{"id":27668,"date":"2018-06-01T09:44:54","date_gmt":"2018-06-01T13:44:54","guid":{"rendered":"https:\/\/www.cccc.org\/news_blogs\/?p=27668"},"modified":"2021-10-04T13:23:21","modified_gmt":"2021-10-04T17:23:21","slug":"busseys-commentary-on-wall-decision-recognizing-the-freedom-of-religious-communities-to-make-decisions-on-membership-internal-rules","status":"publish","type":"post","link":"https:\/\/www.cccc.org\/news_blogs\/intersection\/2018\/06\/01\/busseys-commentary-on-wall-decision-recognizing-the-freedom-of-religious-communities-to-make-decisions-on-membership-internal-rules\/","title":{"rendered":"Bussey’s Commentary on Wall Decision Recognizing The Freedom of Religious Communities To Make Decisions on Membership & Internal Rules"},"content":{"rendered":"
This entry is part 8 of 8 in the series Wall v. JWs<\/a><\/div><\/div><\/div>

https:\/\/www.facebook.com\/lawandreligionCanada\/videos\/2080415168838007\/<\/p>\n

Brief Facts:<\/strong><\/p>\n

Mr. Wall was found by his church to have violated their teachings and was disfellowshipped for not being sufficiently repentant. His loss of membership meant his former co-congregants would no longer do business with him as a real estate agent. His business suffered to the point of bankruptcy.  He took his church to court and asked that the church\u2019s decision be overturned because it was not properly made \u2013 in legal jargon, that is called \u201cprocedural fairness.\u201d Immediately, the church took the position that courts have no right to interfere with membership decisions and religious beliefs. The Supreme Court agreed.<\/p>\n

Decision:<\/strong><\/p>\n

Justice Malcolm Rowe wrote the decision in clear and unambiguous language: these types of cases are of no concern of the court. Judicial review is limited to public decision makers, which the church is not. The church was not operating as a public authority. He also pointed out that procedural fairness can only apply if there is a legal right at issue, such as a contract. Finally, Rowe made it clear that when it comes to church issues \u2013 whether procedural or theological \u2013 that is not the bailiwick of a civil court.<\/p>\n

\"\"<\/p>\n

Key Quotes:<\/strong><\/p>\n

\u201cJudicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.\u201d (Para. 14)<\/p>\n

\u201cThus, by its nature, a private Act is not a law of general application and its effect can be quite limited\u2026. For instance, The United Church of Canada Act \u2026 gives effect to an agreement regarding the transfer of property rights (from the Methodist, Congregationalist and certain Presbyterian churches) upon the creation of the United Church of Canada; it is not a grant of statutory authority.\u201d (Para. 18)<\/p>\n

\u201cIn my view, a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision maker\u2019s exercise of power. 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.\u201d (Para. 20)<\/p>\n

\u201cThus it does not follow that \u2018public\u2019 decisions of a private body \u2014 in the sense that they have some broad import \u2014 will be reviewable. The relevant inquiry is whether the legality of state decision making is at issue.  The present case raises no issues about the rule of law. The Congregation has no constating private Act and the Congregation in no way is exercising state authority.\u201d  (Paras. 21-22)<\/p>\n

\u201cIndeed, there is no free standing right to procedural fairness with respect to decisions taken by voluntary associations. Jurisdiction cannot be established on the sole basis that there is an alleged breach of natural justice or that the complainant has exhausted the organization\u2019s internal processes. Jurisdiction depends on the presence of a legal right which a party seeks to have vindicated. Only where this is so can the courts consider an association\u2019s adherence to its own procedures and (in certain circumstances) the fairness of those procedures.\u201d (Para. 24)<\/p>\n

\u201cMr. Wall had no property right in maintaining his client base. As Justice Wakeling held in dissent in the court below, Mr. Wall does not have a right to the business of the members of the Congregation.\u201d (Para. 30)<\/p>\n

\"\"

Credit: Barry W. Bussey<\/p><\/div>\n

\u201cIn addition to questions of jurisdiction, justiciability limits the extent to which courts may engage with decisions by voluntary associations even when the intervention is sought only on the basis of procedural fairness. Justiciability relates to the subject matter of a dispute. The general question is this: Is the issue one that is appropriate for a court to decide?\u201d (Para. 32)<\/p>\n

\u201cThere is no single set of rules delineating the scope of justiciability. Indeed, justiciability depends to some degree on context, and the proper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter.\u201d (Para. 34)<\/p>\n

\u201cBy 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.\u201d (Para. 35)<\/p>\n

\u201cAs this Court held \u2026 the Charter does not apply to private litigation. Section 32 specifies that the Charter applies to the legislative, executive and administrative branches of government\u2026. The Charter does not directly apply to this dispute as no state action is being challenged, although the Charter may inform the development of the common law\u2026. In the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.\u201d (Para. 39)<\/p>\n

\"\"

David Gnam, counsel for Jehovah’s Witnesses Barry W. Bussey, counsel for CCCC<\/p><\/div>\n

Commentary<\/strong><\/p>\n

This decision has laid to rest the idea that just because a religious body is incorporated through a \u201cPrivate Act\u201d of a provincial or federal legislature it thereby has statutory authority to act as if it were government. Justice Rowe was very clear. Such Acts are limited, and they have not passed on to the entity legislative authority. This is a crucial finding as there have been many cases over the years that have made the suggestion that incorporation through a private act confers state authority. Now we know that such reasoning is not valid law. A church is not a state actor.<\/p>\n

Because a church is not a state actor, its decisions cannot be presumed to be reviewable by the courts. A court, as Rowe made clear, can only review a public body or intervene where there is a legal right between the disputing parties, such as a contractual right. No such right existed here. The church was not a state actor and there was no other legal right between the parties that the courts should be concerned about.<\/p>\n

Another interesting distinction that Justice Rowe made was on the issue of what is \u201cpublic.\u201d Under administrative law, \u201cpublic\u201d refers to the government and its actions; in a generic sense, \u201cpublic\u201d may also be used to mean a broad segment of the population. This is an important issue for religious communities because there is a view that anytime a religious community gets involved in the \u201cpublic,\u201d such as running schools or universities, then it must be considered as a public actor subject to the Charter. Of course, such entities do have to follow government regulations if they are licensed by the government, but to suggest that they are, in fact, government actors is taking it a step too far.<\/p>\n

\"\"<\/p>\n

This has relevance for the Trinity Western University Case. Will the Court say that TWU is a \u201cstate actor\u201d because it runs a university? Will it conclude that while TWU is not \u201cdirectly\u201d subject to the Charter it might be \u201cindirectly\u201d because of the Law Societies\u2019 regulation of law schools? We wait with great anticipation for the TWU decision which could come as early as next week.<\/p>\n

Finally, the court has made it clear that when it comes to voluntary organizations such as churches, there is no automatic entitlement to go to court and argue that the organization\u2019s decisions were unfair. For a court to review a decision of an organization there must be an underlying legal right that supports that claim, such as a contract. Where no such right exists, a voluntary organization is free to make decision as it sees fit, without having to worry about a judicial review from the civil courts. This gives voluntary organizations a lot of breathing space.<\/p>\n

Justice Rowe used the phrase \u201cinstitutional capacity and legitimacy\u201d for good reason. Courts are not equipped or qualified to settle internal religious disputes. Nor do they have the time.<\/p>\n

As Rowe said, \u201cIn the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.\u201d<\/p>\n

This is a great decision for the religious and voluntary community in Canada.<\/p>\n

Read the decision here: <\/span>Jehovah\u2019s Witnesses v. Randy Wall<\/a><\/p>\n

CCCC Factum in the Wall case.<\/a><\/p>\n

Intersection Moments video of January 2018 discussing the case<\/a><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

This entry is part 8 of 8 in the series Wall v. JWs<\/a><\/div><\/div><\/div>

https:\/\/www.facebook.com\/lawandreligionCanada\/videos\/2080415168838007\/ Brief Facts: Mr. Wall was found by his church to have violated their teachings and was disfellowshipped for not being sufficiently repentant. His loss of membership meant his former co-congregants would no longer do business with him as a real estate agent. His business suffered to the point of… More<\/a><\/p>\n","protected":false},"author":8,"featured_media":26534,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ts_fic_featured_image_caption":"","footnotes":""},"categories":[137],"tags":[],"series":[347],"class_list":["post-27668","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized","series-wall-v-jws"],"_links":{"self":[{"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/posts\/27668","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/comments?post=27668"}],"version-history":[{"count":0,"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/posts\/27668\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/media\/26534"}],"wp:attachment":[{"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/media?parent=27668"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/categories?post=27668"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/tags?post=27668"},{"taxonomy":"series","embeddable":true,"href":"https:\/\/www.cccc.org\/news_blogs\/wp-json\/wp\/v2\/series?post=27668"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}