The following editorial was originally published by The Lawyer’s Daily, a division of LexisNexis Canada
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.
Therefore, the Supreme Court of Canada was correct when it ruled in the Wall case and then again in the Aga case that courts do not have jurisdiction to review a church’s decision to expel a member (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26; Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 [Aga]).
The dispute in the Aga case arose when five congregants were appointed, along with six others, to an ad hoc committee to investigate a heretical movement in the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral. They 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.
The five brought an action against the church for failure to provide the principles of natural justice. 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.
The church motioned to have the claims against it dismissed in the lower court. Justice Sandra Nishikawa granted a summary judgment and dismissed the action. She held that the case fell within the Supreme Court’s Wall decision which stated 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 ruled that when voluntary associations have constitutions and bylaws, as did the church, “they constitute a contract setting out the rights and obligations of members and the organization.” (Aga v. Ethiopian Orthodox Tewahedo Church of Canada 2020 ONCA 10). 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 were not aware of all specific rules. According to the Court of Appeal, 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 Supreme Court 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 Malcolm Rowe, for the unanimous court (Aga, at para. 21). 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” (para. 23). 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” (para. 23).
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” (para. 24). 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” (para. 28-29; see also Bruker v. Marcovitz 2007 SCC 54, at paras. 32 & 41).
In the case at hand, 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 ” (Aga, at para. 50).
Legal scholars have observed that the law concerning the justiciability of church membership disputes is difficult to discern. 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” (Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism (London: Oxford University Press, 2010)). 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.”
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. Such a position has some validity in that these disagreements are never victimless. However, 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.
It is worth emphasizing that the dissenting members in the Aga case did not read the church’s constitution until after disciplinary action was taken against them and they started legal action. This fact alone supports Justice Rowe’s “common sense” analysis. 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.
Further, there is a distinction between a corporation, governed by statute, and the congregation, an unincorporated association. The disgruntled members in the Aga case were not members of the formal Church Corporation (which owns the St. Mary Cathedral building) 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 religiously based disciplinary approach similar in character to Matthew 18 principles, in that the five were warned by the archbishop, refused to abide by the warning and were then suspended from membership.
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 Supreme Court has taken the right course of action. 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 Supreme Court’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 practise its religious teachings. Extending the wall was the right thing to do.