YCC #42 day in court

YCC #42 had their court hearing on 28 March 2014, with the lawyers on both sides claiming to represent the corporation. The two applications dealt with the election process during the corporation’s AGM on 26 September 2013.

Massive election fraud
Soon after the AGM, there were allegations of massive proxy fraud and tampering of the proxies. Since no owner came forward to claim that his or her proxy was tampered with, Mr. Campbell declared Amina Gure and Sandeep Gosal elected to the two director positions. Two months later, based on the report of massive proxy tampering contained in a single affidavit, he annulled the election results and called for a new election.

Derrick Fulton, claimed to represent the “original board”, the one that existed before the AGM, asked for a ruling that Mr. Campbell, as the chair of the AGM, had the right to change his mind on the election results and if not, then the court should make a ruling to reconvene the AGM and hold a new election due to 40-50% of all the proxies being tampered with.

Mr. Fulton also stated that the “second board” started cleaning house by terminating the existing property management company and hiring Vesta Property Management  and then terminating the corporation's lawyer (Mr. Fulton) as the corporation’s counsel.

During this time, Shah Jahan Khan submitted an affidavit to Mr. Campbell in which he claims that Ataul Malick, the defeated incumbent (and board president) tampered with 215 proxies prior to the AGM.

Mr. Fulton also stated that there is massive confusion in the condo community and that there is a loss of faith in the election process.

Mr. Fulton finished with a request that the legal fees for both sides be paid by the corporation and that the election results be set aside and a new election be held.

Carol Dirks, representing the corporation, (the majority of the new board), responded by stating that Mr. Campbell’s role as chair ended when he declared Amina Gure and Sandeep Gosal elected and he did not have the right to rescind the election results and call for a new election. That decision can only be made by the courts.

She also stated that YCC # 42 has a history of dysfunctional governance and both Shah Jahan Khan and Anver Karim were part of that history and that they do not have clean hands. They want a new election because the two new directors do not want Anver Karim’s family members to be hired as the property management and they resisted Shah Jahan Khan being appointed president.

As far as housecleaning goes, Shah Jahan Khan encouraged the board to terminate the existing property management company at two separate board meetings in October 2013.

Ms. Dirks also stated that the suggested number of tainted proxies was not as high as suggested as there was a Canadian Supreme Court decision that ruled that the owners only had to write in their name and date plus the proxy holder’s name on the proxy form. They could give the proxy holder the authority to write in the candidates of their choice.

She also suggested that the Condominium Act does not state that the owner has to fill in the candidates’ names.

Shah Jahan Khan’s affidavit suggesting massive proxy tampering fails as both witnesses named in his affidavit swear that they never saw Amina Gure tamper with the proxies.

The directors speak
Four of the corporation's directors addressed the court.

Sandeep Gosal
He told the court that he ran to become a director as the previous board ran the corporation with no property management for the first four months of their term, the bank closed their account and they were not maintaining the property. He also stated that none of his proxies were tampered with.

He then stated that Mr. Khan and Mr. Karim worked well with the other three directors until they were not getting their own way. At that point, they wanted Sandeep off the board.

Amina Gure
She told the court that she did not tamper with the proxies and that Shah Jahan Khan and Anver want her off the board because she would not support Shah Jahan Khan being appointed president.

Shah Jahan Khan
Mr. Khan stated that he collected 190 proxies for Amina Gure and that she and her family made alternations to those proxies. He also told the judge that the three directors; Anver Karim, Safdar Sardar and himself could run the board until elections can be held.

Anver Karim
Told the court that these types of fraudulent elections are common in Africa. The director positions are unpaid volunteer positions and there is no need to go to court. The two directors, (Amina Gure and Sandeep Gosal) should run in a new election.

The next election
Both sides were very concerned about possible proxy fraud at the next AGM, which should be held by the end of June 2014 and they were looking for the court’s assistance in helping to prevent it.

Mr. Fulton suggested the use of a proxy form that was drawn up by Mr. Campbell while Ms. Dirks suggests that proxies be handled like advanced polls where the owners show up with photo ID and deposit their proxies into sealed ballot boxes. Overseas owners can have their Power of Attorneys deposit their proxies on their behalf.

Justice Penny stated that when everyone in a boat starts fighting, the boat may sink and that administration is on the horizon.

If it is one thing both sides can agree on, is that they do not want to go back into administration.

Mr. Fulton asked that costs for both sides be paid by the corporation. That position was not opposed by Carol Dirks during the hearing.

The above report was prepared by the detailed notes I took when I witnessed the court proceedings.

The two applications and all the submitted affidavits are public records which can be examined at 393 University Avenue, 10th floor, for the reasonable cost of ten dollars.

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