In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (“Wall”), the Supreme Court confronted conflicting jurisprudence in the lower courts about when, if ever, the internal decisions of a religious organization or other private voluntary association can be judicially reviewed for procedural fairness. The Court confirmed that judicial review is available only when there is a “public” decision at issue; that is, a decision made by a public actor pursuant to a statutory grant of authority. Absent some specific statutory scheme relevant to specific decisions, the decision-makers in religious organizations in the ordinary course are decidedly not public actors. Members aggrieved by their decisions may be able to seek recourse through ordinary private civil actions (such as breach of contract or tort) if the matter is justiciable. Otherwise, the Court will not intervene.
Background
Mr. Wall had been a member of the Highwood Jehovah’s Witness community in Alberta. The Judicial Committee of elders “disfellowshipped” him after occasions of public drunkenness and domestic violence. As a result, he was no longer permitted to interact with any Jehovah’s Witnesses in his community, except for his family. For Mr. Wall, a real estate agent whose client base was primarily other Jehovah’s Witnesses, this had a significant effect on his livelihood. Mr. Wall exhausted all of the internal mechanisms for reviewing membership decisions within the Jehovah’s Witness community, and when those failed, he turned to the courts.
Mr. Wall applied for judicial review of the decision to disfellowship him, arguing that this was available to him for two reasons: (1) he had exhausted all the internal remedies within his community; and (2) the decision had a significant impact on his property and civil rights. In the Courts below, the only question addressed was one of jurisdiction: could such a decision be judicially reviewed?
Both the Alberta Superior Court and the Alberta Court of Appeal found that they had jurisdiction to review Mr. Wall’s case on an application for Judicial Review.
At the Supreme Court of Canada, the case caught the attention of numerous intervenors, including the British Columbia Civil Liberties Association and organizations representing Sikhs, Muslims, the Seventh Day Adventists, Catholics and Evangelical Christians. At issue was the significant risk that the Courts would claim jurisdiction over the composition and internal decisions of religious communities and other private voluntary organizations such as sports teams, book clubs, soup kitchens, and private schools.
Supreme Court Decision
Writing for a unanimous court, Justice Rowe clarified the errors in the jurisprudence below and confirmed that, unless a private body is exercising a “statutory authority”, the court does not have jurisdiction to judicially review decisions of private organizations, even if those decisions can be said to have been made in a procedurally unfair manner. In coming to this conclusion, he pointed out several errors in the legal reasoning of previous cases.
“Public Dimension” does not mean “Public Law”
First, Justice Rowe noted that there had been a misunderstanding about the nature of the word “public” when determining whether a decision was a “pubic” one amenable to judicial review. The courts below, and particularly the Ontario Court of Appeal in Setia v. Appleby College, 2013 ONCA 753, had said that the analysis should focus on whether the decision in question had a significant enough “public dimension” to attract the attention of the courts. In that case, a student at a private school had sought judicial review of the school’s decision to expel him. The court in Setia declined to review the decision on the basis that the decision to expel one student was not of a sufficient “public dimension.”
According to Justice Rowe, that analysis was flawed from the beginning. The question was not whether a decision of a private organization was “public” in the generic sense of the word. The question was whether it was “public” in a “public law” sense, meaning that it “involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power” (para. 20). Justice Rowe reiterated: “judicial review is about the legality of state decision making.” That is, decision making pursuant to a statutory grant of authority.
An Incorporating Act Isn’t Necessarily a Statutory Grant of Authority
Second, Justice Rowe addressed the implication of a private association being incorporated by legislation He noted that there is a misconception that incorporation by an Act operates as a statutory grant of authority. Most often, it does not do so. Accordingly, mere incorporation by legislation does not turn a private organization into a public one, its decision-makers into public actors, or its decisions into statutory powers of decision amenable to administrative law review.
There is No Free Standing Right to Procedural Fairness
Third, Justice Rowe considered whether the Courts can review the decisions of voluntary associations for procedural fairness (i.e. to ensure the individual was provided with a fair opportunity to be heard by an impartial decision-maker). Justice Rowe made the important point that “there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations” (para. 24).
In order to make an argument based on a breach of procedural fairness, there must be an underlying legal right at stake, such as a property or contractual right. In such matters, the appropriate recourse is to bring a civil action.
Justice Rowe was clear that “mere membership in an organization” is not sufficient to give rise to a civil cause of action. There must be a civil or property right granted by virtue of membership. It is not enough to argue, as Mr. Wall did, that the Congregation’s actions had a negative impact on his economic interests.
Theology is not Justiciable
Finally, Justice Rowe considered the question of justiciability, or whether the subject matter of the dispute is one that it is appropriate for the courts to decide. While recognizing that “the fact that a dispute has a religious aspect does not, by itself, make it non-justiciable” Justice Rowe was clear that “courts should not decide matters of religious dogma” (para. 36). The Court reiterated that “secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion” and that “the courts have neither legitimacy nor institutional capacity to deal with such issues.” He also recognized that matters of procedure could involve the interpretation of religious doctrine, in which case they are similarly not appropriate for consideration by the Court. The Court did, however, recognize the ability of Courts to review procedural rules based on a contract between the parties, even where the contract is meant to give effect to religious doctrine.
As Justice Rowe concluded, “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” (para. 39).
Conclusion:
The Supreme Court of Canada’s decision in Wall has important implications for religious organizations, as well as other non-profit and private organizations. On the one hand, the Supreme Court of Canada has clarified that private organizations, even ones subject to incorporating legislation, are not public actors whose decisions can be challenged on judicial review, unless they are exercising a statutory grant of authority. In order to challenge those decisions, a party must have an underlying legal right.
Furthermore, the Wall decision confirms that courts have neither legitimacy nor institutional capacity to interpret, or intervene in, contentious matters of religious doctrine.