Appendix H: Rules of the Diocesan Court

1. definitions

In these Rules:

(a) Canon: unless otherwise specified, means the Canon on the Diocesan Court;

(b) Claim: means the statement referred to in Rule 2(a);

(c) Claimant: mens the person who files a Claim with the Clerk pursuant to the provisions of Rule 2(a);

(d) Court: means the Diocesan Court created by the Canon;

(e) Defence: means the Defence referred to in Rule 3(b);

(f) Defendant: means the person accused in a Claim or against whom relief is sought in a Claim;

(g) Disability: where used in respect of a Party, means that the Party is,

(i) a person under the age of twenty-one years; or

(ii) a person who is incapable of understanding the proceedings in which he or she is involved and of properly presenting his or her case to the Court;

(h) Ecclesiastical offence: means and Ecclesiastical offence as defined in Section 1 of the Canon on the Diocesan Court;

(i) Parties: are the Claimant or Claimants and Defendant or Defendants in any Claim referred to the Diocesan Court;

(j) President: means the President of the Diocesan Court;

(k) Reply: means the Reply referred to in Rule 3; and

(l) Clerk: means the Clerk of the Diocesan Court appointed by the Court.

2. (a) Where a person alleges:

(i) that another person has committed an Ecclesiastical Offence or an offence against the provisions of the Constitution or Canons of the Diocese, the Provincial Synod of the Ecclesiastical Province of Ontario, or of the General Synod of the Anglican Church of Canada; or

(ii) the existence of facts which entitle him or her to relief from the Diocesan Court,

and wishes such allegation or allegations referred to the Diocesan Court, he or she shall file with the Clerk a Claim which shall contain his or her mailing address and a concise statement of the material facts on which he or she relies in making such allegation or allegations and shall name the person or persons accused or against whom such relief is sought.

(b) Upon receiving the Claim, the Clerk shall forthwith open a Diocesan Court file and deliver the same to the Bishop, who shall, within thirty days, decided whether to refer the Claim to the Diocesan Court.

(c) If the Bishop decides not to refer the Claim to the Diocesan Court, he or she shall so endorse the back of the Claim and cause the file to be returned to the Clerk with a written statement as to what action, if any, will be taken by the Bishop with respect to the Claim and the Clerk shall forthwith forward to the Claimant by prepaid ordinary mail addressed to the Claimant at the address set out in the Claim, a copy of such endorsement and of such statement, which will be deemed to have been received by the Claimant on the seventh day following the date of such mailing.

(d) The Claimant may, within twenty days following his or her receipt of the copies of each of the endorsement and statement referred to in Sub-rule 2(c), require the Claim to be brought before the Executive Committee by filing with the Clerk a notice requiring the Claim to be brought before the Executive Committee; whereupon the Clerk shall cause the file to be brought before the Executive Committee at its next meeting and at such meeting, the Executive Committee shall decide whether to refer the Claim to the Diocesan Court. If the Clerk does not receive such notice within twenty-seven days following the date of mailing of the copy of each of the endorsement and statement of the Bishop, the Claimant will be deemed to have accepted the Bishop’s decision to not refer the matter to the Diocesan Court.

(e) If the Executive Committee decides not to refer the Claim to the Diocesan Court, the secretary of the meeting shall forthwith so endorse the back of the Claim and cause the file to be returned to the Clerk with that portion of the minutes of the meeting which record what action, if any, will be taken by the Bishop or the Executive Committee with respect to the Claim and the Clerk will so advise the Claimant in writing.

(f) If either the Bishop or the Executive Committee decides to refer the Claim to the Diocesan Court, the Bishop shall forthwith refer the Claim to the Diocesan Court by notifying the Clerk of such decision and returning the file to the Clerk, who shall so advise, in writing, the President, the Registrar and the Claimant.

3. (a) Upon receiving a referral under Rule 2(f) the Clerk shall cause a copy of the Claim to be personally served upon the Defendant or Defendants, provided that if for any reason it is impractical to effect prompt personal service on any Defendant, service may be effected in any manner which, in the opinion of the President, may reasonably bring notice of the Claim to the attention of such Defendant.

(b) Within thirty days of service of the Claim upon a Defendant, such Defendant shall file with the Clerk a Defence, which shall contain his or her mailing address and a concise statement of the material facts on which he or she relies in defence of the allegation or allegations made in the Claim, and the Clerk shall forthwith cause a copy of the Defence to be sent to the Claimant by prepaid ordinary mail at the Claimant’s address as shown on the Claim and it shall be deemed to have been received by the Claimant on the seventh day following the date of such mailing.

(c) A Claimant who intends to prove a version of the facts different from that set out in the Defence shall, within fifteen days of service of the Defence, file with the Clerk a Reply setting out the different version, unless it has already been stated in the Claim.

(d) A Claimant who intends to rely in response to a Defence on any matter that might, if not specifically stated, take the Defendant by surprise shall, within fifteen days of service of the Defence, file with the Clerk a Reply setting out that matter.

(e) A Claimant shall not file a Reply except where required to do so by Sub-Rules (c) or (d) of Rule 3.

(f) Upon receipt by the Clerk of a Reply, the Clerk shall forthwith cause a copy of the Reply to be sent to the Defendant by prepaid ordinary mail at the Defendant’s address as shown on the Defence and it shall be deemed to have been received by the Defendant on the seventh day following the date of such mailing.

4. (a) At least ten days, and not more than thirty days, after the mailing of the Reply to the Defendant, the Registrar shall meet with the Claimant and the Defendant, (or with each of their respective agents), either personally or by conference telephone, and shall determine at such meeting the estimated time required for the trial, what dates within the next six months are most convenient to the parties for the trial and where the trial might be held.

(b) The Registrar shall also determine at such meeting what facts are not in dispute and such determination shall be final and not subject to appeal.

(c) The Parties (or their agent) shall, at such meeting, make full disclosure to the Registrar and to each other as to the identity of witnesses they intend to call at the trial and a synopsis of the evidence of each witness and not witness whose identity and evidence are not so disclosed may be called as a witness at the trial without the leave of the President.

(d) Following the meeting referred to in this Rule, the Registrar shall report to the President the determinations made pursuant to Sub-rules (a) and (b) of the Rule but shall not, then or at any time, disclose to the President or any other member of the Court the disclosures given pursuant to Sub-rule (c) of this Rule.

5. The President shall determine and notify the Clerk of the time and place of the trial and the Clerk shall forthwith send notice of this to the Parties by prepaid ordinary mail at their addresses as shown on the Claim or Defence, as the case may be, and the trial shall not be scheduled to take place less than thirty-five days from the date of the mailing of such notice.

6. Any Party shall, upon filing with the Clerk a Notice desiring an extension of time, be entitled to an extension of fifteen days beyond the times set out in Rule 3 within which to file a Defence or Reply.

7. (a) If a Defendant fails to file a Defence as required, he or she shall not be entitled to file a Defence and shall not be entitled to otherwise participate in the proceedings and shall not be entitled to any further notice with respect to the proceedings, as to the date and place of trial or otherwise, but shall be entitled to be sent a copy of the final decision or Order, together with reasons by prepaid ordinary mail at his or her last known address as shown on the records of the Diocese of Algoma.

(b) Upon expiry of the time limited for filing a Defence, the Clerk shall notify the Claimant and the Registrar of such expiry and the Registrar shall meet with the Claimant (or with his or her agent) as and for the purposes set out in Rule 4 and thereafter shall report to the President as required by Rule 4.

(c) The President shall determine and notify the Clerk of the time and place of the trial and the Clerk shall forthwith send notice of this to the Claimant by prepaid ordinary mail at his or her address as shown on the Claim and the trial shall not be scheduled to take place less than thirty-five days from the date of the mailing of such notice.

8. (a) The Registrar, after the meeting referred to in Rule 4 or Rule 7, as the case may be or the Court at any stage of the proceeding may appoint a guardian of such person for the purposes of the proceedings, which guardian shall be a person who is not under a disability and who has no interest adverse to that of the person under disability.

(b) No such guardian shall be appointed without the consent of such guardian.

(c) Where a guardian is so appointed, anything that the Party under disability is required or authorized to do by these Rules may be done by the guardian.

(d) Such guardian shall diligently attend to the interests of the person under disability.

9. A Party may be represented by counsel or an agent, may call and examine witnesses and present arguments and submissions and may conduct cross-examinations of witnesses at the trial and where any Party is not represented by counsel or an agent, the Court may appoint counsel or an agent if the Court determines that such representation may be required in the interest of justice, and where any party is charged with any Offence, the Court may appoint counsel to prosecute the charge.

10. Any member of the Court or anyone appointed by the court has power to administer oaths and affirmations with respect to any of its proceedings and the Court may require evidence before it to be given under oath or affirmation.

11. The Court may summon and examine witnesses, including any Party, viva voce, and in open Court to give evidence under oath or by affirmation and to produce in evidence documents and thing so specified by the Court, and may; for a sufficient reason order any particular fact or facts to be proved by Statutory Declaration or allow the Affidavit or Statutory Declaration of any witness to be read in evidence at the Trial or may direct any witness to be examined before and Examiner or Commissioner or the Registrar of the Court or other person authorized by the civil law of the province to examine witnesses or take Statutory Declarations.

12. (a) Any Summons to a witness shall be served personally. If personal service cannot be reasonably effected, the President may make such Order for substituted or other service as he or she deems fit.

(b) At the opening of the Trial, any witness may request the payment of conduct money and/or travel expenses and the President shall determine whether conduct money and/or travel expenses shall be paid to such witness, and if so, the amount required.

13. Testimony given by a witness shall not be used or be receivable in evidence against that witness or any other person at any hearing or trial or other proceedings against such witness or other person thereafter taking place other than a prosecution for perjury.

14. The Court may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in Court, any oral testimony or document or other thing relevant to the subject matter of the proceedings.

15. A copy of a document may be admitted as evidence where the Court is satisfied as to its being a true copy.

16. The Court may take notice of facts that may be judicially noticed and take notice of any generally recognized scientific, technical or theological facts, information or opinions within is scientific or specialized knowledge.

17. The Court shall give its final decision or Order, if any, in writing, and shall give reasons in writing therefor.

service of decision:

18. The Court shall send by prepaid ordinary mail addressed to the Parties to their addresses as set out in the Claim or Defence, as the case may be, a copy of the final decision or Order, together with reasons, and each Party shall be deemed to have received a copy of the decision on the seventh day after the day of mailing.

19. The President may make such Orders or take such proceedings as he or she considers necessary for the maintenance of order at the trial.

20. The President may make such Orders or give such directions in proceedings before the Court and limit the number of witnesses to such number as he or she considers proper to prevent abuse of the process of the Court.

21. The Court may exclude any person acting as agent from the hearing other than a barrister and solicitor qualified to practice in the Ontario Court (General Division), if it finds that such person is not competent to properly advise or represent a Party.

22. Any hearing may be adjourned from time to time by the President on such terms, if any, as he or she may order.

23. Amendments to any Claim, Defence or Reply may be made by Order of the President at any time on such terms, if any, as may be necessary to prevent prejudice to any Party.

24. The President may at any stage of the proceedings order that the name of any Claimant or Defendant improperly added by struck out and may also order that any persons who ought to have been joined, or whose presence is necessary, be added.