Anozie v. McGrattan, 2017 HRTO 1208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Anozie

Applicant

-and-

William McGrattan and the Episcopal Corporation of the Diocese of Peterborough

Respondents

DECISION

Adjudicator: Brian Cook Date: September 15, 2017 Citation: 2017 HRTO 1208 Indexed as: Anozie v. McGrattan

APPEARANCES

Stanley Anozie, Applicant Self-represented

William McGrattan and the Episcopal Corporation of the Diocese of Peterborough, Respondents Susan Adam Metzler, Counsel

1This Application alleges reprisal and discrimination in employment because of race, colour, and place of origin, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). This Decision considers whether the Tribunal has jurisdiction to deal with the Application. The respondents assert that the Code of Canon Law applies to the circumstances giving rise to the Application and that the Code does not apply.

2In Interim Decision 2016 HRTO 1345, the Tribunal directed that an in-person preliminary hearing be held to determine issues concerning the Tribunal’s jurisdiction to deal with the Application, and whether, assuming jurisdiction, the Application should be dismissed as having no reasonable prospect of success. The preliminary hearing was held on August 14, 2017.

Background

3The applicant is an ordained Priest of the Roman Catholic Church. The personal respondent is the Bishop of the Diocese of Peterborough.

4The applicant is a member of the Sons of Mary Mother of Mercy (SMMM), which is a religious order in Nigeria. SMMM has contractual arrangements with various Archdioceses in Canada, including the Diocese of Peterborough.

5In October 2015, the personal respondent re-assigned the applicant from a community in the Diocese to another community in the Diocese. At the new community, he would be working under Father Placid Objii, who is the local supervisor of the SMMM.

6In this Application, the applicant alleges that he should have been consulted before the re-assignment was made. Previously, he had been receiving money that he characterized as a salary, which he used to cover his living expenses. At the new assignment, he would not receive a salary but would live with the religious community. In effect, the applicant claims a form of constructive dismissal.

7The applicant alleges that the re-assignment process was discriminatory and that he was treated differently because of his race, colour, and place of origin.

8When he was told of the transfer, the applicant raised these allegations of discrimination and indicated to the respondents that he might commence a legal action. He received a letter dated January 18, 2016 from the Superior General of the SMMM in Nigeria, advising him to not take legal action and to obey the Bishop. He was advised that “any further disobedience and/or challenge of the Diocesan Bishop of Peterborough will warrant your consequent withdrawal from the mission in Canada.”

9The applicant had in fact filed this Application on January 14, 2016, a few days before the letter from the Superior General. On January 29, 2016, the Superior General wrote to the applicant again and commanded the applicant to withdraw the legal action the applicant had commenced. On August 31, 2016, the Superior General informed the applicant that his mission in Canada was terminated effective August 31, 2016.

10The applicant did not accept the re-assignment. He did not report to the new community, but instead stayed with his “Canadian mother” and subsequently obtained a part-time teaching contract, not associated with the Church.

The Code of Canon Law

11The respondents submit that this Tribunal does not have jurisdiction to deal with the Application because the applicant has not pursued processes that are available to him under the Code of Canon Law, established by the Roman Catholic Church.

12The application of the Code of Canon Law to matters relating to such things as the appointment of priests to communities or churches was considered by the Ontario Court of Appeal in Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, 2011 ONCA 728 (“Hart”).

13Hart was a Roman Catholic priest who was removed from his position as a parish priest by the Archdiocese of Kingston. He commenced a civil action, claiming damages for constructive dismissal. The Court of Appeal found as follows, at paragraphs 17-24:

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 CanLII 108 (SCC), [1995] 2 S.C.R. 929.

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), 1999 CanLII 14818 (ON SC), 45 O.R. (3d) 147 (S.C.).

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 CanLII 59 (SCC), [1940] S.C.R. 586; Lakeside Colony of Hutterian Brothren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165; Mott-Trille v. Steed (1996), 1996 CanLII 7955 (ON CTGD), 27 O.R. (3d) 486 (S.C.).

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.

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?

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: see Weber, at p. 955.

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.

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.

The nature of the dispute in this case

14In this case, it appears to me that the dispute relates to the decision to re-assign the applicant and the process concerning that decision. In my view, the fact that the applicant has styled the dispute as a human rights case does not change the essential nature of the dispute. The remedies that he seeks all relate to the re-assignment decision and the process concerning that decision.

15The nature of the dispute in this case is quite similar to the dispute in Hart. The essence of this dispute concerns the re-assignment of the applicant by the personal respondent. The applicant alleges that the process of re-assignment was unfair and that the terms of the new assignment were less favourable than his previous assignment.

16The applicant concedes that the Bishop has the authority to re-assign priests to different churches and communities. He agrees that the Code of Canon Law provides mechanisms that allow a priest to bring forward allegations of unfair treatment, including assignment decisions. However, he does not agree that he was obliged to use those mechanisms instead of bringing this Application. At the hearing, he explained that the reason for this is that he does not trust the respondents or the processes established under the Code of Canon Law. In his view, he should not be required to pursue a process that he does not have confidence in.

17In Hart, the Superior Court decision reviewed the provisions available under the Code of Canon Law and found they met the requirements of natural justice. The applicant does not identify any structural issue with the processes under the Code of Canon Law that might show that there is something about his case that shows that the procedures would not meet the requirements of natural justice. The applicant’s issue instead seems to be that he suspects the result of pursuing a complaint under the Code of Canon Law will not lead to the result that he will like. In my view, this is not sufficient to distinguish this case from Hart and the finding by the Court that the procedures available do meet the requirements of natural justice.

Conclusion

18In my view, the decision of the Court of Appeal in Hart disposes of this Application. The essence of the dispute giving rise to the Application is about an assignment of a Priest by a Bishop. This is fundamentally an ecclesiastical issue that falls under the Code of Canon Law. The Code of Canon Law provides a full process for a Priest to bring forward concerns and allegations about such an assignment. The Court of Appeal has confirmed that in these circumstances, the applicant must pursue the avenues that are available to him under the Code of Canon Law. The fact that the applicant chose to not pursue the process that was available to him does not give this Tribunal jurisdiction to deal with the issues in the Application.

19For these reasons, the Application is dismissed because the Tribunal lacks jurisdiction to deal with it.