



COURT OF APPEAL FOR ONTARIO

CITATION: Aga v. Ethiopian Orthodox Tewahedo Church of
    Canada, 2020 ONCA 10

DATE: 20200108

DOCKET: C66733

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Teshome Aga, Yoseph Beyene, Dereje Goshu,

Tseduke Gezaw and Belay Hebest

Plaintiffs (Appellants)

and

Ethiopian
    Orthodox Tewahedo Church of Canada,

also
    known as St. Mary Cathedral, and Mesale Enegada,

and Abune
    Dimetros and Hiwot Bekele

Defendants (Respondents)

Anthony Colangelo, for the appellants

Gordon E. Wood, for the respondents

Heard: November 22, 2019

On appeal from the order of Justice Sandra Nishikawa of
    the Superior Court of Justice, dated February 26, 2019.

Thorburn J.A.:

OVERVIEW

[1]

The appellants, Teshome Aga, Yoseph Beyene, Dereje
    Goshu, Tseduke Gezaw, and Belay Hebest (the appellants), are five former
    members of the congregation of the Ethiopian Orthodox Tewahedo Church of Canada
    St. Mary Cathedral (the Congregation). The appellants were expelled from the Congregation.

[2]

The appellants claim they were given no
    particulars of the allegations against them leading to their expulsion, no
    opportunity to respond to the allegations, and no opportunity to make
    representations in respect of their expulsion. They claim this was in breach of
    the rules governing the Congregation.

[3]

The appellants therefore brought an action
    against the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, which
    is incorporated under the
Corporations Act
, R.S.O. 1990, c. C.38 (the
    Church), as well as members of its leadership, including Messale Engeda
[1]
, Abune Dimetros,
    and Hiwot Bekele (together referred to as the respondents). The appellants
    claim, The Church failed to follow their own internal procedures in deciding
    to expel them from the Congregation and their right to natural justice and
    freedom to practice their religion as set out in s. 2(a) of the
Charter

was violated in
    expelling them from the Congregation.

[4]

In their Further Amended Statement of Defence,
    the respondents pleaded,

[T]he Church is a voluntary association, the members of which
    acquire no civil or property rights by virtue of becoming members. Accordingly,
    [the appellants] had no freestanding right to procedural fairness with respect
    to the manner in which they were expelled from membership, and the decisions to
    expel are not subject to review by a court of law.

[5]

The respondents brought a motion for summary
    judgment claiming there is no genuine issue requiring a trial and there are no
    rights to be enforced, as there is no underlying contract or other civil right.

[6]

The motion judge held there was no underlying
    contract and therefore no justiciable issue in respect of the claim that the respondents
    failed to follow internal church procedures in expelling them. She therefore
    granted the motion for summary judgment.

[7]

The appellants claim the motion judge erred in
    granting the motion for summary judgment, as the Constitution and By-Laws have
    provisions governing disciplinary measures that are contractually binding and
    enforceable, and there is therefore a justiciable issue to be tried.

[8]

For the reasons that follow, I would allow the
    appeal and set aside the dismissal of the claim.

BACKGROUND FACTS

A.

Church Membership, Rights, and Obligations

(1)

Organization of the Church and Congregation

[9]

The Ethiopian Orthodox Church of Canada St. Mary
    Cathedral is a corporation without share capital, incorporated under Part III
    of the
Corporations Act
. Its objects include a provision, To solicit
    and receive donations, bequests, legacies and grants and to enter into
    agreements, contracts and undertakings incidental thereto.

[10]

The appellants are not members of the corporation.

[11]

However, the appellants and the Church corporation
    were members of the Congregation which is a voluntary association governed by a
    Constitution and By-Laws. This Congregation is a local branch of the Ethiopian Tewahedo
    Orthodox Church, which has parishes around the globe.

(2)

The Constitution

[12]

The 1977 Constitution is in Amharic and no
    translation was provided. The Revised Constitution in English did not come into
    effect until July 2017, two months after the appellants were expelled from the
    Congregation.

[13]

The Revised Constitution is not a direct
    translation of the 1977 Constitution, as it includes many revisions and
    additions. However, two relevant provisions in the Revised Constitution,
    according to the respondents, are also in the Constitution albeit the section
    numbers are different.

[14]

A chart provided by the respondents that
    compares the provisions in the 1977 Constitution and the Revised Constitution, provides
    that Article 61 of the Revised Constitution corresponds to Article 53 of the
    Constitution, both of which deal with Rights and obligations of the faithful
    at parish church. Similarly, Article 63 of the Revised Constitution
    corresponds to Article 54 of the Constitution, both of which deal with Verdict
    against those who trespass this bylaw and the order of the church [in
    general].

[15]

Article 61 of the Revised Constitution provides
    that Every faithful must abstain from committing acts violating the moral
    values of the church and its rules and regulations; the follower is obliged to
    respect and uphold church rules and Holy Scriptures.

[16]

Article 63 of the Revised Constitution provides
    that:

5. When any follower is found in violation of the provision
    under Article 61, section 2 of the Ecclesiastical Constitution (Qale Awadee):

A. First, advice and education will be given by spiritual
    father or church representative;

B. Secondly, consultation and canon will be given;

C. On the third time, temporary suspension from membership
    with warning.

6. The decision on cancellation of membership of faithful shall
    be effective only upon examination by special council and approval by the
    diocese archbishop.

(3)

The By-Laws

[17]

The By-Laws are promulgated to legally and unitedly
    administer the Ethiopian Orthodox Tewahedo Church in the Diaspora.

[18]

The objectives of the By-Laws are to ensure
    that the rights of the clergy and laity are fully respected and to aim for the
    best interest thereof in consonance with laws of countries where they reside.

[19]

Article 44.1.a of the By-Laws provides, In
    accordance with Ch. 7 article 53:1 of the ecclesiastical constitution and under
    the provisions of parish regulations, the rights of the laity, organized as
    parishioners, shall be fully respected.

[20]

Article 47 of the By-Laws addresses disciplinary
    measures including: (a) advice, warning or financial penalty (Article 47.1.a);
    (b) loss of membership status (Articles 47.1.b and 47.1.c); and (c)
    excommunication (Article 47.2).

(4)

Expulsion of the Appellants from the Congregation

[21]

The appellants completed and submitted
    membership application forms in order to become members of the Congregation.
    They provided their personal information and the amount they committed to pay
    by way of monthly contribution to the parish. The application form made no
    mention of the Constitution or By-Laws.

[22]

The appellants had been members of the Congregation
    for over two decades when they were asked to be part of a committee to
    investigate an alleged heretical movement within the church community. The
    appellants were appointed along with six other members, including Archbishop
    Abune Dimetros and Head Priest Messale Engeda.

[23]

The Guidelines of the committee provide that [t]he
    committee will be guided by the rules and regulations of the Eastern Orthodox
    Tewahedo Church synod in the Diaspora. The signatures of four appellants, Teshome
    Aga
[2]
, Yoseph Beyene, Tseduke Gezaw, and Belay Hebest, are on the
    Guidelines.

[24]

Several more members were added by the time the
    investigation report was finished. The committee made several findings. All
    members of the committee, including the Archbishop, signed their names beside
    the findings of fact. The report was submitted to the Archbishop as required by
    the Guidelines.

[25]

The recommendations of the committee in the
    report were not implemented by the administration of the diocese.

[26]

The appellants were not satisfied, and a dispute
    arose.

[27]

On October 26, 2016, Messale Engeda sent a
    letter to each appellant, warning them that steps would be taken to expel them
    if they did not cease expressing dissatisfaction with the Archbishop Dimetros
    decision.

[28]

On May 23, 2017, each of the appellants received
    a letter from Archbishop Dimetros, which provides that according to the bylaw
    of our Church chapter 57, article 4 and chapter 55, article 1 you have been
    suspended from your membership of Toronto St. Mary Cathedral. The content of By-Law
    chapters 57 and 55 were not included in the material before the court.
[3]

[29]

The following day, legal counsel for the Church
    wrote to each appellant to advise that the requisite steps have been taken to
    have you expelled from the Church. No further particulars were provided in
    respect of the steps taken to have the appellants expelled.

THE MOTION JUDGES DECISION

[30]

After their expulsion, the appellants commenced
    an action against the respondents, seeking
inter alia
, a declaration
    that the decision to expel them was null and void and that the findings of the
    committee were valid and enforceable.

[31]

In the motion for summary judgment, the
    respondents claimed the court had no jurisdiction to review the Archbishops decision
    to suspend and then expel the appellants from the Congregation, as there was no
    contract between the parties.

[32]

The appellants opposed the respondents motion
    for summary judgment, claiming there were internal procedures governing the
    relationship between the Church, its leadership, and the members of the Congregation,
    and that the respondents failed to follow these procedures.

[33]

The motions judge considered the evidence
    submitted by the parties and assessed that evidence. She held that:

Neither the Constitution nor the By-Law constitute a contract
    between the Plaintiffs and the Church. An essential element of a contract is a
    mutual intent to be bound to its terms. The Plaintiffs were not aware of the
    By-Law or the terms until this proceeding.



While members of the congregation are required to complete an
    application form, it does not mention being bound to the By-Law.



While the Plaintiffs may be members of the Churchs
    congregation, they are not members within the definition of [section 121] the
Corporations Act
,
and
    do not acquire rights under the Act.



The Plaintiffs have not alleged any particular provisions of
    the Constitution to support their claim.

[34]

She concluded that this case was analogous to
    the Supreme Court of Canadas decision in
Highwood Congregation of
    Jehovahs Witnesses (Judicial Committee) v. Wall
, 2018 SCC 26, [2018] 1 S.C.R.
    750, where the court held that, as a general principle, judicial review is not
    available for the decisions of voluntary religious organizations absent the
    existence of an underlying legal right.

[35]

The motion judge held that, in essence, the
    appellants were seeking to remedy what they alleged were breaches of procedural
    fairness, which they could not do, as she found there was no underlying
    contract or other right between the parties. As such, she granted the motion
    for summary judgment dismissing the appellants claim.

THE STANDARD
    OF REVIEW

[36]

On a motion for summary
    judgment, where there is an error of law, the standard of review is
    correctness:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87;
Housen v. Nikolaisen
,
2002 SCC 33
,
[2002] 2 S.C.R. 235
, at para. 8. Absent an error of law, the
    standard is that of palpable and overriding error, as the exercise of the
    summary judgment rule attracts deference:
Hryniak
,
at para. 81;
Housen
, at para. 36.

THE ISSUES

[37]

The issues raised on
    this appeal are:

a)

When are the rights and obligations of members of a voluntary
    association contractual?

b)

If there is a contract, does the contract provide a process for
    expelling the appellants from the Congregation and were
any of those contractual provisions breached?

[38]

The first issue is a legal issue for which the
    standard of review is correctness. The second issue is a question of mixed fact
    and law for which the standard of review is palpable and overriding error.

ANALYSIS

ISSUE ONE:
    WHEN ARE THE RIGHTS AND OBLIGATIONS OF MEMBERS OF A VOLUNTARY ASSOCIATION CONTRACTUAL?

(a)

Jurisdiction to Address the Affairs of a Voluntary Association

[39]

Adherence to a religious organization alone is
    not enough to create a contract. Jurisdiction to address a voluntary associations
    adherence to its own procedures and, in some cases, the fairness
of
those
    procedures depends on the presence
of
an underlying
    legal right to be adjudicated, such as a property or a civil right in contract
    or tort. As noted in
Wall
,

at para. 24:

[T]here is no free-standing right to procedural fairness with
    respect to decisions taken by voluntary associations. Jurisdiction cannot be
    established on the sole basis that there is an alleged breach of natural justice
    or that the complainant has exhausted the organizations internal processes.
    Jurisdiction depends on the presence of a legal right which a party seeks to
    have vindicated. Only where this is so can the courts consider an associations
    adherence to its own procedures and (in certain circumstances) the fairness of
    those procedures.

[40]

Voluntary associations do not always have
    written constitutions and by-laws. But when they do exist, they constitute a
    contract setting out the rights and obligations of members and the organization.
    In
Ahenakew et al. v. MacKay et al.
(2004), 71 O.R. (3d) 130 (C.A.),
    at paras. 20 and 26, this court affirmed that voluntary associations are a
    complex of contracts between each and every other member. The terms of these contracts
    are to be found in the constitution and by-laws of the voluntary association.

[41]

Once it is established that a contract exists,
    an expectation of procedural fairness may attach as a way of enforcing the
    terms of a contract:
Wall
, at para. 26. The requirements of procedural
    fairness depend on the circumstances, including the nature of the organization
    and the seriousness of the consequences of discipline. However, the basic
    requirements include: notice, opportunity to make representations, and an unbiased
    tribunal:
Lakeside Colony of Hutterian Brethren v. Hofer
, [1992] 3
    S.C.R. 165, at p. 195.

[42]

In
Senez v. Montreal Real Estate Board
,
    [1980] 2 S.C.R. 555, the Supreme Court of Canada
    considered the rights of a member of a real estate
    board who was expelled from the organization, resulting in a
    loss of access to services available to members.
    The expelled member sued in contract and in tort. Beetz J. held, at
    p. 566-567, that when an individual joins a voluntary association:

he accepts its constitution and the by-laws then in force,
    and he undertakes an obligation to observe them. In accepting the constitution,
    he also undertakes in advance to comply with the by-laws that shall
    subsequently be duly adopted by a majority of members entitled to vote,
even
    if he disagrees with such changes. Additionally, he may generally resign, and
    by remaining he accepts the new by-laws. The corporation may claim from him
    arrears of the dues fixed by a by-law. Would such a claim not be of a
    contractual nature? What other basis could it have in these circumstances? In
    my view,
the obligation of the corporation to provide the agreed services
    and to observe its own by-laws, with respect to the expulsion of a member as in
    other respects, is similarly of a contractual nature
. [Emphasis added.]

[43]

In other words, whether or not a member has
    specific knowledge of or expressly consents to the specific terms in the by-laws,
    becoming a member of a voluntary association entails agreement to the terms of
    the constitution and bylaws. As such, members of the voluntary association,
    including the organization itself, are bound by the terms in the constitution
    and by-laws and there is an obligation on the part of an organization to
    observe its constitution and by-laws.

(b)

Application of the Law to the Facts in this Case

[44]

The central issue on
    this appeal is whether the motion judge was correct in holding there was no
    underlying contract and therefore no genuine issue requiring a trial.

[45]

Where there is an underlying contract, this court
    has jurisdiction to determine whether the rules of a voluntary association have
    been observed:
Wall
,

at para. 37;
Hofer
, at p. 175.

[46]

In this case, the appellants were not simply
    adherents of the faith. They applied to be members of the Congregation and offered
    consideration in the form of monthly payments. They completed the required membership
    forms.

[47]

Upon approval of their applications, the
    appellants became members of the Congregation. They entered into a mutual
    agreement to be part of the Congregation and abide by the governing rules,
    whether or not they were specifically aware of the terms.

[48]

But on the record before us, there is evidence
    that the appellants would have been aware of the Constitution and By-Laws. As
    members of the investigation committee, the appellants were specifically
    advised that the committee will be guided by the rules and regulations of the Eastern
    Orthodox Tewahedo Church synod in the Diaspora. Four of the appellants, Teshome
    Aga, Yoseph Beyene, Tseduke Gezaw, and Belay Hebest, signed the guidelines specifically
    confirming their receipt and acceptance of this term.

[49]

The rules governing the treatment and discipline
    of members are set out in the Constitution and the By-Laws.

[50]

Article 61 of the Revised Constitution (Article
    53 of the Constitution) provides that the follower is obliged to respect and
    uphold church rules and Article 63 of the Revised Constitution (Article 54 of
    the Constitution) sets out a procedure for dealing with members who are seen to
    have transgressed.

[51]

Similarly, Article 44.1.a of the By-Laws
    provides that the rights of parishioners will be fully respected, and Article
    47 of the By-Laws specifically addresses disciplinary measures including: (a)
    advice, warning or financial penalty; (b) loss of membership status; and (c)
    excommunication.

[52]

As noted by the Supreme Court of Canada in
Senez
,
    at pp. 566-567, the obligation of the corporation to 
    observe its own by-laws, with respect to the expulsion of a member as in other
    respects, is similarly of a contractual nature and when an individual
    joins a voluntary association, that individual accepts its constitution
    and the by-laws then in force, and he undertakes an
    obligation to observe them.

[53]

There is evidence of recognition by the Church
    and its leadership of its contractual obligations to abide by the rules when
    seeking to expel a member, including:

a)

inclusion of provisions in its Constitution and By-Laws to address
    discipline of its members;

b)

reliance on the By-Laws to suspend the appellants memberships; and

c)

claiming that requisite steps were taken to have them expelled.

[54]

In any event, based on the documents before this
    court, the only means of sanctioning members are as set out in the Constitution
    and By-Laws.

[55]

The motion judge,
    therefore, erred in finding there was no evidence of an underlying contract
    between the parties.

ISSUE TWO:
DOES THE CONTRACT PROVIDE A
    PROCESS FOR EXPELLING THE APPELLANTS FROM THE CONGREGATION AND WERE
ANY OF THOSE CONTRACTUAL PROVISIONS BREACHED?

[56]

As set out above, the Constitution and By-Laws
    include the rules that the Church and its leadership were required to follow in
    sanctioning members.

[57]

Section 134(1)(a) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 provides that an appeal court may make
    any order or decision that ought to or could have been made by the court or
    tribunal appealed from, and s. 134(4) allows appeal courts draw inferences of
    fact from the evidence. However, based on the record before us, it is not
    possible to determine if there has been a breach of contract on the basis of
    failure to comply with the rules.

[58]

It is not clear whether the respondents followed
    the provisions in the Constitution and By-Laws. The Constitution requires:
    advice and education; consultation and canon; and temporary suspension with
    warning before the cancellation of membership. The By-Laws outline disciplinary
    measures, including: advice, warning or financial penalty; loss of membership
    status; and excommunication.

[59]

Moreover, it is not clear whether the rules were
    followed when the Church and its leadership expelled the appellants because the
    respondents failed to adduce the following documentation:

a)

By-Law chapter 57, article 4 and chapter 55, article 1, pursuant to
    which the appellants memberships were allegedly suspended (referred to in the May
    23, 2017 letter from Archbishop Dimetros); and

b)

The steps the Church and its leadership took to expel the appellants
    (referred to in the May 24, 2017 letter issued by the Churchs lawyer).
[4]

[60]

F
ur
thermore, on cross-examination, the respondent Messale Engeda testified
the requisite steps for expulsion were to ask the Archbishop, who
    then decides and notifies the person. He also said
that
there is a right of
    appeal to the Holy Synod upon expulsion  not just in cases of excommunication.

[61]

In a summary judgment motion, the moving party
    bears the evidentiary burden of demonstrating that there is no genuine issue
    requiring a trial; it must put its best foot forward by adducing evidence on
    the merits
:
Sanzone v. Schechter
, 2016 ONCA 566, 402 D.L.R.
    (4th) 135, at paras. 30-32, leave to appeal refused [2016] S.C.C.A. No. 443.

[62]

The respondents failed to adduce information in
    their control in respect of the imposition of suspension and expulsion,
how expulsion is defined in the Constitution and/or By-Laws, and
    how, if at all, expulsion differs from loss of membership.

[63]

Despite this courts authority under r. 134(4) of
    the
Courts of Justice Act

to draw inferences of fact, given
    that the respondents have not filed the necessary evidence to enable this court
    to determine the rules of expulsion or whether they were followed, it is not
    possible to determine whether the contractual terms were breached.

[64]

These are genuine issues to be determined.

CONCLUSION

[65]

For the above reasons, the appellants were
    subject to rights and obligations in contract upon becoming members of the
    Congregation. Those rights and obligations are set out in the Constitution and
    By-Laws. However, it is not clear whether, and if so, how those rights were
    breached, as the respondents have failed to provide all of the information in
    respect of the rules and the steps taken by the respondents leading to
    expulsion.

[66]

I would therefore grant the appeal.

[67]

I would set aside the order of the motion judge
    granting summary judgment, and return the matter to the Superior Court.

[68]

Finally, I would award costs to the appellants of
    this appeal in the amount of $5,000, as agreed by the parties. In view of the
    result, I would reverse the costs below.

Released:
    January 8, 2020 (D.P.)

J.A. Thorburn J.A.

I agree. K. van Rensburg J.A.

I agree. David M. Paciocco J.A.





[1]

Messale Engeda indicated in his affidavit that his name has
    been misspelled in the order. However, there has been no motion to amend, so
    the title of proceedings will remain as stated in the order below.



[2]
Note that the
    named party in this litigation is Teshome Aga. The translated copy of the
    Guideline says Teshome Telila and the warning letter is addressed to Teshome
    Tessisa. It appears that the discrepancies in the surname may be due to different
    translations from Amharic, as it is agreed by all parties that all five appellants
    were in the investigation committee.



[3]

On the record before us, the By-Laws only have 12 chapters.



[4]
On January 11,
    2017, the Patriarch of Ethiopia, Abba Merkorios, sent a letter to the leadership
    of St. Mary Cathedral. In this letter, the Patriarch of Ethiopia confirmed that
    Archbishop Dimetros decision with respect to his response to the investigation
    report was just. It says if anyone disdains the archbishops directives, they
    will be grouped with the gentiles. However, this letter is not specific to
    the expulsion of the appellants. In addition, they were not grouped with
    gentiles  they were expelled only from St. Mary Cathedral.


