Supreme Court of Canada to review congregational expulsion: Highwood Congregation v Wall

In Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses 2016 ABCA 255 (CanLII), Mr Wall had sought judicial review of his expulsion from the Highwood Congregation. A chambers judge had concluded that the Court of Queen’s Bench had jurisdiction to hear the application and the Court of Appeal of Alberta (Paperny & Rowbotham JJ: Wakeling JA dissenting) upheld that ruling, concluding that

“… a court has jurisdiction to review the decision of a religious organization when a breach of the rules of natural justice is alleged … We note as well that the respondent appears to have exhausted all avenues of appeal within the church so jurisdiction could also be found on that basis” [22].

The case was remitted to the Court of Queen’s Bench to be heard by a judge other than the chambers judge, but on 13 April the Highwood Congregation was granted leave to appeal by the Supreme Court of Canada: see Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v Randy Wall, 2017 CanLII 20389 (SCC).

In a post on the case, Barry W Bussey, of the Canadian Council of Christian Charities (to whom I am obliged for flagging up the granting of leave), points out that the courts have been generally reluctant to get involved in church disputes involving doctrine; however, the majority of the Court of Appeal of Alberta decided that it had jurisdiction over procedural matters. He would argue, however, that “a church is not a public body that should be subject to judicial review”:

“Further, the ABCA was of the view that a church could be sued for economic loss of a member being expelled. This is new ground for Canadian law – new ground for any law of a western democracy. Membership in a religious community is voluntary. No one is forced to stay. If a person is no longer willing to abide by the teachings then they are free to go and make their way elsewhere. If that person limited his business to only those within the church community and subsequently finds that none of his former religionists will do business with him that is not the congregation’s responsibility. He took that risk himself when he so limited his business.

Religious communities have been immune from litigation of former members who were asked to leave. Membership in a religious community is a privilege, not a right. Allowing courts jurisdiction to hear judicial review applications of such matters is to entangle the court unnecessarily in the internal affairs of religion. If a court is granted the right to hear such a review it is then able to grant orders of relief against the religious community for making religious decisions about membership. The law has no business there” [emphasis added].

Comment

I am not sure that I entirely agree that this is “new ground for any law of a western democracy” – even if it is new ground for Canada. The key issue, surely, is what degree of interference is “necessary”.

As to the point about financial loss, it would appear from the case-law that, in Scotland at any rate, it is exactly that which may engage the power of review. In Brentnall v Free Presbyterian Church of Scotland 1986 SLT 470, for example, the  Revd John Brentnall argued that the FP Synod had exceeded its powers and had failed to observe the rules of natural justice when it suspended him and his colleague, the Revd Moshe Radcliffe, from the ministry sine die – in effect, depriving them permanently of their manses and stipends. The Second Division of the Inner House held that the Synod’s decision was null and void as contrary to natural justice and granted a decree of reduction: further details in Judicial review & church courts in the law of Scotland (1998) Denning Law Review.

On that occasion, their Lordships did not even begin to consider whether or not Mr Brentnall was “employed” by the Church. In Forbes v Eden (1865) 4 M 143, Lord Cowan had declared at p 163 that the courts would not review the actings of ecclesiastical judicatories unless “some civil wrong justifying a demand for redress, or some patrimonial injury entitling the party to claim damages … be alleged and instructed”. In Brentnall, therefore, the Second Division simply took it as a given that because Mr Brentnall had suffered a patrimonial injury as a result of a serious wrongdoing by the Church he must be entitled to reparation.

There is also the issue of adherence to the terms of the trust on which religious property is held. In General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515, Lord Halsbury LC pointed out that

“a Court of law has nothing to do with the soundness or unsoundness of a particular doctrine. Assuming there is nothing unlawful in the views held … a Court has simply to determine what was the original purpose of the trust” [p 613].

However, “soundness or unsoundness of a particular doctrine” was not the determining issue in the Free Church case; and a majority found in favour of the dissident members of the Church who had objected to the union with the United Presbyterians. Concluded Lord Halsbury:

“the so-called union is not a union of religious beliefs at all … I cannot trace the least evidence of either of them having abandoned their original views. It is not the case of two associated bodies of Christians in complete harmony as to their doctrine agreeing to share their funds, but two bodies each agreeing to keep their separate religious views where they differ–agreeing to make their formularies so elastic as to admit those who accept them according as their respective consciences will permit. Assuming as I do that there are differences of belief between them, these differences are not got rid of by their agreeing to say nothing about them…” [p 627].

For the full story see Christian doctrine and judicial review – the Free Church case revisited (2002) Ecc LJ.

For the UK more generally, in Shergill & Ors v Khaira & Ors [2014] UKSC 33 the Supreme Court unanimously allowed an appeal in a dispute about the trusteeship and governance of two gurdwaras used by members of the Sikh community and set out the circumstances in which the courts should be prepared to intervene:

“The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association: Dawkins v Antrobus [1879] 17 Ch D 615. Its role is more modest: it keeps the parties to their contract” [48: emphasis added].

I discussed the earlier litigation in Shergill in more detail here. The latest judgment, Shergill & Ors v Khaira & Ors [2017] EWHC 883 (Ch), has only recently been published.

So, in the United Kingdom, though the courts have been reluctant to entangle themselves in religious disputes involving doctrine they have by no means declared doctrinal issues totally off-limits, nor have they refused to look at issues of process where the rules of natural justice or a denomination’s own internal regulations may have been infringed. But whether – absent an employment relationship as in the case, for example, of a church organist or a chapel caretaker – that extends to lay members of a congregation as well as to ordained ministers and elders remains to be seen.

A final thought

As Barry Bussey points out, if an aggrieved church member who has been expelled

“limited his business to only those within the church community and subsequently finds that none of his former religionists will do business with him that is not the congregation’s responsibility. He took that risk himself when he so limited his business.”

Indeed so, if he was acting as an entirely free agent. But in a denomination where there is strong pressure to do business only within the denominational community, might the issue of coercion arise?

I await the outcome of the appeal in Wall with considerable interest.

Cite this article as: Frank Cranmer, "Supreme Court of Canada to review congregational expulsion: Highwood Congregation v Wall" in Law & Religion UK, 19 April 2017, http://www.lawandreligionuk.com/2017/04/19/supreme-court-of-canada-to-review-congregational-expulsion-highwood-congregation-v-wall/

5 thoughts on “Supreme Court of Canada to review congregational expulsion: Highwood Congregation v Wall

  1. Thanks for another great post, Frank. To pick up on your comment ‘But whether – absent an employment relationship as in the case, for example, of a church organist or a chapel caretaker – that extends to lay members of a congregation as well as to ordained ministers and elders remains to be seen’, is Wall then, as far as we know, the first case in any Western jurisdiction of a judgment’s being given in the case of a lay member’s being expelled from a religious organization? Thanks.

  2. Sorry, didn’t express my question very well: there are probably lots of judgments in different courts saying ‘we don’t have jurisdiction here’. What I meant was: is this the first case in which a Western court has said that it does have jurisdiction?

    I suppose, on further reflection, that it has happened before in state churches: Thompson v. Dibdin [1912] A.C. 533 (H.L.) would, I suppose, count as such. But has it happened before in connection with a non-established religious organization? Thanks!

    • I’m not aware of one, which is why Wall is so interesting. There have been three fairly recent cases in the ECtHR – Obst, Schüth and Siebenhaar – but they all involved lay employees rather than rank-and-file members.

      But the lay/clerical distinction is particularly interesting in relation to denominations such as the Brethren that don’t have a separate cadre of ordained clergy and in denominations such as the Exclusives and the JWs which practise “shunning” of those who have been disfellowshipped.

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