*Update:* Since this post was written, the Supreme Court of Canada issued its decision in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32. In short, the court upheld the law societies’ right to regulate accreditation of law schools, in the context of competing LGTBQ and religious rights.
Plus: We’re Not Done With Dunsmuir
During the playoffs, ice hockey is the delight of everyone, to paraphrase Brown J in Canada (Attorney General) v. Igloo Vikski Inc.,  2 SCR 80. But who is the greatest hockey player of all time? The Hockey Writers weighed in on this important question only a few weeks ago (The 5 Greatest Hockey Players Ever, May 6, 2018.) Who won’t weigh in on the issue? The Supreme Court of Canada, as stated out in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 35.
The heart of Highwood is the court’s authority to review decisions by voluntary associations. The case involves a religious association of about one hundred members. The group is a voluntary association, is not incorporated, has no constitution or by-laws, owns no property, and none of its members receive any form of salary or pecuniary benefit. Its leadership consisted of a group of volunteer elders. To become a member, an individual had to satisfy the elders that they satisfied certain spiritual requirements and undergo baptism. If a member failed to adhere to the association’s scriptural standards, they had to meet with the elders, who would encourage repentance. Continued deviation from the association’s spiritual standards would result in the member having to appear before a committee of three elders. While not an adversarial process, if the elders determined the member had not genuinely repented the member would be “disfellowshipped”.
This case originated as a judicial review proceeding initiated by a member with 34 years’ standing who had been disfellowshipped by the elders of the association in 2014. One consequence of expulsion was a compulsion for other members of the association – including family – to shun the disfellowshipped member. It also meant that a large number of the clients of the member’s business, who were also adherents of the same religious principles, shunned the member, resulting in a loss of business.
The Alberta Court of Queen’s Bench had an initial hearing to determine whether it had jurisdiction to hear the originating application. The chambers judge determined that the court had jurisdiction to hear the matter, despite the association’s objection that a secular court had no authority to review a religious tribunal’s decision. The court accepted the member’s position that his property and civil rights were affected by the disfellowship, which allowed the court to review the decision. The chambers judge also questioned whether the elders’ decision adhered to the requirements of natural justice.
A majority of the Alberta Court of Appeal upheld the decision by the chambers judge: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255. It held that a court has jurisdiction to review the decision of a religious organization when a party alleges that there had been a breach of the rules of natural justice. The majority also found that it was reasonable for the chambers judge to conclude the economic impact of the elders’ decision on the member allowed the court to review the decision.
In dissent, Wakeling J.A. concluded that the court did not have authority to review the elders’ decision based upon three factors: a court may only resolved justiciable questions (resulting in the hockey analogy of what is not a justiciable question, such as whether Wayne Gretzky or Gordie Howe was the greater player); courts should decline to adjudicate most membership disputes involving religious organizations; and none of the possible exceptions relating to property or civil rights did not apply in this case. On the latter point, Wakeling J.A. noted that the court had no authority to compel others to worship with the disfellowed member, the elders’ decision did not preclude the member from continuing in his occupation, and the member did not have a right to conduct business with other members of the association. Wakeling J.A. stated that the member’s circumstances differed little from someone whose business was affected by other changes in social status, such as divorce or family disputes that might cause clients to abandon existing business relationships.
In a unanimous decision written by Rowe J., the SCC overturned the lower courts, largely based upon reasoning similar to that of Wakeling J.A. – including reference to the hockey analogy. The SCC in Highwood concluded that the courts’ ability to review such decisions is limited for three key reasons.
One, judicial review is meant for public decision makers. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character. The fact a decision might impact a broad segment of the public does not mean that it is “public” in the administrative law sense of the word. The court noted that this case did not raise any issues about the rule of law, the elders were not governed by any private act, and the association did not exercise state authority in any way.
Two, there is no free-standing right to procedural fairness absent an underlying legal right. Courts may only interfere to address procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights are at stake and the claim is founded on a valid cause of action, for example, contract, tort or restitution. The court in this case acknowledged that expulsion affected the member, but the negative impact did not relate to any actionable claim or cause of action.
Three, the courts will consider only those issues that are justiciable. This relates to whether the subject of the dispute is appropriate for the court to resolve. In Highwood, the voluntary association was a religious group, and the dispute revolved around ecclesiastical matters, which may require consideration of matters beyond the law, such as religious dogma. Or the esoterics of hockey.
Hopefully, Highwood settles conflicting lines of authority regarding the courts’ authority to conduct a judicial review of decisions made by voluntary associations on the basis of procedural fairness. While decided in the context of a religious organization, the scope of the decision would apply to voluntary associations of all kinds – social clubs, sports clubs, benevolent groups, etc. It includes groups that are incorporated by private act as well as those that are not incorporated under any statute, public or private – largely organizations that may not be legal entities.
By the way, on the question of greatest importance, as set out at the outset, the answer is Bobby Orr, although I am willing to concede to Gordie Howe.
We Can’t Talk Admin Law Without Talking Dunsmuir
By now, most readers should be aware that on May 10, 2018, the Supreme Court of Canada granted leave to appeal the judgment from the Federal Court of Appeal Bell Canada v. Canada (Attorney General), 2017 FCA 249. In doing so, the court stated that this appeal would be heard along with appeals from the decisions in National Football League, et al. v. Attorney General of Canada and Minister of Citizenship and Immigration v. Vavilov. In an added and unusual twist, the court provided brief reasons, stating that these appeals would “provide an opportunity to consider the nature and scope of judicial review of administrative action as addressed in Dunsmuir v. New Brunswick,  1 SCR 190”. The court added that it was inviting the parties to devote a substantial part of their submissions to the question of standard of review.
As Dunsmuir may have created as many problems as it solved, it is no surprise that the top court is taking a new look at this decision ten years after the fact. Countless academic articles and conferences have analyzed and critiqued that decision, and an incredible amount of judicial ink has been spent in the subsequent case law.
 While acknowledged to be a non-scientific and somewhat crude assessment, a November 2016 survey of cases in Canlii and Westlaw conducted by John Mastrangelo for theCourt.ca, Dunsmuir was the most cited decision issued by the Supreme Court of Canada as of that time: see The Most Cited Decisions of the Supreme Court of Canada. Canlii noted over 12,000 citations of Dunsmuir, while Westlaw identified 9,600 citations. This is far more than double the citations for the third-most cited case on the list, Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817, another well-known case in the pantheon of administrative law decisions. Surprisingly, a seminal case like R. v. Oakes,  1 SCR 103 ranked 47th, while the highest ranking family law case on that list was Moge v. Moge,  3 SCR 813.