The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
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When can a member sue a Church, Club, or other Voluntary Association for treating them unfairly?

In Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10, the affirmed when a voluntary association can be sued for failing to follow their own internal procedures and for a breach of procedural fairness.

The plaintiffs were expelled from the defendant, their Church (the “Church”), after they criticized the outcome of an investigation done by a committee on which they served. In their opinion, the expulsion was carried out without adequate explanation and without the opportunity for them to oppose the decision. The plaintiffs sued the Church alleging that the Church failed to follow its own internal procedures when it expelled them. They also alleged that the Church deprived them of their rights to natural justice and their right to practice their religion under s. 2(a) of the Charter of Rights and Freedoms.

The Church was corporation that was governed by a constitution and by-laws, which set out the rights and obligations of the Church and of the members of the Church. The constitution and by-laws also set out the Church’s disciplinary measures and procedures, ranging from advice and warnings to excommunication. However, the plaintiffs were not aware of the constitution or by-laws until after the litigation had started.

The Church defended the claim saying that, since it was a voluntary association, the members did not acquire legal rights just by joining and, therefore, there was no right to procedural fairness in the manner in which a member may be expelled. They then sought to have the claim dismissed on the basis that there was no genuine issue for trial.

The Motion Judge agreed with the Church, saying that, since the plaintiffs were not aware of the constitution or by-laws, there was no underlying contract giving them the right to procedural fairness.

The plaintiffs appealed to the Ontario Court of Appeal, who set aside the motion judge’s decision.

The Court of Appeal agreed with the motion judge that there is no freestanding right to procedural fairness from a voluntary association. A member must derive a legal right from something, such as a contract, in order to be owed a duty of procedural fairness.

However, they disagreed with the motion judge about whether a contract existed here. Where an association has put in place a written constitution or by-laws that set out the rights and obligations of the association and its members, and where there is consideration (such as dues or membership fees) the written rules are the terms of a contract. The Court of Appeal wrote that voluntary associations are “a complex of contracts between each and every other member. The terms of these contracts are to be found in the constitution and by-laws of the voluntary association.”

Once it is determined that a contract exists, regardless of whether the member was aware of the terms or agreed to them, the member gains the legal right to procedural fairness in the enforcement of the terms of that contract. For better or worse, by joining an organization of any kind and remaining a member, that member is accepting the rights, obligations, and by-laws of that organization.

While the legal rights of a member depend on the circumstances, the Court of Appeal wrote that procedural fairness will, at a minimum, require an organization to give notice and give the member an opportunity to make representations to an unbiased decision-maker.

The Court of Appeal disposed of the appeal by finding that the Church did not meet the threshold to prove there were no genuine issues for trial because it had not adduced evidence about the terms of the contract or how they were met.

This decision is helpful to those involved in governing voluntary associations. There are many types of voluntary associations: religious, professional, social, etc. These associations have varying degrees of formality in how they are governed, particularly in cases where associations are run by volunteers and members. Anyone involved in the governance of an association should familiarize themselves with the rules and ensure that they are following them in a fair manner based on all of the circumstances.

This decision also provides helpful information for members of associations. Most of us join associations without thinking twice about the rules that govern them (at least not until there is a conflict that requires relying on them). However, these rules define what (if any) legal rights a member has, regardless of whether the member explicitly agreed to them. As they say, knowledge is power.

Karen Bernofsky
Affleck Greene McMurtry LLP

Karen Bernofsky

Karen Bernofsky is a strong advocate with a focus on commercial litigation and delivering cost-effective solutions. She advises and represents clients in a broad range of complex insurance matters, construction matters and commercial disputes, including and invoice disputes. Karen is also a skilled negotiator with a proven track record in effective mediation advocacy. She has appeared before all levels of courts and administrative tribunals in Ontario as well as before the Federal Court of Canada.

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