In 2018, the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses v Wall [“Wall”] ruled that “religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.”[1]
CLF intervened in Wall, and welcomed the ruling as a much-needed clarification on the doctrine of justiciability and an affirmation of the autonomy of religious associations (you can read our further analysis here).
However, the Ontario Court of Appeal’s recent handling of a similar case, Aga v Ethiopian Orthodox Tewahedo Church of Canada (“Aga”), raises important questions about the scope of Wall’s application. In particular, Aga suggests the mere existence of a church’s written bylaws and constitution may give rise to contractual rights of procedural fairness that are reviewable by the Courts.
Like Wall, the Aga case involved a church membership expulsion. The expelled members alleged the church leadership’s handling of the expulsion denied them procedural fairness. The church maintained its membership procedures were outside the jurisdiction of the secular courts, and brought a motion to dismiss the plaintiffs’ claim. Relying on Wall, the motions judge found no evidence that the parties intended to create contractual relations and dismissed the claim. In the absence of a contract or other underlying civil/property right, Wall says, there is no legal dispute for a court of law to review.
However, the Ontario Court of Appeal adopted a different approach. On appeal, the Court ruled that a church’s constitution and bylaws pertaining to membership can form a binding contract between the church and its members, which courts can review and enforce.[2] What’s more, the decision suggests that such a contract may exist automatically, even where members are not "specifically aware of the terms” of the congregation’s rules.
The Court highlighted the fact that, unlike in Wall, the church in this case had formed a corporation to hold property, and had adopted written bylaws. On this basis, it seems, Wall was distinguished. The Court asserted that “members of the voluntary association, including the organization itself, are bound by the terms in the constitution and by-laws and there is an enforceable obligation on the part of an organization to observe its constitution and by-laws.[3]
What’s the concern?
On first read, the Aga decision may seem uncontroversial. Courts have, in previous cases, accepted that corporations have an obligation to comply with any written constitution/bylaws adopted under their incorporating statute – this obligation has been described as being of “a contractual nature”, and this case law was cited by the Court of Appeal in Aga.
So what’s the big deal? Isn’t Aga no different than those corporate law cases?
Not exactly. First, although the court referred to an incorporated entity in Aga, the plaintiffs were not members of it, or any other, corporation connected with the church. They were members of a congregation, but it was not incorporated. The case law dealing with the “contractual nature” of the relationship between corporations and their corporate members is therefore not directly on point. Wall, however, is. And Wall specifically rejected the suggestion that membership in a church constitutes a judicially enforceable contract between a congregant and the church, unless membership carries with it some independent legal, civil, or proprietary right. As the Supreme Court concluded in that case, “mere membership in a religious organization — where no civil or property right is granted by virtue of such membership — should remain free from court intervention.”[4]
Yet the Court of Appeal reached a different conclusion in Aga, on the basis of the (unincorporated) church’s written constitution/by-laws, from which the Court seems to infer a mutual intent to enter into a binding contract (there were written church rules involved in Wall as well, though they weren’t described as “bylaws”).
However, further clarification is needed; these documents were not corporate bylaws – they were not prescribed or mandated under any statute but were ecclesiastical in nature. Many churches similarly adopt religious rules – in the form of doctrinal statements, ecclesiastical orders, and theological documents, for example, all of which may integrate religious considerations with procedural/organizational rules – but this does not mean that everyone (or anyone!) intends for them to be judicially enforced.
The church in Aga has sought leave for appeal, and Christian Legal Fellowship, jointly with the Association for Reformed Political Action and the Canadian Council of Christian Charities, is urging the Supreme Court to hear the appeal. Our coalition emphasizes that, without further clarity, the apparent discrepancies between Wall and Aga will create confusion in the law, and uncertainty for the religious and voluntary sector. As stated in the coalition’s draft Memorandum of Argument:
“The [Ontario Court of Appeal in Aga] interpreted religious obligations embodied in ecclesiastical law as civil legal obligations enforceable in civil court. The Respondents identified no proprietary or other legal right, but only their status as church members and their desire to see internal church matters dealt with in a particular way. This case therefore raises the question: when does membership in a religious community take on legal status or form the basis for legal rights? Do written rules, guidelines, or ecclesiastical law governing religious membership give rise to legal rights?
Many presumed that this Honourable Court settled such questions in deciding Wall v. Highwood Congregation. However, the interpretation and application of that decision, as proffered in the decision of the Court of Appeal, risks displacing the much-needed clarity this Court provided in Wall.” (references omitted)
The Supreme Court will soon decide whether to hear the Aga appeal. For the reasons spelled out more fully in our coalition’s application materials (which you can access here), CLF is of the view that this is a case of national importance, which requires the Supreme Court’s review. CLF will continue apprising our members as matters proceed.
[1] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, para 39 [“Wall”].
[2] 2020 ONCA 10.
[3] Ibid, at para 43.
[4] Wall, supra, at para 24.