Religion doesn't protect contracts from judicial scrutiny

The BC Humanist Association is welcoming a unanimous decision by Canada's highest court that affirms that religious organizations can be subject to judicial scrutiny.

The case stems from five individuals who sued their former church following their expulsion from the congregation. The members alleged church leadership failed to follow their own internal bylaws and they asked the courts to uphold their rights as members of the church.

The Superior Court of Ontario found that the bylaws did not create a contractual right between the members and the church, and therefore the members could not bring their claim before the courts. The Court of Appeal agreed with the expelled parishioners that the church was bound by its rules and the court should hear the dispute.

The Supreme Court of Canada released its decision on the dispute today in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga. Justice Malcolm Rowe authored the decision, writing, "while purely theological issues are not justiciable, where a legal right is at issue, courts may need to consider questions that have a religious aspect in vindicating the legal right."

The BC Humanist Association intervened at the Supreme Court to argue that the religious nature of the organization should not shield its decisions from the scrutiny of the courts.

Responding to the decision, Ian Bushfield, Executive Director of the BCHA, said "We are pleased to see this case decided on purely secular legal principles of contract law." He added that, "It's an important case that clearly establishes that religion is not a shield from judicial scrutiny."

The court ruled that membership in a church is akin to a "mutual undertakings between friends" or members of a minor hockey league and does not necessarily create a legal right that the courts can adjudicate. Justice Rowe found, "The finding of a contract between members of a voluntary association does not automatically follow from the existence of a written constitution and bylaws."

In its brief, the BCHA worried that if members cannot bring disputes over whether an organization is abiding by its own rules to court then the bylaws of such associations could become "merely aspirational or optional documents."

Justice Rowe wrote:

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.

Members of an unincorporated association therefore only have recourse to the courts in very narrow circumstances that create a contractual relationship, such as when ownership of property or an employment relationship exists. Notably, the Ethiopian Church in this case was a distinct legal corporation from the unincorporated voluntary association to which the members belonged.

"By denying that bylaws and a constitution alone form any contractual relation between members of an association, the court has rendered those documents worth less than the paper they're printed on," said Bushfield. "Priests and hockey coaches can expel or discipline subordinates with no regard to even their group's own agreed upon rules. But critically they are held to the same standard."

The BCHA was represented in the case by Wes McMillan of Allen/McMillan Litigation Counsel

Read the BCHA's Factum

Watch the BCHA's intervention

Read the Supreme Court of Canada's Case in Brief

Read the full decision

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