Supreme Court will hear appeal in church autonomy case

Supreme Court of Canada will hear appeal in church autonomy case:

Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, et al. v. Aga, et. al.

June 18, 2020 - Christian Legal Fellowship (CLF) welcomes the Supreme Court of Canada’s decision today to hear the appeal of Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, et al. v. Aga, et. al.

The case raises important issues of national significance, especially for religious communities and their members, as CLF explained in submissions urging the Supreme Court to hear the appeal (filed earlier this year, jointly with the Association for Reformed Political Action and the Canadian Council of Christian Charities).

As stated in CLF’s April 9 briefing, this litigation arose when a group of parishioners sought an order reversing the church’s decision to remove them from membership. The decision to remove the parishioners was allegedly the result of an ongoing theological dispute and the parishioners allege church leadership failed to observe church policies in the suspension process. The lower court dismissed the parishioners’ claim on the basis that it displayed no genuine issue for trial because the dispute triggered no property or other legal rights; however, the Ontario Court of Appeal reversed the motion judge’s decision on the basis that the church’s “bylaws” (which were not incorporating bylaws and were ecclesiastical in nature), combined with the parishioners’ monetary contributions to the church, resulted in an enforceable contract between the parties.

Without further clarity, the Court of Appeal’s reasons in Aga could create considerable uncertainty in the law concerning the justiciability of church membership disputes, the autonomy of religious associations, and the nature of the relationship between religious organizations and their members.

Many understood the Supreme Court of Canada to have settled these issues just two years ago in Highwood Congregation of Jehovah’s Witnesses v Wall (2018). In that case, in which CLF intervened, the Court unanimously confirmed there is no freestanding right to procedural fairness in private organizations, and that “mere membership in a religious organisation – where no civil or property right is granted by virtue of such membership – should remain free from court intervention” (para. 24).

However, in distinguishing Aga from Wall based on the presence of a written constitution and bylaws (the church in Wall was not incorporated), the Ontario decision raises serious questions as to the legal consequences of a church’s decision to incorporate and/or adopt written rules and procedures, among others. 

Clarification from the Supreme Court is needed on these matters, as highlighted in our joint intervention materials:

“[The Court of Appeal’s decision in Aga] could, without clarity, fundamentally alter the nature of relationships within the voluntary sector. A number of questions with far-reaching implications are now shrouded in uncertainty. Is there a ‘freestanding right to procedural fairness’ within voluntary organizations? Can ‘mere membership’ create a legally enforceable contract? Is a church member viewed by the law as a voluntary co-religionist or more akin to a corporate shareholder? Is a monetary contribution from a member a voluntary gift or contractual transaction?

 These questions go to the very core of relationships within Canada’s voluntary sector, and how they are answered directly impacts the day-to-day operations and interactions of thousands of organizations.”

For these reasons, CLF is pleased that the Supreme Court of Canada has decided to review this case, and looks forward to future opportunities to be of assistance to the Court in this matter.

Further reading:

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For additional information, please contact:

Ruth A.M. Ross
Director of Operations

Christian Legal Fellowship
ramross@christianlegalfellowship.org