Closing The Door On Judicial Review Of Private Entities: A Comment On Judicial Committee Of The Highwood Congregation Of Jehovah's Witnesses V Wall

We recently wrote about a case of the Divisional Court of Ontario, The Conservative Party of Canada v Trost, 2018 ONSC 2733, in which the Court held that judicial review was not available to review decisions made by private entities that are not exercising statutory authority. On May 31, 2018, the Supreme Court of Canada confirmed this conclusion in its decision in Judicial Committee of the Highwood Congregation of Jehovah's Witnesses v Wall, 2018 SCC 26. The Supreme Court held that, because a voluntary association is not exercising statutory authority, its decisions cannot be judicially reviewed. There is simply no state action which may be reviewed for legality.

Facts and Lower Court Holdings

Mr. Wall was a member of the Highwood Congregation (the "Congregation") of Jehovah's Witnesses in Calgary, Alberta. He worked as a realtor, and his clients were primarily other members of the Jehovah's Witnesses. In March 2014, Mr. Wall appeared before a committee of elders of the Congregation and was asked to repent for his sins, including instances of drunkenness relating to stresses caused by his daughter's disfellowship from the Congregation. The committee of elders concluded that Mr. Wall was insufficiently repentant, and in April 2014 Mr. Wall was disfellowshipped from the Congregation. His livelihood suffered.

Mr. Wall applied for judicial review of the Congregation's decision to disfellowship him. At first instance, and on appeal, the Court found that it had jurisdiction to hear the application for judicial review on the basis that courts may, where a breach of natural justice is alleged or a significant property or civil right is engaged, review decisions made by voluntary associations.

The Supreme Court's decision

The Supreme Court of Canada overturned the lower court decisions and held that the Congregation's decision could not be judicially reviewed. It gave three reasons for this, as follows.

Reason 1: Judicial Review Limited to Public Decision Makers

The Supreme Court noted that judicial review is a public law remedy, and "[t]he purpose of judicial review is to ensure the legality of state decision making" (at para 13). Judicial review is rooted in section 96 of the Constitution Act, 1867 and the rule of law. In defining the scope of judicial review, the Court stated, at paragraph 14:

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...