Appeal court decision pending on B.C. properties

Two very different views of how parishes should relate to their dioceses were evident during a four-day hearing in an Appeal Court in Vancouver last week.

Four congregations that left the diocese of New Westminster and the Anglican Church of Canada in the spring of 2008 to join the Anglican Network in Canada (ANiC) have sued the diocese. They are trying to get a court to rule they can take their church buildings with them.

The four include St. John’s Shaughnessy in an upscale neighbourhood of Vancouver, once the diocese’s largest congregation and now by far the largest of about 38 ANiC parishes. Their extensive property could be worth $20 million or more.

After a three-week trial last year, the judge sided with the diocese on most points-although he did leave the dissident parish trustees in place.

In his 98-page decision, Judge Stephen Kelleher accepted the diocese’s argument the case should be governed according to Canon law and regulations of the diocese, the Anglican Church of Canada, and the provincial legislation that set up the diocese in 1893. Both sides described this as a “church governance approach.”

A section of the provincial legislation says that the bishop and the diocesan council must consent before any parish can “mortgage, sell, or otherwise dispose of” property.” There was no consent, so the properties remain with the diocese, Judge Kelleher ruled: “This is sufficient to resolve the issue.”

The lawyer for the diocese, George Macintosh, Q.C., said the judge made the right decision. The Anglican Church of Canada is “highly structured” and “sophisticated” in the way it governs itself. If it properly follows its own rules, those should apply.

But the lawyer for the four congregations, Geoffrey Cowper, also a Q.C., objected strongly to the approach of the lower court judge. “We contend the trial judge erred from the very outset in failing to see that these churches are governed as charitable trusts,” he said

The trustees of a parish-and they are called “trustees”-hold church properties not for their own benefit or for the bishop’s, but for the members of the congregation, sov they can engage in Anglican ministry and worship, the lawyer for the congregations insisted.

The terms of that trust, which the lawyer granted are implied, not written down (or “expressed”),were to be found primarily in the Solemn Declaration that dates to the creation of the Anglican Church of Canada in 1893.

The ANiC group contends that the declaration upholds historic and orthodox Anglicanism, and cannot be changed, and says the church is part of the Anglican Communion or “the Church of England throughout the world.”

What the lower court should have done, argued the congregations’ lawyer, is recognize the “religious purposes trust.” If they Appeal Court judges do, they will realize it would be impossible for the parish trustees-who have left the diocese but say they remain Anglican-to carry out the terms of that trust if the lower court ruling stands.

So the appeal court has a duty to intervene and declare that the trustees are allowed to direct that the properties can be used by ANiC parishes-even if Diocesan Bishop Michael Ingham objects.

The diocese’s lawyer replied that even if there is a trust, its purpose is to enable the ministry of the Anglican Church of Canada.

All sorts of arguments followed: could the ACC change doctrine? Had it? Did Bishop Ingham change doctrine by authorizing a same sex blessing? What was the difference between doctrine and “core” doctrine? Were the dissident groups in the Anglican Communion by their association with a South American Primate? Just how secure within the Communion was the Anglican Church of Canada, anyway? And on and on.

But the basic question in the case was how should we look upon parishes and congregations: Are they set up as units of a body called the Anglican Church of Canada to further ministry and doctrine? Or are they charitable religious trusts, serving the needs and ministry of people in the pews, even to the point of allowing them to leave the Canadian church?

The appeal court reserved decision, and will probably take several months to issue its judgment. Whoever wins, it seems likely the case will be heading to the Supreme Court of Canada.

Neale Adams is former editor of Topic, the newspaper of the diocese of New Westminster.