Religious Institutions in Canada

• Author: M.H. Ogilvie
• Pages: 55-93

55

CHAPTER 3

RELIGIOUS INSTITUTIONS

IN CANADA

A. INTRODUCTION

The 2011 National Household Survey (“2011 NHS”)1 lists some ninety-

f‌ive different religious groups large enough to be counted as separate

religious institutions for census purposes. Six major religious groups

are tabulated, all of which, except for Judaism, are compri sed of numer-

ous sub-groups, including six Catholic, forty-seven P rotestant, thirteen

Orthodox, eleven Eastern Non-Christian, and twelve non-traditional

religions (such as New Age, Scientology, Rastafarians, and Satanists).

Each of these religious in stitutions typically has nat ional, regional, and

local organizations and structures, regulated partly by the laws and

customs of the institution and pa rtly by the laws of Canada, and it may

be estimated, therefore, that there are well in excess of 15,000 individ-

ual units of these religious institutions operating w ithin the country.

The succeeding chapters of this treatise will discuss the civil law

applicable to religious institutions in Canada. This chapter will intro-

duce brief‌ly the various polities, inter nal organizational structu res, and

1 The 2011 National Household Survey repl aced the long-form census in 2011 and

was voluntar y in nature. However, it is the most recent nat ional religion survey

at the time of wr iting and its results a re used in this chapter. Al l such surveys

represent how citi zens surveyed self-ident ify and the membership num bers

kept by individu al religious groups are alway s much lower. For detailed religion

statistic s, see online: www.statca n.ca.

RELIGIOUS INSTITUTIONS AND T HE LAW IN CA NADA56

dispute resolution processes for the larger religious institutions, meas-

ured by 2011 NHS population membership.2

Since the common law regards religious institutions as voluntary

organizations, self-governed by contract, the courts defer to the laws

and customs of religious institutions, enforcing these except where

some internal irregularity has occurred or the rules of natural justice

have not been applied.3 In Lakeside Colony of Hutterian Brethren v. Hofer,4

the Supreme Court of Canada looked to the constitution of the Hutter-

ites, the articles of association of the colony, and the oral traditions and

customs of the Hutterites, as well as federal incorporating legislation

and the common law principles of natural justice in order to determine

whether the correct procedure had been followed in expelling a col-

ony member. Moreover, in Pederson v. Fulton,5 a lower court declined

to hear an appeal of an ecclesiastical dispute because, inter alia, it had

not fully exhausted the hierarchy of church courts within the Roman

Catholic Church, thereby indicating that ecclesiastical disputes should

only be appealed into the civil courts after the highest inter nal tribunal

has spoken.6 Thus, the civil courts both judicially review and defer, if

appropriate, to the practices and procedures of religious institutions.7

The 2011 NHS indicated that almost sixty-seven percent of Can-

adians identify, at least for census purposes, with a Christ ian denomin-

ation, therefore it is necessary to describe in this chapter how the

various branches of Christianity are organized in relation to ecclesi-

2 The introductory n ature of this chapter ca nnot be overstated. Its purp ose is to

alert law yers acting for religious inst itutions to the necessit y for consulting and

considering t he laws and customs of relig ious institutions when adv ising them.

3 See, generally, M.H. Ogilv ie, “The Legal Status of Ecclesi astical Corporations”

(1989) 15 Can. Bus. L.J. 74; “Church Property Dispute s: Some Organizing

Principles” (1992) 42 U.T.L.J. 377; “Ecclesiastical Law — Jurisd iction of Civil

Courts — Governing Documents of Religions Institutions— Natural Justice :

Lakeside Colony of Hutte rian Brethren v. Hofer” (1993) 72 Can. Bar Rev. 238. For

recent church proper ty disputes in which the cou rts enforce internal r ules, see

Chapter 8, Section L , and M.H. Ogilvie, “Three Recent C ases Conf‌irm Cana dian

Approach to Church Prope rty Disputes” (2015) 93 Can. Bar Rev. 537.

4 (1992), 97 D.L.R. (4th) 17 (S.C.C.).

5 (1994), 11 D.L.R. (4th) 367 (Ont. Gen. Div.).

6 Cf. Davis v. United Church of Canada (1992), 92 D.L.R. (4th) 678 (Ont. Gen. Div.)

in which the cour t heard an appeal that had not yet gone to e ither the General

Council or the Judici al Commission of the church.

7 This may be cont rasted with the pos ition in the U.S. where deferral to th e highest

tribuna l in an ecclesiastica l hierarchy has create d a virtually autonomous sphere

for churches by vir tue of judicial interpret ation of the free exercise cl ause in the

First Amendment : Watson v. Jones, 80 U.S. 679 (1871); and Jones v. Wolf, 413 U.S.

595 (1979). See, generally: John Witte, Jr. & Joel Nichols, R eligion and the Ameri-

can Constitutional Experiment, 4th ed. (Oxford: Ox ford University Pres s, 2016).

Religious In stitutions in Canada 57

astical polity, legal structure, and dispute resolution. Then, brief con-

sideration will be given to the legal orga nization and dispute resolution

processes of the non-Christian religious groups in Canada, which con-

stitute approximately eight percent of the population, with the remain-

ing approximately twenty-four percent of the population reporting no

religious identity at all.8

B. CHRISTIAN ECCLESIASTICAL POLITIES

Every Christian denomination is either episcopal, presbyterian, or

congregational in polity, that is, in its government, administration,

and judicial procedures.9 This threefold division dates from the Prot-

estant Reformation of the Western Christian church in the sixteenth

century when presbyterian and congregational polities were created

in response to the Protestant re-evaluation of the evidence in the New

Testament concerning the primitive Christian communities of the f‌irst

century A.D. In keeping with the doctrine of the exclusive primacy of

Scripture (sola scriptura) in Protestant t heology, both the Calvinist and

Anabaptist movements, but not the Anglican or Lutheran movements,

within the Reformation, renounced episcopacy as unscriptural and

found scriptural authority instead for presbyterian and congregational

polities respectively.

The evidence of the New Testament is ambiguous. Since both Jesus

and his early disciples, including Paul, whose letters are the primary

8 As a predominantly Chr istian country si nce its colonial beginni ngs, virtually

all of the common la w is about disputes withi n Christian denomin ations, there-

fore the emphasi s in this chapter on Chri stian polities ref‌lect s the reality of reli-

gious litigat ion as well as the census stat istics. As Canad a becomes increasingly

multicultura l, litigation is likely to ref‌lec t that evolution, so that future ed itions

of this book w ill do so as well.

9 There are a number of dictionar ies of Christian ity, of which the followi ng are

widely regarded a s the best: F.L. Cross & E.A. Liv ingstone, eds., The Oxford

Dictionary of th e Christian Church, 3d ed. rev. (Oxford: Oxford Universit y Press,

2005); Alan Richa rdson & John Bowden, eds., A New Diction ary of Christian

Theology (1989; repr., London: S.C.M. Pres s, 2009); J.D. Douglas, ed., A New

Internati onal Dictionary of the Chris tian Church (Grand Rapids, MI: Zondervan,

1978); Sinclair B. Ferguson & David F. Wright, ed s., New Dictionary of Theology

(Leicester, U.K.: IV Press, 1988); Erw in Fahlbusch et al., ed s., The Encyclopedia

of Christianity, 5 vols. (Grand Rapid s, MI: Eerdmans, 1999–200 8); and Walter A.

Edwell, ed., Evangelic al Dictionar y of Theology, 2d ed. (Grand Rapid s, MI: Baker,

2001). For a principle-based compari son of law across different polit ies, see

Norman Doe, Chr istian Law: Contemporary Princ iples (Cambridge: Cambr idge

University Pre ss, 2013).