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DISPUTES from PRIVATE ASSOCIATIONS : Courts AGAIN ponder ( ? ) a slippery slope 2020/07/07 22:23  
Not legal advice, as usual.

Canada’s Supreme Court has agreed to open a very narrow gateway to hear an appeal involving ( procedural compliance aspects concerning ) the expulsion of five members by an Ethiopian Canadian church group.

What’s relevant about this opening to Canada's topcourt, includes that disputes in property owners associations or other such non-profit groups can have parallels. Enforcement actions or architectural review committees can see hardball struggles, for example, with participants not shy to defy property rights nor use toxic voodoo. Huge power imbalances can see the weak unfairly punished bigtime.

And there's no dedicated tribunal parallel to Ontario's ONCAT nor B.C.'s CRT.

But outside some realty communities, voluntary memberships are just voluntary. Who is unable to just walk away ?

It’s already a slippery slope just to adjudicate not-for-profit disputes about property rights. Or shareholders’ rights.

What should it take - if it should at all – to get courts or tribunals to resolve shenanigans in churches or political parties for example ? That's if - IF - the judicial system should dare allow more congestion . . . .

As recently as 2018 Canada’s Supreme Court addressed a dividing line in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 issued May 31/18 . It overturned Alberta decisions favouring an Alberta realtor whose process of dis-fellowshipping nevertheless followed some sort of due process in an unincorporated setting.

The J-W v Wall 2018 decision clarified that only if a court is persuaded there are “agreed’ / member-contracted rules of due process etc would a civil court have any right whatsoever to hear an appeal alleging some sort of procedural unfairness . That there is NO free-standing right to procedural fairness absent an underlying legal right.

Going to the Ethiopian-Canadian church battle, in May 2017 the five Ethiopian Canadian church members were turfed after refusing to stop kvetching about their Archbishop’s handling of an issue.

Their expulsions occurred without what most would expect elsewhere as conventional hearings or some range of due process to hear & reply to accusations.

The five next tried without success to persuade an Ontario Superior Court judge that their expulsions without hearings etc were void for violating Charter & alleged organizational due process rights. The Church denied any right to hearings etc.

In 2019 the Church won when the Superior Court judge summarily dismissed the motion by the 5 expelled ex-members. She applied the Supreme Court’s J-W v WALL leading decision to find neither any "contract" nor resultant scope for judicial intervention.

The five expelled ones however appealed to ONCA Ontario’s Court of Appeal.

They earned a rematch by persuading instead that “the appellants actually were subject to rights and obligations in contract upon becoming members of the Congregation.”

Further that “those rights and obligations are set out in the Constitution and By-Laws.” ONCA ordered the lower court to revisit the claim to consider whether their beefs have merit. ( Whatever the church "rules", ONCA members struggled with the Ethiopian texts and a suspect text update in English . . . )

Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 issued Jan 8/20

Denying any right to judicial intervention in the expulsions, the church corporation itself has appealed that victory by the 5 expelled ones.

Canada’s Supreme Court opened the narrow gateway to hear such on June 18/20 ( SCC docket # 39094 ) and maybe to sharpen its 2018 J-W v Wall decision : Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, et al. v. Teshome Aga, et al., 2020 CanLII 40630 (SCC) issued June 18/20

A timely article :

( June 5 /20 CANLII CONNECTS ) “Courts Can Review Decisions of Unincorporated Associations – on Narrow Grounds” by Toronto lawyer Asher Honickman ( partner Matthews Abogado LLP)
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TELEVISED HEARING / judgment reserved ( Courts AGAIN ponder ( ? ) a slippery slope ) 2021/01/14 11:58  
Not legal advice as usual

CPAC has televised the Dec 9/20 S.C.C. Supreme Court of Canada Hearing of SCC docket # 39094 after which the full court reserved judgment.

Noteworthy includes that

- the Supremes peppered counsel for the respondent five 5 expelled members. He responded very well, and characterized his 5 clients' Ontario Appeal Court victory as NOT about heresy-policing ! BUT rather a right to procedural transparency entitled after there can be a judicial determination of contractual relationship on the facts. 2 other grounds are left available after the earlier Highwood J-W v Wall treated as a landmark.

- counsel for the appellant Church organization urged the court to see the issue as HERESY - POLICING , not as a search to enforce transparent procedural rights.

Vigorous discussion ranged from whether the civil justice system is being asked to involve itself in the likes of STAMP CLUB disputes.

Even briefly emerging : the mischievous Quebec condo-like balcony succoth decision - not internal synagogue squabbling - but where part of the enquiry led to whether or not the balcony violations emerged from SINCERE religious beliefs ! ie arguably as SINCERITY-POLICING instead of RELIGION policing ! ! ( were the balcony violations due or not to a sincerely-held religious belief ! examinable as entitled to exempted accommodation up to the point of undue hardship ? )

- Interveners include Muslim lawyers association whose submission concluded with a thought-provoking insight : that it's not surprising to have another such appeal only two years after Highwood J-W v Wall ! Wonder what they have been seeing ?

( and may the Gods help those who sometimes are denied procedural fairness behind the walls of organized religion . . )

- even non-intervenor St Matthew without counsel gets dragged in :

Matthew 18 : 15-17 . . . If Your Brother Sins Against You

15 “If your brother sins against you, go and tell him his fault, between you and him alone. If he listens to you, you have gained your brother.

16 But if he does not listen, take one or two others along with you, that every charge may be established by the evidence of two or three witnesses.

17 If he refuses to listen to them, tell it to the church. And if he refuses to listen even to the church, let him be to you as a Gentile and tax collector. . ."

- a fun time appears to have been had by Justices Rowe & Brown

# 39094's Hearing video is now available online at
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Justice Rowe notes an IN-JOKE ( Courts AGAIN ponder a slippery slope ? ) 2021/01/17 15:11  
Not literary advice.

During Zoom-like presentation begun by appellant Church’s counsel, Mr Justice Malcolm Rowe sensitively notes over counsel’s shoulder a wall-mounted & clearly discernible picture of Sir Thomas More ( 1478-1535 ).

The Church's Counsel says he always keeps it around the office.

How much should religion & law get mixed up ?

In an age when hundreds of heretics were routinely burned alive as public policy, lawyer More was unseated as Henry 8th’s Lord Chancellor for refusing to vigorously enough embrace his monarch’s frequent wife-swap-outs & religious secession.

More’s fans have claimed More went easy on killing heretics by contemporary standards of his day. More reportedly admits ordering the caning of a blasphemous child & whipping of a mentally challenged nuisance - causer.

More was ultimately executed in 1535 by relatively-merciful decapitation. But it may have been a good career move. His reputation has been revitalized including by his writings & a 1966 Oscar-winning film about him called A Man for All Seasons, residuals of all which he has been awaiting for centuries . . . .
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S.C.C. rules these EXPULSIONS were NOT eligible for judical review 2021/05/24 21:08  
Not legal advice, as usual.

Canada's topcourt ( S.C.C. ) has just overturned the Jan 2020 decision of ONCA Ontario's Court of Appeal ( ONCA had ruled that the expulsions of five church members were subject to judicial appeal on various grounds. SCC has just reversed that gate-keeping decision )

This latest definitively restores the original trial decision favouring the incorporated Church organization ( ie that these specific membership expulsions & remedies sought, have NO remedy from Ontario & Canada's civil justice system ).

The Church had turfed the five without much procedural ado after they refused to stop criticizing a decision by its Canadian leader. Whatever "due process" or natural justice or whatever about the turfings, will thus NOT begin any civil adjudication, the issue being whether there was a civil appeal forum at all in this specific relationship.

Centrally raised by S.C.C. here is a gate-keeping onus ( facing intervention-seekers against their voluntary membership organization ) to upfront demonstrate on balance of probability an objective intention by all disputants that created a "legal" such as "contractual" relationship in the first place.

Although condo & strata governance disputes have judicial venues - & now Tribunal venues in Ontario & B.C. - governance disputes involving informal shared ownership communities & voluntary venues will arguably have less access to judicial resolution. That's for alleged breaches of what many would see as fair play or natural justice or whatever. Think : dirty tricks . . . oppression . . . unlawful claims to jurisdiction. . . . some neighbours start raising wild claims . . . bizarre "Best Practices" nonsense lacking any legal jurisdiction nor covenanting onto titles whatsoever . . . .

Unsupportable claims to jurisdiction might have to rely centrally on social coercion and/or ignorant threats - even violence or vandalism - instead of bringing ( possibly ) voodoo claims into court against or on behalf of property owners. Not talking peaceful "unjust enrichment" claims.

This sorta guerrilla war can occur in non-condo communities ( & unfortunately may get even worse if a community agrees to install a condo or strata governance model . . ) But this decision may have positive outcomes too.

Some NON-condo disputes involving "laws of general application" eg unjust enrichment claims, easement wars, conventional real property disputes etc - may still merrily continue into court. That's where not literally fighting directly over organizational powers which fail to meet the S.C.C. gate-keeping criteria above & below.

Note also that where expressly covenanted onto legal title, NOT-YET EXPIRED obligations running with title can still be merrily litigated too. The Big Cheap often halts these. That fun is also still subject to the excellent P.C.R. positive covenant rule protecting everyone's freedom.

* * *

Xcrpt from unattributed S.C.C. Head Notes :

" . . .“A court’s jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate.

Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required.

In this case, evidence of an objective intention to enter into legal relations is missing. As such, there is no contract, no jurisdiction and no genuine issue requiring a trial.

Courts have jurisdiction to intervene in decisions of voluntary associations only where a legal right is affected.

Purely theological issues are not justiciable, but where a legal right is at issue, courts may consider questions that have a religious aspect in vindicating the legal right.

Legal rights which can ground jurisdiction include private rights in property, contract, tort or unjust enrichment and statutory causes of action.

Natural justice is not a source of jurisdiction
, although where there is a legal right at issue, natural justice may be relevant to whether a legal right was violated.

Many voluntary associations will exercise some legal rights, for example, owning property or contracting for services.

The question in a given case is whether the particular relief sought by the plaintiff is the vindication of a legal right. If not, then there is no cause of action or basis for relief. . . . " - unquote

Xcrpted from Mr. Justice Rowe for the unanimous court :

" . . . [21] The law concerning the formation of contractual relations embodies practical wisdom. Many informal agreements that people undertake do not result in a contract. There are, for example, mutual undertakings between friends (“in the new year, we’ll go to the gym together three times a week”) or between members of a household (“you do the groceries, I’ll clean the kitchen”).

[22] Without more, neither of these agreements creates a contract.

What is missing is an objective intention to create legal relations.

In neither of these examples do the parties (reasonably understood) intend to be subject to adjudication as to the performance of their commitments or to the imposition of remedies such as damages or specific performance.

[23] This is so not merely for individuals dealing with one another. It is also true for individuals coming together in voluntary associations.

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.

[24] The practical wisdom embodied in the common law is that much of what we agree to in our day-to-day lives does not result in a contract.

Where there is no contract, or other obligation known to law, there is no justiciable interest and no cause of action. . . . . " - unquote

* * *

Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 issued May 21/21
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Ethiopian Church criteria applied to INVALIDATE DECADE of private governance (Hamilton NON CONDO) 2021/09/07 13:16  
not legal advice.

ONSC Ontario Superior Court of Justice after FOURTEEN DAY CIVIL TRIAL has applied SCC’s Ethiopian Church intervention criteria ( see above ) as the leading principles.

It's intervention into a ( "sunset" ) dispute involving governance & assets of a Hamilton Yugoslav émigré association.

( Those criteria followed intervention dividing lines of Canada’s Supreme Court in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 issued May 31/18 - both of which ultimately kept those specific disputes properly out of judicial venues ).

But - under the factuals held here - the S.C.C.'s principles from the Ethiopian Church dispute - instead are held to platform judicial intervention.

There's a clubhouse, other assets & evidences of intention to create property rights & judiciable due process for members.

Resolving this used FOURTEEN DAYS of resources of the civil justice system !

Reminiscent of some homeowner disputes, ONSC denounces procedures at a critical 2010 General Meeting. ONSC invalidates subsequent DECADE of purported governance amidst bitter membership disputes & expulsions, occasional police intervention & rival lock swaps !

Orders Members Meeting held to resume lawfully compliant governance which - with an express court ratification - might lawfully wind up a Hamilton clubhouse’s “sunset sale”.

Varjacic et al. v. Radoja et al., 2021 ONSC 5822 issued Sep 1/21
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