A. Introduction⤒🔗

For those who consider church discipline to be an anachronism akin to the Spanish Inquisition, recent legal developments may justify that more attention be paid to this little understood and often ignored area of church life. The current high profile that this once historical footnote has attracted is evidenced by the substantial press attention that has been directed toward the implementation of the medieval "Bish­op's Court" in the Reverend James Ferry hearing by the Anglican Church in Toronto concerning his ac­knowledged homosexual activities. On the front page of Canada's national newspaper, the "Globe & Mail" on Saturday, February 1st, 1992, the headline read "Anglican Doctrine Faces Court Test"; hardly the normal front page article for a conservative news­paper. Specific reference was made to the structure and jurisdiction of the Bishop's Court, whose ori­gins, the paper stated, "date back to a time long before the reformation in England … use exclusively for violations of Cannon Law..." What was interesting in that case was not the issue of homosexuality but rather the "Globe & Mail's" recognition that church discipline is alive and functioning as an integral part of the church's ministry.

For those congregations which have never ad­dressed the issue of church discipline or have not reviewed their disciplinary procedure in recent years, this analysis is intended to provide a summary of legal issues that may be of assistance in addressing this challenging but potentially volatile area in church polity. Included in the analysis is a section outlining practical recommendations on the implementation of church discipline, both in the context of church constitutions as well as in practice. In addition at­tached to the analysis as a schedule are sample constitutional excerpts dealing with various aspects of church discipline involving both church members and staff.

What this article is not, is a commentary on the biblical basis or implementation of church discipline. It is also not a commentary on employer/ employee relationships, except as recent court de­velopments relate to the broader issue of discipline of members within the church. Further, the brevity of format required for this article precludes covering all relevant case law or statute law and reflects an acknowledged emphasis upon legal developments and statues in the Province of Ontario. For those churches and institutions which intend to review the matter of church discipline, it is essential that legal advice be obtained before implementing any sug­gestions contained in this analysis. The information contained in this article is for educational and dis­cussion purposes only and is not intended to be relied upon as a legal opinion.

B. The Context of Church Discipline as a Legal Issue←⤒🔗

Before discussing specific legal principles, it would be helpful to briefly explain the context in which church discipline functions as a legal issue before the courts. Discipline within the church would not be an issue for secular courts to deal with if an on-going tension between church and state did not exist. In the ideal society proposed in St. Augustine's "City of God" the interests of the state and the interests of the church are seldom, if ever, at odds; as both the church and state are seen as parts of one integrated theocracy. Historically, what has developed is a separation of church and state with the church hav­ing exclusive jurisdiction over ecclesiastical matters and the state having exclusive jurisdiction over civil matters.

Within the realm of exclusive church jurisdic­tion, church discipline has historically been recog­nized as a key element in the structure of the church, not so much as a vehicle to ensure order but rather as a remedial ministry to restore fellowship amongst its membership. John Calvin stated that discipline serves the church as its sinews through which the members of the body hold together each in its own place. The Belgic Confession of 1561 referred to the practice of church discipline as the third mark of the true church.

Tension between church and state has height­ened over the centuries because of expanding jurisdiction of both institutions. This has resulted in a collision of overlapping interests in which the courts have had to intervene. On the one hand, the jurisdic­tion of the church has expanded into moral and social areas beyond its exclusive arena of spiritual matters. This has emanated from the church's man­date to be the whole institution for the whole regen­erated man. An example of the extent to which the spiritual realm dictates all aspects of life, including property and business, are the Hutterite communi­ties in western Canada and the Mennonite commu­nities in Ontario. The extent to which the church is involved in the everyday lives of its members in these communities is quite different from a more traditional church with jurisdiction normally being limited to Sunday services.

As a general rule, though, the Christian church now exercises a greater degree of involvement in the lives of its members than it did even fifteen years ago. This is evidenced by the church's involvement in retirement homes, Christian education, counselling services and the articulation of stands on social issues such as disarmament, abortion, the nuclear family and public education, to the extent that church discipline acts as the sinew in holding these newly extended limbs of the body of the church together, the implementation of church discipline will come under more scrutiny by the courts where such disci­pline is exercised in areas which are not strictly limited to liturgy and church doctrine.

Simultaneous with the church expanding its sphere of influence, the state has also extended its jurisdiction. The state is now involved in areas that until recently had been considered purely social concerns, such as day care and non-profit housing, so much so that the proposed amendment to the Canadian Constitution may include a social charter of rights.

The extension of the state's jurisdiction into those new areas not only overlaps with some of the church's traditional interests, but also reflects an emphasis on individual rights. The church on the other hand emphasizes the collectivity of group interests manifested through a community of believers. Legislation such as the Ontario Human Rights Code¹ establishes the paramountcy of the rights of the individual over the collective rights of groups. In such legislation, the rights of the individual are clearly delineated, whereas the rights of groups are referred to only as an exception to the rights of the individual.

As the orbits of influence of both the church and state expand, incidents of conflict increase. In those situations, it is the task of the courts to balance the competing interests of both institutions. In the recent 1991 unreported decision of Kelly Parks, Holly MacIntyre and Christian Horizons,² the Board on Inquiry for the Ontario Human Rights Commission succinctly summarized the role of the courts in resolving the overlapping jurisdictions of church and state when it stated that "where a statutory or constitu­tional framework creates two sets of equal but competing individual and group rights, the adjudicative task is to find the balance of justice. This means that each right must be given effect, but only to the extent that one right does not overwhelm and destroy the other."

This statement has equal application when the courts are judicially reviewing incidents of church discipline. The courts will be called upon to weigh the interests of the state in protecting the rights of the individual and balance it against the rights of per­sons to voluntarily come together and function as a group of believers.

C. Legal Principles←⤒🔗

When the courts are called upon to adjudicate on church affairs and in particular upon matters of church discipline, they have traditionally been re­luctant to become enmeshed in church affairs. This reluctance has more to do with the court recognizing the concept of voluntary association than an inher­ent respect for freedom of religion. The following synopsis of legal principles is intended to provide a framework for understanding the circumstances under which the courts will intervene to resolve disputes on church discipline and other related mat­ters.

1. Church as a Voluntary Association←↰⤒🔗

Historically, Canadian courts have considered churches to be voluntary associations of persons that come together for a collective purpose. To the extent that the individuals have voluntarily decided to be associates with the fulfilment of the religious objec­tives of the church, the courts have both recognized the existence of and the legitimacy in protecting the rights of the church in fulfilling those objectives. The Supreme Court of Canada in the 1940 decision of Ukrainian Greek Orthodox Church et al. v. Trustees of Ukrainian Greek Orthodox Cathedral of St. Mary's the Protectress et al.³recognized that the law has stated over decades that unless property or denial of procedure is affected, the civil courts will not allow their process to be used for the enforcement of purely ecclesiastical decrees or orders. The extent to which the courts have recognized the state's legitimate interest in property and procedural matters is re­viewed later in this analysis.

2. The Church's Mandate to Deal with the Whole Person←↰⤒🔗

Unlike developments in the United States, Canadian courts have recognized that the Christian church, rather than being simply voluntary associations of persons restricted to doctrine and liturgies, in fact exemplifies a world view that permeates the whole person. In the 1984 decision of Re Caldwell et al. and Stuart et al.,⁴ the Supreme Court of Canada in decid­ing the issue of whether a Catholic school was justi­fied in terminating the employment of a Catholic teacher who had married a divorced man in a civil ceremony recognized the following principle:

It is a fundamental tenet of the church that Christ founded the church to continue his work of salvation. The church employs various means to carry out His purpose, one of which is the establishment of its own schools which have as their object the formation of the whole person, including the education in the Catholic faith ... The Catholic church is a genuine community bent on imparting over and above an academic education all the help it can to its members to adopt a Christian way of life.

The approach taken by the Supreme Court of Canada is a far cry from the juridical attitude in the United States where, as the former director of the Christian Legal Society in a 1984 article stated,

the courts (as well as the state) are inclined to view religion almost exclusively in narrow and often institutional terms; that is, they see churches as little more than institutions, liturgies, clergy and doctrines ... Thus, free exercise of religion is relegated to only those areas where the state has little if any interest (i.e. doctrine) and is left with little vitality when real tensions develop.⁵

3. Church Membership Required←↰⤒🔗

While Canadian courts recognize that the church has a valid interest in the whole person, the courts also require that before a church can exercise discipline over its members, it must be first shown that the member has voluntarily become associated with the church as a member and has succumbed to its au­thority. In Re Caldwell et al. and Stuart et al.,⁶ the Supreme Court found that the school in question was justified in dismissing a teacher concerning her remarriage because evidence was led that the obser­vation of church standards concerning remarriage were clearly part of the teacher's contract. The court also recognized that when one member strays from the standards of the church, the wayward behaviour can act as an adverse example to the rest of the church, particularly as it relates to children. The Supreme Court found that the Catholic teacher, as part of the Catholic community, had an obligation to exemplify the values of the church to children. "The teaching of doctrine and the observance of standards by the teacher form part of the contract of employment of teachers. They are required to exhibit the highest model of Christian behaviour."⁷ Similarly, in a church context, it must be shown that the member being disciplined has accepted the authority of the church as set out in its constitution. By doing so, the church will be able to justify disci­plining one of its members not simply on the basis of violation of church standards but also in recognition that each member had been a party either in estab­lishing those standards or at least in voluntarily agreeing to submit to the standards already in place.

4. Procedural Fairness←↰⤒🔗

Even when the church is justified in disciplining a member, the manner in which the discipline is car­ried out can become the subject of judicial review. Generally, where the procedure for discipline is clearly stipulated in the constitution of a church and reflects the basic elements of natural justice, the courts have held that a review of the procedures involved in the disciplinary hearing is beyond their jurisdiction. In the recent Manitoba case of Lakeside Colony of Hutterarian Brethren v. Hoffer⁸ a dispute arose between Mr. Hoffer and his supporters and the leaders of the Hutterite community of a question of patent infringement resulting in Mr. Hoffer and his followers refusing to obey the leadership of the colony. Three meetings of the colony were held, which Mr. Hoffer and his supporters were asked to attend. They refused to. When Mr. Hoffer and his followers were expelled from the colony they also refused to leave. The colony was then forced to terminate their membership in the colony. In up­holding the decision of the church to excommuni­cate Mr. Hoffer and his followers, the court stated that,

when a congregation is faced with a dissident member who chooses disobedience rather than obedience, who chooses not to ascribe to, or be governed by his church, whether that be in spiritual or temporal terms... they have the right to expel that member; to expel him, provided it is done fairly and within the precepts laid down in the rules of the church, and by a majority of the members of a particular congregation.

Where there is no procedure adopted or where the procedure set out in the constitution is either not followed or varied on an arbitrary basis, the courts have been quick to intervene to protect the indi­vidual who may have been unfairly dealt with. In essence, the courts have found that the church has a duty to exercise "procedural fairness" or what is otherwise called "natural justice" in the administra­tion of its right to discipline its members.

In the 1985 decision of Re Lindenburger v. United Church of Canada,⁹ the presbytery involved had declared a pastoral charge vacant and the minister affected applied to the court for judicial review. The court held that even though the established proce­dure of the Ontario Judicial Review Procedures Act,¹⁰ might not apply to a non-governmental body, since the church was a creature of statute of both federal and provincial legislatures, and since the United Church ministers to the spiritual needs of a large segment of the Canadian public, the court was justi­fied in reviewing the procedures followed by the United Church in its disciplinary action. The court found that since the minister in question had already tendered his resignation, the involvement of presbytery was limited to determining the date that the minister's resignation would become effective. This limited administrative task by presbytery did not warrant the courts interfering in the internal operation of the church. However, the court did confirm their expectations that church discipline matters should be conducted in such a way that the member in question receives as fair and impartial a hearing as possible.

In the 1991 decision of McCaw v. United Church of Canada,¹¹ the court found that proper procedures had not been followed. In that case, a controversy developed amongst members of a congregation con­cerning the ministry style of their pastor. Pursuant to the authority given to it, the local presbytery ordered the minister to take a course of study. Subsequently, the local presbytery recommended to the conference that the minister be removed as an employee of the church on the grounds that he had not taken the directed program. The recommendation was accepted. At the trial and appeal level the court found that the minister had been wrongly dismissed and that the minister should be reinstated as a minister of the United Church of Canada. In coming to its conclusion, the court held that a number of the hearings were held without notice being given to the minister and were conducted in the absence of the interest of the minister being represented. In addition, the court found that the minister had been deprived of an opportunity of listening to what was said by the numerous witnesses who testified. Further, the min­ister was never told of the object of the inquiry or of the conduct on his part which had led the discipli­nary procedure to be initiated.

What the court is looking for in relation to a fairness in procedure is a clear manifestation of "natural justice." In practical terms, this means that the individual should be advised of the nature of the allegations, be given notice of the hearing, be al­lowed to hear the evidence presented at the hearing, be afforded an opportunity to speak on his own behalf at the hearing, and be advised of the decision arising from such hearing.

The courts have also suggested that in consid­eration of the "spirit of Christianity," the proceed­ings followed should be as uncomplicated as possible. In Lindenburger v. United Church of Canada,¹² the court stated "the less complicated the proceedings the better, and one would hope there would not be undue resort to legalistic thinking; there is no reason why men of good will cannot, on both sides, conduct themselves in a fair manner. That is all that the law and spirit of Christi­anity requires of them."

Although the courts will interfere in the internal affairs of a church to ensure that a member of the church is dealt with according to the basic principles of due process, the extent of its willingness to do so is limited to rectifying procedural unfairness and does not extend to interfering in the internal decision making of the church. In both Lindenburger v. United Church of Canada,¹³ and McCaw v. United Church of Canada,¹⁴ the courts were not prepared to restore the ministers in question to their specific pastoral charges, even if a procedural injustice had occurred, as the courts felt that to do so would amount to an undue interference in the internal affairs of the United Church.

The courts are also reluctant to interfere in church procedure where it is perceived that a member who is claiming a denial of rights is attempting to avoid the legitimate procedures of the church. In the Lakeside Colony of Hutterarian Brethren v. Hoffer¹⁵ decision, both the lower court and the appeal court concluded that the member had waived his rights to allege procedural unfairness when the member in question refused to attend meetings of the church which he had been asked to attend for the specific purpose of dealing with allegations that had been raised.

5. Invasion of Privacy←↰⤒🔗

Even if a church has followed procedural steps that reflect the basic elements of natural justice, the courts may still intervene if they detect that an individual's privacy has been jeopardized. Although there does not appear to be any Canadian decisions dealing with invasion of privacy in a church context, there are American cases that have dealt with this issue and may be precursors of future developments in Canada. In the 1989 appeal decision by the Oklahoma Supreme Court in Marian Guinn v. the Church of Christ of Collinsville, Oklahoma et al.,¹⁶ the court held that the jury at the trial level was justified in finding that the decision by the elders of the church to publicly advise the congregation and neighbour­ing churches about the adultery of one of its mem­bers after she had withdrawn from membership was an unjustified invasion of the former member's privacy intended to inflict emotional harm on the pa­rishioner.

The facts of the Marian Guinn case have some similarities to the recent controversy surrounding the Bishop's Court hearing in February, 1992 involv­ing the homosexual activities of Reverend James Ferry. Reverend Ferry had confessed to his Bishop that he was a practicing homosexual. The Bishop gave him a choice of either ending his homosexual relationship or voluntarily resigning. When Rever­end Ferry refused to do either, the Bishop relieved Reverend Ferry of his duties. The Bishop subse­quently read a written statement to the local congre­gation the following Sunday that Reverend Ferry had been dismissed together with the reasons for the dismissal. Reverend Ferry responded by commenc­ing legal action for wrongful dismissal and breach of confidence coupled with a claim of damages for $600,000.00. Although an agreement was reached between the parties to refer the matter to a Bishop's Court to avoid proceeding further with the civil action, the fact that a civil suit was initiated for invasion of privacy involving a minister has very serious consequences by opening the door to similar litigation if a church member or minister who has been disciplined feels that his or her privacy has been violated.

In a non-church but related court decision, the Supreme Court of Ontario in Hunt v. Board of Governors of Fanshaw College of Applied Arts and Technology¹⁷ was asked to grant an order prohibit­ing the college from investigating allegations of un­professional conduct of one of its instructors through the dissemination of questionnaires to students. The questionnaire was alleged to be leading and sugges­tive, i.e. "have you felt yourself to be the object of prejudi­cial or unfair treatment by this instructor?" In granting an order restraining the college from distributing such questionnaires, the court found that the college has an obligation to respect the confidentiality of the allegations being made against the instructor and a responsibility not to damage the reputation of the instructor any more than was necessary.

In light of the need to respect the confidentiality of the allegations being raised, a church can take steps to protect a member's privacy by prohibiting the release of any information to other members of the church unless the information being given re­sults in an affirmative answer to the following two part question. "Does the information need to be dissemi­nated to assure other members of the church that the integrity of the collective ministry of the church is being maintained and can it be reasonably concluded that the said information will not unduly embarrass or prejudice the reputation of the member in question?"

6. Withdra​wal from Membership←↰⤒🔗

A corollary issue to the requirement that a person be a member before a church can proceed with discipli­nary proceedings is under what circumstances can an individual withdraw his or her membership in a church. This issue will often arise where the indi­vidual being disciplined decides to withdraw from membership before the disciplinary process is com­pleted in an attempt to circumvent the jurisdiction of the church.

In the Marian Guinn v. The Church of Christ of Collinsville, Oklahoma et al.¹⁸ case, the plaintiff wrote to the church and stated that she withdrew her membership "immediately." Notwithstanding her resignation, the church continued to exercise juris­diction over her by subsequently reading a letter to the church and advising other churches in the area about her adulterous relationship. The fact that the plaintiff had withdrawn her membership in the church was a key factor in the appeal court deciding that the actions of the church had violated the mem­ber's privacy contrary to her desire to be left alone.

Although the doctrine of the Church of Christ taught that membership in the church extended for life, thereby precluding unilateral withdrawal from membership, the court held that because there had been no specific waiver of the plaintiffs right to withdraw from membership either in the church constitution or otherwise, her letter to the church constituted a valid termination of her membership. This in turn had the effect of terminating the right of the church to continue with disciplinary proceed­ings against her after she resigned.

If church discipline is for the primary purpose of inflicting punishment against members, the retention of a member's right to unilaterally withdraw from membership in the church at any time would be understandable. However, since the biblical pur­pose of church discipline is to restore the member spiritually into a renewed fellowship with both the church family and God, it would be self defeating to have the church establish a doctrine and procedure for restorative discipline when the very person such process is intended to assist can pre-empt the legiti­mate remedial ministry of the church by unilaterally withdrawing from membership. For those infre­quent situations when an abuse in the disciplinary process by the church does occur, an application for judicial review to the courts will continue to provide relief from unnecessary or arbitrary church action.

To avoid expedient resignations by errant mem­bers who attempt to avoid church discipline procedures, and to ensure that the remedial ministry involved in church discipline can be completed, consideration should be given to having the church constitution include a provision that a request to withdraw from church membership by a member who is under discipline will not take effect until the discipline proceedings in question are finished. This restriction, though, would not affect a member's right to unilaterally withdraw from membership at any time if that person was not under church disci­pline; nor could it be used to perpetually keep a person as a member of a church against his or her will under the guise of continually declaring the member to be under the discipline of the church.

7. Attendance at Public Meetings←↰⤒🔗

Although a church has the authority to discipline and remove a member from membership, termina­tion of membership does not necessarily mean that the individual in question should be barred from attending public worship service. Just as non-mem­bers are permitted as members of the public to attend public worship services, the same opportunity should be afforded to a former member.

However, in a situation where the former mem­ber has been or is causing a disturbance, a church would be justified in requesting that the former member either cease the offending conduct or depart from the worship service. The latter could be done by giving written notice to the person causing the disturbance pursuant to the Ontario Trespass of Property Act¹⁹ or similar type of legislation in other provinces.

8. Discipline in a Non-church Context←↰⤒🔗

Although a church has the right to discipline a wayward member, the method chosen to implement such discipline must not be extended into a non-church context. In the 1917 decision of Heinrichs v. Wiens,²⁰ the Saskatchewan Supreme Court dealt with a Mennonite business man who had his mem­bership in his local church revoked because of an unsettled business claim involving another church member. Upon terminating his membership, the members of the church according to their under­standing of biblical precepts "shunned and had noth­ing to do" with the errant member. This resulted in a devastating boycott of his business. The court found that there had been an unlawful conspiracy to boycott resulting in the former member suffering damages.

As such, any attempt to discipline a member by directly or indirectly boycotting the business of a former member may result in a civil action of con­spiracy being brought against the church and its members for monetary damages. Any decision con­cerning church discipline should therefore be lim­ited to correction or if necessary, termination of membership, but should not extend to secondary disciplinary action outside of the church, such as business boycotts or picketing of the former mem­ber's home or business.

9. Apportionment of Church Assets←↰⤒🔗

Can a former member or members of a church who have been disciplined by having their membership in the church terminated make a successful claim for an apportionment of the assets of the church to allow them to start a new church? This issue might arise where a number of members have been disciplined because of differences in theological doctrine. The Supreme Court of Canada dealt with this issue in the case of Hoffer v. Hoffer. In that case, a number of Hutterites became affiliated with the World Wide Church of God resulting in their ex-communication from the local Hutterite church. Since the doctrine of Hutteritism denies any private ownership of prop­erty, the net effect of the ex-communication was that the former members were denied any share in the co­operative farming operations of the Hutterite com­munity in addition to exclusion from membership in the church. The court held that since the former members had joined the Hutterite community vol­untarily and since the process whereby they had been excluded from church membership was proper and followed principles of natural justice, the former members were not entitled to share in the apportion­ment of the community's farming operations.

This decision means that dissenting members of a church who have been "properly" disciplined because of doctrinal differences will not be entitled to receive an apportionment of the assets of the disciplining church to form a new church affiliation.

10. Discipline of Employees←↰⤒🔗

The ability of a church to discipline a member who is also an employee (such as a minister, church secre­tary, youth worker, etc.) is complicated by the effect of the Ontario Human Rights Code and similar types of codes in other provinces. Section 5 (1) of the Ontario Human Rights Code states that,

every person has a right to equal treatment in respect of employment without discrimination because of race ... creed, sex, mari­tal status, family status or handicap.

 Section 24 (1) (a) creates a statutory exception to the rights set out in section 5 of the same code where it states that,

the equal treatment required by Section 5 is not infringed where a religious, philanthropic, educational, fraternal or social institution or organization that is primarily en­gaged in serving the interests of persons identified by their race, ancestry, place of origin, ethnic origin, creed, sex, marital status or handicap employs only or gives prefer­ence in employment to persons similarly identified if the qualification is a reasonable and a bona fides qualification because of the nature of the employment.

The issue therefore, is whether the decision by a church to hire, discipline or fire an employee because of church related requirements is justifiable as being based on reasonable and bona fides qualifications given the circumstance of that particular case.

What constitutes bona fides qualifications de­pends upon the specific facts of each case. In the 1982 decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Borough of Etobicoke,²¹ the court stated that,

o be a bona fides occupational qualifications and requirement a limitation must be imposed honestly, in good faith and in the sin­cerely held belief that such limitation is imposed in the interest of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior reasons ... and it is reasonably necessary to ensure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

In the 1984 Supreme Court of Canada decision of Re Caldwell et al. and Stuart et al.,²² the prohibition against marrying a divorced man in a civil ceremony was considered a bona fides qualification in respect to the position of a Catholic teacher employed in a Catholic school.

In the recent 1991 unreported decision of Garrod v. Rehema Christian School²³ the Ontario Human Rights Commission dealt with an employee of a Christian school who was fired because of her extra­marital sexual relationship. The Commission con­cluded that the exception in Section 24 of the Ontario Human Rights Code had been met because of the religious nature of the school and the expectation that teachers would comply with the religious stand­ards of the school.

For a church to be entitled to rely on the exemp­tion of Section 24 of the Ontario Human Rights Code in disciplining employees based on religious and moral standards, it is essential that the expectations being imposed on an employee be clearly expressed, be brought to the attention of the employee before employment commences and then be consistently followed and enforced thereafter. In the recent unre­ported decision of the Human Rights Commission in Kelly Parks et. and Christian Horizons²⁴ the Com­mission found that there had been discrimination against two employees who had been let go because of sexual conduct. Although the policy manual of Christian Horizons included a policy prohibiting sexual relationships outside of marriage, the Commission found that the failure of Christian Horizons to specify that moral and sexual lifestyle was a condition of employment in either the initial em­ployment interview or in the employment contract coupled with the acquiescence of Christian Hori­zons to extra marital sexual relationships by other employees precluded the institution from being en­titled to the exemption under Section 24 of the Hu­man Rights Code.

The Christian Horizon case is similar to the one involving Reverend James Ferry of the Anglican Church, in that part of Reverend Ferry's submis­sions to the Bishop's Court was his assertion that it would be manifestly unfair for the Anglican Church to require him to abide by a prohibition on homo­sexual activities when the church was actively turn­ing a blind eye to homosexual relationships by other ministers within the Anglican Church. For this rea­son, where a church is expecting an employee, whether it be a pastor or church secretary, to main­tain a prescribed lifestyle, it is essential that those expectations be articulated in the church constitu­tion and be included in an employment contract with the employee prior to employment being of­fered. In addition, the policing and enforcement of such requirements must be done diligently and with­out exception, otherwise a church runs the risk of being criticised for acting in an arbitrary and inconsistent manner in its treatment of employees, and thereby exposing the church to a charge of discrimi­nation under the Ontario Human Rights Code or similar legislation in other provinces.

11. Denominational Discipline of Member Churches←↰⤒🔗

Generally, church denominations in Canada are based on one of two types of structures. The first type are the hierarchical denominations consisting of a single church structure with local churches being members of the larger organization based on either a Presbyterial or episcopal polity. The other type of structure are denominations made up of independ­ent local churches based on a congregational polity which co-ordinates through fellowships, associa­tions, federations and so forth.

Within the hierarchical denominations, such as the United Church of Canada or the Anglican Church, the church constitution will normally include a mechanism for disciplining not only church mem­bers but local churches as well. However, this is not always the case with a denomination of independent churches. While member churches of such a denomi­nation may have provisions in their constitutions concerning discipline of members, the denomina­tion itself may not have a provision in its constitution to deal with the issue of disciplining of its member churches. Even if there is such a mechanism in the denomination's constitution, the issue of whether or not a church has in fact become a member of the denomination is often unclear, either because of poor historical records or lax formality that filled to properly record if a church did or did not become a member.

The consequences of either a lack of disciplinary procedure within the constitution of a denomination or the failure to properly record that the church is a member of the denomination may mean that the denomination has no ability to discipline or correct a member church. This scenario arose in the 1939 case of Ukrainian Greek Orthodox Church v. Trus­tees of Ukrainian Greek Orthodox Cathedral of St. Mary's the Protectress et al.²⁵ that came before the Supreme Court of Canada. In that case, the national denomination was unsuccessful in an attempt to restrain the activities of a local church because there was no evidence that the local church ever became part of the denomination, notwithstanding the fact that representatives of the local church had collabo­rated on various matters with officers and repre­sentatives of the national denomination.

As a result, if part of the function of a national denomination of independent churches is to have some measure of control or discipline over its mem­ber churches, even if it is limited to simply terminat­ing membership of the offending church in the de­nomination, then the constitution of the national denomination should include a mechanism for dis­ciplining its members. In addition, the records of the denomination should be reviewed on a regular basis to ensure that all churches that are assumed to be members of the denomination have in fact become members. Otherwise, the denomination will not have any jurisdiction over churches that have never for­malized their membership in it.

12. Church Doctrine←↰⤒🔗

While the courts will intervene in matters involving property, civil rights, employment and procedural matters, the courts will not become enmeshed in matters involving purely questions of church doc­trine. In the Ontario Court of Appeal decision of Balkou et al. v. Gouleff et al.²⁶ the court was asked to determine if part of the doctrine of the church in­cluded a principle of whether or not there was a prohibition on contact by the church with commu­nistic organizations. The court refused to rule on this question by stating that the relief being requested of the court involved questions of church doctrine which in the court's view was an inappropriate subject for judicial determination

13. Standards Established by Trust Deeds←↰⤒🔗

If discipline is pursued because there is a deviation from the accepted doctrine of the congregation set out in the church constitution, it is essential to ensure that the church constitution is neither contradicted nor supplanted by the church doctrine set out in an old trust deed by which the church may have acquired title to its current lands. In the 1929 decision of Wodell v. Potter²⁷ the court had to deal with a case where certain members of a congregation subscribed to a doctrine that was different from, but did not contradict, the doctrine originally required by mem­bers in the trust deed by which the congregation had originally acquired the church lands. The court held that a majority of the members of the congregation could not exclude existing members of the church by changing the doctrinal statement from what was contained in the still current deed of land on which the church had been built. The court held that the doctrine set out in the trust deed took precedent over the new church constitution and that as long as the members in question were able to subscribe to and not contradict the terms of the doctrine in the trust deed, they should not be deprived of membership in the church.

This decision has important consequences for congregations that wish to upgrade or otherwise change the requirements of membership by altering the accepted doctrine of the church from that which may have been set out in the terms of a trust deed that was often written in the last century and which few members, if any, are still familiar with. The anachronism of the trust deed may also pose problems for current church disciplinary procedure, in that a member being disciplined might be able to argue that as long as he or she complies with the normally simple terms of doctrine set out in the trust deed, that person should not be deprived of membership in the church or otherwise disciplined.

The extent to which a trust deed may take prec­edent over a constitution, if at all, will depend upon factors such as the strength of the wording in the current constitution, the wording of the trust deed and whether or not a member by subscribing to the current constitution, can be said to have waived his or her right to rely on the terms contained in the church trust deed. The potentially latent effect of an old but still applicable trust deed is a further exam­ple of the far reaching effect and complexities of church discipline in the functioning of a local con­gregation.

D. Practical Considerations←⤒🔗

The Supreme Court of Canada has succinctly sum­marized the impression of both the courts and soci­ety generally concerning church disputes that are brought before a secular court. In Ukrainian Greek Orthodox Church v. Trustees of Ukrainian Greek Orthodox Cathedral of St. Mary's the Protectress et al.²⁸ the court stated, "like most church quarrels, there is obviously much bitterness on both sides..." The purpose of this article is to help churches under­stand the expectations of the court; not so much to better equip the church in litigation but rather to avoid the possibility of the matter ever having to be dealt with by a court proceeding.

Based upon the principles that have been dis­cussed above, there are a number of practical considerations that should be reviewed by churches in an attempt to effectively implement church discipline.

Some of the recommendations that are set out below have been discussed by others in previous publications.²⁹ The recommendations that are dis­cussed in this article are suggestions only and will need to be modified or expanded as necessary, de­pending upon the particular circumstance of each church. As such, it is recommended that the follow­ing considerations be first reviewed with the church's lawyer before being put into effect.

1. To ensure that the church has an authoritative basis for implementing church discipline, its consti­tution should clearly set out the biblical references for discipline and dispute resolution amongst its members. The procedure for discipline should not be overly complicated but should reflect principles of natural justice by ensuring that discipline only occurs if;
   
   a) a specific allegation has been made,
   
   b) the subject member has received notice of the allegation as well as the place and time at which the relevant church officials will consider the allegation,
   
   c) the subject member is provided with a deci­sion arising out of the hearing together with reasons both in relation to the veracity of the allegations as well as the type of discipline that is to be imple­mented.
    
2. The constitution should clearly indicate that membership in the local church involves submission to the authority of the church leadership as well as the rights and privileges that are normally associ­ated with membership in a local congregation.
    
3. If there are policy statements of the church con­cerning conduct or life-style requirements that are legitimate expectations imposed on church mem­bers, those policies must be set out either in the church constitution or incorporated by reference into the constitution by stating that policy state­ments that are subsequently adopted by the church and approved by the membership are deemed to be part of the church constitution.
    
4. At the time of being admitted as a member of the church, a prospective member should be given a copy of the church constitution and asked to read it in detail. The prospective member should then be questioned by a church leader to ensure that the applicant has not only read but understood the consequences of subscribing to the constitution of the church. To evidence agreement in this regard, a prospective member should be required to sub­scribe in writing for membership to confirm his or her voluntary decision to become part of the local church and be subject to the authority of the church leadership. This document will provide evidentiary proof that the member has agreed to be subject to the church disciplinary process if an issue arises at a later time concerning the ability of the church to initiate discipline proceedings.
    
5. The constitution should specify that since mem­bership includes a commitment by members to min­ister to the needs of the church, a request by a member to withdraw from the church while under discipline will not become operative until the disci­pline proceedings have been completed. Such a pro­vision would permit a healing to occur to both the member and the church as a whole and would also ensure that a member who is being disciplined cannot conveniently avoid the disciplining process by unilaterally terminating his or her membership in an attempt to circumvent the legitimate restorative ministry of the church to that individual.
    
6. The church constitution should encourage church members as much as possible to settle personal disputes within the context of the church or through a Christian mediation service without rely­ing upon the alternative of referring the matter to the courts. However, it would be both impractical and unenforceable for a constitution to prohibit litiga­tion between members concerning non-church re­lated matters.
    
7. To avoid disgruntled members either asking for judicial review of procedural matters or seeking damages against church leaders, the constitution should prohibit action being commenced against the church and it's leaders concerning legitimate disci­plinary procedures set out in the church constitu­tion. This would, however, not preclude a member from seeking the court's assistance in the event that the procedures in the constitution had either not been adopted or were being enforced contrary to principles of natural justice.
    
8. In the event that church discipline is required, it is essential that the leaders of the church familiarize themselves and follow the procedures set out in the constitution without exception to avoid a claim by the disciplined member that the procedure imple­mented had been conducted improperly, unfairly or prejudicially.
    
9. Throughout the disciplinary proceedings, the confidentiality of information given to church leaders must be respected. As such, only those persons involved in the disciplinary proceedings should be apprised of the information that is divulged in con­fidence by the person being disciplined. In the event that the church leadership decides that an announce­ment concerning the discipline of a member needs to be made to the church, such announcement should be directed to the members of the church and should be given orally from a prepared text. To avoid a claim for breach of privacy, any statement pertain­ing to the discipline of a member at a public worship service should be avoided. Instead, the matter should be dealt with at a meeting of members only. In addition, by ensuring that the information is given orally, it will avoid the possibility that a written statement is copied and distributed to persons out­side of the church. The content of the information given should be limited to information for which the following two part question can be answered in the affirmative,
   
   "Does the information need to be dissemi­nated to assure other members that the integrity of the collective ministry of the church is being maintained and can it be reasonably concluded that such information will not unduly embarrass or prejudice the reputation of a member."
   
   For example, in the case of adultery, a statement that a member has been found to be in an adulterous relationship would be appropriate but the details of the relationship would not be.
    
10. With the exception of a request for transfer of membership, there is little justifications, if any, in advising other churches of the disciplinary action taken against a member, even where such churches are within the same denomination. When a request for transfer of membership is received, a simple reference to "John Doe was not a member in good standing at the time of his departure from the church" or "John Doe left the church while under discipline" is all that is necessary. It will then be incumbent upon the other church to make inquiries of the former member concerning the reason for his or her depar­ture from the previous church.
     
11. With the exception of individuals whose pres­ence is disruptive to public worship or threatening to individual members, a former member who has been disciplined should not be barred from public worship.
     
12. Any decision concerning discipline should be limited to correction and/or termination of membership and should not extend to secondary discipli­nary action outside of the church, such as boycotts or picketing of a former member's business or home.
     
13. To avoid allegations of discrimination contrary to legislation such as the Ontario Human Rights Code arising from discipline of church employees, it is recommended that the following steps be taken:
    
    a) The church constitution should specify that all employees are to be members of the church, both to fulfil legitimate job qualification and to ensure that all employees will be subject to the same author­ity and discipline as that which is imposed on all members of the church.
    
    b) If church employees are expected to comply with life-style or moral conduct requirements, then those requirements should be set out not only in the church constitution but within a separate employ­ment contract that the employee would be required to enter into before commencing his or her employment with the church. These requirements must be clearly brought to the attention of the employee during the interview procedure and should be included in job description and personnel policy manu­als.
    
    c) The church must ensure that life-style or moral conduct requirements are consistently and fairly applied to all employees of the church.
     
14. For those churches with adherents who are re­luctant to become members of the church because of doctrinal differences, a practical alternative is to create two classes of members. One class would be "adherents" who would agree to be subject to the church constitution and the procedures set out therein but who would not be required to subscribe to the statement of faith or doctrine of the church. Al­though they would not be entitled to vote, they would at least be under the authority of the church. The other class would be "voting members" who would be required to subscribe to the statement of faith or doctrine of the church but who would have the additional benefit of voting rights.
     
15. For those churches that hold their land pursuant to an old trust deed which includes a statement of doctrine that is different from the one currently used by the church, legal advice should be sought to determine if steps can be taken to free the congrega­tion from the terms of the trust deed. However, this is potentially a very complicated area of the law and should not be undertaken without carefully review­ing all of the legal ramifications that may be in­volved.

E. Sample Provisions on Membership and Discipline←⤒🔗

Attached as a schedule to this article are excerpts from various church constitutions dealing with membership, discipline and employment. The provisions are not intended to be precedents but rather to provide examples of how the issues raised in this article might be dealt with in reviewing and amend­ing a church constitution.

There are a number of limitations, however, involved with the sample provisions.

1. They are excerpts only and therefore should not be relied upon as a seamless and coherent set of constitutional provisions. For instance, there are many provisions that have not been included be­cause of the lack of space, such as the procedure for admitting a person into church membership.
    
2. They were drafted in the context of incorporated churches under federal as opposed to provincial legislation.
    
3. They are intended as provisions for independ­ent local churches. Members of hierarchical denomi­nations such as United Church of Canada and the Anglican Church would not require the provisions contained in the sample provisions, as the church constitution for those churches already deals with procedures on discipline.
    
4. The sample provisions on discipline do not include procedures on referring deliberations on disci­pline to the membership of the church. Although this is a legitimate biblical procedure, the provisions required are too long to include as a sample to this article.
    
5. The provisions presume a church structure that includes both a board of deacons and a board of elders.
    
6. The pastor has not been included on the board of deacons for reasons discussed in an earlier article by the author entitled "An Analysis of Remuneration of Directors of Charities In Ontario" In CCCC Bulletin No. 3, June 4, 1991.
    
7. The detail of procedure in the attached sample provision may need to be expanded or simplified depending upon the circumstances of each church. For instance, a church may wish to have its discipli­nary procedures follow the more detailed require­ments set out in the Ontario Statutory Powers of Procedures Act ³⁰ as it relates to the availability of legal counsel by parties, whereas other churches may understandably wish to ensure that a discipli­nary hearing will not escalate into a full blown court battle with lawyers acting for opposite parties.
    
8. Finally, the samples are for educational pur­poses and must not be relied upon as clauses that will necessarily be either appropriate or legal for every church. As such, it is essential that any church contemplating using any of the provisions contained in the attached excerpts first review the samples with their church solicitor.

Notwithstanding the above noted limitations, it is hoped that the sample provisions will be of gen­eral assistance to churches as they look at practical ways of coming to terms with church discipline.

F. Conclusions←⤒🔗

The effects of recent court developments and gov­ernmental legislation have had a significant impact on the ability of the church to operate independently of state intervention. In consideration of the growing activism of the court in judicial review of church discipline, the best course of action that a church can take is a preventative one. In this regard, local churches would be well advised to review their constitution to ensure that it provides an effective procedure for church discipline. Such a review will prove to be a wise investment of time and effort in avoiding potential legal ramifications arising out of church discipline both now and in the future.