In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, the Supreme Court of Canada helpfully clarified that in order for a decision to be subject to judicial review, it must be a public decision by a state actor and, in so doing, held that a disfellowship decision by the Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses was not subject to judicial review.
Background
Mr. Wall was a member of the Highwood Congregation of Jehovah’s Witnesses, a voluntary unincorporated association which had no articles and no statutory foundation. Mr. Wall, who was subject to a disfellowship by its Judicial Committee for sinful behaviour and a failure to repent, applied for judicial review of this decision, claiming the Congregation's Judicial Committee breached the principles of natural justice, the duty of fairness, and negatively affected his work.
Both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal found that they had jurisdiction to determine the matter. Both courts based their analysis on their ability to intervene in decisions of voluntary organizations where property or civil rights are at stake. The Court of Appeal further held that even if these rights were not engaged, the court can intervene where internal dispute resolution processes have been exhausted.
SCC decision
The SCC found that there was no basis upon which the courts could intervene in the decision of the Congregation's Judicial Committee as it is a private actor, which is not subject to judicial review.
The court emphasized that the purpose of judicial review is to ensure the legality of state decision-making and that two requirements for it must be present: (1) an exercise of state authority and (2) a decision that is sufficiently public. The court noted that private decisions of a public body will not be subject to judicial review, and that a private body making a public decision is also not subject to judicial review.
The court clarified a line of cases flowing from the Ontario Court of Appeal's decision in Setia v Appleby College, 2013 ONCA 753, and emphasized that there is an important distinction between “public” in a generic sense, and “public” in a public law sense, noting that only the latter can be reviewable. A decision will be considered public where “it involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power.” The court emphasized that a matter is not public in the administrative law sense just because it affects the general public.
Applying this, the court found that as the Congregation is a private actor and was not exercising state authority, the matter was not subject to judicial review.
The court also held that there is no free-standing right to procedural fairness. Rather, this right must be first grounded in a legal right that the party is trying to vindicate. The court also distinguished the case of Lakeside Colony of Hutterian Brethren v Hofer, 1992 3 SCR 165, and clarified that what is required for a court to intervene is not merely an issue of sufficient importance, but a legal right of sufficient importance.
Here, the chambers judge had found there was no contractual relationship, as there were no constitution, written by-laws or rules under which to enforce an agreement. Mere membership in a religious organization was insufficient.
The court also held that while this decision may have affected Mr. Wall’s business, he did not have a legal right to these business interests and had not shown a legal right under which he would be entitled to procedural fairness.
Finally, in obiter, the court made a brief comment on justiciability – the question of whether a court has the institutional capacity and the legitimacy to adjudicate a matter.
The court emphasized that it should not decide matters of religious dogma or the merits of religious tenets. Procedural rules based on an interpretation of biblical verse are non-justiciable and that while both parties had tried to claim Charter protection, it did not apply as this was a private dispute and no state action was being challenged. Religious groups are free to determine their own membership and the courts will only intervene if there is an underlying legal dispute.
Takeaways
This decision helpfully clarifies when judicial review is available and that it must involve public action by state actors. It also clarifies that procedural fairness must be based on a legal right and that certain issues are non-justiciable. This decision is a welcome clarification to the law of judicial review and will hopefully lead to greater consistency in the future.
Christopher Wirth is a partner and Alana Spira an articling student with Keel Cottrelle LLP