ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-113333-00

DATE: 20130307

BETWEEN:

Carlo Diaferia, Eugene Yavtucovich and Joseph Lefave

Applicants

– and –

Roger Elliott, George Hennig, Jack Dueckman, Mark Redlich and Nashville Road Community Church

Respondents

Jean P. Carberry, for the Applicants

Peter J. Cavanagh, for the Respondents

HEARD: February 28, 2013

REASONS FOR DECISION

EDWARDS j.:

Background

[1] This is an application brought by the applicants seeking an interlocutory injunction that would prevent the respondents from holding a meeting of the Nashville Road Community Church (the “Church”) on Sunday, March 3, 2013 and for a mandatory order which would direct the respondents to admit additional persons to membership of the Church. This matter was argued on February 28, 2013 and because of the proximity in time to the meeting at the Church, I released a brief hand-written endorsement granting the injunction, together with a limited mandatory order. What follows are my reasons for the order of February 28, 2013.

The Facts

[2] The Church is a Protestant Christian Church in the Baptist tradition and is an unincorporated association and registered charity under the Income Tax Act. It was founded in 1949. The Church has a written constitution (the “constitution”) which was filed as an exhibit on the motion before me. The constitution provides for the internal governance of the Church. Included in that governance is a pastor, church elders, and a church management team. There are four elders of the Church, the most senior of which is Roger Elliott, who has been chair of the elders’ board for approximately twelve years.

[3] As of February 7, 2013, the Church had sixty church members. The constitution provides for the methodology by which someone could become a member of the Church. In 2012, only three persons were admitted as new Church members. Traditionally, the timing for the introduction of new Church members did not take place until the annual meeting of the Church. Prior to the events that brought this matter before the court, Mr. Elliott indicated that in his experience, the most new Church members that he could recall being added at any one time was five. Underlying this motion was a decision made by the Church elders on February 7, 2013 in which a meeting of the Church members would be called for March 3, 2013 to discuss and vote on whether to dismiss the senior pastor of the Church, Reverend McLean. The elders met on February 7, 2013 with Reverend McLean who was advised that he was being placed on a paid leave of absence from his duties, effective as of that date.

[4] On February 10, 2013, Mr. Elliott announced at the completion of the Church’s worship service that there would be a meeting of the Church members on March 3, 2013 to discuss and vote on whether to dismiss Reverend McLean from his role as senior pastor.

[5] Immediately after Mr. Elliott’s announcement, Reverend McLean came to the front of the Church and announced that he was going to oppose his termination. Reverend McLean then invited those present, who were not Church members and wished to support him, to attend a business meeting on Sunday, February 24, 2013, at which time membership applications would be processed. There had been no prior indication by Reverend McLean to the Church elders that he would be making the aforesaid announcement, nor that a Church members meeting had been called for February 10, 2013. Mr. Elliott, however, had been informed by the Church’s executive director, just prior to the Church worship service of February 10, 2013 that five Church members did intend to call a business meeting of Church members for February 24, 2013.

[6] On February 12, 2013, the elders met to discuss the proper process to be followed for consideration of membership applications prior to the March 3, 2013 meeting. At the meeting of February 12, 2013, the Church elders decided that they would not recommend admission to membership any person whose application for membership had not already been made and who had not already been interviewed by an elder on or before February 10, 2013.

[7] The elders believed that the aforesaid process for consideration of membership applications would result in a “fair and appropriate process” and was necessary to avoid what they considered could become an “unmanageable process resulting from a recruitment campaign designed to introduce new church members” so as to “materially change the composition of the membership of the church in order to affect the decision on whether Reverend McLean should be dismissed from his role as senior pastor.”

[8] As previously noted, the traditional timing for the introduction of potential new Church members did not take place until the annual meeting of the Church. In addition, as I have previously noted, there had been only three new members introduced as of 2012 and that according to Mr. Elliott there had never been any more than five new members introduced in any prior year.

[9] As a result of the process agreed to by the Church elders, Mr. Elliott informed those attending the meeting on February 24, 2013 that the elders had not intended to present new Church members until the annual meeting but that the elders had decided that it would present twelve applicants who had been interviewed by an elder and the membership administrator as of February 10, 2013.

[10] At the meeting of February 24, 2013, Reverend McLean asked that fourteen additional persons be admitted as new Church members. In response to this request, Mr. Elliott responded by ruling that only candidates who had met the pre-qualifications of membership as of February 10, 2013 would be presented. He indicated that from his experience in church leadership, the most new Church members that he could recall being added at any one time was five. As such, the fourteen individuals that Reverend McLean had requested for consideration as new Church members were not admitted.

[11] Filed as part of the application record was a petition signed by approximately 100 individuals who were not Church members but may be loosely described as parishioners regularly attending at the Church. The individuals who signed the petition, not surprisingly, disagree with the elders’ decision to remove Reverend McLean. The majority of the individuals who signed the petition wish to be admitted to membership of the Church and take the position that it is only through inadvertence that they had not previously applied for membership and that they were not actually aware that they were not full members.

Position of the Applicants

[12] The applicants acknowledge that the Church constitution requires a three step process for admission to membership. These three steps include: an interview with an elder; baptism by emersion; and a vote of the Church members. The applicants note that many of the people who attend and support the Church while not full members, are baptized and have been regularly attending the Church. Simply put, these individuals were not aware of the final required step to become a voting member. The applicants position is that they are seeking to ensure that the spirit of the Church constitution and guiding principles, including general fairness are observed.

Position of the Respondents

[13] The respondents argue that the extraordinary injunctive remedy sought by the applicants relates to a decision taken by the Church elders on a matter which involves the future spiritual direction of the Church (i.e., whether or not the senior pastor should be replaced). As such, it is the primary position of the respondents that this court has no jurisdiction to interfere in the internal affairs of a religious organization.

[14] The respondents suggest that the decision made by the elders as to the methodology for admitting Church members was made in accordance with the constitution.

[15] Finally, it is argued by the respondents that the decision by the Church elders was made in good faith so as to avoid a chaotic and unmanageable process whereby campaigns might be launched for new memberships for those who had never sought to become Church members. Such a campaign it is argued would be solely for the purpose of materially changing the composition of the existing 72 person membership.

[16] As to the applicants’ argument that the decision of the elders contravenes the “spirit” of the constitution of the Church, the respondents argue that the elders as elected Church members serve as leaders of the Church and as such have responsibility for the direction of the Church.

The Law

[17] It is quite clear from a review of the jurisprudence, as it relates to when the courts might interfere in the religious affairs of a church or other religious organizations, that the courts must be sensitive to the “interplay between civil law and the internal law of a religious organization”. See Ivantchenko v. Sisters of Saint Losmas Aitolos Greek Orthodox Monastery, 2011 ONSC 6481, 2011 CarswellOnt 12913, as per Lauwers J. at paragraph 5. It is equally clear that the courts should only interfere where the process is unfair or does not meet the rules of natural justice. See Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, 2011 ONCA 728, 2011 CarswellOnt 1282, per Laskin J.A. at paragraph 19.

[18] I note that there is no internal dispute resolution process in the Church constitution. Effectively, the governance of the Church is through the Church elders and ultimately the Church members.

[19] In this case, had the elders simply left the decision as to whether Reverend McLean should be dismissed or not to the membership of the Church as it stood as of February 10, 2013, this court would have no basis to intervene with that decision. The elders, however, have decided to add an additional twelve members to the previous constituted membership of 60 Church members, thereby increasing the Church membership by twenty per cent. This is particularly significant given the evidence of Mr. Elliott to the effect that he could not recall more than five new members being added to the Church in any given year. It is also significant, given the fact that traditionally new Church members were not presented as new Church members until the annual meeting of the Church. There is no suggestion that the meeting of March 3, 2013 was the annual meeting of the Church.

[20] The process adopted by the elders may have been perceived by them as fair and appropriate. The elders may also have believed that the process would not materially change the composition of the membership of the Church so as to affect the decision of whether Reverend McLean should be dismissed. It is hard to see how a process that results in a twenty per cent increase in the membership can be seen as a process that does not materially change the composition of the Church membership. Contrary to the position suggested by the respondents, the process was in fact unfair. The question then remains the extent to which this court should interfere in the internal workings of this Church.

[21] In addition to the twelve people who had applied for membership prior to February 10, 2013, there was an additional group of people who attended an event described as NRCC101 on February 3, 2013. This event consisted of a lunch with the pastor and an information session regarding the Church. From the group of individuals who attended this meeting, there was a further twelve persons who applied for membership. All of the twelve individuals who had applied for membership had been attending the Church for a long period of time and had been contributing to the life of the Church.

[22] In my hand-written endorsement of February 28, 2013, I granted the injunctive relief preventing the meeting of March 3, 2013 proceeding. I also determined that the additional group of twelve people who are referenced in paragraph 7 of the affidavit of Carlos Diaferia should be entitled to submit their names for consideration as members of the Church. This court has no intention of, in any way, influencing the decision of the Church elders and the Church members in determining whether or not the additional twelve people referenced at paragraph 7 of the affidavit of Carlos Diaferia are, in fact, made members of the Church. This court also has no intention of getting involved in how the ultimate meeting of the Church members proceeds in terms of the consideration of whether or not the senior pastor should be terminated. That is a determination that the Church members, in their ultimate wisdom, will have to decide. While the process adopted by the elders, as described above, was unfair, this court must, nonetheless, circumscribe the extent to which it becomes involved in the internal affairs of a religious organization. The order provided for in my endorsement of February 28, 2013 ensures that this court is providing for a level playing field that is fair to everyone, such that the ultimate decision with respect to the future of the Church’s senior pastor is made by the Church members and not by the court.

[23] As to the question of costs, while the applicants did have some considerable measure of success, the extent of the mandatory order was not of the scope demanded and, as such, the respondents also had some degree of success in circumscribing the injunctive relief granted. Unless the parties are of the mindset that they wish to seek costs of this motion, this court is inclined to make no order as to costs.

Justice M.L. Edwards

Released: March 7, 2013