Archive for the ‘Standing’ Category

Compare and Contrast

November 24, 2011

Compare and contrast the following two decisions vis-à-vis standing, jurisdiction and the employment relationship:

Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728 (Ont. C.A.) per Laskin, J.A.:

[20] The Roman Catholic Church is a self-governing organization. Its canon law provides an internal review process for ecclesiastical disputes. The expert evidence before the motion judge showed that where an administrative decree may affect the rights of a party, canon law requires that the party be given notice, an opportunity to respond and an unbiased tribunal. Canon law also provides a broad range of remedies, including the substitution of a different decree, monetary compensation and even a trial.

[21] The motion judge found that the internal review process under canon law meets the requirements of natural justice. Father Hart does not suggest otherwise. Was he then bound to follow the internal review process instead of suing in the Superior Court?

[22] The answer to that question turns on the nature of his dispute with the Archdiocese. The nature of the dispute is determined not by its legal characterization – as breach of an employment contract or a claim for constructive dismissal – but by the facts giving rise to it: see Weber, at p. 955.

[23] The facts show that at its core Father Hart’s dispute with the Archdiocese is ecclesiastical in nature and subject to canon law. When he was appointed pastor, his appointment was expressly subject to canon law. The experts who testified on the motion agreed that the office of pastor is ecclesiastical. Canon law creates the office, provides for the office’s duties and responsibilities, and describes the circumstances under which the office can be brought to an end. Under canon law the church can remit a matter to the civil law but it has never remitted a pastor’s removal from office.

[24] Therefore, even though some aspects of Father Hart’s dispute with the Archdiocese concern matters of property, for example his loss of lodging, at its essence this dispute is ecclesiastical. Redress must be sought through the internal review process established by canon law for disputes of an ecclesiastical nature. Father Hart does not contest that this review process accords with the rules of natural justice. However, even though he did not invoke this review process he submits that the Archdiocese treated him unfairly because it refused his request for a hearing.

vs.

John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17 (S.C.C.) per C.J. McLachlin:

35 The Roman Catholic Church is a religious organization operating in many countries of the world, including Canada. It possesses a hierarchical structure with the Pope at its apex, and works through diverse orders, groups and individuals. On the record before us, it is impossible to answer the questions as to procedure and remedies for recovery which the claim against the Church raises. The record does not provide the clear picture of the details of the Church’s hierarchy or of the relationship between the Church and its constituent parts, necessary to delineate the boundaries of the institution, the nature of its legal status, and its potential liability. Nor does the record offer much assistance on the procedural questions that would need to be answered before the Church, as a global institution, could be found liable for the wrongs committed by Father Bennett in the diocese of St. George’s. Although named as a party, the Church was not represented during the proceedings in this case, and issues relating to procedure and remedies for recovery were left unexplored.

36 Without suggesting that the full organizational structure of the Roman Catholic Church and its relations with its various constituent organizations must be apparent on the evidence before a finding of Church liability could be made, I am satisfied that the record before us is too weak to permit the Court in this case to responsibly embark on the important and difficult question of whether the Roman Catholic Church can be held liable in a case such as this.

Yesterday Rev Sharpe, who is being supported by the faith workers section of the Unite union, claims he was effectively forced out of his parish and that the bishop and diocese of Worcester did nothing to protect him.

He is asking employment judges whether he is entitled to bring a claim against the Diocese, claiming he had assumed that being an officer of the church would provide him the same rights as an employee.

“I can’t say I thought about it at first,” he said. “I think I always assumed it was the same as being an employee.

“I know there was some kind of debate in the church when I joined about it but I didn’t take an active role. I always thought by being ordained at York Minster that was some kind of employment contract.”

Currently the law states that Church of England clergy, as office holders, are “employed by God” and not eligible to bring actions for unfair dismissal. In a move reminiscent of the Billy Connolly film ‘The Man Who Sued God, Rev Sharpe is now asking to be allowed to sue for constructive dismissal.

The diocese has previously “wholly denied” all Rev Sharpe’s allegations. It conceded in 2008 that Mr Sharpe was a worker entitled to bring a claim but they are now asking the employment judge for permission to withdraw that concession.

Cassandra Burke Robertson on "Transnational Litigation and Institutional Choice"

April 20, 2010
 Cassandra Burke Robertson (Case Western Reserve University – School of Law) has a post on SSRN entitled:“Transnational Litigation and Institutional Choice “, Boston College Law Review, Vol. 51, No. 4, 2010/Case Legal Studies Research Paper No. 2010-13 . Here is the abstract:

When U.S. corporations cause harm abroad, should foreign plaintiffs be allowed to sue in the United States? Federal courts are increasingly saying no. The courts have expanded the doctrines of forum non conveniens and prudential standing to dismiss a growing number of transnational cases. This restriction of court access has sparked considerable tension in international relations, as a number of other nations view such dismissals as an attempt to insulate U.S. corporations from liability. A growing number of countries have responded by enacting retaliatory legislation that may ultimately harm U.S. interests. This article argues that the judiciary’s restriction of access to federal courts ignores important foreign relations, trade, and regulatory considerations. The article applies institutional choice theory to recommend a process by which the three branches of government can work together to establish a more coherent court-access policy for transnational cases.

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