r v. Protection of the Holy Virgin Russian Orthodox Church, 2011 ONSC 3343

CITATION : Sever v.

Protection of the Holy Virgin Russian Orthodox Church , 2011 ONSC 3343 COURT FILE NO.: 04-CV-28455 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) DIMITRI SEVER ) ) ) Eugeny Kozlov, for the Plaintiff ) Plaintiff ) ) - and - ) ) ) PROTECTION OF THE HOLY VIRGIN RUSSIAN ORTHODOX CHURCH (OUTSIDE OF RUSSIA) IN OTTAWA, INCORPORATED, THE MONTREAL AND CANADIAN DIOCESE OF THE RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA INCORPORATED, AND GABRIEL CHEMODAKOV ) ) ) Jonathan Richardson, for the Defendants ) Defendants ) ) ) ) HEARD: May 30, 2011 ENDORSEMENT KEALEY J. [ 1 ] There were three motions before me in regard to the litigation in which these parties have been mired for over eleven years.

I was notified by correspondence that the matter had been settled between the Plaintiff and the Montreal and Canadian Diocese of the Russian Orthodox Church outside of Russia Incorporated and Gabriel Chemodakov on the basis that the action would be dismissed without costs against them, subject to the parties agreeing on the appropriate release. [ 2 ] As to the remaining parties, the Plaintiff, Dimitri Sever seeks to have set aside the Order of the late Justice Panet, dated January 21, 2005 staying execution on a default judgment in his favour against certain of the Defendants.

The Default Judgment was in the amount of $548, 696. 86 and was granted by the registrar on the November 25, 2004. The Defendants who were affected by this judgment seek to have it set aside to permit them to file their statement of defence. As well, these Defendants move for judgment in accordance with Minutes of Settlement which they claim resolved all outstanding litigation between the parties.

As I indicated to counsel, it is my intention to determine the latter motion first, and I invited their submissions. [ 3 ] It is undisputed that when these matters came before Justice Panet, in January 2005, he encouraged and arranged for the parties

to enter settlement negotiations with the Associate Chief Justice of Ontario, Douglas Cunningham. Justice Panet was fully aware of the parties’ litigation history including the appeals outstanding in the Court of Appeal from an earlier decision he had rendered. [ 4 ] The initial settlement conference was held on February 28, 2005 with the second scheduled for March 23, 2005, the same date the appeals above referred to were to be heard. All counsel agreed to adjourn the appeals to October 25 and to continue settlement discussions.

These continued over the summer and, because of the need to involve all levels of the church on the ecclesiastical impact of the negotiations, the progress was slow. Again, in order to assist what the parties felt was an attainable settlement; the appeals were adjourned from the October date, to March 9, 2006. Further effort and negotiation to reach a final settlement continued and was successfully achieved on or about March 6, 2006.

On March 7, the late James O’Grady then solicitor for Father Sever, advised the Court of Appeal as follows: The parties to the above mentioned appeal and motions have now been able to arrive at a full and final settlement of all issues involved in those proceedings. After discussions among counsel and the exchange of draft Minutes of Settlement, an acceptable form of these was forwarded to Mr. O’Grady on October 17, 2006 and is attached hereto as

Schedule A of my endorsement. [ 5 ] The record discloses that on November 16, counsel for the Plaintiff accepted the Minutes of Settlement and advised that he would recommend his client execute these immediately. Consistent with the settlement terms, he forwarded draft resignations of Father Sever and his associates as directors of the parish corporations. As well, in his November 30 th correspondence, he indicated that the Plaintiff and his associates were to have all documentation prior to signing.

It is of note that the sum of $225,000.00 which was the main payment called for in the settlement agreement had earlier been forwarded to Burke Robertson LLP in trust to be held in escrow until the Minutes of Settlement and all release documentation was signed.

Later, on February 28, 2007, Father Sever indicated that he was now ready to proceed with the execution of the Minutes of Settlement and proposed a change in the payment arrangement which apparently was not accepted. [ 6 ] While it has little or no bearing on the issues I have to determine, two branches of the Russian Orthodox Church (the Moscow Patriarchate and the Russian Orthodox Church outside Russia) reconciled by

an act of canonical communion. Despite their Eucharistic reconciliation, each remained separate in terms of their administration. In the light of the aforesaid, counsel for the Plaintiff requested that no further steps be taken to implement the settlement arrangements arrived at until further directions were received from the now unified church. Subsequently, the Synod of Bishops of the Russian Orthodox Church outside of Russia released a decision providing guidance with respect to Father Sever.

It directed that he should formalize documentation dismissing all litigation and not appear or serve in churches of the Russian Orthodox Church outside of Russia. Notwithstanding this direction, and the fact that counsel acting for Father Sever confirmed as late as January 28, 2010 the validity of the Minutes of Settlement, these were never signed by him. [ 7 ] Present counsel for Father Sever suggested that because the Minutes were not executed, this was somehow proof there was no agreement. Further, it was suggested that the Synod decision regarding Sever’s status in the church now prevented the settlement.

However, there is no mention, anywhere in the record that this was ever an issue in terms of the Settlement which had been achieved. In my view, the fact that the Settlement Agreement was not signed over the years is not in itself, evidence that there was no agreement. On the record before me, there is overwhelming evidence that there was a Settlement Agreement. Furthermore, aside from the delinquency of the parties in failing to put the matter to rest, there is no explanation why this was not achieved. [ 8 ] Generally in law, an agreement to settle is contractual in nature.

It requires a mutual intention to create a legally binding position with one another. Once it is established that the notions of offer and acceptance are present, and the essential terms are clear, the failure to complete release documentation or execute Minutes of Settlement will not negate the fact of settlement. Under rule 49.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194, where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may move for judgment.

The judge may grant judgment in accordance with the terms of the offer or continue the proceeding as if there had been no offer accepted. There is a two step analysis required under the rule. Firstly, I must consider whether an agreement to settle was reached.

If there are material issues of fact or genuine issues of credibility in dispute regarding the intention to create a legally binding agreement or whether there was an agreement on all essential terms, then a Court must refuse to grant judgment. [ 9 ] In this regard, as I have indicated, I find that the parties clearly intended to create the mutually acceptable terms which are set out in the Minutes of Settlement. No material issues of fact or genuine issues of credibility are in dispute here.

Having found that an agreement exists between these parties, the second step is to consider whether on all the evidence, the agreement should be enforced. [ 10 ] On this aspect, I am mindful of the fact that there was a significant time delay on the facts before me. While it is not fully explained, the record does disclose that deference shown to the ecclesiastical concerns accounted for some delay and there was also much documentation to be prepared in order to finalize the settlement.

However, there was no delay on the part of the Defendants to place the major payment of $225,000.00 into trust with Father Sever’s lawyers or failing to provide settlement documentation for execution. Moreover, and perhaps more importantly, it seems glaringly obvious that the instincts of Justice Panet, about the proceedings between these parties occupying an inordinate volume of judicial resources, were well founded. He had been the case management judge for the litigation since 1999 and he arranged for the Associate Chief Justice Douglas J.

Cunningham to convene and oversee the negotiations, which resulted in the settlement under discussion. [ 11 ] On the whole of the facts in the record, I find that there is much to compel me to exercise my discretion to grant judgment as sought and little if anything, to suggest that I do otherwise. Therefore, judgment shall issue in accordance with the Minutes of Settlement which I have identified in

Schedule A to this endorsement.

[ 12 ] In view of the aforesaid, there is no need to deal with the other motions. As to costs, if the parties cannot agree, then, I will fix same provided I receive written submissions in this regard, not to exceed five pages in length, on or before June 24 next. ___________________________ Mr. Justice Roydon Kealey Released : June 14, 2011 CITATION : Sever v. Protection of the Holy Virgin Russian Orthodox Church , 2011 ONSC 3343 COURT FILE NO.: 04-CV-28455

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DIMITRI SEVER Plaintiff - and – PROTECTION OF THE HOLY VIRGIN RUSSIAN ORTHODOX CHURCH (OUTSIDE OF RUSSIA) IN OTTAWA, INCORPORATED, THE MONTREAL AND CANADIAN DIOCESE OF THE RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA INCORPORATED, AND GABRIEL CHEMODAKOV Defendants REASONS FOR JUDGMENT Mr. Justice Roydon Kealey Released : June 14, 2011