Garcha v. Bains

2024 BCCA 391 Garcha v. Bains

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Garcha v. Bains, 2024 BCCA 391 Date: 20241105 Dockets: CA49884; CA49885 Docket: CA49884 Between: Jaswinder Singh Garcha, Baljinder Singh Gill, Sukhwinder Kaur Toor, Kiranpreet Singh Gill, Balraj Singh Gill, Balwinder Singh Sidhu, Gurlal Singh Sidhu, Hari Singh, Gurdial Singh Chahal, Jatinder Singh Garcha, Jaswinder Singh Grewal, Sardul Singh Brar, Harjinder Singh Jandu, and Charanjit Singh Ghumman Appellants (Petitioners) And Ravinder Singh Bains, Kuljit Singh Randhawa, Sukhwant Kaur Sidhu, Anvir Singh Boora, Dilbag Singh Brar, Harjinder Singh Brar, Rajinder Singh Klar, Gurtej Singh Sidhu, Narinder Kaur Hundle, Balwinder Singh Sandhu, Sukhvir Singh a.k.a. Sukhvir Singh Lidher, Baljit Singh Bhuhi, Mukhtiar Singh Brar, Pritpal Singh Brar, and Ramandeep Singh Mander Respondents (Respondents) - and - Docket: CA49885 Between: Jaswinder Singh Garcha, Baljinder Singh Gill, Sukhwinder Kaur Toor, Kiranpreet Singh Gill, Balraj Singh Gill, Balwinder Singh Sidhu, Gurlal Singh Sidhu, and Hari Singh Appellants (Respondents) And Ravinder Singh Bains, Kuljit Singh Randhawa, Sukhwant Kaur Sidhu, Anvir Singh Boora, Dilbag Singh Brar, Harjinder Singh Brar, Rajinder Singh Klar, Gurtej Singh Sidhu, Narinder Kaur Hundle, Balwinder Singh Sandhu, and Sukhbir Singh a.k.a. Sukhvir Singh Lidher Respondents (Petitioners) Before: The Honourable Justice

Dickson The Honourable Madam Justice Horsman The Honourable Justice Fleming On appeal from: An order of the Supreme Court of British Columbia, dated May 23, 2024 (Bains v. Garcha, 2024 BCSC 884, Kelowna Dockets S139491; S139610). Oral Reasons for Judgment Counsel for the Appellants: G.S. Badh Counsel for the Respondents: C. MacLeod M. Wardman Place and Date of Hearing: Vancouver, British Columbia October 31, 2024 Place and Date of Judgment: Vancouver, British Columbia November 5, 2024 Summary: Appeal from an order pursuant to the Societies Act substantially dismissing the appellants' claim for relief and substantially granting the relief claimed by the respondents. The parties' dispute concerns the governance of a Sikh Temple and the election of its directors. Held: Appeal dismissed. The appellants have identified no reviewable error in the judge's decision. DICKSON J.A.: Introduction [1] This is an appeal of the May 23, 2024 order of Justice Loo dealing with cross petitions related to the governance of the Penticton Sikh Temple and Indian Cultural Society (the "Society"). As the judge did below, I will refer to the two petitions as the "491 Petition" and the "610 Petition". [2] Both petitions arose out of an annual general meeting held on December 17, 2023, at which 22 people were acclaimed as directors of the Society. The petitioners in the 491 Petition, known as the Bains

Group, were one of two groups of acclaimed directors and their allies vying for control of the Society and the Temple. The petitioners in the 610 Petition, known as the Garcha Group, were the other group. [3] The Garcha Group was dissatisfied with the outcome of the election. As a result, it took several actions which prompted the Bains Group to file the 491 Petition, naming the Garcha Group as respondents, alleging post-AGM misconduct on their part, and seeking relief in connection with the conduct of the Society's affairs. Thereafter, the Garcha Group filed the 610 Petition, naming the Bains Group as respondents, alleging breaches of the Society's Bylaws and the Societies Act, S.B.C. 2015, c. 18, with respect to the election and its outcome, and seeking various forms of related relief. [4] In reasons for judgment indexed as 2024 BCSC 884, the judge dismissed most of the relief sought by the Garcha Group and granted most of the relief sought by the Bains Group. The Garcha Group appealed his order, contending he erred in concluding that the acclamation of directors was not invalidated by a lack of sufficient notice regarding the election or the participation of non-members at the AGM. He also erred, they say, in finding the Garcha Group's post-meeting conduct was unjustified and unreasonable, failing to deal with live issues concerning the conduct of the Society's affairs, and

providing inadequate reasons for some of the conclusions that he reached. [5] For the reasons that follow, I would dismiss the appeal. Background [6] The Society is a Sikh religious society. Incorporated in 1982, it is a registered society under the Societies Act that caters to the religious needs of the Sikh community in the Penticton area. The Society owns and operates a Sikh Temple, known as a Gurdwara: at para. 1. [7] The first formal membership of the Society was formed in 1994: at para.

24. In 2016 and 2018, formal membership drives were undertaken, and, in 2018, eleven directors were acclaimed: at para.

25. The last membership list was created in 2018 and no election of directors was undertaken between 2018 and 2023, apparently due in part to the COVID-19 pandemic. Consequently, by 2023, many regular attendees at the Temple were non-members of the Society: at para. 26. [8] The Society is governed by Bylaws. Among other things, the Bylaws provide that the Society's directors are elected for a two-year term, that directors may be elected by acclamation or ballot, and that a member of the Society present at a meeting of members is entitled to one vote. They also provide that a director may be removed before the expiration of their term by special resolution. [9] As noted, the Society held an AGM on December 17, 2023: at para.

3. The directors sent out notices of the AGM in advance in Punjabi and English. The Punjabi version of the AGM Notice stated that there would be "Discussion about the management committee"; the English version stated there would be "Discussion about future Gurudwara Management Committee". The references to the "management committee" and the "Gurudwara Management Committee" were to the Society's board of directors: at para.

14. The AGM Notices specified the time and location of the AGM, but did not include specific notice that an acclamation or election of directors would occur. [10] No arrangements were made to confirm the memberships of the persons who attended the AGM, and some non-members attended at and participated in the meeting: at para.

28. In the course of the AGM, 22 people were acclaimed as directors of the Society: at para. 3. [11] The Garcha Group was dissatisfied with the outcome of the election. As a result, it took steps after the AGM to appoint and change officers of the Society, change the Society's registered office and cancel the acclamation of some members of the Bains Group. It also changed the locks on the front door of the Temple and its office, and hired security personnel to limit access to parts of the Temple: at para.

61. In response, the Bains Group filed the 491 Petition, seeking various forms of relief under ss. 104 and 105 of the Societies Act. Thereafter, the Garcha Group filed the 610 Petition. [12] The two petitions came on for hearing together before the judge. Reasons for Judgment [13] The judge began his reasons by summarizing the background, the legal context, and the issues for determination: at paras. 1-13. Then he addressed each issue in turn. [14] The first issue concerned the adequacy of the AGM Notices. In addressing that issue, the judge noted that the Garcha Group argued they were deficient because there was nothing in them about the election or acclamation of directors, and the Bains Group argued it was not necessary to give specific notice that an acclamation or election would occur at an AGM: at para. 15. [15] The judge concluded that specific notice of an election of directors at the AGM was not required based on the provisions of the Bylaws. Accordingly, he found, the AGM Notices were not deficient: [20] Bylaw 13(1) provides that notice of a general meeting (which includes an AGM) "must specify the place, day and hour of the meeting". However, it is only in the case of special business that the notice must state the general nature of that business. Bylaw 15 expressly provides that the election of directors is not special business at an AGM. [21] In my view, this

conclusion accords with common sense and a reading of Bylaw 15 as a whole. The items listed in Bylaw 15(b) - the adoption of the rules of order; the consideration of the financial statements; and the election of directors, among others - are known to occur at an AGM and so no specific notice of these items is necessary. [16] Next, the judge considered the effect of the participation of non-members at the AGM. He noted the Garcha Group's submission that the acclamation of directors was invalid because of the participation of non-members, and the Bains Group's concessions that non-members participated and were not permitted to vote in an election by ballot: at paras. 27-28. After concluding that the word "acclamation" denotes a process in which there is no vote, the judge reviewed the evidence and found the directors were acclaimed, which process "was essentially carried out by consensus": at paras. 31-41. In those circumstances, he stated, "it might fairly be asked: what difference could non‑members have made to the outcome?": at para.

41. He went on to say this: [42] This is not a case where the votes of non-members could have changed the result. There was consensus at the December AGM that an acclamation was appropriate and so, in my view, it would not have made a difference to the result whether 80% or 100% of the persons in attendance participated in the acclamation. Moreover, there is no evidence that non-members had any specific say in who was acclaimed. [43] In light of the foregoing, I have concluded that the participation of non-members at the December AGM did not invalidate the acclamation of directors generally. [17] After concluding that the participation of non-members did not invalidate the acclamation of directors generally, the judge turned to the acclamation of directors who were non-members of the Society. He noted that the Bains Group conceded that two of the acclaimed directors were non-members, and held that, as such, they were not entitled to be directors: at paras. 44-51. However, he found the acclamation of the two non-members did not invalidate the entire acclamation process: at para. 53. [18] The judge went on to consider the Garcha Group's allegation that Balwinder Singh Sandhu and Narinder Hundle were added to the list of directors at the end of the AGM despite not having been acclaimed as directors. He observed that the evidence on the point was in direct conflict. Specifically,

he stated, the Chair of the AGM deposed that Mr. Sandhu and Ms. Hundle were acclaimed as directors during the AGM and their names were recorded in the AGM minutes. In contrast, Mr. Garcha and others deposed that they were never acclaimed and their names were later added in the minutes: at paras. 57-58. [19] The judge held that he could not resolve the evidentiary conflict without further court processes, such as a trial or cross-examination: at para.

59. After describing the Chair's evidence as "detailed and coherent" and the Garcha Group's evidence as "also clear and unyielding" (at para. 59), he said this: [60] It is my view that since the Chair of the AGM has deposed that Mr. Sandhu and Ms. Hundle were validly acclaimed, and because the names of these directors appear in the minutes of the December AGM which were signed by many of the attendees, the Garcha Group has the evidentiary burden of proving that they were not validly acclaimed. Given the state of the evidence described above, it is my view that the Garcha Group has not met that burden. For that reason, I am not prepared to make an order invalidating the acclamation of these two directors on this basis. [20] Finally, the judge dealt with the issue of the Garcha Group's post-meeting conduct. He described the Bains Group's allegations and found the conduct in question was neither justified nor reasonable: [62] At the hearing of the petitions, the Garcha Group took the position that this conduct was reasonable in the circumstances, but it did not press its position in this regard. Rather, it submitted that if it were able to persuade the Court that the acclamation of directors at the AGM was invalid, the proper course would be for the Court to give directions to the parties regarding a new membership drive and the calling and conduct of a new AGM. [63] In my view,

the Garcha Group's conduct was not justified or reasonable. If it was unhappy about the outcome of the AGM, they could have taken other steps, such as these petitions. It instead resorted to "self‑help" steps which were unlawful. [21] The judge completed his reasons by summarizing his conclusions: at paras. 64-66. He granted the relief sought by the Bains Group in the 491 Petition, except that he declared that the two non-members acclaimed as directors at the AGM were not directors of the Society, and he dismissed the relief sought by the Garcha Group in the 610 Petition, except for the order that the two petitions be heard together. He granted costs to the Bains Group in both proceedings. Discussion Legal Framework [22] Section 105 of the Societies Act provides the Court with supervisory jurisdiction to regulate the affairs of a society. Pursuant to its terms, the Court may remedy defects, errors, and irregularities that arise and result in, among other things, a contravention of the Societies Act, default in compliance with a society's bylaws, and ineffective resolutions: Brown v. Brousseau, 2021 BCSC 151 at para. 32. [23] Section 105 provides: 105 (1) This section applies if an omission, defect, error or irregularity in the conduct of the activities or internal affairs of a society results in (a) a contravention of this Act or the regulations, (b) the society acting

inconsistently with or contrary to its purposes, (c) a default in compliance with the bylaws of the society, (d) proceedings at, or in connection with, a general meeting or a meeting of directors, or an assembly purporting to be such a meeting, being rendered ineffective, or (e) a resolution consented to by members or directors of the society, or records purporting to be such a resolution, being rendered ineffective. (2) Despite any other provision of this Act, if an omission, defect, error or irregularity described in subsection (1) occurs, (a) the court may, either on its own motion or on the application of a person whom the court considers to be an appropriate person to make an application under this section, make an order (i) to correct or cause to be corrected, or to negative or modify or cause to be modified, the consequences in law of the 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 the omission, defect, error or irregularity, and (b) the court may make any ancillary or consequential orders it considers appropriate. (3) Unless the court orders otherwise, an order under subsection (2) does not prejudice the rights of a third party who has acquired those rights for valuable consideration and without notice of the omission, defect, error or irregularity that is the

subject of the order. [24] In Delta Patriots Cricket Club v. West Coast Cricket Organization, 2021 BCCA 433, this Court outlined the principles that govern the Court's role in remedying omissions, defects, or irregularities under s. 105: [12] The chambers judge correctly instructed himself on s. 105 of the Act, which grants (or confirms) the Court's jurisdiction to correct, negative or modify the consequences in law of an omission, defect or irregularity (as described in s. 105(1)), or to validate any act or matter rendered or allegedly rendered by that defect, omission or irregularity. In Kwantlen University College Student Association v. Canadian Federation of Students - British Columbia Component, 2011 BCCA 133, this court stated: Section 85 of the Society Act [see now s. 105 of the Societies Act] specifically contemplates the courts making orders to ensure that the rights of society members under the society's bylaws are not transgressed. Where the matter brought before the court is an issue of the construction of provisions of the bylaws that define the fundamental rights of members in respect of the society's operations, it is clear that the court has jurisdiction to intervene, and need not defer to the bylaw interpretations espoused by the society. [At para. 32; emphasis added.] In Farrish v. Delta Hospice Society, 2020 BCCA 312 this court noted that British Columbia

courts have found it "necessary and appropriate" on many occasions to "interfere in the internal affairs" of societies where and to the extent that the bylaws or the Act are being contravened. (At para. 50.) The Court suggested that ss. 104 and 108 may be seen as broadening to some extent the remedial jurisdiction of the Court under the earlier Society Act. (At para. 50.) [13] The chambers judge reviewed case‑law that suggests that s. 105 is "not so broad as to allow the court to rewrite the bylaws of a society" and that a "cautious approach" should be taken to curing irregularities. (See Erickson v. Luggi, 2004 BCCA 52 at paras. 5-6 per Southin J.A.; Garcha v. Khalsa Diwan Society - New Westminster, 2006 BCCA 140 at para. 9; and Sargit Singh Gill v. Khalsa Diwan Society (3 December 1999), Vancouver Registry, A993150 (B.C.S.C.).) As well, he referred at para. 27 to Gill v. Kalgidhar Darbar Sahib Society, 2017 BCSC 1423, where the Court said this about the "new" s. 105: a) The court must determine whether there has been an omission, defect or error in the conduct of the society's affairs; b) If so, has the omission, defect or error resulted in a breach of the [Societies Act] or its regulations or the society's constitution or bylaws, or rendered a resolution or proceedings of the society ineffective, or resulted in conduct contrary to the society's purposes; and c) If so, is it

appropriate for the court to exercise its discretionary authority to remedy the irregularity, upon considering the effect of any such order on the society and its directors, officers, members and creditors. [At paras. 33-4; emphasis added.] Standard of Review [25] A judge's review of a society's application of the Societies Act or its bylaws involves questions of mixed fact and law. In the absence of an extricable question of law, it is therefore entitled to appellate deference and subject to a palpable and overriding error standard of review: Bains v. Khalsa Diwan Society of Abbotsford, 2021 BCCA 159 at paras. 29, 115. [26] Remedies granted by the Court under s. 105 of the Societies Act are discretionary in nature. Accordingly, they are also owed deference on appeal unless they are based on errors of law, erroneous principles, irrelevant considerations, or are unjust: Surrey Knights Junior Hockey v. The Pacific Junior Hockey League, 2020 BCCA 348 at para. 67; Delta Patriots at para.

20. Did the judge err in concluding the acclamation of directors was not invalidated by a lack of sufficient notice regarding the election? [27] The Garcha Group contends the judge erred in concluding the AGM Notices provided sufficient notice that directors would be elected at the AGM. Accordingly, it says, their acclamation at the meeting was not valid. [28] In support of its submission, the Garcha Group argues that where, as here, a notice is required, it must provide sufficient information to enable a reasonable reader to appreciate the nature of the business to be undertaken to be effective, citing Grewal v. Guru Nanak Sikh Gurdwara Society, 2012 BCCA 430 and World Health Edmonton Inc. v. Edmonton (City), 2015 ABCA 377. However, it submits, neither the Punjabi nor the English versions of the AGM Notice, which differed from one another, met the requisite standard. [29] I am not persuaded by this submission. In my view, the judge made no palpable and overriding error in finding the AGM Notices were sufficient, which was a question of mixed fact and law. In particular, the judge did not err in concluding that specific notice that directors would be elected at the AGM was unnecessary based on the Society's Bylaws. Nor did he err in concluding that, in consequence, the AGM Notices were not deficient. [30] I would not give effect to this ground of appeal. Did the judge err in

concluding the acclamation of directors was not invalidated by the participation of non-members at the AGM? [31] The Garcha Group also contends that the judge erred in concluding the acclamation of directors was not invalidated by the fact that non-members of the Society participated at the AGM. In its submission, there was no cogent evidence to support his finding that the acclamation was carried out by consensus, and, in any event, the participation of non-members in the election process did not comply with the requirements of the Bylaws. In consequence, it says, the acclamation of the directors was rendered invalid and the judge erred in concluding otherwise. [32] I see no merit in this ground of appeal. The Bylaws permitted the election of directors by acclamation, it was open to the judge on the record to conclude the acclamation was carried out by consensus, and the Bylaws did not forbid the attendance of non-members at the AGM. That being so, the judge made no error in the exercise of his discretion not to invalidate the impugned acclamations. [33] I would not give effect to this ground of appeal. Did the judge err by finding the Garcha Group's post-meeting conduct was unjustified and unreasonable? [34] The Garcha Group goes on to contend that the judge failed to provide any cogent reasoning as to why he found its post-meeting conduct was unjustified and unreasonable,

and that he erred by granting the related relief sought by the Bains Group. In its submission, the judge's failure to provide adequate reasons amounted to an error of law, and the relief he granted was an overreach of his jurisdiction under s. 105 of the Societies Act. [35] I agree with the Garcha Group that the judge's reasons for finding its post‑meeting conduct unjustified and unreasonable are somewhat terse and minimal. However, this is explicable, at least in part, by the fact that, as he stated, the Garcha Group did not press its position on the point at the hearing of the petitions. Considered in the context of the record, the "what" and the "why" of the judge's decision are discernible: the Garcha Group resorted to self-help measures after the AGM that failed to comply with the Society's Bylaws and the requirements of the Societies Act. Accordingly, that conduct was unlawful and the judge was entitled to exercise his discretion in the manner that he did. [36] I would not give effect to this ground of appeal. Did the judge err by providing inadequate reasoning for not accepting the evidence of the Garcha Group regarding the acclamation of Mr. Sandhu and Ms. Hundle? [37] The Garcha Group contends further that the judge failed to provide any cogent reasoning for choosing the affidavit of the Chair of the AGM over that of Mr. Garcha on the issue related to the acclamation

of Mr. Sandhu and Ms. Hundle. I do not accept this submission. The judge did not choose to accept one conflicting affidavit over the other on this issue. Rather, he found he could not resolve the issue based on the conflicting affidavits and therefore decided the matter based on the burden of proof, as he was entitled to do. Did the judge err by failing to deal with live issues concerning the conduct of the Society's affairs? [38] Finally, the Garcha Group contends the judge erred by failing to deal with the live issues of the membership drive and the attendance and participation of non‑members at the AGM, which failures amounted to a reversible error of law. [39] I do not accept this submission. The judge expressly dealt with the issue of the attendance and participation of non-members at the AGM. Given his conclusion that the acclamation of directors at the AGM was valid, the issues of a new membership drive and the conduct of a new AGM were no longer live. Conclusion [40] For these reasons, I would dismiss the appeal. [41] HORSMAN J.A.: I agree. [42] FLEMING J.A.: I agree. [43] DICKSON J.A.: The appeal is dismissed. "The Honourable Justice Dickson"