The Courts Erect a Wall

June 13, 2018 | Gerald D. Chipeur, 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.


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