Alberta appeal court rules judges can overturn ‘unfair’ church edicts after man shunned by Jehovah’s Witnesses
Courts can overturn religious edicts when churches act unfairly, according to the Alberta Court of Appeal, which has allowed a Calgary real estate agent to challenge his shunning, or “disfellowship,” from a community of Jehovah’s Witnesses.
But the court’s decision was split, 2-1, as the dissenting judge decided the church is less like a public company and more like a private “bridge club,” which may choose whomever it pleases as a member. That means the case may now be appealed to the Supreme Court, which last addressed this issue 25 years ago when it sided with a man expelled from a Hutterite colony.
The case was brought by Randy Wall, a Jehovah’s Witness from 1980 until his expulsion in 2014, who claims the case against him was procedurally unfair.
He argued before a lower court judge that, because his civil and property rights were affected by the edict, the court could hear his application. The judge agreed, and the church’s appeal of that ruling has now failed, meaning his case will proceed.
The new ruling in his favour will be relevant to other religious groups, which often deal with controversial expulsions of members or ministers. The United Church of Canada, for example, is seeking to defrock Greta Vosper because she is an atheist. And many Catholics are not in communion with their Church after, for example, divorce and secular remarriage. (Notice this report does not mention any cases involving Catholics using the secular courts to undo Catholic teaching. Let's hope no one gets the bright idea he or she can use secular courts to badger a diocese to change canon law.)
But the idea of appealing religious edicts to a secular court is troublesome, and courts have been reluctant to intervene. Since the 1992 Supreme Court decision, they have done so only if the aggrieved party has exhausted all internal processes, or if those processes are unfair.
Courts have intervened against the United Church, for example, over ministers who were unfairly disciplined.
And in the 1992 case, over a man’s expulsion from a Hutterite colony and his refusal to return communal property, the Supreme Court of Canada ruled that members of religious groups must be given notice of the cause for their expulsion.
“It is insufficient merely to give notice that the conduct of a member is to be considered at a meeting,” the decision reads. “The member who is to be expelled must also be given an opportunity to respond to the allegations made against him.” (Catholics can, if need be, appeal to Rome.)
In his dissent, Justice Thomas Wakeling decided Wall “does not have a right to belong to the Highwood Congregation if its members do not want to associate with him.”
He found the congregation to be a private actor, with no statutory foundation or bylaws. It “makes no decisions that have any consequences for members of the public,” and so its decisions should not be subject to judicial review.