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Church and religious organizations: Maybe Adam and Eve could have appealed their sentence

church“The decision will be of interest to other Church and religious organizations that must discipline their members and now must worry that the Courts will reach in and review those decisions.”

We are often contacted by charities seeking to insulate themselves from potential legal action by disgruntled former members of their organization. This typically results from situations where the individual has been kicked out of the organization for specific misconduct. Although, for the most part, these disputes result in acrimonious name calling from time to time, these matters are litigated. A recent decision of the Alberta Court of Appeal is one circumstance where an irate former member of the Jehovah’s Witnesses took the matter to Court.

Of primary importance was the preliminary question of the Court’s jurisdiction to involve itself in questions of religion—specifically the question of who belongs to a particular Church. In a 2 to 1 decision, the Alberta Court of Appeal ruled that it, indeed, could decide the issue.

The facts of the situation were fairly simple. An individual was disfellowshiped from his Jehovah’s Witnesses organization in Alberta as a result of engaging in drunken behaviour (it appears that part of his drunken behaviour stemmed from despondency over the fact that his daughter was disfellowshiped earlier). Mr. Wall, the individual in question, appealed the decision of the arbitrating body all the way up to the highest levels within the Jehovah’s Witnesses organization and was told (but not in any written decision) that the decision would stand.

Among the implications of this decision was that other Jehovah’s Witnesses were required to shun Mr. Wall. In his business life, Mr. Wall was a realtor and had a practice where 50% of his clientele was from his Jehovah’s Witness community. The implication, then, of being shunned involved significant financial loss to his business. Mr. Wall submitted that the Court could overturn the decision of his church on two bases. The first was that the Court has the jurisdiction to intervene when the religious practice infringes an individual’s civil or property rights. The second ground was that the court could intervene when a religious organization exercised the powers of a public nature.

In the decision for the majority, the Court found that, on both grounds, Mr. Wall was correct and that the decision could be reviewed by the Court. It is interesting to note that, on the questions of infringing civil or property rights, the net result of damage to Mr. Wall’s business arose from the result of the fact that people refused to do business with him, not the fact that his realtor license was in anyway in jeopardy. It would be interesting to see on what basis the Court would enforce an order requiring people to engage in business with Mr. Wall.

The Court’s decision on the second ground, respecting whether or not this particular organization was engaged in activities of a public nature, is even more tenuous. The Church in question here, while registered as a charity, was not incorporated and seems to have been organized under a loose association of individuals. It is hard to understand what role of a public nature this organization was in fact fulfilling, given that it was hardly an organization and involved a relatively small number of people. The Court’s reasoning in this regard was not heavily dependent on the facts but rather on previous decisions involving other religious organizations, and so we wait to see how this reasoning is applied in the future.

The decision will be of interest to other Church and religious organizations that must discipline their members and now must worry that the Courts will reach in and review those decisions. For this reason, it is imperative that decisions to discipline members be taken with utmost regard for the traditional concept of procedural fairness and a consultation with a lawyer that can advise them of these issues.

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Drache Aptowitzer LLP

Tax and Charity Lawyers at Drache Aptowitzer LLP
Drache Aptowitzer LLP is one of Canada’s foremost experts in the law related to charities and non-profit organizations. Their team of bloggers is led by Adam Aptowitzer LLB. He is a lawyer practicing in the areas of charity and tax law. He is a member of both the bars of Alberta and Ontario. He has been speaking and writing on the topic of charity law for several years and been published in numerous publications including the Canadian Taxpayer, the Canadian Fundraiser and the Not-for-Profit News and has been cited as an expert in many publications including the National Post.Read more here
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