tag:blogger.com,1999:blog-759178030677978044.post3965439995090268577..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: O Tempora! The Law of Church Property (I)A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-759178030677978044.post-5803330982092379872009-06-23T12:48:13.988-07:002009-06-23T12:48:13.988-07:00This was the original argument of the NW ANiC pari...This was the original argument of the NW ANiC parishes. In the interlocutory proceedings in both British Columbia and Ontario it was the only argument made. (Not counting a futile constructive trust argument). (In making its case for interim possession of the buildings up to trial, ANiC was required to make known the elements of its case. The strength of that case, as preliminarily assessed, was a factor in the court's decision on interim relief — so we know its original arguments.) Relatively late in the period between initiation of the proceedings and trial, ANiC added an additional argument, which I will discuss shortly.<br /><br />From the "Introduction to the Case"...I would quote the paragraph for you, but my "Select Text" is not working today with pdf documents. It is<br /> para. 11 here: http://www.vancouver.anglican.ca/Portals/0/Images/Programs/Court/Court-Plainti ffIntroduction.pdf (BTW, does this format support the direct HTML "create link" language?)<br /><br />The original purposes of the Church are argued to include, vitally, the Solemn Declartion of 1896, a statement approved by the first General Synod upon the establishment of the ACoC as an independent entity. Of great importance is the SA's statement that the Church intends to be in Communion with "the Church of England throughout the world". [Whoever included the words "throughout the world" in that document did something that had greater consequences than he could have imagined. Without those words AniC has no case.] It is also alleged that the ACoC has departed from the original purposes in its approach to the deity of Christ, the authority of Scripture, and various other doctrines. And of course same-sex blessings — although AniC has intentionally deemphasized this decision alone in its legal arguments. I believe that AniC is thereby tacitly conceding, correctly, that SSBs in themselves are not sufficient to win an original purposes argument.<br /><br />Relatively late in the game, not that long before trial ANiC added an additional argument, on which we now seem to place as much or more emphasis as the OP argument. It is a cy pres argument based on an English precedent of 1999, <i>Varsani v. Jesani</i>. (The reasons of decision in <i>Varsani</i> are available<br />via Internet for free but I don't have the URL at hand; should someone wish to see the case, indicate in the comments). The power of the cy pres argument is that it allows the judge to split the assets between the contending parties as he sees fit, a completely equitable judgment, unfettered by any rules whatsoever. As a matter of psychology, rather than law, it is thot that this argument might appeal to the type of person who might reason, "Both of these groups are Anglican in some sense, but neither completely fulfils the original purposes. The ACoC is in Communion with the +++ABC and the ACC etc., but out of communion with two-thirds plus of its members. AniC is small but in communion with the Global South and the votes in the congregations were overwhelming....let's split the assets 50/50."<br /><br />There is an immense problem with the <i>Varsani</i> argument: the decision was based not on common law cy pres doctrine, but on a statute reforming cy pres doctrine. The English court specifically stated that it could not have imposed its division-of-assets remedy without the statute. ANiC counsel has attempted to persuade the court that it has the power to use similar reasoning in B.C., absent any statute expanding cy pres power beyond the common law.<br /><br />Judgement not expected until October or thereafter.Alan Stewarthttps://www.blogger.com/profile/00413914847275660133noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-11639961490212793812009-06-21T14:22:00.189-07:002009-06-21T14:22:00.189-07:00Thank you for that informative comment, Alan Stewa...Thank you for that informative comment, Alan Stewart. Are the parishes in the court in British Columbia asking it to apply the "implied trust" doctrine, and to find that they get to keep their properties on the basis that they are the ones adhering more closely to the religious principles that were observed by the denomination when they acquired their respective properties?A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-60077777628064040962009-06-20T15:47:46.510-07:002009-06-20T15:47:46.510-07:00Thank you so much for this essay. In the course of...Thank you so much for this essay. In the course of researching the Canadian law on the subject, I out of curiosity made a mental note to try to find out when and why American courts had rejected the "implied trust" doctrine. You have saved me that effort.<br /><br />The implied trust doctrine is still the law in England and Canada. Nor have the courts shown any aversion to the logical consequences of the "original purposes" rule with its implication that a small minority might come to own church properties by virtue of having adhered to those original doctrines deemed fundamental. In the leading case, a small minority of a denomination inherited all its property after the denomination merged with another, thereby abandoning its original doctrines on the predestination of the elect to damnation and on the duty of the state to aid the Christian church generally: <i>Free Church of Scotland v. Overtoun</i> [1904] A. C. 515 (H.L.). The decision raised such a public outcry that Parliament stepped in and enacted a more equitable distribution. The strongest statement of the rule in Canada came from the Manitoba Court of Appeal: "As a rule, where a church organization is formed for the purpose of promoting certain defined doctrones of religion, the church property which it acquires is impressed with a trust to carry out that purpose, and a majority cannot divert the property to inconsistent uses against the protest of a minority however small": <i> Anderson v. Gislason</i> (1920), 53 D.L.R. 491 (Man. C.A.) <i>per</i> Donnistoun J.A. concurring at 502-3.<br /><br />The doctrine, although formally still clear black letter law, has an anachronistic air to it, belonging to a day when any Christian gentleman one might find presiding over a court of law could be expected to be at ease discussing at length the meaning and effects of the disappearance of one doctrinal statement in any denomination and its replacement with another and the question whether such a change was or was not "fundamental". (Although the courts have sometimes found themselves confounded by doctrinal disputes in smaller denominations In a case involving doctrinal disputes among Quakers, Ontario Chief Justice Hagerty said "I frankly confess that many of them involve metaphysical distinctions and subtleties, which are beyond my mental powers to distinguish, much less to determine.") I would not be surprised to see the courts find a way to jettison the original purposes rule some day.<br /><br />In the recently argued British Columbia litigation counsel for the Diocese of New Westminster mafe the argument, utterly meritless as far as I can tell, that the doctrines of the U.S. and Canada on the subject were essentially the same, brandishing the latest hot-off-the-presses decision from California and inviting the court to follow the American lead.Alan Stewarthttps://www.blogger.com/profile/00413914847275660133noreply@blogger.com