In Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall (released on May 31, 2018), the Supreme Court of Canada draws important lines between (a) issues that are justiciable and those that are non-justiciable, and (b) memberships in purely voluntary organizations that confer no contractual or proprietary rights.
Randy Wall was a member of the Highwood Congregation of Jehovah's Witnesses (Congregation), an unincorporated religious organization of about 100 members based in Calgary. Wall had been a member for 34 years until he was "disfellowed" by the Congregation in 2014.
Wall committed sinful conduct under church doctrine. As a result, the judicial committee of the Congregation decided to disfellow him. As a disfellowed member, Wall could still attend Congregational meetings but, within the Congregation, could only speak to his immediate family and not about spiritual matters. Wall was a realtor, and many of his clients were members of the Congregation, business that he lost after he was disfellowed.
An appeal committee composed of three elders chosen from neighbouring congregations upheld the judicial committee's decision. No further appeal within the church was available to Wall.
Wall then brought an application for judicial review before the Alberta Court of Queen's Bench as an unrepresented litigant.
The chambers judge held that the court had jurisdiction to hear his application and found in his favour. A majority of the three-judge panel of the Court of Appeal upheld the decision in favour of Wall. However, the Supreme Court of Canada unanimously reversed the decisions of the Alberta courts.
Justiciability delimits the issues that courts may decide from those that should be left for resolution outside the judicial system.
In determining what issues a court should decide Justice Rowe, writing for the court, stated that:
· The proper approach is to be flexible.
· A court must ask itself whether it has the institutional capacity and legitimacy to adjudicate the matter, which includes assessing whether it is an efficient use of judicial resources for the court to resolve the matter.
To illustrate the distinction, Rowe J. adopted the examples of non-judiciable decisions developed by the dissenting judge, Wakeling J.A., in the Alberta Court of Appeal ruling: a debate about who is the greatest hockey player of all time (Gordie Howe or Wayne Gretzky); a bridge player's complaint about being dropped from his regular weekly game; a cousin's complaint about not being invited to a wedding. Each of these disputes is not justiciable.
Turning to the facts of the case, Justice Rowe affirmed a long line of authority holding that the merits of religious tenets are not justiciable. Courts have neither the legitimacy nor institutional capacity to deal with such issues. Religious groups are free to determine their own rules and membership. Courts will only intervene where it is necessary to resolve an underlying legal dispute.
(b) Limitations on the Ability of Courts to Review Decisions of Voluntary Associations
In its 1992 ruling in Lakeside Colony of Hutterian Brethren v. Hofer, the Supreme Court had held that a court could review the decision of a voluntary organization for procedural fairness and compliance with the organization's own rules, where the dispute involves a property or contractual right. However, in Highwood, the court found that there was no property, contractual or other legal right at issue between Wall and the Congregation. The Congregation did not have a written constitution, by-laws or rules that entitled members to enforce the documents in accordance with their terms. Mere membership in a religious or voluntary organization: (a) did not create: (i) any contractual rights in itself; or (ii) a free-standing right to procedural fairness with respect to decisions of the organization; or (b) should not enable a member to have a court review the organization's decision for procedural fairness unless, as in Lakeside Colony, membership results in the grant of civil or property rights.
Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice (procedural fairness) 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 then can the court consider an organization's adherence to its own procedures and, in some circumstances, the fairness of those procedures.
3. Key Observations
While Highland Congregation is a decision involving an unincorporated religious organization, subsequent courts will no doubt be asked to apply its rulings in analogous settings, such as to: voluntary associations that are not religious in nature; incorporated churches; charitable and other public-benefit corporations apart from churches; and member-benefit corporations.
While the court in Highwood Congregation had no reason to address these settings, several statements in the reasons of Justice Rowe are clearly meant to apply to voluntary associations generally. For instance, the non-availability of judicial review as a remedy to challenge the decisions of private organizations should apply to each type of private organization listed above, irrespective of its legal form.
The limits set on judicial intervention in the affairs of voluntary organizations were also cast in terms that extend beyond unincorporated churches. However, the court did not deal with a corporate association. Ordinarily, membership in a corporation without share capital gives rise to, as a minimum, voting rights and, outside the context of a public-benefit corporation, possibly rights to receive the remaining property on liquidation. Therefore, caution will need to be exercised before extending the non-interventionalist principle enunciated in Highwood to members of corporations (or unincorporated associations) who have voting or other rights of membership. Courts will continue to apply Lakeside Colony to disciplining (including expulsion of) members with voting or other rights.
Finally, disciplining (including expulsion of) members of non-share capital corporations will continue to be justiciable under corporate law. However, as a result of Highwood, unincorporated associations certainly have more autonomy to adopt their own rules and determine who may or may not be a member.