104. The application of such a proposition in any particular case will depend upon the starting point, i.e., defining 'the thing to be done'. Different answers to the question will be found depending upon how broadly or narrowly one defines 'the thing to be done'.
105. For example, in the case of a shareholders meeting, if one defines 'the thing to be done' as 'the putting of a resolution to the vote of shareholders at a meeting' one could say that an irregularity which denies some shareholders an effective vote by invalidly excluding their proxies has not changed the substance of 'the thing to be done': a meeting has still been held and a resolution has still been put - what has occurred is merely an irregularity in the procedure for voting upon resolutions.
106. But if one defines 'the thing to be done' more narrowly, eg, 'putting a resolution to the vote of all shareholders present in person or by proxy at a meeting and entitled to vote', then to exclude some shareholders present at the meeting in person or by proxy and entitled to vote changes the substance of 'the thing to be done' so that the irregularity is substantive and not procedural.
107. In my view, the decisions in Industrial Equity and in those cases which have approved it support the following approach to irregularities at shareholders meetings. When the validity of the admission of votes is in issue, as a general rule, one starts with the proposition that the substance of 'the thing to be done' is the admission of the votes of all shareholders present in person or by proxy who are entitled to vote. Such shareholders have a statutory right to vote, either in person or by proxy. If something occurs which results in a denial of that right to a shareholder, there has been a substantive irregularity, not a procedural irregularity. The proceeding cannot, therefore, be validated by s 1322(2)."