Justiciability, Religious Tenets, and Private Law Causes of Action: Towards a Predictable Framework

Abstract

The Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses v. Wall represented a landmark in Canadian public law through clarifying the availability of judicial review and giving lower courts significant guidance regarding what matters are justiciable. However, somewhat predictably, this has resulted in claims concerning religious tenets increasingly being brought in the guise of private law causes of action, particularly breach of contract. While Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga cautioned against such claims, it did not definitely close the door to them. This poses problems for the rule of law that may seem in tension. The rule of law requires, among other things, consistent application of the law, reasonable predictability, internal coherence, and the ability to vindicate one’s rights through a reasonably accessible remedy. The first three of these requirements all seem to point to religious tenets being injusticiable, to: ensure consistent treatment between litigants regardless of whether they bring claims for breach of contract or judicial review; prevent unpredictability concerning when a religious tenet may give rise to a remedy for breach of contract; and ensure coherence between public and private law. At the same time, if private parties have genuinely entered into contractual relations in a manner that happens to have religious implications, it would seem to offend the rule of law to decline to give an appropriate remedy. After all, the very purpose of private law is to ensure harmonious legal relations between private persons.

In this paper, we seek a reconciliation of these competing implications. By and large, we argue that the lion’s share of rule of law considerations support a conclusion that the content of religious tenets are by their nature injusticiable and contractual claims that affect religion should be approached with caution. We argue that such a presumption is consistent with the aforementioned characteristics of the rule of law. Finally, we explain how this is not inconsistent with the vindication of private law rights in circumstances where a genuine contractual claim or corporate structure incidentally incorporates religious tenets. We propose guidelines to identify these circumstances and how courts can approach them, recognizing that courts must enforce contractual relations between private parties but cannot adjudicate theological matters.

Keywords: justiciability, religious neutrality, religious freedom, religious equality, contracts, private law, rights rights, rule of law