Penkerichan v. Djokic, 2014 ONCA 709

Keywords: Religious Organizations’ Lands Act; U.S. “neutral principles of law” doctrine

Basic Facts: the Appellants represent the local church congregation, the Respondents the bishop and diocese. The bishop “obliged the Congregation’s long-time parish priest to retire against his will”, then “introduced [a] new priest during a liturgical celebration…” (para. 4). As Lauwers J.A. noted (also para. 4) the “ensuing events eventually led to the application and to this appeal.”

(As an aside, it’s an Ont. C.A. decision, and came down last Friday, Oct. 17, 2014).

The C.A. noted the congregation:

  • occupies a number of properties for “religious and ancillary purposes”
  • is not incorporated
  • its properties are held in trust under the (Ontario) Religious Organizations’ Lands Act (“ROLA”)

The bishop and diocese removed the congregation’s elected Executive Board, replacing it with a “Temporary Trusteeship”, thereby eliminating the Executive Board’s ability to control and manage the property and affairs of the congregation.

The Appellants sued.

The C.A. described:

  • the church structure (it is an “autocephalous religious body”, meaning its bishop does not report to a higher-up bishop)
  • it’s governance model
  • the background of the Executive Board and congregational property
  • and then set out the key issue—“Are the Congregational properties held in trust to be managed by the previously elected trustees…or by the Temporary Trusteeship…” – ie does the local congregation or the diocese have control.

The C.A. (in paras. 46-86) looked at:

  • the purpose and genesis of ROLA
  • how courts in Canada have approached disputes within religious organizations in Canada
  • the analysis of the judge at first instance
  • the U.S. “neutral principles of law” doctrine

While the C.A. did say (para. 57) that “Canadian courts are still feeling their way through the principles underpinning the connection between civil law…and religious organizations and their internal laws…”, the court also said that “a relatively consistent method or pattern has emerged in property disputes” (see paras. 57-64).

Bottom line:

  • C.A. upheld the judge at first instance
  • who held “that the Diocese acted in compliance with s.3 of the ROLA when it replaced the Executive Board of the Congregation with the Temporary Trusteeship”
  • and the C.A. added: “As I interpret these findings, according to the application judge, the members of the Temporary Trusteeship are now the trustees for the purposes of the ROLA. When a new Executive Board is elected by the Congregation, those new members will then assume the role of trustees under the ROLA, unless new congregational bylaws, as approved by the diocese, revive the position of trustee.” (para.39)

S.C.C. practice note—well, not an official practice note—but adding this because S.C.C. advocacy is what Supreme Advocacy does:

  • this written decision came down on Fri. Oct. 17, 2014—so one would (naturally?) assume the S.C.C. deadline to file a Leave to Appeal would be 60 days hence, being Tues. Dec 16, 2014
  • no—and it’s something counsel sometimes do get caught out on
  • when an appeal is dismissed from the bench, even without reasons/ reasons to follow, that is the date one uses to calculate the 60-day period, not the date Reasons come down (even though it’s essentially those Reasons one is appealing)
  • even if, as here, the reasons come out well after that 60-day period has expired—here the decision from the bench was way back in Feb.—Feb. 6, 2014
  • call us if we can ever help—it’s what we do.

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