Ivantchenko, et al. v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery, 2011 ONSC 6481 (CanLII)

REASONS FOR DECISION

LAUWERS J.

Nun Procession at St. Kosmas Monastery, Canada.
Nun Procession at St. Kosmas Monastery, Canada.

 [1]          The plaintiff Victoria Ivantchenko (“Sister Ivantchenko”) is a nun who resided in Saint Kosmas Aitolos Greek Orthodox Monastery (the “Monastery”), under the direction of the Mother Superior/Abbess Anastasia Voutzali (the “Mother Superior”), until May 2010 when she left.

[2]          Sister Ivantchenko seeks damages for wrongful constructive dismissal, for costs related to her retraining, aggravated damages and an accounting of monies allegedly owed to her for work she did in the past. She seeks this relief against the Monastery, which she identifies as the corporation known as the “Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery” Sister Ivantchenko claims that the corporate defendant, the Greek Orthodox Metropolis of Toronto (Canada) (the “Metropolis”) is her predecessor employer and is also vicariously liable for the actions of the Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery. She also alleges breach of fiduciary duty and negligent investigation by the Metropolis. Sister Ivantchenko has included in her action claims for slander and/or defamation, invasion of privacy, intentional infliction of mental suffering, injurious falsehood and wrongful interference with membership at the Monastery and claims under the Ontario Human Right Code.  Some of these claims are also made on behalf of her mother, Ludmilla Davidenko, her sister, Valerie Rost and her brother in law, Max Rost.

[3]          The defendants move for summary judgment against the plaintiffs largely on the basis that there was and is no employment relationship between Sister Ivantchenko and the Metropolis, the Monastery, or the Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery. This motion obliges the court to analyze carefully the actual relationships among the parties.

[4]          Mr. Epstein, counsel for the applicant, has conceived of his case in almost entirely secular terms. However, the authorities cited by counsel, including Mr. Epstein, acknowledge that courts must be sensitive to the interplay between civil law and the internal law of the involved religious organization in determining disputes between the organization and its members. Sister Ivantchenko’s claims bring into play the intersection between civil law and the internal law applicable to members of a religious organization, which I will call “ecclesiastical law” for convenience; this case perforce brings civil law into engagement with religion.

The Court’s Approach to the Intersection of Civil and Ecclesiastical Law

Nun Procession at St. Kosmas Monastery, Canada.
Nun Procession at St. Kosmas Monastery, Canada.

[5]          Courts are reluctant to become involved in the internal affairs of a religious organization. The invitation to do so comes invariably, as in this case, at the instance of a member who feels aggrieved by the actions of the organization. There are good reasons for this diffidence. First, the court recognizes that freedom of religion, a right protected by the Canadian Charter of Rights and Freedoms, is very much implicated in such disputes and must be fulsomely respected. This may well involve the court accepting, on the evidence, that an individual is not an employee at common law: Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, 2010 ONSC 4709 (CanLII), [2010] O.J. No. 3747,, 323 D.L.R. (4th) 212 per Beaudoin J.; Brewer v. Anglican Church of Canada, [1996] O.J. No. 634 (C. J. (Gen. Div.)),  per Soubliere J.; Lewery v. Governing Council of the Salvation Army in Canada (1993), 1993 CanLII 5290 (NB CA), 135 N.B.R. (2d) 348,104 D.L.R. (4th) 449 (C.A.), per Hoyt C.J.N.B..

[6]          Second, the court recognizes the real risk of misunderstanding the relevant tradition and culture, which could result in getting the decision wrong and saddling the religious organization with a bad decision. In Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165, Gonthier J. made the following observations:

63       It is only from an external viewpoint that the written documents and the authority which they outline seem primary. Indeed, it is difficult for a court to come to a firm conclusion as to what the tradition and custom are, and correspondingly easier to analyze the formal legal documents. This is especially so when the tradition or custom is in dispute, as it will often be when a court is called on to intervene. Especially in interpreting the tradition and custom of religious societies, the court is in great danger of falling into what Professor Chafee called the “Dismal Swamp of obscure rules and [page191] doctrines” (in “The Internal Affairs of Associations Not for Profit” (1930), 43 Harv. L. Rev. 993, at p. 1024). In this regard, Professor Chafee makes this observation (at pp. 1023-24):

In very many instances the courts have interfered in these [church controversies], and consequently have been obliged to write very long opinions on questions which they could not well understand. The result has often been that the judicial review of the highest tribunal of the church is really an appeal from a learned body to an unlearned body.

64        However, as Professor Chafee also recognizes, the difficulty of understanding tradition and custom is really one reason to avoid assuming jurisdiction in the first place. Once the court assumes jurisdiction, there is no alternative but to come to the best understanding possible of the applicable tradition and custom…

This, of course, obliges the affected religious organizations to place the appropriate materials before the court.

[7]          Third, while the court will enforce the civil incidents of an agreement that originates in a religious context, by enforcing, for example, a contract to grant a religious divorce, as in Bruker v. Marcovitz, 2007 SCC 54 (CanLII), [2007] 3 S.C.R. 607 at para. 47, it will take care to avoid involving itself in doctrinal disputes, as McLachlin C.J.C. noted in Syndicat Northcrest v. Amselem, 2004 SCC 47 (CanLII), [2004] 2 S.C.R. 551:

50       In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, precept, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.

This caution must be especially pronounced where the court is not certain, on the state of the evidence, about the presence or ambit of a doctrinal dispute.

[8]          Fourth, the concepts underpinning the relationship between civil law, on the one hand, and religious organizations and their internal laws, on the other hand, have not been fully worked out. There are some exceptions, such as the obligation of a religious organization to follow its own rules including the rules of natural justice: Davis v. United Church of Canada (1991), 1992 CanLII 7731 (ON SC), 8 O.R. (3d) 75; Lakeside Colony of Hutterian Brethren v. Hofer, supra; and Davies v. Presbyterian Church of Wales, [1986] 1 All E.R. 705 (H.L.), among others.

[9]          Some relevant unresolved difficulties include the appropriate approach for the court to take when the religious organization is understood primordially as an unincorporated association of individuals sharing a common faith, but which has obtained a civil corporate identity that is not or may not be completely coextensive with it. In Lakeside Colony of Hutterian Brethren v. Hofer, supra, per Gonthier J. at paras. 58-59:

58     The statutory corporation [created under civil law] and the association created by the Constitution [the ecclesiastical document] thus seem neither wholly identical nor wholly distinct. In analyzing the relationship between the Act and the Constitution, it is readily apparent that the Act casts only the top layer of the structure established by the Constitution into legislative form. This is consistent with the view that the purpose of the corporation was to deal with external threats that affected each Hutterite conference equally. To this end, only the top level of the institutional structure needed to be formalized in the statutory corporation. Why it was thought that a statutory corporation was necessary to this end is unclear, but this seems a logical conclusion.

59   The church corporation and the church should therefore be seen as technically distinct entities which in practice have the same members, and are governed by the same managers at the same meetings.

[10]      For an historical analysis and an exploration of the legal complications around the corporate status assumed by an ecclesiastical entity and the proper reach of that status, see J.R.S. v. Glendinning, 2000 CanLII 22641 (ON SC), [2000] O.J. No. 2695, 191 D.L.R. (4th) 750 per Ross J. The complications only increase where the controversy is between ecclesiastical entities that utilize civil corporate entities for certain purposes, as in this case where the Monastery and the Metropolis are both implicated by the plaintiffs’ allegations.

[11]      The typical pattern in court decisions is to carefully explicate the polity of the religious organization based on expert evidence: Davis v. United Church of Canada, supra; Lakeside Colony of Hutterian Brethren v. Hofer, supra; J.R.S. v. Glendinning, supra; Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, supra; Brewer v. Anglican Church of Canada, supra; Pedersen v. Fulton, [1994] O.J. No. 168. These authorities show that once the ecclesiastical relationships are properly understood, the court will oblige the religious organization and its member to comply with its internal law; this may include, for example, refusing to permit a civil suit to proceed until the internal routes are exhausted and found wanting. None of the parties have tendered expert evidence on this issue.

The Factual Context

Gerondissa Alexia Voutzali
Gerondissa Alexia Voutzali

[12]      In the words of Mother Superior, Sister Ivantchenko “came to live and serve in the Monastery as a novice nun on or about February 26, 1996.” On May 9, 1999, she “became a “Rassaphore, that is, she reached the second stage of her development as a nun.” In May 2010 she left the Monastery. On August 10, 2010, she started this action.

[13]      The individual defendants are all nuns of the Greek Orthodox religion and reside at the Monastery. The defendant, “Sisters of St. Kosmas Aitolos Greek Orthodox Monastery” was incorporated in 2001, five years after Sister Ivantchenko came to be a nun at the Monastery. According to Mother Superior, it is a charitable corporation set up for the principal purpose of providing receipts for charitable donations made to the Monastery. These defendants assert that the charitable corporation does not own the Monastery and that only three of the nuns living at the Monastery are on the board of directors of the charitable corporation. These defendants submit that Sister Ivantchenko has not named the Monastery itself in this action, although it is plain that she thought she was doing so when she sued the entity known as Sisters of St. Kosmas Aitolos Greek Orthodox Monastery.

[14]      I am especially troubled by the profound ambiguity that permeates the evidence of the Mother Superior in her affidavit dated January 28, 2011, on the nature of the Monastery:

The Monastery was set up under the spiritual guidance of an individual by the name of Elder Ephrem in 1993. I began my relationship with Elder Ephrem when I entered a convent known as Holy Theotokos the Directress in Volos, Greece in 1968.

The Monastery is the only one of its type in Ontario, that is, one dedicated to the works and services of nuns, under the Greek Orthodox Metropolis of Canada. There are other monasteries of the Greek Orthodox faith in Ontario, but we are not associated with these monasteries, except by way of common religion. Although Elder Ephrem is the spiritual father of all the Monasteries he has established, he is not involved in the daily supervision of the Monastery. As Mother Superior of the Monastery, I am its spiritual leader.

The Monastery comprises a number of structures including a church, living quarters for the nuns, storage areas, chapels and a parking lot. The land on which the Monastery sits is registered to the Co-Defendant, The Greek Orthodox Metropolis of Toronto (Canada) (the “Metropolis”). Although the Monastery enjoys a friendly relationship with the Metropolis, the Monastery is not under the direct, daily, spiritual or economic supervision of the Metropolis, nor is it funded by the Metropolis. The Monastery is responsible for all expenses and activity related to the property.

The Monastery is a cenobitic one in which monastics live together and have their possessions in common under my leadership. The communal way of monastic life has existed for almost 2000 years. This is a tradition that the sisters presently hold and pursue. The obligation of a nun in this type of monastery is to strive to keep, for the love of Christ and for spiritual progress, the monastic vows of poverty, chastity and obedience. Although a nun’s free will never disappears, it is the duty of every monastic to focus her free will on keeping the commandments of Christ within the monastic community. Monastics, in general, have little or no contact with the outside world, especially family. A monastic’s family, whose child decides to enter monasticism, understands that their child will become “dead to the world” and will therefore be unavailable for social visits. Monasticism is a way of life in which the monastics devote their life to God. Monastic work is for God and not for people. It is not a career.

[15]      It is common ground that the Metropolis owns the land and buildings that house the Monastery. James Anas is a director and corporate secretary of the corporate defendant known as the Greek Orthodox Metropolis of Toronto (Canada). He deposes that:

The Metropolis administers the life of the Greek Orthodox Church in Canada according to the Eastern Orthodox faith and tradition, sanctifying the faithful through the divine liturgy and the holy sacraments and edifying the religious and ethical life of the faithful in accordance with the holy scriptures and in accordance with the principles established by the Ecumenical Patriarchate of Constantinople. The Metropolis is headed by His Eminence Metropolitan Archbishop Sotirios (the “Metropolitan”).

Icon given to monastics under Geronda Ephraim. There is a blessing to pray to this icon to ask for Geronda's help in times of need
Icon given to monastics under Geronda Ephraim. There is a blessing to pray to this icon to ask for Geronda’s help in times of need

In 1993, Father Ephraim was given the blessing of the Metropolitan to organize the Monastery. The Metropolis provided the building and property upon which Father Ephraim and the defendant, Anastasia Voutzali (the “Mother Superior”) and one other nun, both of whom were from Greece, organized the Monastery. The Mother Superior is the spiritual leader of the Monastery.  Father Ephraim is affiliated with the Greek Orthodox Metropolis of San Francisco which oversees the western region of the Greek Orthodox Archdiocese of America.

The Metropolis was and is not involved in the operation of the Monastery. The Monastery is an autonomous entity. The Metropolitan did not appoint or place the Mother Superior in her position. The Metropolis is not involved in any decisions with respect to the Monastery or the sisters. The Metropolitan does not appoint or place individuals to the Monastery, nor monitor or endorse their individual spiritual process or progress. Further, the Metropolis does not fund the Monastery and does not pay any of its expenses. The Monastery is responsible for its own expenses. From time to time, however, the Metropolitan visits the Monastery for liturgical purposes. On these occasions, he is often asked and does provide his blessing to the sisters as a whole, including having dinner with the sisters, beginning and ending same with prayers.

With respect to Ivantchenko specifically, neither the Metropolis nor the Metropolitan appointed or placed Ivantchenko at the Monastery. I am advised by the Metropolitan and do verily believe that Ivantchenko was not known to the Metropolitan or the Metropolis prior to the time he visited the Monastery for liturgical services. The Metropolis never had responsibility for Ivantchenko’s general support or welfare. The Metropolitan did not exercise any discretion with respect to Ivantchenko’s spiritual progression, but was asked to bless the decision of Father Ephraim and Mother Superior for her to be tonsured as a nun.

[16]      The evidence recited in the two preceding paragraphs of these reasons establish that there is a “Monastery.”  The word is used variously and therefore ambiguously. It is a description of a physical structure; it is also a form of community or religious organization independent of the physical structure; it has a relationship with the Metropolis but that relationship is not explained; the Monastery is not the same entity as the Sisters of St. Kosmas Aitolos Greek Orthodox Monastery, but precisely what form of entity it is, ecclesiastical or civil, is nowhere described or explained. Is the Monastery, in fact, a legal entity capable of being sued or is the problem one of misnomer?

[17]      In relation to Sister Ivantchenko, Mother Superior asserts:

The sisters in the Monastery sign no contract and receive no salary or pay. There are no pensions and no vacations. This is the circumstance in monastic life the world over. The sisters reside in the Monastery as a family.

Ivantchenko was not hired, or employed, by the Monastery. She entered into the Monastery voluntarily with the awareness that she would not receive any pay or income, or salary of any sort, and would be in the service of God and her fellow sisters. At no point in the 14 years that Ivantchenko was residing at the Monastery did she ask for pay of any sort, or complain at any time that she was not receiving pay.

[18]      Sister Ivantchenko performed tasks that would be seen in the secular world as “work” including sewing religious vestments and doing embroidery, for which the Monastery received compensation. Mother Superior asserts that these tasks fall within the ordinary responsibilities of a nun:

In the secular sense of the word Ivantchenko was not working for anyone, nor was she an employee. At no time was it stated, or implied, that she was working, in any way for pay. Monastery life has, from its inception 2000 years ago, involved voluntary labour for sustaining the common needs of the sisterhood. These labours include daily chores, such as caretaking of the church, church services, chanting, tending to elderly or sick sisters, hospitality and a great variety of artistic and skilful crafts, including iconography and sewing. Some nuns, because of certain talent or ability may begin to dedicate more time to a certain task, but all are willing to help towards the common good, as in a home, where everyone is needed to help with different chores.

[19]      Mr. Epstein relies on these activities, among other things, to assert that Sister Ivantchenko is an employee for civil law purposes and is entitled to sue for wrongful dismissal.

Discussion

Metropolitan Sotirios of Canada.
Metropolitan Sotirios of Canada.

[20]      This review of the underlying facts shows that this motion suffers from infirmities that should cause a court to step back. This is because of the risk that a decision could  cast in legal stone a relationship in a religious context that is not fully understood by the court. The parties are obliged to place the appropriate materials before the court, as noted by Gonthier J. in Lakeside Colony of Hutterian Brethren v. Hofer, supra, at paras. 63-64.

[21]      The difficulty in this case is that I have not been provided with evidence concerning     ecclesiastical law as it may apply to the relationships among the parties.  In her book entitled Religious Institutions and the Law in Canada 3rd ed. (Toronto: Irwin Law, 2010), Professor M.H. Ogilvie makes the following observation in a footnote to her description of Orthodox denominations operating in Canada:

The number of these Orthodox communities, each with its unique polity, history, and a cultural identity, made it impossible to choose one as typical for current purposes.  Legal advisers should ensure that they have the appropriate constitutional documents and legislation for the church with which they are dealing.

[22]      Ms. Kotsopolous, counsel for the Metropolis, which is the party in the best position to supply such evidence, asserts in her factum that:

Any relationship that did exist between Ivantchenko and the Metropolis was at all times governed exclusively by the Canons and Rules of the Greek Orthodox Church.  Any relationship was purely in a liturgical or spiritual capacity.  Accordingly, the Superior Court has no jurisdiction over the subject matter of the claim.

[23]      The Metropolis did not, however, provide any evidence about the applicable “Canons and Rules of the Greek Orthodox Church.” These have not been produced in the course of this litigation. Ms. Kotsopoulos asserted in oral argument that they are not relevant. During her cross examination, Mother Superior referred to something called the “Rules of the Order” which suggests that there is an ecclesiastical entity known as an “Order,” and that it has “Rules.”  She describes this as a “coenobitic tradition” that goes back 2,500 years and implies that the tradition is not in writing.

[24]      Who are the proper defendants? The nature of the involved institutions has not been described adequately in the evidence. Is the civil corporation known as the Greek Orthodox Metropolis of Toronto (Canada) the same as the ecclesiastical entity known as the Metropolis? Or is it just the civil corporate structure adopted by the ecclesiastical Metropolis to enable it to hold land, collect money for church purposes, issue charitable receipts and employ lay staff, among other activities in the secular world, as in Lakeside Colony of Hutterian Brethren v. Hofer, supra, or J.R.S. v Glendinning, supra?

[25]      The Metropolis describes the Monastery as “an autonomous entity.” That description implies that the Monastery is not only the land and buildings. Perhaps the autonomous entity is not the land and building at all but the people who reside there as a religious community. Or does that autonomy arise from the fact that the Sisters are part of a religious order that possesses and controls the physical Monastery for the time being? What, in ecclesiastical legal terms, is the nature of that entity?

[26]      Do these religious entities operate civil corporations that are implicated in this case but are not properly named? Which are the suable entities in this case?

[27]      Mr. Epstein invokes the concept of “natural justice” but places no evidence before the court describing any relevant ecclesiastical legal process that exists within the “Canons and Rules of the Greek Orthodox Church,” which the defendants may have failed to follow. Nor have the defendants done so.

[28]      I began these reasons with the observation that courts must be sensitive to the interplay between civil law and the internal law of the concerned religious organization in determining disputes between the organization and its members. Sister Ivantchenko’s claims bring into play the intersection between civil law and the internal law applicable to members of a religious organization. The state of the evidence does not permit me to rule with confidence on the main issue of whether Sister Ivantchenko must be understood in civil law terms to be an employee of one or more of the “Monastery,” the Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery, the “Order,” the Greek Orthodox Metropolis of Toronto (Canada), or some combination of them, let alone whether she might have been wrongfully dismissed. In this extremely sensitive area the parties are obliged to place the appropriate materials before the court about the implicated religious traditions, customs and laws, the nature and interrelationship of the various religious entities involved and their status as a matter of civil law. Certainly the parties have not carefully explicated the polity of the religious organization based on expert evidence.

[29]      I am therefore not prepared to grant summary judgment and dismiss the motion based on the materials filed. This is in spite of my view that the precedents cited by the defendants strongly favour the position of whatever entity may ultimately be considered to be Sister Ivantchenko’s putative employer, if any; the matters raised in this decision may well turn out to require the trial of an issue.

[30]      I am not inclined to award costs to either side in connection with this motion since the deficiencies in the evidence fall on both sides, but if the parties wish to pursue costs I will accept written submissions within 10 days, failing which I will assume that the costs issue need not be decided.

Justice P.D. Lauwers

Released:  November 18, 2011 

http://www.canlii.org/en/on/onsc/doc/2011/2011onsc6481/2011onsc6481.html

Nuns & Priests (St. Kosmas Monastery)

CITATIONIvantchenko, et al. v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery, et al., 2011 ONSC 6481

COURT FILE NO.:  CV-10-0100432-00

DATE:  20111118

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