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. Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church

In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church (Ont CA, 2023) the Court of Appeal considers the interaction of canon law with civil law:
[4] Under canon law, the local Church is part of a greater hierarchy and, as noted above, it takes direction from the Diocese and, above the Diocese, the Synod.


(2) There is some conflict between the AGM procedure and canon law

[26] The finding that the local Church is organized as a single incorporated entity and is accordingly subject to the obligations imposed by corporate governance statutes is not dispositive of the key matters in dispute on this appeal. As the appellants argue, there is an apparent inconsistency in the application judge’s reasoning. On the one hand, she found that the local Church is organized as an incorporated entity and that there is no parallel unincorporated entity. On the other hand, she found that the Canon Law Promulgation applies only to the Church congregation and thus has no bearing on the governance questions in issue.

[27] This is an inconsistency, as the appellants argue, but the more significant problem is the assumption that canon law does not apply to the Incorporated Church. Whether a church is organized by way of incorporation has no bearing on whether it is also subject to canon law. The act of incorporation creates an additional set of legal obligations that need to be reconciled with ecclesiastical obligations, but it does not oust canon law categorically. The relationship between canon law and civil law can be a difficult matter, and courts have been reluctant to become involved in the internal affairs of religious organizations for several reasons.

[28] First is the “real risk of misunderstanding the relevant tradition and culture” of the religious organization in question: Ivantchenko v. Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery, 2011 ONSC 6481, at para. 6. This includes the risk of misunderstanding both the content and the authority of written documents, and a tendency to artificially inflate the importance of any legal documents, with which courts are more comfortable: Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165, at para. 63.

[29] Second is the concern of inadvertently straying into non-justiciable matters of religious doctrine: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 50.

[30] The appellants are right to caution about the danger of courts straying into non-justiciable matters of church doctrine when addressing matters of church governance. However, it is settled law that the civil law may impose obligations on the governance of religious bodies where, as here, such bodies have brought themselves within the civil law’s authority. 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: Ivantchenko, at para. 8. Courts will nevertheless require religious organizations to uphold their obligations to their members in property and governance disputes: see Pankerichan v. Djokic, 2014 ONCA 709, 123 O.R. (3d) 131, at paras. 52-64. When the assistance of courts has been sought, courts have required religious organizations to follow their internal rules: see e.g., Lakeside Colony. Incorporated religious bodies like the local Church are subject to, among other civil obligations, the general governing procedures established by the NFCPA (subject to constitutional considerations of which none have been advanced in this case), and their own internal rules such as bylaws providing, for example, the requirement that an AGM be held and directors be elected. These obligations apply in addition to these bodies’ canon law obligations, and the two do not necessarily conflict.

[31] The appellants are thus wrong to suggest that civil law obligations that bear on matters also governed by canon law obligations necessarily trespass into non-justiciable territory. But even where courts must enforce civil law obligations, they should take care to ensure that the discretionary elements of their orders do not encroach upon matters of canon law. Here, the question arises as to whether the discretionary elements of the order below conflict with canon law. On the record before us, there is some conflict.


[35] This aspect of the order creates unnecessary conflict with canon law. It is reasonably clear from the Diocese’s letters that the Canon Law Promulgation conflicts with the 2014 Bylaws as to the requisite procedure for the next AGM. The local Church would ordinarily be able to amend the 2014 Bylaws to resolve this conflict before the next AGM. There is no statutory obligation that would prevent this. The only legal impediment is the order below. That aspect of the order fails to respect the priority afforded to canon law by the common law in internal church matters, even over procedural matters (see Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750, at para. 38; Mathai v. George, 2019 ABQB 116, at paras. 10-13), and the deference owed to interpretations of canon law provided by a church’s internal governing structure: Rex Ahdar & Ian Leigh, Religious Freedom in the Liberal State, 1st ed. (Oxford: Oxford University Press, 2005) at pp. 329-34; Lakeside Colony, at paras. 63-64. The local Church ought instead to have been afforded an opportunity to bring its bylaws in line with the Canon Law Promulgation at a special or emergency meeting.


[47] Nevertheless, some of the application judge’s comments on this issue seem to be a product of her inadvertently straying into non-justiciable matters of religious doctrine. ...
. Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church

In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church (Ont CA, 2023) the Court of Appeal briefly notes limits of justiciability that apply to associations and churches:
[41] It is true that this court has accepted the general rule that where “the rules of a self-governing organization, especially a religious organization, provide an internal dispute resolution” to a person “who has been aggrieved by a decision of that organization”, that person “must seek redress in the internal procedures of that organization”: Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728, 344 D.L.R. (4th) 332, at para. 18.
. Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church

In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church (Ont CA, 2023) the Court of Appeal considered a dispute between members of a church. Here the court draws a distinction between "the local Church qua congregation and the Church qua corporation", in an effort to determine whether individuals are 'members' of the church:
[16] The appellants argue that the application judge erred by failing to respect the distinction between the local Church qua congregation and the Church qua corporation, per Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, 163 O.R. (3d) 719, at paras. 41-42. In that case and others, courts have cautioned that although a congregation can have an associated incorporated entity – which is often necessary for the purposes of holding title to lands – a court should not conflate the congregation, which is a voluntary association, with the incorporated entity: Ukrainian Greek Orthodox Church v. Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, 1940 CanLII 59 (SCC), [1940] S.C.R. 586, at paras. 23, 70, and 72-73. These two organizational aspects must be kept distinct in order to preserve the autonomy of the congregation to choose to be governed by canon law and to avoid the encroachment of the state into religious matters.

[17] The appellants argue that the application judge conflated membership in the Incorporated Church, which is governed by the NFPCA, with membership in the local Church congregation, which is an unincorporated voluntary association.

[18] They argue further that the respondents are not members of the Incorporated Church, and cannot rely on either the NFPCA or the bylaws, which govern only the Incorporated Church.

[19] The appellants’ argument that the respondents are not members in the Incorporated Church is based in part on s. 121 of the Corporations Act, which provides that the incorporators of a charitable corporation are its original members. As the respondents were not incorporators named in the Incorporated Church’s letters patent, they were thus not original members. And per, Rexdale Singh Sabha Religious Centre v. Chattha, 2006 CanLII 39456 (Ont. C.A.), absent evidence of specific resolutions to the contrary, the incorporators remain the corporation’s sole members.

[20] The appellants claim that there is no evidence that the Incorporated Church passed any resolutions that changed its membership after incorporation. While the 2014 Bylaws stated that the board would approve membership applications and the appellants have produced a list of active church members, the 2014 Bylaws concern membership in the congregation, not the Incorporated Church.

[21] On this basis, the appellants argue that the respondents are not members of the Incorporated Church that is subject to the NFPCA and, therefore, the respondents have no justiciable rights thereunder. Whatever governance rights the respondents have (whether to an AGM or an election of directors) as members of the congregation are governed by canon law, as adjudicated by the church’s own institutions, and not the civil courts.

[22] I disagree that the application judge made a reversible error in this respect. She 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). She drew an adverse inference from the failure of the appellants to adduce evidence to the contrary – records that she found would have been under their control as directors. She also found that the record before her did not support the conclusion that membership in the Incorporated Church is restricted to the three original applicants:
It is clear that prior elections held under the 2014 Bylaws were considered to be elections of the board of directors of the incorporated Church as the names of the directors elected by the active members appear on the Church’s Corporate Profile Report.


If the members of the Church as a corporation were limited to the three Original Applicants … the directors of the incorporated Church would have had to be elected by these three Original Applicants, pursuant to section 287 of the Corporations Act. There is no evidence of any meeting or vote of the Original Applicants to elect directors of the incorporated Church.
[23] Further, the application judge found that if there were two separate entities and the 2014 Bylaws only governed the unincorporated congregation, it would be impossible to make sense of many of the Bylaws’ provisions. For example, there are provisions that address the directors’ responsibilities for church property, which can only be held by the Incorporated Church. Other provisions address statutory duties that only apply to the directors of incorporated charities, such as those under the Charities Accounting Act, R.S.O. 1990, c. C.10.

[24] The application judge’s conclusions are reasonable inferences from her reading of the 2014 Bylaws and the factual record before her. There is no basis on which this court should interfere. It was not unreasonable to conclude, as the application judge did, that the 2014 Bylaws were drafted to govern a single church entity, that entity was organized using a corporate structure, and the respondents are members of the entity.
. S.H. v. Prakash

In S.H. v. Prakash (Ont CA, 2023) the Court of Appeal considered the appellant's religious beliefs and his mental capacity in appeals from a Consent and Capacity Board ruling:
[12] Counsel for the appellant makes a second argument. She contends that the CCB and the appeal judge failed to take into account Charter values, in particular, the right to freedom of religion, when applying the test for capacity laid down in s. 4(1) of the Act: see Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 55-56.

[13] There is no question that many, but not all, of the beliefs manifested by the appellant could properly be described as religious in nature. The sincerity of those beliefs is not questioned. The CCB concluded that the beliefs described by the appellant were a product of his mental condition. The medical evidence supported that finding. The appeal judge found no basis upon which to interfere with that finding. Nor do we.

[14] Neither the CCB, nor the appeal judge, expressly considered the argument that the court should factor the Charter values reflected in the right to freedom of religion into its application of the capacity test in s. 4(1) of the Act. It does not appear that this argument was expressly made in either venue.

[15] Both the CCB and the appeal judge appreciated, as is clear from their review of the evidence, that a significant component of the appellant’s belief system generating his resistance to treatment had a strong religious tone. However, both the CCB and the appeal judge were satisfied that the belief system and other conduct engaged in by the appellant was the product of a mental condition. That condition produced persecutory and religious delusions, grandiose delusions, poor insight, and tangential and disorganized thinking. The evidence of the appellant’s professed religious beliefs was a part of the broader picture of the appellant’s mental state developed in the clinical assessments of the appellant.

[16] The CCB found, and the appeal judge affirmed, that the appellant:
. Suffered from a mental delusional disorder;

. The appellant’s beliefs and thought process were a manifestation of his mental condition;

. The appellant was unable to recognize that his thought process and beliefs were potentially a manifestation of his mental condition; and

. Because the appellant could not see that possibility, he could not engage in the cost/benefit considerations necessary to an appreciation of the reasonably foreseeable consequences of either taking or refusing the medication.
[17] On the findings, the religious nature of some of the appellant’s beliefs and explanations for his conduct had no impact on the question of incapacity as defined in s. 4(1) of the Act. The appellant’s inability to appreciate that his beliefs and actions may be the product of a mental condition rendered him unable to appreciate the reasonably foreseeable consequences of taking or refusing the treatment. Characterizing the beliefs manifested as a consequence of his mental condition as religious could not affect the ultimate finding of incapacity once the court concluded the appellant was incapable, on account of his mental condition, of appreciating that his beliefs and conduct may be a manifestation of that mental condition.

[18] Counsel for the appellant correctly points out that Charter values can play a role in capacity determinations. The high value Canadian society places on the fundamental right to freedom of religion dictates that the CCB and the courts must proceed cautiously before characterizing a professed religious belief as a manifestation of a mental condition. The evidence must offer clear and cogent support for both the conclusion that the beliefs are a manifestation of a mental condition and the conclusion that the condition has rendered the individual incapable of recognizing that his beliefs may be the product of a mental condition. Decisions of the CCB demonstrate that it has regularly undertaken this analysis in the past: C.R. (Re), 2023 CanLII 24871 (Ont. CCB); G.S. (Re), 2021 CanLII 152914 (Ont. CCB); and E.P. (Re), 2013 CanLII 49102 (Ont. CCB). We are satisfied that that onus was met on this record.
. Kandaharian (Litigation Guardian of) v. York Catholic District School Board

In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court considered the application of Charter s.15 religious equality to a case where a separate school board objected to a non-Catholic student holding a school trustee position [para 51-65].

. Kandaharian (Litigation Guardian of) v. York Catholic District School Board

In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court considered an interesting non-Charter constitutional issue where a separate school board objected to a non-Catholic student holding a school trustee position [para 38-50].

. Kandaharian (Litigation Guardian of) v. York Catholic District School Board

In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court canvassed the history of the constitutional status of separate (catholic) schools [Constitution Act, 1867, s.93], and some relevant cases [paras 11-37].

. Metropolitan Preparatory Academy Inc v. Ontario

In Metropolitan Preparatory Academy Inc v. Ontario (Div Court, 2022) the Divisional Court held that Ontario has no obligation to fund private religious schools:
[27] Ontario has no obligation to fund private religious schools: Cooper v. Ontario (Attorney General) (2009), 2009 CanLII 92113 (ON SCDC), 99 OR (3d) 25, para. 10 (Div. Ct.); Adler v. Ontario, [1996] 3 SCR 60. This principle being clear, the applicants have not identified any basis on which they had any right to receive funding, let alone a right that has been denied them in an unlawful or arbitrary manner. The authorities relied upon by the applicants afford them no assistance on this point. The arbitrary distinction in Tesla Motors Canada ULC v. Ontario (Ministry of Transportation), 2018 ONSC 5062 was drawn between private manufacturers, not between publicly funded institutions and private businesses and non-profit entities. The unlawful decision in Re Doctors Hospital and Minister of Health et al., 1976 CanLII 739 (ON SC), [1976] 12 O.R. (2d) 164 (Div. Ct.) was a decision made without jurisdiction to close an existing publicly funded hospital. The distinction drawn in this case – between publicly funded schools and private schools, is entrenched in Ontario law.
. FLK Institute of Taoism v. MPAC

In FLK Institute of Taoism v. MPAC (Div Ct, 2021) the Divisional Court considered the judiciary's general stance on adjudging religion matters:
Issue 2: What constitutes “worship”?

[24] FLK focused most of its oral argument on this aspect of appeal. In particular, FLK spent a good deal of time in its submissions addressing the activity that occurs on the so-called Satellite Sites. These properties represent the vast majority of assessed value for the properties under consideration.

[25] FLK argues that adherents are “worshiping” when they are attending the Satellite Sites. They are practicing a religious rite in a consecrated place. This is “worship” because in the submission of FLK, they can say it is worship. What is in the minds of others who may also be participating in the Tai-Chi on the property for different reasons other than worship is irrelevant to a determination that the property is being used in a way that would attract an exemption under section 3(1) 3.(i). FLK argues it is not proper for the Court to go behind the assertions of persons making these kinds of claims of religious practice.

[26] FLK relies on the decision of the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, although this case was not argued before the application judge. In paras 50-51, the majority held:
50. In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, "obligation", precept, "commandment", custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.

51. That said, while a court is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimant's belief, where sincerity is in fact at issue: see Jones, supra; Ross, supra. It is important to emphasize, however, that sincerity of belief simply implies an honesty of belief: see Thomas v. Review Board of the Indiana Employment Security Division, supra.
[27] FLK argues that the application judge erred by concluding “worship” was not being conducted on the all the properties at issue. The application judge engaged in an impermissible inquiry by relying on the evidence of the affiant for MPAC which emphasized an evangelical nature of the activities on the sites as contrasted with acts of worship. “Evangelical” in the sense that participants doing Tai Chi were being exposed to the religious ritual but were not actively engaged in acts of worship. This came from evidence about the degree to which instructors at the sites focused on personal physical health of the participants rather than acts of worship.

[28] At paragraph 97 the application judge said:
While I accept, on all of the evidence, that the practice of Tai Chi is integral to FLK religion, the opposite is not necessarily so. The evidence does not support FLK's position that the satellite sites are used primarily for worship. The evidence supports MPAC's position that the persons engaged in the Tai Chi classes at these locations are not worshiping through Tai Chi, but that these classes and the facilities in which they are held are used in an evangelical way.
[29] FLK also relied on a recent decision of the Quebec Superior Court - Institut de taoisme Fung Loy Kok v. Villie de Montreal, 2021 QCCS 3873. The decision was released October 7, 2021 and was not before the application judge. Nevertheless, FLK argues that the Quebec Court’s approach, in accepting that FLK was entitled to a property tax exemption in Quebec, is persuasive that the application judge erred in her decision regarding the Ontario properties.

[30] MPAC argues that the application judge accepted that religious expression and activities occur at the Satellite Sites. However, in order to create an exemption for those properties, those activities must constitute acts of worship, a more narrow form of activity than the simple act of conducting a practice that has religious connotation. The primary purpose test requires an objective analysis. This is contrasted with FLK’s subjective argument – “if we say it is worship, it is”. MPAC notes the Quebec municipal tax regime is different than the Act and the recent Quebec case is distinguishable on that basis. Also, the Amselem decision focused on the specified Charter right of freedom of religion. In MPAC’s submission, this analysis is different that that which is appropriate for considering an entitlement to an exemption. There is no question in this case that FLK is entirely free to conduct religious practice on the sites at issue. However, the Legislature has used specific words to differentiate the taxation treatment of different uses of land by religious organizations. For example, the Legislature expressly separately exempted church yards (section 3(1) 3(ii)) and burying grounds (section 3(1) 3(ii)). Amselem gave a Charter analysis where a violation of Charter rights was in issue. The applicant did not raise a Charter section 2(b) issue before the application judge; it cannot be raised for the first time on appeal. In any event, Anselem did not address the exemption type issue before the applications judge.

[31] I am of the view the application judge applied an appropriate analysis when considering the issue of the activity that occurs at the Satellite Sites. She had evidence before her that contradicted the subjective evidence of the FLK expert about the nature of the activity put forward by FLK. There was an evidentiary basis, upon which she was entitled to rely, to find that the activity did not fit in the four corners of worship. It is not open for a court on a review to substitute its version of the facts for that of the original court unless the application judge committed a palpable and overriding error. I do not find such an error in the application judge’s reason for decision. I do not see any reason to engage in a further analysis of the evidence in pursuit of attempting to insert my view of the evidence above that of the application judge.

[32] Despite the increasing secularization of the mainstream of our society, protection of religious practices and freedom of religion remain important values in the Province. Nevertheless, the Act’s exemption for places of worship in the Act has been around for a very long time. The language of the Act in section 3(1) 3(i) has remained unchanged since at least 1952 (see Les Soeurs de la Visitation d’Ottawa v. City of Ottawa, 1951 CanLII 109 (ON SC), [1952] O.R. 61 (S.C.O), aff’d 1952 CanLII 283 (ON CA), [1952] O.W.N. 280 (C.A.). It is acknowledged that religious practices in this province have changed a great deal since that date. However, this case is not about validating or invalidating forms of religious practice. It is about deciding if a particular acknowledged religious practice, occurring at the Satellite Sites, constitutes acts of worship such that it can be granted an exemption.

[33] The statutory scheme of the Act dealing with exemptions for properties used by religious organizations differentiates types of religious conduct. What happens in a burying ground can objectively be seen to be a different type of experience than worship that occurs inside a religious building. An act of worship may well occur at a graveside or in a churchyard. Yet the other things that are easily understood to occur in a place like a graveyard would displace worship as a primary purpose. Accordingly, the Legislature decided to treat these areas separately and specifically exempt them in other subsections of section 3 of the Act. This militates against the subjective approach urged by FLK. I am persuaded by this aspect of MPAC’s argument and the focus of the decision under appeal which considered all the evidence concerning the Satellite Sites. While I appreciate the direction of the Supreme Court in Amselem, the case at bar does not require the court to engage in questions of religious doctrine or arbitrate disparate views among a particular religious group. The application judge was to consider a primary purpose test when considering the evidence about activities that occur on certain pieces of property. It was an objective exercise. The application judge had before her evidence that a different type of religious observance occurred on the sites that MPAC had agreed were exempt properties, as contrasted to what occurred at the Satellite Sites. This was a benchmark against which the application judge could compare what was occurring at the Satellite Sites. It is in this context that her comments in paragraph 97 are understood.

[34] The application judge found in paragraph 97 that “the evidence supports MPAC’s position that persons engaged in the Tai Chi classes at these locations were not worshipping through Tai Chi but that these classes and the facilities in which they are held are used in an evangelical way.”

[35] The application judge found that the act of worship required for the exemption did not occur on the Satellite Sites. The aspects of practice found on the exempt sites was not observed at the Satellite Sites. This is a finding that is entitled to deference. The application judge agreed with the MPAC position that people were not worshipping while doing Tai-Chi at the Satellite Sites. It was open for her to make that determination on the evidence before her. She found the acts to be in the nature of evangelization. Evangelization is a religious practice. However, it is not one that the Legislature has deemed to attract an exemption.

[36] Accordingly, I find that the application judge did not commit an error of law in assessing what occurred at the Satellite Sites and properly denied those properties an exemption under the Act.


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Last modified: 11-12-23
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