Hoekstra v. The Christian Reformed Church in North America, 2012 HRTO 1273

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Hoekstra

Applicant

-and-

The Christian Reformed Church in North America – Canada Corporation, The Christian Reformed Church in North America, Classis Hamilton, and Synod 2009

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: June 27, 2012

Citation: 2012 HRTO 1273

Indexed as: Hoekstra v. The Christian Reformed Church in North America

appearances

Barbara Hoekstra, Applicant ) Self-represented

The Christian Reformed Church in North ) America – Canada Corporation, The ) Christian Reformed Church in North ) Sean Jackson, Counsel America, and Classis Hamilton, ) Respondents )

Synod 2009, Respondent ) No one appearing

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. This issue was addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2From 1994 to 2005, the applicant attended Bethel Christian Reformed Church (“Bethel”) in the region of Hamilton. Bethel is part of the Christian Reformed Church in North America (“CRCNA”), which is an unincorporated group of churches that follows the “reformed tradition” of Christianity.

3In 2003 and 2004, the applicant and her husband had a marital breakdown. Bethel’s pastor and elders became involved in reconciliation efforts, which were ultimately unsuccessful. In March 2005, the applicant sent an e-mail to Bethel’s pastor and clerk, which demanded that an attestation of her membership be sent to her immediately. The e-mail also stated that by making such a request she was released from the authority of the Council of Bethel in order to affiliate with another church. In April 2005, Bethel’s Council gave the applicant a letter and Membership Statement, which deemed her to have resigned her membership from the church.

4On August 18, 2007, the applicant’s legal counsel sent a letter to Bethel, The Christian Reformed Church in North America – Canada Corporation (the “CRCNA-Canada”), and The Christian Reformed Church in North America (the “CRCNA-United States”), which alleged that Bethel, its pastor, and higher levels of the ecclesiastical assembly had not afforded her due process and consideration with respect to her complaints about her ex-husband’s abusive actions, and that Bethel’s pastor had committed breaches of trust, confidentiality, and professional ethics. There were no allegations of Code-related discrimination in the letter.

5On January 13, 2008, the applicant sent a letter to Classis Hamilton, which is the corporate governing body of Christian Reformed Churches in the region of Hamilton, and requested a judicial review of Bethel’s decision to deem her to have resigned her membership from the church. There were no allegations of Code-related discrimination in her letter. On May 20, 2008, Classis Hamilton decided not to convene a judicial review on the basis that there was sufficient evidence that Bethel acted in good faith and followed due process, and that the applicant’s request was well beyond the six-month limitation period for filing an appeal.

6On June 30, 2008, the applicant sent a letter to Synod, which is the unincorporated governing association of Christian Reformed Churches in North America, and requested an appeal of Classis Hamilton’s decision. Each year, Classes across North America convene a Synod for a fixed period of time to discuss ecclesiastical matters and hears appeals of the decisions of local Classes. There were no allegations of Code-related discrimination in the applicant’s letter. The Judicial Code Committee of Synod refused to hear her appeal because it did not meet the minimum standards required to convene a hearing.

7On March 12, 2009, the applicant filed a further appeal to the Judicial Code Committee of Synod. There were no allegations of Code-related discrimination against Bethel in the appeal. However, there was a general allegation, which was not specifically linked to any Code grounds, that two other Christian Reformed Churches had discriminated against her family. The appeal also stated that the applicant had evidence that Bethel’s pastor had been involved in an exorcism at another church, and that he subsequently manifested signs of demonic activity.

8At Synod 2009, which was constituted on June 13, 2009 and dissolved on June 18, 2009, the applicant was given the opportunity to make oral submissions to its Advisory Committee. The Advisory Committee denied the applicant’s request to address Synod 2009 in a plenary session. On June 17, 2009, the Advisory Committee of Synod also denied the applicant’s appeal on the basis that her allegations were not substantial enough to warrant a hearing, and that the Judicial Code Committee did not have jurisdiction to intervene and stand in judgment of Bethel’s attempt to deal with personal matters.

9On March 17, 2010, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that Bethel, its pastor, 15 of its elders, the CRCNA-Canada, and the CRCNA-United States discriminated against her with respect to services because of her sex.

10The applicant’s specific allegations may be summarized as follows:

1. In 2003 and 2004, the applicant and her husband, who were members of Bethel, had a marital breakdown because the applicant’s husband was abusive towards her and had extramarital affairs. Bethel’s pastor and its elders denied pastoral care to the applicant, but provided pastoral care to her husband.

2. In 2004, the applicant became friends with a recent widower who also attended Bethel. In early 2005, Bethel’s pastor and its elders forced her to resign from committee positions she held at Bethel, told her and her friend not to sit together in church, and threatened to discipline her because of her relationship with the widower. Bethel’s pastor and its elders never threatened to discipline the applicant’s husband for having extramarital affairs.

3. In March 2005, the applicant requested a statement of membership from Bethel because she wanted to join another Christian Reformed Church. On April 22, 2005, Bethel’s pastor and one of its deacons handed her a document that stated that she had resigned her membership, which was untrue. Furthermore, they never gave such a document to her husband, and he continued to be a member of Bethel.

4. The applicant subsequently complained to Bethel’s leaders, a church visitor, an executive director, and a church polity expert, but no one responded.

5. In August 2007, the applicant’s legal counsel sent a letter to Bethel, the CRCNA-Canada and the CRCNA-United States, but no one responded.

6. In January 2008, the applicant filed an appeal with Classis Hamilton. The Executive Committee of Classis Hamilton included one of Bethel’s elders whom she had complained about, and he contributed, in part, to an appeal document which replaced her own written appeal. Classis Hamilton allowed some of Bethel’s members to be present during the executive session when her appeal was discussed, and then denied her appeal without an investigation or allowing her to present her case.

7. The applicant filed a subsequent appeal to the Synod, which was filtered by the Executive Director of the CRCNA-United States. The applicant was refused a request for a copy of the materials that were sent to the Judicial Code Committee, even though she was entitled to see them. The Judicial Code Committee denied her appeal without an investigation or oral hearing.

8. The applicant’s filed a further appeal to the Synod and was allowed to make a 20-minute oral presentation to the Advisory Committee. However, she was not allowed to present documents to the Advisory Committee, and was not allowed to address the delegates to Synod. Her appeal was denied without an investigation.

9. In June 2009, the Synod promised the applicant that it would follow up on the matter with her, but never did.

10. By denying her due process and an investigation, the appeal bodies continued the gender-based discrimination against her by Bethel and its elders, and protected her abusive husband.

11On July 16, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 1546, which removed 11 of the individual respondents from the Application. Bethel, its pastor, four of its elders, the CRCNA-Canada, and the CRCNA-United States remained as respondents.

12On October 7, 2010, the remaining respondents filed a Response, which denied the allegations of discrimination. The respondents stated that Bethel’s decision to deem the applicant to have resigned her membership was based on the advice of an independent church polity expert, and had nothing to do with her sex. The respondents also stated that the applicant’s appeals were dealt with in accordance with the Christian Reformed Church’s rules and laws, and her sex was not a factor in the denial of her appeals. The respondents further stated that Synod 2009 was comprised of both male and female delegates.

13On December 25, 2010, the applicant filed a Reply, which alleged, among other things, that the appeal process was tainted by systemic gender discrimination. Specifically, she stated that the lack of due process in the appeals process, the rubber stamping of Bethel’s decisions by the appeals bodies, and the appeals bodies’ refusal to conduct a thorough investigation into her case shows that they wanted to protect her abusive husband and the men in the church hierarchy who were covering up the abuse on his behalf.

14On October 19, 2011, the respondents filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal dismiss the Application because it is outside the one-year statutory deadline. On November 15, 2011, the applicant filed a Response, which opposed the respondents’ Request to dismiss her Application for lack of timeliness. In an Interim Decision, 2012 HRTO 580, dated March 21, 2012, the Tribunal dismissed the allegations in the Application between 2003 and 2005 against Bethel and the individual respondents because these allegations were filed outside the one-year statutory deadline, and the applicant did not satisfy the Tribunal that her delay in filing her Application with respect these allegations was incurred in good faith.

15The Interim Decision also added Classis Hamilton and Synod 2009 as respondents, and determined that the outstanding allegations of discrimination in the Application are from August 18, 2007 to June 17, 2009, and are only against the CRCNA-Canada, the CRCNA-United States, Classis Hamilton, and Synod 2009.

16The Tribunal then directed, on its own initiative, that a summary hearing be held to determine whether the outstanding allegations in the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that they will succeed.

17The summary hearing took place on June 14, 2012. Both parties filed documents with the Tribunal in advance of the hearing. The respondents also filed written submissions in advance of the hearing, and both parties made oral submissions at the hearing.

PRELIMINARY ISSUES

18The applicant filed several RFOPs prior to the summary hearing, which, with the exception of one, have been resolved between the parties or are not necessary for the Tribunal to resolve for the purpose of a summary hearing.

19On April 25, 2012, the applicant filed an RFOP, which requested that the Tribunal strike from its file all references to her ex-husband by name or the word “husband” and replace the references with the phrase “a male in the church”. She stated that the reason for the Request is that the references to her ex-husband create undue bias and substantial prejudice against her. On May 3, 2012, the respondents filed a Response, which opposed the applicant’s Request

20Rule 3.11 of the Tribunal’s Rules provides that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The applicant has not satisfied me at this late stage in the proceeding that there is an appropriate basis for striking the numerous references to her ex-husband in the materials filed by the parties, and the decisions (two interim decisions and one reconsideration decision) issued by the Tribunal. Furthermore, the applicant’s request that the references be replaced with the phrase “a male in the church” would render many of those materials and decisions unintelligible. Accordingly, the applicant’s Request is denied.

21The other outstanding preliminary issue is the failure of Synod 2009 to file a Response or participate in the summary hearing. The other respondents’ counsel stated that he was unable to determine legally who Synod 2009 is and who could provide instructions to him from Synod 2009 because it was convened and dissolved during a one-week period in June 2009. At the end of the day, it is not necessary to resolve this issue because I have decided that the outstanding allegations in the Application should be dismissed for the reasons set out below.

REASONABLE PROSPECT OF SUCCESS

22Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

23Furthermore, in Dabic v Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

24In her submissions, the applicant stated that the outstanding allegations in her Application have a reasonable prospect of success. With respect to her allegation that the respondents’ denial of her appeals was discriminatory, the applicant admitted that she does not have direct evidence of gender discrimination, but stated that she has evidence that the respondents failed to follow church law, corporate law, and charitable law and by-laws in dealing with her appeals. She submitted that discrimination is the only possible explanation for why the respondents failed follow their own rules and the rules of natural justice. She also stated that she has evidence that other female church members have also been stymied in their attempts to have the CRCNA deal with abuse issues, particularly child abuse.

25With respect to her allegation that the respondents’ failure to investigate her case was discriminatory, the applicant stated that she has documents that show that the respondents were aware that abuse of women and children is an issue within the CRCNA. She submitted it was odd that the respondents did not investigate the issues raised in her appeals, given their general awareness of spousal and child abuse issues within the CRCNA.

26In their submissions, the respondents stated that the outstanding allegations in the Application have no reasonable prospect of success because the applicant is relying on bald allegations. With respect to the applicant’s allegation that the respondents’ denial of her appeals was discriminatory, the respondent stated that the applicant did not inform the Tribunal what evidence she will rely upon to prove, on a balance of probabilities, that the respondents failed to follow their own rules and the rules of natural justice in dealing with her appeals, and that they discriminated against her because of her sex.

27With respect to the applicant’s allegation that the lack of an investigation was discriminatory, the respondents admitted that abuse of women and children may exist within the CRCNA, but stated that gender discrimination was not the subject of the applicant’s appeals, and they cannot be liable under the Code for failing to investigate discrimination allegations that they were not aware of.

28I find that the Application must be dismissed on the basis that the outstanding allegations have no reasonable prospect of success. With respect to the applicant’s allegation that the denial of her appeals was discriminatory, in my view, there is no reasonable prospect that the evidence that the applicant says she has or that is reasonably available to her can show a link between the denial of her appeals and her sex. Even if it is true that the respondents did not follow their own rules and the rules of natural justice in dealing with her appeals, the applicant is mainly relying on a bald assertion that discrimination is the only possible explanation for the respondents’ conduct. The applicant is also relying on the “similar fact” witness testimony of the other female church members, but their proposed testimony appears to be related to how the respondents dealt with their complaints of child abuse, not spousal abuse. Given the fairly high threshold for the admission of similar fact evidence, I would simply note, without deciding the issue, that this evidence may not even be admissible at a hearing. See Sinclair v. London (City), 2008 HRTO 48 at paras. 24-26.

29With respect to the applicant’s allegation that the respondents’ failure to investigate her complaint was discriminatory, in my view, what the applicant’s alleges cannot be reasonably considered to amount to a Code violation. It is well-established in the Tribunal’s jurisprudence that the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination. See, for example, Nelson v. Lakehead University, 2008 HRTO 41. However, the applicant never made a gender discrimination complaint in her appeals to the respondents, and there is no legal or factual basis to support her suggestion that the respondents’ general awareness of spousal and child abuse issues within the CRCNA was sufficient to trigger a duty to investigate whether she was discriminated against because of her sex.

ORDER

30The Application is dismissed.