Religious Organizations

• Author: M.H. Ogilvie
• Pages: 217-313

217

CHA PTER 8

R ELIGIOUS

ORGA NIZ ATIONS

A. INTRODUCTION

Although churches and religious institutions exist primarily for spirit-

ual and moral purposes, as human institutions existing in time and

place, they require both real and personal property in order to car ry

out and promote their spiritual and moral goals in this world. Thus,

religious organizations employ the vehicles and techniques of the com-

mon law to hold and use property necessary for their work. The inter-

action of religious institutions w ith the civil law encompasses vir tually

all those areas of the law that deal in any way with property. This is re-

f‌lected in this chapter, which will consider the legal status of religious

institutions and the role of the civ il courts in relation to civil law issue s,

incorporation, trust s and trustees, church off‌icers, real property issues,

taxation, municipal zoning, wills and bequests, and the resolution of

church property disputes on the merger or dissolution of a religious

institution.

Historically, virtually all religious organizations in Canada have been

Christian and virtually all branches of the Christian church have been

represented here since the early nineteenth century. Therefore, the law,

both legislation and common law, relates almost entirely to Christian

denominations. It ref‌lects both problems that arise from the three

broad organizational patterns into which Christian denominations

can be placed, episcopal, presby terian, and congregational, and certain

phenomena in the religious history of Canada.

RELIGIOUS INSTITUTIONS AND T HE LAW IN CA NADA218

The dominance of Anglicanism and the temporal wealth of that

church in the nineteenth centur y is ref‌lected in a separate section,1 ex-

ploring the large volume of cases in which the courts considered pe-

culiarly Anglican legal issues. The major schism within the Protestant

community caused by the creation of the United Church of Canada in

1925 is also ref‌lected in the bitter property di spute cases th at followed.2

Finally, the role of the civil courts in adjudicating disputes within reli-

gious organizations remains an ever-present theme in a country with-

out an established church but that has a legal inheritance established

at the time of the English Reformation in which it is understood that

churches are to be subject to the state. The common law inheritance of

Canada is not one of strict separation and exclusive jurisdictions, but

rather of the sovereignty of Parliament over all per sons and institutions

within Can ada.3

Since legal textbooks are la rgely exercises in historical wr iting, this

chapter necessarily ref‌lects Canada’s Christian religious and legal in-

heritances. While the 2011 National Household Survey re-conf‌irmed

the demographic predominance of Christianity in Canada, it may be

anticipated that future editions will ref‌lect the growing religious di-

versity of the country, should disputes erupt into the courts.

B. MEANING OF “CHURCH” AND “RELIGIOUS”

INSTITUTION

The courts have been required to consider the meaning of the word

“church” for the purposes of interpretation in a contract or conveyance

and for the purposes of determining the application of legislation. In

1887 in Bliss v. Christ Church, Fredericton,4 the court stated that “church”

signif‌ied either a place of Christian worship or a collective body of

Christian people having a common faith and doctrine, associated

together for worship under a creed and discipline. Limitation of the

use of the word “church” to Christian denominations was consistent-

1 Below section E(1).

2 Below section M.

3 See M.H. Ogilvie, “The L egal Status of Ecclesia stical Corporations” (1989) 74

Can. Bus. L.J. 74 at 80– 88; “Ecclesiastical L aw-Jurisdiction of Civi l Courts — Sta-

tus of Clergy: McCaw v. United Church of Cana da” (1992) 71 Can. Bar Rev. 597

at 601–10; and “Ecclesiastical L aw — Jurisdiction of Civ il Courts — Governing

Documents of Rel igious Organization s — Natural Justice: Lakeside Colony of

Hutterian Brethren v. Hofer” (1993) 72 Can. Bar Rev. 238 at 245– 49.

4 (1887), Tru. 314 (N.B.Q.B.).

Religious Or ganizations 219

ly found in succeeding cases as is the dual application to both an in-

dividual congregation and a collective body, or denomination def‌ined

by doctrine and discipline. Thus, in Huegli v. Pauli,5 the word “church”

was found to be used in these t wo distinct senses in a conveyance, to

refer to the Evangelical Lutheran Church and to a single congregation

of that church. To receive recognition in law as a “church,” an organ-

ization is required to have established rites and ceremonies and must

also provide for some regular ordination or appointment of those who

minister; a mere isolated or single congregation may not satisfy such

requisites.6

Judicial consideration of the meaning of “church” has been large-

ly superseded in the course of the twentieth century by amendment

of provincial legislation to encompass expressly an increasing num-

ber of religious institutions beyond the original number of Christian

denominations and congregations, provided such societies are charac-

terized by a common set of beliefs and goals. Such legislation is to be

construed liberally and not restrictively limited to Chr istianity.7 Thus,

the meanings of the legislative language, whether of “church,” “reli-

gious society,” “religious institution,” “religious organization,” or other

equivalent legislative language,8 have been considered by the courts in

three contexts.

First, the expansion of provincial legislation to permit a variety of

religious institutions to hold and use property for religious purposes

was interpreted liberally at the beginning of this century to f‌ind that

the Salvation Army was a Christian religious institution within the

applicable act, although on the facts of the case it was not a society an-

swerable in t ort.9 Secondly, provincial legislation in rel ation to authority

to solemnize marriages has been inter preted to recognize the minis-

ters of independent Protestant congregations10 and of the Mormons.11

Thirdly, federal conscription legislation has been interpreted to exempt

from conscription a duly recognized minister of a small Protestant

5 (1912), 4 D.L.R. 319 (Ont. H.C.).

6 R. v. Brown (1908), 17 O.L.R. 197 (C.A.).

7 R. v. Di ckou t (1893), 24 O.R. 250 (C.A.).

8 Each provi nce uses its own term inology; see, in relation to la nd-holding: Religious

Societies’ Land A ct, R.S.A. 2000, c. R-15; Trustee (Church Property) Act, R.S.B.C.

1996, c. 465; Religious Societies’ La nds Act, C.C.S.M. c. R-70; Religious Cong rega-

tions and Socie ties Act, R.S.N.S. 1989, c. 395; Religious Organizations’ Land s Act,

R.S.O. 1990, c. R.23; and Religious Socie ties’ Land Act, R.S.S. 1978, c. R-19.

9 Kingston v. Salvation Army (1904), 7 O.L.R. 681 (C.A.).

10 R. v. Brown (1908), 17 O.L.R. 197 (C.A.); and Victoria City Temple v. Thompson,

[1934] 3 W.W.R. 761 (B.C.S.C.).

11 R. v. D ickou t, above note 7.