Religious Institutions in Canada

• Author: M.H. Ogilvie
• Pages: 59-98

Chapter

Three

Religious

Institutions

in

Canada

A.

INTRODUCTION

The

1991 Religion Census

of

Canada1

lists

some ninety-two

different

reli-

gious 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

comprised

of

numerous sub-groups,

including

four

Catholic,

fifty-six

Protestant,

nine

Eastern Orthodox,

eleven

Eastern Non-Christian,

and

eleven para-religious groups. Each

of

these religious institutions typically

has

national, regional,

and

local

organizations

and

structures, regulated partly

by the

laws

and

customs

of

the

institution

and

partly

by the

laws

of

Canada,

and it may be

estimat-

ed,

therefore, that there

are

well

in

excess

of

10,000

individual

units

of

these religious institutions operating within

the

country.

The

succeeding chapters

of

this treatise will discuss

the

civil

law

applicable

to

religious institutions

in

Canada. This chapter will introduce

briefly

the

various polities, internal organizational structures,

and

dis-

pute resolution processes

for the

larger religious institutions, measured

by

census population

membership.2

1

Religion

in

Canada (Ottawa:

Statistics

Canada,

1993).

2

The

introductory

nature

of

this

chapter

cannot

be

overstated.

Its

purpose

is to

alert

lawyers

acting

for

religious

institutions

to the

necessity

for

consulting

and

considering

the

laws

and

customs

of

religious

institutions

when

advising

them.

59

60

RELIGIOUS INSTITUTIONS

AND THE LAW

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.

Ho/er,4

the

Supreme Court

of

Canada looked

to the

constitution

of the

Hutterites,

the

articles

of

association

of the

colony,

and the

oral traditions

and

cus-

toms

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

colony 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, there-

by

indicating that ecclesiastical disputes should only

be

appealed into

the

civil

courts

after

the

highest internal 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

1991 census indicated that almost eighty-four percent

of

Cana-

dians

identify,

at

least

for

census purposes, with

a

Christian denomina-

tion, therefore

it is

necessary

to

describe

in

this chapter

how the

various

branches

of

Christianity

are

organized

in

relation

to

ecclesiastical polity,

legal

structure,

and

dispute

resolution.

Then,

brief

consideration

will

be

given

to the

legal organization

and

dispute resolution processes

of the

3 See

generally M.H.

Ogilvie,

"The

Legal

Status

of

Ecclesiastical Corporations"

(1989)

15

Can. Bus. L.J.

74;

"Church

Property

Disputes:

Some

Organizing

Principles"

(1992)

42

U.T.L.J.

377;

"Ecclesiastical

Law

-

Jurisdiction

of

Civil

Courts

-

Governing Documents

of

Religions Institutions

-

Natural

Justice:

Lakeside

Colony

of

Hutterian

Brethren

v.

Ho/er"

(1993)

72

Can.

Bar

Rev.

238.

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

court heard

an

appeal that

had not yet

gone

to

either

the

General

Council

or the

Judicial Commission

of the

church.

7

This

may be

contrasted with

the

position

in the

U.S. where

deferral

to the

highest

tribunal

in an

ecclesiastical hierarchy

has

created

a

virtually

autonomous

sphere

for

churches

by

virtue

of

judicial interpretation

of the

free

exercise

clause

in the

First

Amendment:

Watson

v.

Jones

80 US 679

(1871);

and

Jones

v.

Wolf

413 US 595

(1979).

Religious

Institutions

in

Canada

61

non-Christian religious groups

in

Canada, which constitute approxi-

mately

nine percent

of the

population, with

the

remaining approximate-

ly

seven percent

of the

population reporting

no

religious identity

at

all.8

B.

CHRISTIAN ECCLESIASTICAL POLITIES

Every

Christian denomination

is

either episcopal, presbyterian,

or

congre-

gational

in

polity, that

is, in its

government, administration,

and

judicial

procedures.9

This three-fold division dates

from

the

Protestant

Reforma-

tion

of the

Western Christian church

in the

sixteenth century when pres-

byterian

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

theology, 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

sources

for our

knowledge

of the

primitive Christian churches, were Jews

who

attended

the

synagogues,10

it

appears that

the

organization

for the

early

congregations

was

modelled

on the

synagogues, each

of

which

was

8 As a

predominantly

Christian

country

since

its

colonial

beginnings,

virtually

all of the

common

law is

about

disputes

within

Christian

denominations,

therefore

the

emphasis

in

this

chapter

on

Christian

polities

reflects

the

reality

of

religious

litigation

as

well

as the

census

statistics.

As

Canada becomes

increasingly

multicultural, litigation

is

likely

to

reflect

that evolution,

so

that

future

editions

of

this

book

will

do so as

well.

9

There

are a

number

of

dictionaries

of

Christianity,

of

which

the

following

are

widely

regarded

as the

best:

EL.

Cross

and

E.A.

Livingstone,

eds.,

The

Oxford

Dictionary

of

the

Christian Church,

3d ed.

(London: Oxford University

Press,

1997);

Alan Richardson

and

John

Bowden,

eds.,

A New

Dictionary

of

Christian

Theology

(London: S.C.M. Press,

1983);

J.D. Douglas,

ed.,

A New

International

Dictionary

of

the

Christian

Church

(Grand Rapids,

MI:

Zondervan,

1978);

Sin-

clair

B.

Ferguson

and

David

E

Wright,

eds.,

New

Dictionary

of

Theology

(Leices-

ter,

England:

IV

Press,

1988);

and

Erwin

Fahlbusch

et

al.,

eds.,

The

Encyclopedia

of

Christianity,

multivolume

series

(Grand Rapids,

Ml:

Eerdmans,

1999-).

10

Luke 4:16; Acts 13:5,

14,

14:1,

17:2

(N.S.R.Y).