COURT FILE NOs.: CV-17-583748, CV-23-695409
DATE: 20230704
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE MEMBERS OF BETHEL RESTORATION MINISTRIES, PASTOR GREAVES, and EULALIE WATSON JACKSON
Applicants
– and –
ROBERT NOBLE, ERIC SAYERS, and HERBERT PHILLIPS
Respondents
David Lees, for the Applicants (in CV-17-583748) and Respondents (in CV-23-695409), Elton Greaves, Eulalie Watson Jackson, The Members of Bethel Restoration Ministries, and Pastor Greaves Eulalie Watson Jackson
Osborne Barnwell, for the Applicants (in CV-23-695409) and Respondents (in CV-17-583748), Bethel Restoration Ministries, Robert Noble, Eric Sayers, and Herbert Phillips
AND
BETHEL RESTORATION MINISTRIES
Applicants
– and –
ELTON GREAVES and EULALIE WATSON JACKSON
Respondents
HEARD: June 29, 2023
E.M. Morgan, J.
[1] This Application began in 2017 as a dispute between two factions in a church, the Bethel Restoration Ministries (“Bethel”). As a matter of convenience, I will refer to one group as “Greaves” or the “Greaves Group”, after the Pastor that was one of the initial Applicants, and the other group as “Noble” or the “Noble Group”, after one of the initial Respondents. As can be seen in the double title of these proceedings, both sides purport to represent Bethel and its members.
[2] The 2017 Application settled, with the parties entering into Minutes of Settlement dated May 30, 2018 (the “Minutes”). It is the implementation of the settlement as set out in the Minutes that is now in dispute.
[3] In responding to the Greaves Group’s attempt to enforce the Minutes, the Noble Group has brought its own Application challenging the jurisdiction of a court to deal with this matter at all. It is their view, as set out in their factum, that the Minutes embody a form of settlement that is “unprecedented as a Church and… not in the interest of justice and…[that] violates fundamental tenets of the Church’s constitution and by-laws.” Counsel for Noble further submits that “the settlement is not only unusual, but it is unreasonable, given all of the circumstances of the case…”
[4] With all due respect to both sides in this matter, the legal positions of each tend to get buried in the details of the interpersonal dispute that has come to consume Bethel and its members. At the heart of the controversy, however, is the question of whether the Minutes are justiciable. The Greaves Group’s view is that the Minutes reflect an enforceable contract freely entered into between two sides, each of which was represented by counsel.
[5] It is the Noble Group’s position that the entire dispute from the outset touches not just on matters that are fundamentally beyond the purview of the courts. Relying on the Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 SCR 750, their counsel states, inter alia, that, “Secular judicial determination of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion. Thus, the Court has neither legitimacy nor institutional capacity to deal with such disputes”.
[6] In addition, and possibly more important to the argument, the Noble Group’s counsel relies on Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22. Quoting from the headnote of the Court’s reported reasons for judgment, Noble’s counsel submits that, “A court's jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate. Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required. In this case, evidence of an objective intention to enter into legal relations is missing.”
[7] In my view, the two Supreme Court cases arose in context which are readily distinguishable from the case at bar. The Highwood Congregation case dealt with what the Court described as “ecclesiastical issues”. At para 4, Justice Rowe described the background to that case:
To become a member of the Congregation, a person must be baptized and must satisfy the elders that he or she possesses a sufficient understanding of relevant scriptural teachings and is living according to accepted standards of conduct and morality. Where a member deviates from these scriptural standards, elders meet and encourage the member to repent. If the member persists in the behaviour, he or she is asked to appear before a committee of at least three elders of the Congregation.
[8] The Ethiopian Orthodox case likewise arises in a theological context in which the Court understandably declined to intervene. The Applicants in that case had been excommunicated by their Church. At para 1, Justice Rowe again described the background to the case:
In 2016, the five respondents and six others, including the appellants Abune Dimetros and Messale Engeda, were appointed to an ad hoc committee to investigate a movement some considered to be heretical. The guidelines of the committee provide that ‘[t]he committee will be guided by the rules and regulations of the Ethiopian Orthodox Tewahedo Church synod in the Diaspora’ and that ‘[t]his matter is dogmatic and canon in nature and therefore the final decision will be made by the archbishop of the diocese’.
[9] Counsel for the Noble Group submits that in these two decisions, the Supreme Court expressed its desire to “close the door”, as he put it, on lawsuits against churches and other voluntary organizations where the issues at stake do not raise legally cognizable rights. In stating the matter at that level of generality, Noble’s counsel is correct. The Supreme Court has opined in these two cases that the norms of behaviour in voluntary/religious organizations, and especially matters that are “dogmatic and canon in nature”, to use Justice Rowe’s reference to the church’s own rules in the Ethiopian Orthodox decision, cannot be adjudicated in Canadian courts. They are inherently non-justiciable.
[10] That, however, is not what is addressed in the Minutes that the Greaves Group now seeks to enforce. Rather, what is at stake in the Greaves’ Application is a settlement dealing with the property and funds of Bethel and their disposition among the members now that the church has fractured into two separate groups. Although as identified in the Noble Application the church context is a special one, the legal claim here is not significantly different than any number of commercial cases. With the greatest of respect, the parties’ dispute is over mammon, not canon: Matthew: 6:24.
[11] By way of background, on May 30, 2018, the parties held a formal mediation before the Honourable Susan Greer which resulted in the agreement recorded in the Minutes. All parties were represented by legal at the mediation. The Noble Group held themselves out as having authority to bind Bethel. Noble now says, however, that that was incorrect, and that they did not have such authority.
[12] The salient terms of the Minutes provide:
i. The Respondents [i.e. Noble] shall pay to the Applicants [i.e. Greaves] the following costs and fees, which shall be capped at a total of $40,000.00, upon provisions of all invoices to the Respondents’ former legal counsel,
Landy Marr Kats LLP, subject to redaction for solicitor-client privilege:
a. Legal fees;
b. The cost of incorporation of a new charitable organization; and,
c. Their portion of the mediation fee of the mediation which took place on May 30, 2018;
ii. The Respondents shall pay to the Applicant’s Church the following lump sums per the following
schedule:
a. $100,000.00 to be paid on or before September 1, 2018;
b. $100,000.00 to be paid on or before May 30, 2021; and,
c. $100,000.00 to be paid or before May 30, 2023;
iii. Should the Property municipally known as 611 Vaughan Road, Toronto, Ontario be sold by the Respondents within ten (10) years of the date of the Minutes of Settlement, the Respondents shall pay to the Applicants’ Church a lump sum in the amount of $1,000,000.00; and
iv. The Respondents and Applicants consent to a judgment being drafted to reflect the terms of the Minutes of Settlement, which shall be held in escrow until the three payments set out above in section (ii) herein have been paid, after which time the said judgment may, at the discretion of the Applicants, be registered on title to the Property. In the event that no sale of the Property takes place by May 30, 2028, the Applicants shall have the judgment deleted from title to the property.
[13] The obvious context here is that the Bethel congregation was splitting in two; the Noble Group was staying with Bethel, while the Greaves Group was going its own way and forming a new church. Only $40,000 was to be paid to the Greaves Group as costs of having brought the initial Application; the balance of the payments were to go from Bethel – the Noble Group being those who were staying with and were in control of Bethel, to the Greaves Group’s new church.
[14] Noble’s counsel makes the further argument that the Minutes reflect a settlement that is fundamentally unfair. As he describes it, the Greaves Group, which includes Bethel’s former pastor, was responsible for breaking up the Bethel congregation. He also submits that the pastor’s contract with Bethel had expired, and so he had no entitlement to any payment as he claimed.
[15] Counsel for Greaves describes the entire settlement, as reflected in the Minutes, as “Solomonic”. It does not compensate the pastor or the Greaves Group except for reimbursement of costs. Rather, it divides up the church’s assets so that the two groups can go their separate ways. While the parties may have had deep seated differences, the settlement was over the perfectly justiciable issue of who gets how much from the church’s coffers.
[16] As Greaves’ counsel points out, the by-laws of Bethel give the board the power to administer its funds, deal with its property, and to bring and respond to legal actions. Although Noble’s counsel submits that the Minutes were beyond the authority contained in Bethel’s constitution/by-laws, it is apparent to me that the Minutes were not contrary to the church’s authority. Like any not-for-profit organization, Bethel had to have authority to deal with its property and treasury; otherwise, it would not have been able to function as an entity. It had to be able to pay its bills, administer its real estate, and allocate its assets among its members if the circumstances called for that.
[17] The parties are in agreement that not only did the Noble Group agree to the Minutes and that they were advised by their own (now former) counsel when they did so, but they partly performed their obligations under the Minutes. The $40,000 in costs were paid, and the $100,000 payment due on September 1, 2018 was made to the Greaves Group. Then, as counsel described it, COVID hit, and the finances of Bethel suffered as a result. For that reason, the Noble Group was not able to make the next payment. At that point, the Greaves Group brought the present motion and the Noble Group retained new counsel who launched the second Application.
[18] A case dealing with money and property that happens to belong to a voluntary organization such as a religious body has on previous occasions held to be squarely within this Court’s inherent jurisdiction. In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2022 ONSC 5732 at paras 85-86, this kind of situation was specifically distinguished from the jurisdictional impediment identified in the Supreme Court’s Highwood Congregation and Ethiopian Orthodox decisions:
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…
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.
[19] Since the subject matter of this dispute does not run up against the court’s aversion to enforcing religious doctrine, the settlement, and the Minutes that document that settlement, can be dealt with like a contract. As this court said in GMBR Capital Corp. v. Parmar, 2021 ONSC 7798, at para 26, a motion to enforce a settlement can be enforced by way of summary judgment “if there are no genuine factual disputes that require a trial for their resolution.”
[20] I see no such factual disputes here. The parties both had lawyers advising them, they dealt with an experienced mediator in reaching a compromise settlement, and they partly performed the obligations under the contract. In previous cases, the court’s discretion not to grant summary judgment on a settlement agreement has come in light of “a mistake by a lawyer about his or her instructions to accept the settlement, the prejudice to the parties of enforcing or not enforcing the settlement, and the effect on third parties.”
[21] None of those factors apply to the case before me. Here, the only real stumbling block to the settlement came when the Noble Group ran out of money.
[22] The Noble Group’s real complaint here is that they got themselves into a bad deal. In coming to that conclusion, they have also suggested that they were ill-advised by their counsel at the time and should not have signed the Minutes at the conclusion of the mediation. In fact, in his affidavit, Mr. Noble goes so far as to say that they have refrained from bringing an action against their lawyer only out of a sense of goodwill and charity:
We realize as the Council of Elders that the lawyer who we hired should also be part of this current court process as a defendant/respondent but the truth is, BRM is not in the business of suing its lawyers and so, we have engaged forgiveness in this instant situation as we wish to close this chapter of our history.
[23] I do not know whether Noble’s former lawyers did anything actionable. And I applaud the benevolent sentiment expressed in the Noble Group’s aversion to suing their own one-time lawyer. But if they feel they suffered loss because their lawyer did not properly advise them upon concluding the settlement and signing the Minutes, they cannot offload that claim onto the Greaves Group.
Disposition
[24] Greaves’ Application to enforce the Minutes is granted. Counsel for Greaves is to send me by email a draft Order approved as to form and content by both sides’ counsel.
[25] Noble’s Application is dismissed.
[26] The parties may make written submissions with respect to costs. I would ask that counsel address costs treating the two Applications as one – that is, submitting a costs request that combines the costs of the two. I would ask that counsel for Greaves send his submissions by email to my assistant within 2 weeks of today, and that counsel for Noble send his submissions by email to my assistant within two weeks thereafter.
Released: July 4, 2023 Morgan J.
COURT FILE NOs.: CV-17-583748, CV-23-695409
DATE: 20230704
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE MEMBERS OF BETHEL RESTORATION MINISTRIES, PASTOR GREAVES, and EULALIE WATSON JACKSON
Applicants
– and –
ROBERT NOBLE, ERIC SAYERS, and HERBERT PHILLIPS
Respondents
AND
BETHEL RESTORATION MINISTRIES
Applicants
– and –
ELTON GREAVES and EULALIE WATSON JACKSON
Respondents
REASONS FOR JUDGMENT
E.M. Morgan, J.
Released: July 4, 2023