May 31, 2018

Supreme Court of Canada prohibits judicial review of church decisions: Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall

Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses, 2016 ABCA 255 (CanLII)

There have been a number of court decisions which took the view that religious and similar organizations could be subject to judicial review. The Supreme Court of Canada has now stated clearly that those decisions were wrong, in the decision it handed down in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26.

The Court laid down the firm principle that should guide cases of this type in the future: "Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term."

The respondent Mr. Wall was found to be insufficiently repentant for past sins and "disfellowshipped" from a Jehovah's Witness Congregation in Alberta. He argued that the committee of elders had made an unfair decision. Among other things, this harmed his business as a real estate agent as members of the congregation would no longer deal with him.

Mr. Wall sought to have the elders' decision quashed for procedural unfairness and violation of natural justice. The lower court and the majority of the Alberta Court of Appeal held that the church was a body of a public nature and was therefore subject to judicial review by the courts.

In a unanimous decision, the Supreme Court of Canada allowed the church's appeal and ruled that religious matters such as church membership are not subject to judicial review by the courts.

The fact that a private organization may engage in matters that affect members of the general public does not engage issues of the rule of law and therefore they are outside the purview of the rights issues that are meant to be protected by judicial review.

The Supreme Court acknowledged that there had been several past court rulings which held that bodies such as churches were subject to judicial review. In its decision, it explicitly “disapproved” six previous decisions of the lower courts,

One line of cases was based on the fact that some churches are established by statute. Incorporation by a private Act operates as a statutory grant of authority, but this is irrelevant. A private statute does not make the body a governmental one as the statute is not of general application (paragraph 18).

The other line of cases takes the view that a private body, such as a social club or political party organization, may exercise a quasi-governmental function if it affects a sufficiently large part of the public. The problem with these cases “is that they hold that where a decision has a broad public impact, the decision is of a sufficient public character and is therefore reviewable .... These cases fail to distinguish between “public” in a generic sense and “public” in a public law sense.” (para. 20).

The reasons stated above were sufficient to dispose of the matter. However, for good measure the Court also addressed the issue of "justiciability," whether the subject matter is of a nature that courts can make a decision about. The request for judicial review would also have failed on that count. The question of whether Mr. Wall was sufficiently repentant was a theological matter. Courts are not competent to deal with such matters, and therefore they would be unable to decide if a church decision based on such questions was reasonable or not.

A further wrinkle in this case is that Mr. Wall is a real estate agent. Many of his clients were members of the church, who would no longer deal with him after his expulsion. The Court acknowledged the hardship this caused him. However, there was no legal right to contest the expulsion on this ground, as he has no property right in membership: "Mr. Wall does not have a right to the business of the members of the Congregation." (para. 30)

In the situation where a church or any similar body engages in a contractual relationship, either with an employee or member, the situation is of course different. An aggrieved person may seek a private law remedy for breach of contract against it. However, seeking certiorari to quash a decision of a church decision maker that does not engage any recognized legal rights will not be available. For the time being, at least, the courts will be kept out of the churches of the nation.