Hoekstra v. The Christian Reformed Church in North America, 2012 HRTO 580

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

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: March 21, 2012

Citation: 2012 HRTO 580

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

WRITTEN SUBMISSIONS

Barbara Hoekstra, Applicant ) Self-represented

Bethel Christian Reformed Church, ) Sean Jackson, Counsel The Christian Reformed Church in North ) America – Canada Corporation, The ) Christian Reformed Church in North ) America, Jim Pot, Arie VanEk, Bert ) Hofland, Len VanderLugt, and Mark ) Vanderveen, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether all or part of the Application should be dismissed on the basis that it was not filed with the Tribunal within the one-year statutory deadline, to deal with an ongoing issue about whether the correct organization respondents have been named, and to determine the next step in this proceeding.

BACKGROUND

2The applicant, who is a Christian woman, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 17, 2010, which alleged that Bethel Christian Reformed Church (“Bethel”), its pastor, 15 of its elders, The Christian Reformed Church in North America – Canada Corporation (the “CRCNA-Canada”), and The Christian Reformed Church in North America (the “CRCNA-United States”) discriminated against her with respect to services because of her sex.

3The 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 2007, the applicant’s legal counsel sent a letter to Bethel and the CRCNA, but no one responded.

6. In January 2008, the applicant filed an appeal about the above matters with Classis Hamilton, which denied her appeal without investigating or allowing her to present her case. A subsequent appeal to the Synod of the CRCNA was also denied without an investigation or oral hearing. A further appeal to the Synod was completed without an investigation and only a 20-minute oral presentation by the applicant. In June 2009, the Synod promised the applicant that it would follow up on the matter with her, but never did. By denying her an investigation and a hearing, the appeal bodies continued the discrimination against her by Bethel and its elders, and protected her abusive husband.

4On July 16, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 1546, which removed 11 of the individual respondents from the Application.

5The respondents filed a Response on October 7, 2010, which denied the allegations of discrimination. The respondents also stated that the CRCNA-Canada and the CRCNA-United States were improperly named as respondents, and that Classis Hamilton and Synod 2009 have not responded to the Application because they were not named as respondents.

6The applicant filed a Reply on December 25, 2010, which stated, among other things, that Classis Hamilton and Synod 2009 were closely intertwined with the CRCNA-Canada and the CRCNA-United States, and did not make their decisions independently of them. She alleged that these organizations discriminated against her because they wanted to protect her abusive husband and the men in the church hierarchy who were covering up the matter on her husband’s behalf.

7In January 2011, the Tribunal initiated a mediation process, but the parties indicated that they would try to settle the case without the Tribunal’s involvement. The parties did not settle the case.

8The respondents filed a Request for an Order During Proceedings on October 19, 2011, which requested that the Tribunal dismiss the Application because it is outside the one-year statutory deadline. Specifically, the respondents stated that the last alleged incident of discrimination occurred on April 22, 2005, and that the appeal decisions were the effects of alleged incidents of discrimination and not themselves discriminatory incidents. See Mafinezam v. University of Toronto, 2010 HRTO 1495. The respondents also stated that the applicant’s explanation for her near five-year delay in filing her Application, namely that she was waiting for her appeals to be completed, does not constitute a good faith explanation. See Surh v. Toronto (City), 2009 HRTO 1700.

9The applicant filed a Response on November 15, 2011, which opposed the respondents’ Request to dismiss her Application for lack of timeliness. Specifically, she stated that her Application is timely because the last alleged incident of discrimination occurred in June 2009 when Synod 2009 denied her request for an investigation. She also stated that any delay in filing her Application was incurred in good faith because she had a reasonable expectation, which eroded over time, that the appeal bodies would investigate her allegations against Bethel and its elders.

10The parties attached a number of documents relating to the appeal process, which show the following chronology of events:

1. Between April 22 and June 8, 2005, the applicant complained to a church visitor, an executive director, a church polity expert, and pastors at two other Christian Reformed Churches about what happened to her at Bethel.

2. On August 18, 2007, the applicant’s legal counsel sent a letter to Bethel, the CRCNA-Canada and the CRCNA-United States, which alleged that these organizations had denied the applicant due process and that Bethel’s pastor had committed breaches of trust, confidentiality and professional ethics. There were no allegations of Code-related discrimination against the respondents in the letter. The letter demanded that the CRCNA take immediate steps to deal with all the matters raised by the applicant in accordance with the CRCNA Church Order.

3. On January 13, 2008, the applicant filed an appeal with Classis Hamilton. There were no allegations of Code-related discrimination against the respondents in the appeal.

4. On May 20, 2008, Classis Hamilton denied the applicant’s appeal both on the merits and because it was outside the six-month limitation period for filing an appeal.

5. On June 30, 2008, the applicant filed a further appeal to the General Secretary of Synod. There were no allegations of Code-related discrimination in the appeal.

6. The Judicial Code Committee of Synod refused to hear the applicant’s appeal. The documents do not indicate when this decision was made.

7. On 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 the respondents in the appeal. However, there was an allegation of discrimination against two other Christian Reformed Churches. 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.

8. On June 17, 2009, the Advisory Committee of Synod denied the applicant’s appeal.

TIMELINESS

11The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

12The first issue to consider is when the last alleged incident of discrimination occurred. In my view, the last alleged incident occurred on June 17, 2009 when Synod 2009 denied the applicant’s appeal. In her Application and Reply, the applicant alleged that the appeals bodies denied her an investigation and a hearing in order to protect her abusive husband and the men in the church hierarchy who were covering up the matter on her husband’s behalf. I disagree with the respondents that the applicant’s allegation was about the effects of alleged incidents of discrimination. In my view, the applicant’s allegation, although it is somewhat opaque in her pleadings, is about acts of discrimination by the appeal bodies, not the effects of acts of discrimination by Bethel and its elders.

13The second issue to consider is whether the alleged incidents of discrimination in the Application constitute a “series of incidents”. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9. In the case at hand, there was a break of more than two years between the last alleged incident of discrimination by Bethel and its elders and the first alleged incident of discrimination by the appeal bodies. As such, I find that allegations of discrimination against Bethel and its elders are nearly five years of time.

14The third issue to consider is whether the applicant’s delay in filing her Application with respect to the allegations of discrimination against Bethel and its elders was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 428 at para. 20 and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

15Therefore, in order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. The applicant stated that any delay in filing her Application was incurred in good faith because she had a reasonable expectation, which eroded over time, that the appeal bodies would investigate her allegations against Bethel and its elders.

16I am not satisfied that the applicant’s near five-year delay in filing her Application with the Tribunal with respect to the allegations of discrimination against Bethel and its elders was incurred in good faith. The applicant’s explanation for her delay only covers a short period of time after Bethel gave her a document that stated that she had resigned her membership (April 22 to June 8, 2005), and the time period from when her legal counsel issued a demand letter (August 18, 2007) to the final denial of her appeal by Synod 2009 (June 17, 2009). She did not explain why she waited more than two years to send a legal demand letter after the last alleged act of discrimination by Bethel and its elders, and why she waited approximately nine months to file her Application with the Tribunal after her appeal was denied with finality.

17In view of my finding that the applicant’s delay in filing her Application with the Tribunal with respect to the allegations of discrimination against Bethel and its elders was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

18The allegations of discrimination in the Application from 2003 to 2005 are therefore dismissed. Based on my reading of the applicant’s pleadings, there are no allegations of discrimination against Bethel and its elders after 2005. As such, Bethel and its elders shall be removed as respondents to the Application. The style of cause shall be amended accordingly.

19In my view, the remaining 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.

ORGANIZATION RESPONDENTS

20There is a dispute between the parties about who the remaining organization respondents should be. There is insufficient information in the parties’ pleadings to determine whether the CRCNA-Canada and the CRCNA-United States, or Classis Hamilton and Synod 2009, or all four organizations, are the correct organization respondents. In my view, it is therefore fair, just and expeditious to add Classis Hamilton and Synod 2009 as respondents, and to determine at the next stage of the proceeding (see below), if necessary, who the correct organization respondents are.

21The Tribunal directs the respondents’ counsel to notify the applicant and the Tribunal’s Registrar within two weeks of this Interim Decision whether he is representing Classis Hamilton and Synod 2009. If he is not, the applicant shall provide the Tribunal’s Registrar with the mailing addresses of Classis Hamilton and Synod 2009 within three weeks of this Interim Decision, and the Registrar will serve the parties’ pleadings and the Tribunal’s Interim Decisions on them. Classis Hamilton and Synod 2009 are not required to file Responses to the Application with the Tribunal at this time.

NEXT STEP

22The Tribunal directs, on its own initiative, that a summary hearing be held to determine whether the remaining 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.

23Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

24Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

25Having reviewed the remaining allegations in the Application, it appears that the applicant may be unable to prove discrimination.

26The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the remaining allegations in the Application should not be dismissed as having no reasonable prospect of success.

27If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The remaining allegations in the Application may be dismissed in whole or in part.

28A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

29The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

ORDERS

30The Tribunal therefore makes the following orders:

1. The allegations in the Application between 2003 and 2005 are dismissed, and Bethel and the individual respondents are removed as respondents to the Application.

2. The remaining 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.

3. Classis Hamilton and Synod 2009 are added as respondents to the Application.

4. The respondents’ counsel shall notify the applicant and the Tribunal’s Registrar within two weeks of this Interim Decision whether he is representing Classis Hamilton and Synod 2009. If he is not, the applicant shall provide the Tribunal’s Registrar with the addresses of Classis Hamilton and Synod 2009 within three weeks of this Interim Decision, and the Registrar will serve the parties’ pleadings and the Tribunal’s Interim Decisions on them.

5. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases that they intend to rely upon no later than 14 days prior to the summary hearing.

Dated at Toronto, this 21st day of March, 2012.

”signed by”____________

Ken Bhattacharjee

Vice-chair