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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Is a Nun an Employee? Can a Nun Sue to Recover Damages for Unpaid Work Performed in a Monastery? (Professor Doorey)

NOTE: This article is taken from Professor Doorey’s blog, Law of Work. Professor Doorey is an award winning teacher and Associate Professor of Work Law at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law, and sits on the Advisory Board of the Osgoode Certificate program in Labour Law.

Professor Doorey.
Professor Doorey.
Among  the first things we consider in my Employment Law course is “what is an employee” and when is an employment contract created?

When I ask someone to build a deck in my backyard, am I entering into an employment contract with him, or some other form of contract?  Is an intern an employee?  Can the intern sue a business that took her on to do work?

Whether a contract is created, and if so, whether that contract is an ‘employment’ contract matter greatly in our legal system.  A worker can only sue for damages if there was a legally enforceable contract entered into.  They can only make claims for employment regulation benefits if they became an ‘employee’ as defined by our employment laws.

So I was interested in an odd little decision from Ontario released last month dealing with the question of whether a nun residing and performing work in a monastery can sue to recover monies for work she performed while residing at the monastery. The case is called Ivantchenko v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery.

Here is a Toronto Star piece discussing the case.

The nun (Ivantchenko) filed a lawsuit alleging constructive dismissal (among other claims, including a variety of torts).   She is seeking notice of termination (back wages), among other remedies.  Only an employee can be constructively dismissed.  While residing as a nun in the monastery, she performed a variety of tasks including sewing.

Chapel entrance at St. Kosmas Monastery, Canada.
Chapel entrance at St. Kosmas Monastery, Canada.

This was a decision on a summary judgment motion brought by the Defendants.  That is, the Defendants argued that the court should dismiss the lawsuit without a trial because the nun is not an employee and no contract was entered into.  They argued that:

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.

That claim sounds like something employers say when they try to explain why workers they call “unpaid interns” are not employees, and therefore not entitled to minimum wage and other employment-related benefits (other than the God part, that is).  Often that argument fails in the case of interns, as I have noted before, because courts look past how the parties characterize the relationship and apply a series of tests to determine if a worker looks more like an employee, or more like something else (like a person receiving an education, or an independent contractor).

Should the situation be different for nuns?

The court here refuses to grant the summary dismissal.  It rules that there was not enough evidence presented to establish the nature of the relationship, and therefore the facts need to be sorted out at trial.  However, the Judge does hint that he is troubled by the case,  because courts are usually ill-equipped to interpret religious rules and culture, and therefore the risk of a court imposing an inappropriate rule on a religious organization is high.  He says that courts should be very careful in wading into internal religious disputes.

St Kosmas Backview

On the other hand, the courts cannot stand back and allow violations of civil, legal rights to be trampled upon under the guise of religious freedom.  Should every person who performs work inside a monastery be outside the boundaries of employment law, or just some? Should a religious organization be permitted discriminate against people who do not share their faith? Where to draw the line between religious freedom and secular legal rights is a controversial and difficult one.  However, someone needs to answer these sorts of questions.

What do you think?  Should the nun be entitled to employment-related benefits and contractual rights?

Or did she forfeit those rights when she walked into the Monastery?

A requirement of legally enforceable contract is ‘the intention to create legal relations’.  Do you think that the monastery intended to enter into such a contract with the nun?

Two Responses to Can a Nun Sue to Recover Damages for Unpaid Work Performed in a Monastery?

  1. Bob Barnetson Reply

    January 4, 2012 at 1:07 pm

    This isn’t a legal argument, simply an observation: religious orders accorded special treatment have a history of abusing and exploiting the vulnerable. This seems to augur against legal exceptions for religious orders.

    Presumably there was some set of mutual obligations entered into when she entered the relationship with her order. If these obligations weren’t written down, shouldn’t we fall back upon whatever common law doctrines appear most appropriate (and these might or might not employment-related)?

    I’m certainly prepared to entertain arguments about instances where religious beliefs have some legitimate bearing upon employment (e.g., the exception to union security clauses contained in most labour statutes for honestly held religious beliefs), but I’m also heartened the court decided to hear the nun’s case and decide it on its merits.

    2. Ioannis M. Reply

    June 15, 2015 at 12:30 pm

    I will get to the legal aspects near the end of my comment. The first few paragraphs are just some background clarification.

    The 18+ monasteries under Geronda Ephraim’s direction in North America are continually accused as mind-control cults. This is essentially because the most important monastic “virtue” that is emphasized and expected is complete, blind obedience. As Geronda Ephraim teaches, “A disicple should say to oneself, whatever the Elder believes, thinks and feels, I believe, think and feel.” This is very dangerous because the monastics start reprogramming themselves to adapt to this mindset, and begin doing things that go against their conscience, all in the spirit of blind obedience. Of course, there is also a clause in the monastic texts, “It is better to sadden God than your Elder because if you sadden God, your Elder can propitiate for you, but if you sadden your Elder, who will pray for you?”

    With the above in mind, one can see how easy it is for an Elder or Eldress to manipulate their monastics into anything, they have the fear of a) saddening their superior=abandonment of God and grace, b) disobedience=death (i.e. if they die in disobedience they go to hell) and c)they are constantly reminded day in and day out about obedience/disobedience and the day of their death.

    A typical monastery schedule allows 6 1/2 to 7 1/2 hours of sleep daily which is broken up into two portions: 4-5 hours sleep before waking up for an all night vigil (beginning anywhere between midnight to 2am) and then the remaining time is allowed after the vigil. Depending on the monastery, breakfast is eaten before or after the morning sleep (a full stomach sometimes hinders sleep so monastics will eat lightly or not at all). Then a full day of work, which in some cases resembles slave labor, begins. Whatever a monastic is instructed to do, they are expected to do not only without questioning, but also without murmuring or begrudgingly. Work is also usually combined with a superior or older monastic yelling at or insulting the monastic (this is said to be for the benefit of their soul so that they can acquire the virtue of humility). As well as trying to ceaselessly recite the Jesus prayer either verbally or noetically, the monastic also has to include reflections on their death and various forms of self-reproach, i.e. “I’m useless, I’m garbage, I’m worthless, my work isn’t good, I’m nothing, etc.” The superiors will also yell this at the monastic periodically, either daily or throughout the weekly cycle, so they don’t fall into pride.

    So, in essence, eastern orthodox monasticism is a form of slavery which the candidate knowingly enrolls themselves (the catch is, they do not actually understand the depth and the magnitude of this commitment). As a layperson, the monk read the monastic texts, lives of moanstic saints, had conversations with monastics who were grooming them with counsels and stories tailor-made for them, and perhaps even helped out at monasteries during pilgrimages. However, this is all theoretical knowledge without practical experience. Nobody witnesses the ins and outs, or the skeletons in the closet, until they put on the black. Despite all the scandals and hypocrisies one sees behind closed doors, they are suppose to repeatedly justify them with positive thoughts. One saint writes, “Even if you see your elder fall into fornication, do not judge him.” One is suppose to believe that Christ speaks through the Elder, even if they are the most sinful people.

    The Ladder of Divine Ascent—also referred to as “The Monastic Bible”—states: “You who are therefore trying to lay your own burden on Another’s shoulders [i.e. via submitting in blind obedience to an Elder], you who are hastening to sign a pledge that you are voluntarily surrendering yourself to slavery” (Step 4:5). At the end of the book, St. John Climacus writes his own Beautitudes for monastics: “Blessed is he who is as zealous with true zeal as a well-disposed slave towards his master” (Step 30:11).

    Thus, a layperson entering the monastic life knows beforehand that they are making a commitment that will not be paid here on earth, they are doing everything with a hope–not a guarantee–that they will be rewarded in the next life. Geronda Ephraim teaches that not many monastics are saved because of their negligence and disobedience. So it is a life filled with anxiety and constantly reminding oneself that they are probably going to hell because they are not good enough.

    I think Sister Veronica would’ve had a better angle if she sued primarily for emotional and psychological abuse and the damages she suffered from it. Proving it would be hard because Gerondissa Alexia would’ve instructed her nuns to lie (in monasticism, there is no sin in obedience except disobedience, so the nuns technically would not be breaking any commandments if they obeyed).

    Over 40 monks and nuns have left Geronda Ephraim’s monasteries since they started here in 1989. Some of these individuals have been monastics for over 20 years. The majority left with psychological and emotional trauma. However, no one talks out of fear of being “punished by God.” The monastics have heard numerous stories about people who spoke out against Geronda Ephraim being “chastised” with terminal illnesses, lost of a child, even death, thus there is a terror about speaking out against the abuses that go on in the monasteries. Only a few websites have:

    https://scottnevinssuicide.wordpress.com/

    http://stnektariosmonastery.tumblr.com/

    http://gerondaephraim.tripod.com/backup1.html

    – See more at: http://lawofwork.ca/?p=4399#sthash.nnSvj8Kj.kLhTyat1.dpuf

– See more at: http://lawofwork.ca/?p=4399#sthash.nnSvj8Kj.dpuf

Nun took a vow of poverty – but is suing for pay (Laura Stone, 2011)

NOTE: The following newspaper articles are from the Toronto Star,  December 21, 2011. The articles concern a former nun from St. Kosmas Monastery in Bolton, Canada. The nun (Ivantchenko) filed a lawsuit alleging constructive dismissal (among other claims, including a variety of torts). She is seeking notice of termination (back wages), among other remedies.

Victoria Ivantchenko is suing the Sisters of St. Kosmas Aitolos Greek Orthodox Monastery — including the Mother Superior — as well as the Greek Orthodox Metropolis of Toronto for “wrongful constructive dismissal.” The crux of the case stems from the question of whether Ivantchenko can be considered an employee at all.

Rob Griffith/AP It’s unclear why Victoria Ivantchenko left the monastery, but in her lawsuit she alleges slander, invasion of privacy and intentional infliction of mental suffering.
Rob Griffith/AP It’s unclear why Victoria Ivantchenko left the monastery, but in her lawsuit she alleges slander, invasion of privacy and intentional infliction of mental suffering.

For 14 years, Victoria Ivantchenko lived as a nun at a Greek Orthodox Monastery in Bolton, Ont.

Now she wants to get paid for it.

A secular court must decide whether she, as a nun, was an employee of the monastery or a volunteer servant to God.

Ivantchenko is suing the Sisters of St. Kosmas Aitolos Greek Orthodox Monastery — including the Mother Superior — as well as the Greek Orthodox Metropolis of Toronto for “wrongful constructive dismissal.”

The Greek Orthodox Metropolis of Toronto (1 Patriarch Bartholomew Way)
The Greek Orthodox Metropolis of Toronto (1 Patriarch Bartholomew Way)

It’s unclear why Ivantchenko even left the monastery, but in her lawsuit she also alleges slander, invasion of privacy and intentional infliction of mental suffering. She is seeking damages and back pay.

“This is a unique case. It’s been a terrible ordeal for my client and given that she is a nun, the unpleasantness is very difficult for her,” said Ivantchenko’s lawyer, Norman Epstein, who declined to elaborate on his client’s history at the monastery for legal reasons.

The crux of the case stems from the question of whether Ivantchenko can be considered an employee at all.

A motion by the monastery and church to have the case thrown out without a trial was dismissed by Ontario Superior Court Justice Peter Lauwers. He said there wasn’t enough evidence on which he could rule, and the issues should be decided at trial. He also added he was “especially troubled by the profound ambiguity” of a January affidavit from the Mother Superior on the nature of the monastery.

Gerondissa Alexia & Bishop Sotirios
Gerondissa Alexia & Bishop Sotirios

Lauwers’ comments point to the difficulty in dealing with religious matters in civil court. Religious organizations vary widely in their practices on whether those serving them are paid as employees.

“Courts are reluctant to become involved in the internal affairs of a religious organization,” Lauwers said in his reason for the decision.

The lawyer representing the monastery declined to comment, and the lawyer for the Greek Orthodox Metropolis did not return calls.

According to the affidavit from Mother Superior Anastasia Voutzali, Ivantchenko came to live at the monastery on Feb. 26, 1996. Three years later, she became a “Rassaphore,” the second stage of her development as a nun. She left the monastery in May 2010 and began her civil suit that August.

Bells at St. Kosmas Monastery

“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,” reads the Mother Superior’s affidavit.

“Monastic work is for God and not for people. It is not a career.”

But for Ivantchenko, it appears it was.

She said she 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.

OLYMPUS DIGITAL CAMERA

The Mother Superior asserts that these tasks — including daily chores, tending to elderly or sick sisters, hospitality and crafts — fall within the ordinary responsibilities of a nun. She said the sisters in the monastery sign no contract, receive no salary or pay, and don’t take vacations.

“At no time was it stated, or implied, that she was working, in any way for pay,” she said.

But Ivantchenko’s lawyer argued that these activities show Ivantchenko is an employee for civil law purposes and is entitled to sue for wrongful dismissal.

In 2007, a case from the Queen’s Bench for Saskatchewan also looked at the issue of nuns as individual employees and a religious corporation as the employer.

A group of adults who were abused as children by nuns at an orphanage claimed Sister Servants of Mary Immaculate, known as Sisters, was responsible for the conduct of individual nuns. Sisters, however, claimed as a corporation it did not have an employer-employee relationship with individual nuns.

In the end, the judge ruled a class action lawsuit could proceed against Sisters.

Platform

http://www.thestar.com/news/gta/2011/12/21/nun_took_a_vow_of_poverty_but_is_suing_for_pay.html

http://lawofwork.ca/?p=4399

 

Nun suing monastery says sisters harrassed her, killed her cats (Laura Stone, 2011)

NOTE: The following newspaper articles are from the Toronto Star,  December 21, 2011. The articles concern a former nun from St. Kosmas Monastery in Bolton, Canada. The nun (Ivantchenko) filed a lawsuit alleging constructive dismissal (among other claims, including a variety of torts). She is seeking notice of termination (back wages), among other remedies.

“Harassment was extreme, flagrant and outrageous conduct on a continuous basis,” according to Victoria Ivantchenko’s statement of claim filed with Ontario Superior Court of Justice.

St. Kosmas Monastery Feast Day, August 24,  2009.
St. Kosmas Monastery Feast Day, August 24, 2009.

Life in the monastery was “toxic” for former nun Victoria Ivantchenko. Her fellow sisters interfered with her private medical information, accused her of not eating in order to look slim, and even killed her adopted pet cats.
So are the details found in Ivantchenko’s $400,000 lawsuit against both the Sisters at St. Kosmas Aitolos Greek Orthodox Monastery in Bolton, Ont. and the Greek Orthodox Metropolis of Toronto for “wrongful constructive dismissal.”
Ivantchenko — reportedly a former ballerina who trained at “the top school” in St. Petersburg, Russia — says she was harassed by Mother Superior Anastasia Voutzali and other sisters, which eventually led her to unwillingly resign in May 2010.

Gerondissa Alexia (Anastasia Voutzali)
Gerondissa Alexia (Anastasia Voutzali)

Her case now hinges on whether or not she was ever considered an employee of the monastery — a claim disputed by Mother Superior who says monastic work is for God, and not a career.
But Ivantchenko says the Mother Superior “intimidated” her, “lessening her active involvement in the Monastery’s work, lessening her responsibilities, and into considering quitting from the monastery.”

Gerondissa Alexia & Bishop Sotirios.
Gerondissa Alexia & Bishop Sotirios.

In her statement of claim, Ivantchenko accuses the sisters of killing her adopted cats who lived on the monastery grounds; interfering with her medical information; falsely accusing her of losing weight in order to embarrass the monastery; intercepting her mail; and creating false bank accounts in her name to hide monastery money.
“Harassment was extreme, flagrant and outrageous conduct on a continuous basis,” according to Ivantchenko’s statement filed with Ontario Superior Court of Justice.
None of the allegations have been proved in court and the sisters deny any wrongdoing in a statement of defence.
Now, Ivantchenko wants the monastery and church to pay her salary for 14 years of service as well as damages for “injury to her dignity, feelings and self respect.”
An Ontario Superior Court Justice recently threw out a motion by the monastery and church to see the case dismissed, saying it will likely go trial. Ivantchenko’s lawyer, Norman Epstein, said he’s been served with a notice that they plan to appeal the decision.

OLYMPUS DIGITAL CAMERA

Lawyers for St. Kosmas Aitolos and the Greek Metropolis declined to comment.
In a statement of defence, the sisters contradict the former nun’s accusations, such as the killing of cats. They say the cats roamed wild in the monastery’s rural area which is infested by foxes, coy dogs and coyotes. “Ivantchenko was well aware of this” and even witnessed two dogs kill a cat several years ago, it says.
They also strike down Ivantchenko’s notion of being employed at the monastery. “She did not resign as there was no position to resign from. Her to choice to leave was her own decision,” they claim.
“She was treated well by all of the other sisters in the monastery and was often given special attention.”
The documents also detail a rift between the monastery and Ivantchenko’s family, including her mother, sister, and brother-in-law, who also attended the congregation. According to the monastery’s statement of defence, Ivantchenko’s mother, Ludmilla Davidenko, was asked to leave the grounds and was “verbally abusing” the nuns.
Ivantchenko’s family is also seeking $100,000 as part of the damages.

03

http://www.thestar.com/news/gta/article/1105701–nun-suing-monastery-says-sisters-harrassed-her-killed-her-cats

 

Labour Pains: Court should take more active role over religious disputes (Nikolay Chsherbinin)

NOTE: The following article is taken from Law Times News, December 12, 2011. The last section of the article deals with a former nun who tried to sue St. Kosmas Greek Orthodox Monastery (one of Geronda Ephraim’s monasteries in Canada).

Nikolay Chsherbinin is an employment litigator in Toronto.
Nikolay Chsherbinin is an employment litigator in Toronto.

As with their secular counterparts, disputes aren’t uncommon in religious organizations and may take different forms.

There may be factional disagreements between members or even wrongful dismissal claims, as exemplified by the Ontario Court of Appeal decision in Hart v. Roman Catholic Episcopal Corp. of the Diocese of Kingston in Canada.

Central to these disputes is the court’s jurisdiction to adjudicate them. Hart concerned what may be classified as a religious dispute. It raises an intriguing question of what happens when the courts encounter employment disputes answerable by canon law.

In the court’s view, wrongful dismissal claims arising from an ecclesiastical relationship are not justiciable in civil courts because they are subject to an internal review process established by a religious organization.

Hart reaffirms that judicial supervision of the functioning of a self-governing organization is legally narrow.

In Hart, an ordained Roman Catholic priest, Rev. Brian Hart, was appointed for a six-year renewable term as pastor. In this role, he was subject to canon law, a normative system that governs the church and its members.

From 2006 to 2008, the archdiocese placed Hart on administrative leave, suspended his facilities to exercise sacramental ministry, and ultimately removed him from his ecclesiastical office.

St. Kosmas Greek Orthodox Monastery, Canada.
St. Kosmas Greek Orthodox Monastery, Canada.

Prior to his removal, it issued Hart three decrees, each of which he could, but did not appeal, under canon law. Instead, Hart brought an action for damages for constructive dismissal in the Superior Court.

In response, the archdiocese moved to stay Hart’s action on the grounds that the court lacked jurisdiction over his claim.

The motion judge found that the archdiocese’s internal processes, which are designed to address employment-related disputes, do not offend the principles of natural justice and stayed Hart’s action. Hart appealed but failed to persuade the court that it had jurisdiction to adjudicate his claim.

In refusing to exercise its jurisdiction, the court explained that the Roman Catholic Church is a self-governing organization. Its canon law provides for the internal review process and offers a broad range of remedies, including the substitution of a different decree, monetary compensation, and even a trial.

Because Hart had neither exhausted the internal review process nor alleged that it breaches the requirements of natural justice, the court lacked jurisdiction to adjudicate his claim.

St Kosmas Aitolos Greek Orthodox Monastery 3

Contrast Hart with David v. Congregation B’Nai Israel. On a similar jurisdiction motion, the court in that case found it had jurisdiction to adjudicate Rabbi Joseph Ben David’s wrongful dismissal case despite the congregation’s internal review mechanisms and, importantly, the rabbinical court of New York’s competing jurisdictional claim.

At trial, the court granted 30 months’ notice to a 59-yearold rabbi terminated after 26 years.
In Hart, the court explained that the general rule that the Superior Court has jurisdiction to adjudicate wrongful dismissal claims has several exceptions.

One is where the essential character of an employer-employee dispute arises from the interpretation, application, administration or violation of a collective agreement. Another exception is where the rules of a self-governing organization, especially a religious one, provide an internal dispute resolution process.

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The former disputes must be resolved by arbitration, while the latter go through the organization’s internal procedures. Consequently, a court will interfere in the internal affairs of a self-governing organization in 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 them.

Significantly, 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.

The more difficult question is whether a litigant is bound to follow an internal review process instead of suing in the civil court where the relationship with a self-governing organization was multifaceted and involved property and civil rights.

The answer to this question appears to turn on the nature of the litigant’s dispute with the organization. The court explained that the nature of the dispute is determined not by its legal classification but by the facts giving rise to it.

In Hart, the plaintiff argued that some aspects of his dispute concerned matters of property, namely his loss of lodging. The court brushed his argument aside, stating that “at its essence this dispute is ecclesiastical.”

Regrettably, the court neither delineated the contours of an ecclesiastical dispute within religious organizations nor offered factors capable of turning an internal church matter into an ecclesiastical one.

Therefore, this pronouncement creates uncertainty because it is unclear which disputes are ecclesiastical and not subject to judicial oversight and which are not.

Nuns chanting at St. Kosmas Feast Day (August 24, 2009)
Nuns chanting at St. Kosmas Feast Day (August 24, 2009)

This is of significance in part because in Ivantchenko v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery, the motion judge, having refused to grant summary judgment against a nun who sought damages for constructive dismissal, acknowledged that “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.”

It does not help to insist that the courts should avoid deciding secular legal questions in cases involving religious organizations.

The prevailing argument that adjudications involving people who voluntarily chose to be a member of a self-governing organization should be governed by its internal review process creates its own difficulties.

Firstly, it may well be that lawyers or even non-lawyers who drafted documents purporting to govern a particular dispute did not do so in ways that reflect the ecclesiastical or secular realities of the organization. Secondly, there may be no documentation at all.

Thirdly, the organization may not have a tribunal in place governing the subject matter. Lastly, there may be a need, like in Ivantchenko, to determine who are the proper employers.

In my view, the courts should take a more active role in adjudicating employment law disputes in cases involving religious organizations as long as they do not intrude into the determination of the doctrinal issues.

St Kosmas Aitolos Greek Orthodox Monastery 6


Nikolay Y. Chsherbinin is an employment litigator in Toronto. He can be reached at 416-907-2587, nc@nclaw.ca or nclaw.ca.

http://www.lawtimesnews.com/201112122561/commentary/labour-pains-court-should-take-more-active-role-over-religious-disputes

http://caselaw.canada.globe24h.com/0/0/ontario/superior-court-of-justice/2011/11/18/ivantchenko-et-al-v-the-sisters-of-saint-kosmas-aitolos-greek-orthodox-monastery-2011-onsc-6481.shtml