Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2022 ONSC 5732

COURT FILE NO.: CV-21-00674398-0000

DATE: 20221011

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALEM BIRHANE, FEKRE GABRESELASSIE and YOHANNES GHEBREMEDHIN

Applicants

– and –

MEDHANIE ALEM ERITREAN ORTHODOX TEWAHDO CHURCH, ANDEBERHAN KIDANE, FUTZUM AITSEGHEB, SAMUEL TEKIE KELETE, MICHAEL TEKESTE and KALEAB KELIT ARAIA

Respondents

Allan Morrison and Vibhu Sharma, for the Applicants

David Sischy and Yona Gal, for the Respondents Medhanie Alem Eritrean Orthodox Tewahdo Church, Andeberhan Kidane, Futzum Aitseghel, Samuel Tekie Kelete and Michael Tekeste

HEARD: July 25, 2022

REASONS FOR JUDGMENT

VERMETTE J.

[1] The Applicants seek an order that a general membership meeting and election of the board of directors of the Respondent Medhanie Alem Eritrean Orthodox Tewahdo Church (“Church”) take place, upon adequate notice to the membership of the Church.

[2] The Respondents’ position is that this Court does not have jurisdiction to determine the issues raised by the Applicants. I disagree.

[3] While the Church has a religious raison d’être, it is a not-for-profit corporation and a registered charity with assets of almost $2 million, including $1.2 million in cash and short-term investments. Contrary to the Respondents’ submissions, this case is not about “the bonds of religion.” Rather, this case is about proper corporate governance and compliance with Ontario and Canadian law.

[4] As requested by the Applicants and set out in more detail below, I order the holding of an AGM under the supervision of a neutral chair for the main purpose of electing a new board of directors.

A. FACTUAL BACKGROUND

1. The parties

[5] The Applicants describe themselves as longstanding and active members of the Church.

[6] The Applicant Fekre Gabreselassie was elected as a director of the Church in June 2007 and served as President and Chair of the board of directors until the end of the board’s tenure on December 31, 2010. He was elected again as a director in mid-November 2016. When the board commenced its tenure on January 1, 2017, he was appointed as Vice-Chair of the board. He resigned from the board on January 31, 2018.

[7] The Applicant Yohannes Ghebremedhin was a director of the Church for one three-year term from January 1, 2014 to December 31, 2016.

[8] The Applicant Alem Birhane has been involved in Church committees over the years.

[9] The Respondents Andeberhan Kidane, Futzum Aitsegheb, Samuel Tekie Kelete and Michael Tekeste (“Individual Respondents”) are the current board members of the Church. The Respondent Kaleab Kelit Araia was also a board member, but he resigned after the commencement of the Application. The Respondent Andeberhan Kidane is President and Chair of the board, the Respondent Futzum Aitsegheb is Secretary, the Respondent Samuel Tekie Kelete is Treasurer, and the Respondent Michael Tekeste is Property Manager.

[10] The Individual Respondents, except for Michael Tekeste, were elected at the last board elections which took place in 2016. The following individuals were elected in 2016 to serve as directors for a three-year term commencing on January 1, 2017:

Mr. Andeberhan Kidane Chair

Mr. Fekre Gabreselassie Vice-Chair

Mr. Futzum Aitsegheb Secretary

Mr. Samuel Tekie Kelete Treasurer

Mr. Amanual Abraha Property

Ms. Meaza Tesfayohannes Sunday School

Ms. Asmeret Bariamichael Services

[11] On November 11, 2017, Amanual Abraha resigned from the board of directors and was replaced by Michael Tekeste. As stated above, Fekre Gabreselassie resigned on January 31, 2018. On February 13, 2020, Mr. Gabreselassie was replaced by Kaleab Kelit Araya who, as stated above, resigned after this Application was commenced. Ms. Meaza Tesfayohannes and Ms. Asmeret Bariamichael resigned in 2021 before the commencement of the litigation.

2. Incorporation of the Church and registration as a charity

[12] The Church was incorporated as a corporation without share capital pursuant to the Corporations Act, R.S.O. 1990, c. C.38 (“Corporations Act”) on December 8, 1997. The Church’s letters patent list three applicants/first directors (“Original Applicants”), including the Respondent Futzum Aitsegheb. The objects of the corporation are described as follows in the letters patent:

(A) To promote the spiritual teachings of the Greek Orthodox (Tewadeho) faith, and the maintenance of the doctrines upon which it rests, the observances that serve to promote and manifest it, to spread the message ever wider among mankind, and to take positive steps to sustain religious beliefs by practising the religious observances, tenets and doctrines associated with that faith.

(B) To preach, promote and advance the spiritual teachings of the Greek Orthodox (Tewadeho) faith by practicing the religious observances, tenets and doctrines associated with that faith.

(C) To support and maintain missions and missionaries in order to propagate the faith.

[13] The letters patent contain a number of special provisions, including the following:

B. The incorporated charity shall be subject to the Charities Accounting Act and the Charitable Gifts Act.

C. The directors shall serve as such without remuneration and no directors shall directly or indirectly receive any profit from their positions as such, provided that directors may be paid reasonable expenses incurred by them in the performance of their duties.

E. Upon the dissolution of the incorporated charity and after payment of all debts and liabilities, its remaining property shall be distributed or disposed of to charitable organizations which carry on their work solely in Ontario.

F. If it is made to appear to the satisfaction of the Minister, upon report of the Public Guardian and Trustee, that the incorporated charity has failed to comply with any of the provisions of the Charities Accounting Act or the Charitable Gifts Act, the Minister may authorize an inquiry for the purpose of determining whether or not there is sufficient cause for the Lieutenant Governor to make an order under subsection 317 (1) of the Corporations Act to cancel the letters patent of the incorporated charity and declare them to be dissolved.

G. For the above objects, and as incidental and ancillary thereto, to exercise any of the powers as prescribed by the Corporations Act, or by any other statutes or laws from time to time applicable, except where such power is contrary to the statutes or common law relating to charities, and in particular, without limiting the generality of the foregoing:

J. Provided that none of the activities of the charity be carried out in contravention of the jurisprudence and statutes that govern charities.

[14] A recent Corporation Profile Report for the Church indicates that the Individual Respondents became directors on November 12, 2016 and officers on December 31, 2016. It also reflects that, as stated above, the Applicant Yohannes Ghebremedhin was a director of the Church starting on January 1, 2014.

[15] The Church has been a registered charity with the Canada Revenue Agency since January 1, 2000. Its Registered Charity Information Return for the 2019 fiscal year indicates that it had assets at the end of 2019 in the approximate amount of $1.9 million, including $1.2 million in “cash, bank accounts and short-term investments” and $1.2 million in land and buildings in Canada (with a deduction of approximately $580,000 for accumulated amortization of capital assets). The Registered Charity Information Return also indicates that the Church had a total revenue of $295,932 in 2019 – including $134,470 in gifts for which it issued tax receipts and $110,060 in gifts for which a tax receipt was not issued – and total expenditures in the amount of $235,880.

[16] The full Registered Charity Information Return for the 2020 fiscal year was not before me as none of the schedules, including the “Detailed financial information” Schedule, were in evidence. The Church provided the following information on its 2020 Return: (a) it was in a subordinate position to a “head body”, i.e. the Eritrean Orthodox Tewahdo Church; (b) it did not issue any of its tax receipts for donations on behalf of another organization; and (c) its revenue exceeded $100,000.

[17] In 2012 and 2013, the Church’s Bylaws drafting committee, of which Mr. Gabreselassie was a member, revised the Church’s bylaws. The revised bylaws were approved by Church members in November 2013 and came into effect on January 1, 2014 (“2014 Bylaws”).

[18] Relevant excerpts of the 2014 Bylaws are reproduced in Appendix “A” to these Reasons.

[19] There is a dispute between the parties as to whether new bylaws were adopted in 2019 and came into effect on January 1, 2020 (“2020 Bylaws”). I discuss this issue further below.

3. Events leading to the litigation

[20] From 2000 to 2018, the Church generally held annual general meetings (“AGM”) every year and elections of the board of directors every three years. The last elections were held in 2016 (for the term starting on January 1, 2017). No AGM or elections of directors were held in 2019. As discussed below, the position of the Individual Respondents is that their term was extended in 2019.

[21] All three members of the Audit Committee who were elected in November 2016 resigned in November 2019 and they have not been replaced.

[22] After the failure of the board of directors to take steps to hold an AGM and have an election of directors in 2019, this failure and other issues were raised by the Applicants and others in correspondence, conversations and meetings. Only some of the correspondence and meetings are discussed below.

[23] On July 18, 2021, more than 90 Church members signed a petition asking, among other things, that an AGM be called and that an election of directors be conducted within three weeks. No response was received from the board, even though Article 13.17 of the 2014 Bylaws requires a reply within 10 days.

[24] In correspondence dated September 8, 2021 sent to the Applicants’ counsel, the Chair of the board, Mr. Kidane, took the position that a general meeting was held “by the end of November 2019” and that all the members in attendance at the meeting extended the term of the members of the board of directors “indefinitely to finish the renovation of the church”. In the same correspondence, Mr. Kidane also refused to provide a list of active members to the Applicants on the basis that it was private and confidential.

[25] Counsel for the Applicants sent a letter to the Church on September 23, 2021 in which he requested, among other things, an updated list of the active members of the Church. In its response dated September 30, 2021, the board stated the following with respect to the request for the list of active members: “The church membership list, we are revising them, and when they are ready, we shall refer to our lawyer and seek the advice of the lawyer and act upon the lawyer’s advice.”

[26] On November 11, 2021, the Respondents announced to Church members through automated calls that an AGM and board elections would be held on December 4, 2021. They also advised that they would hold a members’ meeting on November 20, 2021. Approximately 165 Church members attended the meeting on November 20, 2021. The issue of whether the AGM and elections should be postponed was discussed at this meeting. The meeting was ended without a decision.

[27] On December 1, 2021, the Church received the following letter from the Eritrean Orthodox Tewahdo Church Diocese of the United States of America and Canada (“Diocese”):

The Eritrean Orthodox Tewahdo Diocese of the United States of America and Canada, first, we give you our spiritual greetings. Based on the discussion at our last two teleconference meeting [sic] as we explained to you that according to canonical bylaws (Qal Awadi) the Diocese need to review your internal by law before proceeding a new election of church officers, known as “Sebeka Ghubae”. The decree is that the diocese must review all church internal bylaw prior to any election of church officers to make sure that there is no contradiction within the canonical bylaws (Qal Awadi). Therefore, up on the review if there is any correction needed the diocese will communicate or address to you any discovering issues in timely manner in writing via email. However, once this route is in place, and once more you must resubmit the final bylaw embossed by your official church seal. Indeed, once and for all the bylaw will be approve [sic] by The Eritrean Orthodox Tewahdo Dioceses of the United States of America and Canada. As soon as this process completion, you will need to set a schedule with the diocese at least 30 days prior to intended election date in writing because the dioceses must assign a representative to attend the election to witness the process of the legitimacy of the elected church officers (“Sebeka Ghubae”). We have now received your internal by law both in English and Tigrigna language. It is under the process of review. Please be patient with us until further notice and we will get back to you accordingly. Should you have any questions feel free to contact us via email by phone [sic].

[28] On December 2, 2021, two days before the scheduled AGM, the Respondents announced to Church members through automated calls that the December 4, 2021 AGM was cancelled.

[29] The Applicants commenced this Application on December 24, 2021.

[30] According to the Respondents, the Diocese notified the Church on December 31, 2021 that, subject to the addition of a clause in the bylaws stating that the priest of the Church will act as chairperson of the board of directors, the Church’s bylaws were approved and an AGM could be held. The English translation of the letter received from the Diocese on December 31, 2021 reads as follows:

First, we present you spiritual greeting. Next, having repetitive congregations Preaching Administration in earnest saw the internal governing law that you sent to the Administration of the United States and Canada that it did not have views contrary to the basic church law. Let us mention that the correction was focused on the following points.

1. That a priest is the chairman of the dispatch congregation according to church law

2. According to church law, the school’s youth representative was selected by the Sunday School and is a member of the congregation.

3. As part of the 5 administrative pillars of the Church, the diocese is responsible for implementing the guidelines and decisions made by the church’s superior leadership (from the Holy Synods to the sub-national preaching). That it is his responsibility to inform Essent’s raised in church to the body above and also when there is a disagreement between a congregation or a priest or a lack of employment, he cannot solve them by his internal limitations, he should inform to sub-national preaching.

4. During the election of the congregation, a representative of the state preaching/sub-state preaching should observe the legitimacy of elections.

By making a revision focused on these basic 4 points, we are sending you your church’s internal guidance. We remind you that it is possible to contact the state’s preaching administration when you need clarification. When you send us this corrected internal administration posted on each page of the church seal, we can send an agent of the dispatch congregation in the shortest possible time to make election on your choice.

4. Attendances before Justice Myers

[31] On January 18, 2022, the parties attended at Civil Practice Court before Justice Myers who wrote the following endorsement:

The applicants seek an urgent order freezing payments by the church pending an overdue AGM. There are questions raised about the ongoing renovations and about demands for money being made from overseas.

Counsel for the respondents is relatively new to the file. I directed that discussion of an AGM should include a neutral chair and a mechanism to protect the sanctity and transparency of the voters’ list.

The applicants have let time pass that undermines the plea of urgency. On the other hand, if a charity has questions about its finances and appropriate governance, they must be considered in a timely way. I will see counsel for a case conference on Friday January 21, 2022 at 9:00 a.m. to try to assist with resolution of interim terms, the merits, and scheduling as required. […] [Emphasis in the original.]

[32] At the case conference on January 21, 2022, Justice Myers scheduled a one-hour hearing for February 4, 2022 for the purpose of scheduling the full Application and considering the Applicants’ request for interim terms pending the hearing. He also ordered on consent that the Church make no payments out of the ordinary course of business pending the final outcome of the Application. Justice Myers’ endorsement reads, in part:

The applicants allege that the Church is overdue for its AGM and a new election of directors. They fear that the Church’s corporate affairs are being amended without reference to the members. They say they have asked for document disclosure including a member’s list and have been rebuffed.

Counsel agreed that under the Not-for-Profit Corporations Act, 2010, SO 2010, c 15, member democracy is the rule. Courts typically limit their involvement in corporate affairs to ensuring democratic processes are implemented. I have told counsel that an AGM is expected. A neutral chair and scrutineers for the AGM would likely be imposed if not volunteered. And the court is usually prepared to consider proposed mechanisms to monitor the assembly and protection of the voters’ list for the election of directors.

Mr. Sischy volunteers that the Church is prepared to provide access to documents to which the moving members are entitled. The statutory entitlement is much narrower than discovery obligations that may apply after pleadings are joined. Expressing preparedness is helpful. Actually ensuring that the access is provided is what the statute requires without a court order. […] [Emphasis added.]

[33] On January 24, 2022, counsel for the Respondents sent an e-mail to counsel for the Applicants stating that the Respondents were prepared to meet with the Applicants “and provide access to the records they are entitled to as members of the Church under the Not-For-Profit Corporations Act and to discuss scheduling of the next AGM.”

[34] The parties met on January 31, 2022. The Individual Respondents failed to provide all the minutes of meetings and resolutions that had been requested by the Applicants for a number of months. The Secretary, Mr. Aitsegheb, promised to send the missing minutes of meetings and resolutions, but he failed to do so. While Mr. Aitsegheb states in his affidavit that the Respondents “voluntarily offered to provide the Applicants access to and/or copies of Church documents requested by the Applicants to which the Applicants may be entitled”, I do not accept this evidence. I find that only a few documents were provided to the Applicants on January 31, 2022.

5. Membership lists

[35] On January 29, 2022, the Respondent Futzum Aitsegheb sent a membership list by e-mail to one of the Applicants. The list contained approximately 1,170 names, including names of members who terminated their membership years ago, members who have been deceased for years, and members who have been inactive for over ten years. Mr. Aitsegheb states the following in his affidavit regarding this list:

The full member list has been provided to the Applicants, including by email dated January 29, 2022, a copy of which is attached as Exhibit “EE”. There is no separate active member list, nor was the current board provided such a list from the previous board of directors – despite the fact that the previous and current board included individuals who are Applicants in this Application. Nonetheless, in an attempt to respond to the Applicants’ requests, we have agreed to prepare and provide a separate list showing only active members. The entitlement for members to be qualified as active is subject to a member’s determination about his or her ability to serve the Church, obey its regulations, including his or her capacity to make voluntary membership donations in accordance with the religious requirement of donating 10 percent of his or her income.

[36] In an e-mail dated April 4, 2022, counsel for the Respondents took the following position with respect to the members list:

Active Members List: Our clients have already provided the members list of the Church, which is what the statute provides. Nonetheless, as a generous and good faith effort to avoid your clients’ further disruptions at the next AGM, our clients are prepared to compile a revised list of members who satisfy the criteria necessary to be considered active members and will provide this in advance of the next AGM.

Given that the Respondents had agreed to hold an AGM on February 26, 2022 and then proposed to hold an AGM on April 30, 2022, it is noteworthy that they did not produce a list of active members until after the cross-examinations that took place at the end of May and early June 2022.

[37] During his cross-examination held on May 31, 2022, Futzum Aitsegheb stated the following with respect to the active members list:

229. Q. So, by this ... at the very minimum, based on this criteria, do you have an active members list of the church?

A. Yes, yes, there are. There are.

230. Q. Okay. Why have you not made them available in your affidavit?

A. Well, I can’t answer that. But, sorry, I was really pushing for it, personally.

231. Q. You were personally pushing for that list to be disclosed?

A. Yes.

232. Q. And, you know, are you aware that the applicants have been requesting for this list since last year?

A. Yes.

[38] A list of active members was finally produced as an answer to undertakings. It contains 312 names, including the names of the three Applicants. The list reflects that the annual membership fee paid by almost all the members was $120, except for a few (less than 10) who paid $60. For each name on the list, there is a member’s number, a receipt number and a date which appears to be the date on which the person first became an active member. These dates range from August 1998 to December 2021.

6. Alleged extension of the term of the board of directors

[39] On January 31, 2022, the Individual Respondents provided a document dated September 28, 2019 as a proof of extension of the board’s term. The certified translation of the document states that the following motion was passed by 35 of the 54 members in attendance: “Until Case settle [sic] and the elderly elected for securing the peace of church continues its work let the parish council also finish the job they should finish, after that we will elect Semayt elderly and proceed to conference”. The Applicant Fekre Gabreselassie translated the resolution as follows in his affidavit: “to delay the election of the Nominating Committee until the conflict in our church settles down and allow the reconciliation committee completes its investigation, and for the board to complete whatever work it is working.” According to the Respondents, even though this is not reflected in the September 28, 2019 resolution, the term of the board was extended for one year and a new election was to be held following the conclusion of the renovation process at the Church. An AGM was not held the following year because of the COVID-19 pandemic.

[40] I note that the evidence of the Individual Respondents (including their evidence on cross-examination) on the issue of the extension of the term, when and why it occurred, and how long it was going to be is unclear and at times inconsistent. Among other things, there was inconsistent evidence as to what the words “[u]ntil Case settle” meant and referred to. I also note that the September 28, 2019 document is inconsistent with Mr. Kidane’s e-mail dated September 8, 2021 which stated that all the members in attendance at the meeting (not 35 of 54) had voted in favour of extending the terms of the members of the board of directors.

7. February 4, 2022 attendance before Justice Vella and February 26, 2022 AGM

[41] The parties appeared before Justice Vella on February 4, 2022. She made the following endorsement:

[1] This motion was brought by the Applicants on an urgent basis, pursuant to the endorsement of Myers J. issued on January 21, 2022. The one-hour long motion was for the purpose of scheduling the full return of the motion or the main application, and consideration of any request for interim terms to be imposed pending the full hearing.

[2] A tight timetable was set by Myers J. for the hearing of this motion.

[3] In the interim, one of the key demands of the Applicants was met by the Respondents, namely an agreement to hold an Annual General Meeting pursuant to the Not-for-Profit Corporations Act, 2010 (the “Act”) to be held on February 26, 2022 on notice. It is the expectation of the Applicants that there will be an election of directors held at that meeting.

[4] As a result of this agreement, the motion is no longer as urgent as it was, and it is possible that the application may be resolved.

[5] The parties are content to adjourn this proceeding on the term that an Annual General Meeting of the Respondent Church be held on February 26, 2022 pursuant to the Act and relevant by-laws of the Medhanie Alem Eritrean Orthodox Tewahdo Church, and I so order.

[6] Both parties intend to seek costs of today’s appearance, the motion, and the application.

[7] Accordingly, the parties are directed to request a case conference following the February 26, 2022 Annual General Meeting where a judge may exercise the powers under R. 50.13. [Emphasis added.]

[42] The parties had discussions leading to February 26, 2022, including a meeting on February 13, 2022, but they could not agree on a neutral chair and other issues.

[43] Numerous Church members attended the AGM on February 26, 2022. Board members were late and Church members waited in line for a long time. After a while, people in line were let into the room without being screened as to whether they were active members or not.

[44] A number of objections were raised at the beginning of the meeting, including the fact that non-members were present at the AGM, notably a Diocese representative in full clerical attire. Ultimately, the AGM was aborted. Police was called and the meeting ended before it started. Each side blames the other for what happened on February 26, 2022. However, I note that the 2014 Bylaws provide that only active members are eligible to attend an AGM (Article 5.2.2.1) and that it would have been necessary to know who in the meeting room was an active member in order to determine whether there was quorum (Article 6.4) and who had the right to vote (Article 6.3).

8. Subsequent events

[45] In March 2022, more than 150 Church members signed another petition asking the board of directors to step down.

[46] On April 7, 2022, there was a case conference before Justice Ramsay. She scheduled the hearing of the Application for a full day on June 15, 2022. Unfortunately, the Application did not proceed on that date as there was no judge available.

[47] The parties attended at Civil Practice Court on June 29, 2022 to reschedule the hearing of the Application. On that day, I ordered that the issue of the holding of an AGM be heard on an urgent basis on July 25, 2022. I also indicated that if another hearing was subsequently required to deal with any remaining issues in the Application, the judge hearing the matter on July 25, 2022 could schedule another hearing or the parties could request a case conference.

B. DISCUSSION

[48] The Respondents raise the following points in support of their position that this Court does not have jurisdiction to deal with the issues raised by the Applicants:

1. The Applicants are members of a voluntary religious association, not the incorporated Church/charity.

2. The Court lacks jurisdiction due to the failure of the Applicants to establish an underlying legal right.

3. The Applicants seek court intervention to determine non-justiciable matters.

4. Even if the Applicants had established legal rights and justiciable claims, the Applicants have not sought alternative remedies to court intervention.

5. Even if the Applicants had established legal rights and justiciable claims, the Respondents have satisfied their responsibilities as volunteer directors of the Church.

[49] Before discussing each of these points, I will address a few preliminary issues, including evidentiary issues raised at the beginning of the hearing, the issue of the applicable bylaws (2014 Bylaws vs. 2020 Bylaws) and whether the three-year term of the members of the board of directors has been extended by the members of the Church.

1. Preliminary issues raised at the hearing

[50] At the beginning of the hearing, a few issues were raised with respect to materials filed by the Applicants. I ruled that an affidavit of Mr. Gabreselassie served on the day of the hearing was inadmissible as it was served too late and did not appear to relate to the substantive issues before me. However, I held that I would consider the Applicants’ Supplementary Submissions, even if they were filed one day late.

[51] Another issue was raised with respect to the Reply Affidavit of Fekre Gabreselassie sworn June 3, 2022. Counsel for the Respondents argued that paragraphs 17 and following of the affidavit dealt with without prejudice discussions and should not be considered as part of the evidence. Counsel for the Applicants disagreed that the discussions in issue were without prejudice and argued that both sides had referred to other meetings that were similar in nature in their respective affidavit evidence.

[52] I took this objection under reserve so that I could have more time to consider the paragraphs in issue and the references to the other meetings in the other affidavits. After having done so, I have concluded that the Respondents’ objection is well-founded and that the paragraphs in issue should not be in evidence as they relate to without prejudice discussions. The discussions between the parties took place at the suggestion of counsel and, as stated by Mr. Gabreselassie in his affidavit, the parties agreed to meet “to discuss any possible amicable resolution to dispute.” The references in the affidavit evidence to other meetings were not objected to and, if the discussions at these meetings were on a without prejudice basis, both parties appear to have waived settlement privilege with respect to these other discussions in order to address what happened at the failed AGM on February 26, 2022. The circumstances surrounding the discussions that are referred to in Mr. Gabreselassie’s Reply Affidavit are different and privilege has not been waived.

2. Applicable Bylaws

[53] As stated above, there is a dispute as to whether new bylaws were adopted in 2019 and came into effect on January 1, 2020. The Applicants’ position is that the 2020 Bylaws have not been duly ratified or approved by the members of the Church at a duly called members’ meeting, as required by the 2014 Bylaws. The Respondents’ position as set out in their affidavit evidence was that the proposed revisions to the bylaws were presented to Church members at three separate meetings held on June 22, June 29 and August 31, 2019, and that the final amended version of the bylaws (i.e. the 2020 Bylaws) was unanimously approved by the members on November 2, 2019. However, no minutes or resolution were produced with respect to these meetings and the alleged approval, nor was there evidence that proper notice was given before the November 2, 2019 meeting. Further, the evidence of the witnesses on the alleged November 2, 2019 meeting was not consistent.

[54] The only “supporting” documents that were ultimately produced were handwritten notes written in Tigrinya made by the Chair of the Bylaws Committee, Mr. Million. These documents were produced as answers to undertakings with the following note: “Upon review of Mr. Million’s notes, it appears that the resolution to amend the By-Laws was passed on August 31, 2019 not on November 2, 2019.” Mr. Million’s notes do not include attendance lists for the various meetings. No explanation was provided as to why Mr. Kidane swore in his affidavit that the final version of the 2020 Bylaws was unanimously approved by the members of the Church on November 2, 2019.

[55] Based on the evidence (or lack thereof) before me, I conclude that the only valid bylaws are the 2014 Bylaws and that the 2020 Bylaws were not validly adopted in 2019. However, I note that the changes between the two sets of bylaws are minor and I would have reached the same decision under the 2020 Bylaws.

3. Alleged extension of the term of the board of directors

[56] There are numerous issues with respect to the September 28, 2019 document that was provided as the alleged “proof” of the approval of the extension of the board’s term. Among other things, the number of members who were allegedly present at that meeting (54) did not constitute a quorum under the 2014 Bylaws. However, the Respondents allege that this meeting did not require the regular quorum as it was called pursuant to Article 6.4.5 of the 2014 Bylaws after a first meeting lacked quorum. No documents or minutes have been produced with respect to this alleged first meeting, and the September 28, 2019 document does not refer to any prior meeting.

[57] Other issues include whether notice of the September 28, 2019 meeting was adequately provided, and whether a super majority was required to extend the board’s term as it amounts to an amendment of the 2014 Bylaws. 35 votes out of 54 does not meet the super majority requirement under the 2014 Bylaws, which is ¾ of the members present (i.e. super majority required 41 votes).

[58] Further, as noted above, the evidence of the Individual Respondents (including their evidence on cross-examination) on the issue of the extension of the term, when and why it occurred, and how long it was going to be is unclear and inconsistent. The contents of the September 28, 2019 document are also unclear.

[59] In light of the evidence, I conclude that the three-year term of the current members of the board of directors has not been extended by a valid vote of the members of the Church. Among other things, I am not satisfied that proper notice was given that the issue of the extension would be considered at the meeting.

[60] I now turn to the points raised by the Respondents with respect to the alleged lack of jurisdiction of this Court to address the issues raised by the Applicants.

4. Point 1: The Applicants are members of a voluntary religious association, not the incorporated Church/charity

[61] The Respondents took the position very late in this Application that the Applicants were members of a voluntary religious association (i.e. a congregation) and were not members of the Church as a corporation. According to the Respondents, the members of the congregation were never members of the incorporated entity/charity. They point out that voluntary church organizations are not governed by statutes and, therefore, the Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15 (“NCA”) does not apply.

[62] The position adopted by the Respondents is inconsistent with positions they adopted earlier in this litigation, including positions conveyed to Justice Myers and Justice Vella, as reflected in their respective endorsements.[^1] As set out below, I reject the Respondents’ attempt at recharacterizing years of activities within the Church.

[63] In their responding materials to the Application delivered in early June 2022, the Respondents attempt to draw distinctions between the Church as an incorporated charity and the Church as a voluntary religious association and congregation. In his affidavit, Futzum Aitsegheb states the following:

15. In sum, the Church contains within its organization three entities. The primary Church entity is a voluntary religious association and congregation (the “Congregation”), which is named “Debre Mehret Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto” or, for short, “Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto”. M.A.E.S.C.C. [Medhanie Alem Eritrean Social Services Centre] and the Incorporated Charity are corporate entities associated with the Congregation of the Church formed, respectively, for charitable and social services purposes.

16. As stated in its Introduction, the by-laws of the Church were adopted in 2000, and revised in subsequent years, to govern the Congregation and accordingly references the full name of the Congregation: “Debre Mehret Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto”.

17. Members join the Congregation by submitting a Member Registration Form for the Debre Mehret Medhanie Alex Eritrean Orthodox Tewahdo Church. The Member Registration Form does not reference or incorporate in its terms the By-Laws of the Church. The Member Registration Form also does not make reference to M.A.E.S.C.C. or the Incorporated Charity. The Member Registration Form is the only document required as part of the application process, and no corporate documents or by-laws are required to be reviewed as part of the application process. A copy of the Member Registration Form with a certified translation is attached as Exhibit “G”.

18. The Church has always been a voluntary religious association. The members of the Church have always been brought together in alliance by the shared religious goals and practices that animate our voluntary religious association. So long as an individual believes in the fundamental tenets of the Eritrean Orthodox Church, they are free to join or leave the Church organization as they wish. The Application process is designed to ensure the religious qualifications of the potential members.

19. There are no compulsory payments required of members of our Church. Membership fees constitute voluntary charitable donations to assist in the religious objectives of the Church and express a member’s commitment to the religious goals, future and charitable purposes of the Church. As reflected in the blank space for payment in the Membership Registration Form, the amount of payment, if any, of a member is solely in the discretion of the member. In the Church practice and history, and as provided under Article 5.2.1.3 of the By-Laws, members who find it difficult to contribute have no expectation to pay any fees and the absence of such payment does not prevent such individuals from qualifying as active members of the Church.

20. All payments to become members of the Congregation constitute donations to the Incorporated Charity and thereby express the member’s interest and commitment in furthering the religious objectives of the Eritrean Orthodox Church. Each year, members receive donation receipts from the Incorporated Charity for all amounts that the member contributed to the Church, including for membership payment. […]

[64] The Respondents’ argument that the Applicants are only members of a voluntary religious association and not the incorporated Church is based, in part, on their contention that, under the Corporations Act, the only members of the corporation are the Original Applicants. This is an incorrect interpretation of the statute.

[65] The Corporations Act provides the following with respect to membership:

a. Upon incorporation of a corporation, each applicant becomes a member thereof. (section 121)

b. Unless the letters patent, supplementary letters patent or by-laws of a corporation otherwise provide, there is no limit on the number of members of the corporation. (section 123)

c. A person may be admitted to membership in a corporation by resolution of the board of directors, but the letters patent, supplementary letters patent or by-laws may provide that such resolution is not effective until it has been confirmed by the members in general meeting. (subsection 124(1))

d. Each member of each class of members of a corporation has one vote, unless the letters patent, supplementary letters patent or by-laws of the corporation provide that each such member has more than one vote or has no vote. (section 125)

[66] Consistent with subsection 124(1) of the Corporations Act, Article 5.1.2 of the 2014 Bylaws provides that the board of directors approves all applications for membership. The Individual Respondents, who are the current board of directors, have produced a list of active members which must be deemed to have been approved by the board of directors. There is no evidence on the part of the Respondents that the members on the list that they themselves provided were not properly approved by the board of directors. I note that the Respondents have failed to make available the corporate documents requested by the Applicants that are in their power, possession and control, including minutes of members’ meetings and minutes of meetings of the board of directors. They have failed to adduce relevant documents in evidence. As a result, I draw the inference that the corporate records would not support the Respondents’ position on the issue of membership.

[67] Further, and in any event, the provisions of the NCA apply to the Church, as confirmed by prior endorsements made by other judges in this matter.

[68] The NCA came into force on October 19, 2021. Among other things, the NCA provides that the by-laws of a corporation must set out the conditions required for being a member of the corporation (subsection 48(1)); members have the right to vote at any meeting of the members (subsections 48(4) and (6)); the directors of a corporation shall call an annual meeting of the members of the corporation not later than 15 months after holding the preceding annual meeting (subsection 52(1)); and a corporation shall prepare and maintain records containing, among other things, the minutes of meetings and the resolutions of the members and of any committee of members, the minutes of meetings and the resolutions of the directors and of any committee of directors, and a register of members.

[69] Not-for-profit corporations previously governed by the Corporations Act have a three-year transition period to make any necessary changes to their incorporating and other documents to bring them in conformity with the NCA. Subsection 207(1) of the NCA provides as follows:

Except as provided in subsection (3), any provision in letters patent, supplementary letters patent, by-laws or any special resolution of a corporation that was valid immediately before the day this section comes into force and that is not in conformity with this Act continues to be valid and in effect until the third anniversary of the day this section comes into force.

[70] There is no need to rely on subsection 207(1) of the NCA in this case because, as required by subsection 48(1) of the NCA, the Church’s 2014 Bylaws already set out the conditions required for being a member of the Church. Thus, I reject the Respondents’ submission that the only members of the incorporated Church are the three Original Applicants.

[71] The Respondents’ positions that: (a) the Church’s only members are the persons who applied to incorporate it, and (b) the 2014 Bylaws are the bylaws of the congregation instead of the corporation, do not make any sense in light of the facts of this case. It is clear that prior elections held under the 2014 Bylaws were considered to be elections of the board of directors of the incorporated Church as the names of the directors elected by the active members appear on the Church’s Corporate Profile Report. In addition, the elected directors have been dealing with the Church’s assets, the title of which is held by the incorporated Church/charity. If the members of the Church as a corporation were limited to the three Original Applicants, as alleged by the Respondents, the directors of the incorporated Church would have had to be elected by these three Original Applicants, pursuant to section 287 of the Corporations Act. There is no evidence of any meeting or vote of the Original Applicants to elect directors of the incorporated Church.

[72] I reject the contention in Mr. Aitsegheb’s affidavit that the Church’s bylaws were adopted to govern the congregation and not the corporation. No separate bylaw was produced for the corporation. In my view, a review of the 2014 Bylaws shows that it was intended to be the bylaws of the Church as a corporation and registered charity, even if it contains religious aspects. It is important to remember that it is the Church as a corporation and registered charity, not the Church as a voluntary association/congregation, that holds title to the Church’s property and assets. If the 2014 Bylaws had been intended to apply only to a voluntary religious association or congregation, there would have been no need to include several provisions that are in the 2014 Bylaws. For example:

a. Article 1.1 provides that the Church abides by the laws of the Eritrean Orthodox Tewahdo Church to the extent allowable under the Charitable Accounting Act of the Province of Ontario.

b. The Bylaws include numerous references to a budget and the requirement that the members approve the budget at an AGM: see, e.g. Articles 3.3, 4.2.1, 6.1.4.10, 8.5.4, 9.1.4, 9.4.7, 11.9, 13.3.1, 13.4.1, 13.4.2.

c. The Bylaws include numerous references to assets: see, e.g., Articles 6.2.2.2, 6.6.2.1, 6.6.2.2, 9.4.1, 9.4.6, 9.4.8, 9.5, 11.3, 15.3.2, 15.3.3.

d. Article 4.2.2 provides that “[a]ll authorities not explicitly given to any other church organs under these bylaws, resolutions at duly called members’ meeting or under the laws of Canada remains vested in the General Assembly.”

e. Article 4.3.1 provides that the board of directors is responsible, among other things, for custody of church assets.

f. Article 8.1 states that all directors shall be volunteers in accordance with the statutory laws of Ontario governing charities.

g. Articles 13.10.1 and 13.10.2 state that certain records “shall be the official records of the church in conformity with laws of Canada”.

h. Article 13.13 states that in accordance with the Charities Accounting Act, directors shall not be paid any commission or bonus.

i. Article 15.3.6 provides that the Audit Committee is responsible for assisting the board of directors in complying with all the relevant statutory laws of Ontario and Canada.

j. Article 15.3.7 states the following: “Where the relevant laws of the Province of Ontario and Canada are in conflict with the Eritrean Orthodox Tewahdo Church, the laws of the Province of Ontario and Canada shall take precedence over the laws of Eritrean Orthodox Tewahdo Church.”

k. Article 17.1 enumerates fundamental changes, which include: changes of the objects of the church as stated in the articles of incorporation of the church, amalgamation, and dissolution of the church.

l. Article XVIII provides that where there is a dispute regarding the interpretation or application of the bylaws, “the pertinent laws of the Province of Ontario and the laws of Canada (federal laws) shall apply.”

[73] Thus, the Respondents’ attempt at recharacterizing the 2014 Bylaws (or the very similar 2020 Bylaws) as the bylaws of an unincorporated voluntary association instead of a corporation fails.

[74] I also reject any suggestion in Mr. Aitsegheb’s affidavit that there is no membership fee to become an active member of the Church. Mr. Aitsegheb himself confirmed that there was a membership fee during his cross-examination:

237. Q. And do you have a fixed membership fee, by the way? The church? Does the church have a membership fee?

A. Yes.

238. Q. And is it a fixed amount per person, or per family? How does that work?

A. Yes.

239. Q. Which one is it?

A. Well, per person, but a family can have one member, and they can pay as one, too.

[75] As stated above, the list of active members that was produced by the Respondents reflects that the annual membership fee paid by almost all the members was $120, except for a few (less than 10) who paid $60.

[76] Further, Mr. Aitsegheb’s suggestion that that there were no membership dues was contradicted by his own counsel. In an e-mail dated April 4, 2022, counsel for the Respondents stated the following with respect to membership dues and membership renewal:

Membership Renewal: Our clients continue to facilitate the process of membership payments. Your bald suggestion that our clients are makng [sic] it “nearly impossible to pay membership dues and extend membership of members” is simply false.

Our clients have made themselves available on both Saturdays and Sundays between 10 am and 1 pm to facilitate membership dues, thereby providing a full opportunity for members to process their payments.

[77] The reference in Mr. Aitsegheb’s affidavit to M.A.E.S.C.C. is, in my view, an exercise in obfuscation. By Mr. Aitesegheb’s own admission during his cross-examination, M.A.E.S.C.C. was active only for a very short period of time more than 10 years ago. The suggestion that it is part of a “three-headed church” is disingenuous. I do not discuss this corporate entity further in these Reasons as, in my view, it is irrelevant to the issues.

[78] The Respondents rely on the Supreme Court of Canada’s decision in Ukrainian Greek Orthodox Church of Canada v. The Trustees of Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, 1940 CanLII 59 (SCC), [1940] S.C.R. 586 (“UGOCC”) in support of their position that the congregation of a church should not be reduced to or conflated with its incorporated entity. In my view, however, UGOCC does not stand for this proposition. This decision is based on a factual finding that the congregation in issue never became part of the corporate body, which included many congregations. Among other things, the federal statute that constituted the corporation provided that a congregation had to signify its intention to become a part of the corporation by a resolution at a duly called meeting, which the congregation in issue had never done. Further: (a) the objects of the corporation in UGOCC were far more limited in scope than the objects of the Church in this case, as set out in its letters patent; and (b) the objects of the corporation in UGOCC recognized the existence of a parallel voluntary body as a “spiritual church” (see p. 614), which is not the case with the Church’s letters patent. Thus, UGOCC does not stand for the broader legal principle put forward by the Respondents.

[79] The evidence before me shows that there is only one operating entity, i.e. the charitable corporation, and only one board of directors. Aside from unsupported suggestions raised at the last minute, there is no evidence of a parallel entity or congregation and of parallel boards of directors for different entities.

[80] As stated by the Respondents, the NCA does not apply to voluntary and unincorporated associations. However, the Respondents agreed before both Justice Myers and Justice Vella that the NCA applied to the Church. I note, for instance, that the Respondents agreed before Justice Vella to hold an AGM of the Church on February 26, 2022 “pursuant to the [NCA] and relevant by-laws of the Medhanie Alem Eritrean Orthodox Tewahdo Church”. If the Respondents truly thought that they were organizing an AGM for an incorporated charity with only three members and that the 2014 Bylaws were the bylaws of the congregation and not the corporation, they would not have agreed to hold an AGM pursuant to the Church’s bylaws and they would only have sent notice of the AGM to the three Original Applicants, who would have been the only persons entitled to vote at the AGM. Despite this, numerous people attended the AGM and were allowed to enter the room in which the meeting was taking place. The manner in which the February 26, 2022 AGM was organized shows that the positions that were subsequently adopted by the Respondents in their affidavit evidence and factum are unsupported recharacterizations that are being put forward to allow them to rely on the case law that applies to voluntary associations (discussed below).

[81] In light of the foregoing, I reject the Respondents’ argument that the Applicants are not members of the incorporated Church/charity and are only members of a voluntary religious association.

5. Point 2: The Court lacks jurisdiction due to the failure of the Applicants to establish an underlying legal right

[82] The Respondents’ argument that this Court lacks jurisdiction due to the failure of the Applicants to establish an underlying legal right is premised on the Respondents’ allegation that the Applicants are only members of a voluntary association, which I rejected above. The cases relied upon by the Respondents with respect to this point are cases about voluntary organizations that deal with membership or disciplinary issues, which is not the nature of the case before me. In any event, I find that the Applicants have established an underlying legal right under the NCA.

[83] The Respondents rely on two relatively recent decisions of the Supreme Court of Canada involving religious organizations. In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 (“Aga”), members of the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral brought an action against the church and members of its senior leadership after being expelled from the congregation. They sought a declaration that their expulsion was null and void, and other relief. See Aga at para. 1. The Supreme Court of Canada described the parties as follows at paras. 4-5:

[4] The corporate appellant, the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral (“Church Corporation”), is incorporated under the Corporations Act, R.S.O. 1990, c. C.38. The Church Corporation owns the church building and land, and is a local branch of a global Ethiopian Tewahedo Orthodox Church. The individual appellants include members of the leadership of the church: Messale Engeda is the Head Priest and Administrator, and Abune Dimetros is the Archbishop.

[5] The respondents are all former members of the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral (“Congregation”). The Congregation is an unincorporated association. The respondents are not and were never members of the Church Corporation within the meaning of the Corporations Act. [Emphasis added.]

[84] Similarly, in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (“Wall”), the Highwood Congregation of Jehovah’s Witnesses was not incorporated and had no articles of association or by-laws: see Wall at para. 3.

[85] The Supreme Court reiterated in both cases that jurisdiction to intervene in the affairs of voluntary associations depends on the existence of a legal right which the court is asked to vindicate. Only where this is the case can the courts consider an association’s adherence to its own procedures and (in certain circumstances) the fairness of those procedures. There is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations. See Aga at paras. 3, 27, 30 and 31 and Wall at para. 24.

[86] The legal rights which can ground jurisdiction include private rights – rights in property, contract, tort or unjust enrichment – and statutory causes of action: see Aga at para. 29 and Wall at para. 25. One of the cases referred to in Wall as an example of a case based on a statutory cause of action is Lutz v. Faith Lutheran Church of Kelowna, 2009 BCSC 59, which was an application under section 85 of the Society Act, R.S.B.C. 1996, c. 433 (“Society Act”) for a declaration that there had been an omission, defect, error or irregularity in the conduct of the affairs of the incorporated church by which there was default in compliance with the church’s bylaws in connection with the expulsion of the applicants. The court granted the relief sought under the Society Act.

[87] In Aga, the Supreme Court expressly distinguished cases involving corporations from cases involving voluntary associations: see paras. 30, 44. I note that a number of courts of appeal in Canada have confirmed that relief can be granted against incorporated churches under corporate statutes: see, e.g., Bains v. Khalsa Diwan Society of Abbotsford, 2021 BCCA 159 (granting relief under the Society Act for failure to comply with bylaws) and Multani v Siri Guru Nanak Sikh Gurdwara of Alberta, 2022 ABCA 215 (confirming the court’s jurisdiction to grant relief under the Religious Societies’ Land Act, R.S.A. 2000, c. R-15 (“Religious Societies’ Land Act”)).

[88] Contrary to the situation in Aga and Wall, this Court is not asked to review a decision on the basis of procedural fairness or to deal with the expulsion of members or disciplinary actions against them. More importantly, the relief sought relates to an Ontario corporation, not a voluntary association. Further, the Applicants do not allege the existence of a contractual relationship between them and the Church or any property or private right. Rather, they rely on rights conferred to members of a corporation under the NCA, and on the incorporated Church’s obligations under its corporate by-laws and Canadian/Ontario law.

[89] The Respondents rely on the decision of Dunlop J. in Mathai v. George, 2019 ABQB 116 (“Mathai”) in support of their position that the court does not have the jurisdiction to make orders about church actions, even if the church is incorporated. In that case, Dunlop J. expressed the view that the fact that the church was incorporated pursuant to the Religious Societies’ Land Act was insufficient to give the court jurisdiction to review the church’s decisions. He concluded that based on the evidence before him, no one had a legal right to membership in the church or election to its board, and neither Mr. Mathai nor any other member of the church had legal rights to notice of church meetings or the right to vote in elections. Dunlop J. found that those matters were governed internally by the church and that the Court had no jurisdiction to intervene. See paras. 13, 14.

[90] This case can be distinguished on numerous grounds, including the following:

a. It appears that the church in that case was incorporated under the Alberta Religious Societies’ Land Act. The Religious Societies’ Land Act is different from the Corporations Act and the NCA. Further, there is no mention as to whether the church in Mathai was a registered charity. I also note that Dunlop J. declined to comment as to whether his conclusions would have been different had the provisions of the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23 applied as there was no evidence that the church was incorporated under that statute. See para. 14.

b. Dunlop J. was careful to state that his conclusions were based on the evidence before him (see, e.g., para. 13).

c. While Dunlop J. concluded that he had no jurisdiction to issue declarations or orders with respect to membership, elections or disciplinary action of the church, he did recognize that an oppression action may be available with respect to a body incorporated under the Religious Societies’ Land Act, and he did consider whether there had been a breach of internal rules, lack of procedural fairness or bad faith. After considering the evidence, he found that the evidence before him did not establish oppression and that there was no breach of the church’s internal rules, lack of procedural fairness or bad faith. These findings and conclusions are inconsistent with the broad proposition that a court has no jurisdiction in internal church business when the matters relate to corporate governance.

d. In his reasons, Dunlop J. suggested that a prior decision of the Alberta Court of Appeal was no longer good law in light of the decision of the Supreme Court of Canada in Wall (para. 16), including the following statement of the Alberta Court of Appeal: “The courts can and do intervene in the workings of incorporated religious bodies in order to ensure compliance with their constitution and bylaws and fair election process where elections are required, where the heart of the dispute is not religious differences.” However, the Alberta Court of Appeal recently applied the decision that Dunlop J. questioned and confirmed its validity: see Multani v Siri Guru Nanak Sikh Gurdwara of Alberta, 2022 ABCA 215 at paras. 12-16. In my view, this seriously undermines any precedential value that Mathai may have had. Mathai fails to recognize that members of an incorporated church have legal rights under corporate statutes.

e. The decision in Mathai was rendered before the Supreme Court of Canada’s decision in Aga where, as stated above, the Supreme Court expressly distinguished cases involving corporations from cases involving voluntary associations.

[91] Thus, I find that the reasoning in Mathai does not apply to this case.

[92] Pursuant to subsection 52(1)(b) of the NCA, directors have the obligation to call an AGM of the members of the corporation not later than 15 months after holding the preceding AGM. Section 31 and subsection 61(1) of the NCA state as follows:

Court review of election or appointment of director

31 (1) A corporation or a director or member of the corporation may apply to the court to determine any controversy with respect to an election or appointment of a director of the corporation.

Powers of court

(2) On an application under this section, the court may make any order that it thinks fit, including an order,

(a) restraining a director whose election or appointment is disputed from acting pending determination of the dispute;

(b) declaring the result of the disputed election or appointment;

(c) requiring a new election or appointment, and including in the order directions for the management of the activities and affairs of the corporation until a new election is held or appointment made; and

(d) determining the voting rights of members and of persons claiming to hold memberships.

Members’ meeting called by court

61 (1) The court, on the application of a director or a member who is entitled to vote at a meeting of the members, may order a meeting of the members of a corporation to be called, held and conducted in the manner that the court directs, if,

(a) it is not practical to call the meeting within the time or in the manner in which it is otherwise to be called;

(b) it is not practical to conduct the meeting in the manner required by this Act or the by-laws; or

(c) the court thinks that the meeting should be called, held and conducted within the time or in the manner that it directs for any other reason.

[93] Accordingly, I find that, contrary to the Respondents’ allegation, the Applicants have established the existence of a legal right under the NCA which this Court is asked to vindicate, and this Court has jurisdiction to do so.

6. Point 3: The Applicants seek court intervention to determine non-justiciable matters

[94] In Wall, the Supreme Court of Canada stated that in addition to questions of jurisdiction, justiciability limits the extent to which courts may engage with decisions by voluntary associations even when the intervention is sought only on the basis of procedural fairness. See Wall at para. 32.

[95] Justiciability relates to the subject matter of a dispute. If an issue is one that is appropriate for a court to decide, it is justiciable. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter. In determining this, courts should consider whether the matter before the court would be an economical and efficient investment of judicial resources to resolve, whether there is a sufficient factual and evidentiary basis for the claim, whether there would be an adequate adversarial presentation of the parties’ positions and whether no other administrative or political body has been given prior jurisdiction of the matter by statute. See Wall at paras. 32-34. Where there is no contract, or other obligation known to law, there is no justiciable interest and no cause of action: see Aga at para. 24.

[96] The fact that a dispute has a religious aspect does not by itself make it non-justiciable. However, courts should not decide matters of religious dogma or the merits of a religious tenet. The courts have neither legitimacy nor institutional capacity to deal with theological or religious disputes or contentious matters of religious doctrine, and they have repeatedly declined to consider them. See Wall at para. 36. While purely theological issues are not justiciable, where a legal right is at issue, courts may need to consider questions that have a religious aspect in vindicating the legal right. For example, courts adjudicating disputes over church property may need to consider adherence to the church’s internal rules, even where those rules are meant to give effect to religious commitments, and a claim for damages based on a breach of a civil obligation, even one with religious aspects, remains within the domain of the civil courts. See Aga at para. 28.

[97] In my view, issues of corporate governance related to an incorporated charity such as whether an AGM should be called and whether an election of directors should be held are justiciable issues. The courts deal with such issues on a regular basis based on various corporate statutes. The fact that the corporate dispute relates to an incorporated charity with religious purposes does not make it non-justiciable. While it is possible that certain issues of compliance with the 2014 Bylaws could constitute contentious matters of religious doctrine and be non-justiciable issues, I find that this is not the case with respect to the issue before me.

[98] The Respondents argue that the requirements recently imposed by the Diocese makes the holding of an AGM a religious question. I disagree. First, I note that the Individual Respondents do not allege that their failure to call an AGM in 2019, as they were required to do, was based on a religious reason. It was not.

[99] Second, the Respondents’ willingness not to comply with one of the requirements imposed by the Diocese – i.e. the Respondents’ willingness to have a neutral chair for the AGM instead of having a priest be the chair – seriously undermines the Respondents’ position that the Diocese’s requirements are sine qua non conditions. I also note that when they were before Justice Vella on February 4, 2022, i.e. after they received the December 31, 2021 correspondence from the Diocese, the Respondents agreed to hold an AGM pursuant to the NCA and “the relevant by-laws” of the Church, which bylaws (whether they were the 2014 Bylaws or the 2020 Bylaws) had not been amended as requested by the Diocese.

[100] Third, I do not have to try to interpret and apply religious questions or requirements in this case. While the 2014 Bylaws state that the Church abides by the laws of the Eritrean Orthodox Tewahdo Church, it provides that it is only “to the extent allowable under the Charitable Accounting Act of the Province of Ontario.” Further, this is a general statement about the Church which does not provide that the laws of the Eritrean Orthodox Tewahdo Church automatically supersede the text of the 2014 Bylaws, without any need for implementation and amendments. In fact, Article XVIII of the 2014 Bylaws states that where there is a dispute of interpretation or application of the 2014 Bylaws, “the pertinent laws of the Province of Ontario and the laws of Canada (federal laws) shall apply”. Similarly, Article 15.3.7 states that “[w]here the relevant laws of the Province of Ontario and Canada are in conflict with the Eritrean Orthodox Tewahdo Church, the laws of the Province of Ontario and Canada shall take precedence over the laws of Eritrean Orthodox Tewahdo Church.” There are other references in the 2014 Bylaws that make it clear that the laws of Ontario and Canada are paramount with respect to the incorporated Church.

[101] At least one requirement sent by the Diocese on December 31, 2021 conflicts with Ontario and Canadian law, i.e. the requirement that a salaried priest be the chair of the board of directors. Charitable corporations are not authorized to make payments for services provided by a director in their capacity as employee. To make such payments, a charitable corporation is required to obtain a court order. See Re Public Trustee and Toronto Humane Society, 1987 CanLII 4192 (Ont. H.C.J.), section 2.1(4) of O.Reg. 4/01 under the Charities Accounting Act, R.S.O. 1990, c. 10, and Payments to Director and Connected Persons: Guidance of the Public Guardian and Trustee at pp. 2, 3, 12.

[102] In addition to the need for a court order for one of the requirements, amendments to the 2014 Bylaws would be required to implement all of the requirements. Proper consideration needs to be given to applicable statutory provisions and to the issue of how the requirements could and should be implemented through amendments to the bylaws or other means. This is not something this Court could or should do on this Application. I note, for instance, that while the parties have been referring to a requirement that a priest be the chair of the board of directors, this is not what the English translation of the December 31, 2021 letter from the Diocese states. The letter states that “a priest is the chairman of the dispatch congregation according to church law”. The reference to the “congregation” instead of an incorporated entity might suggest that this requirement could be met in different ways. I reiterate that it is not my role to interpret requirements imposed by the Diocese. However, based on the evidence, it is possible that the issues of the requirements (or some of them) may not be ripe. In any event, implementing the requirements is not as simple a task as doing limited “reading in” or “reading down” with respect to the 2014 Bylaws.

[103] The Individual Respondents have been in breach of their statutory obligations and their obligations under the 2014 Bylaws to hold an AGM and an election of directors for an extended period of time. The Church’s 2014 Bylaws clearly give paramountcy to Canadian and Ontario law over religious laws of the Eritrean Orthodox Tewahdo Church. In any event, the recent requirements imposed by the Diocese cannot be implemented “as is” and require the Church to consider and work on their implementation, which can be done by the new board of directors after the long overdue AGM and elections.

[104] Thus, I conclude that the issue of the holding of an AGM, which is the only issue before me at this time, is a justiciable matter.

7. Point 4: Even if the Applicants had established legal rights and justiciable claims, the Applicants have not sought alternative remedies to court intervention

[105] I reject the Respondents’ argument that the Applicants had to seek alternative remedies before seeking the intervention of the court. This argument appears to be based on the Respondents’ position that the core dispute in this case is ecclesiastical. As stated above, I disagree with this position. In addition, there is no support for the position that alternative remedies must be sought in the context of a corporate entity whose board has failed to abide by basic obligations like holding an AGM and election of directors. In any event, I note that the Applicants and other Church members have sent a number of written requests to the board asking that an AGM be held, but the board failed to hold one.

8. Point 5: Even if the Applicants had established legal rights and justiciable claims, the Respondents have satisfied their responsibilities as volunteer directors of the Church

[106] The Respondents argue that even if the Applicants have established legal rights and justiciable claims, the Respondents have satisfied their responsibilities as volunteer directors of the Church.

[107] I reject this position. In my view, there can be no valid explanation for the Respondents’ failure to hold an AGM and an election of directors for an extended period of time (even when taking into account the COVID-19 pandemic), and their failure to comply with basic requirements like giving adequate notice of meetings and preparing and keeping appropriate corporate records. While the Individual Respondents may be volunteer directors (which is usually the case with charities), this does not eliminate the duties imposed on them as directors. Further, the fact that the Church has substantial assets is a relevant consideration when determining the contents of the duties of the Individual Respondents.

[108] I find that the Individual Respondents have failed to comply with the Church’s 2014 Bylaws (and they would have failed to comply with the 2020 Bylaws had it been validly adopted) and basic statutory requirements applicable to not-for-profit corporations and charitable corporations. They have been obstructionist and have given inconsistent and less than candid evidence. In addition, the evidence before me raises serious issues as to whether the Individual Respondents have discharged their duty to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. However, I do not need to make a finding on this issue for the purpose of the matters that are before me.

C. CONCLUSION

[109] In light of the foregoing, I order the Respondents to hold an AGM in accordance with the NCA and the 2014 Bylaws. I will appoint a neutral chair who will have responsibility for all aspects of the AGM, including the preparation of the agenda, and will be empowered to retain such counsel and other assistance as may be necessary to that end, including two neutral scrutineers. The chair will have access to all books and records of the Church in preparation for the AGM. The primary purpose of the AGM will be to hold an election of directors.

[110] The parties are to discuss the date and organization of the AGM, including candidates for the position of neutral chair. If the parties are unable to agree on the terms of a draft order and/or the necessary details, they are to contact my assistant to schedule a case conference during which I will decide all outstanding issues.

[111] The Order made by Justice Myers that the Church make no payments out of the ordinary course of business (with the additional exception of payments related to the AGM as approved by the neutral Chair) is continued until the election of the new board of directors.

[112] If it is necessary to deal with any of the remaining issues raised in the Application after the AGM, counsel are to contact my assistant to schedule a case conference.

[113] If costs cannot be agreed upon, the Applicants shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The Respondents shall deliver their responding submissions (with the same page limit) within 14 days of their receipt of the Applicants’ submissions. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J.

Released: October 11, 2022

APPENDIX “A” – Relevant excerpts of 2014 Bylaws

Article I. Introduction

1.1 Preamble

Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto is affiliated with the Eritrean Orthodox Tewahdo Church.

Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto abides by laws of the Eritrean Orthodox Tewahdo Church, which is referred to as ‘Qal Awadi’, and which was promulgated in 1995 (1987 Geez Calendar), to the extent allowable under the Charitable Accounting Act of the Province of Ontario.

Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto is established to serve all followers of the Orthodox Tewahdo Faith in Greater Toronto Area (GTA).

A bylaw is needed to properly govern our Church.

1.2 Title of this Document

This document shall be referred to as the ‘Bylaws of the Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto’.

1.3 Name of Church

The name of the Church shall be “Debre Mehret Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto” or, for short, “Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto”.

1.4 Principles

All acts, decisions, policies of the church shall be consistent with the teachings of Our Lord Jesus Christ including […].

1.5 Objectives.

The Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto shall promote a Christian way of life in accordance with the faith and doctrines of the Oriental Orthodox Faith through:

1.5.1 administering the liturgy and the sacraments. 1.5.2 the pastoral work of the clergy. 1.5.3 Christian education, publication and Sunday schools. 1.5.4 Spiritual meetings and Bible study. 1.5.5 the encouragement of fellowship of the congregation. 1.5.6 baptisms, weddings, memorials and comfort those in mourning. 1.5.7 social services for members of the Church, including facilitating senior citizens to meet and enjoy companionship. 1.5.8 cooperation and assistance of other Eritrean Orthodox Tewahdo churches and Oriental Orthodox churches. 1.5.9 undertake activities to serve the Holy Church. 1.5.10 carrying on evangelistic and missionary work. 1.5.11 functioning under the Holy Patriarch of the Eritrean Orthodox Tewahdo Church. 1.5.12 undertaking projects and activities that strengthens the community of fellowship

1.6 Official Address.

The official address of the Church is,

1 Ramsden Road Toronto, ON M6E 2N1

1.7 Official Seal.

The official seal shall carry the official logo of the Eritrean Orthodox Tewahdo Church with the name ““full name of church”” and with Toronto, Canada shown in the seal.

Article II. Articles of Faith

Article III. Definitions

3.1 Ad-hoc Committee. refers to a committee established by the board of directors as needed and whose members are appointed and report to the board of directors.

3.2. Annual General Meeting (AGM). refers to Church Members’ Meeting held every year. Motions are passed with fifty percent (50%) plus one (1) vote cast by members present at the meeting. Annual General Meeting may also be referred to as Annual Meeting.

3.3. Approved Church Budget: Refers to budget approved for specific fiscal year by church members during Annual Members’ Meeting.

3.4. Board of Directors. refers to a Church body duly elected to manage and administer Church functions and activities. In this bylaw, it is also referred to as ‘the board’ or ‘board’.

3.5. Bylaws. refers to the bylaws of Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto.

3.6 Church. refers to the Medhanie Alem Eritrean Orthodox Tewahdo Church in Toronto.

3.7. Deacon. refers to a person who was duly conferred such title or accepted to serve as such by the Eritrean Orthodox Tewahdo Church.

3.8. Donation. includes tithes, almsgiving, offerings and donations given by members, congregation or external donors.

3.9. Fiscal Year. Refers to period beginning January 1st and ending on December 31st.

3.10. General Assembly. Refers to the meeting of active members at an Annual General Meeting and is the highest church organ.

3.11. Member. refers to person who professes the Orthodox Tewahdo faith, is registered as member and participates in all facets of the church, including as a volunteer and by giving tithes, alms and offerings.

3.12. Members’ Meeting. refers to any members meeting duly called, and includes Annual General Meeting, Special Meeting and Emergency Meeting.

3.13. Priest. refers to a person who was duly conferred such title or accepted as such by the Eritrean Orthodox Tewahdo Church.

3.14. Services. refers to all spiritual and social services given by the Church.

3.15. Standing Committee. refers to a committee established under Church bylaws but whose members are appointed by and report to the board of directors.

3.16. Teacher. refers to any person able to give bible sermons, teach Sunday School, or provide spiritual and religious teachings for priesthood or deaconship.

Article IV. Organizational Structure

4.1 Church Body

Medhanie Alem Eritrean Orthodox Tewahdo Church shall have five organs

4.1.1 General Assembly of Church Members (herein “General Assembly” or “Membership”) 4.1.2 Board of Directors 4.1.3 Church Advisory Council (or “Advisory Council” or “Council”) 4.1.4 Board of Clergy & Deacons 4.1.5 Standing Committees

4.2 General Assembly

4.2.1 Highest Authority. Active members are the highest organ in the Church. The membership shall exercise its authority by voting at Members’ Meetings; by adopting and amending these laws; by electing a Board of Directors and a Nominating Committee; by adopting a budget; by approving membership fees and by adopting resolutions as proposed by the Board

4.2.2 Residual Authority. All authorities not explicitly given to any other church organs under these bylaws, resolutions at duly called members’ meeting or under the laws of Canada remains vested in the General Assembly.

4.3 Board of Directors

4.3.1 Responsibility. The Board of Directors shall be responsible for all legal matters, ensuring compliance with this bylaw, custody of church assets, administrative functions, safety and health of the Church, church members and its congregation.

4.3.2 Membership. Members of the Board of Directors shall be elected by Church members every three years.

4.3.3 Representative. The Board of Directors shall be the official representative of the Church to outside parties.

4.3.4 Planning. The Board of Directors shall be responsible for planning and implementing short- and long-term goals.

4.3.5 Staff hiring, supervision and termination. The Board of Directors shall have the authority to hire or employ, supervise and terminate paid and volunteer staff.

4.3.6 Staff salaries. The Board of Directors shall determine staff salaries based on approved budget at AGM.

4.3.7 Members’ Meeting. The Board of Directors shall call Members’ Meeting, except limitations of Sec. 6.1.

4.3.8 Six-month Report. The Board of Directors shall hold one Members’ Meeting between Annual General Meetings for the purpose of presenting 6-month report only.

4.3.9 Standing Committees. The Board of Directors shall appoint the members of the Standing Committees.

4.3.10 Ad-hoc Committees. The Board of Directors may establish ad-hoc committees as needed.

4.3.11 Requirements for internal consultation.

4.3.11.1 The board may consult the Advisory Committee on how to carry out its responsibilities and obligations

4.3.11.2 The board shall consult the Church Advisory Council on major decisions and policies that include the following

4.3.11.2.1 Any policies and decisions that concern dealings with the Eritrean Orthodox Tewahdo Church

4.3.11.2.2 Entering into any form of obligations, agreements, guarantee, contracts, allegiance or similar acts that bind the church to third parties

4.3.11.2.3 Any other activities or dealings that may conflict with church objectives and purposes as stated in the church’s articles of incorporation and church bylaws.

4.3.11.3 The board may make decisions contrary to the decisions of the Church Advisory Council, except for limitations under Article 4.3.11.4, but then must document the reasons for its decision. Such documents shall be available in writing to the chair of the Church Advisory Council within ten (10) days.

4.3.11.4 Notwithstanding the above authority as per Article 4.3.11.3 to make such decisions, where three-quarter (3/4) of the members of the Church Advisory Council make decisions to submit a business to the General Assembly of Church Members, the board is required to call Special Meeting of the church members or wait until the Annual Meeting of Church Members.

4.4 Church Advisory Council

4.4.1 Purpose

4.4.1.1 A forum to periodically review Church activities and advise the board of directors on how to best attain Church objectives.

4.4.1.2 A forum to encourage communication and coordinate activities among the various church organs and committees

4.4.1.3 To create a platform for future church leaders

4.4.2 Membership. Board of directors, Head Priest, chairs of each Standing Committees, reserve members of the board of directors, Medhanie Alem Eritrean Orthodox Tewahdo Church Alem Social Services board members, former board members, advisory committee and audit committee members shall be members of the Church council.

4.4.3 Meetings.

4.4.3.1 Church Advisory Council shall meet once not later than four weeks before scheduled six-month members’ meeting or AGM.

4.5 Standing Committees

4.5.1 Responsibility. Standing Committees shall execute Church programs and activities in accordance with the terms of reference prepared by the board of directors.

4.5.2 Membership. Members of the Standing Committees shall be church members and appointed by the board of directors. The chair of the board of directors and head priest are ex-officio members all Standing Committees, but will NOT have any voting rights. One board member shall be assigned to each Standing Committee. Only church members shall be appointed to church committees. Experts may be appointed as non-voting members.

Article V. Membership

5.1 Applying for Membership

5.1.1 Membership. Any person may become member of the church if such person

5.1.1.1 Is baptised by an Orthodox Tewahdo priest, and 5.1.1.2 Upholds the Orthodox Tewahdo Faith, and 5.1.1.3 Does not belong to other churches.

5.1.2 Board of directors approves all applications for membership. Where the board of directors does not decide on membership application within ninety days, the application is automatically accepted.

5.1.3 Family Membership: members may register as family and shall include only spouse and children, biological or adopted, under the age of eighteen (18) years old.

5.2 Active Members

5.2.1 Definition

5.2.1.1 An active member is a member who has paid membership dues for the entire fiscal year immediately preceding the current year,

5.2.1.2 An active member shall be over the age of eighteen (18) years of age.

5.2.1.3 New members who joined during the year immediately preceding the current year shall be deemed active members after six months and if all dues are paid since becoming church members.

5.2.1.4 New members who join in the current year shall be deemed active members six months after joining church and having paid membership dues for the first six months.

5.2.1.5 Members who have their dues waived due to hardship after written application to the board of directors shall be deemed active members.

5.2.1.6 Exceptions to Article 5.2.1.1 The board of directors may on its own initiative designate a member as active if, […]

5.2.1.7 Family membership:

5.2.1.7.1 Where members are registered as a family and where each family member is paying full membership fees, each family member shall be deemed to be an active member eligible to vote separately.

5.2.2 Rights of Active Members

5.2.2.1 Only active members shall be eligible to attend Members' Meetings.

5.2.2.2 Vote. Each member shall be entitled to cast one (1) vote on each matter submitted to a vote at Church meetings.

5.2.2.3 Candidates. Only active members have the right to be candidates for the board of directors.

5.3 Inactive Members

5.3.1 Deactivating an Active Member. Members who have not paid their monthly dues for the year immediately preceding the current year may be dropped from active membership ninety (90) days after the commencement of the current year, but the names of such members shall be retained on the list of inactive members.

5.3.2 Reinstatement. Members dropped from active membership may be reinstated upon reapplication by action of the board of directors without completing new application form if the board so determines.

5.3.3 Where a member has been inactive for over three (3) years, the inactive member may be reinstated through reapplication specified above in Sec. 5.1 and payment of six (6) months of fees at existing fee structure. Reinstatement is effective six (6) months following the fulfilment of all the requirements for reinstatement.

5.4 Requirement to Report Membership Status at AGM:

5.4.1 The board shall report on the status of church membership as follows:

5.4.1.1 Level I; Active Members

5.4.1.2 Level II: Members who have not paid fully for the last fiscal period.

5.4.1.3 Level III: all other fiscal periods immediately preceding the last fiscal period.

5.6 Termination of Membership

A member,

5.6.1 may withdraw by submitting a resignation letter. No refunds shall be paid.

5.6.2 requests a letter of transfer to join another Orthodox Tewahdo Church

5.6.3 is dropped from the roll of active membership when he or she joins another kind of church. A letter of transfer is not necessary

5.6.4 Dies

5.6.5 Is dismissed by a vote of the board of directors due to reasons and circumstances provided in the board of directors’ review of member’s conducts. The priest and deacon will do all they can to counsel the member for restoration prior to action of dismissal or request of the member to be dismissed from the church membership. Such dismissal shall be brought for ratification at the following Church Advisory Council to become permanent dismissal. Notwithstanding Article 5.2, member is immediately removed from active church member list upon board’s dismissal.

5.7 Membership Fees: The AGM shall fix, from time-to-time, membership fees.

Article VI. Meetings

6.1 Annual General Meetings (AGM)

6.1.1 AGM shall be held in October or November of each year.

6.1.1.1 Requirement to fix date for AGM: the date for the following year’s AGM shall be fixed by church members during an AGM.

6.1.1.2 The date affixed by AGM shall NOT be changed within four weeks of the scheduled AGM except due to extraneous situations approved by Church Advisory Council

6.1.1.3 Changes to date of AGM that is NOT to take place within four weeks must be approved by Church Advisory Council.

6.1.2 Chair. AGM shall be presided by the chair of the board of directors.

6.1.3 Agenda.

6.1.3.1 The board chair with the assistance of the board secretary shall prepare meeting agenda and send with meeting notice

6.1.3.2 The board chair may modify agenda after sending out notice but before Members Meeting except adding agenda items requiring super-majority votes.

6.1.3.3 Members may modify meeting agenda with concurrence of the board chair at the beginning of members’ meeting except adding agenda items requiring super-majority votes.

6.1.4 Order of business shall be:

6.1.4.1 Call to order

6.1.4.2 Prayer

6.1.4.3 Announce if quorum is present

6.1.4.4 Review agenda and take straw vote

6.1.4.5 Appointment of the committee to review and approve minutes

6.1.4.6 Report of committee appointed to review and approve minutes of previous meeting.

6.1.4.7 Report of Treasurer and/or Finance Officer

6.1.4.8 Report of Internal Auditors

6.1.4.9 Reports of directors, officers and committees

6.1.4.10 Consideration of the budget

6.1.4.11 Unfinished business

6.1.4.12 New business

6.1.4.13 Appointment of committee to count ballots for the election of officers, where applicable

6.1.4.14 Election of officers, where applicable

6.1.4.15 Adjournment

6.2 Special Meetings

6.2.1 Special Meetings:

6.2.1.1 Special Meetings may be called by the chair of the board of directors

6.2.1.2 Special Meetings may be called by the majority of the board of directors through the chair of the board.

6.2.1.3 Special Meetings shall be called with signed request of fifty (50) active members or one-quarter of the active members, whichever is less

6.2.1.4 Unless otherwise specified in petition, such meeting shall take place within four (4) weeks, whichever is later

6.2.2 Emergency Meetings:

6.2.2.1 Call for Emergency Meeting: shall be made by Board of Directors

6.2.2.2 Emergency Meeting shall NOT address financial matters, purchase or disposition of assets over $50,000 (fifty thousand dollars) and amendments to Church bylaws. Emergency meeting may be used to discuss, formulate and approve Church policies.

6.3 Voting. Only active members of the Church of legal age shall have the power to vote at its business meetings. There are no provisions to vote by proxy or by absentee ballot.

6.4 Quorum.

6.4.1 Requirement: Church business at members’ meetings shall only be transacted where quorum is present.

6.4.2 Size: The greater of one-quarter or ninety (90) active members of the Church shall constitute the quorum at any business meeting of the Church, but a smaller number may adjourn from time to time.

6.4.3 Proof of Quorum: a record indicating the name and phone number of the active members present and signed by active members shall be proof of attendance for determining quorum.

6.4.4 Loss of Quorum: where quorum is present at the opening of members’ meeting, members may proceed with the business meeting, notwithstanding that quorum is not present throughout the meeting.

6.4.5 Absence of Quorum. where quorum is not present at the opening of members’ meeting, the board shall call a second meeting and shall transact business with active members present at the second meeting. The second meeting shall be held within four (4) weeks of the first meeting lacking quorum.

6.5 Simple Majority

6.5.1. Simple Majority is fifty percent plus one (50%+1) of the members present unless otherwise stated in other sections of this bylaw,

6.5.2. Where a vote is a tie, the chair shall cast the deciding vote

6.6. Super Majority

6.6.1. Super majority is three-quarter (3/4) of the vote of members present

6.6.2. Super majority is needed for the followings [sic],

6.6.2.1. purchase of assets over $50,000 (fifty thousand dollars), with exception given for real property under Section 6.11 of this bylaw,

6.6.2.2. exchange or disposition of assets over $3,000 (three thousand dollars) of original purchase value or market value, whichever is greater

6.6.2.3. borrowing or entering into contractual obligations of over $25,000 (twenty five thousand dollars)

6.6.2.4. amendments to church bylaws

6.6.2.5. terminating board member’s tenures

6.7 Meeting Notice

6.7.1 Advance Notice. Notice for Annual General Meeting and Special Meeting shall not be less than twenty-one (21) calendar days unless otherwise stated in other sections of these bylaws

6.7.2 Notice for Emergency Meeting. Notice for Emergency Meeting shall not be less than three days.

6.7.3 Content of Notice:

6.7.3.1 Type of meeting

6.7.3.2 Date and Time of meeting

6.7.3.3 Place of meeting is assumed at the church’s official address unless otherwise stated

6.7.3.4 Meeting agenda

6.7.3.4.1 Requirement: Whereas the board may make modifications to meeting agenda sent to church members before church meeting, the board shall not add a business that requires super-majority into the amended agenda. Any business that requires super-majority must be included in meeting notice.

6.7.4 Method of Notice:

6.7.4.1 Shall be by mail except where

6.7.4.1.1 a member has consented to email notification

6.7.4.1.2 delivered by hand and signed by members

6.7.1.1. [sic] Additional methods of notice are:

6.7.1.1.1. Announcement in church

6.7.1.1.2. Personal or Automatic Phone Dialler/Caller

6.7.1.2. Exceptions:

6.7.1.2.1. Notwithstanding Section 6.8.4 of these bylaws, members may be notified by any reasonable methods for calling Emergency Members’ Meetings.

6.8 Meeting Rules

6.8.1 Rules shall be established on conducting meetings

6.8.2 Where rules are in dispute or do not address specific procedures, “Robert’s Rules of Order” shall be applied.

6.9 Six Month Report

6.9.1 Shall be held between March and May of each year

6.9.2 Purpose of six-month report is to give financial and other progress reports

6.9.3 No business shall be transacted during the six month report unless prior notice is given to church members indicating that business is to be transacted and all the requirements in this bylaw for regular or special members’ meetings are fulfilled

6.9.4 Meeting Notice is NOT required as per Article 6.8 above except for notice to be given by way of weekly announcements inside church beginning four weeks before the meeting date

6.9.5 No quorum is required

6.9.6 No internal audit report is required

Article VII. Election of the Board of Directors

7.1 Qualifications

7.1.1 Be an Active Member. A candidate for the board of directors must have been an active member of the Church for one year with good standing.

7.4 Board Election

7.4.1 Date: Shall be held during AGM

7.4.2 Nomination. Shall be accepted from the floor and from nominating committee or Church Secretary. Nominations may be closed if no further nominations are received or simple majority of the members present vote to end nominations.

7.4.3 Voting. The board of directors shall be elected by active members of the Church.

7.4.4 Ballot. Voting shall be by secret ballot.

7.4.5 Election. The board of directors shall be elected by most votes cast in favour of candidates. Where there is a tie, for the last position, AGM shall vote to break tie.

7.5 Re-election. Board of directors shall not be elected for more than two consecutive terms, except where board member was elected but served for less than 6 months.

7.6 Alternate Board Members: the two candidates with highest votes but who are not elected to the board shall serve as alternate board members. Where board members terminate their tenures before the end of their term of office, alternate board members shall be appointed automatically based on their higher ranking of votes during election.

7.7 Taking Office: The new Board of Directors shall assume office on the first day of the New Year (Gregorian calendar) following the year of election. Notwithstanding this, the transition period shall not exceed ninety (90) days.

Article VIII. Board of Directors

8.1 Volunteer Board Members: In accordance with the statutory laws of Ontario governing charities, all directors shall be volunteers.

8.2 Membership: shall be composed of,

8.2.1 Members elected at Members’ meeting

8.2.2 Two reserved positions for women who garnered the most vote during the election of the board of the directors.

8.3 Size. The board of directors shall be composed of not less than five (5) and not more than nine (9) members. The size of the board shall be odd numbers. Upon the recommendations of the incumbent board directors or motions from the floor, the AGM shall fix the size of the board of directors.

8.4 Limit on Tenure. The board of directors are elected for a period of three years.

8.5 Responsibilities: The board of directors shall be responsible for the spiritual welfare of the Church and its members, shall have the general oversight of the Church, shall prayerfully seek and help implement God’s will for the Orthodox Tewahdo Faith, shall keep the Church’s vision before the congregation, and shall deal with such Church business as cannot be delegated. The board of directors,

8.5.1 Is responsible for all administrative functions of the Church

8.5.2 Formulates and implements short- and long-term Church plans

8.5.3 Hires, supervises and terminates paid and volunteer Church staff

8.5.4 Prepares and presents budget for approval by Church members at Members’ Meetings and implements the approved budget.

8.5.5 Calls Annual General Meetings and reports on Church activities and progress per Sec. 6.1.

8.5.6 Between Annual General Meetings, the board of directors shall call one meeting to give six-month financial report.

8.5.7 Calls Emergency Members Meeting to address urgent issues,

8.5.8 Establishes liaison with other Churches, government and non-government organizations, charities and non-profit organization and may take actions as needed

8.5.9 May establish ad-hoc committees to delegate responsibilities

8.5.10 Shall appoint Advisory Committee members in accordance with Sec 14 of this bylaw.

8.6 Meetings: The board of directors shall meet at least once every two months. Minutes shall be in English and signed by the chair and secretary of the board.

8.8 Vacancies

8.8.1 Any board member, excepting the last remaining board member, may resign, effective upon giving written notice to the chair of the board unless the notice specifies a later time for the effectiveness of such resignation.

8.8.2 An alternate board member with the highest votes automatically replaces resigning board member. Each board member so chosen shall hold office until the expiration of the term of the replaced director.

8.8.3 Where two or more board members resign within two years of election, alternate board members shall be elected during AGM.

8.8.4 Requirement to Report: The reasons for such vacancies shall be reported to church members during the following AGM.

8.8.5 Impairment: where the size of the board is reduced to less than the majority of the fixed size of board membership due to terminations of board and alternate board members,

8.8.5.1 the board of directors shall inform the Church Advisory Council immediately upon the resignation of the last board member that reduces the size of the board to less than majority of the fixed size of board membership,

8.8.5.2 the Church Advisory Council shall hold emergency meeting within five (5) days and appoint caretaker board consisting of three members until the next AGM or Special Meeting if AGM is not scheduled to meet for another one-hundred twenty (120) days.

8.8.5.3 Upon the appointment of the caretaker board, all of the remaining members of the incumbent board shall submit their resignations.

8.8.6 Where vacancies do not constitute impairment under sec.8.8.5. AGM shall elect replacement board or alternate members.

8.10 Other Non-voting Participants. The board of directors may invite persons or appoint persons of specific expertise or insight to serve as non-voting participants in board deliberations. The term of service shall not exceed one year, but the term(s) may be renewed if the board so chooses.

Article IX. Composition of the Board of Directors

9.3 Secretary

9.3.1 Maintains proper documents, records and official Church seal

9.3.2 Prepares meeting agenda in consultation with the chair

9.3.3 Sends out meeting notice to members, keeps Meeting Minutes and maintains proper records of Meeting Minutes

9.3.4 Maintains proper names and profiles of all Church members

9.3.5 Chairs meetings in the absence of the chair and vice-chair

9.3.6 Shall maintain proper documents and records of all internal and external correspondences

9.3.7 Prepares and maintains proper document and record of announcements and postings

Article X. Board of Clergy and Deacons

10.1 Responsibilities of the Board of Clergy and Deacons.

10.1.1 The Board of Deacons is responsible for the Spiritual services of the church. These generally fall into the following areas: conducting worship service, preaching, teaching, pastoral counselling, assisting in administering, planning and guiding the church to grow and fulfil its purposes.

10.2 Membership

10.2.1 Membership shall be composed of all clergies, deacons and other religious leaders of the church

10.3 Head Priest

10.3.1 Shall be appointed by the board of directors

10.3.2 Shall provide religious leadership and guidance in accordance with the purpose of this Church and is guaranteed freedom of the pulpit.

10.3.3 Shall be chair of the Board of Clergy and Deacons

10.3.4 Shall be ex-officio member of all church committees, except the board of directors.

10.3.5 The Head Priest is responsible for identifying and mentoring young deacons.

10.3.6 The Head Priest is responsible for maintaining close relationships with the Eritrean Orthodox Church and all affiliated churches, Oriental Orthodox Churches and Christian Churches.

10.3.7 The Head Priest is responsible to the Board for furthering the purposes of the Church and will report regularly to the Board in carrying out these responsibilities.

10.5 Meetings

10.5.1 Board of Directors and Board of Clergy & Deacons shall meet at least once every three months to coordinate activities.

Article XII. Church Officers

12.1 Managing Director

12.1.1 Unless otherwise appointed or hired by the board of directors, the chair of the board of directors shall be the Managing Director of the Church

12.1.2 Where the Managing Director is not a member of the board of directors, the Church may pay remunerations for services rendered

12.1.3 Managing Director shall be responsible for daily activities and operations of the Church

12.2 Financial Officer

12.2.1 Unless otherwise appointed or hired by the board of directors, the treasurer of the board of directors shall be the financial officer of the Church

12.2.2 Where the financial officer is not a member of the board of directors, the Church may pay remunerations for services rendered

12.2.3 Financial Officer shall be responsible for maintaining the financial records of the Church, collecting tithe, any other financial activities relating to Church and inventory.

Article XIII. Church Administration

13.10 Electronic Records

13.10.1 Where electronic records are originally entered into church information systems and where such records are maintained in secure manner, such records shall be the official records of the church in conformity with laws of Canada

13.10.2 Where physical documents are scanned or electronically imaged n [sic] colour, and where such records are maintained in secure manner, such electronic documents shall be the official records of the church in conformity with laws of Canada

13.11 Staff: Refers to all registered volunteers and paid employees, including church officers, priests and deacons. The board of directors may hire staff as per Article 9.1.6 and Article 10.2 of this bylaw or employ volunteers from time-to-time to fulfill administrative and other functions as required, except those functions that can not be delegated.

13.12 Salaries. Salaries of priest, deacons and staff shall be based on a salary scale approved by the board and based on budget approved by Church members.

13.13 Special Payments. In accordance with the Charities Accounting Act of the Province of Ontario, directors shall not be paid any commission or bonus. However, directors shall be reimbursed for work related office and travel expenses if accompanied by receipt.

13.17 Petitions, Complaints, Grievances: Petitioners and complainants shall submit their written petitions, complaints and grievances to church secretary, who shall reply and/or address such concerns within ten (10) days. Such documents shall be made available to internal auditors during the course of their reviews.

Article XV Audit Committee

15.1 Membership. Audit committee members shall be elected by AGM.

15.2 Size. Audit Committee shall be composed of three (3) members.

15.3 Duties & Responsibilities. Audit committee is responsible for

15.3.1 reviewing the church’s accounting records on an ongoing basis

15.3.2 conducting count and inspection of the church’s physical assets

15.3.3 reviewing the adequacy of the repairs and maintenances of church facility and assets

15.3.4 reporting on compliances of the board, committees, officers and staff with church bylaws, policies and procedures.

15.3.5 Review if members’ and public complaints are addressed on timely basis and report findings

15.3.6 Assisting the board in complying with all the relevant statutory laws of Province of Ontario and Canada.

15.3.7 Assisting the board in complying with Eritrean Orthodox Tewahdo Church laws. Where the relevant laws of the Province of Ontario and Canada are in conflict with the Eritrean Orthodox Tewahdo Church, the laws of the Province of Ontario and Canada shall take precedence over the laws of Eritrean Orthodox Tewahdo Church.

15.3.8 Submitting recommendations to the board ways to improve internal control, performance or any other church activities.

15.3.9 ensuring that adequate and valid insurance coverage exist

15.3.10 report findings at the AGM.

Article XVII. Fundamental Changes

17.1. Fundamental changes are:

17.1.1. Changes of the objects of the church as stated in the articles of incorporation of the church

17.1.2. Amalgamation with other organizations with same objects

17.1.3. Dissolution of the church

Article XVIII Amendments

18.1 These bylaws may only be amended by the Church members at any Members’ Meeting by a vote of super-majority of members present and voting, except for fundamental changes stated in Article XVII (17) (Fundamental Changes bylaws) of these bylaws. Proposed amendments that constitute significant changes to these bylaws shall not be submitted to the congregation for final passage until reviewed by the Church Advisory Council.

An Ad-hoc Bylaws Committee, established by the board, shall conduct an ongoing review of these bylaws and shall propose amendments as necessary. Amendments shall also be proposed by the Board, by any Board member, by the Church Advisory Council, by chairs of three (5) [sic] Standing Committees, or by a petition signed by no fewer than 25 members of church Toronto. All proposed amendments shall be submitted to the Ad-hoc Bylaws Committee for review and members’ input prior to being forwarded to the Board for action.

The Bylaws Committee shall give 10-days written notice to the membership for its meetings, which notice shall include the full text of any proposed bylaw amendments under consideration. After review, assessment and any required drafting of a proposed amendment, the Bylaws Committee shall submit its report to the Board, either recommending, or not recommending, the proposed amendment. The Board shall accept or reject the Bylaws Committee’s recommendations, seek additional congregational input, and/or make further changes to a proposed amendment before its submission to Church members at Members’ Meeting. The full text of proposed amendment shall be included in the notice of Members' Meeting.

18.2 Notwithstanding Sec. 18.1, the following bylaws may be amended without the formal procedures in Sec. 18.1

18.2.1 Sec. 5.7 Membership Fees

18.2.2 Sec. 8.3 Size of the board of Directors

18.2.3 Article XI Standing Committees

Article XVIII. [sic] Governing Document

Where there are different interpretations between the English and Tigrigna versions of the Church bylaws, the English version shall take precedence.

Where in dispute of interpretation or application, the pertinent laws of the Province of Ontario and the laws of Canada (federal laws) shall apply.

[^1]: It is also inconsistent with the e-mail dated January 24, 2022 from counsel for the Respondents to counsel for the Applicants in which counsel for the Respondents stated that the Respondents were prepared to meet with the Applicants and to provide access to the records that the Applicants were entitled to “as members of the Church under the Not-for-Profit Corporations Act”. [Emphasis added.]