Discipline in Religious Institutions
| Author | M.H. Ogilvie |
| Pages | 301-322 |
Chapter N i ne
Discipline
in
Religious
Institutions
A.
INTRODUCTION
Historically,
most branches
of the
Christian church have regarded disci-
pline
of
both clergy
and
laity
as an
appropriate means
for
ensuring uni-
formity,
homogeneity,
and
order within
the
community
as
well
as
being
for
the
eternal good
of the
person under discipline. Occasionally, discipli-
nary
procedures have spilled
over
into
the
civil courts when ecclesiastical
discipline decisions have been appealed
from
internal dispute resolution
tribunals. Civil courts have repeatedly expressed reluctance
to
intervene
in
cases
of
church
discipline,1
and
will
not
consider matters that
are
nar-
rowly
doctrinal
or
spiritual
in
nature. Nevertheless, they
do
intervene,
as
their constitutional status permits them
to
do,
in
relation
to
church dis-
cipline
of
both clergy
and
laity
and do
consider doctrine
and
polity issues
1
Balkou
v.
Gouleff
(1989),
68
O.K.
(2d)
574
(C.A.)
at
576. Compare
the
English
position that
a
civil court should
not
interfere
in
clergy discipline because
it is
essentially
an
intimate, spiritual,
and
religious process
and
does
not
engage
the
public interest,
as set out in: R. v.
Chief
Rabbi
of
the
United
Hebrew
Congrega-
tions
of
Great
Britain,
exparte
Wachmann,
(Q.B.).
It may
be
doubted whether
this
decision
properly
considered
the
sovereignty
of the
state over
all
within
the
kingdom.
301
302
RELIGIOUS INSTITUTIONS
AND THE LAW
when these
are
involved
in the
dispute.2
Civil court intervention does
not
amount
to
dictating
doctrine,3
but
rather means discerning what
the
doc-
trine
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
reli-
gious institutions
for
criminal
and
civil wrongs committed
by
those per-
sons
and to
impose vicarious liability
on
their sponsoring religious
organizations.
The
increase
in
these cases, usually concerned with sexu-
al
and
physical assaults
of
children
or
other weaker persons,
has
required
the
courts
to
begin
to
explore
the
relationship,
if
any, between
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 involve-
ment,
as set out in the
previous
chapter:6
(i)
where church tribunals
do
not
follow
their
own
procedural
and
substantive rules; (ii) where inter-
nal
tribunals
do not
comply with
the
rules
of
natural justice;
in
particu-
lar,
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
disciplinary disputes occur
in
religious organizations that have been
incorporated pursuant
to
civil legislation,
so as to be
thereby subject
to
2
Ibid.
See
also
Gruner
v.
McCormack,
unreported
decision
of 10
March 2000
(Ont.
S.C.J.).
3
Bishop
of
Columbia
v.
Cridge
(1874),
1
B.C.R.
(Pt.
1) 5
(S.C.);
and
Dunnet
v.
Forneri
(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.);
and
Ukrainian
Greek
Ortho-
dox
Church,
v.
Ukrainian
Greek
Orthodox
Cathedral
of
St.
Mary
the
Protectress,
[1940]
S.C.R.
586.
6
Above,
chapter
8 at
section
D. See
also
Porter
v.
Clarke
(1829),
2
Sim. 520,
57
E.R.
882;
and
Forbes
v.
Eden
(H.L.).
7
Lindenberger
v.
United
Church
of
Canada
(1985),
17
C.C.E.L.
143
(Ont. Div.
Ct.),
aff'd
(1987),
17
C.C.E.L.
172
(C.A.).
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