Right and Wrong on the Scope of Judicial Review: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26

Sometimes courts reach the right results for the wrong reasons. The Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, an important case about the scope of judicial review of administrative action, is a good example. The outcome is surely the right one, but the way the Court arrived at its destination is liable to cause trouble in future cases.

Mr. Wall is a real estate agent in Calgary. He was a Jehovah’s Witness until 2014, when he was disfellowshipped by the Congregation. The sorry tale is recounted in detail by the Alberta Court of Appeal (2016 ABCA 255, at paras. 3-8). Given that many of Mr. Wall’s clients were fellow Witnesses, and that Witnesses are obliged to shun disfellowshipped members, his real estate business suffered badly. He sought judicial review. At first instance and on appeal (by majority) the Alberta courts held that they had jurisdiction to grant judicial review remedies against the Congregation. In a unanimous decision by Rowe J., the Supreme Court of Canada reversed.

I do not quibble with the result, for the reasons Rowe J. gave in obiter. The courts cannot adjudicate on alleged breaches of religious tenets (at para. 37):

In addition, sometimes even the procedural rules of a particular religious group may involve the interpretation of religious doctrine. For instance, the Organized to Do Jehovah’s Will handbook (2005) outlines the procedure to be followed in cases of serious wrongdoing: “After taking the steps outlined at Matthew 18:15, 16, some individual brothers or sisters may report to the elders cases of unresolved serious wrongdoing” (p. 151). The courts lack the legitimacy and institutional capacity to determine whether the steps outlined in Matthew have been followed. These types of procedural issues are also not justiciable (at para. 38).

Nor do I quibble with Rowe J.’s view that “there is no free standing right to procedural fairness with respect to decisions taken by voluntary associations” (at para. 24), the corollary of which is that in the absence of a distinct legal right sounding in tort, contract or property, the courts have no authority to intervene in the affairs of a religious organization, regardless of whether the originating process takes the form of an action or an application for judicial review.

Where I think Rowe J. went wrong was in his analysis of why the Congregation was not subject to the judicial review jurisdiction of the courts. He began in unobjectionable fashion: “Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character” (at para. 14). He also justly criticized two lines of cases holding voluntary associations to be subject to judicial review. One line of cases relying on “incorporation by Private act” was flawed because “a private Act is not a law of general application and its effect can be quite limited” (at para. 18). And another line of cases (one of which I mentioned here), was problematic because the courts used the term “public” in its generic sense rather than its legal sense: “Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term” (at para. 20).

So far so good. But the question that always arises is: what makes a decision “public”? I have always found the list of factors set about by Stratas J.A. in Air Canada v. Toronto Port Authority, [2013] 3 F.C.R. 605, to be extremely helpful. According to Rowe J., I was wrong to do so: “what Air Canada actually dealt with was the question of whether certain public entities were acting as a federal board, commission or tribunal such that the judicial review jurisdiction of the Federal Court was engaged” (at para. 21. The Ontario Divisional Court said something similar very recently in Trost v. Conservative Party of Canada, 2018 ONSC 2733, at para. 33).

It is instructive to look at what Stratas J.A. actually said in the Air Canada case. Before setting out the eight relevant factors, he commented:

In determining the public-private issue, all of the circumstances must be weighed…There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether or not any one factor or a combination of particular factors tips the balance and makes a matter “public” depends on the facts of the case and the overall impression registered upon the Court (at para. 60, my emphasis).

It is quite clear to me that Stratas J.A. intended to set out a list of factors designed to help courts determine which matters are “public” and thus subject as a matter of law to the courts’ judicial review jurisdiction and which matters are “private” and not within the purview of judicial review.

The difficulty with Rowe J.’s line of analysis in Wall is that by reinterpreting Air Canada as a case involving whether the federal courts had jurisdiction over a particular type of action taken by the Toronto Port Authority, he has deprived Canadian courts of a very useful set of factors which previously helped them to perform the difficult task of separating “public” from “private” matters. All Rowe J. has to offer, by way of contrast, is conclusory statements about the scope of judicial review:

…judicial review primarily concerns the relationship between the administrative state and the courts (at para. 13);

Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character (at para. 14);

Certiorari is only available where the decision-making power at issue has a sufficiently public character (at para. 15);

…judicial review is about the legality of state decision making (at para. 20;

The relevant inquiry is whether the legality of state decision making is at issue (at para. 21);

…the Congregation in no way is exercising state authority (at para. 22).

None of these formulations are wrong. But they are unhelpful, question-begging formulations. One is driven to ask: what is the state? This is precisely the question Stratas J.A. set out to answer in Air Canada. With the implements he provided now seemingly removed from the judicial toolbox, future courts will struggle to draw the line between “public” and “private” decision-making and identify those exercises of “state” authority that ought to be subject to judicial review remedies.

In short, it would have been better for Canadian administrative law in the long run had Rowe J. used the Air Canada factors to support his conclusion — and there is no doubt that they do — instead of giving Air Canada such a narrow interpretation.

This content has been updated on June 3, 2018 at 21:21.