The issue before the Court of Appeal for Ontario in the recent case of Aga v Ethiopian Orthodox Tewahedo Church of Canada 2020 ONCA 10 (CanLII) was whether or not membership of a church congregation conferred legally-enforceable contractual rights on the congregation’s members.

Background

The five appellants, former members of the Congregation of St Mary Cathedral of the Ethiopian Orthodox Tewahedo Church of Canada – an entity incorporated under Ontario’s Corporations Act, R.S.O. 1990 – had been expelled from the Congregation. They claimed that they had been given no particulars of the allegations against them leading to their expulsion nor any opportunity to respond to them or to make representations and that their expulsion had been in breach of the rules governing the Congregation [2 & 3]. They also claimed that the Church had failed to follow its own internal procedures in deciding to expel them from the Congregation, in violation of their rights to natural justice and to freedom to practise their religion as set out in s.2(a) of the Charter of Rights in the Constitution Act 1982 [3].

The respondents pleaded that the Church was a voluntary association and that its members acquired no civil or property rights by virtue of membership. The appellants, therefore, had no freestanding right to procedural fairness in the manner in which they had been expelled, and the decisions to expel them were not subject to judicial review [4].

The judge at first instance concluded that the situation was analogous to that in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, in which the Supreme Court of Canada had held that, as a general principle, judicial review was not available for the decisions of voluntary religious organisations absent the existence of an underlying legal right [34]. She held there had been no underlying contract and, therefore, that there was no justiciable issue in respect of the claim that the respondents had failed to follow internal church procedures in expelling the appellants – and she granted the motion for summary judgment [6].

The appellants claimed that the Church’s Constitution and By-Laws contained provisions governing disciplinary measures that were contractually binding and enforceable and, therefore, that there was indeed a justiciable issue to be tried [7]. The issues raised on appeal, therefore, were:

“(a) When are the rights and obligations of members of a voluntary association contractual?

(b) If there is a contract, does the contract provide a process for expelling the appellants from the Congregation and were any of those contractual provisions breached?” [37].

The judgment

As to the first issue, the Court began from the position that

“[W]hether or not a member has specific knowledge of or expressly consents to the specific terms in the by-laws, becoming a member of a voluntary association entails agreement to the terms of the constitution and bylaws. As such, members of the voluntary association, including the organization itself, are bound by the terms in the constitution and by-laws and there is an obligation on the part of an organization to observe its constitution and by-laws” [43].

In the present case:

• the appellants were not simply adherents but members of the Congregation: they had offered consideration in the form of monthly payments and had completed the required membership forms [46];
• they had become members on approval of their applications and had entered into a mutual agreement to be part of the Congregation and to abide by the governing rules, whether or not they were specifically aware of the terms [47: emphasis added];
• there was, in any case, evidence that the appellants would have been aware of the Constitution and By-Laws and had signed the guidelines specifically confirming their receipt and acceptance of them [48];
• the rules governing the treatment and discipline of members were set out in the Constitution and the By-Laws [49];
• Article 61 of the Revised Constitution provided that “the follower is obliged to respect and uphold church rules” and Article 63 set out a procedure for dealing with members who were seen to have transgressed [50]; and
• Article 44.1.a of the By-Laws provided that the rights of parishioners would be fully respected and Article 47 specifically addressed “disciplinary measures”, including advice, warning or financial penalty, loss of membership, and excommunication [51].

The Supreme Court of Canada had noted in Senez v Montreal Real Estate Board, 1980 CanLII 222 (SCC) at pp 566-567 that “the obligation of the corporation to … observe its own by-laws, with respect to the expulsion of a member as in other respects, is similarly of a contractual nature” and that someone who joined a voluntary association accepted “its constitution and the by-laws then in force” and undertook “an obligation to observe them.” [52].

The Constitution and By-Laws provided evidence of recognition by the Church and its leadership of their contractual obligations to abide by the rules when seeking to expel a member [53] and “In any event, based on the documents before this court, the only means of sanctioning members are as set out in the Constitution and By-Laws” [54]. The judge at first instance had therefore erred in finding there was no evidence of an underlying contract between the parties. [55].

As to the second issue – the alleged breach of contract:

• the Constitution and By-Laws included the rules that the Church and its leadership were required to follow in sanctioning members [56];
• based on the record before the Court, it was not possible to determine whether or not there had been a breach of contract on the basis of failure to comply with the rules [57];
• it was not clear whether the respondents had followed the provisions in its Constitution and By-Laws [58]; and
• it was not clear whether or not the rules had been followed when the Church and its leadership expelled the appellants, because the respondents had failed to adduce all the necessary documentation [59].

In a summary judgment motion, it was the party making the motion that bore the evidentiary burden of demonstrating that there was no genuine issue requiring a trial [61] – and the respondents had failed to provide the necessary information about the imposition of suspension and expulsion, how they were defined in the Constitution and/or By-Laws, and how, if at all, expulsion differed from loss of membership [62].

On the evidence, therefore, it was not possible to determine whether or not the contractual terms had been breached [63].

Disposal

The appeal was granted, the order of the judge at first instance granting summary judgment was set aside and the matter was returned to the Superior Court.

Comment

In a recent article in Intersection, Church membership a matter of contract?, Barry W Bussey poses the question, “Exactly why would a court want to put its toes into the murky waters of internal church politics? It baffles me when they do”. He contends that:

“What any second-year law school training would confirm is that these five former church members were in the wrong court. First, a church is a private entity, not a government actor. Hence, the Charter does not apply. Second, civil courts do not get involved in internal disputes of church membership.”

I am not so sure. Certainly, the provisions of the Charter of Rights apply only to Government and to laws and policies and decisions made by Government and do not extend to the acts or decisions of private citizens or non-governmental agencies. But does the fact that the activities of private entities do not engage the Charter necessarily mean that their decisions are totally immune from judicial scrutiny of any kind?

The Highwood Congregation of Jehovah’s Witnesses was a voluntary unincorporated association which had no articles of association or by-laws: see Highwood at [3]. The Ethiopian Orthodox Church of Canada St Mary Cathedral, however, had been incorporated under the Corporations Act R.S.O. 1990 and – presumably – had an independent legal personality separate from the individual legal personalities of its members. And once a body has become incorporated, can it still be regarded simply as “a private entity” beyond the reach of the civil law? Is a corporate body – whether it be religious or secular – free to ignore the provisions of its own constitution, by-laws or articles of association without judicial scrutiny? The Ontario Court of Appeal evidently thought not.

It would be interesting to see what the Supreme Court of Canada might make of it all – should the case ever go that far.