Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728

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CITATION: Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728

DATE: 20111122

DOCKET: C52714

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and MacPherson JJ.A.

BETWEEN

Reverend Brian Hart

Plaintiff (Appellant)

and

Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada

Defendant (Respondent)

R. Steven Baldwin, for the appellant
Andrea Risk, for the respondent
Heard: May 6, 2011
On appeal from the order of Justice Robert N. Beaudoin of the Superior Court of Justice, dated August 31, 2010, with reasons reported at 2010 ONSC 4709.

Laskin J.A.:

A.                OVERVIEW

[1]              The appellant, Father Hart, is an ordained Roman Catholic priest.  In 2004, the respondent, the Archdiocese, appointed Father Hart pastor to a church in Picton and to a church in Wellington, Ontario.  He was appointed for a renewable six-year term.

[2]              In 2006, the Archdiocese became concerned about Father Hart’s business relationship with a young man and about irregularities in parish finances.  The Archdiocese proceeded to issue three decrees to Father Hart.  In July 2006, it placed him on administrative leave.  In May 2007, it suspended his faculties to exercise sacramental ministry.  Then in June 2008, the Archdiocese removed Father Hart from office.

[3]              Under canon law Father Hart could have appealed each of these three decrees.  He chose not to do so.  Instead, he brought this action for damages for constructive dismissal.

[4]              The Archdiocese brought a motion under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43, and rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to stay Father Hart’s civil action on the ground that the court had no jurisdiction over his claim.  The Archdiocese contended that its relationship with Father Hart was ecclesiastical in nature, and governed by canon law.  Father Hart was therefore required to seek redress, not through the courts, but through the internal review process provided by canon law.

[5]              The motion judge, Beaudoin J., agreed with the Archdiocese’s contention.  He stayed Father Hart’s action as an abuse of process.  He gave detailed reasons in which he concluded at para. 45:

The essence of the claim between Father Hart and the Archdiocese is ecclesiastical 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.

[6]              On his appeal, Father Hart makes three submissions:

(1)              The motion judge erred by making findings of fact on disputed issues;

(2)              The motion judge erred in holding that the Superior Court of Justice has no jurisdiction over Father Hart’s claim; and

(3)              The Archdiocese treated Father Hart unfairly because it refused his request for a hearing.

[7]              I do not agree with these submissions.  In my view, Beaudoin J. correctly decided this motion.  I would therefore dismiss Father Hart’s appeal.

B.                 ANALYSIS

I.         Did the motion judge err by making findings of fact on disputed issues?

[8]              Father Hart submits that the motion judge erred by making findings of fact on disputed issues when the only issue before him was the narrow question of subject matter jurisdiction.  He argues that the motion judge should have let his action go to trial.  Father Hart complains about the following five findings made by the motion judge:

·                    The nature of the relationship between Father Hart and the Archdiocese was exclusively ecclesiastical;

·                    The chronology of events;

·                    The nature and adequacy of the administrative processes under canon law;

·                    The Archdiocese’s internal administrative processes do not offend the principles of natural justice; and

·                    Father Hart failed to exhaust internal processes available to him.

[9]              Father Hart argues that because this was a Rule 21 motion, the motion judge ought not to have made findings on these disputed issues, and then used those findings to decide the motion.  I do not agree with this argument.

[10]         I start with the obvious point that evidence is admissible on a motion to determine jurisdiction.  A court cannot resolve a question of subject matter jurisdiction without a factual foundation.  On the present motion Father Hart filed one affidavit from an expert on canon law.  The Archdiocese filed two affidavits, one from an expert on canon law, the other from the Vicar General of the Archdiocese.  All three deponents were cross-examined.  Their evidence went before the motion judge without objection.

[11]         Although evidence is admissible on a jurisdiction motion, the courts have limited the motion judge’s fact-finding powers to those facts necessary to decide jurisdiction.  The motion judge may make findings on jurisdictional facts but not on “disputed central questions of fact.”  The rationale for limiting the motion judge’s fact-finding powers in this way is to prevent a jurisdictional challenge from becoming a mini-trial, and thereby doing an “end run” around what should properly be a motion for summary judgment: see Goudie v. Ottawa (City), 2003 S.C.C. 14, [2003] 1 S.C.R. 141.

[12]         Even findings on jurisdictional facts may be beyond the purview of a motion judge if those jurisdictional facts are at the same time disputed central questions of fact, that is, facts going to the underlying merits of the claim.  That was the situation in Goudie.  There, employees covered by a collective agreement with the City of Ottawa sued in the Superior Court alleging a breach of a pre-employment contract outside the terms of the collective agreement.  The City moved to stay the action on the ground that labour disputes must be arbitrated, not litigated in the courts.  The motion judge agreed and dismissed the action.

[13]         This court overturned that decision and the City’s appeal was dismissed by the Supreme Court of Canada.  As Binnie J. said at para. 33, “The pleadings themselves established that the central allegation of jurisdictional fact (the existence of a pre-employment contract) was also the central issue on liability in the lawsuit.”  Thus, “the jurisdictional issue could not be determined on a preliminary motion” (at para. 34).

[14]         The motion giving rise to this appeal differs from the motion in Goudie in that here the jurisdictional facts are quite separate from the facts relating to the underlying merits of Father Hart’s constructive dismissal claim.  Four of the five findings Father Hart complains of relate to the question of the Superior Court’s jurisdiction over his claim; not one is a disputed central question of fact relating to its merits.  The second finding – the chronology of events – simply puts the jurisdiction argument in context.  The motion judge was entitled to make all five findings to decide whether the court had jurisdiction.  I would not give effect to this ground of appeal.

II.        Did the motion judge err by holding that the Superior Court of Justice has no jurisdiction over Father Hart’s claim?

[15]         Father Hart submits that the motion judge erred in holding that he could not maintain his action for damages for constructive dismissal.  He makes two related points.  First, he says that the civil courts have always maintained jurisdiction over employment and contractual disputes.  Second, he says that his relationship with the Archdiocese was “multi-faceted” – some aspects may have been ecclesiastical, but other aspects concerned property and civil rights.  For example, he contributed to unemployment insurance and Canada pension, paid income tax, and most important to him, lost the lodging that accompanied his position when he was removed as pastor.

[16]         I do not accept Father Hart’s submission.  I will deal first with the applicable general principles and then with Father Hart’s specific circumstances.

[17]         As a general rule, the Superior Court of Justice has jurisdiction to adjudicate claims of wrongful dismissal and breach of an employment contract.  But the general rule has exceptions.  One well recognized exception is where the essential character of a dispute between an employer and an employee arises from the interpretation, application, administration, or violation of a collective agreement.  Those disputes must be resolved by arbitration, not by an action in the court: see Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.

[18]         A second exception is where the rules of a self-governing organization, especially a religious organization, provide an internal dispute resolution process.  A person who voluntarily chooses to be a member of a self-governing organization and who has been aggrieved by a decision of that organization must seek redress in the internal procedures of the organization: see Levitts Kosher Foods v. Levin (1999), 45 O.R. (3d) 147 (S.C.).

[19]         The courts will interfere in the internal affairs of a self-governing organization in only two situations: where the organization’s internal processes are unfair or do not meet the requirements of natural justice; or where the aggrieved party has exhausted the organization’s internal processes.  In the latter case, subject to any enabling statutory provision, the reviewing court will not consider the merits of the internal decision, but will determine only whether the decision was carried out in accordance with the organization’s rules and the requirements of natural justice: see Ukrainian Greek Orthodox of Canada v. Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, [1940] S.C.R. 586; Lakeside Colony of Hutterian Brothren v. Hofer, [1992] 3 S.C.R. 165; Mott-Trille v. Steed (1996), 27 O.R. (3d) 486 (S.C.).

[20]         The Roman Catholic Church is a self-governing organization.  Its canon law provides an internal review process for ecclesiastical disputes.  The expert evidence before the motion judge showed that where an administrative decree may affect the rights of a party, canon law requires that the party be given notice, an opportunity to respond and an unbiased tribunal.  Canon law also provides a broad range of remedies, including the substitution of a different decree, monetary compensation and even a trial.

[21]         The motion judge found that the internal review process under canon law meets the requirements of natural justice.  Father Hart does not suggest otherwise.  Was he then bound to follow the internal review process instead of suing in the Superior Court?

[22]         The answer to that question turns on the nature of his dispute with the Archdiocese.  The nature of the dispute is determined not by its legal characterization – as breach of an employment contract or a claim for constructive dismissal – but by the facts giving rise to it: seeWeber, at p. 955.

[23]         The facts show that at its core Father Hart’s dispute with the Archdiocese is ecclesiastical in nature and subject to canon law.  When he was appointed pastor, his appointment was expressly subject to canon law.  The experts who testified on the motion agreed that the office of pastor is ecclesiastical.  Canon law creates the office, provides for the office’s duties and responsibilities, and describes the circumstances under which the office can be brought to an end.  Under canon law the church can remit a matter to the civil law but it has never remitted a pastor’s removal from office.

[24]         Therefore, even though some aspects of Father Hart’s dispute with the Archdiocese concern matters of property, for example his loss of lodging, at its essence this dispute is ecclesiastical.  Redress must be sought through the internal review process established by canon law for disputes of an ecclesiastical nature.  Father Hart does not contest that this review process accords with the rules of natural justice.  However, even though he did not invoke this review process he submits that the Archdiocese treated him unfairly because it refused his request for a hearing.

III.      Did the Archdiocese treat Father Hart unfairly by refusing his request for a hearing?

[25]         Over the course of two years, the Archdiocese issued three decrees to Father Hart.  In each instance, it gave him notice of its concerns – both orally and in writing – and an opportunity to respond.  Father Hart did not seek an internal review of any of these decrees.  Nonetheless, he submits that he was treated unfairly, and in effect exhausted any internal remedies available to him.  He makes that submission because the Archdiocese denied his request for a meeting or hearing.

[26]         Father Hart requested a meeting in early July 2006, before the first administrative decree.  He wanted to meet with the parishioners and others to answer criticisms of his conduct.  The Archdiocese denied his request because canon law does not provide for a hearing before a decree has been issued.  Father Hart went ahead and held the meeting anyway.

[27]         Then in September 2006, Father Hart held another meeting with a small group of parishioners.  He convened this meeting without notice to any senior official from the Archdiocese and none attended.

[28]         These two meetings were not sanctioned by canon law.  Father Hart had available to him a fair review process, which he chose not to follow.  Instead he tried to circumvent that process. Neither of these meetings reflects any unfairness on the part of the Archdiocese.  As he was not treated unfairly, I would not give effect to this ground of appeal.

C.                CONCLUSION

[29]         I agree with the motion judge that the Superior Court of Justice has no jurisdiction over Father Hart’s claim.  I would dismiss his appeal with costs, which I would fix at $8,000, inclusive of disbursements and all applicable taxes

RELEASED:  Nov 22, 2011                                                “John Laskin J.A.”

“JL”                                                                                      “I agree K. Feldman J.A.”

“I agree J.C. MacPherson J.A.”

13 Responses to Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728

  1. Sylvia says:

    I didn’t realize that Father Brian Hart had appealed the stay of his wrongful dismissal suit against the Archdiocese of Kingston, Ontario.

    My goodness but he must have money to burn. This appeal to the Ontario Court of Appeal has cost Hart whatever his own legal fees are, plus he has to pick up the $8,000 tab incurred by the diocese to defend itself!

    And all of this prompted by his “relationship with a young man” and “financial irregularities” at his former parish!

    • jennifer says:

      I desperately need to speak to someone about this man Brian Hart!!! Please contact me!!!

      • Craig L says:

        Dear Jennifer,
        I was Brian Hart’s roomate way back in 1979. He and I had many interesting conversations about religion. I have not seen him since then, and it is a great disappointement to learn of his recent fate.
        regards,
        Craig

  2. Beth says:

    I was a member of a parish where Father Hart used to work. He was a wonderful priest and a kind and thoughtful man. I have seen many priests come and go and he is certainly a loss to the church. Far and away, he was the best priest to ever come to our parish. I wish him the best of luck in whatever endeavour he chooses. I can also wholeheartedly say that there is no doubt in my mind that his firing was unjust.

  3. MM says:

    This man is still in the community in which he last served as leader of the parish. He is making money by renting out rooms to people who are on limited income, in desperate times in their lives, enabling behavior that are hurting these individuals and profiting from it. This man is a disgrace to the church and should be stripped of all connection to it.

  4. Leona says:

    Sylvia,

    Does this paragraph in the judges statement point out the reasons we don’t see more dismissals of convicted clergy?

    ” The facts show that at its core Father Hart’s dispute with the Archdiocese is ecclesiastical in nature and subject to canon law. When he was appointed pastor, his appointment was expressly subject to canon law. The experts who testified on the motion agreed that the office of pastor is ecclesiastical. Canon law creates the office, provides for the office’s duties and responsibilities, and describes the circumstances under which the office can be brought to an end. Under canon law the church can remit a matter to the civil law but it has never remitted a pastor’s removal from office.”

    If their appointments are “expressly subject to canon law” then do our provincial judges in sentencing understand that these men due to canon law will still be given permission to work after their sentence has been served? I didn’t realize that in Canada canon law could in some circumstances take precedence over our federal and provincial laws.

    • Sylvia says:

      The courts can sentence and include probation conditions and so on in sentencing, but they do not dictate employment. It is up to dioceses, and schools boards, and hospitals and so on to determine whether or not they will hire or continue to employ a convicted molester. Some will, and some will not. The courts have no jurisdiction to tell a diocese that Father X must be defrocked, any more than the court has the jurisdiction to tell a school board that Mr. Y must be fired.

  5. JJ says:

    would like more info on this man. Was recommended by our pastor for our son. I had some red flags immediately as I work in the abuse sector and wondered why he would be providing this? Would like some clarification as I am worried that pastors are referring our young hurting men to him

  6. jackie Witt says:

    Does Canon law apply to Roman Catholic churches on a Indian Reserve? For instance, why were lawsuits for Residential schools abuses not go directly through Canon law? I thought churches have canon laws that prohibit and punish those who breach and violate the policies…

    • Sylvia says:

      No, canon law does not deal with lawsuits. Canon law is supposed to sanction those who violate the laws of the Church – unfortunately we rarely hear what happens when such punishment is meted out, but do occasionally learn that a priest has been ‘defrocked.’

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