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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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