Canada and reviewability of membership decisions of religious bodies: Highwood

The Highwood Congregation of Jehovah’s Witnesses is a voluntary religious association. A member must live according to accepted standards of conduct and morality; and 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, Mr Randy Wall was disfellowshipped after he had engaged in what was regarded as sinful behaviour and was considered to be insufficiently repentant – a decision confirmed by an Appeal Committee. He sought judicial review of that decision; and a majority of the Alberta Court of Appeal concluded that the courts had jurisdiction to consider the merits of his application.

In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall 2018 SCC 26b, the Supreme Court of Canada reversed the Alberta Court of Appeal.

The Court held that review of the decisions of voluntary associations, including religious groups, on the basis of procedural fairness was limited for three reasons.

  • Judicial review was limited to public decision-makers: the Judicial Committee of the Jehovah’s Witnesses was not such a body. Not all decisions were amenable to a superior court’s supervisory jurisdiction: judicial review was only available where there was an exercise of state authority and where that exercise was of a sufficiently public character [14]. The present case raised no issues about the rule of law and the Congregation was in no way exercising state authority [22].
  • Absent an underlying legal right, there was no free-standing right to procedural fairness with respect to decisions taken by voluntary associations. Courts might only interfere to address procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights were at stake and the claim was founded on a valid cause of action, for example, contract, tort or restitution. Jurisdiction could not be established on the sole basis that there was an alleged breach of natural justice or that the complainant had exhausted the organisation’s internal processes [24]: it was not enough that a matter be of importance in some abstract sense. There was no evidence that Mr Wall and the Congregation had intended to create legal relations. There was no contractual right at issue and the Congregation did not have a written constitution, by-laws or rules to be enforced. The argument that being disfellowshipped would have a negative impact on Mr Wall’s client base as a realtor did not give rise to an actionable claim. The matters in dispute fell outside the courts’ jurisdiction.
  • Even where review was available, the courts would consider only those issues that were justiciable – which the ecclesiastical issues raised by Mr Wall were not. There was no single set of rules delineating the scope of justiciability; the court should ask whether it had the institutional capacity and legitimacy to adjudicate the matter. Where the procedural rules of a particular group might involve the interpretation of religious doctrine, as in the present case, the courts had neither the legitimacy nor the institutional capacity to deal with contentious doctrinal matters.

Rowe J noted that in Shergill v Khaira [2014] UKSC 33 the UK Supreme Court had found that the voluntary associations at issue were governed by contract. However,

“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” [26].

Finally, he noted that Wakeling JA had suggested in his dissent in the Alberta Court of Appeal that religious matters were not justiciable, in part because of the protection of freedom of religion in s. 2 (a) of the Canadian Charter of Rights and Freedoms. In any event, however, the Charter did not apply to private litigation: s.32 specified that it applied only to the legislative, executive and administrative branches of government. Therefore:

“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 … 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” [39].

Appeal allowed.

Cite this article as: Frank Cranmer, "Canada and reviewability of membership decisions of religious bodies: Highwood" in Law & Religion UK, 7 June 2018, https://lawandreligionuk.com/2018/06/07/canada-and-reviewability-of-membership-decisions-of-religious-bodies-highwood/

2 thoughts on “Canada and reviewability of membership decisions of religious bodies: Highwood

  1. Thank you for your article. Please note McLachlin, CJ did not write the decision; it was Justice Rowe, for the unanimous court.

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