An interesting thing happened to me recently; a decision that I’d successfully argued was reviewed by an academic.
In 2010, I argued a motion on behalf of the Archdiocese of Kingston. A Priest had brought a legal action against the Archdiocese alleging that he had been constructively dismissed from his position as Parish Priest. The motion was to stay that action, based on the argument that the position of Parish Priest is an ecclesiastical office created and governed by canon law. The Priest had not exhausted the internal process provided for under canon law and thus could not turn to the courts.
To me, as a practising lawyer, my argument made sense. It was in line with the other case law in the area and the context was similar to other situations with which we are all familiar (a workplace collective agreement, for example). To my relief, the Judge hearing the motion agreed with me. The decision was then appealed to the Ontario Court of Appeal. We were successful and the appeal was denied. Leave to appeal to the Supreme Court of Canada soon followed and, again, we were successful. Throughout this entire time I was convinced that our position was correct and, in terms of legal principles, rather simple. Sure, it had some unique facts but overall it seemed like a straightforward application of some basic rules.
I was therefore quite interested when a friend mentioned to me that Professor Margaret Ogilvie, a Professor of Law at Carleton University, has recently written a paper discussing these decisions. The paper is entitled “Are Members of the Clergy Without the Law? Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston,” and is published in the recent Queen’s Law Journal (vol. 32, no. 2).
Professor Ogilvie is an internationally-renowned scholar in the area of church law and its relation to civil law. I thought that it would be interesting to compare her thinking as an academic with mine as a practising lawyer, in terms of the law in general and how it applies to these facts.
How far apart are Professor Ogilvie and I? A lot.
Part of me wonders whether our disagreement is as a result of the different lenses through which she, as an academic, and I, as a practitioner, view the law. Regardless, it was interesting to read her paper and to be privy to an academic’s thoughts on work that was done by this firm.
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