May 2018 Charity & NFP Law Update
On May 31, 2018, the Supreme Court of Canada (“SCC”) released its long-awaited decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall (“Wall”), which was heard on November 2, 2017 and concerns the courts’ jurisdiction to review the decision of the Highwood Congregation of Jehovah’s Witnesses (“Congregation”) to expel Mr. Wall from its membership. The Wall decision overturns the Alberta Court of Appeal’s September 8, 2016 decision, which was discussed in Church Law Bulletin No. 48. In that decision, the Alberta Court of Appeal had held that courts have jurisdiction to review decisions made by religious organizations regarding the discipline or expulsion of members where it is done in a manner that does not reflect principles of natural justice.
In overturning the Alberta Court of Appeal’s decision, the SCC held that the court’s jurisdiction to review decisions of religious groups and other voluntary associations on the basis of procedural fairness is limited because (i) judicial review is restricted to public decision makers where there is an exercise of state authority and where that exercise is of a sufficiently public character, (ii) where no underlying legal right is present, there is no independent right to procedural fairness, and (iii) where judicial review is available, courts should only consider issues that are justiciable. On this basis, the SCC quashed Mr. Wall’s originating application for judicial review, stating that “courts should not decide matters of religious dogma” and quoting the SCC in Syndicat Northcrest v Amselem that “[s]ecular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.”
Further commentary and analysis of this important SCC decision will follow in a future Church Law Bulletin.