FOR IMMEDIATE RELEASE
May 21, 2021
London, ON—CLF welcomes today’s Supreme Court decision in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga [“Aga”], reaffirming that membership in a voluntary religious community is not, in itself, a matter for secular courts to adjudicate. CLF’s Executive Director & General Counsel Derek Ross, who represented CLF as an intervener before the Supreme Court of Canada in Aga, comments:
“For the second time in three years, the Supreme Court of Canada has unanimously affirmed that theological questions should not be decided by secular courts, and that religious disputes may only be considered where there is clearly a legal right at stake. Today’s decision reflects a proper recognition of the court’s role as a legal adjudicator, not a religious one. This respects the autonomy of religious communities to organize themselves in accordance with their beliefs without undue interference.”
Today’s unanimous judgment reinforces the Supreme Court’s 2018 decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall [“Wall”] (both written by Justice Rowe), where the Court found that church membership decisions could only be reviewed by secular courts when an underlying legal right (such as a property or contractual right) is implicated and does not require the court to adjudicate questions of theology.
In Aga, it was argued that church membership itself constituted an enforceable legal right. The Supreme Court unanimously rejected that notion, observing: “If mere membership in a voluntary organization with written rules created a ‘legal right’ of the kind referred to in Wall, then court intervention would be automatic and all‑pervasive” (para 43). Instead, the Court held:
“Courts can only intervene in the affairs of a voluntary association to vindicate a legal right, such as a right in property or contract. Membership in a voluntary association is not automatically contractual. Even a written constitution does not suffice. Membership is contractual only where the conditions for contract formation are met, including an objective intention to create legal relations. Such an intention is more likely to exist where property or employment are at stake. It is less likely to exist in religious contexts, where individuals may intend for their mutual obligations to be spiritually but not legally binding.” (para 49, emphasis added)
CLF intervened in Aga to make submissions on this point, explaining that “a binding contract between a religious community and its members cannot be established without clear evidence of a specific ‘intention to form contractual relations’” (citing Wall). “To hold otherwise,” CLF emphasized, “such as by inferring a judicially-enforceable contractual relationship between members of an organized faith community, could drastically transform life within religious groups.” CLF joined other interveners in explaining how religious commitments and relationships – including those expressed in writing – are inherently spiritual matters, and should not be automatically construed as legal obligations. This too was reflected in the Court’s decision:
“[B]ecoming a member of a religious voluntary association – and even agreeing to be bound by certain rules in that religious voluntary association – does not, without more, evince an objective intention to enter into a legal contract enforceable by the courts. Members of a religious voluntary association may undertake religious obligations without undertaking legal obligations.” (para 51, emphasis in original).
Background
The Aga litigation arose after a group of parishioners were expelled from their church’s membership in connection with an ongoing theological dispute. The motions judge dismissed the parishioners’ claim on the grounds that the absence of an underlying property or other legal right meant that there was no genuine issue for trial, as per Wall.
However, the Ontario Court of Appeal reversed this decision, holding that, because of the parishioners’ monetary contributions and the church’s written ecclesiastical rules, there was an enforceable contract between the parties, rendering the issue justiciable.
Today, the Supreme Court reversed the Court of Appeal’s decision, finding that it erred in concluding that a contract had been formed between the parishioners and the church. As the Supreme Court observed:
“[Voluntary] associations are vehicles to pursue shared goals. To this end, many such associations will have rules, sometimes even a constitution, bylaws and a ‘governing’ body to adopt and apply the rules. These are practical measures by which to pursue shared goals. But, they do not in and of themselves give rise to contractual relations among the individuals who join. The members of the local minor hockey league, or a group formed to oppose development of green spaces, or a bible study group, for example, do not enter into enforceable legal obligations just because they have joined a group with rules that members are expected to follow.
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.” (paras 23-24).
Further reading
Read the Supreme Court of Canada’s decision in the Aga case, and the plain language “Case in Brief” summary.
Read CLF’s written submissions to the Supreme Court here, and watch CLF’s oral submissions before the Supreme Court at the 1:16:37 time mark here.
Read CLF’s blog: Supreme Court will hear appeal in church autonomy case (June 2020).
Read CLF, ARPA, and CCCC’s joint intervention materials on the leave application and related backgrounder (April 2020).
Read more about the Wall decision and CLF’s intervention in that case (2018).
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For additional information, please contact:
Ruth A.M. Ross
Director of Operations
Christian Legal Fellowship
ramross@christianlegalfellowship.org