Members of local unincorporated branch entitled to separate from umbrella organization

Appellant was umbrella organization incorporated under Corporations Act. Applicants were members of local unincorporated branch of organization. Applicants obtained judgment permitting them to depart from branch (and organization) and continue as members of separate and independent not-for-profit corporation, taking with them property held in trust for members from time to time of branch. Organization appealed. Appeal dismissed. Application judge correctly determined that clubman’s veto applied. While organization was incorporated under Corporations Act, branch was unincorporated voluntary association. There was no legislation that gave branch legal status that would displace legal constructed identified in case law. There was no statute that governed how contractual relationship of all members of branch with each other was to be terminated. In calculating number of members of branch, application judge relied on previous order. It was not now open to organization to go behind prior court orders and argue that there were more than 20 members at time in question, and therefore more than total number of members application judge determined. Such argument was also inconsistent with organization’s position before application judge that there were no members of branch remaining. Organization’s previous cross-appeal of judgment that determined that property was held in trust for members of branch from time to time had been dismissed, and it was not now open to organization to revisit questions of title to property. Application judge relied on clubman’s veto in granting relief he did, and not Variation of Trusts Act. Judge’s comment that Variation of Trusts Act would have been basis for granting requested relief had it been argued did not amount to reviewable error.

Polish Alliance of Association of Toronto Limited v. The Polish Alliance of Canada (2017), 2017 CarswellOnt 10127, 2017 ONCA 574, Alexandra Hoy A.C.J.O., K. van Rensburg J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 18255, 2016 ONSC 7230, F.L. Myers J. (Ont. S.C.J.).