The Ontario Court of Appeal recently released its judgment in Pankerichan v. Djokic, 2014 ONCA 709, which involved a church property dispute between members of an unincorporated Serbian Orthodox Church in Hamilton and the Bishop and Diocesan Council members of the Serbian Orthodox Diocese of Canada. The church properties at issue were being held in trust under the provisions of the Religious Organizations’ Lands Act, R.S.O. 1990, c. R.23 (“ROLA”).
Although Pankerichan v. Djokic did not change how ROLA is applied by Ontario Courts to disputes concerning religious property, the case did afford the Court of Appeal an opportunity to examine whether the Neutral Principles of Law (NPL) doctrine, an American legal concept introduced in 1979, should apply to Ontario religious property disputes.
Under ROLA, should a property dispute occur, courts are to interpret “the terms of the trust by considering the deeds, the applicable legislation, the canons or church law promulgated by each diocese and, to some extent, the doctrinal context.” However, NPL doctrine states that any analysis of documents and deeds in respect to a religious property dispute should be done in a completely secular manner, by relying on legal concepts of trust and property law.
The appellants in Pankerichan v. Djokic argued that NPL doctrine should be applied strictly in their dispute, and that almost all of the Church, Diocesan and Congregational documents should have been excluded from consideration. After a review of relevant American and Canadian case law, the Ontario Court of Appeal determined that a strict application of the NPL doctrine did not really exist and therefore was not applicable in this or other religious property disputes. In the United States, States were still allowed to “apply the traditional approaches of polity deference or abstention” and consider “the provisions in the constitution of the general church” to determine who controlled the property in question, and in Canada, courts had consistently used internal church documents when faced with property disputes. Given this, and the fact that NPL was “rooted in the First Amendment of the American Constitution”, a court could, if it thought it was necessary, review the internal governance documents of a religious organization when faced with property disputes.