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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Associations - Judicial Review Status

A consistent issue with associations is whether they are subject to judicial review (JR). This turns largely on whether the issue for which review is sought is 'public or private' in accordance with JR doctrine: Judicial Review - Public versus Private.

. Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall

In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall (SCC, 2018) the Supreme Court of Canada extensively canvassed that judicial review for procedural fairness is a public law remedy, in the context of a religious association:
IV. Analysis

[12] Courts are not strangers to the review of decision making on the basis of procedural fairness. However, the ability of courts to conduct such a review is subject to certain limits. These reasons address three ways in which the review on the basis of procedural fairness is limited. First, judicial review is reserved for state action. In this case, the Congregation’s Judicial Committee was not exercising statutory authority. Second, there is no free-standing right to procedural fairness. Courts may only interfere to address the procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights are at stake. Third, even where review is available, the courts will consider only those issues that are justiciable. Issues of theology are not justiciable.

A. The Availability of Judicial Review

[13] The purpose of judicial review is to ensure the legality of state decision making: see Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 24 and 26; Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at pp. 237-38; Knox v. Conservative Party of Canada, 2007 ABCA 295, 422 A.R. 29, at paras. 14-15. Judicial review is a public law concept that allows s. 96 courts to “engage in surveillance of lower tribunals” in order to ensure that these tribunals respect the rule of law: Knox, at para. 14; Constitution Act, 1867, s. 96. The state’s decisions can be reviewed on the basis of procedural fairness or on their substance. The parties in this appeal appropriately conceded that judicial review primarily concerns the relationship between the administrative state and the courts. Private parties cannot seek judicial review to solve disputes that may arise between them; rather, their claims must be founded on a valid cause of action, for example, contract, tort or restitution.

[14] Not all decisions are amenable to judicial review under a superior court’s supervisory jurisdiction. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character. Even public bodies make some decisions that are private in nature — such as renting premises and hiring staff — and such decisions are not subject to judicial review: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 52. In making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament”, but is rather exercising a private power (ibid.). Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.

[15] Further, while the private law remedies of declaration or injunction may be sought in an application for judicial review (see, for example, Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 2(2)(b); Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1)2; Judicial Review Act, R.S.P.E.I. 1988, c. J-3, ss. 2 and 3(3)), this does not make the reverse true. Public law remedies such as certiorari may not be granted in litigation relating to contractual or property rights between private parties: Knox, at para. 17. Certiorari is only available where the decision-making power at issue has a sufficiently public character: D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 1:2252.

[16] The Attorney General has a right to be heard on an originating application for judicial review, and must be served notice where an application has been filed: Alberta Rules of Court, Rules 3.15 and 3.17. Other originating applications have no such requirements: ibid., Rule 3.9. This suggests that judicial review is properly directed at public decision making.

[17] Although the public law remedy of judicial review is aimed at government decision makers, some Canadian courts, including the courts below, have continued to find that judicial review is available with respect to decisions by churches and other voluntary associations. These decisions can be grouped in two categories according to the arguments relied on in support of the availability of judicial review. Neither line of argument should be taken as authority for the broad proposition that private bodies are subject to judicial review. Both lines of cases fail to recognize that judicial review is about the legality of state decision making.

[18] The first line of cases relies on the misconception that incorporation by a private Act operates as a statutory grant of authority to churches so constituted: Lindenburger v. United Church of Canada (1985), 10 O.A.C. 191 (Div. Ct.), at para. 21; Davis v. United Church of Canada (1992), 1992 CanLII 7731 (ON SC), 8 O.R. (3d) 75 (Gen. Div.), at p. 78. The purpose of a private Act is to “confer special powers or benefits upon one or more persons or body of persons, or to exclude one or more persons or body of persons from the general application of the law”: Canada, Parliament, House of Commons, House of Commons Procedure and Practice (2nd ed. 2009), by A. O’Brien and M. Bosc, at p. 1177. Thus, by its nature, a private Act is not a law of general application and its effect can be quite limited. The federal Interpretation Act, R.S.C. 1985, c. I-21, s. 9, states that “[n]o provision in a private Act affects the rights of any person, except only as therein mentioned and referred to.” For instance, The United Church of Canada Act (1924), 14 & 15 Geo. 5, c. 100, 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.

[19] A second line of cases that allows for judicial review of the decisions of voluntary associations that are not incorporated by any Act (public or private) looks only at whether the association or the decision in question is sufficiently public in nature: Graff v. New Democratic Party, 2017 ONSC 3578, at para. 18 (CanLII); Erin Mills Soccer Club v. Ontario Soccer Assn., 2016 ONSC 7718, 15 Admin. L.R. (6th) 138, at para. 60; West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, 327 O.A.C. 29, at paras. 17-18. These cases find their basis in the Ontario Court of Appeal’s decision in Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481. The court in Setia found that judicial review was not available since the matter did not have a sufficient public dimension despite some indicators to the contrary (such as the existence of a private Act setting up the school) (para. 41).

[20] In my view, these cases do not make judicial review available for private bodies. Courts have questioned how a private Act — like that for the United Church of Canada — that does not confer statutory authority can attract judicial review: see Greaves v. United Church of God Canada, 2003 BCSC 1365, 27 C.C.E.L. (3d) 46, at para. 29; Setia, at para. 36. The problem with the cases that rely on Setia is that they hold that where a decision has a broad public impact, the decision is of a sufficient public character and is therefore reviewable: Graff, at para. 18; West Toronto United Football Club, at para. 24. These cases fail to distinguish between “public” in a generic sense and “public” in a public law sense. In 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’s 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.

[21] Part of the confusion seems to have arisen from the courts’ reliance on Air Canada to determine the “public” nature of the matter at hand. But, what Air Canada actually dealt with was the question of whether certain public entities were acting as a federal board, commission or tribunal such that the judicial review jurisdiction of the Federal Court was engaged. The proposition that private decisions of a public body will not be subject to judicial review does not make the inverse true. Thus it does not follow that “public” decisions of a private body — in the sense that they have some broad import — will be reviewable. The relevant inquiry is whether the legality of state decision making is at issue.


B. The Ability of Courts to Review Decisions of Voluntary Associations for Procedural Fairness

[24] Even if Mr. Wall had filed a standard action by way of statement of claim, his mere membership in a religious organization — where no civil or property right is granted by virtue of such membership — should remain free from court intervention. Indeed, 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’s 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’s adherence to its own procedures and (in certain circumstances) the fairness of those procedures.

[25] The majority in the Court of Appeal held that there was such a free-standing right to procedural fairness. However, the cases on which they relied on do not stand for such a proposition. Almost all of them were cases involving an underlying legal right, such as wrongful dismissal (McCaw v. United Church of Canada (1991), 1991 CanLII 7048 (ON CA), 4 O.R. (3d) 481 (C.A.); Pederson v. Fulton, 1994 CanLII 7483 (Ont. S.C. (Gen. Div.)), or a statutory cause of action (Lutz v. Faith Lutheran Church of Kelowna, 2009 BCSC 59). Another claim was dismissed on the basis that it was not justiciable as the dispute was ecclesiastical in nature: Hart v. Roman Catholic Episcopal Corp. of the Diocese of Kingston, 2011 ONCA 728, 285 O.A.C. 354.

[26] In addition, it is clear that the English jurisprudence cited by Mr. Wall similarly requires the presence of an underlying legal right. In Shergill v. Khaira, [2014] UKSC 33, [2015] A.C. 359, at paras. 46-48, and Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.), the English courts found that the voluntary associations at issue were governed by contract. I do not view Shergill as standing for the proposition that there is a free-standing right to procedural fairness as regards the decisions of religious or other voluntary organizations in the absence of an underlying legal right. Rather, in Shergill, requiring procedural fairness is simply a way of enforcing a contract (para. 48). Similarly, in Lee, Lord Denning held that “[t]he jurisdiction of a domestic tribunal, such as the committee of the Showmen’s Guild, must be founded on a contract, express or implied” (p. 1180).

[27] Mr. Wall argued before this Court that Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165, could be read as permitting courts to review the decisions of voluntary organizations for procedural fairness concerns where the issues raised were “sufficiently important”, even where no property or contractual right is in issue. This is a misreading of Lakeside Colony. What is required is that a legal right of sufficient importance — such as a property or contractual right — be at stake: see also Ukrainian Greek Orthodox Church of Canada v. Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, 1940 CanLII 59 (SCC), [1940] S.C.R. 586. It is not enough that a matter be of “sufficient importance” in some abstract sense. As Gonthier J. pointed out in Lakeside Colony, the legal right at issue was of a different nature depending on the perspective from which it was examined: from the colony’s standpoint the dispute involved a property right, while from the members’ standpoint the dispute was contractual in nature. Either way, the criterion of “sufficient importance” was never contemplated as a basis to give jurisdiction to courts absent the determination of legal rights.

[28] Mr. Wall argues that a contractual right (or something resembling a contractual right) exists between himself and the Congregation. There was no such finding by the chambers judge. No basis has been shown that Mr. Wall and the Congregation intended to create legal relations. Unlike many other organizations, such as professional associations, the Congregation does not have a written constitution, by-laws or rules that would entitle members to have those agreements enforced in accordance with their terms. In Zebroski v. Jehovah’s Witnesses (1988), 1988 ABCA 256 (CanLII), 87 A.R. 229, at paras. 22-25, the Court of Appeal of Alberta ruled that membership in a similarly constituted congregation did not grant any contractual right in and of itself. The appeal can therefore be distinguished from Hofer v. Hofer, 1970 CanLII 161 (SCC), [1970] S.C.R. 958, at pp. 961 and 963, Senez v. Montreal Real Estate Board, 1980 CanLII 222 (SCC), [1980] 2 S.C.R. 555, at pp. 566 and 568, and Lakeside Colony, at p. 174. In all of these cases, the Court concluded that the terms of these voluntary associations were contractually binding.

[29] Moreover, mere membership in a religious organization, where no civil or property right is formally granted by virtue of membership, should remain outside the scope of the Lakeside Colony criteria. Otherwise, it would be devoid of its meaning and purpose. In fact, members of a congregation may not think of themselves as entering into a legally enforceable contract by merely adhering to a religious organization, since “[a] religious contract is based on norms that are often faith-based and deeply held”: R. Moon, “Bruker v. Marcovitz: Divorce and the Marriage of Law and Religion” (2008), 42 S.C.L.R. (2d) 37, at p. 45. Where one party alleges that a contract exists, they would have to show that there was an intention to form contractual relations. While this may be more difficult to show in the religious context, the general principles of contract law would apply.

[30] Before the chambers judge, Mr. Wall also argued his rights are at stake because the Judicial Committee’s decision damaged his economic interests in interfering with his client base. On this point, I would again part ways with the courts below. Mr. 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: Court of Appeal reasons, at para. 139. For an illustration of this, see Mott-Trille v. Steed, [1998] O.J. No. 3583 (C.J. (Gen. Div.)), at paras. 14 and 45, rev’d on other grounds, 1999 CanLII 2618 (Ont. C.A.).

[31] Had Mr. Wall been able to show that he suffered some detriment or prejudice to his legal rights arising from the Congregation’s membership decision, he could have sought redress under appropriate private law remedies. This is not to say that the Congregation’s actions had no impact on Mr. Wall; I accept his testimony that it did. Rather, the point is that in the circumstances of this case, the negative impact does not give rise to an actionable claim. As such there is no basis for the courts to intervene in the Congregation’s decision-making process; in other words, the matters in issue fall outside the courts’ jurisdiction.


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Last modified: 30-10-22
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