Court File and Parties

Court File No.: CV-18-589955-0000 Date: 2019-02-26

Superior Court of Justice - Ontario

Re: Teshome Aga, et al., Plaintiffs And: Ethiopian Orthodox Tewahedo Church of Canada, et al., Defendants

Before: Nishikawa J.

Counsel: A. Colangelo, for the Plaintiffs G. Wood, for the Defendants

Heard: February 25, 2019

Endorsement

[1] The Defendants bring a motion for summary judgment dismissing the Action against them on the basis that this Court has no jurisdiction to review to set aside the decision to expel the Plaintiffs from the Church.

[2] The Plaintiffs oppose on the basis that there is a genuine issue requiring a trial. The Plaintiffs’ position is that the Constitution and By-Laws of the Church form a legally-binding contract.

[3] On May 24, 2017, the Plaintiffs were expelled from the Church by a letter from Archbishop Dimitros, who is also a named defendant. The Plaintiffs were members of the congregation since the early 1990’s. They were appointed to an ad hoc Committee to investigate a movement within the Church considered to be heretical. The report was submitted to the Archbishop. The Archbishop did not accept or implement the Committee’s findings. The Plaintiffs were not satisfied with this, giving rise to the dispute and expulsion.

[4] The defendant “Church” in this matter is the “Ethiopian Orthodox Tewahedo Church of Canada, also known as St. Mary’s Cathedral.” St. Mary’s Cathedral is incorporated as a not-for-profit corporation under the Corporations Act, R.S.O. 1990 c. C. 38. The Constitution and By-Laws that the Plaintiffs rely upon are the 1977 Constitution and General By-Law of the Ethiopian Orthodox Tewahedo Church in the Diaspora dated October 28, 1996. The Constitution was amended in 2017, however, it is the 1977 Constitution that applies to the dispute. The 1977 Constitution is in the Amharic language.

[5] In the Statement of Claim, the Plaintiffs seek an order declaring the decision to expel them null and void, declaring that their rights under s. 2(a) of the Charter have been violated by the Defendants, and declaring the findings of the ad hoc Committee valid and enforceable, among other relief relating to the production of records. The Statement of Claim does not allege a breach of contract.

[6] Under r. 20.04(2)(a) of the Rules of Civil Procedure, a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial. The principles applicable to a motion for summary judgment are well-known and will not be repeated here. See, e.g. Layland v. State Farm Mutual Automobile Insurance Co., 2018 ONSC 6477, at paras. 12-14.

[7] In this case, I have determined that it is appropriate to proceed by summary judgment. Based on the record before me, there is no genuine issue requiring a trial.

[8] This case falls squarely within the application of the Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (“Wall”). In Wall, the Supreme Court determined that judicial review was not available to review the decision of a voluntary religious organization. The Court gave three main reasons:

(i) Judicial review is limited to public decision matters;

(ii) There is no pre-standing right to procedural fairness absent an underlying legal right; and

(iii) The ecclesiastical issues raised are not justiciable.

[9] In this case, the Plaintiffs proceed by way of an Action, and not a judicial review. Nonetheless, the relief that they seek is to remedy what they allege are breaches of procedural fairness. They argue that they were not afforded an opportunity to appeal the Archbishop’s decision, as provided in Article 47.2 of the By-Law. The Plaintiffs have failed to allege or provide evidence of an underlying legal right, that is a civil or property right of the kind that were found in the cases that they rely upon; see, Senez v. Montreal Real Estate Board, [1990] 2 S.C.R. 555, Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958, Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165.

[10] Neither the Constitution nor the By-Law constitute a contract between the Plaintiffs and the Church. An essential element of a contract is a mutual intent to be bound by its terms. The Plaintiffs were not aware of this By-Law or its terms until this proceeding. As Rowe J. noted in Wall “mere membership in a religious organization – where no civil or property right is formally granted by virtue of membership should remain outside the scope of the Lakeside Colony criteria… where a party alleged that a contract exists, they would have to show that there was an intention to form contractual relations.”

[11] While members of the congregation are required to complete an application form, it does not mention being bound to the By-Law.

[12] The Plaintiffs’ factum relies significantly upon provisions of the Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15. This Act has not yet entered into force and has no application here. The applicable statute is the Corporations Act, Part III. The Corporations Act does not provide the procedural fairness provisions included in the Not-for-Profit Corporations Act, or the ability to seek relief from the Court. Moreover, under s. 121 of the Corporations Act, the applicants for incorporation are the “members” thereof. While the Plaintiff’s may be members of the Church’s congregation, they are not “members” within the definition of the Corporations Act, and do not acquire rights under the Act.

[13] I further note that the By-Law is for the Ethiopian Orthodox Tewahedo Churches in the Diaspora, and not solely for St. Mary’s Cathedral. It is unclear to me, if it could constitute a contract, who the parties would be. The Plaintiffs have not alleged any particular provisions of the Constitution to support their Claim.

[14] In summary, the dispute is analogous to that raised in Wall and is not justiciable. The motion for summary judgment dismissing the Plaintiffs’ Claim is granted.

Costs

[15] Counsel both submitted costs outlines at the hearing. Defendant’s counsel’s costs, at $43,228.75 all inclusive, far exceed those of the Plaintiff. I have considered the factors in Boucher and Rule 57.01. The motion was somewhat complex, s the proceeding was commenced before the Supreme Court’s decision in Wall. I nonetheless find the hours spent by Defendant’s counsel somewhat high.

[16] I grant costs to the Defendant’s in the amount of $25,000, including disbursements and HST.

Nishikawa J.

Date: February 26, 2019

Released: May 28, 2021