Lee et al. v. Yeung et al., 2012 ABQB 40

• Judge: Macklin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 29, 2011
• Citations: 2012 ABQB 40;(2012), 531 A.R. 171 (QB)

Lee v. Yeung (2012), 531 A.R. 171 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.110

Michael Sai Cheung Lee, David Lee, Guo Chao Sun, James Fung, Phan Tram, Annie Pan, Chuck Kwan and Andy Wong (applicants) v. Florence Yeung, Andrew Wang, Hubert Hsu, John Chu, Chen Yuan Liu, Yang Gao, John Stinson, Edmonton Poon, Wah Tso, Vinh Tran, Lin Wah Chu and Bob Ning Lee (respondents)

(1103 10936; 2012 ABQB 40)

Indexed As: Lee et al. v. Yeung et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

January 16, 2012.

Summary:

The applicants applied for judicial review, seeking to set aside the November 21, 2010, election of the Executive Board of Directors of the Photographic Arts Society of Alberta. The respondents claimed that the matter was not justiciable and, in any event, the application was barred by the six month limitation period in the Alberta Rules of Court (rule 3.15(2)).

The Alberta Court of Queen's Bench held that the application was not barred by the limitation period set out in rule 3.15(2). The matter was justiciable. The court declared that the election was invalid because the rules of the Society were not observed, the election was held in a manner contrary to the rules of natural justice and it was done with mala fides. The court also granted an injunction prohibiting the respondents from representing themselves as members of the Executive Board. The court ordered that a proper election be held within 45 days.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limitation period - On July 8, 2011, the applicants filed an originating application, seeking judicial review to set aside the November 21, 2010, election of the Executive Board of Directors of the Photographic Arts Society (Alta.) and other ancillary relief - The respondents raised the six month limitation period (Alberta Rules of Court, rule 3.15(2)) - The Alberta Court of Queen's Bench (Macklin, J.) queried whether the time limit applied to private law remedies such as declaration and injunction - Macklin, J., stated that "Were it necessary to decide in this case, in my view the six month time limit would apply. However, even if it does apply, I find the application is not barred" - Here, the Society's Bylaws, which were in effect until March 15, 2011, required the parties to engage in an alternative dispute resolution process which suspended the start of the six month limitation - See paragraphs 23 to 48.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - The Alberta Court of Queen's Bench stated that "Given the combined effect of rule 13.5 and rule 3.15(2) [of the Rules of Court], this Court has no jurisdiction to extend or shorten the six month time period provided under the Rules for the filing and serving of an originating application for judicial review" - See paragraph 26.

Associations - Topic 404

Judicial review or statutory appeal - General - When available - The applicants filed an originating application, seeking judicial review to set aside an election of the Executive Board of Directors of the Photographic Arts Society (Alta.), a voluntary association - The respondents claimed that the matter was not justiciable as the court had no jurisdiction to control the actions of the Society, a private body - The Alberta Court of Queen's Bench held that it was entitled to review the impugned election to determine whether the Society's rules had been observed, whether anything had been done contrary to natural justice and whether the election result was reached in a bona fide manner - See paragraphs 49 to 55.

Associations - Topic 405

Judicial review or statutory appeal - Limitation period - [See Administrative Law - Topic 3342 ].

Associations - Topic 1221

Election of members - Validity of elections - General - The applicants applied for judicial review, seeking to set aside the November 21, 2010, election of the Executive Board of Directors of the Photographic Arts Society of Alberta and other ancillary relief - The Alberta Court of Queen's Bench declared that the election was invalid because the rules of the Society were not observed, the election was held in a manner contrary to the rules of natural justice and it was done with mala fides - See paragraphs 58 to 69.

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - [See Administrative Law - Topic 3342 ].

Cases Noticed:

Knox et al. v. Conservative Party of Canada et al. (2007), 422 A.R. 29; 415 W.A.C. 29; 2007 ABCA 295, leave to appeal refused (2008), 385 N.R. 390; 454 A.R. 121; 455 W.A.C. 121 (S.C.C.), refd to. [para. 27].

Kaplan v. Canadian Institute of Actuaries (1994), 161 A.R. 321 (Q.B.), refd to. [para. 29].

Falk v. Calgary Real Estate Board Cooperative Ltd. (2000), 265 A.R. 60; 2000 ABQB 296, refd to. [para. 30].

Dwyer v. College of Physicians and Surgeons (Alta.) (1989), 98 A.R. 81 (Q.B.), refd to. [para. 34].

McLean v. Alberta (Minister of Justice) et al. (2009), 470 A.R. 371; 2009 ABQB 102, refd to. [para. 34].

Urban Development Institute v. Rockyview No. 44 (Municipal District), [2003] 2 W.W.R. 140; 321 A.R. 253; 8 Alta. L.R.(4th) 273; 2002 ABQB 651, refd to. [para. 34].

Alberta Municipal Retired Police Officers' Mutual Benefit Society et al. v. Alberta et al. (2010), 504 A.R. 41; 2010 ABQB 458, refd to. [para. 35].

Athabasca Chipewyan First Nation v. Alberta (Minister of Energy) et al. (2011), 505 A.R. 72; 522 W.A.C. 72; 2011 ABCA 29, refd to. [para. 36].

Lameman et al. v. Canada (Attorney General), [2005] 8 W.W.R. 442; 365 A.R. 1; 2004 ABQB 655, varied [2007] 2 W.W.R. 440; 404 A.R. 349; 394 W.A.C. 349; 2006 ABCA 392; 2007 ABCA 180, affd. [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 36].

Papaschase Indian Band No. 136 v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

McManus et al. v. Calgary Chief of Police et al. (1998), 228 A.R. 160; 188 W.A.C. 160; 1998 ABCA 391, refd to. [para. 46].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 46].

Alberta Soccer Association et al. v. Charpentier et al., [2010] A.R. Uned. 841; 2010 ABQB 715, refd to. [para. 46].

Lee v. Showmen's Guild, [1952] 2 Q.B. 329; [1952] 1 All E.R. 1175 (C.A.), refd to. [para. 49].

Lakeside Colony of Hutterian Brethren et al. v. Hofer et al., [1992] 3 S.C.R. 165; 142 N.R. 241; 81 Man.R.(2d) 1; 30 W.A.C. 1, refd to. [para. 49].

Baird v. Wells (1890), 44 Ch. D. 661, refd to. [para. 51].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 3.15(2), rule 3.24(1) [para. 25].

Counsel:

Omolara Oladipo (Fraser Milner Casgrain LLP), for the applicants;

Philip G. Lister, Q.C. (Philip G. Lister Professional Corporation), for the respondents.

This application was heard before Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, on November 29, 2011, with additional written submissions provided on December 19, 2011, and January 13, 2012. The court's decision was filed on January 16, 2012.