Clear dispute resolution policies can help churches avoid court

Lawmakers and judges across Canada have fully embraced out-of-court dispute resolution procedures for the simple reason that litigation is emotionally and financially devastating. I often remind clients that the only winners in a courtroom are lawyers, most of whom, having “been there, done that” would rather be anywhere else.

While litigation should always be a last resort, North America’s “see you in court!” propensity has invaded even those institutions whose values and principles reject the airing of internal disputes beyond their four walls.

That is why it saddens me when churches and pastors end up in court having failed to resolve their differences according to the model espoused by the Apostle Paul in 1 Corinthians 6:1-6:

If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of before the Lord’s people. . . . Therefore if you have disputes about such matters, do you ask for a ruling from those whose way of life is scorned in the church? I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother takes another to court – and this in front of unbelievers!

However, church leaders, pastors and congregations can learn important lessons from their colleagues who have experienced spiritual defeat, a precursor to engagement with the secular courts.

Recently, a Vancouver church found itself in the British Columbia Supreme Court facing a wrongful termination action brought by their former senior pastor.

In Kong v. Vancouver Chinese Baptist Church 2015 BCSC 1328 senior pastor Rev. Kong was fired by church authorities after two and a half years of service. Recruited from Hong Kong, he completed a one year probationary period with no difficulties, until managerial and communication problems arose between Rev. Kong and two associate pastors.

Various steps were taken to resolve the conflict between the three pastors; however, the problems persisted. At that point church leaders announced they would be initiating pastoral performance evaluations; however, Rev. Kong declined to participate. The impasse between the church and their senior pastor now quickly disintegrated with the resignation of the two junior pastors. Rev. Kong produced a medical letter advising he would be taking a three-week medical leave, for an unknown ailment. Later the leave was extended an additional three months.

After a meeting of church leaders it was suggested to Rev. Kong that he resign, an offer he declined.

Church leaders organized a congregational meeting for July 9, 2013 to determine Rev. Kong’s future with the church and invited him to attend either in person, via written submissions, or by his representative. 

In his absence the church voted to terminate Rev. Kong with a six month severance package, terms they believed were generous given the Baptist Convention’s guidelines that pastors should receive one week of pay for every year served.

Rev. Kong filed a human rights complaint in October 2013 alleging discrimination on the basis of age and mental disability. In November 2013 he launched his wrongful dismissal suit.

As is typical in litigation, a preliminary issue arose with the church bringing an application to dismiss Rev. Kong’s lawsuit on the basis that the action was an ecclesiastical matter that should be resolved within the church. An earlier Ontario Court of Appeal case involving the Catholic Church stood for the proposition that where a self-governing organization, like a church, provided an internal dispute resolution process the aggrieved party must seek internal redress. (Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston 2011 ONCA 728, 344 DLR 4^th)

Rev. Kong disagreed, saying that as an employee of the church he was entitled to the same legal protection that other employees enjoy in contemporary Canadian society.

The judge agreed, pointing out that there was no agreement between the pastor and the church to abide by internal church law and no internal dispute resolution process was available.

Out-of-court resolution was later suggested by the Baptist oversight body that recommended the parties submit to binding arbitration before three respected members of the Baptist Convention. The church agreed, but Rev. Kong did not. Again, with court action emotions escalate, positions become entrenched, “principles” take centre stage, and often it is difficult to retreat, despite biblical admonitions that Christians are to live in peace with one another.

After nine days in Supreme Court the judge found that Rev. Kong’s severance package was insufficient for his role as the church’s spiritual leader and shepherd. He was awarded 12 months severance. However, Rev. Kong also sought aggravated damages for the mental distress he suffered as a result of actions the church took during the termination process.

Most notable was the release to the congregation of 21 internal documents containing unproven statements and allegations that were critical of Rev. Kong’s character and leadership. Rev. Kong testified that he was hurt and ashamed by the church’s insensitive behaviour. The court agreed and awarded an additional $30,000 for a total payment of  $84,520.

Be prepared

What can congregations, pastors and church leaders do to avoid the public airing of dirty laundry? It’s not rocket science . . . they must have clear, written procedures regarding church discipline and termination, particularly in relation to senior leadership positions. Their rules need to be fair and transparent and must be conveyed and acknowledged in writing by their leadership hires.

If they have clear internal policies it is unlikely that courts will assert jurisdiction over church disputes.

There are usually wise and learned elders in religious organizations that can fulfill roles as mediators or impartial arbitrators. As well, there are Christian lawyers who are trained and experienced as mediators and arbitrators who can assist church bodies.

Happily for Rev. Kong he began over as senior pastor at a Fraser Valley Baptist church, and it is very likely that Vancouver Chinese Baptist Church will not suffer the indignity of secular court proceedings again.

Sadly, nine days of court will have diminished funds that could have been available for ministry opportunities and I suspect that Rev. Kong’s “win” did more for his lawyer’s bank account than his.

Ephesians 4:31 says: “Let all bitterness, and wrath and anger, and clamour, and evil speaking be put away from you . . . and be ye kind to one another, tenderhearted, forgiving one another.”

Georgialee Lang BA JD FCIArb is an attorney and arbitrator who practices in Vancouver, Kelowna and Palm Springs. Go here for her website and here for her blog. She attends Broadway Church in Vancouver. This comment is re-posted by permission.