Exactly why would a court want to put its toes into the murky waters of internal church politics? It baffles me when they do. Take, for example, the recent decision of the Ontario Court of Appeal in the case of Aga v. Ethiopian Orthodox Tewahedo Church of Canada 2020 ONCA 10.
Five members of St. Mary’s Cathedral were expelled from the church by Archbishop Abune Dimetros. The dispute, like so many church disputes, is complicated. But, as I understand it, the rift began over allegations of heresy within the church. To get to the bottom of the matter, these five members were appointed to serve on a committee to investigate the “alleged heretical movement” (para. 22).
After some time, the committee gave its findings to the archbishop. The church administration, however, did not accept the conclusions, and tensions escalated to such a point that the archbishop decided these individuals could no longer be members of the church.
The court did not go into much detail regarding the intricacies of this disagreement; nevertheless, one can imagine that there were heated discussions about who was right and who was wrong.
Given that membership in a church often carries a personal and communal significance, the five members applied to a civil court to adjudicate their dispute with the archbishop. In their minds, their rights under s. 2(a) of the Charter were violated and they wanted the court to declare their committee’s findings valid. I do not know what the committee decided but it had something to do with determining heresy: hardly the subject matter of any law school course that I am aware of.
What any second-year law school training would confirm is that these five former church members were in the wrong court. First, a church is a private entity, not a government actor. Hence, the Charter does not apply. Second, civil courts do not get involved in internal disputes of church membership.
Indeed, only two years ago, the Supreme Court of Canada in the Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall  1 S.C.R. 750 decided that “mere membership in a religious organization, where no civil or property right is formally granted by virtue of membership” (para. 29) is not an issue that civil courts are to be engaged in settling.
In the court of first instance, Justice Sandra Nishikawa, rightly in my view, decided that there was no civil right or contract in this case that would authorize a court to interfere. She held that “the dispute is analogous to that raised in Wall and is not justiciable.” End of story. But the saga was not over yet. The matter was appealed to the Ontario Court of Appeal and that court, surprisingly — and, I believe, wrongly — held the opposite view in a 3-0 decision.
The Ontario Court of Appeal held that there was a contract between the church and the five expelled members. There was, in the court’s opinion, evidence of a genuine issue to be tried. This is an interesting twist. In all my many years of practice involving in-house counsel work for churches and now for a religious organization, I have never seen nor experienced a church engaged in contract talks for membership. This is a new one. Think about it for a minute — where is the quid pro quo?
In other words, where is the consideration that is flowing between a church and a church member that would create a binding contract? The only thing I have experienced is that a person asks to join a church based upon a personal conviction that the church’s religious teachings are congruent with his or her spiritual understandings.
The church, upon satisfying itself that this prospective member has converted to the church’s teaching, then accepts the individual into fellowship. There is no “contract” in the legal sense of the term. A church member has not contracted with the church. If there is a contract, it is between the member and God, not the church. And, thankfully, the courts have not seen fit to enforce that kind of spiritual covenant.
Yet, the Court of Appeal said that there was a contract based on a 1977 church constitution (written in Amharic, by the way) and its associated bylaws that apply to all the world congregations of this religious community. These rules originate outside of Canada. Even if we were to accept the Court of Appeal’s reasoning that these documents constitute the terms of the “contract,” we are still left with the consideration flowing between the parties. That, says the Court of Appeal, comes from the “monthly contribution” (para. 21) that the former members paid to the church.
However, there are a couple of problems with that analysis. Most religious communities would describe these “monthly payments” (para. 46) as voluntary “offerings and tithes.” I doubt very much that Canada Revenue Agency considers a donation to a church as fulfilling a contractual obligation. If such a gift were part of a contract, then it would not be a charitable donation.
Moreover, one’s offerings or monthly donations do not create any reciprocal obligations in a legal, contractual sense. Because I pay offerings to my church does not mean that I get to direct the church on religious matters nor enforce procedural fairness in the carrying out of those matters. Indeed, church membership remains under the sole direction of the church — no court has any jurisdiction to interfere with that process.
In such matters, the internal sovereignty of the church ought to be respected. It is my hope that this decision will be appealed to the Supreme Court of Canada. It has brought the 2018 Wall decision into doubt and only the SCC can restore Wall’s finding: courts have no business in the affairs of church membership.
This editorial was originally published on February 25, 2020 by The Lawyer’s Daily, online at: https://www.thelawyersdaily.ca/articles/17930/church-membership-matter-of-contract-no-it-must-not-be-barry-w-bussey