** Unedited **
Pedersen v. Fulton
Derek Pedersen, Plaintiff, and
Thomas Fulton and The Roman Catholic Episcopal Corporation
for the Diocese of St. Catharines in Canada, Defendants
 O.J. No. 168
Action No. 31469/93
Ontario Court of Justice ‑ General Division
Heard: January 19, 1994.
Judgment: January 27, 1994.
Practice ‑‑ Dismissal of action ‑‑ Stay of action ‑‑ Action by priest for reinstatement and for damages for wrongful dismissal ‑ ‑ Jurisdiction of Ecclesiastical Court.
This was a motion for a stay of the proceedings or dismissal of the claim. The plaintiff, a priest, was suspended from his office and from the administration of the sacraments but was paid for his living expenses. The suspension occurred after he circulated a binder in which he expressed his concern that the defendant bishop appeared powerless or unwilling to address and rectify matters which the plaintiff had brought to his attention regarding alleged improprieties of other priests. The bishop was of the opinion that the dissemination of such material by the plaintiff constituted calumny and breach of the Code. The plaintiff sought reinstatement and damages for wrongful dismissal and for slander. He was suspended at a meeting with the bishop after he refused to undergo personal re‑assessment by a professional counsellor. The defendants argued that the dispute was ecclesiastical in nature and the ecclesiastical courts constituted under the Revised Code of Canon Law, 1983 had jurisdiction.
HELD: The part of the claim dealing with reinstatement was stayed and the balance of the claim was dismissed. There was an obligation upon the plaintiff to exhaust his remedies under the Code. There was no merit in the plaintiff’s assertion that his suspension was tantamount to a dismissal. The alleged slanderous utterances occurred at the meeting between the plaintiff and the bishop and no publication occurred.
STATUTES, REGULATIONS AND RULES CITED:
Courts of Justice Act, s. 106.
Revised Code of Canon Law, 1983.
Philip C. Lococo, for the Plaintiff.
Peter A. Mahoney, for the Defendants.
[para1] CAVARZAN J.:‑‑ The plaintiff is a Roman Catholic priest. Since his ordination in 1989, he has served as a parochial vicar or assistant pastor at churches in Fort Erie, Welland, and Niagara Falls. On January 27, 1993, the defendant Thomas Fulton, Bishop of the Diocese of St. Catharines, suspended the plaintiff from his priestly office and from the administration of the sacraments and the faculty to preach.
[para2] On March 19, 1993, the plaintiff commenced an action in which he seeks reinstatement through an order of this Court, money damages for wrongful dismissal and for slander, an order directing the defendants to apologize to the plaintiff, and certain other relief.
[para3] This motion is brought by the defendants for an order staying these proceedings or, in the alternative, summary judgment dismissing the plaintiff’s claim.
[para4] The essential background to this controversy is contained in the pleadings and in the affidavits and transcripts of cross‑examination filed.
[para5] The plaintiff had reported to his bishop his concerns about what he considered to be inappropriate behaviour on the part of at least one of the pastors of churches to which he had been assigned. It is the plaintiff’s position that the bishop failed to investigate those allegations or to otherwise deal adequately with the situation. When the plaintiff became concerned about the conduct of yet another pastor, he compiled a binder of documents which, in his view, offered proof of the alleged improprieties. He sent duplicates of that binder to the Vatican, to various bishops in Ontario, including the Metropolitan Bishop for the Archdiocese of Toronto, to certain lay members of the church, and to the Ontario Human Rights Commission. A copy of that binder was not sent to Bishop Fulton.
[para6] Suffice it to say that the plaintiff thought it necessary to appeal to others, including his bishop’s superiors, because he considered that his bishop would ignore or cover up rather than confront and correct the errant behaviour of his priests. The plaintiff presents himself in the classic mould of the bearer of bad news who is punished by the very institution whose integrity he seeks to preserve.
[para7] The binders were sent out with a covering letter dated December 31, 1992, in which the plaintiff announced “that I have already made arrangements to leave the priesthood”. The letter states his view that “unfortunately Bishop Thomas Fulton appears powerless or unwilling to address and rectify these matters”. The concluding paragraph states, in part, as follows:
While I firmly believe that justice must be tempered by mercy, to avoid any public scandal or embarrassment (sic) to the Church, particularly to the Diocese of St. Catharines, I will give the Church the opportunity to rectify these situations properly within her own internal forum by no later than February 6, 1993. If there is any effort however to deny, ignore or cover up these situations, I assure you that I will turn over this information to the Royal Canadian Mounted Police, the Ontario Provincial Police and the media.
[para8] Bishop Fulton subsequently learned of the existence of the binder. He met with the plaintiff on January 27, 1993. The recollections of the plaintiff and of the defendant Fulton as to what was said at that meeting differ. It is clear, however, that the plaintiff was advised orally by the defendant that he was suspended.
[para9] The plaintiff consulted legal counsel that same day. By letter dated January 27, 1993, addressed to the defendant Fulton, Mr. Lococo confirmed that he had been acting for the plaintiff on a consultative basis over a period of some time. He then wrote that “Apparently as the Church’s representative you have decided to suspend Father Pedersen from his Ministry for reasons that you specified to him in a personal interview”. He then advised the defendant that the plaintiff takes the position that the suspension, in the circumstances, was tantamount to a firing and a “virtual termination”.
Should the Action Be Stayed?
[para10] The position of the defendants is that the dispute between the parties is ecclesiastical in nature and, by agreement between the parties, jurisdiction to determine the dispute lies in, the ecclesiastical courts constituted under the Revised Code of Canon Law, 1983.
[para11] The affidavit of Monsignor Frederick J. Colli, Roman Catholic priest, a Canon lawyer, and the Judicial Vicar of the Diocese of St. Catharines, was filed. He deposed that the Roman Catholic Church is governed by a constitution of canons called the Revised Code of Canon Law. Prior to his ordination into the deaconate and priesthood, the plaintiff presented several petitions and sworn declarations to the bishop wherein he stated that he desired of his own free will to be ordained, and sincerely promised that he would always, according to the Sacred Canons, obey most exactly all the precepts of his superiors and whatever discipline the church requires. By reason of his ordination, the plaintiff became a cleric under the Code of Canon Law and Bishop Fulton became his Ordinary or ecclesiastical superior.
[para12] Upon his review of the contents of the binder, Bishop Fulton formed the opinion that the plaintiff’s actions in disseminating that material constituted calumny, a breach of the plaintiff’s ordination vows, and a breach of various canons of the Revised Code of Canon Law. It is clear that the defendant has administrative power to impose a penalty upon a cleric and can suspend the cleric from the exercise of his public orders if he disobeys his bishop, and if he supplies an ecclesiastical superior with any calumnious denunciation of an offence or he otherwise injures the good reputation of another person.
[para13] The position of the plaintiff is that the defendant acted with mala fides in that he intended, under the guise of suspending the plaintiff, to force him to leave the priesthood. The plaintiff seeks in this action to test the veracity of the defendant’s assertions that the plaintiff’s charges of misconduct on the part of other clerics are without foundation. The plaintiff alleges denial of natural justice in that he was not notified prior to the meeting of January 27, 1993, of the charges against him and was not given an opportunity to discuss with the defendant the content of the binder. He alleges, further, that the defendant had settled upon suspension, as the form of discipline to be imposed, prior to the meeting in question.
Finally, he submits that there is no authority under Canon Law for ecclesiastic tribunals to award money damages, and that the Revised Code of Canon Law contemplates the option of resort to the civil courts by an aggrieved person seeking money damages.
[para14] The Revised Code of Canon Law contains a complete code of disciplinary procedures and appeal rights within the church. In his affidavit Monsignor Colli deposes that a person has a right of recourse or appeal from a penalty imposed by the church. By virtue of Canon 1353, “the recourse has a suspensive effect on the penalty”. He deposed further that the “right of appeal from a penalty imposed by the Bishop of the Diocese of St. Catharines is to the Metropolitan Tribunal (Archdiocese of Toronto)” by virtue of Canons 1419 and 1438.
[para15] The following statement was quoted with approval in Pinke v. Burnhold et al., (1904) 6 O.L.R. 575 at 579, in reasons for judgment of MacMahon J.:
It may be laid down that, where any religious or other lawful association has not only agreed on the terms of its union, but has also constituted a tribunal to determine whether the rules of the association have been violated by any of its members or not, and what shall be the consequence of such violation, the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and, if not, has proceeded in a manner consonant with the principles of justice.
[para16] More recently, Greer J. stated the law governing intervention by the civil courts in ecclesiastical matters in Davis v. United Church of Canada et al., (1992) 8 O.R. (3d) 75 at 88:
Even if one goes back to very early reported cases involving church ministers, such as Ex parte Currie (1886), 26 N.B.R. 403 (C.A.), our courts have taken the position that if the rules of natural justice have been breached, the court will step in and rule on the matter.
[para17] A similar conclusion was reached in Posluns v. Toronto Stock Exchange and Gardiner  2 O.R. 547 (Ont. High Court) where Gale J. stated the following at p. 629:
Turning now to domestic tribunals, which term refers mainly to clubs, trade unions and professional groups, and committees thereof, the cases invariably relate to the expulsion or suspension of a member from one of those organizations. It can broadly be stated that all of the cases hold that before a member of a social club, trade union, trade or professional association, can be expelled or suspended therefrom, he must be given notice of the charges against him and be afforded an opportunity of answering those charges.
[para18] In Posluns, the Toronto Stock Exchange had withdrawn approval of the plaintiff’s employment as a customers’ man by a member of the Exchange. The court found that this had been done without notice of the charges against him and without an opportunity for the plaintiff to answer those charges. The court held, however, that those defects were cured when the Toronto Stock Exchange reconsidered the matter. The original order was made against the plaintiff on February 28th; the matter was reconsidered at a hearing of March 2nd, which satisfied the requirements of natural justice. The court dismissed the plaintiff’s action for a declaration that the order withdrawing the approval had been made illegally.
[para19] In the case at bar, the plaintiff was present at the meeting with Bishop Fulton when the penalty of suspension was imposed. There can be no doubt that the plaintiff knew why he had been summoned to meet with the defendant. When cross‑examined on his affidavit he stated at p. 42, Q. 249 of the transcript:
Eventually, well eventually I knew that Bishop Fulton would be aware of this binder and he would get a copy of it, but I did not give him a copy because I felt that he was not ah, dealing with any of the situations in a constructive manner.
As Gale J. stated in Posluns, supra at p. 657, “in determining whether an individual has received adequate notice of the charges levied against him, the state of his knowledge is probably the most important factor”.
[para20] The plaintiff alleges that he was not afforded an opportunity at the meeting to answer charges made against him. The defendant alleges that there was a discussion in which he advised the plaintiff of the unacceptability of his actions and that he would be required to undergo a period of personal re‑assessment under a professional counsellor. When the plaintiff refused to comply with this requirement, the defendant suspended him.
[para21] 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 ecclesiastic tribunal which would not include the defendant as a member. The second reason is that there is an obligation on the plaintiff, in the circumstances, to exhaust his remedies under the Revised Code of Canon Law. In Zebroski v. Jehovah’s Witnesses (1988) 87 A.R. 229 (Alta. C.A.) the appellants challenged a “disfellowship” ruling. They alleged contravention of the rules of natural justice in that there was failure to give notice, denial of the right to defend themselves against charges of apostasy, the hearing was not impartial, and the Judicial Committee determined its decision before the hearing. The Court of Appeal reversed the trial judge and allowed the defendant’s application for summary judgment:
In our view, on the material before the chambers judge the appellants are bound to fail on these allegations. The admitted facts are that the appellants knowing about the purpose of the hearing, purposely boycotted the hearing, and knowing of their right to a hearing de novo through an appeal, took no appeal.
. . . .
In our view the disciplinary procedures contained in the Rules and Regulations of Jehovah’s Witnesses required that the appellants exhaust those remedies in the domestic tribunals before seeking redress at law.
By the Court at p. 235
[para22] The cross‑examination of the plaintiff contains the following exchange at pages 155 and 156 of the transcript:
Q. Will you agree with me that if you felt that that was or he was not justified in dismissing you, that you would have to appeal that to the Ecclesiastical tribunals?
A. I’m sorry, can you rephrase that?
Q. If you felt the Bishop’s actions were improper in dismissing you,…
Q. …what you say dismissed you, won’t you agree with me that you as the subject or the person who was dismissed would have a right of appeal to that decision from the Ecclesiastical tribunals?
A. It’s certainly one of the options that’s available to me,…
Q. Thank you.
A. …but I chose not to use that option in accordance with canon one twenty‑eight (128).
[para23] At page 158 of that transcript the following exchange is found:
Q. But you’ll agree, you do have a right in the Ecclesiastical Courts to challenge him on the exercise of his Ecclesiastical authority, is that correct?
A. Insofar as I have that right, I would not choose that option…
Q. Well I’m not…
A. …because of the bias of the tribunal.
Q. I’m not asking you if you choose it or not, I’m just asking you to confirm for me that you have the right. Will you confirm that for me please?
Q. Thank you. And you’ll agree with me that you have
not pursued any of those remedies in the Ecclesiastical
Court that we’ve just summarized, is that correct?
A. That is true.
[para24] There will, therefore, be an order granting a stay of that part of the plaintiff’s claim in which he seeks both a declaration that he was wrongfully suspended from his duties as a Roman Catholic priest and an order directing the defendants to remove the suspension.
[para25] A stay of proceedings pursuant to s. 106 of the Courts of Justice Act is not available, in my view, with respect to the other heads of relief claimed by the plaintiff. The matters of damages for wrongful dismissal and slander, and the orders sought directing the defendants to apologize to the plaintiff and permitting the plaintiff to retrieve his personal property from church premises, will be considered under the summary judgment branch of this motion.
Are the Defendants Entitled to Summary Judgment?
[para26] The material before the court establishes that the plaintiff has not been dismissed from the cleric state.
He remains a cleric but has been suspended from the administration of the sacraments and the right to preach. In his affidavit of’ September 22, 1993, Thomas Fulton deposes that the plaintiff “remains a cleric and subject to the obligations of the cleric under the Revised Code of Canon Law until he loses the clerical state under Canon 290”. That can occur only by “a judicial decision or administrative decree declaring the invalidity of sacred ordination”, “the infliction of a penalty of dismissal”, or “by rescript of the Apostolic See”. That evidence is uncontradicted. Also uncontradicted is the fact that the defendant Episcopal Corporation has continued to issue cheques, marked “salary”, to cover the monthly stipend payable to the plaintiff for his living and automobile expenses. The fact that the plaintiff has not cashed these cheques, except for the first one received following his suspension, is not a relevant consideration for purposes of this motion.
[para27] In light of the above, there is no merit to the plaintiff’s assertion that what was in form a suspension was in substance dismissal. The plaintiff has failed to demonstrate that there is an issue for trial, and the defendants are entitled to summary judgment dismissing this part of the claim.
[para28] The defendants are entitled to summary judgment, as well, dismissing the claims for damages and other relief for the alleged slander. The evidence before me is uncontradicted that the allegedly slanderous utterance occurred at the meeting of January 27, 1993, and that the plaintiff and the defendant Thomas Fulton were the only two persons present. The alleged slanderous utterance is the charge that the plaintiff publicly documented information which contains calumnious allegations against certain clergy.
While this charge is set forth in a letter from Thomas Fulton to Derek Pedersen which records the suspension of January 27, 1993, that letter was never published. It was produced to plaintiff’s counsel at his insistence during the course of this litigation. Prior thereto it had been kept in the defendant’s files because the plaintiff declined to reveal his new address.
[para29] It is trite law that no civil action can be maintained for libel or slander unless the words complained of have been published:
By ‘publication’ is meant ‘the making known of the defamatory matter, after it has been written, to some person other than the person to whom it is written.
. . . .
So in the case of a slander, the words must be uttered in the hearing of some third person. If they are uttered in the hearing of the person slandered only, there is no publication, and therefore no action will lie.
Gatley on Libel and Slander
(1960) paragraph 132
[para30] Again, the plaintiff has failed to demonstrate that there is an issue for trial.
[para31] With respect to the claim alleging wrongful detention of the plaintiff’s personal belongings, the evidence before me is uncontradicted. The plaintiff was not prevented at any time from retrieving his personal belongings. He was in possession of a key to the rectory which gave him access to his former living quarters until long after his suspension. When cross‑examined on his affidavit, the plaintiff acknowledged that he did not retrieve his personal belongings on the advice of his legal counsel. He was advised “not to do that until an order was given, for fear that Bishop Fulton would then try to say that I voluntarily left the priesthood”. (Transcript p. 148, Q.
989). The plaintiff has since retrieved his personal belongings.
[para32] It is clear, on the evidence before me, that there is no issue for trial on this branch of the claim either.
[para33] The defendants are entitled to an order staying that part of the plaintiff’s claim in which he seeks both a declaration that he was wrongfully suspended and an order directing the defendants to remove the suspension.
[para34] There will be summary judgment for the defendants dismissing the balance of the plaintiff’s claim.
[para35] Costs to the defendants if demanded.