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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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