This article originally appeared in Carters' Charity & NFP Law Update (January 2024).
The case of Metmeke v Yigzaw is an interesting case about the authority given to a court under the ONCA to review the election or appointment of a director. In this case, a contested election for a church’s board of directors (the “board”) spiraled out of control, leading to a motion to overturn the results of that election.
Philipos Yemane Yigzaw (“Mr. Yigzaw”) was a director of the Kidus Metmeke Yohanns Eritrean Orthodox Tewahdo Church (the “Church”), a not-for-profit organization incorporated under the Ontario Not-for-Profit Corporations Act, 2010 (“ONCA”) until the election held on October 23, 2022. He claimed that the results had to be overturned because of highly irregular circumstances surrounding the election.
To begin with, notice of the election was sent through the messaging service, Whatsapp. Mr. Yigzaw claimed that this prevented all members from receiving notice of the election because not all members subscribed to Whatsapp. Moreover, when the election was held on October 23, a violent altercation occurred as two rival factions in the church confronted each other, leading to police responding to the scene. From this point on, the parties disagreed on the subsequent events.
Mr. Yigzaw argued that many members left the meeting room to seek medical attention for injuries they had received during the brawl, and that the police forcibly cleared the room in which the vote was to take place. The Church argued that most people had remained for the vote, which was conducted in the presence of the police who maintained order among the members.
The motion to challenge the results was brought by Mr. Yigzaw under subsections 31(1) and (2) of the ONCA. These provisions allow the court to “determine any controversy with respect to an election or appointment of a director of the corporation”, and to make any order which the court sees fit. Subsections 31 (1) and (2) of the ONCA read as follows:
Court review of election or appointment of director
31 (1) A corporation or a director or member of the corporation may apply to the court to determine any controversy with respect to an election or appointment of a director of the corporation. 2010, c. 15, s. 31 (1).
Powers of court
(2) On an application under this section, the court may make any order that it thinks fit, including an order,
(a) restraining a director whose election or appointment is disputed from acting pending determination of the dispute;
(b) declaring the result of the disputed election or appointment;
(c) requiring a new election or appointment, and including in the order directions for the management of the activities and affairs of the corporation until a new election is held or appointment made; and
(d) determining the voting rights of members and of persons claiming to hold memberships. 2010, c. 15, s. 31 (2).
Mr. Yigzaw’s position was that the election was not valid because of the improper way in which it had been called, that it excluded women from running as candidates when a woman had been on the previous board, the fight during the election, and that non-members had participated in the voting process. Conversely, the Church argued that the vote had been carried out according to its by-laws, and that there was no legal basis for the relief which Mr. Yigzaw sought, or, alternatively, it was too complicated a matter for the court to decide on a motion.
The court was unsympathetic to the Church’s positions. It found that it had appropriate legal authority under the ONCA to deal with the motion, and that due to the highly irregular vote which was conducted, Mr. Yigzaw was entitled under the ONCA to bring the motion. Pursuant to the Church’s by-laws, at least 51% of members had to be in attendance at the meeting to conduct a valid vote. The Church was unable to establish that quorum was achieved because it had no evidence with respect to how many members it had, failing to produce a membership list, and no evidence of how many people attended the evening before and after the fight.
The court found that these factors, compounded by the likelihood that some members could have been intimidated by the violence which occurred prior to the vote, made the October 23, 2022 vote invalid. The court, under subsection 31(2) of ONCA, reinstated the board that was in place prior to this vote, and ordered a new vote to take place within 60 days, observed by an independent lawyer. The court also held that if the parties could not agree on the version of the by-law that was in force, the Standard Organizational By-law under the ONCA should apply to the election until a new board amended or replaced it.
Metmeke serves as a reminder of the importance of corporations having up-to-date membership lists and following their by-laws. And of course, to conduct its elections with civility.
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