Religious Institutions in Canada

• Author: M.H. Ogilvie
• Pages: 55-92

55

CHAP TER 3

RELIGIOUS

INSTITUTIONS

IN CANADA

A. INTRODUCTION

The 2001 Religion Census of Canada1 lists some ni nety-f‌ive different re-

ligious groups large enough to be counted as separate relig ious institu-

tions for census purposes. Six major religious groups are tabulated, all

of which, except for Judaism, are comprised of numerous sub-groups,

including four Catholic, forty-three Protestant, nine Orthodox, eleven

Eastern Non-Christian, and eight non-traditional relig ions (such as

New Age, Scientology, Rastafaria ns, and Satanists). Each of these reli-

gious institutions t ypically ha s national, regional, and local organiza-

tions and structure s, regulated part ly by the laws and customs of t he

institution and part ly by the laws of Canada, and it may be estimated,

therefore, that there are well in excess of 12,000 individual units of

these religious institutions operating within the country.

The succeeding chapters of this treatise will di scuss the civil l aw

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

duce brief‌ly the various polities, internal organizational structures, and

dispute resolution processes for the larger relig ious institutions, meas -

ured by census population membership.2

1Religions in Canad a: 2001 Census: Analysis Series (13 May 2003). For detailed

2001 religion cens us statistics, see onl ine: www.statcan.ca.

2 The introductory n ature of this chapter ca nnot be overstated. Its purpo se 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.

RELIGIOUS INSTITUTIONS AND THE LAW I N CA NADA56

Since the common law regards relig ious institutions as voluntary or-

ganizations, sel f-governed by contract, the courts defer to the laws and

customs of religious inst itutions, enforcing these except where some

internal ir regularity has occurred or the r ules of natural just ice 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 Hutterites,

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 colony

member. Moreover, in Pederson v. Fulton,5 a lower court declined to he ar

an appeal of an ecclesiastical dispute because, inter alia, it h ad not fully

exhausted the hierarchy of church courts w ithin the Roman Catholic

Church, thereby indicating that ecclesiastical disputes should only be

appealed into the civil courts after the highest inter nal tribun al has

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

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

The 2001 census indicated that almost 77 percent of Can adians iden-

tify, at least for census purpose s, with a Christian denomination, there-

fore it is necessary to descr ibe in this chapter how the various branches

of Christianity are organized in rel ation to ecclesiastical polity, legal

structure, and di spute resolution. Then, brief consideration will be given

to the legal organization and di spute resolution processes of the non-

Christian religious groups in Canada, which constitute approximately

seven percent of the population, with the rem aining approximately 16

percent of the population reporting no religious identity at all.8

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

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

Principles” (1992) 42 U.T.L.J. 377; “Ecclesiast ical Law— Jurisdict ion of Civil

Courts —Gover ning Documents of Religion s Institutions —Natura l Justice:

Lakeside Colony of Hutte rian Brethren v. Hofer” (1993) 72 Ca n. 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.).

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

in which the court he ard an appeal that had not yet gone to eit her the General

Council or the Judic ial Commission of the churc h.

7 This may be contr asted with the position i n the U.S. where deferral to the high-

est tribun al in an ecclesiastic al hierarchy has creat ed a virtually autonomous

sphere for churches by v irtue of judicial inter pretation of the free exercis e

clause in the Fi rst Amendment: Watson v. Jones, 80 U.S. 679 (1871); and Jones v.

Wolf, 413 U.S. 595 (1979). See, gener ally: John Witte, Jr., Religion and the Amer-

ican Constitutional Experiment, 2d ed. (Boulder, CO: Westv iew, 2005).

8 As a predomina ntly Christian count ry since its colonial be ginnings, virt ually

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

Religious In stitutions in Canad a 57

B. CHRISTIANECCLESIASTICALPOLITIES

Every Christian denomination is either episcopal, presbyter ian, or

congregational in polity, that is, in its govern ment, administration,

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

estant Reformation of the Western Chri stian church in the sixteenth

century when presbyteri an and congregational polities were cre ated in

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

Testament concerning the primit ive Christian communities of the f‌irst

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

Scripture (sola scriptura) in Protesta nt theology, both the Calvinist and

Anabaptist movements, but not the Anglica n or Lutheran movements,

within the Reform ation, renounced episcopacy as unscr iptural and

found scriptural authority instead for presbyterian and congregationa l

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 t hat the organiz ation

for the early congregations was modelled on the syn agogues, each of

which was administered by a board of elders or presbyters.11 Paul and

Barnabas appointed elders in the congregations they established,12 but

also referred to those elders as bishops or episcopai,13 apparently using

the terms “elder” and “bishop” interchangeably to refer to the function

of oversight over the congregation.

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 st atistics. As Canad a becomes increasing ly

multicultur al, litigation is likely t o ref‌lect that evolution, so that f uture editions

of this book w ill do so as well.

9 There are a number of dict ionaries of Christ ianity, of which the following are

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

Dictionary of the C hristian Church, 3d ed. rev. (Oxford: Oxford University P ress,

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

Theology (L ondon: S.C.M. Press, 1983); J.D. Douglas, e d., A New International

Dictionary of the C hristian Church (Grand Rapids, MI: Zondervan, 1978); Sinclair

B. Ferguson & Dav id F. Wright, ed s., New Dictionary of Theology (Leicester, UK:

IV Press, 1988); Erw in Fahlbusch et al., eds., The Encyclopedia of Christianity,

5 vols. (Grand Rapids, MI: Eerd mans, 1999–2008); and Walter A. Edwell, ed.,

Evangelical Dictionary of Theology, 2d ed. (Grand Rapids, MI: Baker, 2001).

10 Luke 4:16; Acts 13:5, 14, 14:1, 17:2 (N.S.R.V.).

11 Ac ts 11:30, 14:23, 21:18 .

12 Acts 14:23.

13 Acts 20:17, 28; Titu s 1:5–9; 1 Peter 5:1–4; Phil. 1:1.