Extending the Wall: Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22

Imagine you sign up to be a member of an organization. When making your decision to join, you look carefully at the constitution of the organization, a detailed document setting out the governance of the organization and the rights and obligations of members — it even has “CONSTITUTION” emblazoned on the top.

Then imagine that things go wrong. You are removed from the organization, for allegedly breaching one of the rules. Worse, in excluding you, the organization does not follow the procedures sent out in its constitution. Surely, you might think, you would be able to go to court to have the organization abide by the rules set out in the CONSTITUTION, a public, published document made available to prospective members and those who are members of the organization. Think again.

In 2018 in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 SCR 750, the Supreme Court held that private organizations are not state actors exercising public functions and are thus immune from judicial review of their decisions (see my note here).

Then, last week, in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, the Supreme Court decided that courts cannot enforce the terms of organizations’ constitutions unless there is evidence of intention to create contractual relations. The result is to carve out a space in which even written documents setting out clear rules, rights and obligations are not subject to any judicial scrutiny, in many parts of Canada (an important qualifier which I explain further below).

Rowe J, who held the pen in Wall, wrote the decision in Aga for a unanimous Supreme Court. In general, membership in a voluntary associations does give rise to binding legal obligations:

Such associations are vehicles to pursue shared goals. To this end, many such associations will have rules, sometimes even a constitution, bylaws and a “governing” body to adopt and apply the rules. These are practical measures by which to pursue shared goals. But, they do not in and of themselves give rise to contractual relations among the individuals who join. The members of the local minor hockey league, or a group formed to oppose development of green spaces, or a bible study group, for example, do not enter into enforceable legal obligations just because they have joined a group with rules that members are expected to follow (at para. 23).

Judicial oversight is only available if there is a cognizable legal right at stake:

In sum, courts can only intervene in the affairs of a voluntary association to vindicate a legal right, such as a right in property or contract. Membership in a voluntary association is not automatically contractual. Even a written constitution does not suffice. Membership is contractual only where the conditions for contract formation are met, including an objective intention to create legal relations. Such an intention is more likely to exist where property or employment are at stake. It is less likely to exist in religious contexts, where individuals may intend for their mutual obligations to be spiritually but not legally binding at (para. 49. See also Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, at p. 174; Wall, at para. 24).

As the plaintiffs had not established the basic requirements of contract formation (at paras. 50-52), the Constitution of the Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral will remain shrouded from scrutiny by the courts.

Perhaps my public law reflexes are to blame but I have a great deal of difficulty with the proposition that a “Constitution” can never be interpreted by a court. The Court of Appeal’s approach rang much truer to my ear: “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” (2020 ONCA 10, at para. 40. See also Shergill v Khaira [2014] UKSC 33, at paras. 46-48). What is the point of setting out procedures, rights and obligations in a document made available to members when those procedures, rights and obligations can be discarded at will? This sort of “Constitution” is a contradiction in terms at best, hardly the worth the paper it is written on at worst. Members of voluntary organizations would be well advised to remain on good terms with the elders!

I can well appreciate judicial desire to stay out of private spaces and to avoid weighing in on theological disputes. But the way to do that is to use the scalpel of justiciability and judicial restraint (Shergill, at paras. 37-44), staying away from the theological and being deferential when group norms are in play — the sledghammer employed in Aga obliterates any judicial enforcement of any terms in a voluntary association’s “Constitution”, even terms relating to the basic procedures for removing individuals from the organization. When read with Wall, Aga represents a significant judicial retreat. So much for the ‘supervisory’ jurisdiction.

Interestingly, Aga is not a country-wide authority. In British Columbia there is a well-established jurisdiction under the Societies Act to enforce the terms of the Act and the bylaws of organizations incorporated thereunder. As Newbury JA explained in Farrish v. Delta Hospice Society, 2020 BCCA 312:

…although a court must not ‘intervene by substituting judgment for the judgment of the tribunal on a matter of substance within the tribunal’s jurisdiction’, it does have the (statutory) jurisdiction to intervene on questions of the construction of the bylaws of societies… British Columbia courts have found it necessary and appropriate on many occasions to “interfere in the internal affairs” of societies where and to the extent that the bylaws or the Act are being contravened. This includes societies that have express religious purposes (at paras. 49-50, emphasis original).

Aga does not hold in Quebec either. There, the Code de procédure civile provides:

34. The Superior Court is vested with a general power of judicial review over all courts in Québec other than the Court of Appeal, over public bodies, over legal persons established in the public interest or for a private interest, and over partnerships and associations and other groups not endowed with juridical personality.

This power cannot be exercised in cases excluded by law or declared by law to be under the exclusive purview of those courts, persons, bodies or groups, except where there is lack or excess of jurisdiction.

A matter is brought before the Court by means of an application for judicial review.

The Quebec courts have been clear that Wall has not dismantled this supervisory jurisdiction. As long as the applicant is seeking a judicial review remedy, the applicant can claim it against a non-public entity (Allen c. Students’ Society of McGill University, 2021 QCCS 1165, at paras. 44-61).

The Quebec approach coheres much better, in my view, with the nature of superior court jurisdiction, which is general, supervisory and residual. In Scotland and Ireland, a firm public/private divide has not been maintained and, yet, the roof has not fallen in. It is unfortunate that the Supreme Court saw fit to extend the wall in Aga.

This content has been updated on May 25, 2021 at 14:58.