The Supreme Court of Canada grants Leave to Hear Voluntary Association Appeal
October 2020 Charity & NFP Law Update
Published on October 30, 2020

By Esther S.J. Oh


The Supreme Court of Canada granted leave to appeal on June 18, 2020, from the judgment in Aga v Ethiopian Orthodox Tewahedo Church of Canada, which was released by the Ontario Court of Appeal (“ONCA”) on January 8, 2020. The ONCA’s decision was discussed in further detail in Church Law Bulletin No. 57.  However, given the interest generated by this case, a brief summary of the main points   from the ONCA decision is provided below in order to help explain some of the key issues that the Supreme Court of Canada will be considering.

This case involves three separate legal entities: the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, which was  incorporated under the Ontario Corporations Act (“Church Corporation”); the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, which the ONCA described as a “voluntary association” (“Congregation”); and the Ethiopian Tewahedo Orthodox Church, which has parishes around the world  (“International Church”), and of which the Congregation was a local branch. This case also involves the expulsion of five former individual members from the Congregation (“Appellants”)

While both the Church Corporation and the Appellants were members of the Congregation, the Appellants were not members of the Church Corporation. In bringing the legal action against the Church Corporation, the Appellants alleged that “‘The Church failed to follow their own internal procedures’ in deciding to expel them from the Congregation and their right to natural justice and freedom to practice their religion as set out in s. 2(a) of the Charter was violated in expelling them from the Congregation.”

The motions judge dismissed the case on the basis that there was no contract between the Appellants and the Church Corporation, and therefore alleged breaches of procedural fairness could not be remediated, as she found there was no underlying contract between the parties (although they were both members of the Congregation). The motions judge relied upon the Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, discussed in Church Law Bulletin, No. 54, where the Court held that, as a general principle, judicial review is not available for the decisions of voluntary religious organizations absent the existence of an underlying legal right.  

On appeal, the ONCA found that the Congregation’s constitution and by-laws, which contained rules concerning member discipline, together with consideration in the form of monthly tithes made by the Appellants to the Congregation, constituted a contract between the Congregation and the Appellants. The ONCA did not, however, decide whether or not the contract was breached, on the basis that there was insufficient evidence to make that determination.

Although a date has not yet been set for the Supreme Court hearing, charities and not-for-profits will want to read the decision when it is released to see if it will impact the nature of their governing documents and their relationships with members.


Read the October 2020 Charity & NFP Law Update