In Bentley v. Diocese of New Westminster B.C., former Labour Relations Board Chairman Stephen Kelleher, now Justice of the B.C. Supreme Court, combined two actions for trial which concerned disputes over church property within several parishes of the Anglican Church of Canada (ACC).
In the first, there were 22 plaintiffs. They were Anglican clergy and lay leaders from four incorporated parishes geographically situated in the Diocese of New Westminster (the “Diocese”). The plaintiffs were also trustees of their respective parish corporations, and also brought proceedings in that capacity. The defendants were the Anglican Synod of the Diocese of New Westminster (the “Diocesan Synod”) and Michael Ingham, the current Bishop of the Diocese.
These proceedings arose indirectly from Bishop Ingham’s decision in June 2002 to accept the recommendation of the Diocesan Synod that he authorize a rite for the blessing of same-sex unions. The plaintiffs viewed this as an abandonment of Christian Scripture, and their respective congregations had left the Diocese as a consequence. They contended that church properties in their four parishes were held pursuant to a trust for “historical, orthodox, Anglican doctrine and practice”, and that the blessing of same-sex unions was inconsistent with such doctrine and practice. Accordingly, the plaintiffs sought to have the church properties turned over to their congregations pursuant to the exercise of this Court’s inherent jurisdiction over trusts and charities.
Certain parishes voted overwhelmingly to leave the local Diocese, and that raised the issue of the status of their Ministers and buildings. The Local Bishop issued a notice of a Presumption to Abandon Ministry, and then demanded “the orderly handing over of control of buildings and assets” from the dissenting congregations and ordered the removal of the elected Trustees of two of the congregations.
The defendants counterclaimed for a declaration that the plaintiffs were not entitled to possession or control of the properties in question, and other ancillary relief.
The plaintiffs said that in these circumstances of broken communion, there is a supervening impracticability wherein the Court should exercise its inherent jurisdiction to rescue the trust.
The plaintiffs argued that granting the counterclaim would cast the largest congregation within the ACC out of its building because it stands against innovations in doctrine and practice which are, at the least, controversial. The same outcome would similarly befall the largest congregation in the Fraser Valley and almost the entirety of the Chinese Anglican community in the Diocese. This outcome should be avoided in order to minimize the existing conflict within the Christian community.
With respect to the form of Order, the plaintiffs said that the cy-près Order need go no further than that the plaintiff trustees be continued in each parish under the oversight of another Bishop.
The defendants submitted that the plaintiffs’ case failed even on the legal framework upon which they rely. They said that the jurisprudence on religious purpose trusts contained three principles that are determinative of the present dispute.
First, it is only the “fundamental principles” or “defined doctrines” of a religious organization that can be the subject of a trust and there is no such fundamental principle of that sort in this case because the non-sanctity of same-sex relationships is not fundamental to the ACC. Second, the principle that the property of a religious organization is held on trust for the original purposes of the organization is subject to any mechanisms within the organization that allow for change. If a religious organization’s structure allows for doctrinal changes, then any such changes cannot be a breach of an implied trust. Third, the defendants submitted that a substantial body of authority confirms that where a religious organization is hierarchical and has officers or tribunals to determine correct doctrine, civil courts ought to defer on religious matters to the determination of those officers or tribunals.
Kelleher J. noted that the plaintiffs’ submissions started from the premise that church property is presumed to be held on a religious purpose trust. In contrast, the defendants contended that the issues in dispute could be resolved by reference to statutes and canon law, and that it is unnecessary to turn to trust principles. The Court examined and appeared to accept the American approach of “neutral legal principles” in which property disputes in a religious context should be resolved with respect to neutral legal principles not doctrinal matters. Where the interpretation of the documents would require the courts to resolve a religious controversy, then the courts are to defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body.
Kelleher J. noted that: “the notion of civil courts deferring to ecclesiastical authority on questions of doctrine has deep provenance in Canada.” Further, he reviewed founding documents and determined that within the ACC a parish does not have authority to unilaterally leave the Diocese, and it is consequently ultra vires for it to pass a resolution purporting to do so. Additionally, while parish corporations may hold title to real property, that property effectively remains within the Diocese unless the Executive Committee and Bishop agree to mortgage, sell or otherwise dispose of it, which had not happened in this case. Kelleher J. noted that “Historic” and “orthodox” are uncertain and subjective terms that cannot form the basis of an enforceable trust, and trusts that freeze doctrinal development at a point in time would be inconsistent with the history of change and evolution in Anglicanism. Significantly, the ACC has concluded that the blessing of same-sex unions does not engage core Anglican doctrine. This clearly implies that such blessings are not contrary to the Anglican Church’s founding documents. It is only a departure from the core tenets or fundamental doctrine of a church that can breach a religious purpose trust.
On the other hand, Kelleher J. found that Bishop Ingham had acted outside his authority in removing the Trustees that had been validly elected by their vestries and ordered them reinstated, provided that they exercise their authority in relation to the parish properties in accordance with the Act, as well as the Constitution, Canons, Rules and Regulations of the Diocese and, in particular, that “...they do not have authority to use those properties outside of the Diocese; this includes using them for purposes related to [the organization of dissenting parishes].”
Because the plaintiffs were not successful in the main part of their action, it became necessary for the judge to consider a discrete dispute over a bequest by an individual who had attended one of the dissenting parishes: was the bequest for the benefit of the Parish, the dissenting church or the wider Diocese? The judge found, on this aspect of the case, that the best interpretation of the testator’s wishes was that she left the money for the building fund of a particular Chinese church, and that required that the money go to the dissenters as there was little likelihood of there being many other Chinese Anglicans in the Diocese (most, being conservative in belief, had left the Diocese).
Kelleher J. noted, somewhat wryly that “...it may be that in light of the other conclusions I have reached, the trustees will no longer wish to remain as such. I do not know. For now, I will leave it to the parties to arrive at a workable resolution. In the event it becomes necessary, they may return to court for further orders in this regard.”
In sum, the Judge found for the Bishop with respect to the buildings and assets, with the Trustees in terms of them keeping their offices and with the dissenting Chinese Anglicans in terms of the monies (over 2 million dollars) left to them by a deceased parishioner. The dissenting parishes have appealed on the property ownership issue. The defendants have cross appealed, only on the issue of the bequest.