Religious Organizations

• Author: M.H. Ogilvie
• Pages: 207-299

207

CHAPTER 8

RELIGIOUS

ORGA NIZ ATIONS

A. INTRODUCTION

Although churches and religious institutions exist primar ily for spirit-

ual and moral purposes, as human in stitutions exist ing in time and

place, they require both real a nd personal property in order to ca rry

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 necessar y for their work. The inter-

action of religious institutions with the civil law encompasses vi rtually

all those areas of the law that deal in any way w ith property. This is

ref‌lected in this chapter, which will consider the legal status of reli-

gious institutions and the role of the civil courts in relation to civil law

issues, incorporation, trusts and trustees, church off‌icers, real property

issues, tax ation, municipal zoning, wills and bequests, and the reso-

lution of church property disputes on the merger or dissolution of a

religious institution.

Historically, virtu ally all religious organizations in Can ada have

been Christi an and virtually all branches of the Christian church h ave

been represented here since the early nineteenth centur y. Therefore,

the law, both legislation and common law, relates almost entirely to

Christian denominations. It ref‌lects both problems that arise from the

three broad organizationa l patterns into which Chr istian denomina-

tions can be placed, episcopal, presbyterian, and congregational, and

certain phenomena in the religious h istory of Canada.

RELIGIOUS INSTITUTIONS AND THE LAW I N CA NADA208

The dominance of Anglicanism and t he temporal wealth of that

church in the nineteenth century is ref‌lected in a separate section,

1

exploring the large volume of case s in which the courts con sidered pe-

culiarly Anglican legal issues. The major schism with in the Protestant

communit y caused by the creation of t he United Chu rch of Can ada in

1925 is also ref‌lected in the bitter property dispute ca ses that followed.2

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

gious organizations remains an ever-present theme in a country w ith-

out an established church but that has a legal in heritance established

at the time of the English Reformation in which it is understood t hat

churches are to be subject to the state. The common law inherit ance 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 Canada.3

Since legal textbooks are l argely exercises in historical wr iting, this

chapter necessari ly ref‌lects Canada’s Christian religious and legal in-

heritances. While the 2001 Religion Census re-conf‌irmed the demo-

graphic predominance of Chri stianity in C anada, it may be anticipated

that future editions w ill ref‌lect the growing religious diversity of the

country, should disputes erupt into the courts.

B. ME A NING OF “CHU RCH” A ND “R ELIGIOUS”

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 determi ning the application of legislation. In

1887 i n Bliss v. Chri st Church, Fredericton,4 the court stated t hat “church”

signif‌ied either a place of Chri stian worship or a collective body of Chris-

tian people having a common faith and doctrine, as sociated together

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

word “church” to Christian denominations was consistently found in

1 Below section E(1).

2 Below section M.

3 See M.H. Ogilv ie, “The Legal Status of Ecclesia stical Corporations” (1989) 74

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

Status of Clerg y: McCaw v. United Church of Can ada” (1992) 71 Can. Ba r Rev. 597

at 601–10; and “Ecclesiastica l Law— Jurisdiction of Civ il Courts— Governing

Documents of Rel igious Organizat ions— Natural Justice: Lakesid e Colony of Hut-

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

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

Religious Organizations 209

succeeding cases a s is the dual application to both an individual congre-

gation 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 sense s in a conveyance, to refer to the Evan-

gelical Lutheran Church and to a single congregation of that church. To

receive recognition in law as a “church,” an organ ization is requ ired to

have established rites a nd ceremonies and must also provide for some

regular ordinat ion or appointment of those who minister; a mere iso-

lated or single congregation may not satisfy such requisites.6

Judicial consideration of the meaning of “church” has been largely

superseded in the course of the twentieth century by amendment of

provincial legislation to encompass expressly an increasing number

of religious institutions b eyond the original number of Chr istian de-

nominations and congregations, provided such societies are character-

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

construed libera lly and not restrictively limited to Christ ianity.7 Thus,

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

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

equivalent legislative langu age,8 have been considered by the courts in

three contexts.

First, the expansion of provincial legislation to perm it a variety of

religious institutions to hold and use property for religious purpose s

was interpreted liberally at t he beginning of this century to f‌ind th at

the Salvation Army was a Ch ristian rel igious institution wit hin 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 au-

thority to solemnize m arriages h as been interpreted to recognize the

ministers of independent Protest ant congregations10 and of the Mor-

mons.11 Thirdly, federal conscription legislation has been i nterpreted to

exempt from conscription a duly recognized minister of a small Prot-

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

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

7R. v. Dickout (1893), 24 O.R. 250 (C.A.).

8 Each province us es its own terminology ; see, in relation to land-holding:

Religious Societies’ L and Act, R.S.A. 2000, c. R-15; Trustee (Church Property) Act,

R.S.B.C. 1996, c. 465; Religious Societie s’ Lands Act, R.S.M. 1987, c. R-70; Reli-

gious Congregations a nd Societies Act, R.S.N.S. 1989, c. 395; Religious Organiza-

tions’ Land s Act, R.S.O. 1990, c. R.23; and Religious Societies’ Land Act, R.S.S.

1978, c. R-19.

9Kingston 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. Dickout, above note 7.