You will want to know about the recent Ontario Court of Appeal decision in Pankerichan v Djokic, if you are part of a religious community which is considering or is in the midst of the following:
- A division and you are uncertain who is to have ownership, possession or control over the religious property after the division;
- A union with another religious community and you are uncertain whether the union is permitted;
- A dissolution of a religious community and you are uncertain where the property of the religious community should go; or
- A dismissal or discipline of one or more members of the community and you are uncertain whether dismissal or discipline is permitted.
The advancement of religion is one of the four categories of charitable purposes in Canadian law. Many religious institutions have registered charity status under the Income Tax Act (Canada). Such status exempts an institution from federal income tax and provides it with the ability to issue charitable donation tax receipts to donors. Within these religious institutions, religious disputes can and do arise, and, understandably, Canadian courts have been very reluctant to exercise jurisdiction in such disputes. However, Pankerichan v Djokic demonstrates that Canadian courts will get involved in religious disputes that involve the determination of civil rights.
Pankerichan v Djokic involved a dispute over church property between members of the congregation of the Serbian Orthodox Church, and the Bishop and Diocean Council members. The case dealt with whether the court can interpret religious documents in determining rights to church property.
In Pankerichan v Djokic, church property was held in trust under the provisions of the Religious Organizations' Lands Act ("ROLA"). Subsection 3(2) of ROLA specifically provides that documents of a religious institution can supersede ROLA. The case involved a number of church documents that substantiated the position of the Bishop and Diocean Council members. Members of the congregation argued that in accordance with the Neutral Principles of Law (the "NPL") doctrine, a concept used in American law, the court must analyze deeds and other documents with respect to church property in a secular manner, meaning that the courts must rely on "well-established concepts of trust and property law". This approach would leave no room for the court to interpret most of internal church documents presented by the Bishop and Diocean Council members.
The court stated that the NPL doctrine does not represent a binding approach in Canadian law. In support of this, the court stated that Canadian courts have not adopted the NPL doctrine in the past. The court also noted that the NPL doctrine was rooted in the anti-establishment principle of the American Constitution, an equivalent of which does not exist in Canadian law. As a result, the court held that it would not be inappropriate for a judge to consider internal church documents to reach a decision.
In light of the Pankerichan v Djokic decision, Ontario courts are more likely to turn to religious documents in determining civil rights in religious disputes. The determination of whether a division, union or dissolution of a religious community is permitted, or whether a certain disciplinary measure is allowed, could be based on the analysis of religious organization's constitution or another foundational document.