Tsehaye v. English District Lutheran Church – Missouri Synod, 2009 HRTO 1921

Human Rights Tribunal of Ontario

Between:

Berhane Tsehaye on his own behalf and on behalf of Amleset Bennet, Temesgen Tirfe, Daniel Teklehaimanot, Janice Drews, Alice Greifengerger, Boffy Nyen, Ghebrelul Gime, Tekleab Schewai and Ariam Woldekristos Applicants

-and-

English District Lutheran Church-Missouri Synod, Tom Steers, David Stechholz and Jeffrey Miskus Respondents

Interim Decision

Adjudicator: Brian Cook Date: November 10, 2009 Citation: 2009 HRTO 1921 Indexed as: Tsehaye v. English District Lutheran Church – Missouri Synod

Decision

1This Interim Decision addresses whether the Tribunal has jurisdiction to deal with an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

2The Application was filed by Berhane Tsehaye on his own behalf and on behalf of the other applicants. The personal respondent Tom Steers filed a Response. The organizational respondent and the other personal respondents filed a separate Response. It was filed by Douglas Abraham, an attorney in the United States. In a covering letter, Mr. Abraham asked that he be permitted to represent the respondents in relation to the Application.

3The circumstances giving rise to the Application relate to the operation of a Church and a dispute regarding who has control of the Church building and the assets of the congregation. The applicants allege, among other things, that they were expelled from the congregation on the basis of a number of grounds that are protected by the Code.

4Both Responses ask that the Application be dismissed because of sections 18 and 34(11) of the Code.

5Section 18 of the Code provides:

The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

6Section 34(11) provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

7Section 18 establishes a defence against allegations of discrimination only in narrow circumstances which do not apply here. The Church may have been "primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination", namely Lutherans. However, as the applicants pointed out in their Reply to the Response, the applicants are not claiming that it is discriminatory to restrict Church membership to persons who are Lutherans, but rather that they are Lutherans who have been subject to discrimination on other grounds.

8Section 34(11) also does not apply in this case. The applicant in the Court action is St. Johns Evangelical Church of Toronto. The respondents in the Court action are various individuals, none of whom are applicants in the Application filed with this Tribunal. This does not appear to be a civil proceeding in which a person is seeking an order under section 46.1 of the Code. In these circumstances, section 34(11) does not apply to this Application.

9The respondents also ask that the Application be dismissed because of a "Dispute/Reconciliation" that is ongoing pursuant to Synod By-Law 1.10.6.1. This appears to be an internal dispute resolution process. The status of this process or whether it might consider the allegations made in the Application is not clear from the documents filed with the Application. According to the Reply to the Response filed by the applicants, this process will not deal with the Human Rights issues raised in the Application and in any event, is currently indefinitely on hold. In my view, there is no reason to dismiss or defer the Application because of the internal Synod process.

10In regard to Mr. Abraham's request that he be permitted to appear as a representative, the Tribunal's Rule 1.14 provides:

Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by a person authorized to provide legal services in accordance with the Law Society Act and its regulations and by-laws.

11Mr. Abrahams may wish to contact the Law Society of Upper Canada for further clarification.

12ORDER

13The respondents' Request that the Application be dismissed or deferred is denied.