Discipline in Religious Institutions

AuthorM.H. Ogilvie
Historically, most branches of the Chri stian church have regarded
discipline of both clergy and laity as an appropriate means for ensur ing
uniform ity, homogeneity, and order w ithin the communit y as well as
being for the eternal good of the person under discipline. Occasionally,
disciplinar y procedures have spilled over into the civil courts when
ecclesiastical d iscipline decisions have been appealed from internal d is-
pute resolution tribunals. Civi l courts have repeatedly expre ssed reluc-
tance to intervene in ca ses of church discipline1 and will not consider
matters that are narrowly doctrinal or spiritual in nature. Nevertheless,
they do intervene, as their constitutional status perm its them to do, in
relation to church discipline of both clergy a nd 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 doct rine,3 but rather
means discer ning what the doctrine m ay be and enforcing it through
civil remedies.4
In recent years, in addition to the traditional role of judicial review
of internal disciplinary processe s for enforcement or reversal, civil
courts have also been obliged to discipline clergy and other employees
of religious institutions for criminal and civil w rongs committed by
those persons and to impose vicarious liability on their sponsoring
religious organizations. The incre ase in these cas es, 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 t he civil
law of Canada. Both inter nal and external aspects of clergy and laity
discipline are considered in t his chapter.
The delic acy5 with which courts intervene in ecclesiastical discipline
cases is ref‌lected i n 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 natur al jus-
tice; in particular, the rights to know the case, to reply to the ca se, and
to have an unbiased tr ibunal; (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.).

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