|Noteup:||Search for decisions citing this decision|
Legislation cited (available on CanLII)
- Courts of Justice Act, R.S.O., 1990, c. C.43
- Davis v. United Church of Canada, reflex— 8 O.R. (3d) 75
- Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (S.C.C.) —  3 S.C.R. 165 •97 D.L.R. (4th) 17 • 1 W.W.R. 113 •81 Man. R. (2d) 1
- Melnyk v. Wiwchar, 2007 SKQB 118 (CanLII) —  7 W.W.R. 156 •57 C.C.E.L. (3d) 306 •295 Sask. R. 125
COURT FILE NO.: CV-08-0068-00
SUPERIOR COURT OF JUSTICE
|REVEREND BRIAN HART Plaintiff
– and –
ROMAN CATHOLIC EPISCOPAL CORPORATION OF THE DIOCESE OF KINGSTON, IN CANADA Defendant
|)) )) )) )) )))||R. Steven Baldwin, for the Plaintiff|
|Andrea Risk, for the Defendant|
|)||HEARD: June 18, 2010|
REASONS FOR decision
Justice Robert N. Beaudoin
 The defendant Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada (“the Archdiocese”), seeks a stay of these proceedings pursuant to s. 106 of the Courts of Justice Act, or, in the alternative, an order staying or dismissing this proceeding pursuant to Rule 21.01(3) of the Rules of Civil Procedure. This motion arises as the result of civil proceedings brought by Father Brian Hart (“Father Hart”)against the Archdiocese. While it is not stated as such in the Statement of Claim, Father Hart’s counsel confirmed that the action is limited to a claim for damages for constructive dismissal.
 In its Factum, the Archdiocese also made reference to Rule 20 (Summary Judgment), however, since this relief was not sought in its Notice of Motion I refused to consider the motion on the basis of Rule 20.
 Rule 21.01 (3) provides:
21.01 ((3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,(a) the court has no jurisdiction over the subject matter of the action;
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
 Section 106 of the Courts of Justice Act,R.S.O. 1990, c. C.43. provides:
106. A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
 The issues that arise on this motion are:
A. Whether this Court has jurisdiction over the subject matter of Father Hart’s claim; and
B. If not, whether the claim should be dismissed or stayed.
 The facts are set out in the Affidavit of Reverend Monsignor Joseph Lynch, Vicar General, Chancellor and Associate Judicial Vicar of the Archdiocese.
 The Archdiocese is a corporation incorporated pursuant to a special act of Parliament in 1845, being an Act to Incorporate the Roman Catholic Bishops of Toronto and Kingston, in Canada, in each Diocese. The senior priest and ecclesiastical authority of the Archdiocese is the Archbishop.
 Father Hart is an ordained Roman Catholic priest. In 2004 he was appointed pastor of two churches in Prince Edward County, Ontario; St. Gregory the Great Parish in Picton and St. Frances of Rome in Wellington.
 In 2004 and 2005, Archbishop Meagher raised concerns about Father Hart’s ability to continue in this appointment. These concerns first involved the use of cheques drawn on parish funds to business organizations to which Father Hart was affiliated. On December 13, 2004, Father Hart was directed by the Archbishop to resign as an officer and director of these business organizations.
 In 2006, employees of the parish of St. Gregory the Great raised concerns about Father Hart’s association with a young man named [name redacted by Sylvia] and [redacted] ’ fraudulent use of parish funds. It was reported that Father Hart was going to enter into a business arrangement with [redacted] and two others. In April, 2006 Father Hart was advised by the Archbishop to end any business relationships with [redacted] and to not let [redacted] in or around church property.
 In 2006 Archbishop Meagher had a number of meetings with Father Hart. In June of that year, parish employees again reported that Father Hart continued to allow [redacted] on church property. Archbishop Meagher advised Father Hart that he considered his actions to constitute a flouting of his vow of obedience.Father Hart was instructed to take a 30 day retreat to consider if he wished to continue as a parish priest.
 On July 10, 2006 Father Hart wrote to Archbishop and requested a meeting of his own devise to challenge the criticisms of the parishioners and others. He then wrote and provided an explanation about the cheques written by [redacted] but did not respond to the other concerns raised.
 On July 21, 2006, Father Hart was first placed on administrative leave for his failure to terminate his relationship with redacted]. Monsignor Lynch characterizes this as an administrative act that could be challenged under Canon Law. Father Hart did not challenge that decision.
 On September 21, 2006, Father Hart used a small meeting of parishioners to describe his relationship with [redacted] and to challenge the instruction of the Archbishop. He continued to be involved in a business relationship with [redacted]. He held this meeting in the absence of the Archbishop or anyone from the Archdiocese.
 The Archbishop then wrote to Father Hart and advised him that he considered his behaviour to be unacceptable. Father Hart responded, outlined his disagreement with the Archbishop and asked for a hearing of his own devise. The Archbishop subsequently contacted Father Hart, outlined his concerns and asked that he attend a psychological assessment at the Southdown Institute, a health centre specializing in the assessment and support of members of the clergy. That assessment did take place and the assessor, Dr. Philip Dodgson, advised that Father Hart presented a serious risk and recommended that Father Hart undergo a four to six month residential treatment before being returned to active Ministry.
 Father Hart refused to undergo the treatment until he had been given an opportunity to confront those parish employees who had conveyed their concerns to the archdiocese. Archbishop Meagher died in January 2007 and was replaced by Reverend Brian Price as temporary administrator. Reverend Price suspended Father Hart’s faculties to exercise sacramental ministry on May 21, 2007 until treatment had been received. Monsignor Lynch describes this decision as a second administrative act that could be challenged under Canon Law. Father Hart did not challenge it. He retained counsel to pursue a remedy in the civil courts.
 Archbishop O’Brien was appointed in July 2007. He had subsequent meetings with Father Hart. He advised Father Hart that if did not resign as pastor steps would be taken to remove him. On March 5, 2008, Father Hart was advised that the first step in the canonical process to remove him as pastor had been initiated. Father Hart was advised of the grounds for the removal and was asked for a response. He did not reply nor did he respond to a subsequent letter sent by the Archbishop.
 On June 2, 2008 Archbishop O’Brien issued a decree of removal removing Father Hart as pastor. A detailed version of the decree was given to Father Hart setting out the reasons for his removal and his right to appeal the decree under Canon Law. This is described by Monsignor Lynch as a third administrative decision. In response, Father Hart commenced these proceedings.
 At around the same time the Archdiocese was named as a co-defendant, along with Father Hart, in a legal action brought by [redacted], wherein he claimed damages for intimidation, sexual assault and breach of fiduciary duty. I am advised that this proceeding has been abandoned by that plaintiff.
 Although Father Hart was removed as pastor, he remains a priest and the Archdiocese has an obligation to support him. He can also be appointed as pastor elsewhere.
 Two experts in Canon Law provided opinions to the Court. Reverend Douglas Stamp gave evidence on behalf of the diocese. John K. Murphy provided an opinion on behalf of Father Hart. Their qualifications as experts were not challenged. Each of them was cross-examined on their affidavits.
 According to Rev. Stamp, the code of Canon Law of the Roman Catholic Church (the “Canon Law”) is the oldest continuously functioning legal system in the western world, predating the common and civil laws. It provides an internal ecclesiastical law that governs the church and its members.
 When individuals enter the seminary to become members of the clergy, they undergo several years of training. The training includes instruction in the Canon Law. In addition, prior to ordination into the deaconate and priesthood, candidates present petitions and swear declarations in which they state that they desire of their own free will to be ordained and to abide and be governed by the precepts of their superiors and the tenets of the canons.
 Administrative acts may be appealed under Canon Law and the code on Canon Law sets out the procedure (canons 1732 to 1739). Canon 1733 provides for recourse against these acts through the form of alternate dispute resolution. According to Rev. Stamp the right to appeal is quite broad as are the remedies that might be granted on appeal, these include awards of monetary damages.
 Both the expert retained by the Archdiocese and the expert retained by Father Hart on this motion agree that the office of pastor is one that can be created only by way of the Canon Law. The Canon Law also provides for the term of office and stipulates the duties and responsibilities associated with fulfilling that office for the term for which it is held. Finally, the Canon Law dictates the circumstances under which an office of pastor can be brought to an end.
 Mr. Murphy notes that the Church recognizes that it is necessary to utilize the civil law in certain matters. He gives as an example an action for possession of property. He then states “One can argue that the ‘possession’ in question is Father Hart’s ecclesiastical office.” He argues further that the relationship between a bishop and a priest is analogous to the Church’s position on marriage. While the Church will rule on the validity of the marriage, it leaves it to the civil law as to how the assets of the parties are to be divided. When the relationship between a bishop and a priest is compromised, he suggests that the relationship is reduced to that of employer and an employee. He admitted in cross–examination however that the core of the office of pastor is sacramental and is defined by the canon law.
 The Roman Catholic Church addresses the departures of priests by way of the tenets of canon law. Mr. Murphy confirmed that, in his prior experience as Chancellor in the Archdiocese of Toronto, none of the disputes between priests and bishops were litigated in the civil courts. His own departure from the Archdiocese was not handled in the civil courts.
 As noted above, although Father Hart has been removed as pastor, he remains a priest with the Archdiocese and, unless he is laicized or “de-frocked”, the Archdiocese continues to be responsible for him. This responsibility includes an obligation to support Father Hart until his death.
 In Levitts Kosher Foods v. Levin,  O.J. No. 2785 (S.C.J.) Justice Benotto dealt with an action that was brought by a supplier of Kosher meat who had sued three Toronto rabbis. The rabbis maintained that the dispute was religious in nature and that the courts ought not to intervene and they sought a stay of the proceedings. Justice Benotto noted that a stay of proceedings is rarely granted and she carefully reviewed the justicability of the claim before her. She canvassed a number of authoritiesand summarized the applicable law at para 31:
The courts are understandably reluctant to intervene in the internal matters of a religious body. To do so would deprive the religious organization of the right to interpret its own doctrine. Our courts have consistently held that it is not appropriate for civil courts to decided questions of religious doctrine. The Supreme Court of Canada has held that the courts are slow to exercise jurisdiction over religious groups. In adjudicating church disputes, the Court will not look to the merits of the decision, but rather looks at the adherence to the rules, procedural fairness and the absence of mala fides and natural justice. The courts will intervene, however, where the matter is one of property or civil rights and the dispute can be resolved according to applicable civil law principles.
 Benotto J. noted that it was first necessary to identify the real issue in a claim before determining the appropriateness of court involvement. Although the Plaintiff’s claim in that action was couched in property and civil rights terms, she concluded that the essence of the claim was an attack on religious policies. She concluded at para. 45:
The issue here is one of religious belief and conscience. I conclude that the action is one where continuance would work an injustice to the defendants because the claims are not justicable and are thus oppressive, vexatious, and an abuse of process.
 In this proceeding, although the plaintiff has framed his action as a wrongful dismissal claim, and his expert has tried to characterize the proceeding as one that involves property and civil rights. Mr. Murphy conceded that the office of Pastor is ecclesiastic in nature. He agreed that office of pastor was created by and governed by Canon law. Canon Law dictates the circumstances under which the office of pastor can be brought to an end. For these reasons, I conclude that Father Hart’s removal as pastor is not justicable by our courts.
 In an earlier decision relied upon by both parties, namely, Pedersen v. Fulton,  O.J. No. 168 (Gen. Div.), Justice Cavarzan accepted the defendant’s arguments that the suspension of a Roman Catholic priest from office and from the administration of the sacraments had to be addressed before the Ecclesiastical Court through the provisions of Canon Law.
 Justice Cavarzan reviewed the relevant case law at that time and noted the decision of Greer, J. in Davis v. United Church of Canada et al. reflex, (1992), 8 O.R. (3d) 75 at 88 where she concluded that our courts will not intervene in ecclesiastical matters unless the rules of natural justice have been breached. In Pedersen, the court stayed the proceeding and held at para. 21:
Even if the requirements of natural justice were not satisfied in these circumstances, I have concluded, for two reasons, that this court should not intervene. The first is that the procedure contemplated by the Revised Code of Canon Law ensures that the suspension can be challenged at a full hearing before an independent tribunal. An appeal under Canon 1353 has the practical effect of nullifying (suspending) the suspension imposed by the defendant pending the outcome of a hearing before an in ecclesiastic tribunal which would not include the defendant as a member. The second reason is that there is an obligation on the plaintiff, in these circumstances, to exhaust his remedies under the Revised Code of Canon Law.
 The plaintiff relies on this case because the motions judge went on to conclude that the claim for damages for wrongful dismissal and slander could not be dealt with by a stay of proceedings and were considered under the summary judgment branch of the motion before him. In his Factum, Father Hart maintains that the argument of the church that the matters of a priest’s employment are ecclesiastical in nature and beyond the jurisdiction of the civil court was rejected by the court in Pedersen. I don’t share that view. Cavarzan, J. clearly directed that the suspension of a priest from office was to be challenged before an ecclesiastical tribunal. He stayed that part of the claim.
 As I noted at the outset, the defendant did not rely on Rule 20 in its Notice of Motion and I refused to deal with the motion on that basis. There is no claim for slander here as there was in Pedersen. The only claim is one of constructive dismissal. Perhaps Cavarzan J. was not directed to those provisions of Canon Law that allow monetary compensation. Although he relied on Rule 20 in dismissing the claim for damages he based his decision on the uncontradicted evidence before him that Canon Law governed the plaintiff’s claim. Just like the plaintiff in that case, Father Hart remains a cleric and has not been dismissed from the cleric state. In my view, on that basis, there was no need for Cavarzan J. to consider the issue of damages that flow from the removal from priestly office.
 Plaintiff’s counsel submitted two other decisions for consideration. In Gruner v. McCormack  CarswellOnt 707, Justice Epstein allowed a claim for damages for libel to proceed. In that case, the alleged defamatory statements were published not only to Archdiocese of Toronto but also in the secular media throughout North America. She concluded that the essence of the claim went well beyond internal matters of the church. That motion was also made seven years after a statement of defence was delivered and the matter had been set down for trial. There is no claim for libel here and the motion has been brought promptly.
 In Melnyk v. Wiwchar, 2007 SKQB 118 (CanLII), 2007 SKQB 118 (CanLII), the Saskatchewan Court of Queen’s Bench dealt with a claim where the plaintiff priest was unable to carry out his duties as a pastor by reason of disability. He sued the Ukrainian Catholic Episcopal Corporation of Saskatchewan and the Archbishop and claimed a violation of that province’s Human Rights legislation. The only issue in that decision was the Bishop’s personal liability apart from the Corporation. In my view, Justice Wilkinson’s comments that religious societies have no special status at law are obiter and are not binding.
 Having regard to the essential religious nature of the relationship between Father Hart and the defendant, our courts will only interfere in religious disputes in two circumstances: (1) where the requirements of natural justice have not been satisfied by the internal processes; or (2) where those internal processes have been exhausted.
 When each of the administrative acts was taken by the Archdiocese, reasons for the concerns were communicated to Father Hart, he was given an opportunity to respond, and he had access to Canon Law remedies if he wished to challenge them. Father Hart refused to avail himself of those remedies
 In Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (S.C.C.),  3 S.C.R. 165, the Supreme Court of Canada said that the content of the principle of natural justice is flexible and depends on the circumstances in which the issue arises. The basic requirements are notice, an opportunity to make representations and an unbiased tribunal. These requirements are set out in the canons.
 Prior to both decisions being made, Father Hart was provided with details of the concerns both in meetings with the Archbishop and with others, and in numerous letters that were sent. He had an opportunity to respond. Father Hart could have appealed these administrative decisions to an impartial tribunal. Both experts agreed that the remedies that could have been awarded to Father Hart on an appeal are quite broad and include monetary compensation.
 Instead, Father Hart tried to impose his own process and requested a hearing of his own devise involving parishioners and others whose criticisms he sought to challenge. His request was denied. Despite this, however, Father Hart arranged and held his meeting. Mr. Murphy agreed that there is no right under the Canon Law to a hearing in the absence of an adverse decision such as an administrative decree and that there would be no need for such a hearing. He went on to agree that a hearing can be obtained, but only after a decree is issued and if the priest appeals that decree under the Canon Law and subsequently requests a hearing before the Congregation of the Clergy.
 Finally, although the expert retained by Father Hart criticized the Archdiocese in his affidavit for not appointing legal counsel for Father Hart, he agreed under cross-examination that the canons on which he relied are not applicable here as they pertain to penal charges. The Canon Law only requires such counsel to be appointed if the priest is not represented and the superior (i.e., the Archbishop) considers such representation to be necessary. In a letter dated June 8, 2008, Father Hart advised the Archbishop that he had received advice from a canonical lawyer. There was therefore no need to appoint counsel. I conclude that there was no denial of natural justice
Internal Processes not Exhausted
 Father Hart has made no attempt to pursue any remedy under Canon Law. He has failed to exercise his rights although he was advised of the processes on an ongoing basis. While the plaintiff’s expert offers the opinion that the prospect of a timely disposition of Father Hart’s complaints through the provisions of Canon Law “is virtually unheard of” he admitted that he had no statistics to support that statement and that this was strictly his opinion.
 The essence of the claim between Father Hart and the Archdiocese is ecclesiastic in nature and this court has no jurisdiction over that dispute. Moreover, the internal processes that are designed to deal with that dispute do not offend the principles of natural justice and Father Hart has not exhausted the internal processes available to him. For these reasons, these proceedings constitute an abuse of process and are stayed. The parties may make brief submissions as to costs within 20 days of the release of this decision.
The Hon. Mr. Justice Robert N. Beaudoin
Released: August 31, 2010.
Hart v. Roman Catholic Episcopal Corporation of The Diocese of Kingston, in Canada, 2010 ONSC 4709
COURT FILE NO.: 08-0068-00