Court File and Parties
CITATION: Negassi et. al. v. Mana et. al., 2026 ONSC 680
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MOBAE LEBASSI NEGASSI, TESEGAI GEBRU GEBRETSADIK and KIDUS GABRIEL ERITREAN ORTHODOX TEWAHDO CHURCH INC., Applicants
AND:
KIDANE KIBROM MANA, SAMSON TSEGAY OCBAGHERGIS, GOITOM MENGESHA and HABTOM TEKLEMARIAM, Defendants
BEFORE: C. MacLeod RSJ
COUNSEL: Edward C. Conway, for the Applicants
Sherif Rizk, for the Respondents
HEARD: October 14, 2025
ENDORSEMENT
1This was a hearing to determine who has the right to vote at a membership meeting of Kidus Gabriel Eritrean Tewahdo Church Inc. (“Kidus Gabriel”). This hearing was a result of a motion I heard in April of 2025 (2025 ONSC 3526) and a subsequent direction given at a case conference on June 12, 2025 (2025 ONSC 3528). With the consent of the parties, I had ordered the election of a new Board of Directors but unfortunately there has not been agreement on who has the right to vote.
2Kidus Gabriel was incorporated in October of 2010 as a not-for-profit corporation under Ontario law. As discussed below, the governing legislation has changed and is now the Ontario Not-For-Profit Corporations Act, 2010 (the “new legislation” or the “current legislation”).1 The Court makes findings about voting rights and provides direction to the Chair of the meeting selected by the parties so that he can supervise a meeting, conduct an election and install a new Board of Directors.
Background
3As the name implies, Kidus Gabriel is an incorporated congregation of the Eritrean branch of the Orthodox Tewahdo Church. The Orthodox Tewahdo Church is a member of the Christian communion referred to as Eastern Orthodoxy. This congregation in Ottawa was established by members of the Eritrean diaspora and incorporated by Letters Patent issued under the Ontario Corporations Act on October 29, 2010 (the “former legislation”).2 The applicants were Eyob Fissuh, Dawit Neguss and Girmay Desta, who are not before the court. Pursuant to the Letters Patent and the former legislation, the Applicants became the first members of the corporation and the first directors.3 The corporation owns a condominium unit which is used as a place of worship, and which was acquired mortgage-free in September of 2014.
4The facts giving rise to the current litigation are described in some detail in my reasons for decision arising from the urgent motion in April.4 The by-laws of the corporation require an election of a board of directors every three years. The last regular election was in 2017, and ordinarily there would have been an election in 2020. That did not occur because of the Covid pandemic and the 2017 board remained in office. The Applicant, Mobae Negassi, is the Chair of the 2017 Board. 5
5An election was held in 2023 but in the time leading up to that election, a dispute had arisen between the two priests (Respondents Kidane Kibrom Mana (“Mana”) and Samson Tsegay Ocbagheris (“Samson”)) and the Chair over what the Applicant describes as an attempt to illegally take over control of the corporation.
6The underlying driver for that dispute is a schism in the worldwide Eritrean Orthodox Tewahdo Church. This apparently occurred when the Synod in Asmara, allegedly under the control of the government of Eritrea, purported to remove the former Patriarch and to replace him with a government friendly patriarch. The deposed patriarch spent years under house arrest.
7As neither the Government of Eritrea nor the Synod are before the court, this court is not in a position to make findings of fact or to endorse the facts as set out in the Applicant’s affidavits. Suffice to say that since Eritrea obtained independence from Ethiopia in 1993, it has faced mounting criticism for failure to hold elections and has, in the view of critics, become a totalitarian dictatorship. The removal and replacement of the Patriarch has deeply divided Eritreans in the diaspora and the members of the Eritrean Tewahdo church.
8According to the affidavits of the Applicant, the government takeover of the “Asmara Synod” resulted in the formation of a synod in exile supportive of the original patriarch. This new synod, “the Union Synod”, is based in the United States. Loosely speaking, the Applicant and the 2017 board recognized the Union Synod whereas the priests wished the congregation to continue to be aligned with the Asmara Synod. This dispute broke into the open after the election of a new board in 2023.
9The Applicant and the 2017 board did not recognize the result of the 2023 election and purported to terminate the employment of the two priests for causing disruption and controversy in the church. The reason for challenging the 2023 election was the assertion that it was dominated by a representative of the sub-diocese (the Respondent Habtom Teklamariam) who was not a member and who it is alleged was acting on behalf of the Asmara Synod. According to the Applicant, there was intimidation at the meeting and numerous non-members were allowed to vote.
10The Applicant deposes that the Respondents’ intent is to push through a new set of by-laws which would give the Asmara Synod or the sub-diocese control over both the religious affairs of the church (such as appointment of priests, now the purview of the Board) and its property (the mortgage free condominium which is currently owned by the corporation).
11I pause to note that the control of church property following a rupture in a congregation is a matter that has often been litigated.6 The answer depends upon the legal structures in place and to what legal entity the property belongs. This case is in many ways much simpler because no one questions that the church property is vested in the corporation. The sole question before the court is who is a member entitled to vote. Much hinges on this because the answer will determine who controls the corporation and its property.
12The Applicant points to a revised by-law he says the Respondents intend to impose upon the corporation and which would have the result of placing the church property under the control of the sub-diocese and, ultimately, of the Synod in Asmara. In the Applicant’s submission this is part of a worldwide effort by Asmara to gain control of assets and property held in the diaspora. Whether that is accurate or not is not an issue I have to decide. I would note that the new legislation includes certain safeguards and rights of dissent when a corporation decides to make fundamental changes or to dispose of its property.7 This however depends on who is a “member”.
13Following the 2023 election, the Applicants refused to recognize the authority of the 2023 Board and took the position the 2017 Board (and Mr. Negassi) remained in office. The Applicants then took control of the church building and at the time of the April motion, were allegedly preventing the congregation from access. The affidavit material suggests that the closing of the building was on the advice of the police due to fears of violence. While the allegations of violence or threatened violence is disputed, there was repeated police involvement.
14It should be noted that there have been a series of appearances before different judges and changes in legal representation since these proceedings were commenced. In addition to appearing before me for the urgent motion, the parties had previously appeared before Justice Doyle, who made an order for reopening of the church, and the parties had an extensive Judicial Dispute Resolution conference before Justice Corthorn. Despite those orders and mediation efforts, the parties had been engaged in competing attempts to change the locks to the Church building. This is the situation that gave rise to the urgent motion to re-open the Church in time for Easter.
15At the time of that motion (April of 2025), the congregation was worshiping at an Ethiopian Tewahdo Orthodox Church and the Respondents sought an order to reopen the premises owned by the Kidus Church. I granted that order on certain terms. Further, with the consent of the parties, I disposed of the Application proper by ordering a membership meeting to elect a new Board.
16There was some optimism that a voting list could be the subject of agreement, and all parties agreed that an election ought to be held. Regardless of the results of the 2023 election, the by-laws require an election no later than 2026. It would be within the power of a new board to ratify any steps taken by previous boards or to put them to the membership for approval.
17The parties agreed there should be a meeting of the membership to elect a new board. The parties also agreed to the appointment of a neutral chair, and they agreed to the appointment of Mr. Rohan Bansie, a lawyer, mediator and deputy judge of the Small Claims Court, for that purpose. As I understand it, Mr. Bansie is willing to supervise the meeting, but he cannot run the meeting if there is no clarity on who can vote.
18I directed the parties to prepare membership lists, compare those lists and attempt to prepare a joint list. If they were not able to resolve the question, I fixed a date for argument so that the court could either determine who is entitled to vote or provide the chair of the meeting with clear direction. Since the parties have been unable to agree on who is a member entitled to vote, it falls to the court to rule on the matter.
The legal framework
19It is worth taking a moment to describe the legal framework relating to corporations in general and not-for-profit corporations in particular. This is because missing entirely from the evidence or the arguments advanced by the parties is any evidence that the requirements of the legislation have been followed. Particularly striking is the fact that there seems not to be a formal record of who is a member. Had the corporation complied with s. 300 (1) (3) of the former legislation or s. 92 (1) (h) of the current legislation, there would have been a “Register of Members” forming part of the corporate records. In that case, this dispute might have been avoided, or at least the task of ruling on the matter might have been simplified.
20To step back for just a moment, in Canada, each provincial and federal government has the power to create corporations which are entirely creatures of statute. Business corporations have “shareholders”, while not-for-profit corporations have “members”. In either case, the purpose of a corporation is to create a separate legal entity that is distinct from the individuals who own or control it. This creation of an entity with its own legal existence permits it to own property that is not owned by any one individual or group individually and to separate the duties and rights of the corporation from those of the members.
21Importantly, the structure of corporations, the rights and obligations of corporations and the manner in which corporations are governed is determined by the legislation under which they are incorporated or under which they are continued. The corporation was incorporated under the former legislation but in 2021 it became subject to the current legislation proclaimed in force in October of that year and automatically applicable to corporations such as this.
22In addition to being a corporation without share capital or a not-for-profit corporation, this corporation is also a charity. That has two meanings. The first is the meaning ascribed by Ontario law and the second is its status as a Registered Charity under federal law. These are different things.
23Not all not-for-profit organizations are charities but those who are and who raise funds for charitable purposes (including religious purposes) are “charities” at common law and are subject to the provincial Charities Accounting Act, and therefore the supervisory jurisdiction of the Public Guardian and Trustee.8 Charitable trusts also fall within the inherent jurisdiction of superior courts. This status as a charity under provincial law is not the same thing as a “Registered Charity” under federal law.
24According to the evidence, the corporation is also a registered charity under federal law. This means it has been recognized as a charity by the Government of Canada and may issue donation receipts acceptable to the Canada Revenue Agency.9 What is important is the fact that Registered Charity status imposes its own requirements for documentation and record keeping.
25I set this out for two reasons. Firstly, the parties should be conscious of the need to operate the corporation in accordance with corporate law and to duly maintain corporate records. Failure to do so and failure to keep proper accounting records may put corporate status and registered charity status at risk, and may attract investigation by provincial authorities or by the court.
26As discussed in my earlier reasons, courts in Canada have a very narrow jurisdiction to involve themselves in the internal workings of religious organizations or churches and are unlikely to rule on questions of religion except in rare circumstances. On the other hand, the decision to incorporate does attract supervision as corporations are subject to duties and obligations that may be enforced by the courts. The operation of the corporation is a matter for the court even if the religious affairs of the congregation would not be.
27For purposes of determining who can vote to elect a new board, the court is not concerned with questions of religious dogma or with which patriarch the congregation should align itself. I recognize, however, that this is a major concern of the Applicant. If the 2017 board loses control of the corporation to supporters of the 2023 board, the Applicant fears that the Asmara Synod will force the church to adopt a new constitution and by-laws centralizing control of the church and its property in Asmara. I have described this issue earlier in these reasons.
Membership
28Membership in a corporation without share capital or a not-for-profit corporation is governed firstly by the legislation and secondly by the by-laws. Part III of the former legislation provided that the Board of Directors could admit members but also permitted the corporation to define qualifications for membership and to provide for automatic membership in certain circumstances.
29The new legislation takes a somewhat different approach as it requires the by-laws of the corporation to “set out the conditions required for membership” and also permits the by-laws to include provisions for the revocation of membership, discipline of members and expulsion of members. At the same time, the new legislation provides protection for members and provides for access to the courts in certain circumstances.
30In particular, Parts XII and XIV of the new legislation include remedies for aggrieved and dissenting members in certain circumstances which are analogous to protections provided to shareholders and creditors of business corporations. In instituting a new regime for not-for-profit corporations, the legislature has expanded the rights of members and provided for greater supervision by the courts, making the governance of not-for-profit corporations more analogous to business corporations.
31To turn to the question of membership of this corporation, what is supposed to happen following incorporation is that the incorporators become the first members and first directors. They are then supposed to pass by-laws which include the constitution of the organization and cover other matters such as banking arrangements. The directors can pass resolutions admitting new members or they can provide mechanisms for admission to membership in their by-laws. They can also provide mechanisms for disciplining or expelling members. No record of these steps was put before the court, but it is reasonable to infer they occurred.
32The original incorporators were Eyob Fissuh, Dawit Neguss and Girmay Desta. The Letters Patent were issued by the Ministry of Government Services with Ontario Corporation Number 1832168 on October 29, 2011. Pursuant to s. 121 of the former legislation, the applicants for incorporation became members automatically at the time the Letters Patent were issued.
33Neither of the parties argued that only the original incorporators were members or that the “Constitution” was not duly approved. For purposes of this motion, I am prepared to treat the “Constitution” as the organizing by-law and to accept that the individuals who were treated as members at the time of the 2017 and 2023 elections had been duly admitted in some fashion. It should, however, be a first task of a newly elected board to obtain legal advice in regard to compliance with the new legislation, to pass appropriate compliant by-laws and to regularize the admission of present and future members.
34The “Constitution” was apparently written before the incorporation but was subsequently ratified by the members on February 20, 2011. Although written in English and expressed to be binding on the parish corporation, the Constitution is not written in the usual language of a corporate by-law. For example, the name of the corporation in the constitution is not precisely consistent with that granted in the Letters Patent. There is some ambiguity as to whether the congregation and the membership of the corporation are intended to be synonymous and whether the parish is supposed to have a continuing existence independent of the corporation.
35This ambiguity arises because of the terminology used in the by-law. The Constitution does not refer to the Board of Directors but to the Parish Council and it refers to the “Parish” rather than the “corporation”. Nevertheless, it is common ground that the “Constitution” was intended to govern the corporation. There is no dispute that it is the by-law and is the only by law that has ever been passed or adopted by the corporation. Under the legislation, any new by-laws, replacement by-laws and by-law amendments may be passed by the Board but must be ratified at a membership meeting.
36Of particular concern when it comes to identifying who are the members or who are eligible for membership are the following provisions of “Article III”:
Article III: Membership
Section 1: Definition
Members of the Parish shall be those persons who:
(i) have been baptized and chrismated into the Church and who consciously uphold and profess the Orthodox Tewahdo Faith;
(ii) are regular communicants, that is, frequent participants in the Holy Sacraments and partake of the Mysteries regularly;
(iii) fulfill the financial obligations established by the Parish; and
(iv) declare their intention to be members by filling the “Membership Registration Form” and have a valid membership card.
37The Constitution goes on to say that “[a]ny person who desires to become a member of the Parish and who is baptized and chrismated into the Orthodox Tewahdo Church must present himself to the Chairperson, who will inform him of the life and activities of the Parish”, and the putative member must fill out a membership form. There is no provision in the Constitution specifically providing for any formal process to admit members. It does not state that admission is contingent on being approved by the chairperson nor does it provide for the Board or Parish Counsel to admit members by resolution. Importantly, although there are requirements that members must fulfill, there is no provision in the Constitution for the expulsion of members or for suspension of membership (although there are provisions for suspension of directors as members of the Board).
38Section 124 of the previous legislation provided for new members to be admitted by resolution of the Board of Directors and also permitted the by-laws to include a requirement for ratification of new members at a member’s meeting. The old legislation also permitted the by-laws to deal with termination of membership. The Constitution is silent on both of these points.
39Both the old and new legislation permit the by-laws to provide for the admission of members by virtue of holding a particular office. There is a provision in the Constitution for the Head Priest and other priests to be members of the Parish Council and it follows that this was intended to confer ex officio membership in the corporation. Indeed, the Head Priest is supposed to play a central role in the affairs of the corporation.
40It does not appear that the Constitution tracked the language of the legislation and, as discussed above, there is no record of the Board formally admitting members by resolution. There is no evidence that membership cards were issued. Nevertheless, for purposes of this motion, there is no dispute that a number of members had been admitted and there was a list of members current at the time of the 2017 election and, for that matter, at the time of the 2023 election. The Board or Parish Council treated those members as members of the corporation and entitled to vote in elections. Until the 2023 vote, this had been uncontroversial.
41The new legislation contains slightly different wording but is generally similar in intent regarding the admission of new members. Section 49 of the new Act provides that the Directors may issue memberships but s. 48 (2) continues to provide for membership by virtue of office if the by-laws so provide. Section 50 deals with termination of membership but s. 51 adds a new provision permitting the corporation to create processes for discipline of members and termination of membership. Section 51 (2) adds a requirement of good faith in exercising those powers and s. 51 (3) provides that a member who is to be expelled by a corporation has a right to fairness and due process.
42As discussed earlier, the new legislation also provides protection for aggrieved members. I would point out to the corporation that it was required to bring its by-laws into conformity with new legislation by the fall of 2024. Having failed to do so, it is subject to s. 207 (2) of the Act which deems the by-laws to be amended to conform with the Act. Again, this latter point was not argued but it leaves the Constitution subject to ambiguity since it is not clear what amendments are deemed to have been made by the legislation.
Evidence and Analysis
43As noted above, the evidence concerning membership is not very satisfactory. There is no evidence that membership cards were issued and seemingly no formal membership register or roll. Instead, what the parties provided was competing and only partially overlapping membership lists.
44The Applicant states that he consulted the pink copies of receipts from which he compiled a list of paid-up members. The receipts themselves were not put in evidence and, as discussed above, no corporate records, such as a member’s register, were produced. I accept, however, that individuals who were treated as members by the corporation and from whom dues were collected were members entitled to vote. This is not disputed. The significant question is whether membership lapsed or was removed and whether new members were admitted after 2023.
45The parties both produced proposed membership lists. The Applicant submitted two lists: a list of 98 members on March 4, 2025, and a revised list of 133 members on August 1, 2025, the latter including what were purported to be newly registered and paid-up members. The Respondents also submitted two lists: a list of 265 members on April 28, 2025, and a list of 150 members on September 26, 2025. The Respondents contend that the latter list accurately reflects the growth of the Church since 2023. There is no real explanation for the “265” list.
46The Respondent’s list is supported by the affidavit of the head priest or former head priest who speaks of the gradually expanding community and lists the individuals and families who are members of the congregation as he sees it. The problem with this evidence is that is confuses community with membership in the corporation. Although the Respondents have produced a list of members showing the payment of dues, there is no evidence that the Respondents set up a parallel administration, accepted membership applications or collected dues in the manner contemplated by the by-laws. The Respondents’ evidence does not explain the process by which new members were admitted or by whom.
47I conclude that the list of members entitled to vote in the 2017 and 2023 elections is the list of members entitled to vote in the upcoming election. I do not, however, accept the Applicant’s view that members who have not paid their dues or the two Respondent priests are no longer members. That is because there is no mechanism in the by-law for the automatic exclusion or expulsion of members. Some formal step would be required to strip an individual of membership and under the new legislation this requires due process.
48I conclude that the two Respondents and the list of members the Applicant recognizes as members of the corporation who have not paid their dues remain members and are eligible to vote. The Constitution does require members to fulfill their financial obligations (fixed at $10 per month for individuals and $15 per month for families). The voting by-law speaks of “registered members” but does not speak to being “paid up” or “in good standing” and does not contain a cut off date such as “30 days before the meeting”. I conclude that members are entitled to vote whether or not their dues are paid up. In addition, there may have been no effective way for members who were not aligned with the 2017 board to pay their dues.
49Whether dues are outstanding, and whether members who owe dues should be suspended or expelled is a matter best dealt with by the new board after the election.
50It also follows from this analysis that there were non members present at the 2023 meeting who were allowed to vote and that the election was invalid. What should have occurred is a new meeting and a new election in which only registered members could vote. The attempts by the Applicant to arrange such a meeting were apparently thwarted and a similar attempt by the 2023 Board in 2025 was not recognized by the Applicants. It is impossible to say what the result would have been had the 2023 election been properly conducted or had a new election taken place at that time.
Conclusion and Order
51In conclusion, the 2023 election was not valid. A new election is to be held no later than the end of July 2026, on a date agreed upon by the parties or to be fixed by the court.
52The members entitled to vote are all the members who had been admitted to membership in the corporation prior to the 2023 election and who had not resigned their membership. This includes the two respondent priests and the members recognized by the Applicant as having been members even if their dues were not paid.
53Counsel are to confer and compile a list of members eligible to vote based on the lists that have been exchanged and in accordance with the direction contained herein. For further certainly, this includes all members in the Applicant’s list, all members recognized as paid-up or non paid-up members by the Applicant in the Respondents’ list and the two Respondent Priests. This list is to be compiled by the end of February.
54The chair of the meeting will also be empowered to recognize any person who appears and can produce proof of membership pre-dating the 2023 election whether or not that person is shown on the compiled list.
55I may be spoken to for further direction if required.
56Counsel may contact my office for further direction if either party seeks costs.
Justice C. MacLeod
Footnotes
- Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, as amended to September 30, 2025. Somewhat confusingly, given the name of the act and the date it was originally passed, it did not come into force until October of 2021.
- Corporations Act, R.S.O. 1990, c. C.38. This is the legislation that applied until October of 2021.
- Corporations Act, ss. 121, 284.
- 2025 ONSC 3526.
- For simplicity, when I refer to the Applicant, I mean Mr. Negassi. The Respondents dispute the right of Mr. Negassi to bring an Application in the name of the corporation and the co-applicant did not swear an affidavit.
- See for example, Delicata v. Incorporated Synod of the Diocese of Huron, 2013 ONCA 540, 117 O.R. (3d) 1, Bruderheim Community Church v. Board of Elders, 2018 ABQB 90, 66 Alta. L.R. (6th) 168, or United Church of Canada v. Anderson (1991), 1991 7137 (ON CTGD), 2 O.R. (3d) 304 (Gen. Div.).
- See Not-for-Profit Corporations Act, ss. 118, 187.
- Charities Accounting Act, R.S.O. 1990, c. C.10.
- Income Tax Act, R.S.C. 1985, c. 1 (5th Supp) as amended, ss. 149.1, 248 (1).