Lindenburger v. United Church of Canada, (1985) 10 O.A.C. 191 (DC)

• Judge: Henry, Barr and Rosenberg, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 05, 1985
• Jurisdiction: Ontario
• Citations: (1985), 10 O.A.C. 191 (DC)

Lindenburger v. United Church (1985), 10 O.A.C. 191 (DC)

MLB headnote and full text

Lindenburger v. United Church of Canada

(No. 619/83)

Indexed As: Lindenburger v. United Church of Canada

Ontario Divisional Court

Henry, Barr and Rosenberg, JJ.

June 5, 1985.

Summary:

The Elgin Presbytery of the United Church of Canada declared the Pastoral Charge of a church vacant, on the ground of the Minister's inability to maintain the peace and welfare of the congregation. The effect of this decision was to remove the Minister. The decision was appealed through various levels of the United Church hierarchy, with the result that the decision was confirmed. The Minister applied to quash the decision, primarily on the ground that the various hearings were procedurally unfair.

The Ontario Divisional Court, Barr, J., dissenting, dismissed the application.

Administrative Law - Topic 2496

Natural justice - Procedure - At hearing - Particulars of allegations - At issue was a Minister's ability to maintain the peace and welfare of his congregation, a matter of internal church administration - There was no allegation of misconduct - The Minister knew the case he had to meet - He was, however, unable to obtain copies of the particular allegations against him - The Ontario Divisional Court held that since the underlying issue became the date of the Minister's anticipated resignation, the procedural irregularity was immaterial - See paragraphs 6 to 10, 19 to 20.

Administrative Law - Topic 2528

Natural justice - Effect of denial of - Errors which may be remedied on appeal - A United Church tribunal declared a Pastoral Charge vacant, resulting in the removal of the Minister, because of his inability to maintain the peace and welfare of the congregation - The decision was appealed throughout various levels of the church hierarchy - The appeals lacked procedural fairness - The Ontario Divisional Court refused, however, to set aside the original decision, where the original hearing was properly conducted - See paragraphs 4, 8 to 11, 14 to 15, 17 to 25.

Administrative Law - Topic 5053

Judicial review - Certiorari - Tribunals subject to certiorari - Ecclesiastical courts - The Ontario Divisional Court held that in a proper case decisions of the ecclesiastical courts are reviewable on certiorari - The court held that, however, the right to intervene in church affairs should be rarely exercised by the courts - In particular, the court held that certiorari was available against the United Church of Canada, where the church was a creature of statute of both federal and provincial legislature, ministered to a large segment of the Canadian public, and had a duty of procedural fairness in dealing with its members - See paragraphs 2 to 3.

Administrative Law - Topic 5198

Judicial review - Certiorari - Discretionary bars to issue of certiorari - No useful purpose served by certiorari - A United Church tribunal vacated a particular Pastoral Charge, in effect removing the Minister - The decision was eventually confirmed at the highest level of the Church's "courts" - The Minister sought certiorari on the ground of procedural unfairness in the Church's dealings with him - The Ontario Divisional Court dismissed the application, but held that it would have refused certiorari in any case, because it would have had the effect of reinstating the Minister, which would serve no good purpose and be an unwarranted interference in church affairs - See paragraphs 25 to 26.

Cases Noticed:

Ex Parte Currie (1886), 26 N.B.R. 403 (N.B.C.A.), refd to. [para. 2].

Ex Parte Little (1895), 33 N.B.R. 210 (N.B.C.A.), refd to. [para. 2].

Re Zadrevec et al. and Town of Brampton, [1973] 3 O.R. 498 (C.A.), refd to. [para. 4].

Sevarijan v. Relations Board, [1976] 1 All E.R. 13, refd to. [para. 71].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1978), 23 N.R. 410; 88 D.L.R.(3d) 671, refd to. [para. 72].

Central London Property Trust v. High Trees House, [1947] K.B. 130, refd to. [para. 76].

John Burrows Ltd. v. Subsurface Surveys Ltd. (1968), 68 D.L.R.(2d) 354, refd to. [para. 76].

Ajayi v. R.T. Briscoe (Nigeria) Ltd. (1964), 1 W.L.R. 1326 (P.C.), refd to. [para. 76].

Tool Metal Manufacturing Company Ltd. v. Tungsten Electric Company Ltd. (1955), 1 W.L.R. 761 (H.L.L.), refd to. [para. 76].

Ash v. The Methodist Church (1900), 27 O.A.R. 602, aff'd (1901), 31 S.C.R. 497, refd to. [para. 80].

Paine v. University of Toronto et al. (1982), 34 O.R.(2d) 770, refd to. [para. 80].

R. v. Ashton University Senate, [1969] 2 Q.B. 538, refd to. [para. 81].

R. v. Board of Broadcast Governors (Swift Current Broadcasting), [1962] O.R. 657 (C.A.), refd to. [para. 81].

United Association of Journeymen, Re, [1976] 3 W.W.R. 303 (Alta. C.A.), refd to. [para. 81].

Watson v. Northern School Board, [1976] 5 W.W.R. 703 (Sask. Q.B.), refd to. [para. 81].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 81].

Malloch v. Aberdeen Corporation, [1971] 2 All E.R. 1278, refd to. [para. 81].

Statutes Noticed:

United Church of Canada Manual, Introduction [para. 35]; sect. 3(1) [para. 54]; sect. 176(c)(ii) [paras. 13, 33, 39, 40]; sect. 370 [para. 49].

Counsel:

R.D. Manes and I.J. Tod, for the applicant;

S.B. Stein, for the respondent.

This application was heard before Henry, Barr and Rosenberg, JJ., of the Ontario Divisional Court on March 25-29, 1985. The decision of the Divisional Court was released on June 5, 1985, when the following opinions were filed:

Rosenberg, J. - see paragraphs 1 to 11

Henry, J. - see paragraphs 12 to 27

Barr, J., dissenting - see paragraphs 28 to 85.