June 28, 2018

Court has no say in religious congregation’s internal decisions

The Supreme Court of Canada has ruled that the courts do not have jurisdiction to review decisions handed down by a religious congregation unless there is a sufficiently public character to them. In doing so, it overturned earlier rulings by the Court of Queen's Bench in Alberta and the province’s Court of Appeal.

The takeaway from the Supreme Court's ruling in Highwood Congregation v. Wall is that the courts cannot hear an application for judicial review of decisions made by private religious organizations

In Highwood Congregation v. Wall, the plaintiff, Randy Wall, had been a member of the Highwood congregation of Jehovah Witnesses since 1980.  In 2009, he was disfellowshipped – an unforgiving term to describe being excluded from the congregation – because of sinful behaviour on his part.  The congregational judicial committee found him to be insufficiently repentant. An appeal committee, as well as the Watch Tower Bible and Tract Society of Canada, confirmed the decision.

Wall later filed an originating application for judicial review requesting that these decisions be reviewed. He argued that he had been denied his rights to procedural fairness and natural justice.

Are private religious matters private in nature?

Before getting to the merits of the case, the Alberta Court of the Queen's Bench addressed the matter of jurisdiction. It ruled that it could indeed hear this case and the Court of Appeal of Alberta upheld that ruling. Before the Supreme Court, the congregation asserted that private religious matters are private in nature and do not amount to public decision-making, and therefore the courts cannot intervene in them and perform oversight.

The Supreme Court had to decide whether there are any circumstances in which the courts can assert jurisdiction to review decisions made by a religious organization that raise questions of procedural fairness and natural justice. It gave three reasons for overruling the decisions by the lower courts.

First, the Supreme Court held that judicial review is only available as a remedy when a ''public decision-maker'' hands down a decision. According to the top court, the ''purpose of judicial review is to ensure the legality of state decision-making.'' So state authority must be publicly exercised for judicial review to be available as a means of oversight. The question then was whether State decision-making w as involved in Wall’s disfellowship. The Supreme Court found that the Congregation, as a private religious organization, was not exercising any State authority when it came to its decision about Mr. Wall. It is a private matter, even though the decision may have an impact on the public.

Second, membership to a religious organization is not a legal right in and of itself. The Supreme Court states that ''there is no free-standing right to procedural fairness with respect to decisions made by voluntary organizations.'' The mere fact that procedural fairness and natural justice are raised as concerns is not enough to give the courts jurisdiction to review decisions made by religious organizations about membership, in the absence of any direct impact on property or civil rights. Even Wall’s claims that exclusion from the congregation had a negative impact on his work as a real-estate broker were deemed insufficient to give the courts jurisdiction.

Courts could not intervene in such matters unless required to ''resolve an underlying legal dispute"

Finally, the court considered the appropriateness of courts deciding on justiciability of legal issues over which a court can exercise its judicial authority. It also considered whether the courts have the ''institutional capacity and legitimacy to adjudicate the matter.'' Referring to past case law, it held that they did not have that capacity to deal with such religious issues. It further explained that ''religious groups are free to determine their own membership'' and that the courts could not intervene in such matters unless required to ''resolve an underlying legal dispute.''

The takeaway from the Supreme Court's ruling in Highwood Congregation v. Wall is that the courts cannot hear an application for judicial review of decisions made by private religious organizations because there is no exercise of state authority, they are not determinative of a legal right, and therefore are not justiciable. In coming to this decision, the Supreme Court reaffirmed the right of private associations — more specifically religious organizations — to render decisions that are not subject to judicial oversight. Otherwise, in our view, that would invite recourses to judicial review in a large number of private decisions, thereby hindering an organization’s ability to exercise control over its existence.

→ Making judicial review available to contest such decisions would open the floodgates and allow the courts to control every aspect of a private organization’s (or person’s) decision-making. That, effectively, goes against the purpose of judicial review, which remains at its core an extraordinary recourse that exists to oversee the exercise of state or state-like decision-making.