Dear Colleagues:

Those interested in the “Intention to Create Legal Relations” requirement of contract law will be interested in the new SCC case Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18895/index.do.

Justice Rowe delivered the 58 paragraph judgment of the court, which he summarized as follows:

“[1]       The respondents were expelled from the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral after a dispute arose about a movement within the church which some considered to be heretical. The respondents brought an action against the appellants, the church and members of its senior leadership, seeking a declaration that their expulsion was null and void, and other relief. The appellants brought a motion for summary judgment seeking to dismiss the action against them on the basis that the court had no jurisdiction to review or set aside the expulsion decision. The motion judge granted the motion for summary judgment in favour of the appellants and dismissed the action. The respondents appealed, and the Court of Appeal for Ontario allowed the appeal: 2020 ONCA 10, 150 O.R. (3d) 516.  …

[3]         Jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate. Here, the only viable candidate for a legal right justifying judicial intervention is contract. The finding of a contract between members of a voluntary association does not automatically follow from the existence of a written constitution and bylaws. Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required. In this case, evidence of an objective intention to enter into legal relations is missing. As such, there is no contract, there is no jurisdiction, and there is no genuine issue requiring a trial. I would therefore allow the appeal and restore the order of the motion judge granting summary judgment and dismissing the action.”

Happy Reading,

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)