Bentley et al. v. Anglican Synod of the Diocese of New Westminster et al., 2010 BCCA 506

• Judge: Newbury, Lowry and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 15, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 506;(2010), 297 B.C.A.C. 59 (CA)

Bentley v. Anglican Synod (2010), 297 B.C.A.C. 59 (CA);

    504 W.A.C. 59

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. NO.017

Michael Bentley, Ethel Marion Campbell, Peter Chapman, Zenia Cheng, Simon Chin, Krista Friebel, R. Patrick Greenwood, Marie Kristine Klukas, Johnny Leung, David Ley, Ruth Lin, Lanny James Reedman, Linda Seale, Anne Scheck, David Kenneth Short, Trevor Howard Walters, and Shirley Wiebe (appellants/plaintiffs) v. Anglican Synod of the Diocese of New Westminster, and Michael Ingham in his capacity as the Anglican Bishop of the Diocese of New Westminster (respondents/defendants)

(CA037770)

Eric Law, Stephen Wing Hong Leung, Annie Sheung Kan Tang, Stephen Chi Him Yuen, and Winsor Wing Tai Yung (appellants/plaintiffs) v. Anglican Synod of the Diocese of New Westminster, and Michael Ingham in his capacity as the Anglican Bishop of the Diocese of New Westminster (respondents/defendants)

(CA037771; 2010 BCCA 506)

Indexed As: Bentley et al. v. Anglican Synod of the Diocese of New Westminster et al.

British Columbia Court of Appeal

Newbury, Lowry and Garson, JJ.A.

November 15, 2010.

Summary:

Four Anglican parishes removed themselves from the Diocese of New Westminster and the oversight of their bishop as a result of a doctrinal change which authorized, but did not require, the liturgical blessing of same-sex unions by clergy in the Diocese. The General Synod of the Anglican Church of Canada (ACC) had pronounced that same-sex blessings were "not in conflict with the core doctrine (in the sense of being creedal)" of the ACC. The four parishes had entered into arrangements with a South American bishop (who was opposed to same-sex blessings) for the provision of primatial oversight, and that bishop had appointed a retired Canadian bishop to provide episcopal oversight. The four parishes had "realigned" themselves into a new "Anglican Network in Canada" ("ANiC"). The plaintiffs (trustees and clergy of the four parish corporations that had withdrawn from the Diocese) brought an action (the "main action"), asserting that they, or the parish corporations they represented, held the church buildings and related assets on implied trusts created or confirmed by the statute under which both the Diocesan Synod and the parish corporations were incorporated. They sought, inter alia: a declaration that the parish corporations, or the trustees, owned the assets in trust "for the congregations for the purpose of ministry consistent with historic, orthodox Anglican doctrine and practice"; a declaration that the division had rendered it impracticable to carry on the purpose of the trusts; an order establishing a cy-près scheme to fulfill the charitable intent of the trusts; and a declaration that the bishop had no jurisdiction to dismiss or appoint trustees of the parish corporations and that his purported removal of the trustees of two of the corporations was of no force and effect. In a second action tried at the same time (the "Chun" action), a cy-près order was sought in respect of a testamentary bequest made by Dr. Chun to the building fund of the Church of the Good Shepherd, one of the four parishes that had left the Diocese. The trustees of that parish sought a cy-près order to permit the fulfilment of the charitable intent of the bequest.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1608, dismissed the main action, with the exception that it declared invalid the Bishop's purported removal of the parish trustees. In the Chun action, the court granted a cy-près order in respect of the Chun bequest. The plaintiffs appealed in the main action. The defendants appealed from the order in the Chun action.

The British Columbia Court of Appeal dismissed the plaintiffs' appeal in the main action and the defendants' appeal in the Chun action.

Churches - Topic 10

General - Trusts - [See first Churches - Topic 2204 ].

Churches - Topic 2204

Dissolution or division - Ownership of church assets - Where parish leaves - Four Anglican parishes removed themselves from the Diocese of New Westminster and the oversight of their bishop as a result of a doctrinal change which authorized, but did not require, the liturgical blessing of same-sex unions by clergy in the Diocese - The General Synod of the Anglican Church of Canada (ACC) had pronounced that same-sex blessings were "not in conflict with the core doctrine (in the sense of being creedal)" of the ACC - The four parishes had entered into arrangements with a South American bishop (who was opposed to same-sex blessings) for the provision of primatial oversight, and that bishop had appointed a retired Canadian bishop to provide episcopal oversight - The four parishes had "realigned" themselves into a new "Anglican Network in Canada" - The plaintiffs (trustees and clergy of the four parish corporations that had withdrawn from the Diocese) brought an action, asserting that they, or the parish corporations they represented, held the church buildings and related assets on implied trusts created or confirmed by the statute under which both the Diocesan Synod and the parish corporations were incorporated - They sought, inter alia: a declaration that the parish corporations, or the trustees, owned the assets in trust "for the congregations for the purpose of ministry consistent with historic, orthodox Anglican doctrine and practice"; a declaration that the division had rendered it impracticable to carry on the purpose of the trusts; and an order establishing a cy-près scheme to fulfill the charitable intent of the trusts - The action was dismissed - The plaintiffs appealed - The British Columbia Court of Appeal dismissed the appeal on the basis that "the purpose of the trusts on which the parish corporations hold the church buildings and other assets is to further Anglican ministry in accordance with Anglican doctrine, and that in Canada, the General Synod has the final word on doctrinal matters" - The court stated that "members of the Anglican Church in Canada belong to an organization that has subscribed to 'government by bishops.' The plaintiffs cannot in my respectful opinion remove themselves from their bishop's oversight and the diocesan structure and retain the right to use properties that are held for purposes of Anglican ministry in Canada" - See paragraphs 55 to 76.

Churches - Topic 2204

Dissolution or division - Ownership of church assets - Where parish leaves - Four Anglican parishes removed themselves from the Diocese of New Westminster and the oversight of their bishop as a result of a doctrinal change which authorized, but did not require, the liturgical blessing of same-sex unions by clergy in the Diocese - The issue on appeal concerned the rights of the four parishes with respect to church buildings and related assets of their parishes - In deciding the appeal, the British Columbia Court of Appeal held that the "neutral principles of law" approach taken by American courts in connection with church disputes was not of assistance - See paragraph 55.

Trusts - Topic 372

Creation of trust - Purpose or object - Certainty of objects - The British Columbia Court of Appeal stated that "the trial judge expressed the view that a trust for purposes of ministry consistent with 'historic' or 'orthodox' Anglican doctrine would not meet the criterion of certainty of objects. It is almost trite law, however, that charitable purpose trusts are not subject to this requirement" - See paragraph 58.

Trusts - Topic 1123

Charitable trusts - Creation of - Intention - [See Trusts - Topic 1189 ].

Trusts - Topic 1150

Charitable trusts - Charitable purposes - Religion - [See Trusts - Topic 1189 ].

Trusts - Topic 1183

Charitable trusts - Failure of charitable trusts - Cy-près doctrine - Scope of remedial power - [See Trusts - Topic 1189 ].

Trusts - Topic 1189

Charitable trusts - Failure of charitable trusts - Cy-près doctrine - Object impracticable - Four Anglican parishes removed themselves from the Diocese of New Westminster and the oversight of their bishop as a result of a doctrinal change which authorized, but did not require, the liturgical blessing of same-sex unions by clergy in the Diocese - The four parishes had "realigned" themselves into a new "Anglican Network in Canada" ("ANiC") - Chun had made a testamentary bequest to the building fund of the Church of the Good Shepherd, one of the four parishes - The trustees of that parish sought a cy-près order to permit the fulfilment of the charitable intent of the bequest - The trial judge found that Chun intended the proceeds to be applied to the building needs of the Chinese community, that the parishioners of the Church of the Good Shepherd had voted to leave the Diocese and join the ANiC, and that it was unlikely there would be need for a new building for the Chinese community in the Diocese - The trial judge found that the fulfilment of the purpose of the bequest had become impracticable and that this was an appropriate instance for a cy-près order - The trial judge concluded that a scheme whereby the funds were held on trust for the building needs of the ANiC congregation would best fulfil Chun's charitable intent - The British Columbia Court of Appeal dismissed an appeal - It was open to the trial judge to conclude both that the continued fulfilment of the trust had become impracticable and that making the funds available to the ANiC congregation would come closest to fulfilling Chun's charitable intent - See paragraphs 77 to 83.

Cases Noticed:

Watson v. Jones (1871), 80 U.S. 679, refd to. [para. 13].

Jones v. Wolf (1979), 443 U.S. 595, refd to. [para. 13].

Episcopal Church Cases (2009), 198 P. 3d 66, refd to. [para. 13].

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. et al., [2001] O.T.C. 130 (Sup. Ct.), revd. in part (2002), 167 O.A.C. 138; 30 B.L.R.(3d) 315 (C.A.), consd. [para. 14].

Balkou v. Gouleff (1989), 68 O.R.(2d) 574 (C.A.), refd to. [para. 15].

Itter v. Howe (1896), 23 O.A.R. 256, consd. [para. 17].

Schlichter v. Keiter (1893), 156 Pa. St. 119, refd to. [para. 18].

Dorland v. Jones (1886), 12 O.A.R. 543 (C.A.), affd. (1887), 14 S.C.R. 39, refd to. [para. 19].

Attorney General v. Pearson (1817), 3 Mer. 353; 36 E.R. 135 (Ch. D.), refd to. [para. 19].

General Assembly of the Free Church of Scotland v. Overtoun, [1904] A.C. 515 (H.L.), consd. [para. 27].

Craigdallie v. Aikman (1813), 1 Dow 2; 3 E.R. 601, refd to. [para. 30].

Doe ex dem; Trustees of the Methodist Episcopal Property v. Bell (1836), 5 U.C.Q.B. (O.S.) 344, refd to. [para. 31].

Bliss v. Christ Church Fredericton (1887), Tru. 314 (N.B.Q.B.), refd to. [para. 31].

Hofer v. Hofer (1966), 59 D.L.R.(2d) 723 (Q.B.), affd. [1970] S.C.R. 958, refd to. [para. 31].

Chong v. Lee (1981), 29 B.C.L.R. 13 (S.C.), refd to. [para. 32].

Anderson v. Gislason (1920), 53 D.L.R. 492 (Man. C.A.), consd. [para. 32].

Schnorr's Appeal (1870), 67 Pa. St. R. 138, refd to. [para. 33].

Varsani v. Jesani, [1998] 3 All E.R. 273 (C.A.), consd. [para. 45].

Dean v. Burne et al., [2009] E.W.H.C. 1250 (Ch.), refd to. [para. 49].

Organization of Veterans of the Polish Second Corps of the Eighth Army v. Army, Navy & Air Force Veterans in Canada (1978), 87 D.L.R.(3d) 449 (Ont. C.A.), refd to. [para. 51, footnote 2].

Robinson, Re, [1923] 2 Ch. 332, refd to. [para. 53].

Rowland et al. v. Christian Brothers of Ireland in Canada (Liquidation), [2000] B.C.T.C. 594; 2000 BCSC 1221, affd. (2001), 159 B.C.A.C. 177; 259 W.A.C. 177; 2001 BCCA 527, refd to. [para. 62].

Liverpool and District Hospital for Diseases of the Heart v. Attorney General, [1981] 1 Ch. 193, refd to. [para. 62].

Christian Brothers of Ireland in Canada, Re (2000), 132 O.A.C. 271; 47 O.R.(3d) 674 (C.A.), refd to. [para. 62].

Wasauksing First Nation et al. v. Wasausink Lands Inc. et al., [2002] O.T.C. 50 (Sup. Ct.), refd to. [para. 62].

United Church of Canada v. Anderson et al. (1991), 2 O.R.(3d) 304 (Gen. Div.), refd to. [para. 63, footnote 4].

Pauli v. Huegli (1912), 4 D.L.R. 319 (Ont. H.C.), refd to. [para. 67].

Dwirnichuk v. Zaichuk, [1926] 3 W.W.R. 508 (Sask. K.B.), refd to. [para. 67].

Edmonton Korean Baptist Church v. Kim et al. (1996), 189 A.R. 156; 41 Alta. L.R.(3d) 321 (Q.B.), refd to. [para. 67].

Craigie v. Marshall (1850), 12 D. 523, refd to. [para. 68].

Rector, Wardens and Vestry of the Parish of Christ Church v. Moseley Estate (1984), 66 N.S.R.(2d) 132; 152 A.P.R. 132; 18 E.T.R. 150 (S.C.), refd to. [para. 78].

Canadian National Institute for the Blind, B.C. - Yukon Division v. Royal Trust Corp. of Canada (1981), 9 A.C.W.S.(2d) 327 (B.C.S.C.), refd to. [para. 78].

Authors and Works Noticed:

Fennelly, John E., Property Disputes and Religious Schisms: Who is the Church? (1997), St. Thomas L. Rev. 319, generally [para. 55, footnote 3].

Harris, Troy, Neutral Principles of the Law and Church Property in the United States (1988), 30 J. Church & St. 515, generally [para. 55, footnote 3].

Ogilvie, Margaret, Religious Institutions and the Law in Canada (2nd Ed. 2003), pp. 74, 75 [para. 37]; 293 [para. 30]; 296 [paras. 67, 69].

Ogilvie, Margaret, Church Property Disputes: Some Organizing Principles (1992), 42 U.T.L.J. 377, pp. 384, 390 [para. 67]; 393 [para. 55]; 394 [para. 66].

Reeder, Kathleen E., Whose Church is it, Anyway? Property Disputes and Episcopal Church Splits (2006), Columbia J. Law and Soc. Prob. 125, generally [para. 55, footnote 3].

Ross, William G., The Need for an Exclusive and Uniform Application of "Neutral Principles", in the Adjudication of Church Property Disputes (1987), 32 Saint Louis U.L.J. 263, generally [para. 55, footnote 3].

Tudor on Charities (9th Ed. 2003), pp. 371 to 373 [para. 62].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 640, 641 [para. 58].

Counsel:

D.G. Cowper, Q.C., W.S. Martin and K. Gammon, for the appellants;

G.K. Macintosh, Q.C., and T.A. Dickson, for the respondents.

This appeal was heard on September 13-16, 2010, at Vancouver, B.C., before Newbury, Lowry and Garson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Newbury, J.A., on November 15, 2010.