Canada: The Courts Erect A Wall

Last Updated: June 27 2018
Article by Gerald D. Chipeur QC and Jonathan Martin

I. Introduction

In a decision released on May 31, 2018, the Supreme Court of Canada ("Court") addressed the question of how high the wall between church and court should extend. Like the wall between church and state, the answer was that, in most cases, the wall should be unclimbable.

II. Lakeside Colony v. Hofer

In a 1992 Supreme Court of Canada case, a member of a Hutterian colony successfully convinced the Court that judges should have jurisdiction to review the religious expulsion decision of the colony. The Court found that in expelling a member from the land where he lived and earned a living, the colony had to ensure that procedural fairness and the colony's internal procedures had been properly followed. Despite the presence of a clear property law issue, the Court's willingness to treat essentially religious questions as justiciable has been interpreted by some judges as expanding the scope of judicial review.

III. Highwood Congregation v. Wall

Since then, a number of decisions have tested the limits of how far courts may go in reviewing the actions of private decision-makers. Churches, sports clubs, sports leagues, social clubs, private schools and other private associations have had to live with the possibility that their decisions could potentially be judicially reviewed if a court decided it had a sufficient impact on those affected or was sufficiently public in nature. The Court, in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, has now shut the door on that theory. Justice Malcolm Rowe, writing for a unanimous Court, stated in unequivocal terms that judicial review is not available in connection with the decisions of private associations.

Randy Wall was disfellowshipped from the Highwood Congregation of Jehovah's Witnesses for drunkenness and verbal abuse of his wife. His business as a real estate agent suffered considerably as a result. A Court of Queen's Bench of Alberta justice found that Mr. Wall's financial losses and other hardships suffered as a result of being disfellowshipped were sufficient to engage the jurisdiction of the courts. The majority of the Court of Appeal of Alberta agreed and found that a free-standing right to judicial review exists to challenge any decision of a private association, for conformity with procedural fairness, so long as internal remedies have been exhausted. Justice Wakeling, in dissent, found that the membership decision of a church is outside the bounds of judicial review and not justiciable. The Supreme Court of Canada agreed with Justice Wakeling.

In his reasons for judgment, Justice Rowe identified two lines of cases that should not be followed to the extent the cases impose judicial review on private actors. In a statement that could have bearing on how the Trinity Western University appeals to the Courts in Ontario and British Columbia are ultimately decided, he made plain that mere incorporation through a private act, or, presumably, some other state license to operate, does not make the entity an extension of the state. He then explained that while the decisions of state actors may not be reviewable if their actions are not sufficiently public in nature, the opposite does not hold true. Private decision-makers are not subject to judicial review, even where their decisions have a public bearing: "simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making."1

Justice Rowe also declared that, even if asserted through a statement of claim, there is no free-standing right to procedural fairness from private associations. To avoid a motion to strike, a plaintiff will need to show that some kind of property or civil right was breached. That right may be found in contract, but the court will not imply the existence of a contract from the mere existence of an association with internal rules and duties. A Plaintiff will have to prove the existence of all of the necessary elements for the formation of a contract: offer, acceptance, consideration, and a clear intention to be bound by enforceable legal obligations. That was not found to exist in Mr. Wall's case. The Court concluded that Mr. Wall and the congregation had not contractually agreed that the congregation would provide Mr. Wall with clients in exchange for his involvement as a member.

IV. Implications For Private Associations

Because of Wall, private not-for-profit associations can rest easy knowing that even though a decision they make may have grave impacts on the lives of members, courts will not interfere unless there is a legal right that has been infringed. Private decision-making will now remain private.

Clubs and associations of all kinds will benefit from this clarity. A charity may choose to support one program and stop supporting another. A political group may adopt a platform that some members disagree with. A human rights advocacy group may take a position on an issue that upsets or affects many people. A sport or hobby league may decide to change how the game is played. A religious group may vote on a doctrinal point. All of these decisions can be made without a concern that they can be overturned in court because of procedural irregularities, the failure to consult or notify enough people, or because of perceived biases in the decision-makers. Unless there is a binding and enforceable contract that has been breached, the remedy for aggrieved members will be social or political, rather than legal.

Canadians are well served by the decision in Wall to allow social spaces for private groups. Democracies benefit from the existence of spaces where people can develop their own social orders and define themselves as formally or as informally as they please. Social spaces will allow interactions not guided by external legal norms, but by the dynamic and unique realities of each group. A multicultural, pluralistic society requires this. Unfortunately, without this clarity, the great expense of legal proceedings would, in some cases, represent an existential threat to many private associations. The mere threat of legal action could be used by bullies to impose their will on the group, greatly undermining the integrity of the social structure.

V. Timely Review of Association Rules

Those who wish to have their relationships contractually defined can still do so. This is perhaps a good time for organizations to review their structures and decide whether they wish to be contractual or social associations. The courts, however, may not invent contracts that do not exist. This benefits not just the association, but also the members. Think of the ramifications of courts enforcing membership as a contract. Could churches drag their members to court insisting they pay tithe? Could bridge clubs sue members for not bringing their fair share of cookies? The answer is no. If you want a contractual relationship, retain a lawyer and sign a contract.

VI. Not All Private Decision-Making Immune

Finally, it is important to note that the Court in Wall did not give associations and churches a blank cheque. The impact of Wall is to place a barrier around churches and private associations which limits how the courts can intervene. The barrier has passageways. Those passageways are the recognized property and legal rights of individuals. If there is a contract, it must be respected. Statutory duties have to be honoured. Other areas where the courts are welcome include negligence causing personal injury, defamation when disciplining or excluding members and breach of trust in handling donations.

Footnotes

1 Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para 20.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Gerald D. Chipeur QC
Jonathan Martin
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions