Skip to main content

From religious groups to political parties, Canada’s voluntary associations have won a major victory at the Supreme Court of Canada, which ruled on Thursday that judges have no business reviewing their decisions.

The case before the court involved a question of religious membership. Randy Wall of Calgary was expelled from a Jehovah’s Witnesses congregation over two incidents of intoxication, including one in which he was allegedly verbally abusive to his wife. He sought “judicial review” in the courts, which is a second look by a judge at whether the procedures used to expel him were fair.

The court’s 9-0 ruling rejecting judicial review of Mr. Wall’s expulsion went well beyond religious groups, or the question of membership. It said judicial review is available only where state authority is involved – as in a landlord and tenant tribunal, or a law society. (Individuals may still sue voluntary organizations over alleged violations of a contract, or of their civil or property rights, or over other wrongful acts.)

Story continues below advertisement

“By way of example, the courts may not have the legitimacy to assist in resolving a dispute about the greatest hockey player of all time, about a bridge player who is left out of his regular weekly game night, or about a cousin who thinks she should have been invited to a wedding,” Justice Malcolm Rowe wrote, drawing these examples from a lower-court judge’s dissent in the case.

The decision ends decades of conflicting rulings by lower courts in which, for instance, soccer associations have found their decisions on the eligibility of players in a championship game overturned on the basis that an important public interest was at stake. The confusion among the lower courts was illustrated in Mr. Wall’s case, where two levels of court had ruled he had a right to judicial review.

Related: Retired Supreme Court judges object to 50-year embargo on documents: ‘Too long for any useful purpose’

Read more: Supreme Court of Canada pulled files years before embargo deal was struck

The case attracted a dozen intervenors, including Muslim, Christian and Sikh groups that urged the court to respect religious decision-making.

“The message in this case is if you don’t like the decision of the religious group, start your own; if you don’t like the decision of the political party, start your own,” Gerald Chipeur, a Calgary lawyer who represented the Seventh‑day Adventist Church and the Church of Jesus Christ of Latter‑day Saints, said.

Mr. Chipeur has represented a variety of voluntary associations in judicial review cases. “It’s very significant for every single private organization, because most do not have significant resources sitting out there in the bank,” he said. “A challenge by someone could bring that organization to bankruptcy. In some cases, the organization feels intimidated, so it gives in to a bully.”

Story continues below advertisement

Courts should not decide matters of religious dogma.

— Supreme Court Justice Malcolm Rowe

But Michael Feder, a Vancouver lawyer representing Mr. Wall, said the decision gives wide latitude to religious and other groups to make decisions that affect people’s lives.

“It means that no matter how profound the impact of the decision, no matter how unfair the procedures followed. . . they’re not ordinarily going to have recourse to the courts,” he said in an interview.

David Gnam, a lawyer for the Jehovah’s Witnesses congregation, said his client is “overjoyed with the result. They’re very happy their membership and other decisions can not be reviewed by a court.”

The Highwood Congregation of Jehovah’s Witnesses in Calgary, which has about 100 members, has no bylaws or property, no salaried clergy and is not incorporated. Its members are baptized and agree to a code of conduct.

Elders of the organization expelled Mr. Wall four years ago, ruling that he had not repented for his wrongdoing. He said he had been under stress because the group had expelled his 15-year-old daughter and he had felt pressure to evict her from the family home. (The Jehovah’s Witnesses say they do not require shunning in families.)

After he exhausted his appeals within the religious group, he went to court, arguing that he was not given a fair chance to make his case. A realtor, he also said the expulsion harmed his civil and property rights, as he lost business afterward. Two judges of the Alberta Court of Appeal said courts can interfere in the decisions of a self-governing organization when its internal processes are alleged to be unfair. But Justice Thomas Wakeling dissented, citing a 1921 speech by U.S. Supreme Court justice Benjamin Cardozo: A judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” He said religious associations have the constitutional right to pick their own members.

Story continues below advertisement

The Supreme Court did not go that far. But it did say the courts had no authority to hear any lawsuit Mr. Wall might bring over the alleged loss of business; he does not have a right to the business of its members, Justice Rowe wrote.

Report an error Editorial code of conduct
Comments

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • All comments will be reviewed by one or more moderators before being posted to the site. This should only take a few moments.
  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed. Commenters who repeatedly violate community guidelines may be suspended, causing them to temporarily lose their ability to engage with comments.

Read our community guidelines here

Discussion loading ...

Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.
Cannabis pro newsletter