On April 13, 2017 the Supreme Court of Canada granted, to the Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses and the Highwood Congregation of Jehovah’s Witnesses, leave to appeal the Alberta Court of Appeal’s decision on the availability of judicial review over their disfellowshipping of Mr. Randy Wall.

As assessed by my colleague Adam Aptowitzer in one of our earlier newsletters, the appeal court’s decision is of interest to “other Church and religious organizations that must discipline their members and now must worry that the Courts will reach in and review those decisions.” He stressed the importance that “decisions to discipline members be taken with utmost regard for the traditional concept of procedural fairness and a consultation with a lawyer that can advise them of these issues.”

Let’s revisit the facts. Mr. Wall is a real estate agent whose episodes of drunkenness (including a consequent instance of verbal abuse of his wife)—or rather, his insufficient repentance for these episodes (as deemed by the elders of the Highwood Congregation of Jehovah’s Witnesses)—brought about his disfellowshipping from the congregation. Disfellowshipping, in this case, involved Mr. Wall not only not being admitted to the congregation’s services, but also being officially shunned by other members. Wall’s shunning further impacted his relations with family members, and also, he alleged, his business prospects.

The Alberta Court of Appeal majority decision ruled that the courts had jurisdiction to review the Congregation’s Appeal Committee’s decision, and that the assessment of any economic loss incurred by Wall due to the disfellowshipping could be made by on the eventual application for judicial review.

The Highwood Congregation of Jehovah’s Witnesses appealed to the Supreme Court of Canada (SCC). On the SCC website, the case summary[1] prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) points to the issues to be argued:

Charter of Rights and Freedoms – Religious freedom – Freedom of Association – Courts – Jurisdiction – Judicial review – How do the fundamental freedoms of religion and association protect membership decisions of religious communities and other voluntary associations from state and judicial interference – What are the boundaries between what is and is not justiciable with regard to membership and other disputes between members of voluntary associations – Whether the public law remedy of judicial review applies to membership decisions made by voluntary associations such as religious communities?

The granting of leave to appeal by the SCC is supported by the invoking of the Charter of Rights and Freedoms—the raising of a constitutional question. However, it also seems warranted given the public importance of the legal issues raised in this case—an essential basis of SCC involvement. In particular, the availability of the public law remedy of judicial review to a private actor such as Mr. Wall is a matter of serious relevance to private organizations. Properly of the realm of administrative law, judicial review is a tool with which the courts can hold to account government agencies, boards, commissions, etc., which wield delegated executive power , but it has also been granted against private bodies in certain cases.

In the common law tradition, the court is loath to intervene in the internal decision-making of private organizations, especially when they follow their own constitution and bylaws. However, among other reasons, a court may claim jurisdiction where a breach of the rules of natural justice is alleged, or where the organization’s internal appeal process has been exhausted. The majority decision of the Alberta Court of Appeal found for Mr. Wall on both these bases. Another of Mr. Wall’s allegations, of consequent economic loss, could then be considered during the eventual judicial review.

The ABCA minority opinion was against the availability of judicial review in this case under Alberta law, stated that the private organization’s expulsion of a member did not raise a justiciable issue, and argued that a court cannot force members of the Congregation to bring their real estate matters to Mr. Wall—any economic loss he might prove does not stem from anything potentially subject to the Court’s power.

This case should be of interest to all private organizations, but it takes on special importance with the layering in of the Congregation’s invoking of Charter rights of freedom of religion and association. Parties interested in potentially intervening in this case are invited to contact us if they have something to add to the argument.