Expulsion from Church Membership Not Justiciable, SCC Finds in Aga
On May 28, 2021, the Supreme Court of Canada (“SCC”) released a unanimous decision in the case of Ethiopian Orthodox Tewahedo Church of Canada St. Mary’s Cathedral v Aga, 2020 SCC 22 [Aga], which revolved around whether expulsion from a church could be reviewed by a court. Overturning the Ontario Court of Appeal (“ONCA”)’s decision, the SCC found that church membership in this context did not create an enforceable contract, so the courts did not have jurisdiction to intervene in the church’s decision.
The respondents in Aga were former members of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary’s Cathedral (“St. Mary’s). Membership at St. Mary’s was governed by a constitution and an associated bylaw that included a provision governing disciplinary measures (Aga, para 8). To become a member, applicants had to submit a membership form which did not have any reference to the constitution or the bylaw (Aga, para 8). The form also provided a blank space for applicants to pledge a monthly contribution to the church (Aga, para 8).
In 2016, the respondents, alongside two of the appellants, were appointed to a committee to investigate a movement within the church that was alleged to be heretical (Aga, para 9). When joining the committee, the participants signed a list of guidelines, which indicated that the committee would be guided by the rules and regulations of the Church (Aga, para 9). The committee produced a report and made recommendations to the Archbishop, who did not accept or implement these recommendations (Aga, para 9). The respondents expressed dissatisfaction with the Archbishop’s response, prompting Messale Engeda, one of the appellants, to send them each a letter warning them that they would be expelled from the congregation if they did not respect the Archbishop’s decision (Aga, para 10). Seven months later, the respondents received letters from the Archbishop informing them that they had been expelled from St. Mary’s, in accordance with the bylaws of the church (Aga, para 11).
The expelled members brought a claim against St. Mary’s as well as several individual members of the church. They alleged that their expulsion violated principles of natural justice because they were not given particulars of the allegations leading to their expulsion, had no opportunity to respond to the allegations, and had no opportunity to have the decision reviewed internally (Aga, para 12). Additionally, they alleged that the church failed to follow its own internal procedures and comply with its bylaw and constitution, though they did not explicitly allege breach of contract (Aga, para 13). As a remedy, they sought an order declaring that the decision to expel them was null and void, an order declaring that their right to freedom of religion under s. 2(a) had been violated, an order declaring the committee’s findings valid and enforceable, and an order that the appellants announce the findings to the Church and render a decision based on these findings (Aga, para 12).
Initially, St. Mary’s and the individual members who were named in the lawsuit brought a motion for summary judgment on the basis that there is no free-standing right to procedural fairness without an underlying legal right, which did not exist here (Aga, para 14). The motions judge granted the motion for summary judgment, dismissing the action because she found there was no genuine issue requiring trial (Aga, para 15). She found that the expelled members had not alleged breach of contract and that neither the constitution nor the bylaw constituted a contract as there was no mutual intent to be bound by the bylaw given that the expelled members were not aware of it at the time they signed their membership application (Aga, para 15).
The expelled members appealed this decision to the ONCA, arguing that the constitution and the bylaw were contractually binding and created a justiciable issue to be tried (Aga, para 16). The ONCA noted that courts have jurisdiction to address a voluntary association’s own procedures where there is an underlying legal right to be adjudicated, including a contractual right, and found that according to Ahenakew v MacKay,  OJ No 2318, 71 OR 3(d) 130, the constitution and bylaws can make up a contract between members of a voluntary association, giving rise to a legal right (Aga, para 16). They found that there was sufficient evidence of an underlying contract because church members applied, completed membership forms, and offered consideration through monthly payments, after which they entered into a mutual agreement to join the congregation and “abide by the governing rules, whether or not they were specifically aware of the terms” (Aga, para 17). Further, as part of the investigatory committee, the expelled members were told that the committee would be guided by the rules of the church (Aga, para 17). The ONCA also held that there was evidence that the Church recognized its obligations to abide by the rules when expelling members, as seen in the reference to the bylaws in the expulsion letters, but that it was not possible on the record to determine whether there had been a breach of contract on the basis of failing to comply with the rules (Aga, para 17). Thus, they determined that there was a genuine issue requiring a trial—what the rules of expulsion were, and whether they had been followed in expelling the respondents.
The unanimous SCC decision, authored by Justice Rowe, concluded that the ONCA erred in finding that there was a genuine issue requiring trial. Justice Rowe began by explaining that legally enforceable contracts require parties to have an objective intention to create legal relations. He distinguished this from mutual undertakings between friends or members of voluntary associations, in which shared rules act as “practical measures by which to pursue shared goals” but do not give rise to contractual relations (Aga, para 23).
Justice Rowe then noted that where the court has no jurisdiction to review a decision, there will be no genuine issue requiring trial (Aga, para 26). He, like the ONCA, stated that courts only have jurisdiction to review decisions of voluntary associations where there is a legal right affected (Aga, para 27). Like the motions judge, Justice Rowe reiterated that natural justice is not a source of jurisdiction, as there is no freestanding right to procedural fairness in voluntary associations’ decisions; courts will only have jurisdiction where a legal right is at issue (Aga, para 30).
Next, Justice Rowe reviewed the principles of contractual formation in the context of voluntary associations. He explained that for a contract to be formed, a reasonable person must conclude that the parties’ conduct demonstrated an intent to create a legal relationship (Aga, paras 36-37). He noted that it may be more difficult to show the objective intention to create legal relations in the context of a religious organization or community because it can be difficult to distinguish between religious and legal obligations (Aga, para 41).
In this case, Justice Rowe found that the expelled members failed to provide evidence that a contract was formed, because as the motions judge found, they were not aware of the Bylaw when they applied to become members (Aga, para 51). Moreover, Justice Rowe held that “becoming a member of a religious voluntary association—and even agreeing to be bound by certain rules in that religious voluntary association—does not, without more, evince an objective intention to enter into a legal contract enforceable by the courts. Members of a religious voluntary association may undertake religious obligations without undertaking legal obligations” (Aga, para 51). He found that the expelled members having offered money as monthly contributions was not sufficient to form a contract, nor was the fact that some of the members had signed the guidelines of the investigatory committee that referenced the Church’s rules and regulations (Aga, para 52). He concluded that there was nothing on the record that could be characterized as an objective intention to enter into a contract from either party (Aga, para 52).
Finally, Justice Rowe responded to the ONCA’s decision by noting that the ONCA seemed to find that “membership in a voluntary association that has a written constitution and bylaws itself constitutes a contract” (Aga, para 43). This view, Justice Rowe explained, would mean that courts could intervene in any decision of a voluntary organization and would eliminate the requirement of an underlying legal right, which would contravene established jurisprudence (Aga, para 43). Thus, the unanimous Court overturned the ONCA’s decision and restored the motion judge’s determination that there was no genuine issue for trial.
Discussion: Too High a Threshold for Voluntary Religious Associations, and a Reminder of the Limits of the Law
The SCC’s reasoning in Aga is sound—that in order to form a contract, parties must demonstrate an intention to be legally bound, and as such, if the expelled members were not aware of the bylaw when they signed their membership agreements, they cannot have intended to be bound by it. However, while I agree with the logic in the context of this specific situation, I have two concerns about the underlying reasoning in Justice Rowe’s decision. First, I find the distinction that Justice Rowe sets out between legal and religious obligations to be somewhat artificial. Either way, parties are agreeing to abide by certain conditions to preserve their ongoing membership in an organization, whether the ultimate authority for those conditions is seen as stemming from a purely contractual relationship, or whether the contractual terms are shaped by religious doctrine. To me, these categories are not entirely separate—a church’s rules will undoubtedly be shaped by religious dogma, but could still plausibly give rise to an enforceable contract even if members agree that they are accountable to God, as well as the law, for abiding by the terms of the contract.
In addition to my concerns about the conceptual distinction between the two, neatly separating obligations into “religious” and “legal” imposes a far higher burden on members of religious organizations than members of other voluntary associations to prove the contractual nature of their relationship. By emphasizing that it can be more difficult to show an objective intention to enter into a contractual relationship in the context of a religious organization given the difficulties in distinguishing between legal and religious obligations, Justice Rowe’s decision has placed a far higher burden on applicants who seek to challenge contractual violations in religious organizations compared to non-religious organizations. As one intervener, Egale, pointed out, this precedent may be particularly concerning for LGBTQ+ people given the frequency with which they experience discrimination from religious organizations (Factum of the Intervener, Egale Canada Human Rights Trust). With a high threshold for proving the existence of an underlying contract in order for a church decision to be actionable, LGBTQ+ individuals who are, for example, expelled from churches due to their sexual orientation may be deprived of any remedy because of the religious nature of the organization, whereas they may have had a remedy were the organization non-religious in character. This gap in the potential for seeking a legal remedy is troubling.
More than anything, though, this case serves as a reminder of the stark limits of the law. While the SCC’s reasoning is logical and based on precedent, it leaves the expelled members without any recourse for a decision that has likely had an enormous impact on their lives. Church membership, as with membership in any community, can play a huge role in defining people’s lives. Membership in religious communities specifically can go to the heart of how people see themselves, how they order and structure their lives, how they relate to those around them, and how they maintain friends and a sense of community. When the bar for triggering a contractual right is set quite high in religious organizations—even higher than for other forms of voluntary organizations—what recourse do people have for decisions like this that profoundly affect their lives? Perhaps the courts are not the right avenue for redress, but with the ways we have structured our societies and our legal system, where else can people turn?
Image found here.