Not So Fast: Contractual Rights May Be The Basis Of The Court's Jurisdiction To Review The Treatment By Voluntary Associations Of Their Members

• Published date: 30 July 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Trials & Appeals & Compensation
• Law Firm: WeirFoulds LLP
• Author: Dalal Hjjih, Summer Student

For insights into the Court of Appeal's decision, check out our post "Contractual Rights as the Basis of the Court's Jurisdiction to Review the Treatment by Voluntary Associations of Their Members".

In Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 ("Aga"), the Supreme Court of Canada revisited a court's jurisdiction to intervene in the affairs of voluntary associations, including religious organizations.

The Supreme Court previously held that jurisdiction in matters of procedural fairness related to the decisions of voluntary associations should only be granted when a legal right is present: Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, 2018 SCC 26 ("Wall"). In Aga, the Ontario Court of Appeal held that the existence of an association's constitution and bylaws establishes a contract, thereby creating a legal right. On appeal, the Supreme Court reversed the Court of Appeal's decision. Rowe J., writing for a unanimous Court, held that the mere presence of a voluntary association's governing written rules does not automatically constitute a contract. A contract may be present, but this is to be determined based on general contract law principles and an intention to create legal relations.

Background

In Aga, the Plaintiffs were former members of the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral (the "Church"). While the Church is a corporation, the congregation is an unincorporated association governed by a constitution and bylaws that set rules for its members and the organization.

In 2016, the Plaintiffs were part of a committee created to investigate a movement within the Church. After its investigation, the committee submitted a report with its findings to the archbishop. He disagreed with the committee's findings. The Plaintiffs were dissatisfied with the archbishop's decision and, as a result, they were removed from the congregation.

The Plaintiffs sued the Church and members of its senior leadership, claiming that their expulsion from the congregation is null and void since it violated the principles of natural justice. For example, they did not receive any details or opportunity to respond to the claims against them. They also alleged that the procedure used did not comply with the constitution and bylaws.

Decisions of the Lower Courts

The Defendants moved for summary judgment on the basis that the court has no jurisdiction to interfere in their...