Religious Organizations
| Author | M.H. Ogilvie |
| Pages | 207-300 |
Chapter
Eight
Religious Organizations
A.
INTRODUCTION
Although
churches
and
religious institutions exist primarily
for
spiritual
and
moral purposes,
as
human institutions existing
in
time
and
place,
they
require both real
and
personal property
in
order
to
carry
out and
promote their spiritual
and
moral goals
in
this
world. Thus, religious
organizations
employ
the
vehicles
and
techniques
of the
common
law to
hold
and use
property necessary
for
their work.
The
interaction
of
reli-
gious institutions with
the
civil
law
encompasses virtually
all
those areas
of
the law
that deal
in any way
with property. This
is
reflected
in
this
chapter,
which will consider
the
legal status
of
religious institutions
and
the
role
of the
civil courts
in
relation
to
civil
law
issues, incorporation,
trusts
and
trustees, church
officers,
real property issues, taxation, munic-
ipal 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, presbyterian,
and
congregational,
and
certain phenom-
ena in the
religious history
of
Canada.
207
208
RELIGIOUS INSTITUTIONS
AND THE LAW
The
dominance
of
Anglicanism
and the
temporal wealth
of
that
church
in the
nineteenth century
is
reflected
in a
separate
section,1
exploring
the
large volume
of
cases
in
which
the
courts considered pecu-
liarly
Anglican legal issues.
The
major
schism within
the
Protestant com-
munity caused
by the
creation
of the
United Church
of
Canada
in
1925
is
also
reflected
in the
bitter property dispute cases that
followed.2
Final-
ly,
the
role
of the
civil courts
in
adjudicating disputes within religious
organizations
remains
an
ever-present
theme
in a
country without
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,
but
rather
of the
sovereignty
of
Parliament over
all
persons
and
institutions within
Canada.3
Since
legal textbooks
are
largely exercises
in
historical writing, this
chapter necessarily
reflects
Canada's Christian religious
and
legal
inheri-
tances.
While
the
1991 Religion Census re-confirmed
the
demographic
predominance
of
Christianity
in
Canada,
it may be
anticipated that
future
editions will
reflect
the
growing religious diversity
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*
the
court stated that "church"
signified
either
a
place
of
Christian worship
or a
collective body
of
Chris-
tian people having
a
common
faith
and
doctrine, associated together
for
1
Below
section E(l).
2
Below
section
M.
3 See
M.H.
Ogilvie,
"The
Legal
Status
of
Ecclesiastical Corporations"
(1989)
74
Can. Bus.
LJ.
74 at
80-88;
"Ecclesiastical Law-Jurisdiction
of
Civil
Courts
-
Status
of
Clergy:
McCaw
v.
United
Church
of
Canada"
(1992)
71
Can.
Bar
Rev.
597 at
601-610;
and
"Ecclesiastical
Law
-Jurisdiction
of
Civil Courts
-
Gov-
erning Documents
of
Religious Organizations
-
Natural Justice:
Lakeside
Colony
ofHutterian
Brethren
v.
Hofer"
(1993)
72
Can.
Bar
Rev.
238 at
245-249.
4
(1887),
Tru.
314
(N.B.
Q.B.).
Religious
Organizations
209
worship under
a
creed
and
discipline. Limitation
of the use of the
word
"church"
to
Christian denominations
was
consistently
found
in
succeed-
ing
cases
as is the
dual application
to
both
an
individual congregation
and a
collective body,
or
denomination
defined
by
doctrine
and
disci-
pline. Thus,
in
Huegli
v.
Pauli,5
the
word "church"
was
found
to be
used
in
these
two
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
organization
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
sin-
gle
congregation
may not
satisfy
such
requisites.6
Judicial consideration
of the
meaning
of
"church"
has
been largely
superceded
in the
course
of the
twentieth century
by
amendment
of
provincial legislation
to
encompass expressly
an
increasing number
of
religious institutions beyond
the
original number
of
Christian denomina-
tions
and
congregations, provided such societies
are
characterized
by a
common
set of
beliefs
and
goals. Such legislation
is to be
construed
lib-
erally
and not
restrictively limited
to
Christianity.7
Thus,
the
meanings
of
the
legislative language, whether
of
"church," "religious society," "reli-
gious institution"
or
"religious organization,"
or
other equivalent legisla-
tive
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
Sal-
vation
Army
was a
Christian religious institution within
the
applicable
act,
although
on the
facts
of the
case
it was not a
society answerable
in
tort.9
Secondly, provincial legislation
in
relation
to
authority
to
solemnize
marriages
has
been interpreted
to
recognize
the
ministers
of
independent
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.
Dickout
(1893),
24
O.R.
250
(C.A.).
8
Each
province
uses
its own
terminology;
see,
in
relation
to
land-holding:
Religious
Societies'
Land
Act,
R.S.A.
1980,
c.
R-14;
Trustee
(Church
Property)
Act,
R.S.B.C.
1996,
c.
465;
Religious Societies'
Lands
Act,
R.S.M.
1987,
c.
R-70; Religious
and
Charitable
Corporations
Property
Act,
R.S.N.S.
1989,
c.
394;
Religious
Congrega-
tions
and
Societies
Act,
R.S.N.S.
1989,
c.
395;
Act,
R.S.O.
1990,
c.
R-23;
and
Religious
Societies'Land
Act, R.S.S.
1978,
c.
R-19.
9
Kingston
v.
Salvation Army
(1904),
7
O.L.R.
681
(C.A.).
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