The Jurisdiction of Courts to Intervene in Decisions of Voluntary Associations: Ethopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga

  • June 17, 2021
  • Rachel Weiner

On May 21, 2021, the Supreme Court of Canada released its unanimous decision in Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 regarding the intervention of courts in decisions of voluntary religious associations. It confirmed that a legal right is required for a court to intervene in a decision of a voluntary association, and that whether such a legal right is to be determined on a case-by-case basis. [1] While a written constitution and bylaws may constitute a contract that gives rise to this legal right, the court must determine this on a case-by-case basis using general principles of contract law, which require an objective intention to enter into legal relations.[2]

Facts of the Case

The appeal was brought by the Ethiopian Orthodox Tewahedo Church of Canada St Mary’s Cathedral (Church Corporation) as well as individual appellants from leadership of the church.[3] The respondents to the appeal are former members of the congregation, an unincorporated association.[4] The respondents were expelled from church and brought a legal action against the appellants on a variety of grounds, including that the Church did not follow its own procedures, regulations, bylaws and constitution.[5] They relied on a Constitution and a Bylaw which address cancellation of membership and excommunication to ground their case.[6]

Decisions of the Ontario Superior Court and Ontario Court of Appeal

The appellants brought a summary judgment motion.[7] Justice Nishikawa granted this motion at first instance, finding that there was no breach of a contractual right that could ground the action.[8] However, the Court of Appeal held there was evidence of an underlying contract: applications for membership based on membership forms, monthly payments comprising consideration, and approval of those applications was a mutual agreement to be governed by the rules of the congregation.[9] The Court of Appeal concluded that there was a genuine issue requiring a trial regarding what the rules of expulsion were and whether they were followed.[10]

Decision of the Supreme Court of Canada

Justice Rowe’s decision overturning the decision of the Court of Appeal focused on the objective intention to create legal relations within a voluntary association. Justice Rowe recognized that many voluntary associations will have a constitution, bylaws, and a governing body to adopt and apply the rules, but these may be “practical measures by which to pursue shared goals” rather than something that gives rise to a legal contract.[11] For example, “members of the local minor hockey league, or a group formed to oppose development of green spaces, or a bible study group” do not enter into an enforceable contract simply because the group is governed by rules.[12] Justice Rowe emphasized that many day-to-day activities do not result in binding legal agreements that can be enforced by courts.[13]

Justice Rowe stated that, in the context of voluntary associations, if there is a legal right, “a religious aspect” to that legal right can nonetheless be adjudicated.[14] Legal rights that do fall within the purview of a court include “private rights – rights in property, contract, tort, or unjust enrichment – and statutory causes of action”.[15] Justice Rowe reiterated the Court’s finding in Wall that absent a specific legal right, “there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations”.[16]

In Aga, the only possible legal right could be a contractual right, which in turn required an intention to form contractual relations.[17] Justice Rowe reviewed the relevant test – that “parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract”[18] as part of their offer and acceptance. This intention may be grounded in the agreement as well as the surrounding circumstances, including “the nature of the relationship among the parties and the interests at stake”.[19] While informal agreements between friends are not likely to demonstrate this intention, if the agreement relates to property or employment, this intention is much more likely.[20] Moreover, in the religious context, it may be more difficult to show an intention to form legal relations.[21] In this context, “even the use of concepts such as authority and duty need not reflect an intention to create legal relations: the parties may be speaking of religious obligations rather than legal ones”, and it is important to determine intention on a case-by-case basis.[22] Justice Rowe recognized that some voluntary associations may have a web of contracts between their members, while others have a legal personality.[23] In either case, however, there must be an intent to create legal relations.

With respect to the facts of the case before the court, Justice Rowe could not identify an objective intention to enter into a legal relationship.[24] He relied on the finding of the motions judge that the respondents were not aware of the Constitution or Bylaw and the particular context of a religious voluntary association to conclude that an objective intention was not present.[25]

Implications for Judicial Review of Voluntary Associations

Aga provides some clarity regarding when there is a legal right that can ground the judicial review of decisions of voluntary associations. It demonstrates that the presence of a constitution, bylaws, or other rules and a governing body to administer them is not enough to demonstrate a contractual relationship. Rather, the requirements for contract formation, including intention to create a contract, must be met.

That said, this decision may also introduce some uncertainty going forward, given that the Supreme Court’s reasoning relies heavily on a case-by-case analysis. For example, last March, the Divisional Court held that the Conservative Party of Canada has a constitution and rules which set out the contractual rights and obligations of the party that could ground a judicial review.[26] In light of the Supreme Court of Canada’s decision in Aga, it’s unclear whether this decision would have been made the same way. While the context of a political party may mean it is somewhat easier to demonstrate the requisite intention, the Divisional Court would arguably have been required to more carefully scrutinize whether there was an intention to create legal relations.

In the months and years to come, it will fall to lower courts to determine the impact of Aga and provide guidance for voluntary associations and the lawyers who advise them regarding what this decision will mean.

About the author

Rachel Weiner is a Staff Lawyer at ARCH Disability Law Centre and a Member at Large of the Administrative Law Section at the Ontario Bar Association. The thoughts and opinions in this article are her own, and are not the views of her employer or the Ontario Bar Association.

 

[1] Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 at para 3 [Aga]

[2] Ibid at para 3

[3] Ibid at para 4

[4] Ibid at 5

[5] Ibid at paras 8-13

[6] Ibid at paras 6-7

[7] Ibid at para 14

[8] Ibid at paras 14-15

[9] Ibid at paras 16-17

[10] Ibid at para 17

[11] Ibid at 23

[12] Ibid

[13] Ibid at 24

[14] Ibid at para 28

[15] Ibid at para 29

[16] Ibid citing Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 at para 24

[17] Ibid at para 34

[18] Ibid at para 36 quoting GHL Fridman, The Law of Contract in Canada (6th ed 2011) at 15

[19] Ibid at para 38

[20] Ibid at paras 38, 40

[21] Ibid at para 41

[22] Ibid

[23] Ibid at paras 47, 49

[24] Ibid at paras 50-53

[25] Ibid at para 51

[26] Melek v Conservative Party of Canada, 2021 ONSC 1959

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