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Justiciability - Religion. Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church
In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church (Ont CA, 2024) the Ontario Court of Appeal considered "the relationship between the rules of voluntary associations having a religious purpose, on the one hand, and provincial statute and common law, on the other hand", here as a matter of 'justiciability' - in a motion to stay pending leave to appeal to the SCC:[16] There is no doubt that the Supreme Court has delved into the relationship between the rules of voluntary associations having a religious purpose, on the one hand, and provincial statute and common law, on the other hand: see e.g., Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, [2021] 1 S.C.R. 868 and Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750. The court handles these questions under the rubric of justiciability, albeit with a degree of diffidence, and adjudicates them in light of the commitment to freedom of religion in the Canadian Charter of Rights and Freedoms.
[17] There are numerous religious bodies in Ontario and in Canada whose dealings can raise questions about the relationship between religious organizations and civil law. Despite the inevitably local character of any given dispute, the general issue has a measure of public importance.
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[18] That said, I would decline to stay the order sought to be appealed for four reasons. First, the factual situation is unclear and the evidence spotty. As Miller J.A. noted, the application judge “found that there was an absence of evidence to support the appellants’ claim that there were two organizations (an unincorporated congregation and an associated corporation).” Second, the evidence of the applicable canon law “is thin”. Miller J.A. added that the “rules for resolving perceived conflicts between canon law and civil law in such situations might be underdeveloped from the perspective of civil law, and expert evidence may be needed to understand the relevant canon law.” There was none. Third, the Diocese is not a party even though it is the canon law legislator.
[19] Fourth, if the process prescribed by this court is followed, that is, the local Church is afforded an opportunity to bring its bylaws in line with the Canon Law Promulgation at a special or emergency meeting, and the AGM later occurs, then there is, on the one hand, a prospect that the immediate dispute will be resolved. On the other hand, if the “more fundamental conflict between the two groups” – that the moving parties seek to withdraw the local Church from the Diocese – lurches into view through the process leading to the AGM, then this case cannot resolve the issues between the parties in the absence of both the Diocese and the Synod, neither of which are parties. Another legal proceeding would be required.
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