Canada: Disfellowshipping - Reviewable by a Court

[Jack Ryan]

Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses, 2016 ABCA 255 (CanLII)

http://www.canlii.org/en/ab/abca/doc/2016/2016abca255/2016abca255.html?autocompleteStr=highwood congr&autocompletePos=1

In the Court of Appeal of Alberta

Citation: Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses, 2016 ABCA 255

 

Date: 20160908

Docket: 1501-0120-AC

Registry: Calgary

 

Between:

 

Randy Wall

 

Respondent

(Applicant)

 

- and -

 

Judicial Committee of the Highwood Congregation of Jehovah's Witnesses (Vaughn Lee - Chairman and Elders James Scott Lang and Joe Gurney) and the Highwood Congregation of Jehovah's Witnesses

 

Appellants

(Respondents)

 

_______________________________________________________

 

The Court:

The Honourable Madam Justice Marina Paperny

The Honourable Madam Justice Patricia Rowbotham

The Honourable Mr. Justice Thomas W. Wakeling

_______________________________________________________

 

 

Memorandum of Judgment of the Honourable Madam Justice Paperny

and the Honourable Madam Justice Rowbotham

 

Dissenting Memorandum of Judgment of the Honourable Mr. Justice Wakeling

 

Appeal from the Order by

The Honourable Mr. Justice Earl C. Wilson

Dated the 16th day of April, 2015

Filed on the 24th day of April, 2015

(Docket: 1401 10225)

 

_______________________________________________________

 

Memorandum of Judgment

_______________________________________________________

 

 

The Majority:

 

I.         Introduction

[1]               The respondent was expelled from the Highwood Congregation of Jehovah’s Witnesses. He filed an originating application for judicial review of that decision. A chambers judge concluded that the Court of Queen’s Bench had jurisdiction to hear the application. The Congregation (and its Judicial Committee and named Elders) appeal. The appellants also apply to strike parts of the respondent’s authorities and the respondent applies for permissions to adduce new evidence.

[Janice]

This was rather long so I didn't read all of it.  In the conclusion of the court, the case was dismissed and sent back to a lower court for review?  The allegations is that he was an alcoholic and verbally abusive to his wife and unrepentant.  It appears he blames his actions on the fact his 15 year old daughter was disfellowshipped and he was encouraged to put her out of the house?  I doubt a congregation would tell a father that.  By law he's still responsible for her.  If she's uncontrollable, usually the court system or authorities may need to get involved to assist in some type of counseling, etc.  If she disobeys the court, the authorities could take custody of her for an extended period of time.

[djsqueeze]

VI.      Analysis

A.        The Highwood Congregation Is Not Subject to Judicial Review

[71]           The Highwood Congregation is a group of people who associate together because they share common religious values. It is a private organization.[34]

[72]           The Highwood Congregation is like a bridge club whose members love bridge and meet on a regular basis to play the game and enjoy each other’s company. The decisions the bridge club makes – when and where to meet, the obligations of the host, the duration of a session, who may be invited as a guest when a regular is unavailable – are not enforceable promises[35] and have limited, if any, impact outside its small circle.

[73]           No case of which I am aware has ever provided a satisfactory explanation as to why a group like the Highwood Congregation that makes decisions that have no impact on those outside the group is subject to judicial review.[36]

[74]           The Highwood Congregation is not subject to judicial review.[37]

[75]           This ends the inquiry.[38]

2.         Civil Courts Should Decline To Adjudicate Most Membership Disputes of Religious Associations

[110]      For this reason, there is no definitive judgment from the Supreme Court of Canada opining on the constitutional status of religious association’s membership decisions.

[111]      Relying on basic constitutional principles,[67] I have concluded that, presumptively, religious associations – and more importantly, the constituent members – have the constitutional right to select their own members – those with whom they will worship. This decision to exclude a person from the group may be attributable to irreconcilable religious differences or perceived unacceptable forms of behaviour. One should not have to undertake such an intensely personal pursuit with those with whom they do not wish to associate. A religious association must be solely responsible for this class of decisions.

[112]      A civil court must decline to review membership decisions of a religious association. The decision of dispute resolution procedures religious entities themselves construct to resolve membership disputes should be respected.[68]

[113]      This is clearly the case for an unincorporated religious association. Religious freedom and associational values entitle the group to worship with only those they select as coreligionists. Other values, such as the enforcement of promises that constitute binding agreements, will seldom be at play. The likelihood is very low that the group’s members will have made promises that they intend to be enforceable in a civil court.[69]

[114]      Religious associations with the legal status attributable to an enactment that itself allows for enforcement of its terms by court order presents different questions. While the same religious freedom and associational values are at play, it may be difficult to conclude that the incorporated religious association has not made legally binding promises to its members to utilize a stipulated procedure before depriving a person of membership in the incorporated religious association.[70] But even if one decides that the promisors made promises that the promisees reasonably understood could be enforced in a civil court, consideration must be given to the effect s. 2(a) of the Charter has on the jurisdiction of a civil court to review the membership decisions of incorporated religious associations. A court’s jurisdiction to interfere may be abridged by the values on which s. 2(a) of the Charter is based.[71]

[115]      The presumption may not apply if a membership decision of a religious association adversely affects important civil or property rights.[72] I say “may” advisedly. The Supreme Court of Canada has not decided the effect s. 2(a) of the Charter has on the reviewability of a religious association’s membership decision

 

3.         The Highwood Congregation’s Decision To Expel Mr. Wall Is Not Reviewable by a Civil Court

[126]      The Highwood Congregation is a religious association. There is a presumption that the members of the Highwood Congregation are entitled to determine who will be members.

[127]      The possible exceptions relating to property or civil rights do not apply.

[128]      Mr. Wall does not seek judicial recognition of any identifiable property right.

[129]      And he has no civil right that the Highwood Congregation’s decision has impaired.

[130]      No statute or private agreement gives him an unqualified right to be a member of the Highwood Congregation.

[131]      The freedom to associate celebrated by the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights[102] and the Alberta Bill of Rights[103] does not bestow on anyone the right to be a member of a religious group, a book club or a service organization of his or her choice over the objection of other members. Members of groups like this cannot be compelled to associate with persons with whom they do not wish to worship, review books or serve their communities.[104]

[132]      The members of the Highwood Congregation have made it clear that they do not wish to associate with Mr. Wall for any purpose.

[133]      This Court has no jurisdiction to compel them to worship with Mr. Wall.[105]

[134]      Mr. Wall does not have a contract with the Highwood Congregation that entitles him to due process before the latter expels him.[106] The Highwood Congregation is not a legal entity.[107] It is a voluntary association. It cannot enter into contracts.

[135]      Mr. Wall has not sued the individual members of the Highwood Congregation and alleged that he has a contract with each of them and that they have breached these contracts.[108]

[136]      Mr. Wall states that he has lost half of his client base due to the Highwood Congregation’s decision to expel him and its members’ choice to shun him.[109]

[137]      The Highwood Congregation’s decision to expel him does not engage a civil right.

[138]      Mr. Wall is still entitled to act as a realtor. A person does not have to belong to the Highwood Congregation to be eligible for a real estate licence.

[139]      That Mr. Wall has lost half of his client base as a result of the Highwood Congregation’s decision to expel him and its members exercising their right to do business with whomever they wish is most unfortunate. But it is not justiciable.[110] Mr. Wall does not have a right to do business with members of the Highwood Congregation.

[140]      No doubt other realtors have faced similar business challenges. Divorce, changed corporate allegiances and family disputes may cause prospective clients to abandon business relationships that have existed for years.

[141]      Mr. Wall has not presented a justiciable issue.

VII.     Conclusion

[142]      I would allow the appeal. (The Highwood Congregation appealed their initial loss)

Interesting  that Mr. Wall brought charges based on the "fact" that he lost business because of his disfellowshipping, but it was never argued as to how much in terms of $$'s he lost. Put simply, his losses were never quantified for him to have made this assertion at/in law.