, the final motion regarding the “Amendment to IAS Constitution: Protection of Islamic Values and Human Dignity” was not presented or discussed during this meeting. Declaration of the voting results: At 11:30 AM, the cutoff time for voting was declared, and only the members who were present and had cast their votes were counted, the member who showed after 11:30 AM their attendance was marked but were not allowed to vote. Dr. Nazir Ahmed and Mr.

Mohammad Yousuf were requested to count the votes and ensure that the ballots were correctly filled.

After the vote counting was completed, the Chairperson announced the results: • Total attendance of the valid members was counted to be 203. • No Confidence Motion on the Current Board (Removal of directors as per the Saskatchewan Corporation’s Non-Profit act 2022): Passed with 161 votes in favor. • Motion to Select New Board Members (Filling vacancy as per the Saskatchewan Corporation’s Non-Profit act 2022): Passed with 157 votes in favor. • Because of the cutoff time 40 votes were not counted • 1 vote was declared rejected. • 1 vote was declared abstained.

The following new IAS Board members were appointed: • President: Muhammad Mustafa Mustaan • Vice President: Sarin Naduvilothi • Vice President Sister: Or. Shela Naz Khaleeq • General Secretary: Zuhaib Jahangir • Treasurer: Omar Sharif Question from the membership: There were no questions. Adjournment: The Chairperson thanked all the participating members for their attendance and active participation and express his regrets to members whose votes were not counted. The meeting was adjourned at 12:30 PM.

Signatures: “Zuhaib Jahangir” Zuhaib Jahangir General Secretary IAS BOD [Emphasis added] [ 40 ] After the vote, the Mastaan Board took steps to change the corporate profile report at the Information Services Corporation [ISC] for the IAS and sent notice to the Hassan Board demanding that all IAS property be turned over to them.

Reply Evidence [ 41 ] Both sides have filed extensive reply evidence relating to the conduct of the August 20, 2023 meeting. [ 42 ] Ms. Ileana Dawoud’s evidence is that messages sent using WhatsApp by Mr. Mastaan were not sent to the “IAS Announcements” group but rather to a group called “IAS Community”, later changed to “IAS Official”. No email was sent using the official IAS channels that reaches all members. [ 43 ] Her evidence is that the Hassan Board limited political activities at the IAS as a precaution due to concerns over conflicts between the two groups. [ 44 ] According to Ms. Dawoud, Mr.

Mastaan does not have access to the IAS membership and is not the administrator of the “IAS Announcements” WhatsApp group. Mr. Mastaan’s WhatsApp group includes only 500 individuals, far fewer than the IAS Announcements group. [ 45 ] Ms. Dawoud acknowledges that the gymnasium at the IAS centre was locked on August 20, 2023 but says meetings can also occur in the library or prayer hall. Ms.

Dawoud takes issue with the ballots used at the August 20, 2023 meeting saying that names are misspelled, the notice did not contemplate election of a predetermined slate, there was no official voter list or notice, and the agenda varied from the original petition. It was her understanding that the August 20, 2023 special general meeting was going to be restricted to the issue of the suspension of the audit and request that a new Imam not be appointed. [ 46 ] Mr. Mastaan for his

part in reply, points out that the notice for the August 20, 2023 meeting was sent not just by WhatsApp but by posting the notice to the announcement board at the IAS, by email, phone and text messages. He also says that the gymnasium, which was locked from the outside by a bicycle lock, had been booked by an IAS member who signed the initial petition and paid a $375 deposit. [ 47 ] Mr.

Mastaan’s evidence is that there was no confusion at the meeting of August 20, 2023, that the agenda was circulated on August 6 and 12, that the Hassan Board refused to provide an official membership list and that the election was overseen by counsel, Michel Riou of Anwar & Riou Law Office. He notes that the IAS constitution only requires the attendance of 80 members but more than 200 showed up.

Position of the Parties [ 48 ] The position of the Hassan Board is that they are the duly elected board, that the August 20, 2023 election was not carried out in accordance with the Act and bylaws and that the Court should find that the August 20, 2023 vote is of no force and effect. Alternatively, the Hassan Board says that the Mastaan Board has engaged in oppressive behaviour in the manner in which the August 20, 2023 meeting was conducted such that the meeting should be found to be of no force and effect.

Finally, in the further alternative, the Hassan Board argues that there is a serious issue to be tried, that they are suffering irreparable harm and that on a balance of convenience they should be granted an interim injunction, enjoining the Mastaan Board from exercising or purporting to exercise power on behalf of the IAS. [ 49 ] In terms of the relief sought, the Hassan Board submits that they should be declared the legitimate board of the IAS. Alternatively, they say that they should be declared the legitimate board of the IAS with a confidence vote to be held at the next AGM of the IAS.

If the Hassan Board loses that vote, an election for a new board would be arranged in accordance with the organization’s bylaws. [ 50 ] The Mastaan Board meanwhile says that they complied with the bylaws by posting the notice of meeting to the bulletin board at the IAS. They say that the Court should, from the evidence, infer that the Hassan Board and their supporters made a conscious choice not to show up to the special general meeting and that I should find that they, being the Mastaan Board, are the rightful board of the IAS elected at a properly called meeting on August 20, 2023.

Alternatively, they say that the Court should create a board of directors that combines the two groups with each group having two seats on the board and with the four appointed board members to choose a fifth member. They argue that the Hassan Board, has, by virtue of multiple unsuccessful ex parte applications shown that they are only interested in holding on to power. Key Facts [ 51 ] There is considerable affidavit evidence that has been filed and much of that evidence is controverted, however, there are certain key facts that emerge from the evidence which are largely uncontested. (

a) Imam Ilyas Sidyot’s termination in 2022 was controversial and created a serious rift among members of the IAS; (

b) On March 26, 2023, the Hassan Board was elected in a hotly contested election where approximately 85 percent of the IAS members voted; (

c) The Hassan Board made a decision not to complete an external audit of the organization in July of 2023 at roughly the same time Imam Sidyot commenced a lawsuit against the IAS; (

d) The Hassan Board received a petition in July of 2023 demanding that a forensic audit be completed, that no new Imam be appointed and that a special general meeting be held; (

e) The Hassan Board agreed to hold a special general meeting but indicated that due to other pressing priorities, such meeting would not be held until late autumn or early winter. (

f) The supporters of the Mastaan Group purported to call their own special general meeting by notice dated August 6, 2023 (posted

August 5, 2023), when the Hassan Board failed to call a meeting in a timely manner. The initial notice of a special general meeting makes no reference to a vote of confidence in the Hassan Board and rather indicates that the purpose of the meeting is to address the issues raised in the July petition. (

g) An updated notice dated August 6, 2023 raises the issue of confidence in the Hassan Board; (

h) An agenda was circulated by the Mastaan Group to some but not all IAS members using email and WhatsApp on August 12, 2023; (

i) On August 13, 2023, there was a counter-petition signed by supporters of the Hassan Board delivered to the Hassan Board; (

j) On August 19, 2023, the Hassan Board decided to limit political activities at the IAS for safety reasons. This is one day before the date of the meeting arranged by the Mastaan Group; (

k) The Mastaan Group scrambled to find an alternative venue at which the special general meeting of August 20, 2023 could be held; (

l) The Mastaan Group called and emailed some congregants but not all, to alert them of the change in venue from the IAS to the Park Town Hotel and two persons were left at the IAS to direct people to the new meeting location, as the door to the gymnasium at the IAS where the meeting was originally to be held was locked; (

m) The August 20, 2023 meeting was attended by only those congregants supportive of the Mastaan Group and resulted in the unsurprising, essentially unanimous election of the Mastaan Board. (

n) The Mastaan Group did not have a list of eligible voters of the organization at the time of the August 20, 2023 election; (

o) The Mastaan Board after the August 20, 2023 election purported to exercise authority, amending ISC registrations and taking steps to try and take control of the assets of the IAS; (

p) IAS’s annual general meeting has been delayed and has yet to be held; and (

q) There have been ongoing altercations at the IAS among and between the two factions which have resulted in allegations of bullying, intimidation, physical confrontation and police complaints. Law and Analysis (

a) IAS Constitution [ 52 ] The IAS constitution and bylaws deal with the calling of meetings and election of board members. The constitution provides: C. Rights of Members : I. Members will be eligible to vote on all matters concerning the Association provided they have been members in good standing and have paid their annual dues at least 30 days prior to such vote . 2.

Members (over the age of 18 years) except hired staff will be eligible to hold elective office when elected, provided they have been members in good standing for at least 30 days and have paid their annual dues at least 30 days prior to such election. ... A. General Meeting: 1. The general meeting shall be composed of the General Members of the Association and shall be presided over by the President or by the Vice-President, in the event of the President’s absence.

In the absence of both the President and Vice-President, a properly- constituted general meeting at which at least a quorum of members is present shall elect its own chairperson to preside at the meeting. 2. The Association shall have an Annual General Meeting in every calendar year, which shall be held within 90 days of the end of the previous fiscal year, i.e. the Meeting shall be held between January 1 and March 31st. The fiscal year of the Association shall be from the 1st day of January to the 31st day of December. 3. The Annual General Meeting shall elect the members of the Board of Directors (BoD). 4.

Notice of the Annual General Meeting shall be posted on the notice board of the Masjid(s) (Islamic Center(s)), 21 days in advance of the Meeting . This period shall be deemed to be sufficient notice of meeting. 5. After the close of the four (4) week nomination period, if certain BoD position(

s) remain vacant, the newly elected BoD shall fill the vacant position(

s) by appointment with 30 days of the AGM , or as soon as reasonably possible thereafter, after consulting the Advisory Committee. No BoD nominations will be taken from the floor of the AGM . 6. A notice of the agenda of the Annual General Meeting, together with an Audited Financial Statement shall be mailed or e-mailed to all General Members, whose mailing and email addresses have been provided to the General Secretary, at least 7 days before the meeting is held. 7. The attendees at the Annual General Meeting shall be provided reports from all the Committees, as well as the reports of the President and Treasurer.

8. Special General Meetings of the Association may be called by a majority decision of the BoD, or by a written request bearing the signatures of 20% of the voting members or 40 voting members in good standing, which ever is the least. 9. Notice of a Special General Meeting shall be posted on the notice board of the IAS Masjid(s)/Center(s), 14 days in advance of the Meeting. This period shall be deemed sufficient notice of the Meeting. 10.

The agenda for a Special General Meeting shall be mailed or e-mailed to all General Members, whose mailing and email addresses have been provided to the General Secretary, at least 7 days in advance of the Meeting. 11. The Quorum of any Annual or Special General Meeting of the Association shall be at least one-third of the total number of Voting Members or 80 Voting Members, whichever is less . If the Quorum is not achieved, the meeting shall be rescheduled, with notice of the rescheduled meeting being provided 7 days in advance.

The Quorum of the rescheduled general meeting shall be at least one-fourth of the voting members or 40 members in attendance, whichever is less. ... B. Conduct of Elections: 1. Elections Chair: The BoD shall select the Elections chairperson at least two months before the proposed date of the AGM or election date . The Election Chair shall not be a current member of the BoD, and shall not be nominated for an elective office during his/her term as Elections chair.

If deemed necessary, the Elections chair may select up to two General Members in good standing to help the chair by serving as an election committee that includes the chair. The election committee members shall not be current members of the BoD, and shall not be nominated for elective offices during their service on the committee. 2. Nominations: Nomination time shall start four weeks prior to the Election date. The proposal (nomination) of members for elective office may be made by General Members in good standing in writing to the Election Chair using a prescribed form.

Such nomination should be signed by the nominee showing his/her acceptance of the nomination and willingness to serve if elected. Nominations will be closed one week prior to the Election date. 3. Nominees may withdraw their nomination at any time prior to the Elections date. If all the nominees for a particular position withdraw their names after the closing date for nominations, new nominations may be accepted until the time of the elections. 4. Names of eligible nominees shall be made public, by email or posting on the notice board, to all General Members once nominations close.

Nominees shall make themselves available, personally, by phone, or email, prior to the elections date to answer questions or concerns raised by the General Members. 5. Whenever there is more than one candidate for an elective office, the elections shall be conducted by secret ballot at an Annual General Meeting of the Association, subject to the qualification that a representative of each candidate shall be present during the counting of ballots. If only one candidate is nominated until the nomination deadline is closed, the candidate shall be announced as the new BoD member by acclamation. 6.

Elections for the BoD shall normally be held at an Annual General Meeting. 7. Members of the BoD shall be elected by simple majority of the Voting Members in attendance during the annual general meeting. 8. The Elections chair shall be responsible for the elections process; starting by receiving nominations till the announcement of the elected members. C. Board of Directors (BoD): … 3. In case of a vacancy in the BoD, the BoD may elect a replacement from the Voting Members in good standing to continue till the next AGM, provided that the replacement is approved by two​thirds of the Board. … J.

Resignations and Dismissals from the BoD: 1. Any member of BoD may resign after providing notice to the Secretary, except that in the case of the resignation of the Secretary, in which case notice shall be given to the President. The resigning member shall continue running the affairs of his/her Office for a period of one month or until a replacement is elected by the BoD. 2. Any BoD member who does not attend two consecutive BoD meetings without sufficient reason shall be considered to have resigned from the position, subject to affirmation by majority of the BoD members. 3.

Any member of the BoD who propagates activities contrary to the aims and the objectives of the Association shall be censured, in writing, by the BoD and, if such behaviour persists, may be dismissed from the BoD by a majority vote at a properly constituted general meeting, upon recommendation by the BoD. [Emphasis added]

(

b) Legislative Framework [ 53 ] The Non-profit Corporations Act, 2022 , provides in part: 9-9(1) Subject to subsection (2) and clause 9-7(g), the members of a corporation may, by ordinary resolution at a special meeting, remove any director or directors from office. …

(9) Notice of a meeting of members at which special business is to be transacted must: (

a) state the nature of that business in sufficient detail to permit the member to form a reasoned judgment concerning that business; and (

b) include the text of any special resolution to be submitted to the meeting . ... 11-6(1) A member entitled to vote at a meeting of members may: (

a) submit to the corporation notice of any matter that the member proposes to raise at the meeting, referred to in this

section as a “proposal”; and (

b) discuss at the meeting any matter with respect to which the member would have been entitled to submit a proposal.

(2) A corporation must include the proposal in the notice of meeting required pursuant to

section 11-4 . …

(5) A proposal may include nominations for the election of directors if the proposal is signed by not less than 5% of the members of a class of members of the corporation entitled to vote at the meeting at which the proposal is to be presented or any lesser number of members as provided in the bylaws, but this subsection does not preclude nominations made at a meeting of members .

(6) A corporation is not required to comply with subsections (2) and (3) if: (

a) the proposal is not submitted to the corporation at least 90 days before the anniversary of the previous annual meeting of members; (

b) it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal grievance against the corporation or its directors, officers, members or security holders ; … or (

f) the rights conferred by this

section are being abused to secure publicity. …

(8) If a corporation refuses to include a proposal in a notice of a meeting, the corporation shall, within 10 days after receiving the proposal, notify the member submitting the proposal in writing of its intention to omit the proposal from the notice of meeting and of the reasons for the refusal.

(9) On the application of a member claiming to be aggrieved by a corporation’s refusal pursuant to subsection (8), the court may restrain the holding of the meeting to which the proposal is sought to be presented and make any further order it considers appropriate.

(10) The corporation or any person claiming to be aggrieved by a proposal may apply to the court for an order permitting the corporation to omit the proposal from the notice of meeting, and the court, if it is satisfied that subsection (6) applies, may make any order it considers appropriate. 11-7(1) A corporation shall prepare a list of members entitled to receive notice of a meeting, arranged in alphabetical order and showing the number of membership interests held by each member: (

a) if a record date is fixed pursuant to subsection 11-3(1), not later than 10 days after that date; or (

b) if no record date is fixed: (

i) at the close of business on the day before the day on which the notice is given; or (ii) if no notice is given, on the day on which the meeting is held.

(2) Subject to subsection (3), if a corporation fixes a record date pursuant to subsection 11-3(1), a person named in the list prepared pursuant to clause (1)(

a) is entitled to vote the membership interest shown opposite the person’s name at the meeting to which the list relates. …

(5) A member may examine the list of members :

(

a) during usual business hours at the registered office of the corporation; and (

b) at the meeting of members for which the list was prepared. ... 11-12(1) The directors shall call a meeting of the members on the receipt of a written requisition specifying the purpose of the meeting from: (

a) in the case of a corporation with 1,000 or more members, the lesser of 5% of the membership and 300 members, but in no case less than 100 members; and (

b) in the case of a corporation with less than 1,000 members, 10% of the membership.

(2) The requisition mentioned in subsection (1), which may consist of several copies of like form each signed by one or more members, is to state the business to be transacted at the meeting and must be sent to each director and to the registered office of the corporation.

(3) On receiving the requisition mentioned in subsection (1), the directors shall immediately call a meeting of members to transact the business stated in the requisition, unless : (

a) a record date has been fixed pursuant to subsection 11-3(1) and notice has been given pursuant to subsection 11-3(4); (

b) the directors have called a meeting of members and have given notice pursuant to

section 11-4; or (

c) the business of the meeting as stated in the requisition includes matters described in clauses 11-6(6)(

b) to (f).

(4) If the directors do not call a meeting within 21 days after receiving the requisition mentioned in subsection (1), any member who signed the requisition may call the meeting. … 11-14(1) A corporation or a member or director may apply to the court to determine any controversy respecting an election or the appointment of a director or an auditor of the corporation.

(2) On an application pursuant to this section, the court may make any order it considers appropriate, including, without limiting the generality of the foregoing: (

a) an order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute; (

b) an order declaring the result of the disputed election or appointment; (

c) an order requiring a new election or appointment, and may include in the order directions for the management of the activities and affairs of the corporation until a new election is held or appointment made; (

d) an order determining the voting rights of members and of persons claiming to have membership interests. ... 18-4(1) A complainant may apply to a court for an order pursuant to this section.

(2) On an application pursuant to subsection (1), a court may make an order to rectify the matters complained of if the court is satisfied that, respecting a corporation or its affiliates, its activities or affairs have been carried on or conducted in a manner, its directors have exercised their powers in a manner, or its actions or omissions have effected a result that: (

a) is oppressive or unfairly prejudicial to any member, security holder, creditor, director or officer or, if the corporation is a charitable corporation, the public generally; or (

b) unfairly disregards the interests of any member, security holder, creditor, director or officer or, if the corporation is a charitable corporation, the public generally.

(3) In connection with an application pursuant to this section, the court may make any interim or final order it considers appropriate, including, without limiting the generality of the foregoing: (

a) an order restraining the conduct complained of; (

b) an order appointing a receiver or receiver-manager; (

c) an order to regulate a corporation’s affairs by amending the articles or bylaws or creating or amending a unanimous member agreement; (

d) an order directing an issue or exchange of securities; (

e) an order appointing directors in place of or in addition to all or any of the directors then in office; (

f) an order directing a corporation, subject to subsection (6), or any other person, to purchase securities of a security holder;

(

g) an order directing a corporation, subject to subsection (6), or any other person: (

i) to pay to a member any part of the moneys paid by the member for a membership interest; and (ii) to pay to a security holder any part of the moneys paid by the security holder for securities; (

h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or anyother party to the transaction or contract; (

i) requiring a corporation, within a time specified by the court, to produce to the court or an interested person financial statements in theform required by

section 13-1 or an accounting in whatever form the court may determine; (

j) an order compensating an aggrieved person; (

k) an order directing rectification of the registers or other records of a corporation pursuant to

section 18-6; (

l) an order liquidating and dissolving the corporation; (

m) an order directing an investigation pursuant to

Part 17 to be made; (

n) an order directing a corporation as to the future investment, disposition and application of its property or property under its control; (

o) an order upholding, modifying or setting aside a decision made pursuant to

section 10-6; (

p) an order requiring the trial of any issue. [Emphasis added] (

c) Was the meeting of August 20, 2023 at which time the Mastaan Board was elected validly held? [54] When looking at whether an election is valid or not, the Court will not interfere with the results of an election ifthere is a simple irregularity; there must be something more. The question is whether the election was fair. There must be someimpropriety or irregularity that impacted the fairness and results of the election.

See for example, Dumont v Manitoba Metis FederationInc., 2004 MBCA 149 at para 56, [2005] 5 WWR 284; Maudore Minerals Ltd. v Harbour Foundation, 2012 ONSC 4255 at para 108;and Dhillon v Bonny’s Taxi Ltd., 2003 BCSC 963 at para 21, 35 BLR (3d) 231. [55] In Kroczynski v Regina Soccer Association Inc., 2016 SKQB 133, 57 BLR (5th) 91, the Court was called uponto consider s. 135(1) of The Non-profit Corporations Act, 1995, SS 1995, c N-4.2 (rep) [Old Act]. That

section states:

(1) A corporation or a member or director may apply to the court to determine any controversy respecting an election or the appointmentof a director or an auditor of the corporation. [56] As can be seen, that

section of the Old Act is similar to what is now s. 11-14 of the Act. At paragraphs 28-29,Barrington-Foote J. (as he then was) notes: 28 In order to set aside an election pursuant to s. 135 of the Act, I must be satisfied that two criteria have been met. First, I must besatisfied that there were irregularities in the election process. Second, I must be satisfied that those irregularities were calculated to affectthe outcome of the election: see, for example, the analysis of this issue by R.S.

Smith J. in Mowat v University of SaskatchewanStudents’ Union, 2006 SKQB 462, at paras 43-47, 287 Sask R 166 [Mowat], affirmed on other grounds at 2007 SKCA 90, 304 Sask R236. As McLachlin J. (as she then was) put the matter in Leroux v Molgat (1985), (BC SC), 67 BCLR 29 (QL)(BCSC): 3 An election will be set aside only if substantial irregularity, calculated to affect the result, is shown: Anderson v. Stewart andDiotte (1921), (NB CA), 62 D.L.R. 98 (N.B.S.C. - App. Div.).

If the plaintiff establishes irregularities, the onus shiftsto the defendants responsible for the conduct of the election to show that those irregularities were not calculated to affect the result: Rethe Queen ex rel. Marquette and Skaret (1981), (AB KB), 119 D.L.R. (3d) 497 (Alta Q.B.); Rex ex rel. Henry S.Ivison v. William Irwin (1902), 4 O.L.R. 192; Giesbrecht et al. v. District of Chilliwack (1982), 18 M.P.L.R. 27 (B.C.S.C.).

Thus themain issues are whether irregularities are established, and, if so, whether the defendants responsible for the conduct of the election haveshown that such irregularities did not affect the result. 29 This two part test has been repeatedly cited with approval: see, for example Bhagria v 316697 Ontario Inc., 2015 ONCA 243, at para3; Sandhu v Khalsa Diwan Society, 2015 BCSC 1749, at paras 32-33; and Bector v Vedic Hindu Cultural Society, 2014 BCSC 230, atpara 10. [Emphasis added] [57] I am satisfied that in this case, there were a number of irregularities that undermined the fairness of the electionand were calculated to affect the result.

The Mastaan Group submitted a petition to the Hassan Board in July 2023. That petitionrequested a special general meeting to discuss the decision of the Hassan Board not to proceed with an audit. The petition makes nomention of a confidence vote. The Hassan Board responded by saying they would hold a special general meeting, just not now. TheHassan Board owed it to those who requested the special meeting to hold the meeting requested immediately as required by s. 11-12(3)of the Act.

They do not, under the terms of the bylaws or legislation, have the power to unilaterally decide to put the meeting offindefinitely simply because it does not fit with their priorities. The meeting was not held promptly and so the Mastaan Group moved tocall their own special meeting. In doing so, they made a number of mistakes.

[ 58 ] First, the Mastaan Group did not have a list of eligible voters. What this means is that we do not know if those eligible to vote received notice or whether those who voted were in fact eligible to vote. I appreciate that this problem is caused by the lack of sharing of information by the Hassan Board but it does not change the fact that the eligibility of voters cannot be verified. [ 59 ] Second, the Mastaan Group’s petition asked for a meeting for a specific purpose, a purpose that was referenced in the first notice of meeting, being to deal with the decision not to get an audit.

The purpose of the meeting then changed without any new petition being circulated or provided to the Hassan Board. In effect, the Mastaan Group changed the question on the ballot after the petition was signed, which is not permitted. [ 60 ] Third, the notice provided to members was inconsistent. There was an initial notice posted to the bulletin board at the IAS. Then there was a corrected notice that was different. Some people got additional notification by email, a special WhatsApp group and personal phone calls.

Not everyone got the same notice and it is evident that those who supported the Mastaan Group got phone calls, WhatsApp messages and calls, while the Hassan Board members and their supporters did not get the same level of notification. The process for notifying members in this case was different than the process that was employed at the meeting that saw the election of the Hassan Board, which meeting in March 2023 was attended by more than four times as many people as attended the August 20, 2023 meeting.

All members are entitled to notice but not everyone received such notice. [ 61 ] Fourth, the bylaws of the IAS require that notice of the special general meetings agenda be sent by mail or email to members whose addresses have been provided to the general secretary, which did not happen. [ 62 ] Fifth, the place of the meeting had to be changed at the last moment (though this is a result of a decision by the Hassan Board not to allow such activities at the IAS). [ 63 ] Sixth, the meeting itself has irregularities in the minutes. Quorum was met at 11:30 a.m. being the same time as the cutoff for voting.

Further, not all votes were counted. [ 64 ] Seventh, the question at the meeting was one of confidence only; it does not go to the next step which is to endorse the removal of the Hassan Board. [ 65 ] Eighth, the bylaws prohibit nominations from the floor for board of director positions and the nomination process set out in the bylaws, was not followed. [ 66 ] Ninth, the ballots included a slate of new board members which the notice did not contemplate. [ 67 ] Finally, it is evident from the outcome of the August 20, 2023 meeting that this was a vote attended by only the supporters of the Mastaan Group.

There can be no fair vote when only one side votes. I appreciate the argument of the Mastaan Board’s counsel that the Hassan Board made a conscious choice not to show up and that I should discount Mr. Shocker’s evidence but even if that is the case, the remaining problems with this vote are too significant to simply be discounted as “minor” irregularities. [ 68 ] I find that the August 20, 2023 vote was carried out in a manner that lacked basic procedural fairness. There were a number of irregularities.

The steps taken by the Mastaan Group were aimed at securing a predetermined result, being the election of the Mastaan Board. I find the irregularities were calculated to affect the outcome of the election and did in fact affect the outcome. [ 69 ] The result is that the vote is invalid and so the current board of the IAS is the Hassan Board. Having determined that the August 20, 2023 election was invalid, it is unnecessary for me to deal with questions of oppression or injunctive relief being the alternate arguments advanced by the Hassan Board.

What remains to be decided is the path forward. [ 70 ] These parties are before the Court because of actions and omissions made by both groups. I have already detailed the flaws in the election conducted by the Mastaan Group but the Hassan Board is not blameless either.

They did not provide a list of eligible voters, they did not carry out the special general meeting requested in the July petition in a timely manner, they took a decision not to allow political activities at the IAS on the day before the special general meeting arranged by the Mastaan Group was to take place, and the gymnasium doors were locked despite a deposit having been paid.

These efforts were taken to thwart a meeting, a meeting they were required to hold “immediately” as set out in s. 11 -12(3) of the Act . [ 71 ] The result of all these events is that a place of worship has been turned into a battleground with two factions each fighting to control the organization.

As I told those in attendance at the hearing, this has to stop. [ 72 ] In the circumstances, to avoid a situation where the Mastaan Group addresses the procedural problems I have identified and provides a new requisition, requiring a new meeting, I am going to grant the alternative relief sought by the Hassan Board pursuant to s. 11 - 14(2) (

c) of the Act , namely that: (

a) There shall be an annual general meeting of members within 60 days. The agenda of such meeting shall, in addition to other matters included in the agenda by the Hassan Board, include a vote on whether the Hassan Board should be removed as the board of directors of the IAS [Confidence Vote]; (

b) If the Hassan Board carries the Confidence Vote, the Hassan Board shall remain the duly elected and proper board of the IAS; (

c) If the results of the Confidence Vote is such that members of the IAS vote that they have no confidence in the Hassan Board and want them removed, then there shall be a new election held for the board of directors of the IAS with such election to be held in accordance with the rules and procedures set out in the Act and the constitution and bylaws of the IAS; and (

d) Until the Confidence Vote is held as ordered herein or a new board is elected as provided herein, the Hassan Board shall have responsibility for the management and control of the IAS. During this period, the Mastaan Group is prohibited from exercising or purporting to exercise any management and/or control over the IAS.

[ 73 ] The process set out above is designed to provide interim stability while allowing both factions a reasonable opportunity to make their case to members. [ 74 ] The Mastaan Board had suggested that the Court in effect create a Board comprised of members of both factions using the process for filling vacancies set out in the bylaws. I am not inclined to do this as I see three problems with such an approach.

First, these two groups at this point have shown no ability to work together; second, the Board should be elected by the members and not, in effect, be appointed through a court sanctioned process; and finally, there is no vacancy on the Board at present that could be filled using the appointment process. [ 75 ] Before addressing the issue of costs, I want to remind the parties that a Mosque is a special place for Muslims. It is more than a building of bricks and mortar. It is a place where the community comes together. It is a place of religious education. It is a place where the holy Quran is studied.

It is a place where religious holidays, like Eid are celebrated. It is a place where many come to break the fast during the holy month of Ramadan. It is a place of quiet reflection. A place where people are supposed to feel safe. It is a sacred place. A place of worship. It is not a place where there should ever be the type of bullying, harassment or physical confrontation requiring police intervention described in the affidavits and seen in the accompanying videos filed in these proceedings.

Such behaviour has no place in a house of worship or frankly, anywhere in our society. [ 76 ] In this case, the Hassan Board may feel that they have carried the day because I granted them much of the alternative relief sought. Let me dispel that notion. The Hassan Board did not win. The Mastaan Board may feel vindicated because there will be another confidence vote but they did not win either. In this case, there are no winners. Everybody in this case has lost but the group that lost the most is the IAS community itself, for they have lost their special place. They have lost their place of quiet reflection.

This decision will not return the Mosque to its place within this community. It will not make the Mosque the place where people once again come together. That can only occur if the congregants are prepared to find a way to work together and to remember why they built this sacred space in the first place. [ 77 ] Costs are usually awarded to the victor but with no victor, there will be no award of costs. J. N. BARDAI