Court File and Parties
COURT FILE NO.: CV-18-603502 DATE: 20180831 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: YIBRAH GOITOM GHEBRE also known as YIBRAH GOITOM Applicant – and – HAILE ZEWELDI TESFA, BEREKET GONCHE aka BEREKET G. GONCHIE Respondents
COUNSEL: Norman Epstein for the Applicant Vibhu Sharma for the Respondents
HEARD: August 30, 2018
BEFORE: G. DOW, J.
Reasons for Decision
[1] The applicant seeks interim interlocutory relief in advance of the September 20, 2018, two hour hearing date obtained on August 21, 2018. It is not disputed the applicant became the priest at the St. Michael Eritrean Orthodox Tewahdo Church in May, 2003 and this continued until he was terminated by those purporting to be the Board or governing body of this Church. The termination letter is dated June 28, 2018 effective July 2, 2018 but was not apparently provided to the applicant until July 12, 2018.
[2] The applicant disputes the authority and legitimacy of the Board to terminate his services. Both parties have been preparing and filing material as of August 17 including supplementary affidavits exchanged today and given to me prior to submissions. The position of the applicant is the power to terminate his services and restrict his access to the place of worship rests with the Diocese for the American and Canadian Eritrean Orthodox Tewahdo Churches. The Diocese operates out of offices in Washington D.C. (or Virginia). Their authority is from the Eritrean Orthodox Synod located in Eritrea.
[3] Further, the evidence of the applicant challenges the diligence in which the Church has maintained its membership and it’s Board through proper record keeping. In 2008, the Church, through its members, purchased what is known as 702 Jane Street and has conducted services there since that time.
[4] The respondent submits that termination of the applicant was necessary after he demanded to be on the Board which, as a paid employee, is contrary to Canadian Revenue Agency rules regarding charitable organizations. Further, demands were being made to forward 15% of the Church’s gross revenue to the Synod in Eritrea, again, contrary to Canadian charitable law. Further, as the entity which entered into the contract of employment with the applicant, it also had the contractual right to terminate him (see Tab A, page 22 of the Respondent’s Application Record). The respondent also maintained the authority of the Synod and Diocese is limited to providing spiritual advice. It is clear the funds for the purchase of the premises came from local members of the St. Michael Eritrean Orthodox Tewahdo Church.
[5] The parties agree that the test to be applied is contained in R.JR – MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311 and consists of three parts.
[6] First, is there a serious issue to be tried? The threshold, as stated, “is a low one”. Were this the only requirement, the applicant would be entitled to the relief sought.
[7] Second, will the litigant who seeks the interlocutory injunctive relief suffer irreparable harm unless the relief is granted? This has been explained to mean harm that cannot be quantified in monetary terms or permanent loss of reputation or resource. At the core of the Application is the issue of whether the respondent has the authority to terminate the employment of the applicant. It should be noted the respondent, Haile Zeweldi Tesfa (“Tesfa”) describes himself as the chairman of the Board governing the St. Michael Eritrean Orthodox Tewahdo Church. The respondent Bereket Gonche aka Bereket G. Gonchie (“Gonchie”) was the part time assistant priest until the applicant’s purported termination. He has since assumed the role of priest.
[8] I conclude if the applicant’s termination was improper, it is not something that cannot be quantified in monetary terms or by the injunctive remedy sought in this Application. I raised with counsel my concern for the members or congregants who wished to worship and be led by the applicant but conclude they can organize or make alternate arrangements, particularly given the relatively short period of time involved. There was no evidence this could not occur except for the submission of the existence of the Ark of the Covenant in the 702 Jane Street facility and must be consecrated. This submission was met with the fact that this Church has existed which conducted services since 2002 or before it obtained the Ark of the Covenant. I conclude, again, given the relatively short time involved until the termination of this Application, it is preferable those who wish to be guided by the applicant do so separately.
[9] Third, the balance of convenience must favour the litigant seeking the relief. This raises what is in the best interests of the public or, here, congregants or members of the St. Michael Eritrean Orthodox Tewahdo Church and, particularly, those members or congregants that prefer to be led by the applicant.
[10] In the evidence of the applicant, a member, Resom Berhe Gebredingel, in support of the applicant, deposed of incidents in July and August, 2018 where Toronto Police Services were called to attend or be present. Further, Mr. Gebredingel deposed he was assaulted by the respondent, Tesfa. The respondent, Tesfa denies those allegations in his supplementary affidavit sworn August 29, 2018.
[11] Given all of the above, I conclude the balance of convenience and the public interest including the safety of the congregants and members for the period pending the determination of this Application (currently scheduled for September 20, 2018) is not in favour of the applicant.
[12] As a result, the Application for interim interlocutory relief as described in the Notice of Application is dismissed.
[13] A significant number of congregants or members attended to hear the submissions. As I indicated to counsel (and for their benefit), my role in hearing this matter was not to determine the issues between the parties but only whether to grant interim relief.
[14] The costs of today, which logically would be in favour of the respondents, are reserved for the Judge that determines the Application.
**Mr. Justice G. Dow** **Released:** August 31, 2018
COURT FILE NO.: CV-18-603502 DATE: 20180831 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: YIBRAH GOITOM GHEBRE also known as YIBRAH GOITOM Applicant – and – HAILE ZEWELDI TESFA and BEREKET GONCHE aka BEREKET G. GONCHIE Respondents