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Judicial Restraint and Neutral Principles in Anglican Church Property Disputes: Bentley v Diocese of New Westminster
Published online by Cambridge University Press: 26 April 2011
Extract
Anyone hoping that the British Columbia Court of Appeal, in Bentley v Anglican Synod of the Diocese of New Westminster would resolve the doctrinal and related property disputes in the Anglican Church of Canada (ACC) and even in the world-wide Anglican Communion over same-sex blessings must come away from the decision of Newbury JA for the unanimous court greatly disappointed: the court left the dispute exactly where it began – in the ACC. Conversely, anyone hoping that the court would do precisely that will be greatly relieved by this exercise of judicial self-restraint in the face of the many challenging theological and legal issues presented by the case. Stripped to its essentials, the court found that the property to which four former parishes in the diocese of New Westminster laid claim by way of a cy-près application was held by the diocese pursuant to a statutory trust for the uses of the diocese and the ACC. The court further characterised the dispute over same-sex blessings as an internal dispute among Anglicans on the basis of which a cy-près order cannot be made in favour of parishes which no longer regard the Bishop of New Westminster as their bishop. This simple, legal outcome followed an 11 day trial in the British Columbia Supreme Court, a four day appeal hearing, and two lengthy judgments, each of just under 100 pages, which ranged widely over the history of the dispute within the ACC and the larger Anglican Communion, and the Anglo-Canadian common law relating to the resolution of church property disputes since the 1813 decision of Lord Eldon in Craigdallie v Aikman, almost two centuries before.
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References
1 2010 BCCA 506.
2 Lowry and Garson JJA concurred.
3 2009 BCSC 1408, (2010) 12 Ecc LJ 402.
4 (1813) 3 ER 601.
5 [1904] AC 515 (HL Sc).
6 Watson v Jones 80 US 679 (1871); Jones v Wolf 43 US 595 (1979); Episcopal Church Cases (2009) 198 P 3d 66.
7 Jones v Dorland (1886) 14 SCR 39; Itter v Howe (1896) 23 OAR 256 (CA); Huegli v Pauli (1912) 4 DLR 319 (Ont HC); Dwirnichuk v Zaichuk [1926] 3 WWR 508 (Sask KB); Edmonton Korean Baptist Church v Kim (1996) 41 Alta LR (3d) 21(QB).
8 The following account is excerpted from 2009 BCSC 1608 per Kelleher J at paras 7–171. The trial judge's version is widely accepted as accurate and was adopted without further review or restatement by the BC Court of Appeal, 2010 BCCA 506 at para 8.
9 Criminal Code Amendment Act, 1968–69, SC 1968–69, c 38.
10 See 2009 BCSC 1408 at paras 70–79 for the details.
11 Report of the Primate's Theological Commission of the Anglican Church of Canada on the Blessing of Same-Sex Unions: The St. Michael Report (Toronto, 2005)Google Scholar.
12 The case also dealt with two additional matters, whether the bishop had acted properly under the diocesan canons in attempting to remove parochial officers and whether a bequest (the ‘Chun’ bequest) to one of the parishes for a building fund should also be subject to a cy-près order in favour of the parish. The court found the bishop had acted improperly and made the cy-près order as being in accord with Dr Chun's intentions. Supra, n 1 to paras 42 and 82 respectively.
13 SBC 1893, c 45 as amended. See 2010 BCCA 506 at Schedule I.
14 2010 BCCA 506 at Schedule II.
15 Ibid, para 52.
16 Ibid, para 55.
17 This addressed a doubt about how charities held assets raised in Rowland v Vancouver College Ltd (2001) 205 DLR (4th) 193 (BCCA), leave to appeal to SCC refused [2001] SCCA No 652. The court adopted the position in Liverpool and District Hospital for Diseases of the Heart v Attorney General [1981] 1 Ch 193 and Re Christian Brothers of Ireland in Canada (2009) 47 OR (3d) 674 (Ont CA).
18 2010 BCCA 506 at para 65.
19 Ibid, at paras 66–67.
20 By distinguishing the Free Church case from its predecessors in which such rules were enforced as a matter of contract: Craigdallie v Aikman (1813) 1 Dow 2, 3 ER 601 (HL) at 16 and Craigie v Marshall (1850) 12D 523. See subsequently Anderson v Gislason (1920) 53 DLR 491 (Man CA) at 501. See generally: M Ogilvie, ‘Church Property Disputes: Some Organizing Principles’ (1992) 42 UTLJ 377 and Religious Institutions and the Law in Canada (third edition, Toronto, 2010) pp 291–295Google Scholar.
21 [1998] 2 All ER 273 (CA).
22 2010 BCCA 506 at para 73.
23 Ibid, at para 74.
24 Ibid, at para 75.
25 Ibid.
26 Balkou v Gouleff (1989) 68 OR (2d) 574 (Ont CA), Montreal and Canadian Diocese of the Russian Orthodox Church Outside of Russia Inc v Protection of the Holy Virgin Russian Orthodox Church (Outside of Russia) in Ottawa Inc [2001] OJ No 438 affirmed (2002) 30 BLR (3d) 315 (Ont CA).
27 See eg Craigdallie v Aikman, (1813) 1 Dow 2, 3 ER 601 (HL), Craigie v Marshall (1850) 12D 523, Anderson v Gislason (1920) 53 DLR 491 (Man CA).
28 2010 BCCA 506 at para 55.
29 Ibid, at para 69.
30 (1991) 2 OR (3d) 304 (Ont Gen Div). See also a similar case involving an overseas UCC pastoral charge in Bermuda in which the court adopted an implied trust approach to award property to the charge after it left the UCC over the same-sex issue: Wesleyan Methodist Trustees of the Pembroke Parish No. 2 v Lightbourne (SC Bermuda, 1996/280)Google Scholar affirmed 2 June 2001 (Bermuda CA).
31 See Balkou v Gouleff and Montreal and Canadian Diocese of the Russian Orthodox Church Outside of Russia Inc v Protection of the Holy Virgin Russian Orthodox Church (Outside of Russia) in Ottawa Inc.
32 ANiC provides continuously updated information about ongoing litigation and its continuing growth on its website: <www.anglicannetwork.ca>.
33 Supra, n 6.
34 ANiC has announced that it will appeal this decision to the SCC. Should the SCC accept leave to appeal, a final decision will be about 18–24 months in the future.