Discipline in Religious Institutions

• Author: M.H. Ogilvie
• Pages: 314-338

314

CHAPTER 9

DISCIPLINE IN

RELIGIOUS INSTITUTIONS

A. INTRODUCTION

Historically, most branches of the Christian church have regarded

discipline of both clergy and laity as an appropriate means for ensur ing

uniformity, homogeneity, and order within the community as well as

being for the eternal good of the person under discipline. Occasionally,

disciplinary procedures have spilled over into the civil courts when

ecclesiastical d iscipline decisions have been appealed from internal dis-

pute resolution tribunals. Civil courts have repeatedly expressed reluc-

tance to intervene in cases of church discipline1 and will not consider

matters that are narrowly doctrinal or spiritual in nature. Nevertheless,

they do intervene, as their constitutional status permits them to do, in

relation to church discipline of both clergy and laity and do consider

doctrine and polity i ssues when these are involved in the dispute.2 Civil

1 Balkou v. Gouleff (1989), 68 O.R. (2d) 574 at 576 (C.A.). Compare the early Eng-

lish position t hat a civil court should not interfe re in clergy discipline be cause

it is essent ially an intimate, spi ritual, and religious proc ess and does not engage

the public intere st, as set out in: R. v. Chief Rabbi of the United Hebrew Congre-

gations of Great Britain , ex parte Wachmann, [1993] 2 All E.R. 249 (Q.B.). It may

be doubted whether th is decision would be decided in th is way today in light of

numerous subseque nt cases of court involvement: see be low section C.

2 Ibid. See the c ases discussed b elow in section C. See also Gr uner v. McCormack

(2000), 45 C.P.C. (4th) 273 (Ont. S.C.J.).

Discipline in Religious Institutions 315

court intervention does not amount to dictating doctrine,3 but rather

means discerning what the doctrine may be and enforcing it through

civil remedies.4

In recent years, in addition to the traditional role of judicial review

of internal disciplinary processes for enforcement or reversal, civil

courts have also been obliged to discipline clergy and other employees

of religious institutions for criminal and civil wrongs committed by

those persons and to impose vicarious liability on their sponsoring

religious organizations. The increase in these cases, usually concerned

with sexual and physical assaults of children or other weaker persons,

has required the courts to begin to explore the relationship, if any, be-

tween internal disciplinary processes and punishments and the civil

law of Canada. Both internal and external aspects of clergy and laity

discipline are considered in this chapter.

B. CIVIL JURISDICTION TO INTERVENE

The delicacy5 with which courts intervene in ecclesiastical discipline

cases is ref‌lected in the types of situations and the extent of their in-

volvement, as set out in the previous chapter:6 (i) where church tri-

bunals do not follow their own procedural and substantive rules; (ii)

where internal tribunals do not comply with the rules of natural jus-

tice; in particular, the rights to know the case, to reply to the case, and

to have an unbiased tribunal; (iii) where tribunals act in an ultra vires

fashion, that is, with malice, mala f‌ides, bias, or some other vitiating

factor; (iv) where disciplinar y disputes occur in religious organizat ions

that have been incorporated pursuant to civil legislation, so as to be

thereby subject to civil court supervision; (v) where discipline is relat-

ed to a property or a civil right; and (vi) where a civil court is called

upon to carry out a punishment determined by an internal tribunal.

3 Bishop of Columbia v. Cridge (1874), 1 B.C.R. (Pt. 1) 5 (S.C.); and Dunnet v. For-

neri (1877), 25 Gr. 199 (Ont. H.C.).

4 Re Christ Church of China (1983), 15 E.T.R. 272 (B.C.S.C.).

5 McPherson v. McKay (1880), 4 O.A.R. 501 (C.A.); Ukrainian Greek Orthodox

Church v. Ukrainian Greek Orthodox Cathedral of St. Mary the Protect ress, [1940]

S.C.R. 586 [Ukrainian Greek Orthodox Church]; and Greaves v. United Church of

God Canada (2003), 27 C.C.E.L. (3d) 46 (B.C.S.C.).

6 See chapter 8, section D. See al so Porter v. Clarke (1829), 2 Sim. 520, 57 E.R.

882; and Forbes v. Eden (1867), L.R. 1 Sc. & Div. 568 (H.L.).