Negassi et al. v. Mana et al., 2025 ONSC 3526
Court File No.: CV-23-92510
Date: 2025-04-17
Superior Court of Justice – Ontario
Applicants:
Mobae Lebassi Negassi, Tesegai Gebru Gebretsadik, and Kidus Gabriel Eritrean Orthodox Tewahdo Church Inc.
Respondents:
Kidane Kibrom Mana, Samson Tsegay Ocbaghergis, Goitom Mengesha, and Habtom Teklemariam
Before: C. MacLeod
Applicant Counsel: Elham Beygi & Allan Morrison
Respondent Counsel: Sherif Rizk & Shubh Deol
Heard: April 17, 2025 – by videoconference
Endorsement
Background and Issues
[1] The Eritrean Orthodox Tewahedo Church is an ancient Christian church originating in what is now Eritrea. The Kidus Gabriel Eritrean Tewahedo Church was established in Ottawa to provide a spiritual home for adherents of this faith, primarily members of the Eritrean diaspora. The church was incorporated as a not-for-profit corporation without share capital under the Corporations Act on October 29, 2010.[1] As of October 18, 2021, the corporation is governed by the Not-for-Profit Corporations Act, 2010.[2] It is also a registered charity under federal law.
[2] The Applicants, Negassi and Gebretsadik, were members of the Board of Directors elected in 2017 and Mr. Negassi was appointed as the Chair. Up to that point, elections had been held every three years as required by the by-law approved by the members of the corporation. It is common ground that there was no election in 2020 because of COVID. The 2017 board remained in office.
[3] A dispute arose in 2023 following the Annual General Meeting and the election of a new board of directors. According to the Applicants, that meeting was tainted by irregularities because non-members were allowed to interfere in the meeting, to vote and to stand for the board. The Applicants challenge the legitimacy of the 2023 Board. This Application was commenced on June 26, 2023. On March 26, 2024, the 2023 board purported to sue the Applicant Negassi in the name of the corporation. As the church corporation is also named as an Applicant, we now have two competing legal proceedings in which different individuals purport to have authority to sue in the name of the corporation.
[4] An underlying issue is the fact that the Applicants believe the Synod of the Eritrean Orthodox Church based in Asmara, Eritrea has become an instrument of the Eritrean government. According to the affidavits, the government of Eritrea removed the Patriarch of the church and had a new Patriarch appointed in his place. In response, many Orthodox churches in the diaspora created a type of Synod in exile which still recognizes the authority of the former patriarch. The applicants want the church to be aligned with the new “union” Synod and they allege that the government-controlled synod in Asmara is interfering with church autonomy and seeking to exert control over church property.
[5] This dispute colours the challenge to the 2023 board of directors. The Applicants claim that non-members of the congregation (that is, individuals not entitled to vote under the corporate by-laws) aligned with the synod in Asmara influenced and voted in the election of the 2023 board of directors. I understand that where there is a schism in a religious denomination concerning who is the rightful and lawful head of the church, there will be strong feelings on both sides of the issue. This court is unlikely to be drawn into adjudicating on issues of faith or church governance but the court does have a mandate and a role to deal with the operation of the corporation.
[6] Since this dispute arose, the Applicant, Negassi, has had control of the church building and the church records. Allegedly due to fears of violence and to protect the church property, in the name of the 2017 Board, he has changed the locks and has prevented access to the building.
[7] This matter has been before at least two other judges. Justice Corthorn attempted a full day settlement conference. Justice Doyle gave leave to schedule this hearing and made the following endorsement:
“All parties will respect those members of the public and/or congregation and allow them entry into the church. No one has the authority to interfere with others in the church. If there is conflict or a threat to safety to anyone in the church, then the police will be called.”
[8] There is much dispute about why that direction was not followed and there were apparently attempts to access the building. There was police involvement. The building remains closed.
[9] The congregation has been worshiping at another site as they have been permitted to share space with an Ethiopian Orthodox Tewahedo church. Services have been led by the first two named respondents who are priests. One of those respondents was the head priest and was on the 2017 Board but his membership has purportedly been terminated by the Applicants.
[10] Apparently the 2023 Board recently tried to convene a membership meeting. 170 members of the congregation attended and the meeting passed a resolution recognizing the 2023 Board and also confirming that the church remains aligned with the Eritrean Synod in Ansara.
[11] This did not resolve the problem because the Applicants do not recognize the authority of the general meeting convened by the respondents. The Applicants take the position that most of the individuals who voted were not members of the corporation entitled to vote.
[12] The motion before me was to dismiss the Application for delay and for injunctive relief to restore access to the place of worship, ideally in time for Easter celebrations this weekend. The Applicants brought a motion that the court order a new Special or Annual General Meeting under supervision. That was effectively the relief sought on the application.
Disposition and Order
[13] The parties concede that there is no utility in simply expediting the application and having the parties return to argue the application on another day. All of the material that would be used on the Application is before me today. Furthermore, since there is a dispute about who is a member and which is the duly elected board, and since the by-laws require an election no later than 2026, in any event, it is clear that the court should order a meeting pursuant to s. 61 of the Act.
[14] For the meeting to occur, however, there must be a process to determine who has the right to vote. Each party should produce the membership lists it relies upon and if the other party challenges the right of anyone on the list to vote, the other party should provide the documentation it relies upon in support of the recognition of that individual as a member of the corporation entitled to vote.
[15] While the election of a new board will not determine if the 2023 board was properly constituted and if the Applicant was acting without colour of right, it will at least permit the corporation to put in place a new governing structure and to resume its normal operations. The parties consent to an order for a meeting but they disagree on the terms. In addition to a process for deciding who is entitled to vote, the parties also require an order for the congregation to regain access to the church.
[16] The Applicants have hired a new head priest who is aligned with the Union Synod (meaning he recognizes the continuing authority of the former Patriarch). The Respondents include the two priests who recognize the authority of the new Patriarch and the Archdiocese and Diocese established for the Church in Canada.
[17] On a temporary basis, I would expect that the three priests could agree on how to conduct a liturgical service and how to provide ministry to the members of the congregation. If that is not possible, however, then it may be necessary to have two services. As said earlier, the court will not adjudicate on matters of faith or internal church governance except to the extent that the latter raises issues that are justiciable. The election of a board of directors for a not-for-profit corporation is justiciable as is the control and use of the building owned by the corporation.
[18] Although Justice Doyle’s order did not direct the Applicants to do or refrain from doing specific acts and therefore I would have difficulty finding the Applicant in contempt of court, it is nevertheless clear that there has been resistance to the spirit of that order. A more specific order is therefore required because there is at this point no track record of cooperation or reconciliation.
[19] Even if the 2017 board continues to be the legitimate governing body until the next election, there is nothing in the by-laws or in the facts before the court that give the chair the unilateral right to exclude the members of the congregation from the church.
[20] I advised the parties that as a term of granting the order for a meeting, I would be ordering the re-opening of the church and certain ancillary orders. I would also be ordering access to the financial and other records. Due to the fact that this motion was argued the day before Good Friday, I indicated I would release a short endorsement and remain seized of the issues surrounding the meeting as well as the terms on which the building is to be operated pending that meeting and the election of a new board.
[21] The court therefore orders as follows:
a. This motion constitutes the hearing of the application itself.
b. There will be an order pursuant to s. 61(1)(c) of the Not-for-Profit Corporations Act, 2010 requiring a special meeting of the members to elect a new board of directors. That meeting is to take place before the end of September, 2025 on a date to be agreed upon between the parties or fixed by the court.
c. In order to determine who is eligible to vote at the meeting, the parties are to exchange lists of the members of the corporation each party claims to have registered to vote. Those lists are to be exchanged by the end of April, 2025.
d. In the event the parties are unable to agree on a list of persons entitled to vote, they are to return to the court for further direction no later than the end of May, 2025.
e. The meeting will be chaired by a neutral person agreed to by the parties or appointed by the court.
f. Until the new board is elected, the 2017 board and the 2023 board may each designate an individual who shall be provided with a key to the church. Those individuals shall also be entitled to inspect and take copies of all corporate records, membership records and bank records belonging to the corporation.
g. The Applicants shall provide a key to the church to the person designated by the Respondents by the end of the day today so that the priests responsible for the Easter celebrations may be given access to the church to prepare for a church service.
h. If the priests designated by the Respondents and the Applicants can agree to conduct a single service at which all three priests or any two of them or one of them designated by the others can preside, there will be a joint celebration of Easter for the entire congregation. If that is not possible, there may be two separate services.
i. Thereafter, until the election of a new board, the congregation and the priests designated by each party shall have access to the church each weekend to conduct a service or services and to carry out such other liturgical functions as may normally accompany church services.
j. All parties shall do all things and take all necessary steps to carry out this order and to facilitate the enjoyment of the church by the congregation.
k. Unless otherwise agreed by the parties or with leave of the court, there will be no discussion about the merits of the legal proceedings or the question of which Synod to belong to in the church or during church services. The celebrants will confine themselves to spiritual and liturgical matters only.
l. The court will give further direction as required.
m. All other issues including costs are adjourned to a date to be set by the court at the request of counsel.
n. The court may add, amend or edit the terms of this order and counsel may propose additional terms when the formal order is drafted but this order is binding immediately without further formality.
Justice C. MacLeod
Date: April 17, 2025 – citation number added June 12, 2025
Notes
[1] Corporations Act, R.S.O. 1990, c. C.38, which at that time governed not-for-profit corporations.
[2] Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15. See s. 4(1)(c).