National Post (Latest Edition)

So take note:

- Colby Cosh National Post ccosh@nationalpo­

there is no general right, or at least none on which a court can act, to expect ‘natural justice’ from a private organizati­on, society, or club that kicks your arse out. Again, I think this is something most of us instinctiv­ely understand.

The Supreme Court of Canada eluded a quagmire on Thursday. It’s not always terrific at doing this, and the Canadian public ought to be grateful. In the summer of 2015, the Alberta Court of Appeal heard the matter of Randy Wall, a Calgary realtor who had recently been “disfellows­hipped” by his Jehovah’s Witnesses congregati­on after admitting to a couple occasions of drunkennes­s before a panel of elders. For Witnesses, this penalty — which can be reversed if the guilty party displays repentance — involves a harsh and rigorously enforced form of social shunning. It’s not very nice, and would perhaps not be to the taste of most of us.

From a purely legal standpoint, however, Wall’s main concern seems to have been the possibilit­y of losing the real-estate business of his fellow congregant­s. This gave him the idea (filing the original court documents on his own, without legal counsel) that, since an economic interest was at stake, he could sue his congregati­on. This raised the immediate question of whether he could do such a thing, and on what grounds.

The possibilit­y will, no doubt, strike most of you as counterint­uitive. A church, like any other private group, has a broad right to decide on its membership. It is hard to know what the fundamenta­l freedom of associatio­n guaranteed to us all in the Charter might mean if it does not imply that.

But issues of church membership sometimes do come before the courts under certain circumstan­ces. The case law was complicate­d enough to persuade a chambers judge that Wall’s disfellows­hipping could be reviewed by a court. (That judge, dismissing freedom of associatio­n breezily in favour of an emotional “reality,” told Wall: “I think you’ve got civil rights written all over this thing, my friend.”) The annoyed congregati­on turned to the Alberta Court of Appeal, and the three-judge panel at that level, quite surprising­ly, agreed with the chambers judge.

In defence of Alberta jurisprude­nce, it should be observed here that only two of the judges decided that the shunned Mr. Wall could have a church decision judicially reviewed on the general grounds of “natural justice.” A third, Justice Thomas Wakeling, filed a dissenting opinion that more or less boils down to “WHOA.” He raised the spectre of a court being asked to decide whether Wayne Gretzky or Gordie Howe was the greatest hockey player, to force a bridge club to keep playing with a particular fourth, or to decide whether a relative has to be invited to a wedding.

Justice Wakeling explained that church decisions can be reviewed when they involve a church’s exercise of statutory or other government powers


— which would make them agents of the state at one remove, and thus engage the Charter of Rights. Church rulings can also be subject to scrutiny when a contract or a legitimate property right is at stake, and a court needs to decide whether a private organizati­on has met its end of a bargain procedural­ly. But Wall, Wakeling insisted, is just a realtor who has lost clients for a social reason. The congregati­on he was trying to sue is not even legally incorporat­ed, owns no property, and doesn’t have written bylaws.

As a non-lawyer, I found Wakeling’s dissent much more detailed, careful, historical­ly informed, and frankly sane than the majority decision in Highwood Congregati­on vs. Wall. As a non-lawyer, my opinion on such a question also doesn’t really mean boo to a goose. But religious denominati­ons from every corner of the Earth rushed to intervene on behalf of the Highwood Congregati­on in the Supreme Court hearing, and the SCC ruling that resulted does confirm my impression. It even does so a little roughly. Grasping provincial appeal courts by the collar when necessary and giving them a good shake is, after all, a major reason for the Supreme Court to exist.

It is a 9-0 decision — given at the end of the career of a Chief Justice sometimes said to have a pathologic­al appetite for consensus — which, ironically, validates the possible importance of a dissent like Wakeling’s. Wakeling’s examples of non-justiciabi­lity — Gretzky vs. Gordie, the bridge club — are quoted approvingl­y by the higher court. Its express view is that the majority of the Alberta panel was simply confused by the case law. The Alberta judges leaned heavily on English and pre-Charter Canadian cases, and failed to study them closely enough to see that justiciabl­e underlying interests were involved.

So take note: there is no general right, or at least none on which a court can act, to expect “natural justice” from a private organizati­on, society, or club that kicks your arse out. Again, I think this is something most of us instinctiv­ely understand. (Although, in strict fairness to the intrepid Mr. Wall, the Supreme Court of Canada had never explicitly affirmed it.) The involvemen­t of a religion was what attracted notice, and legal firepower, to the Highwood Congregati­on case, but religion may not even be the most important element. None of us would want disputes from every playground and sports bar in the land to lead to immediate lawyeringu­p.

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