The Supreme Court Got It Right in Extending The Wall
Barry W. Bussey (note that an abbreviated version of this case comment was previously published by The Lawyer’s Daily)
In free and democratic societies, membership in a religious community is premised on freedom: the freedom of the individual to apply and the freedom of the community to accept (or reject) the applicant. That also means the individual is free to leave membership at anytime, just as the community is free to expel a member who no longer abides by its beliefs and practices. In other words, there is no right to join a specific religious community, nor to remain. There is no legal obligation flowing either way. Within the Christian faith, a local church community is often referred to as a “parish” or a “congregation”. The congregation is an unincorporated association: a gathering of individuals who form a spiritual community united by shared religious bonds, not legal bonds.
Therefore, the Supreme Court of Canada (SCC) was correct when it ruled in the Wall case[1] and then again in the Aga case[2] that courts do not have jurisdiction to review a church’s decision to disfellowship or expel a member. In the latter case involving the Ethiopian Orthodox Tewahedo Church of Canada, the SCC affirmed that there was no legal obligation of membership on either party. There was nothing for the courts to hear.
Facts
The church building of St. Mary Cathedral is owned by the Church corporation with specific corporate members, including the Head Priest and the Archbishop. The five congregants who sued the Church were never members of the Church corporation.
A 1977 “Constitution” of the Ethiopian Orthodox Tewahedo Church, written in the Amharic language, applies to all congregations worldwide. Article 47 sets out “Disciplinary Measures,” including the cancellation of membership and excommunication.
Membership is possible through an application process.
Five congregants were appointed to an ad hoc committee to investigate a heretical movement and made a report with recommendations to the Archbishop. Since the controversy was a matter of doctrine, the Archbishop had final authority, and he chose not to follow the committee’s guidance. Disturbed by the Archbishop’s refusal to implement their recommendations, the five caused such dissension that the Archbishop suspended their membership in Toronto St. Mary Cathedral.
Still unwilling to accept the Archbishop’s decisions, the five brought an action against the Church for failure to provide the principles of natural justice: they argued they were not given the particulars of the allegations against them, nor were they given an opportunity to respond or to have the membership decision reviewed internally. They wanted a court to declare that the decision was null and void; that they were denied s.2(a) Charter rights; that the ad hoc committee’s report was valid and enforceable, and other matters. Clearly, the five wanted the courts to get involved in the internal religious dispute in which they were embroiled.
Courts
The Church motioned to have the claims against them dismissed in the lower court. Justice Sandra Nishikawa granted a summary judgement and dismissed the action. She held that the case fell within the SCC’s Wall decision that stood for the principle that courts have no jurisdiction to hear church membership disputes where there is no underlying legal right.
However, on appeal the Ontario Court of Appeal (ONCA) ruled that when voluntary associations have constitutions and by-laws “they constitute a contract setting out the rights and obligations of members and the organization.”[3] Since there was an application process for membership, and tithes were given in the form of monthly payments, the accepted members and the congregation had entered into a mutual agreement to abide by the governing rules, even though the members might not be aware of all specific rules. According to the ONCA, there was a genuine issue over the whether there was a breach of contract in how the membership was dealt with and a trial was required.
The SCC rejected the Ontario Court of Appeal’s finding that there was an underlying contract requiring a trial. The “formation of contractual relations embodies practical wisdom,” wrote Justice Rowe, for the unanimous court.[4] We often engage in “mutual undertakings” but do not intend them to be legally binding. This is the case with voluntary associations that have rules to pursue shared goals; “they do not in and of themselves give rise to contractual relations among the individuals who join.”[5] Accordingly, the “practical wisdom embodied in the common law is that 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.”[6]
Justice Rowe observed that this principle has a long common law history, particularly in matters involving religious bodies as voluntary associations: “unless civil rights are in question [the law] does not interfere with their organization.”[7] Theological issues are not justiciable but if there is a legal right in play, then the “courts may need to consider questions that have a religious aspect in vindicating the legal right.”[8]
The legal rights giving courts jurisdiction in church disputes would include private rights such as property, contract, tort or unjust enrichment and statutory rights.[9] Rowe, J. reiterated the holding in the Wall decision that “‘there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations’. In other words, natural justice is not a source of jurisdiction. Rather, where there is a legal right at issue, natural justice may be relevant to whether that legal right was violated.”[10]
At the nub, the issue is “whether the particular relief sought by the plaintiff is the vindication of a legal right. If not, then there is simply no cause of action (Wall, at para. 13) and no basis for relief.”[11]
“[M]embership in a voluntary association is not automatically contractual,” Rowe, J. observed. “Rather, a contract exists only if the conditions of contract formation, including intention to create legal relations, are met. As a result, some but not all voluntary associations are constituted by contract.”[12]
Rowe, J. canvassed the settled law of contract that requires an offer by one party accepted by another with the intention of creating legal relations that is supported by consideration flowing between the parties. This is assessed, by a court, on the objective basis of how a reasonable person would view the relationship in the position of the other party.[13]
When dealing with property or employment, an objective intention to create legal relations is more likely.[14] However, in a religious context the objective intention is more difficult to show “where individuals may intend for their mutual obligations to be spiritually but not legally binding.”[15]
Justice Rowe concluded that “there was no evidence of an objective intention to enter into legal relations. As the motion judge correctly held, there is therefore no contract, no jurisdiction, and no genuine issue requiring a trial.”[16]
Commentary
In a critique of the SCC’s decision, administrative law scholar Paul Daly asserts that individuals who consider joining an organization will look over its governance documents before making their decision.[17] When things go wrong, they might reasonably think they have the right to go to court if “in excluding you, the organization does not follow the procedures sent out [sic] in its constitution.” Daly argues that it is not worth the bother to write out procedures, rights and obligations in a constitution if they can be discarded as in the Aga case. Indeed, “[t]his sort of ‘Constitution’ is a contradiction in terms at best, hardly the worth the paper it is written on at worst. Members of voluntary organizations would be well advised to remain on good terms with the elders!”
This criticism does not appear justified on the facts of this case. It should be observed that the dissenting members in the Aga case did not read the church’s constitution until after the disciplinary action was taken against them and they started legal action.[18] This fact alone suggests that Justice Rowe’s “common sense” analysis is to be preferred over the assumption that individuals always studiously review an organization’s constitution and by-laws before deciding to join. The “practical wisdom” of the common law thus prevails. After all, most people are more interested in the goals, vision, and activities of a volunteer organization than they are in the internal rules and regulations. It is only when there is a conflict that the regulations are reviewed – with the hope that they will provide a framework to resolve the differences.
Second, while Daly describes a hypothetical scenario in which the organization violates its constitution, it is unknown whether the internal rules of the Ethiopian Orthodox Church were followed or not. No court resolved the factual dispute around the membership suspension. Rather, the issue before the courts was whether a secular lawcourt had the jurisdiction to review the matter. Ultimately, the SCC said no, because there was no intent among the parties that membership within the Church was a contractual right.
It is true that the Supreme Court’s decision in Aga may not apply when there are statutory provisions for courts to review bylaws of societies, as in British Columbia under the Societies Act, or in Quebec under the Code de procédure civile.[19] However, that was not the case in Aga. There is distinction between a corporation, governed by statute, and the congregation, an unincorporated association. As Leonid Sirota observes, it “may be sensible” to conclude that “a group that goes to the trouble of formalizing its operations by incorporating, and obtains the benefits of incorporation, […] submit[s] to closer scrutiny by the courts. Otherwise, they will mostly be left to their own devices.”[20]
The disgruntled members in the Aga case were not members of the corporation (which, as noted above, owned the building of St. Mary Cathedral) but rather were members of the congregation. As members of the spiritual community, as opposed to the legal corporation, the plaintiffs were spiritually governed by the established order of their congregation. Indeed, the facts present a disciplinary approach similar in character to Matthew 18 principles,[21] in that the five were warned by the Archbishop, but refused to abide by the warning, and were then suspended from membership.
Legal scholars have observed that the law concerning the justiciability of church membership disputes is difficult to discern. Professor Neil Foster points out “that the general reluctance of courts to intervene in the affairs of ‘voluntary organizations’ is reinforced when religious groups are involved.”[22] This is because of the consensus that “it is inappropriate for secular judges to rule on theological issues.”[23] Professor Julian Rivers notes that “courts have struggled with the tensions inherent in upholding the rule of law, preserving the autonomy of religious groups and maintaining neutrality while doing so.”[24]
However, Rivers points out that in English law, weight is given to the approach of viewing the “constitution of a religious body as fundamentally contractual in nature, even where there is some statutory underpinning.” Rivers’ view is that this contract “binds together natural and any corporate persons, as well as trustees holding property for the organization.” Yet, it “is only enforceable on the part of members when legally-cognizable interests are at stake.” As Rivers understands the law, ‘[t]hese interests are wider than the purely proprietary or financial, extending also to the status of membership itself, participation rights associated with membership, as well as adherence to the fundamental constitution of the association. It may also secure aspects to certain guaranteed religious rites.”[25]
Rivers is of the view that the courts, if they are to do justice between the disputing parties, “should not avoid taking evidence on the internal structures of religious bodies, taking the procedurally valid decisions of properly constituted decision-takers into account.”[26] Rivers insists that, despite a commitment to neutrality and fairness, if courts do not inquire into religious disputes their “studied agnosticism”[27] could result in unfairness.
However, if the “unfairness” consists solely of personal disappointment in being ejected from church membership, it is my view that, where no legal rights are engaged, the courts would do best to avoid reviewing such controversies – even if the church did not follow its own internal procedures or rules. This is necessary, I maintain, because otherwise the courts will find themselves occupied in litigation involving theological questions or personal disagreements in matters that have no legal issues.
In both the Wall and Aga cases, the Supreme Court of Canada has shown itself to be reluctant to get involved in membership disputes in churches. It has taken what Rivers would characterize as an “overtly conscious” approach “to avoid taking sides on matters of religious dispute,” which, he objects, may lead to unfairness.[28] Such a position has some validity in that these disputes are never victimless. Legal counsel for the plaintiff in the Wall case pointed out to the SCC that individuals may suffer harm when removed from membership in a religious group. He noted that:
For many individuals, their religion is their lodestar. It tells them how to view the world and how to interact in it. It tells them what to eat, what not to eat, when to work, when to rest, what occupations to pursue, what occupations not to pursue.
And it’s that potential for harm that I say the court should have in mind as it thinks about how to calibrate this review. Should it be conditioned on the existence of a property or civil right? Should it [be] conditioned on the existence of an important property or civil right? Or should it just be available when the impact of the decision is significant?[29]
Yet, hurtful consequences do not, in and of themselves, provide the grounds for legal action. There are many situations where a falling out between an individual and a voluntary association leads to painful consequences from the breakdown. It would be odd for courts to allow for a review of these breakdowns when there are no rights in play.
When it comes to conflicts over church membership, it is beyond the competence of the court to review what is, more often than not, a theological dispute. Further, court involvement that would have the effect of requiring a religious organization to keep a dissenting member would be a denial of the freedom to associate with those of like mind. Individuals have the autonomy to join or leave a religious organization. Those who cannot abide by the membership requirements of a faith group have no entitlement to membership – especially if they are not willing to follow the teachings and practices of their co-religious congregants.
The SCC has decided against following the UK law as expressed in the Shergill[30] case, which allowed judicial review despite a lack of civil rights. When Mr. Feder, counsel for the plaintiff in the Wall case, asked the SCC to adopt the UK law as opposed to the Canadian jurisprudence, he was met with a humorous “Good luck.”[31] True to form, the SCC refused to follow UK law on the point – and its position in following its own jurisprudence is further reinforced in the Aga decision.
It is, in my thinking, the right course of action. Professor Daly’s admonition that congregants “remain on good terms with the elders!” is good counsel. Religious freedom to join a religious organization includes the right of the organization to part ways with those who can no longer accept its stipulations. The SCC’s decision is just because the individual is free to join a group more in line with his or her thinking; and it is just for the religious organization to have within its membership those who agree with and practice its religious teachings. Extending the wall was the right thing to do.
[1] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (CanLII), [2018] 1 SCR 750, (hereinafter referred to as “Wall”), <https://canlii.ca/t/hs9lr>.
[2] Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 (CanLII), (hereinafter referred to as “Aga”), <https://canlii.ca/t/jg1gr>.
[3] Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10, at para. 40, (CanLII), <https://canlii.ca/t/j4g09>.
[4] Aga, supra note 2, at para. 21. The SCC rarely rules against a unanimous Ontario Court of Appeal.
[5] Ibid., at para. 23.
[6] Ibid., at para. 24.
[7] Ibid., at para. 27.
[8] Ibid., at para. 28, citing Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607, at paras. 32 & 41.
[9] Aga, supra note 2, at para. 29.
[10] Aga, supra note 2, at para. 30.
[11] Ibid., at para. 31.
[12] Ibid., at para. 33.
[13] Ibid., at para. 35.
[14] Ibid., at para. 40.
[15] Ibid., at para. 49.
[16] Ibid., at para. 50.
[17] Paul Daly, “Extending the Wall: Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22” (May 25, 2021), online: <https://www.administrativelawmatters.com/blog/2021/05/25/extending-the-wall-ethiopian-orthodox-tewahedo-church-of-canada-st-mary-cathedral-v-aga-2021-scc-22/>.
[18] Aga, supra note 2, at paras. 15, 51.
[19] As noted by Professor Daly.
[20] Leonid Sirota, “Keeping Out or Stepping In? When should the courts intervene in internal disputes of voluntary associations?” (June 2, 2021), online: <https://doubleaspect.blog/tag/judicial-review/>.
[21] Matthew 18:15-17 (NKJV): “Moreover if your brother sins against you, go and tell him his fault between you and him alone. If he hears you, you have gained your brother. But if he will not hear, take with you one or two more, that ‘by the mouth of two or three witnesses every word may be established.’ And if he refuses to hear them, tell it to the church. But if he refuses even to hear the church, let him be to you like a heathen and a tax collector.”
[22] Neil Foster, “Respecting the Dignity of Religious Organizations: When is it Appropriate, for Courts to Decide Religious Doctrine,” in Barry W. Bussey and Angus J. L. Menuge, eds., The Inherence of Human Dignity: Law and Religious Liberty, Vol 2(London: Anthem Press, 2021), 241.
[23] Ibid.
[24] Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism (London: Oxford University Press, 2010), 107.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses et al. v. Randy Wall. Transcript of oral hearing, Thursday, November 2, 2017. Transcription by StenoTran, at 88.
[30] Shergill v. Khaira, [2014] UKSC 33, [2015] A.C. 359.
[31] See the Wall transcript, supra note 27, at 84–85:
MADAM JUSTICE ABELLA: That’s why I asked you if you want us to change our jurisprudence. If you’re asking us to reformulate the Lakeside test in accordance with the UK Supreme Court, I think that’s an argument that I’m listening to with different ears –
MR. FEDER: Sure.
MADAM JUSTICE ABELLA: – from whether or not you want us to apply our own jurisprudence.
MR. FEDER: Justice Abella, maybe I can simply [put] the syllogism this way: I read Lakeside differently than you and Justice Brown. But if your reading is right and mine is wrong, then I want you to change the law to be in keeping with Shergill.
— Laughter
MADAM JUSTICE ABELLA: Good luck.
— Laughter
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