SCC Says Judges Have No Business Reviewing Decisions Of Voluntary Associations

The recent Supreme Court of Canada decision in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall1 holds that judges have no business second-guessing decisions made by private voluntary associations through judicial review. The decision also has implications for the availability of judicial review generally. As such, any litigant considering judicial review would be well advised to first verify that the decision-maker and dispute at issue falls within the guidance set out by the Supreme Court in Wall.

Facts

In Wall, the respondent (a real estate agent) was disassociated from a religious association due to inappropriate behaviour (he was insufficiently repentant for two instances of drunkenness). Many of Wall's clients were members of the congregation, who were obliged to shun him following his "disfellowship". Wall's real estate business suffered as a result. He sought judicial review of the decision, arguing that his procedural fairness was violated by the committee who made the decision.

Both the Alberta Court of Queen's Bench and Alberta Court of Appeal found that courts had the jurisdiction to review the committee's decision. The Supreme Court disagreed, and held that judicial review was not available.

Judicial Review Not Appropriate For Wall

The Supreme Court held that Mr. Wall's issues were not amenable to judicial review and quashed his application. A unanimous Court found that the decision was not reviewable for three reasons:

the committee that disassociated Wall was not a public decision maker, but was instead comprised of private decision makers;2 there is no free-standing right to procedural fairness by private associations; 3 and the decision was not justiciable (i.e. that decisions about theology should not be decided by the courts).4 Judicial Review Requires Public Law Issues

In reaching its conclusions, the Supreme Court provided general guidance on the supervisory role of the courts. The Supreme Court stated that the purpose of judicial review is to ensure the legality of state decision making.5 Judicial review primarily concerns the relationship between the administrative state and the courts. Private parties cannot seek judicial review to resolve disputes that arise between them, and instead, such claims must be based on a valid cause of action (such as breach of contract).6

Not all decisions are therefore amenable to judicial review. Judicial review is only available where there is an exercise of...