Discipline in Religious Institutions

• Author: M.H. Ogilvie
• Pages: 300-323

300

CHAP TER 9

DISCIPLINE IN

RELIGIOUS

INSTITUTIONS

A. INTRODUCTION

Historical ly, most branche s of the Christian church have regarded disci-

pline of both clergy and laity as an appropriate means for ensuring uni-

formity, homogeneit y, and orde r within the com munity as well a s being

for the eternal good of the person under discipline. Occasionally, disci-

plinary procedures have spilled over into the civil courts when ecclesi-

astical discipline decisions have been appealed from internal dispute

resolution tribunals. Civil courts have repeatedly expressed reluctance

to intervene in cases of church di scipline,1 and will not consider mat-

ters that are nar rowly doctrinal or spir itual in nature. Nevertheless,

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

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

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

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

position th at a civil court should not interfere i n clergy discipline bec ause it

is essent ially an intimate, spi ritual, and religiou s process and does not engage

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

tions of Great Britain, e x parte Wachmann, [1993] 2 All E.R. 249 (Q.B.). It may be

doubted whether thi s decision properly considered the s overeignty of the state

over all with in the kingdom.

2Ibid. See als o Gruner v. McCormack (200 0), 45 C.P.C. (4th) 273 (Ont. S.C.J.).

Discipline in Religious Institutions 301

court intervention does not amount to dictating doct rine,3 but rather

means discer ning what the doctr ine may be and enforcing it through

civil remedies.4

In recent yea rs, in addition to the t radition al role of judici al review

of internal disciplin ary processe s for enforcement or reversal, civil

courts have also been obliged to discipline clergy and other employ-

ees of religious institutions for criminal and civ il wrongs committed

by those persons and to impose vicarious liability on their sponsori ng

religious organizations. The increase in these cases, usually concerned

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

has required the court s to begin to explore the relat ionship, if any,

between internal di sciplinary processes and punishment s and the civil

law of Canada. Both inter nal and externa l aspects of clergy and la ity

discipline are considered in this chapter.

B. CIVIL JURISDICTION TO INTERVENE

The delic acy5 with which courts intervene in ecclesiastical discipline

cases is ref‌lected in t he 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 tr ibunals do not comply with the r ules of natural jus -

tice; in particul ar, the rights to know the case, to reply to the case, and

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

fashion, t hat is, w ith ma lice, mala f‌ides, bias, or some other viti ating

factor; (iv) where disciplinary disputes occur in religious organizations

that have been incorporated pursuant to civil legi slation, so as to be

thereby subject to civil court super vision; (v) where discipline is related

to a property or a civil right; a nd (vi) where a civil court is called upon

to carry out a punishment determined by an internal tribunal.

3Bishop 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.).

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

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

Church v. Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, [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 Above, chapter 8 at sect ion D. See also Porter v. Clarke (1829), 2 Sim. 520, 57

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