SUPREME
COURT OF CANADA
Citation:
Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v.
Wall, 2018 SCC 26
|
Appeal Heard:
November 2, 2017
Judgment
Rendered: May 31, 2018
Docket:
37273
|
Between:
Judicial
Committee of the Highwood Congregation of Jehovah’s Witnesses
(Vaughn
Lee — Chairman and Elders James Scott Lang and Joe Gurney) and
Highwood
Congregation of Jehovah’s Witnesses
Appellants
and
Randy
Wall
Respondent
-
and -
Canadian
Council of Christian Charities, Association for Reformed Political Action
Canada, Canadian Constitution Foundation, Evangelical Fellowship of Canada,
Catholic
Civil Rights League, Christian Legal Fellowship, World Sikh Organization of
Canada, Seventh-day Adventist Church in Canada, Justice Centre for
Constitutional Freedoms, Church of Jesus Christ of Latter-day Saints in Canada,
British
Columbia Civil Liberties Association and Canadian Muslim Lawyers Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 40)
|
Rowe J. (McLachlin C.J. and Abella, Moldaver,
Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
highwood congregation v. wall
Judicial Committee of the Highwood Congregation of
Jehovah’s Witnesses (Vaughn Lee — Chairman and
Elders James Scott Lang and Joe Gurney) and
Highwood Congregation of
Jehovah’s Witnesses Appellants
v.
Randy Wall Respondent
and
Canadian Council of Christian Charities,
Association for Reformed Political
Action Canada,
Canadian Constitution Foundation,
Evangelical Fellowship of Canada,
Catholic Civil Rights League,
Christian Legal Fellowship,
World Sikh Organization of Canada,
Seventh‑day Adventist Church in
Canada,
Justice Centre for Constitutional
Freedoms,
Church of Jesus Christ of Latter‑day
Saints in Canada,
British Columbia Civil Liberties
Association and
Canadian Muslim Lawyers
Association Interveners
Indexed as: Highwood Congregation of Jehovah’s
Witnesses (Judicial Committee) v. Wall
2018 SCC 26
File No.: 37273.
2017: November 2; 2018: May 31.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for alberta
Courts
— Jurisdiction — Judicial review — Private parties — Whether
superior court can review decision by religious organization regarding
membership — Availability of judicial review to resolve disputes between
private parties — Whether right to procedural fairness arises absent underlying
legal right — Whether ecclesiastical issues justiciable.
The
Highwood Congregation of Jehovah’s Witnesses is a voluntary, religious
association. A member must live according to accepted standards of conduct and
morality. A member who deviates and does not repent may be asked to appear
before a Judicial Committee of elders and may be disfellowshipped. In 2014, W was
disfellowshipped after he engaged in sinful behaviour and was considered to be
insufficiently repentant. The decision was confirmed by an Appeal Committee. W
filed an originating application for judicial review pursuant to Rule 3.15 of
the Alberta Rules of Court seeking an order of certiorari quashing
the Judicial Committee’s decision on the basis that it was procedurally unfair.
The Court of Queen’s Bench dealt with the issue of jurisdiction in a separate
hearing. Both the chambers judge and a majority of the Court of Appeal
concluded that the courts had jurisdiction to consider the merits of the
application.
Held: The appeal
should be allowed and the originating application for judicial review should be
quashed.
Review
of the decisions of voluntary associations, including religious groups, on the
basis of procedural fairness is limited for three reasons. First, judicial
review is limited to public decision makers, which the Judicial Committee is
not. Not all decisions are amenable to a superior court’s supervisory
jurisdiction. Judicial review is only available where there is an exercise of
state authority and where that exercise is of a sufficiently public character. Judicial
review is a public law concept that allows courts to ensure that lower
tribunals respect the rule of law. Private parties cannot seek judicial review
to solve disputes between them and public law remedies such as certiorari
may not be granted in litigation relating to contractual or property rights
between private parties. 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 nor would incorporation by a private Act operate as a statutory grant
of authority to churches so constituted. The present case raises no issues
about the rule of law. The Congregation in no way is exercising state
authority.
Second,
there is no free-standing right to procedural fairness absent an underlying
legal right. Courts may only interfere to address procedural fairness concerns
related to the decisions of religious groups or other voluntary associations if
legal rights are at stake and the claim is founded on a valid cause of action,
for example, contract, tort or restitution. Jurisdiction cannot be established
on the sole basis that there is an alleged breach of natural justice or that
the complainant has exhausted the organization’s internal processes. It is not
enough that a matter be of importance in some abstract sense. W has no
cause of action. No basis has been shown that W and the Congregation intended
to create legal relations. No contractual right exists. The
Congregation does not have a written constitution, by-laws or rules to be
enforced. The negative impact of the disfellowship decision on W’s client base
as a realtor does not give rise to an actionable claim. The matters in issue
fall outside the courts’ jurisdiction.
Third,
even where review is available, the courts will consider only those issues that
are justiciable. The ecclesiastical issues raised by W are not
justiciable. Justiciability relates to whether the subject
matter of a dispute is appropriate for a court to decide. There is no single
set of rules delineating the scope of justiciability. The court should ask
whether it has the institutional capacity and legitimacy to adjudicate the
matter. Even the procedural rules of a particular religious group may involve
the interpretation of religious doctrine, such as in this case. The courts have
neither legitimacy nor institutional capacity to deal with contentious matters
of religious doctrine.
Cases Cited
Distinguished:
McCaw v. United Church of Canada (1991), 4 O.R. (3d) 481; Pederson v.
Fulton, 1994 CanLII 7483; Lutz v. Faith Lutheran Church of
Kelowna, 2009 BCSC 59; Hart v. Roman Catholic Episcopal Corp. of the
Diocese of Kingston, 2011 ONCA 728, 285 O.A.C. 354; Shergill v. Khaira,
[2014] UKSC 33, [2015] A.C. 359; Lee v. Showmen’s Guild of Great Britain,
[1952] 1 All E.R. 1175; Lakeside Colony of Hutterian Brethren v. Hofer,
[1992] 3 S.C.R. 165; Hofer v. Hofer, [1970] S.C.R. 958; Senez
v. Montreal Real Estate Board, [1980] 2 S.C.R. 555; disapproved:
Lindenburger v. United Church of Canada (1985), 10 O.A.C. 191; Davis
v. United Church of Canada (1992), 8 O.R. (3d) 75; Graff v. New
Democratic Party, 2017 ONSC 3578; Erin Mills Soccer Club v. Ontario
Soccer Assn., 2016 ONSC 7718, 15 Admin. L.R. (6th) 138; West Toronto
United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, 327
O.A.C. 29; considered: Air Canada v. Toronto Port Authority, 2011
FCA 347, [2013] 3 F.C.R. 605; Setia v. Appleby College, 2013 ONCA 753,
118 O.R. (3d) 481; referred to: Canada (Attorney General) v. TeleZone
Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Crevier v. Attorney General of
Quebec, [1981] 2 S.C.R. 220; Knox v. Conservative Party of Canada,
2007 ABCA 295, 422 A.R. 29; Greaves v. United Church of God Canada, 2003
BCSC 1365, 27 C.C.E.L. (3d) 46; Ukrainian Greek Orthodox Church of Canada v.
Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress,
[1940] S.C.R. 586; Zebroski v. Jehovah’s Witnesses (1988), 87 A.R. 229; Mott-Trille
v. Steed, [1998] O.J. No. 3583, rev’d 1999 CanLII 2618; Bruker v.
Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607; Syndicat Northcrest v.
Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Demiris v. Hellenic Community
of Vancouver, 2000 BCSC 733; RWDSU v. Dolphin Delivery Ltd., [1986]
2 S.C.R. 573.
Statutes and Regulations Cited
Alberta Rules of Court, Alta. Reg. 124/2010,
rr. 3.9, 3.15, 3.17.
Canadian Charter of Rights and Freedoms,
ss. 2 (a), 32 .
Interpretation Act, R.S.C. 1985, c. I‑21,
s. 9 .
Judicial Review Act, R.S.P.E.I. 1988,
c. J‑3, ss. 2, 3(3).
Judicial Review Procedure Act, R.S.B.C.
1996, c. 241, s. 2(2)(b).
Judicial Review Procedure Act, R.S.O.
1990, c. J.1, s. 2(1)(2).
United Church of Canada Act (1924), 14
& 15 Geo. 5, c. 100.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the
assistance of David Fairlie. Judicial Review of Administrative Action in
Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated December
2017, release 4).
Canada. Parliament. House of Commons. House of Commons Procedure
and Practice, 2nd ed. by Audrey O’Brien and Marc Bosc. Ottawa, 2009.
Moon, Richard. “Bruker v. Marcovitz: Divorce and the Marriage
of Law and Religion” (2008), 42 S.C.L.R. (2d) 37.
Organized to Do Jehovah’s Will.
Brooklyn: Watchtower Bible and Tract Society of New York, 2005.
Sossin, Lorne M. Boundaries of Judicial Review: The Law of
Justiciability in Canada, 2nd ed. Toronto: Carswell, 2012.
APPEAL
from a judgment of the Alberta Court of Appeal (Paperny, Rowbotham and Wakeling JJ.A.),
2016 ABCA 255, 43 Alta. L.R. (6th) 33, 404 D.L.R. (4th) 48, 12 Admin. L.R.
(6th) 302, 365 C.R.R. (2d) 40, [2017] 2 W.W.R. 641, [2016] A.J. No. 899
(QL), 2016 CarswellAlta 1669 (WL Can.), affirming a decision by Wilson J., Court
of Queen’s Bench of Alberta, File No. 1401-10225, April 16, 2015. Appeal allowed.
David M.
Gnam and Jayden MacEwan, for the appellants.
Michael A.
Feder and Robyn Gifford, for the respondent.
Barry W.
Bussey and Philip A. S. Milley, for the intervener the Canadian
Council of Christian Charities.
John Sikkema and André Schutten, for the intervener the Association
for Reformed Political Action Canada.
Mark Gelowitz and Karin Sachar, for the intervener the Canadian
Constitution Foundation.
Albertos
Polizogopoulos, for the interveners the Evangelical Fellowship of Canada and the Catholic
Civil Rights League.
Derek Ross and Deina Warren, for the intervener the Christian
Legal Fellowship.
Balpreet Singh
Boparai and Avnish Nanda, for the intervener the World
Sikh Organization of Canada.
Gerald Chipeur, Q.C., and Jonathan
Martin, for
the interveners the Seventh‑day Adventist Church in Canada and the Church
of Jesus Christ of Latter‑day Saints in Canada.
Jay Cameron, for the intervener the Justice
Centre for Constitutional Freedoms.
Roy Millen and Ariel Solose, for the intervener the British
Columbia Civil Liberties Association.
Shahzad Siddiqui and Yavar Hameed, for the intervener the Canadian Muslim Lawyers Association.
The judgment of the Court was delivered by
Rowe J. —
I.
Overview
[1]
The central question in this appeal is when, if
ever, courts have jurisdiction to review the decisions of religious
organizations where there are concerns about procedural fairness. In 2014, the
appellant, the Judicial Committee of the Highwood Congregation of Jehovah’s
Witnesses, disfellowshipped the respondent, Randy Wall, after he admitted that
he had engaged in sinful behaviour and was considered to be insufficiently
repentant. The Judicial Committee’s decision was confirmed by an Appeal
Committee. Mr. Wall brought an originating application for judicial review of
the decision to disfellowship him before the Alberta Court of Queen’s Bench.
The court first dealt with the issue of whether it had jurisdiction to decide
the matter. Both the chambers judge and a majority of the Court of Appeal
concluded that the courts had jurisdiction and could proceed to consider the
merits of Mr. Wall’s application.
[2]
For the reasons that follow, I would allow the
appeal. Mr. Wall sought to have the Judicial Committee’s decision
reviewed on the basis that the decision was procedurally unfair. There are
several reasons why this argument must fail. First, judicial review is limited
to public decision makers, which the Judicial Committee is not. Second, there
is no free-standing right to have such decisions reviewed on the basis of
procedural fairness. In light of the foregoing, Mr. Wall has no cause of
action, and, accordingly, the Court of Queen’s Bench has no jurisdiction to set
aside the Judicial Committee’s membership decision. Finally, the ecclesiastical
issues raised by Mr. Wall are not justiciable.
II.
Facts and Judicial
History
[3]
The Highwood Congregation of Jehovah’s Witnesses
(“Congregation”) is an association of about one hundred Jehovah’s Witnesses
living in Calgary, Alberta. The Congregation is a voluntary association. It is
not incorporated and has no articles of association or by-laws. It has no
statutory foundation. It does not own property. No member of the Congregation
receives any salary or pecuniary benefit from membership. Congregational
activities and spiritual guidance are provided on a volunteer basis by a group
of elders.
[4]
To become a member of the Congregation, a person
must be baptized and must satisfy the elders that he or she possesses a
sufficient understanding of relevant scriptural teachings and is living
according to accepted standards of conduct and morality. Where a member
deviates from these scriptural standards, elders meet and encourage the member
to repent. If the member persists in the behaviour, he or she is asked to
appear before a committee of at least three elders of the Congregation.
[5]
The committee proceedings are not adversarial,
but are meant to restore the member to the Congregation. If the elders
determine that the member does not exhibit genuine repentance for his or her
sins, the member is “disfellowshipped” from the Congregation. Disfellowshipped
members may still attend congregational meetings, but within the Congregation
they may speak only to their immediate family and limit discussions to
non-spiritual matters.
[6]
Randy Wall became a member of the Congregation
in 1980. He remained a member of the Congregation until he was disfellowshipped
by the Judicial Committee.
[7]
Mr. Wall unsuccessfully appealed the Judicial
Committee’s decision to elders of neighbouring congregations (Appeal Committee)
and to the Watch Tower Bible and Tract Society of Canada. After the
Congregation was informed that the disfellowship was confirmed, Mr. Wall filed
an originating application for judicial review pursuant to Rule 3.15 of the Alberta
Rules of Court, Alta. Reg. 124/2010, seeking an order of certiorari
quashing and declaring void the Judicial Committee’s decision. In his
application, Mr. Wall claimed that the Judicial Committee breached the
principles of natural justice and the duty of fairness, and that the decision
to disfellowship him affected his work as a realtor as his Jehovah’s Witness
clients declined to work with him.
[8]
An initial hearing was held to determine whether
the Court of Queen’s Bench had jurisdiction. The chambers judge found that the
court did have jurisdiction as Mr. Wall’s civil rights might have been affected
by the Judicial Committee’s decision: File No. 1401-10225, April 16, 2015. The judge
also noted that expert evidence could be heard regarding the interpretation by
Jehovah’s Witnesses of Christian scripture as to what is sinful and the
scriptural criteria used by elders to determine whether someone said to have
sinned has sufficiently repented.
[9]
The majority of the Court of Appeal of Alberta
dismissed the Congregation’s appeal, affirming that the Court of Queen’s Bench
had jurisdiction to hear Mr. Wall’s originating application for judicial
review: 2016 ABCA 255, 43 Alta. L.R. (6th) 33. The majority held that the
courts may intervene in decisions of voluntary organizations concerning
membership where property or civil rights are at issue. The majority also held
that even where no property or civil rights are engaged, courts may intervene
in the decisions of voluntary associations where there is a breach of the rules
of natural justice or where the complainant has exhausted internal dispute
resolution processes.
[10]
The dissenting judge would have allowed the
Congregation’s appeal on the basis that the Judicial Committee is a private
actor, and as such is not subject to judicial review, and that in any event,
Mr. Wall’s challenge of the Judicial Committee’s decision did not raise a
justiciable issue.
III.
Question on Appeal
[11]
This appeal requires the Court to determine
whether it has jurisdiction to judicially review the disfellowship decision for
procedural fairness concerns.
IV.
Analysis
[12]
Courts are not strangers to the review of
decision making on the basis of procedural fairness. However, the ability of
courts to conduct such a review is subject to certain limits. These reasons
address three ways in which the review on the basis of procedural fairness is
limited. First, judicial review is reserved for state action. In this case, the
Congregation’s Judicial Committee was not exercising statutory authority.
Second, there is no free-standing right to procedural fairness. Courts may only
interfere to address the procedural fairness concerns related to the decisions
of religious groups or other voluntary associations if legal rights are at
stake. Third, even where review is available, the courts will consider only
those issues that are justiciable. Issues of theology are not justiciable.
A.
The Availability of Judicial Review
[13]
The purpose of judicial review is to ensure the
legality of state decision making: see Canada (Attorney General) v. TeleZone
Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 24 and 26; Crevier v.
Attorney General of Quebec, [1981] 2 S.C.R. 220, at pp. 237-38; Knox v.
Conservative Party of Canada, 2007 ABCA 295, 422 A.R. 29, at paras. 14-15.
Judicial review is a public law concept that allows s. 96 courts to “engage in
surveillance of lower tribunals” in order to ensure that these tribunals
respect the rule of law: Knox, at para. 14; Constitution Act, 1867,
s. 96 . The state’s decisions can be reviewed on the basis of procedural
fairness or on their substance. The parties in this appeal appropriately
conceded that judicial review primarily concerns the relationship between the
administrative state and the courts. Private parties cannot seek judicial
review to solve disputes that may arise between them; rather, their claims must
be founded on a valid cause of action, for example, contract, tort or
restitution.
[14]
Not all decisions are amenable to judicial
review under a superior court’s supervisory jurisdiction. Judicial review is
only available where there is an exercise of state authority and where that
exercise is of a sufficiently public character. Even public bodies make some
decisions that are private in nature — such as renting premises and hiring
staff — and such decisions are not subject to judicial review: Air Canada v.
Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para.
52. In making these contractual decisions, the public body is not exercising “a
power central to the administrative mandate given to it by Parliament”, but is
rather exercising a private power (ibid.). Such decisions do not
involve concerns about the rule of law insofar as this refers to the exercise
of delegated authority.
[15]
Further, while the private law remedies of
declaration or injunction may be sought in an application for judicial review
(see, for example, Judicial Review Procedure Act, R.S.B.C. 1996, c. 241,
s. 2(2)(b); Judicial Review Procedure Act, R.S.O. 1990, c. J.1., s.
2(1)(2); Judicial Review Act, R.S.P.E.I. 1988, c. J-3, ss. 2 and 3(3)),
this does not make the reverse true. Public law remedies such as certiorari
may not be granted in litigation relating to contractual or property rights
between private parties: Knox, at para. 17. Certiorari is
only available where the decision-making power at issue has a sufficiently
public character: D. J. M. Brown and J. M. Evans, with the assistance of D.
Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf),
at topic 1:2252.
[16]
The Attorney General has a right to be heard on
an originating application for judicial review, and must be served notice where
an application has been filed: Alberta Rules of Court, Rules 3.15 and
3.17. Other originating applications have no such requirements: ibid.,
Rule 3.9. This suggests that judicial review is properly directed at public
decision making.
[17]
Although the public law remedy of judicial
review is aimed at government decision makers, some Canadian courts, including
the courts below, have continued to find that judicial review is available with
respect to decisions by churches and other voluntary associations. These
decisions can be grouped in two categories according to the arguments relied on
in support of the availability of judicial review. Neither line of argument
should be taken as authority for the broad proposition that private bodies are
subject to judicial review. Both lines of cases fail to recognize that judicial
review is about the legality of state decision making.
[18]
The first line of cases relies on the
misconception that incorporation by a private Act operates as a statutory grant
of authority to churches so constituted: Lindenburger v. United Church of
Canada (1985), 10 O.A.C. 191 (Div. Ct.), at para. 21; Davis v. United
Church of Canada (1992), 8 O.R. (3d) 75 (Gen. Div.), at p. 78. The purpose
of a private Act is to “confer special powers or benefits upon one or more
persons or body of persons, or to exclude one or more persons or body of persons
from the general application of the law”: Canada, Parliament, House of Commons,
House of Commons Procedure and Practice (2nd ed. 2009), by A. O’Brien
and M. Bosc, at p. 1177. Thus, by its nature, a private Act is not a law of
general application and its effect can be quite limited. The federal Interpretation
Act, R.S.C. 1985, c. I-21, s. 9 , states that “[n]o provision in a private
Act affects the rights of any person, except only as therein mentioned and
referred to.” For instance, The United Church of Canada Act (1924), 14
& 15 Geo. 5, c. 100, gives effect to an agreement regarding the transfer of
property rights (from the Methodist, Congregationalist and certain Presbyterian
churches) upon the creation of the United Church of Canada; it is not a grant
of statutory authority.
[19]
A second line of cases that allows for judicial
review of the decisions of voluntary associations that are not incorporated by
any Act (public or private) looks only at whether the association or the
decision in question is sufficiently public in nature: Graff v. New
Democratic Party, 2017 ONSC 3578, at para. 18 (CanLII); Erin Mills
Soccer Club v. Ontario Soccer Assn., 2016 ONSC 7718, 15 Admin. L.R. (6th)
138, at para. 60; West Toronto United Football Club v. Ontario Soccer Association,
2014 ONSC 5881, 327 O.A.C. 29, at paras. 17-18. These cases find their basis in
the Ontario Court of Appeal’s decision in Setia v. Appleby College, 2013
ONCA 753, 118 O.R. (3d) 481. The court in Setia found that judicial
review was not available since the matter did not have a sufficient public
dimension despite some indicators to the contrary (such as the existence of a
private Act setting up the school) (para. 41).
[20]
In my view, these cases do not make judicial
review available for private bodies. Courts have questioned how a private Act —
like that for the United Church of Canada — that does not confer statutory
authority can attract judicial review: see Greaves v. United Church of God
Canada, 2003 BCSC 1365, 27 C.C.E.L. (3d) 46, at para. 29; Setia,
at para. 36. The problem with the cases that rely on Setia 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: Graff, at para.
18; West Toronto United Football Club, at para. 24. These cases fail to
distinguish between “public” in a generic sense and “public” in a public law
sense. In my view, a decision will be considered to be public where it
involves questions about the rule of law and the limits of an administrative
decision maker’s exercise of power. 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. Again, judicial review is about the legality of state
decision making.
[21]
Part of the confusion seems to have arisen from
the courts’ reliance on Air Canada to determine the “public” nature of
the matter at hand. But, what Air Canada actually dealt with was the
question of whether certain public entities were acting as a federal board,
commission or tribunal such that the judicial review jurisdiction of the
Federal Court was engaged. The proposition that private decisions of a public
body will not be subject to judicial review does not make the inverse true.
Thus it does not follow that “public” decisions of a private body — in the
sense that they have some broad import — will be reviewable. The relevant
inquiry is whether the legality of state decision making is at issue.
[22]
The present case raises no issues about the rule
of law. The Congregation has no constating private Act and the Congregation in
no way is exercising state authority.
[23]
Finally, Mr. Wall submitted before this Court
that he was not seeking judicial review, but in his originating application for
judicial review this is what he does. In his application, he seeks an order of certiorari
that would quash the disfellowship decision. I recognize that Mr. Wall was
unrepresented at the time he filed his application. These comments do not
reflect that the basis for my disposition of the appeal is a matter of form
alone or is related to semantic errors in the application. However, the
implications of granting an appeal must still be considered. This appeal
considers only the question of the court’s jurisdiction; it is not clear what
other remedy would be sought if the case were returned to the Court of Queen’s
Bench for a hearing on the merits. However, as I indicate above, judicial
review is not available.
B.
The Ability of Courts to Review Decisions of
Voluntary Associations for Procedural Fairness
[24]
Even if Mr. Wall had filed a standard action by
way of statement of claim, his mere membership in a religious organization —
where no civil or property right is granted by virtue of such membership —
should remain free from court intervention. Indeed, there is no free standing
right to procedural fairness with respect to decisions taken by voluntary
associations. Jurisdiction cannot be established on the sole basis that there
is an alleged breach of natural justice or that the complainant has exhausted
the organization’s internal processes. Jurisdiction depends on the presence of
a legal right which a party seeks to have vindicated. Only where this is so can
the courts consider an association’s adherence to its own procedures and (in
certain circumstances) the fairness of those procedures.
[25]
The majority in the Court of Appeal held that
there was such a free standing right to procedural fairness. However, the cases
on which they relied on do not stand for such a proposition. Almost all of them
were cases involving an underlying legal right, such as wrongful dismissal (McCaw
v. United Church of Canada (1991), 4 O.R. (3d) 481 (C.A.); Pederson v.
Fulton, 1994 CanLII 7483 (Ont. S.C. (Gen. Div.)), or a statutory
cause of action (Lutz v. Faith Lutheran Church of Kelowna, 2009 BCSC
59). Another claim was dismissed on the basis that it was not justiciable as
the dispute was ecclesiastical in nature: Hart v. Roman Catholic Episcopal
Corp. of the Diocese of Kingston, 2011 ONCA 728, 285 O.A.C. 354.
[26]
In addition, it is clear that the English
jurisprudence cited by Mr. Wall similarly requires the presence of an
underlying legal right. In Shergill v. Khaira, [2014] UKSC 33, [2015]
A.C. 359, at paras. 46-48, and Lee v. Showmen’s Guild of Great Britain,
[1952] 1 All E.R. 1175 (C.A.), the English courts found that the voluntary
associations at issue were governed by contract. I do not view Shergill
as standing for the proposition that there is a free-standing right to
procedural fairness as regards the decisions of religious or other voluntary
organizations in the absence of an underlying legal right. Rather, in Shergill,
requiring procedural fairness is simply a way of enforcing a contract (para. 48).
Similarly, in Lee, Lord Denning held that “[t]he jurisdiction of a
domestic tribunal, such as the committee of the Showmen’s Guild, must be
founded on a contract, express or implied” (p. 1180).
[27]
Mr. Wall argued before this Court that Lakeside
Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, could
be read as permitting courts to review the decisions of voluntary organizations
for procedural fairness concerns where the issues raised were “sufficiently
important”, even where no property or contractual right is in issue. This is a
misreading of Lakeside Colony. What is required is that a legal right
of sufficient importance — such as a property or contractual right — be at
stake: see also Ukrainian Greek Orthodox Church of Canada v. Trustees of the
Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, [1940]
S.C.R. 586. It is not enough that a matter be of “sufficient importance” in
some abstract sense. As Gonthier J. pointed out in Lakeside Colony, the
legal right at issue was of a different nature depending on the perspective
from which it was examined: from the colony’s standpoint the dispute involved a
property right, while from the members’ standpoint the dispute was contractual
in nature. Either way, the criterion of “sufficient importance” was never
contemplated as a basis to give jurisdiction to courts absent the determination
of legal rights.
[28]
Mr. Wall argues that a contractual right (or
something resembling a contractual right) exists between himself and the
Congregation. There was no such finding by the chambers judge. No basis has
been shown that Mr. Wall and the Congregation intended to create legal
relations. Unlike many other organizations, such as professional associations,
the Congregation does not have a written constitution, by-laws or rules that
would entitle members to have those agreements enforced in accordance with
their terms. In Zebroski v. Jehovah’s Witnesses (1988), 87 A.R. 229, at
paras. 22-25, the Court of Appeal of Alberta ruled that membership in a
similarly constituted congregation did not grant any contractual right in and
of itself. The appeal can therefore be distinguished from Hofer v. Hofer,
[1970] S.C.R. 958, at pp. 961 and 963, Senez v. Montreal Real Estate
Board, [1980] 2 S.C.R. 555, at pp. 566 and 568, and Lakeside
Colony, at p. 174. In all of these cases, the Court concluded that
the terms of these voluntary associations were contractually binding.
[29]
Moreover, mere membership in a religious
organization, where no civil or property right is formally granted by virtue of
membership, should remain outside the scope of the Lakeside Colony criteria.
Otherwise, it would be devoid of its meaning and purpose. In fact, members of a
congregation may not think of themselves as entering into a legally enforceable
contract by merely adhering to a religious organization, since “[a] religious
contract is based on norms that are often faith-based and deeply held”: R.
Moon, “Bruker v. Marcovitz: Divorce and the Marriage of Law and
Religion” (2008), 42 S.C.L.R. (2d) 37, at p. 45. Where one party alleges
that a contract exists, they would have to show that there was an intention to
form contractual relations. While this may be more difficult to show in the
religious context, the general principles of contract law would apply.
[30]
Before the chambers judge, Mr. Wall also argued
his rights are at stake because the Judicial Committee’s decision damaged his
economic interests in interfering with his client base. On this point, I would
again part ways with the courts below. Mr. Wall had no property right in
maintaining his client base. As Justice Wakeling held in dissent in the court
below, Mr. Wall does not have a right to the business of the members of the
Congregation: Court of Appeal reasons, at para. 139. For an illustration of
this, see Mott-Trille v. Steed, [1998] O.J. No. 3583 (C.J. (Gen. Div.)),
at paras. 14 and 45, rev’d on other grounds, 1999 CanLII 2618 (Ont. C.A.).
[31]
Had Mr. Wall been able to show that he suffered
some detriment or prejudice to his legal rights arising from the Congregation’s
membership decision, he could have sought redress under appropriate private law
remedies. This is not to say that the Congregation’s actions had no impact on
Mr. Wall; I accept his testimony that it did. Rather, the point is that in the
circumstances of this case, the negative impact does not give rise to an
actionable claim. As such there is no basis for the courts to intervene in the
Congregation’s decision-making process; in other words, the matters in issue
fall outside the courts’ jurisdiction.
C.
Justiciability
[32]
This appeal may be allowed for the reasons given
above. However, I also offer some supplementary comments on justiciability,
given that it was an issue raised by the parties and dealt with at the Court of
Appeal. In addition to questions of jurisdiction, justiciability limits the
extent to which courts may engage with decisions by voluntary associations even
when the intervention is sought only on the basis of procedural fairness.
Justiciability relates to the subject matter of a dispute. The general question
is this: Is the issue one that is appropriate for a court to decide?
[33]
Lorne M. Sossin defines justiciability as
a set of judge-made rules,
norms and principles delineating the scope of judicial intervention in social,
political and economic life. In short, if a subject-matter is held to be
suitable for judicial determination, it is said to be justiciable; if a
subject-matter is held not to be suitable for judicial determination, it is
said to be non-justiciable.
(Boundaries of Judicial
Review: The Law of Justiciability in Canada (2nd ed. 2012) at p. 7)
Put more simply,
“[j]usticiability is about deciding whether to decide a matter in the courts”: ibid.,
at p. 1.
[34]
There is no single set of rules delineating the
scope of justiciability. Indeed, justiciability depends to some degree on
context, and the proper approach to determining justiciability must be
flexible. The court should ask whether it has the institutional capacity and
legitimacy to adjudicate the matter: see Sossin, at p. 294. In determining
this, courts should consider “that the matter before the court would be an
economical and efficient investment of judicial resources to resolve, that
there is a sufficient factual and evidentiary basis for the claim, that there
would be an adequate adversarial presentation of the parties’ positions and
that no other administrative or political body has been given prior
jurisdiction of the matter by statute” (ibid.).
[35]
By way of example, the courts may not have the
legitimacy to assist in resolving a dispute about the greatest hockey player of
all time, about a bridge player who is left out of his regular weekly game
night, or about a cousin who thinks she should have been invited to a wedding:
Court of Appeal reasons, at paras. 82-84, per Wakeling J.A.
[36]
This Court has considered the relevance of
religion to the question of justiciability. In Bruker v. Marcovitz,
2007 SCC 54, [2007] 3 S.C.R. 607, at para. 41, Justice Abella stated: “The fact
that a dispute has a religious aspect does not by itself make it
non-justiciable.” That being said, courts should not decide matters of
religious dogma. As this Court noted in Syndicat Northcrest v. Amselem,
2004 SCC 47, [2004] 2 S.C.R. 551, at para. 50, “Secular judicial determinations
of theological or religious disputes, or of contentious matters of religious
doctrine, unjustifiably entangle the court in the affairs of religion.” The
courts have neither legitimacy nor institutional capacity to deal with such
issues, and have repeatedly declined to consider them: see Demiris v.
Hellenic Community of Vancouver, 2000 BCSC 733, at para. 33 (CanLII); Amselem,
at paras. 49-51.
[37]
In Lakeside Colony, this Court held (at
p. 175 (emphasis added)):
In
deciding the membership or residence status of the defendants, the court must
determine whether they have been validly expelled from the colony. It is not
incumbent on the court to review the merits of the decision to expel. It
is, however, called upon to determine whether the purported expulsion was
carried out according to the applicable rules, with regard to the principles of
natural justice, and without mala fides. This standard goes back at
least to this statement by Stirling J. in Baird v. Wells (1890), 44 Ch.
D. 661, at p. 670:
The
only questions which this Court can entertain are: first, whether the rules of
the club have been observed; secondly, whether anything has been done contrary
to natural justice; and, thirdly, whether the decision complained of has been
come to bona fide.
The foregoing passage
makes clear that the courts will not consider the merits of a religious tenet;
such matters are not justiciable.
[38]
In addition, sometimes even the procedural rules
of a particular religious group may involve the interpretation of religious
doctrine. For instance, the Organized to Do Jehovah’s Will handbook
(2005) outlines the procedure to be followed in cases of serious wrongdoing:
“After taking the steps outlined at Matthew 18:15, 16, some individual brothers
or sisters may report to the elders cases of unresolved serious wrongdoing” (p.
151). The courts lack the legitimacy and institutional capacity to determine
whether the steps outlined in Matthew have been followed. These types of
procedural issues are also not justiciable. That being said, courts may still
review procedural rules where they are based on a contract between two parties,
even where the contract is meant to give effect to doctrinal religious
principles: Marcovitz, at para. 47. But here, Mr. Wall has not shown
that his legal rights were at stake.
[39]
Justiciability was raised in another way. Both
the Congregation and Mr. Wall argued that their freedom of religion and freedom
of association should inform this Court’s decision. The dissenting justice in
the Court of Appeal made comments on this basis and suggested that religious
matters were not justiciable due in part to the protection of freedom of
religion in s. 2 (a) of the Canadian Charter of Rights and Freedoms .
As this Court held in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R.
573, at p. 603, the Charter does not apply to private litigation.
Section 32 specifies that the Charter applies to the legislative,
executive and administrative branches of government: ibid., at pp.
603-4. The Charter does not directly apply to this dispute as no state
action is being challenged, although the Charter may inform the
development of the common law: ibid., at p. 603. In the end, religious
groups are free to determine their own membership and rules; courts will not
intervene in such matters save where it is necessary to resolve an underlying
legal dispute.
V.
Disposition
[40]
I would allow the appeal and quash the
originating application for judicial review filed by Mr. Wall. As the
appellants requested that no costs be awarded, I award none.
Appeal
allowed.
Solicitors
for the appellants: W. Glen How & Associates, Georgetown, Ontario.
Solicitors
for the respondent: McCarthy Tétrault, Vancouver.
Solicitor
for the intervener the Canadian Council of Christian Charities: Canadian
Council of Christian Charities, Elmira, Ontario.
Solicitor
for the intervener the Association for Reformed Political Action Canada: Association
for Reformed Political Action Canada, Ottawa.
Solicitors
for the intervener the Canadian Constitution Foundation: Osler, Hoskin
& Harcourt, Toronto.
Solicitors
for the interveners the Evangelical Fellowship of Canada and the Catholic Civil
Rights League: Vincent Dagenais Gibson, Ottawa.
Solicitor
for the intervener the Christian Legal Fellowship: Christian Legal
Fellowship, London, Ontario.
Solicitor
for the intervener the World Sikh Organization of Canada: World Sikh
Organization of Canada, Newmarket, Ontario.
Solicitors
for the interveners the Seventh‑day Adventist Church in Canada and the Church
of Jesus Christ of Latter‑day Saints in Canada: Miller Thomson,
Calgary.
Solicitor
for the intervener the Justice Centre for Constitutional Freedoms: Justice
Centre for Constitutional Freedoms, Calgary.
Solicitors
for the intervener the British Columbia Civil Liberties Association: Blake,
Cassels & Graydon, Vancouver.
Solicitors for the
intervener the Canadian Muslim Lawyers Association: Abrahams, Toronto.