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Civil Litigation

Courts steer clear of religious matters

A Supreme Court of Canada decision shows that courts are reluctant to get involved in religious matters, says Toronto senior litigation lawyer Jeffrey Silver

In its 9-0 ruling, the nation’s top court ruled that the Alberta Court of Queen’s Bench had no jurisdiction to review the decision of a Jehovah’s Witness congregation to “shun” one of its members due to allegations of drunkenness and verbal abuse, overturning in the process a ruling by the province’s appeal court. 

“The main takeaway is that courts really don’t want to get involved in religious matters,” says Silver, principal of Jeffrey C. Silver Barrister.

“The decision states that the ecclesiastical issues raised before it were not justiciable and that courts should not settle issues of religious dogma or consider the merits of religious tenets,” he tells AdvocateDaily.com.

The case began with the 2014 “disfellowship” of a long-time member of a voluntary Alberta congregation of Jehovah’s Witnesses. The punishment dented the man’s income due to his reliance on community members for his work as a real estate agent, and he challenged the ruling all the way to the top of the group’s Canadian structure, emerging unsuccessful.   

The man then turned to the courts, seeking judicial review on the grounds that his procedural fairness rights were breached when religious elders failed to detail the allegations against him at the hearing.

The province’s Superior Court ruled it had jurisdiction to hear the man’s complaint and was backed up on appeal, but the Supreme Court reversed the ruling, finding that judicial review of the decisions of voluntary associations is limited for three reasons.

“First, judicial review is limited to public decision makers, which the Judicial Committee [of the congregation] is not. Second, there is no free-standing right to have such decisions reviewed on the basis of procedural fairness,” wrote Supreme Court Justice Malcolm Rowe for the unanimous panel. “Third, even where review is available, the courts will consider only those issues that are justiciable. Issues of theology are not justiciable.”

Explaining the concept of justiciability, Rowe wrote that courts must ask themselves whether it has the institutional capacity and legitimacy to adjudicate.

“By 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,” he added.

“Some matters are just not justiciable," says Silver. "At the end of the day, it comes down to common sense. If your son wasn’t picked for the school baseball team, it’s not a matter for the courts. Even procedural rules of a particular religious group may involve the interpretation of religious doctrine, and as such are also not justiciable.”

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