A VICTORY FOR CHURCH AUTONOMY
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by Jeffrey A.L. Kriwetz
f someone disagrees with a church body’s decision about something relating to the church’s doctrines and internal rules, can that person sue the church and seek relief from the court?
In a ruling released on May 21, 2021, the Supreme Court of Canada (SCC), has stated that the answer to that question is usually no. Although we Christians should be pleased with this decision, we should not think that it will necessarily put an end to similar challenges to the church in the future. The SCC still left the door open for the courts to intervene on a case-by-case basis where the circumstances warrant it. The SCC considered this issue previously in 2018 in the case of Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses. In that case, the SCC denied a request for judicial review by a member of a congregation who had been “disfellowshipped” after being found by an internal judicial committee of the organization to have engaged in behaviour contrary to the beliefs of the organization. The SCC stated that for the court to have any jurisdiction, a plaintiff would have to have an underlying enforceable legal right, such as a contract. Although the 2018 SCC decision seemed to be quite clear about the issue, the Court of Appeal for Ontario created some confusion in 2020 when it released its decision in Aga v. Ethiopian Orthodox Tewahedo Church of Canada. Briefly, the issue in Aga also involved the expulsion of members of a congregation. The Congregation moved for an order to have the claim dismissed summarily on the basis of the reasoning in Wall that there was no enforceable contract and were initially successful. The appeal court, however, stated that the Congregation’s constitution and by-laws relating to congregational membership could create a contract between the members and the Congregation. As such, the appeal court set aside the initial ruling and stated that a trial was required to determine the issue. The SCC has now overturned the ruling by the Court of Appeal for Ontario. In reaching its decision, the SCC made the following noteworthy points: • Voluntary associations (which include churches) will often have rules, constitutions and/or by-laws and may have a “governing” body to adopt and apply the rules. “These are practical measures by which to pursue shared goals. But, they do not in and of themselves give rise to contractual relations among individuals who join.” People who join such groups “do not enter into enforceable legal obligations
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THE CANADIAN LUTHERAN May/June 2021
just because they have joined a group with rules that members are expected to follow.” • Where there is no contract or other legal obligation, there is no right to sue. • It has long since been established that the court will only intervene in decisions made by voluntary associations “where a legal right is affected.” • “Thus, while purely theological issues are not justiciable, where a legal right is at issue, courts may need to consider questions that have a religious aspect in vindicating the legal right.” An example cited by the court is the need to consider whether there was adherence to a church’s internal rules when adjudicating a dispute over church property. • There is no free-standing right to procedural fairness with respect to decisions made by voluntary associations and the fact that a member is denied procedural fairness by the voluntary association does not, in and of itself, give the court a basis to intervene. • The formation of a legally-binding contract requires several things, including whether, from an objective point of view, the parties intended to create legal relations. Such an objective intention “may be ‘more difficult to show in the religious context’”, but each case must be decided on its own facts. In this case, there was no contract. • In conclusion the SCC stated: “Courts must have jurisdiction to give effect to legal rights– including legal rights held by members of religious associations and impermissibly affected in the operation of such associations…. However, courts should not be too quick to characterize religious commitments as legally binding in the first place…” While this decision is indeed a positive one in terms of generally affirming that churches are free to control their own processes and affairs, given the world in which we live, some will undoubtedly continue to attempt to find ways to challenge churches by trying to characterize the facts in a given case as creating a contractual or other legal right that require the court’s intervention.
Jeffrey A.L. Kriwetz (jkriwetz@garfinkle.com) is a partner in Garfinkle Biderman LLP Barristers and Solicitors and a member of Lutheran Church–Canada’s Commission on Adjudication. Please note that the views expressed in this article are those of the writer and have been provided for information purposes only. Nothing in this article should be relied on as specific legal advice in any particular case. For such advice, please contact the writer directly.
