Insights

Supreme Court of Canada: Religious Association Decisions not Subject to Judicial Review without Underlying Legal Dispute

Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v Wall, 2018 SCC 26

 

In this recent decision, the Supreme Court of Canada determined whether courts have the jurisdiction to review the decisions of religious organizations where there are concerns about whether people have been treated fairly and decisions have been made without bias (referred to by the court as “procedural fairness”).

 

The Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses disfellowshipped Mr. Wall in 2014 for being “insufficiently repentant.” When a member of the Highwood Congregation of Jehovah’s Witnesses, a voluntary religious association, does not live according to the accepted standards of conduct and morality, and does not repent, they are asked to appear before the Judicial Committee.  The Judicial Committee is made up of three elders of the Congregation.

 

Mr. Wall claimed the Judicial Committee breached the principles of natural justice and duty of fairness. Their decision affected his work as a realtor, as following the disfellowship, Jehovah’s Witness clients then declined to work with him.  The Chambers Judge found the Alberta Court of Queen’s Bench had jurisdiction to hear the matter.  The majority of the Court of Appeal of Alberta dismissed the Congregation’s appeal, affirming that the Court had jurisdiction where property or civil rights were at issue.

 

In a unanimous decision by the Supreme Court of Canada, Justice Malcolm Rowe, writing for the Court, found the Court could not interfere with the Judicial Committee’s decision. Justice Rowe stated a review of a voluntary association’s decision on the basis of procedural fairness is limited for three reasons:

 

  1. 1. Judicial review is limited to public decision makers;
  2. 2. There is no free-standing right to procedural fairness; and
  3. 3. Even where review is available, the Courts will consider only those issues that are justiciable.

Judicial review allows the Courts to supervise administrative tribunals exercising powers delegated to them by provincial and federal legislation. Judicial review is not available to private parties seeking to resolve a dispute but only to bodies set up by the government to act on its behalf.  Simply because a decision impacts the public does not make it “public” and subject to judicial review.

 

With respect to Mr. Wall’s argument that the Judicial Committee had an unfair process and that their decision damaged his economic interests, the Court found Mr. Wall did not have a right to the business of the members of the Congregation. Justice Rowe confirmed that there is no free standing right to procedural fairness with respect to decisions by voluntary associations and that where the decision-maker is private, the Court can only review an “unfair” procedure where an enforceable legal right is at risk.  Justice Rowe found there was no enforceable legal right between Mr. Wall and the Congregation as they did not intend to create legal relations.  The Congregation did not have a written Constitution, by-laws or rules and membership alone did not constitute a contractual right.

 

In determining “justiciability”, Justice Rowe commented that the question to be asked was “Is the issue one that is appropriate for a court to decide?” Mr. Wall and the Congregation’s argument that the dispute was justiciable due to protection by the Section 2 right to freedom of religion in the Canadian Charter of Rights and Freedoms (the “Charter”) failed as the Charter does not apply to private actors.  Disputes over religious principles are not sufficient grounds for the Court to get involved.

 

The Supreme Court of Canada confirmed that courts will only intervene when necessary to resolve an underlying legal dispute, but religious groups and other voluntary organizations are otherwise free to determine their own membership and rules.