Are members of a voluntary association bound in contract? Ethiopian Orthodox Tewahedo Church of Canada

Background

In Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 (CanLII), the five respondents and six others, including the appellants Abune Dimetros and Messale Engeda, had been appointed in 2016 to an ad hoc committee to investigate a movement some considered to be heretical. The committee was to be “guided by the rules and regulations of the Ethiopian Orthodox Tewahedo Church synod in the Diaspora”, and because it was an issue of doctrine and canon law the final decision was to be made by the Archbishop [9]. However, the Archbishop did not accept or implement the committee’s findings, the committee was extremely displeased, and its members were warned that they would be expelled from the Congregation if they did not cease expressing dissatisfaction with the Archbishop’s decisions [10] – which in the event is what happened [11].

They sued the Cathedral and members of its senior leadership, seeking inter alia a declaration that their expulsion was contrary to the principles of natural justice and therefore null and void. At first instance, the Cathedral sought to have the action dismissed on the basis that the court had no jurisdiction to review or set aside the expulsion decision, arguing that there was no free‑standing right to procedural fairness absent an underlying legal right – which the expelled members did not have. The judge at first instance dismissed the action; however, the Court of Appeal for Ontario allowed the expelled members’ appeal, holding that the written constitution and bylaws of a voluntary organisation constituted a contract setting out the rights and obligations of the members and the organisation by which the parties had agreed to be bound and that whether or not there had been a breach of contract on the basis of failure to comply with the rules was a genuine issue requiring a trial.  We reported the Court of Appeal judgment here.

The appeal

The Supreme Court of Canada held – unanimously – that the appeal should be allowed and the order of the judge at first instance restored

Delivering the judgment of the Court, Rowe J said that voluntary associations were “vehicles to pursue shared goals”: they might have rules, a constitution, and a governing body as practical measures by which to pursue shared goals:

“But they do not in and of themselves give rise to contractual relations among the individuals who join. The members of the local minor hockey league, or a group formed to oppose development of green spaces, or a bible study group, for example, do not enter into enforceable legal obligations just because they have joined a group with rules that members are expected to follow” [23].

Further, “much of what we agree to in our day-to-day lives does not result in a contract. Where there is no contract, or other obligation known to law, there is no justiciable interest and no cause of action” [24].

Courts had jurisdiction to intervene in decisions of voluntary associations only where a legal right was affected [27]. While purely theological issues were not justiciable, where a legal right was at issue the courts might need to consider questions that had a religious aspect in vindicating that right [28]; and the rights that could ground jurisdiction included private rights such as rights in property, contract, tort or unjust enrichment, and statutory causes of action [29]. However, “In the present case, the only viable candidate for a legal right – and the only one referred to by the Court of Appeal or argued by the parties – is contract” [32].

“In sum, courts can only intervene in the affairs of a voluntary association to vindicate a legal right, such as a right in property or contract. Membership in a voluntary association is not automatically contractual. Even a written constitution does not suffice. Membership is contractual only where the conditions for contract formation are met, including an objective intention to create legal relations. Such an intention is more likely to exist where property or employment are at stake. It is less likely to exist in religious contexts, where individuals may intend for their mutual obligations to be spiritually but not legally binding. A voluntary association will be constituted by a web of contracts among the members only where the conditions for contract formation are met” [49: emphasis added].

The Court concluded that, on the facts, there was no evidence of an objective intention to enter into legal relations. There was, therefore, “no contract, no jurisdiction, and no genuine issue requiring a trial” [50]. Appeal allowed.

Comment

The  Supreme  Court of Canada appears to have taken a more restrictive approach to contractual relations in voluntary associations than did our own Supreme Court in Shergill & Ors v Khaira & Ors [2014] UKSC 33. In that case, the UKSC held that the constitution of a voluntary religious association was “a civil contract … by which members agree to be bound on joining an association” which set out “the rights and duties of both the members and its governing organs” [46]. In disciplinary and membership matters:

“The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association … Its role is more modest: it keeps the parties to their contract” [48: emphasis added].

Cite this article as: Frank Cranmer, "Are members of a voluntary association bound in contract? Ethiopian Orthodox Tewahedo Church of Canada" in Law & Religion UK, 26 May 2021, https://lawandreligionuk.com/2021/05/26/are-members-of-a-voluntary-association-bound-in-contract-ethiopian-orthodox-tewahedo-church-of-canada/

1 thought on “Are members of a voluntary association bound in contract? Ethiopian Orthodox Tewahedo Church of Canada

  1. Shergill & Ors v Khaira & Ors [2014] UKSC 33 has been approved in NZ (for what it is worth) in Matamu & Others v Si’itia & Others [2016] NZHC 2516;
    Matamu v Si’itia [2017] NZCA 482; [2018] NZAR 348; Matamu v Si’itia [2018] NZSC 14.

    The phrase used in the NZCA was viewing an unincorporated associations’ rules through a “contractual lens” and repudiation of membership was the issue.

Leave a Reply to Richard Scott Pidgeon Cancel reply

Your email address will not be published. Required fields are marked *