A Former Member Sues His Church For Disfellowship

[Guest Nicole]

Mr. Wall was a member of the Highwood Congregation of Jehovah’s Witnesses, in Alberta, Canada.  He was dis-fellowshipped by a Judicial Committee of elders because he was not sufficiently repentant for two incidents of drunkenness, one of which included verbal abuse of his wife.  He was shunned by the congregation. As a real estate agent, he lost congregation members and other Jehovah’s Witnesses as clients. He appealed to internal church authorities for reconsideration but failed.  Then he decided to go to the regular law courts for compensation for his alleged mistreatment by the church. Justice Wilson of the Court of Queen’s Bench of Alberta ruled that the Court had jurisdiction to hear Mr. Wall’s application for judicial review. The Church lost its appeal at the Alberta Court of Appeal and has now appealed to the Supreme Court of Canada.

The Alberta Court of Appeal (ABCA) decision raises a number of questions that have to be resolved.  Generally speaking, courts have been loathed to get involved in church disputes. Courts have no expertise in dealing with theological matters that are often the underlying cause of why members of a church are asked (or told) to leave. Imagine a court discussing topics like the proper understanding of the doctrine of the Trinity; or the process of salvation. Such matters are not part of the law school curriculum. The point is, a court is incompetent in dealing with religious disputes.

The majority of the ABCA decided that the courts have jurisdiction over procedural matters – basically ensuring that the parties were treated fairly.  In law, we call it issues of “natural justice.”  That is to say, the law protects people in organisations to the extent that the organisations own internal rules of procedure were properly followed.  There is a reasonable argument to be made for that position.  However, a church is not a public body that should be subject to judicial review.

The ABCA was also of the view that a church could be sued for the economic loss a member incurred as a result of expulsion. This is new ground for Canadian law – new ground for any law of a western democracy.  Membership in a religious community is voluntary. No one is forced to stay. If a person is no longer willing to abide by the teachings then they are free to go and make their way elsewhere.  If that person limited his business to only those within the church community and subsequently finds that none of his former co-religionists will do business with him that is not the congregation’s responsibility. He took that risk himself when he so limited his business.

Religious communities have been immune from litigation of former members who were asked to leave. Membership in a religious community is privilege not a right. Allowing courts the jurisdiction to hear judicial review applications of such matters will entangle the court unnecessarily in the internal affairs of religion. If a court is granted the right to hear such a review it is then able to grant orders of relief against the religious community for making religious decisions about membership. The law has no business there.

The SCC is scheduled to hold its hearing on November 2, 2017. 

Case name:  Re:  Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (37273)  (Wall Case)

http://leidenlawblog.nl/articles/a-former-member-sues-his-church-for-disfellowship