- The Supreme Court of Canada has held that courts review a voluntary association’s decisions only where a legal right is at stake.
- A written constitution and by-laws do not automatically make membership a contract.
- Courts will not decide religious or doctrinal questions.
- Where a court will not help, mediation or arbitration is often the only way to a resolution.
Two Supreme Court decisions
In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, the Supreme Court of Canada held that the membership decisions of a religious association are not subject to review by a court unless there is an underlying legal right at issue.
In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, five members were expelled from a Toronto congregation after a dispute about a movement some considered heretical. The Ontario Court of Appeal had treated the congregation’s constitution and by-laws as a contract. The Supreme Court unanimously disagreed. It held that courts can intervene in the decisions of an unincorporated voluntary association only where a legal right is affected, and that membership is not automatically or presumptively contractual, even where the association has a written constitution and by-laws.
What counts as a legal right
A contract, where the parties genuinely intended to create legal relations, and property rights. Ontario courts have decided competing claims to an association’s property, and employment by a religious organisation is governed by employment law. Incorporation also matters: members of an incorporated non-profit have statutory rights under the governing Act that members of an unincorporated association may not.
What this means in practice
An expelled member of an unincorporated congregation will often find no court willing to review the decision, however unfair the process. Ontario courts have also shown reluctance to overturn membership decisions of religious organisations for technical irregularities in following the by-laws. That leaves negotiation, mediation and, where both sides agree, arbitration as the realistic ways to resolve the dispute, and they can address relationships and governance together in a way a court cannot.
For organisations, the lesson runs the other way: clear membership rules, a fair process and an agreed dispute clause prevent most of these disputes.
See faith and cultural organisation disputes and member discipline and expulsion.
Questions
Does this apply to incorporated churches or mosques?
The analysis differs. Where the organisation is incorporated, its members may have rights under the governing statute and by-laws. Which structure applies is the first question to answer.
Can a court decide who owns the building?
Property disputes involve legal rights, so courts can decide them, as they have in Ontario cases about competing claims to an association’s property.
Is arbitration binding on religious organisations?
An arbitration both sides agree to is binding under Ontario’s Arbitration Act, subject to its limits.
Sources
This article is general information about Canadian law as at September 2026, not legal advice.
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