Anglican Samizdat

May 29, 2009

Some comments on the latest Diocese of Niagara vs. ANiC court ruling

Filed under: Diocese of Niagara — David Jenkins @ 12:35 am

Justice Jane Milanetti has made a ruling on costs to be awarded to the Diocese of Niagara from the building sharing trials; the diocese had asked for $236,893.03, but Milanetti awarded them $75,605.27. One of the disgraceful aspects of this was that the diocese brought the action against the wardens of the parishes personally rather than as trustees for the congregation; equally disgraceful was Milanetti’s inability to see this for what it is: as an act of vindictiveness,  intimidation and a warning to the wardens of other potential ANiC parishes..

It is instructive to review the early events that led up to the series of court appearances. This is from a St. Hilda’s perspective, but the other 2 parishes had similar experiences.

The initial stages of our tribulation are chronicled on St. Hilda’s web site in reverse chronological order here

Feb 13, 2008. Day 1. St. Hilda’s voted unanimously to join ANiC.

Day 2 was a holiday, so it was quiet.

Day 3. The diocese delivered a vast bundle of legal papers to St. Hilda’s and froze our bank account.

Day 4. Representatives from the diocese arrived at St. Hilda’s to collect the keys to the building. They were refused.

Day 5. Pastor Paul was suspended (later to be fired) with pay. The diocese started pressing for an early court appearance.

Day 8. Since we did not have time to absorb all the legal documents sent to us from the diocese (they had prepared them in advance), we agreed to share the building on Sunday – Day 8. The diocesan priest, Brian Ruttan held a service at 9:00 with a number of people imported from other congregations. It was at this service that Ruttan inflicted his grotesque song “Bi and Gay welcome to the City” on everyone.

The real St. Hilda’s worshipped at 10:30 the same morning. Since almost all the members of the real St. Hilda’s are kind and gracious, coffee and doughnuts were provided for the “visitors” – of course, we hadn’t heard Ruttan’s song at that point.

Day 13. We appeared in court. Judge Ramsay ruled that expecting 2 parties with such diametrically opposed views to share a building made no sense; he granted us exclusive access to the building.

After this defeat, the diocese approached the Niagara parishes with a proposal where they would only use St. George’s parish building and St. Hilda’s and Good Shepherd would have exclusive use of their buildings; this is referenced in the latest Milanetti ruling. Due to our profound mistrust of the diocese, a suspicion of a diocesan “divide and conquer strategy” and their draconian actions up to that point, the parishes decided to remain united in any decision, so the offer was rejected.

March 20th We were in court again before Milanetti. It was clear from her demeanour, comments and body language that, from the outset, she had little patience with ANiC’s case. She seemed determined to take the “establishment view” and consistently sided with the diocese. This is conjecture, but she exuded the perspective one might expect from a lifelong nominal Catholic, giving more credence to institutional religious hierarchy than actual truth; she constantly gave the impression “why were we making such a fuss?”

May 5th 2008. Milanetti ruled that the Niagara buildings were to be shared between the diocese and ANiC parishes.

And now on to the latest ruling where court costs were determined:

[4]     As such, The Synod of the Diocese of Niagara was precluded from use of three church properties which I found them to own, at least on the face of it, from February 25th, 2008 until my May 5th, 2008 decision.

This comment by Milanetti is irrelevant and arrogant. She was not asked to rule on who owns the buildings; to offer an unasked for opinion betrays her bias in favour of the diocese. How could she have a sensible opinion when the evidence for actual building ownership had not been presented?

[22]     It is largely as a result of the most substantial fees being sought that I will not exercise my discretion to award substantial indemnity costs after March 14th.  The numbers are simply too high for me to reasonably consider compensation on this scale.  I concede that the applicant made significant real efforts to resolve this matter consensually.  Such olive branch was not accepted.

In actual fact, the diocese made no effort to resolve the conflict, refused to pay it’s share of the building upkeep as ruled by Milanetti previously, has been consistently heavy handed and, after the initial overture of offering ANiC the use of 2 parishes in exchange for St. George’s, has stubbornly refused to negotiate.

[24]     As well, I cannot say that there were not similar efforts to resolve the issue earlier by both parties.  It does bear noting that the respondents’ attempts appear to have been earlier in the process rather than more recently.  I note as well, that the Offer that was unacceptable to the respondents when it was tendered back in March of 2008, is still unpalatable to them today.  Despite my Order that the parties share the properties, the respondents have apparently chosen not to do so.  I have learned that they opted to incur additional costs to worship elsewhere.  Although that is clearly their prerogative, those additional expenses, (despite their argument based on same), cannot and will not be considered by me in this decision.

Ignoring Milanetti’s inability to put “As well” in the correct place in a sentence, the “offer that was unacceptable”  to the parishes in March (giving the diocese access to St. George’s) was, in fact recently agreed to by the parishes, but rejected by the diocese; Milanetti has it backwards. St. Hilda’s, ANiC is sharing the building with the diocese during the week; we worship elsewhere on Sundays because Milanetti gave the diocese access to the building at the time of our Sunday services.

[34]     The respondents’ asked to have any costs award deferred.  As well, they asked, in the eleventh hour, to have the costs paid by different parties than those named in the title of proceeding.

[35]     This was the first that I had heard of this argument – it was not raised at the motion nor addressed in the written costs argument tendered in support of this application.  As such, and given that we were already at the end of the afternoon slotted for this costs argument, I required further written submissions by both parties on this point.

[36]     Despite this unique argument, I have not been convinced that I have the power to award costs against anyone other than the named respondents at this stage.  If this was an issue for the respondents, I would have expected them to raise it either at the motion that I heard more than a year ago, or some other motion before or after that time frame.

[37]     I accept the argument of the applicants that they would be prejudiced if I were to make a costs award payable by anyone other than the named respondents.  If they were improperly named, issue should have been taken – it may well be required in future.

This section of the ruling is confusing. What is at issue is whether the wardens are being sued personally, in which case their personal assets are at stake, or as trustees of the parishes. How do “different parties” come into it? – one presumes that “different parties” were not erroneously introduced by ANiC lawyers.

At the end of the day, Blaise Pascal said it best in his Pensees:

Our magistrates have known well this mystery. Their red robes, the ermine in which they wrap themselves like furry cats, the courts in which they administer justice, the fleurs-de-lis, and all such august apparel were necessary; if the physicians had not their cassocks and their mules, if the doctors had not their square caps and their robes four times too wide, they would never have duped the world, which cannot resist so original an appearance. If magistrates had true justice, and if physicians had the true art of healing, they would have no occasion for square caps; the majesty of these sciences would of itself be venerable enough. But having only imaginary knowledge, they must employ those silly tools that strike the imagination with which they have to deal; and thereby in fact they inspire respect. Soldiers alone are not disguised in this manner, because indeed their part is the most essential; they establish themselves by force, the others by show.



  1. Nice quote from Pascal; never seen that one.

    I have wondered about the effects of judge’s supposed Catholicism as well. (The use of the term “Holy Thursday” is a tip-off). I haven’t said anything about it in public before, but an RC at Stand Firm has mentioned it so I guess it’s OK. Roman Catholics may assume that in a church divided into dioceses run by bishops, what the bishop says goes, period. If you fight the bishop you are stomped. Just a background assumption, not an active bias.

    I guess it’s not relevant to this decision that on the larger issue the diocese has said that they are 100% sure of winning and not interested in any settlement talks at all. They still get brownie points for making offers during the interlocutory period.

    I would have defended (if asked) the judge’s not understanding at the first hearing that the diocese is a snake that cannot be trusted. I thot we did not have the evidence to prove this at that time. But she should have figured it out by now. No payment of building costs, inflated bills for legal costs, unwillingness to consider any settlement, etc.

    The rejection of the diocese’s first offer seems to me to have been a mistake. Cost us $150K+ in legal fees for a worse result. Our leaders don’t seem to understand the whole dove/serpent thing. I fear the backlash when people understand that we have spent millions of dollars in a lawsuit in which we have apprximately zero chance of success.

    Perhaps this bad outcome was ordained by God to produce a good result. The congregations should pay for an independent legal opinion for the wardens outlining their liability, and looking into the possibility that there is some provision in the Trustee Act or in equity that could be invoked to save them. At the same time we/they could get a second opinion on the changes of success in this litigation. When the answer comes back (“remote” is the apposite term) perhaps we could face the facts and do what we have to do — get out of this case.

    Comment by Toral — May 29, 2009 @ 1:12 pm

  2. So, does this mean that the wardens have been found to owe the dio Niagara $75,000? You are going to appeal, I hope?

    Comment by Kate — May 29, 2009 @ 2:29 pm

  3. No. The wardens have been assessed costs. But they acted as trustees for or agents of the congregations. Therefore the congregations have a legal obligation to “indemnify them”, i e., the congregations must pay. But if the congregations can’t pay, the diocese can then go after the wardens.

    Appealing would be stupid, and another indication, # 73 or so, that those directing our legal strategy don’t know what they are doing. Trustees, as wardens are, are personally liable for paying costs resulting from defending suits relating to their mishandling of the property they manage. Ordinarily that means stealing or causing loss by negligence. But to the law, holding the property in the name of the wrong party — i.e., the party that the coure finds doesn’t own it — is in the same category. An appeal will result in another loss, and one quite costly in legal fees.

    Comment by Toral — May 29, 2009 @ 2:54 pm

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