NOT-FOR-PROFIT | Charity and Non-Profit Law Case Update.

AuthorBroder, Peter

September 1, 2020By Peter Broder

The COVID-19 pandemic lead to numerous court proceedings being postponed. So, some important charity and non-profit cases may well remain in limbo as I write this. But, both internationally and domestically, the last few months have also seen some major decisions on a range of sector issues.

Aga v Ethiopian Orthodox Tewahedo Church of Canada (Aga)

Earlier this year, I wrote about this Ontario Court of Appeal (OCA) decision, which dealt with crucial member rights issues for voluntary sector groups. The litigants in that case have now been granted leave to appeal the decision to the Supreme Court of Canada.

Aga will provide the Supreme Court with the opportunity to further clarify when a court can delve into the internal decisions--here having to do with disciplinary measures taken against congregants--of faith-based or other voluntary sector organizations. It will also provide a chance to look at the applicability of the Charter of Rights and Freedoms in private litigation. Specifically, whether the Charter has any role where the courts have been asked for a remedy that may compel a religious group to take certain actions.

Friends of Toronto Public Cemeteries Inc v Public Guardian and Trustee (FTPC)

In another OCA decision, the Court looked at governance issues. The case concerned the Mount Pleasant Group of Cemeteries (MPGC) in Toronto. The organization was originally established in 1826 as a statutory trust but has had its structure modified by legislation at various times during the ensuing two centuries. MPGC is now run as a corporation. The OCA looked at whether the succession procedure of the governing body was legitimate and at whether certain decisions about the permitted scope of its activities were valid.

As well as the governance questions, the proceeding dealt with whether the organization was a charity, and whether it should be subject to an investigation by the province's Public Guardian and Trustee under Ontario's Charities Accounting Act.

The OCA finding that the group is not a charity does not accord with the practice in other common law jurisdictions of recognizing organizations operating cemeteries as charities. As well, the analysis used in the case to determine if MPGC is a charity features consideration of some factors that are not traditionally used in determining common law charity status. The decision could be a setback for development of Canadian charity law.

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