The EFC welcomes the Supreme Court decision in the Aga case

21 May 2021
The EFC welcomes the Supreme Court of Canada’s decision in a case about whether ecclesiastical decisions about membership and discipline are outside of the scope of judicial review.
In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, the Court unanimously ruled that matters of membership and discipline within a voluntary religious community are outside the jurisdiction of the courts. The EFC was an intervener in the case.
The Court ruled that courts have jurisdiction in the affairs of voluntary associations only if there is a legal right involved, such as a property right or a matter of employment. This decision concurs with a previous decision of the Court in 2018, in which the EFC also intervened.
One of the issues before the court was whether becoming a member of voluntary association which has a constitution and by-laws establishes a contract between the member and an association. The court determined that membership in a voluntary association such as a church is not autonomically contractual. The ruling states: “Becoming a member of a religious voluntary association, and even agreeing to be bound by certain rules, does not, without more, evince an objective intention to enter into a legal contract enforceable by the courts.”
In its decision, the Court overturned the Ontario Court of Appeal decision that membership itself involved a legal right that is within the jurisdiction of the courts. That decision meant that courts could judicially review a dispute between members of the church and the leadership of the church, in this case a bishop, on a theological and disciplinary decision. The EFC argued that this conflicted with an earlier decision of The Supreme Court of Canada in which it ruled that the courts should not “become the arbiter of religious dogma.”
In its intervention, the EFC argued that that Section 2(a) of the Canadian Charter of Rights and Freedoms includes protection for the communal dimensions of religious freedom and includes freedom of religious association, and that ecclesiastical decisions of religious communities, including decisions related to membership cannot be interfered with by the State.
We argued:
For a Christian, and indeed for many religious individuals, the congregational community and communal worship are necessary components of meaningfully practicing one’s faith. The congregational community then, is the vehicle through which Christian individuals carry-out their faith and benefit from their section 2(a) Charter right to freedom of religion. Religious belief, practice and worship are not merely personal or private engagements. Co- religionists associate and congregate together in order to inter alia, teach, study, learn, pray, serve, evangelize, live, volunteer and worship.
In its decision, the court said:
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 share goals. But, they do not in and of themselves give rise to contractual relations amongst individuals who join.
This decision is an important clarification of the scope of the court’s jurisdiction in the life of voluntary associations like churches  
Author: Bruce J. Clemenger