Churches and other employers must be cautious when relying on
internal procedures to dismiss individuals
The B.C. Supreme Court recently decided an application to hear a
pastor's wrongful dismissal claim, which may impact employers
both inside and outside of ecclesiastical contexts.
In Kong v Vancouver Chinese Baptist
Church, the Vancouver Chinese Baptist Church
("VCBC") applied to have a claim for wrongful dismissal
filed by its former Senior Pastor, the Reverend Alfred Yiu Chuen
Kong ("Rev. Kong"), dismissed. Rev. Kong filed the
underlying claim after he was dismissed by the VCBC following a
long series of VCBC committee meetings and discussions to resolve
internal strife involving Rev. Kong.
The VCBC applied to court to have Rev. Kong's claim
dismissed on the following basis:
The VCBC submits that a church's removal of its spiritual
leader is intrinsically ecclesiastical in nature. It follows, the
church argues, that this is an ecclesiastical issue over which the
court has no jurisdiction other than to ensure that the church has
proceeded in accordance with the principles of natural justice.
VCBC relied on a decision involving the Catholic Church from
the Ontario Court of Appeal, which held:
 A second exception [to the
jurisdiction of courts to hear wrongful dismissal claims] is where
the rules of a self-governing organization, especially a religious
organization, provide an internal dispute resolution process. A
person who voluntarily chooses to be a member of a self-governing
organization and who has been aggrieved by a decision of that
organization must seek redress in the internal procedures of the
organization: see Levitts Kosher Foods v. Levin(1999), 45
O.R. (3d) 486 (S.C.).
The B.C. Supreme Court denied the VCBC's application,
holding that the question of whether internal church procedures or
common law applies to the dispute is governed by the facts giving
rise to the dispute. Although the court did not cite the Supreme
Court of Canada's recent decision in McCormick v Fasken Martineau DuMoulin
LLP, which we commented on here, it determined that the facts giving rise
to Rev. Kong's wrongful dismissal claim were, in their nature,
that of "employment". Because the VCBC had the power to
select, control, and dismiss Rev. Kong as Senior Pastor, the court
found he was a common law employee, notwithstanding he was a
"a clergyman claiming against a church".
Although this ruling concerns religious organizations in
particular, it is another decision after McCormick in
which the court ignores appearances and internal structures and
opts to decide for itself whether entities are in a common law
employment relationship. In light of recent judicial decisions in
this vein, employers that have in the past relied on internal
dispute resolution mechanisms with respect to "employees"
should pause and consider potentially unforeseen legal consequences
prior to making any substantial changes to the roles, terms,
remuneration or obligations of individuals they are engaged
We will keep a close eye on Rev. Kong's wrongful dismissal
claim and keep you posted on developments.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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