RR 6
71 Blackburn Road
Renfrew, Ontario
K7V 3Z9
613-433-8227
rev@magma.ca
August 21, 2006

Secretary, Judicial Committee
The United Church of Canada
3250 Bloor Street West  Suite 300
Toronto, Ontario
M8X 2Y4

Antecedent
- Appeal

Appended
- Request for ruling dated 13/06/06
- Ruling 06-009-R dated 11/07/06
- Main vs. The United Church of Canada
- Aird v. Johnson [1929] 4 D.L.R 664
- Ferguson v. MacLean  RS48 - 1926 #101, Chancery Division
- Ferguson v. MacLean  New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 257
- Ferguson v. MacLean  1930 S.C.R. 630
- Respondent Factum, Ferguson v. MacLean  1930 S.C.R. 630
- 1874 c. 75 An Act respecting the union of certain Presbyterian Churches therein named  Ontario
- 1875 c. 48 An Act concerning the Congregations of Churches connected with the Church of Scotland in this Province  New Brunswick
- 1875 c. 99 An Act respecting the union of certain Presbyterian Churches therein named  New Brunswick
- 1900 c. 135 An Act incorporating the Board of Trustees of the Presbyterian Church in Canada  Ontario
- 1900 c. 34 An Ordinance to incorporate the Board of Trustees of the Presbyterian Church in Canada.  North-West Territories [applies to Alberta and Saskatchewan]
- 1907 c. 79 An Act to incorporate The Board of Trustees of the Presbyterian Church in Canada, Eastern Section  New Brunswick
- 1922 c. 88 An Act to amend The Ordinance incorporating the Board of Trustees of the Presbyterian Church in Canada.  Alberta
- 1924 c. 59 The United Church of Canada Act  New Brunswick
- 1924 c. 100 The United Church of Canada Act  Canada
- 1925 c. 125 An Act respecting the Union of certain Churches therein named.  Ontario

Attached separately
- transcript of Ferguson v. MacLean 1930 S.C.R. 630

Grounds for Appeal:
i. the failure of the Court that made the Decision against which the Appeal is being made to consider the matter as completely as practicable;

The text of the ruling references the Basis of Union

the text of the ruling relies on bylaw section 266(a) interpreting reversionary interest as excluding real property of former Presbyterian congregations from the above exception

the respondent was aware of Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 specifically rejecting such interpretation of reversionary interest as excluding property of former Presbyterian congregations from the above exception

     a. the majority opinion expressed by three of the four judges in the Supreme Court of Ontario decision Aird v. Johnson [1929] 4 D.L.R. 664

     b. the majority opinion expressed by four of the five judges in the Supreme Court of Canada decision Ferguson v. MacLean 1930 S.C.R. 630

     c. Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 interpretation of sections 6 and 8 of the Provincial and Dominion Acts respectively was not incidental

the respondent was aware bylaw section 266(a) relies solely on former bylaw section 112(b) for its authority without any other action by the General Council; and

the respondent was aware former bylaw section 112(b) has questions of competency relating to Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630; and

the respondent was aware former bylaw section 112(b) interpretation was ultra vires the General Council if minutes confirming Conference(s) approval were not found as required by the conditions and safeguards of The United Church of Canada Act and the Basis of Union; and

the respondent was aware Alberta has statute incorporating the Board of Trustees of the Presbyterian Church in Canada which includes "which congregation shall have ceased to exist or has become disorganized shall vest in the said board of trustees" questioning the factual competency of bylaw section 266(a)

the respondent was aware Newfoundland has no statute incorporating the Board of Trustees of the Presbyterian Church in Canada questioning the factual competency of bylaw section 266(a), [the 1946 rewording of former bylaw section 78(a) "in all the Provinces except..." became inaccurate when Newfoundland became a province March 31, 1949, though no former Presbyterian Church in Canada congregation from that province entered the Union of 1925]; and

the respondent was aware of the Basis of Union requirements relating to legislating and administrating bylaws; and

the respondent was aware the deficiencies of bylaw section 266(a), formerly 112(b), have been recited from an early date so as to be constructive to the thought, interpretation, directives, and history of the church; and

the respondent was aware or ought to have been aware that the competency of bylaw 266(a) was critical to the ruling; and

the text of the ruling
 i. gives no evidence that the competency of bylaw section 266(a) was considered; and
 ii. continues to rely on bylaw section 266(a) as the only authority for interpreting "whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation"; and
 iii. persists in reciting these deficiencies;

the ruling failed to consider the matter as completely as practical.


ii. an injustice in the disposition of the matter;

The respondent was aware of the Basis of Union requirements relating to legislating and administrating bylaws; and

the respondent was aware or ought to have been aware that the competency of bylaw 266(a) was critical to the ruling; and

the request for ruling included sufficient evidence to warrant considering the competency of bylaw section 266(a) as the only authority for interpreting "whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation"; and

the respondent was aware bylaw section 266(a) relies solely on former bylaw section 112(b) for its authority without any other action by the General Council; and

the respondent was aware former bylaw section 112(b) has questions of competency relating to Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630; and

the respondent was aware former bylaw section 112(b) interpretation was ultra vires the General Council if minutes confirming Conference(s) approval were not found as required by the conditions and safeguards of The United Church of Canada Act; and

the respondent was aware Alberta has statute incorporating the Board of Trustees of the Presbyterian Church in Canada which includes "which congregation shall have ceased to exist or has become disorganized shall vest in the said board of trustees" questioning the factual competency of bylaw section 266(a); and

the respondent was aware Newfoundland has no statute incorporating the Board of Trustees of the Presbyterian Church in Canada questioning the factual competency of bylaw section 266(a); and

the respondent was aware the deficiencies of bylaw section 266(a), formerly 112(b), have been recited from an early date so as to be constructive to the thought, interpretation, directives, and history of the church; and

the ruling not considering the competency of bylaw section 266(a) is an injustice in the disposition of the matter.


iii. that the Decision was against the evidence and the weight of the evidence;

The text of the ruling relies on bylaw section 266(a) as the only authority for interpreting "whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation"; and

bylaw section 266(a) relies solely on former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, for its authority without any other action by the General Council;

years # text authorization
1995- 266(a) Where No Denominational Interest. Any property or funds owned by a Pastoral Charge or Congregation at the time of Church Union solely for its own benefit and not for the benefit of the denomination of which it formed a part shall not be held under the Trusts of Model Deed unless and until, at a meeting of such Pastoral Charge or Congregation regularly called for the purpose, it consents that it shall so be held. Where the Pastoral Charge or Congregation has not given such consent, the consent of the Presbytery is not required for sale, mortgage, exchange, or lease of Real Property pertaining to a Pastoral Charge or Congregation. (In no province except Alberta and Saskatchewan is any Real Property of a former Presbyterian congregation included in this exception, as the provincial statutes incorporating the Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist. No Real Property of a former Methodist congregation is included in this exception, as under legislation affecting the Methodist Church the denomination had an interest in the Real Property of all Methodist congregations. The exception does apply to property of a congregation of the former Congregational Churches.) none
1985-1993 261 (b) It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 261 (a) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist. It should also be noted that no real property of a former Methodist congregation is included in exception 261 (a), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist congregations. The exception does apply to property of a congregation of the former Congregational Churches. none

note: later versions read
"former Methodist Congregation",
"Congregation of the former Congregational Churches"

1967-1983 112 (b) It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 112 (a) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of a former Methodist Congregation is included in exception 112 (a), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist congregations. The exception does apply to property of a Congregation of the former Congregational Churches. re-arrangement/re-numbering
1962 General Council
rop pp77, 569-575 "it was moved, seconded and agreed, that the proposed revisions to the Manual be referred to the Executive or Sub-Executive of the General Council with Power to act";
1964 General Council
rop pp64, 451-453 "the Committee has discussed a major change in the arrangement and format of the Manual and recommends the Standing Committee on the Manual be authorized to consider, among others, the following suggestions:
"(a) The re-arrangement of the by-laws of the Manual so that the related subject matter would be brought together;
"(b) the re-numbering of the Sections of the Manual with fifty or one hundred numbers assigned to each major division, so that subsequent amendments would not involve re-numbering all subsequent Sections;
"(c) The use of a loose-leaf binder, with revisions printed on additional pages together with a new index. The pages of revisions would be supplied to all Ministers of the Church after every General Council, with the expectation that a completely new Manual would have to be published every ten years. The additional pages might be a distinctive colour so that recent amendments to the Manual could receive attention and rules of debate as they apply to the Church Courts";
1966 General Council
rop pp72, 542-549 "...that the Standing Committee on the Manual be given authority to re-edit the Manual, making changes to the wording of the by-laws that will eliminate redundancies and clarify meaning, especially where archaic phrases are used; and re-organize the contents of the Manual in more logical sequence and with a block-numbering of sections. The following is a preliminary draft of such re-arrangement...";
1968 General Council
rop pp72, 447-450 "That the Executive of General Council approve the revised wording of the Manual as submitted by the Standing Committee on the Manual, subject to such editorial changes as may need to be made;
"That the text of The United Church of Canada Act be omitted from the Manual and that instead there be included the names and designations of The United Church of Canada Act and also the corresponding Provincial Acts; and also the 'Appendix on Law' following the Basis of Union in the present Manual, and Schedule C re Colleges be omitted";

1976
year book pp9, 12, 13 interpreted the Judicial Committee ruling [1977 rop p646] without qualification "no basic changes in the Manual could be made without action of the General Council"

note: later versions read
"112 (a)",
"should the congregation cease to exist",
"former Methodist congregation",
"congregation of the former Congregational Churches"

1964 77. (a) The property of a Congregation covered by exception 76 (b) will not be held under the Model Trust Deed unless and until such Congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 76 (b) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of a former Methodist Congregation is included in exception 76 (b), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist Congregations. The exception does apply to property of a Congregation of the former Congregational Churches. none
1946-1962 78. (a) The property of a Congregation covered by exception 77 (b) will not be held under the Model Trust Deed unless and until such Congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 77 (b) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of a former Methodist Congregation is included in exception 77 (b), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist Congregations. The exception does apply to property of a Congregation of the former Congregational Churches. re-numbering
1946 General Council
rop pp36, 41, 48 minutes adopted bylaws 1-100

note: 1946 uses "Methodists...33 (b)" in error
1929-1944 34. (a) The property of a Congregation covered by exception 33, (b), will not be held under the Model Trust Deed unless and until such Congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted, however, that in nearly all the Provinces no real property of any former Presbyterian Congregation is included in exception 33, (b), as the different Provincial statutes incorporating The Board of Trustees of The Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of any former Methodist Congregation is included in exception 33, (b), as under the legislation affecting the Methodist Church, the denomination had an interest in the real property of all Methodist Congregations. 1928 General Council
rop pp67, 110-118 referred to Executive with power to issue revised edition, subject to revision and amendment by the next General Council;
1929 year book/rop pp18, 37-8 revised Manual...
1928 34. The property of a Congregation covered by exception 33, (b), will not be held under the Model Trust Deed unless and until such congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted, however, that in all the Provinces no real property of any former Presbyterian Congregation is included in exception 33, (b), as the different Provincial statutes incorporating The Board of Trustees of The Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist. It should also be noted that no real property of any former Methodist Congregation is included in exception 33, (b), as under the legislation affecting the Methodist Church, the denomination had an interest in the real property of all Methodist congregations. 1925 General Council
year book/rop p36 "the {Executive} Committee may appoint Committees from among the members, or otherwise, for inquiry and report to it, or for such other purposes as it may direct";
1926 General Council
year book/rop p71 "that a book of rules and regulations...with the exception of items re the Ministry, be referred to the Executive Committee with power to issue;
1927 Executive Committee
year book p10, "The report on Undeferred Areas, with the exception of items regarding the Ministry, and the Seal, with instructions to the Executive Committee concerning the name to be used as title of the Book, with the memorials which had been referred to the Committee on unreferred Areas, and any other memorials not dealt with by the Council referred to the Executive Committee by the General Council, were referred to a special Committee to be called the committee on Procedure and Government, to report to a subsequent meeting of the Executive Committee;
1927 Sub-Executive
year book pp29-30 Report Committee on Procedure and Government
"...and the Book be issued as directed by the General Council, stating that while it is for the time being for the guidance of the whole Church, it is 'subject to revision and amendment by the next General Council.'";
year book pp41-42 "On motion further consideration of the report of the Committee on Procedure and Government was deferred until the next meeting of the Executive Committee; each member of the Executive was requested to give consideration to the report and send forward any suggestions at as early date as possible, to enable the presentation of a complete report to the next meeting of this Executive Committee.
"The present report, and further sections as they be prepared, were ordered to be submitted as soon as prepared to the Committee on Law and Legislation, and the recommendation already adopted regarding issuance was reconsidered and deleted.";
1928 Sub-Executive
year book/rop p142 "The Committee on Procedure and Government was instructed to complete its work in the preparation of The Manual, and issue the same at the earliest possible date, through the Executive Committee, according to the directions of the General Council";
year book/rop p145 "The Committee on Procedure and Government presented its final report as directed by the Executive. Copies had been sent to the members of the Committee on Law and Legislation and members of the Executive.
"On motion, it was agreed that the report of the Committee be adopted: that the Committee be authorized to proceed with the printing of sufficient copies to meet the demand of the Church, making prominent in the publicity given in the Church press the statement that the book is 'issued under the authority of the General Council of 1926, by the Executive, subject to revision and amendment by the next General Council.'";
1928 General Council
rop p156 The Manual published March 24, 1928

[notes:
 a. a review of The Manual from 1928 to 2004 cross referenced to minutes reveals bylaws relating to property almost singularly lack the required approval for editorial changes, deletions, insertions, and renumbering required of other bylaw changes;
 b. bylaw section 266(a), formerly bylaw sections 261(b), 112(b), 77(a), 78(a), has factual errors relating to "in no province except Alberta" as described above, "i. the failure of the Court that made the Decision against which the Appeal is being made to consider the matter as completely as practicable;"].

As the ruling relies solely on "interpretation of church polity as set out in The Manual" a necessary prerequisite to authority claimed by the respondent is that the authority have specific lawful authorization by the General Council or, prior to 1976, its Executive/Sub-Executive. From the above table it is seen that bylaw section 266(a) derives its authority from former bylaw sections 112(b), 78(a), 34(a), 34 as the only texts authorized by the General Council or its Executive/Sub-Executive. The minutes as found in the Record of Proceedings and Year Books give no other indication of any other approval by the General Council or Executive/Sub-Executive, and as noted the 1976 Year Book interpreted the Judicial Committee ruling [1977 rop p646] without qualification "no basic changes in the Manual could be made without action of the General Council"; and

the former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, interpretation

was ultra vires the General Council without minutes confirming Conference(s) approval as required by the conditions and safeguards of The United Church of Canada Act, where the minutes of
 i. all Conferences from 1925 to 1930;
 ii. the Record of Proceedings from 1925 to 2003;
 iii. the Year Book from 1926 to 2005;
and the archived records of
 iv. the Committee on Procedure and Government;
 v. the Committee on Law and Legislation;
 vi. the Manual Committee;
failed to offer any indication that the required approval of Conference(s) was ever requested, considered, or approved with respect to

and the safeguard explicitly requires approval, not simply lack of dissent, which is not found in the minutes, and without minute the required approval was not given by the Conference(s) making the referenced legislation and administration of former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, interpretation ultra vires the General Council;

the legislators, as interpreted by the respective Supreme Courts of the Province and Dominion, did not intend the section incorporating the Board of Trustees of the former Presbyterian Church in Canada
"all lands and premises which have been or shall hereafter at any time be held by any trustee or trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the said Board of Trustees on trust to sell the same and pay over the proceeds of the said sale to the Treasurer of the said Church for the benefit of the Home Mission scheme thereof or as may be otherwise determined by the General Assembly of the said Church"
to operate on the interests of the congregation for properties which otherwise would be excepted per sections six and eight of the Provincial and Dominion Acts respectively

     a. the majority opinion expressed by three of the four judges in the Supreme Court of Ontario decision Aird v. Johnson [1929] 4 D.L.R. 664

     b. the majority opinion expressed by four of the five judges in the Supreme Court of Canada decision Ferguson v. MacLean 1930 S.C.R. 630

     c. the apparent bias in reporting litigation relating to "and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise"

The United Church of Canada as respondent was intimately aware of Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630; and

the interpretation of sections 6 and 8 of the Provincial and Dominion Acts respectively in Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 relates to a class of congregations that find themselves in the same relationship to the former Presbyterian Church in Canada as St. Andrew's Presbyterian Church and St. James Presbyterian Church in Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 respectively, namely, congregations subject to provincial statute incorporating the Board of Trustees of the former Presbyterian Church in Canada which includes
"all lands and premises which have been or shall hereafter at any time be held by any trustee or trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the said Board of Trustees on trust to sell the same and pay over the proceeds of the said sale to the Treasurer of the said Church for the benefit of the Home Mission scheme thereof or as may be otherwise determined by the General Assembly of the said Church"; and

the class of congregations that find themselves in the same relationship to the former Presbyterian Church in Canada as St. Andrew's Presbyterian Church and St. James Presbyterian Church in Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 respectively is the subject of the referenced former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), interpretation

which interpretation was thereby ultra vires the Conference(s) and the General Council being inconsistent with the requirement of The United Church of Canada Act to authorize only lawful acts or things, of which requirement the Basis of Union may not be inconsistent, as interpreted by the law applicable at the time, as the legislators, interpreted by the respective Supreme Courts of the Province and Dominion, did not intend the section incorporating the Board of Trustees of the former Presbyterian Church in Canada
"all lands and premises which have been or shall hereafter at any time be held by any trustee or trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the said Board of Trustees on trust to sell the same and pay over the proceeds of the said sale to the Treasurer of the said Church for the benefit of the Home Mission scheme thereof or as may be otherwise determined by the General Assembly of the said Church"
to operate on the interests of the congregation for properties which otherwise would be excepted per sections six and eight of the Provincial and Dominion Acts respectively; and

without specific lawful authorization by the General Council bylaw section 266(a) cannot convey a different authority from that required of former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, by The United Church of Canada Act and The Basis of Union; and

the text of the ruling offers no lawful authorization by the General Council for interpreting "whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation";

without specific lawful authorization by the General Council the ruling is against the evidence and the weight of the evidence.


iv. that the Decision was wrong in law;

The Basis of Union is the authority by which the United Church of Canada functions

The United Church of Canada Act authorizes

the Basis of Union safeguard related to all matters respecting property provides

the Basis of Union exempts certain properties

The United Church of Canada Act authorizes only lawful acts or things

legislating and administering bylaws are "lawful acts or things"; and

the former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, interpretation

was ultra vires the General Council without minutes confirming Conference(s) approval as required by the conditions and safeguards of The United Church of Canada Act, where the minutes of
 i. all Conferences from 1925 to 1930;
 ii. the Record of Proceedings from 1925 to 2003;
 iii. the Year Books from 1926 to 2005;
and the archived records of
 iv. the Committee on Procedure and Government;
 v. the Committee on Law and Legislation;
 vi. the Manual Committee;
failed to find any indication that the required approval of Conference(s) was ever requested, considered, or approved with respect to

and the safeguard explicitly requires approval, not simply lack of dissent, which is not found in the minutes, and without minute the required approval was not given by the Conference(s) making the referenced legislation and administration of former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, interpretation ultra vires the General Council; and

The United Church of Canada as respondent was intimately aware of Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630; and

the interpretation of sections 6 and 8 of the Provincial and Dominion Acts respectively in Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 relates to a class of congregations that find themselves in the same relationship to the former Presbyterian Church in Canada as St. Andrew's Presbyterian Church and St. James Presbyterian Church in Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 respectively, namely, congregations subject to provincial statutes incorporating the Board of Trustees of the former Presbyterian Church in Canada which include
"all lands and premises which have been or shall hereafter at any time be held by any trustee or trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the said Board of Trustees on trust to sell the same and pay over the proceeds of the said sale to the Treasurer of the said Church for the benefit of the Home Mission scheme thereof or as may be otherwise determined by the General Assembly of the said Church"; and

the class of congregations that find themselves in the same relationship to the former Presbyterian Church in Canada as St. Andrew's Presbyterian Church and St. James Presbyterian Church in Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 respectively is the subject of the referenced former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), interpretation

which interpretation was thereby ultra vires the Conference(s) and the General Council being inconsistent with the requirement of The United Church of Canada Act to authorize only lawful acts or things, of which requirement the Basis of Union may not be inconsistent, as interpreted by the law applicable at the time, as the legislators, interpreted by the respective Supreme Courts of the Province and Dominion, did not intend the section incorporating the Board of Trustees of the former Presbyterian Church in Canada
"all lands and premises which have been or shall hereafter at any time be held by any trustee or trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the said Board of Trustees on trust to sell the same and pay over the proceeds of the said sale to the Treasurer of the said Church for the benefit of the Home Mission scheme thereof or as may be otherwise determined by the General Assembly of the said Church"
to operate on the interests of the congregation for properties which otherwise would be excepted per sections six and eight of the Provincial and Dominion Acts respectively; and

bylaw section 266(a) relies solely on former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, for its authority without any other action by the General Council; and

without specific lawful authorization by the General Council bylaw section 266(a) cannot convey a different authority from that required of former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, by The United Church of Canada Act and The Basis of Union; and

the text of the ruling offers no lawful authorization by the General Council for interpreting "whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation";

without specific lawful authorization by the General Council the ruling is wrong in law.


v. the availability of newly discovered evidence that might have an important bearing on the case;

 i. bylaw section 266(a) relies solely on former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, for its authority without any other action by the General Council;

years # text authorization
1995- 266(a) Where No Denominational Interest. Any property or funds owned by a Pastoral Charge or Congregation at the time of Church Union solely for its own benefit and not for the benefit of the denomination of which it formed a part shall not be held under the Trusts of Model Deed unless and until, at a meeting of such Pastoral Charge or Congregation regularly called for the purpose, it consents that it shall so be held. Where the Pastoral Charge or Congregation has not given such consent, the consent of the Presbytery is not required for sale, mortgage, exchange, or lease of Real Property pertaining to a Pastoral Charge or Congregation. (In no province except Alberta and Saskatchewan is any Real Property of a former Presbyterian congregation included in this exception, as the provincial statutes incorporating the Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist. No Real Property of a former Methodist congregation is included in this exception, as under legislation affecting the Methodist Church the denomination had an interest in the Real Property of all Methodist congregations. The exception does apply to property of a congregation of the former Congregational Churches.) none
1985-1993 261 (b) It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 261 (a) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist. It should also be noted that no real property of a former Methodist congregation is included in exception 261 (a), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist congregations. The exception does apply to property of a congregation of the former Congregational Churches. none

note: later versions read
"former Methodist Congregation",
"Congregation of the former Congregational Churches"

1967-1983 112 (b) It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 112 (a) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of a former Methodist Congregation is included in exception 112 (a), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist congregations. The exception does apply to property of a Congregation of the former Congregational Churches. re-arrangement/re-numbering
1962 General Council
rop pp77, 569-575 "it was moved, seconded and agreed, that the proposed revisions to the Manual be referred to the Executive or Sub-Executive of the General Council with Power to act";
1964 General Council
rop pp64, 451-453 "the Committee has discussed a major change in the arrangement and format of the Manual and recommends the Standing Committee on the Manual be authorized to consider, among others, the following suggestions:
"(a) The re-arrangement of the by-laws of the Manual so that the related subject matter would be brought together;
"(b) the re-numbering of the Sections of the Manual with fifty or one hundred numbers assigned to each major division, so that subsequent amendments would not involve re-numbering all subsequent Sections;
"(c) The use of a loose-leaf binder, with revisions printed on additional pages together with a new index. The pages of revisions would be supplied to all Ministers of the Church after every General Council, with the expectation that a completely new Manual would have to be published every ten years. The additional pages might be a distinctive colour so that recent amendments to the Manual could receive attention and rules of debate as they apply to the Church Courts";
1966 General Council
rop pp72, 542-549 "...that the Standing Committee on the Manual be given authority to re-edit the Manual, making changes to the wording of the by-laws that will eliminate redundancies and clarify meaning, especially where archaic phrases are used; and re-organize the contents of the Manual in more logical sequence and with a block-numbering of sections. The following is a preliminary draft of such re-arrangement...";
1968 General Council
rop pp72, 447-450 "That the Executive of General Council approve the revised wording of the Manual as submitted by the Standing Committee on the Manual, subject to such editorial changes as may need to be made;
"That the text of The United Church of Canada Act be omitted from the Manual and that instead there be included the names and designations of The United Church of Canada Act and also the corresponding Provincial Acts; and also the 'Appendix on Law' following the Basis of Union in the present Manual, and Schedule C re Colleges be omitted";

1976
year book pp9, 12, 13 interpreted the Judicial Committee ruling [1977 rop p646] without qualification "no basic changes in the Manual could be made without action of the General Council"

note: later versions read
"112 (a)",
"should the congregation cease to exist",
"former Methodist congregation",
"congregation of the former Congregational Churches"

1964 77. (a) The property of a Congregation covered by exception 76 (b) will not be held under the Model Trust Deed unless and until such Congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 76 (b) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of a former Methodist Congregation is included in exception 76 (b), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist Congregations. The exception does apply to property of a Congregation of the former Congregational Churches. none
1946-1962 78. (a) The property of a Congregation covered by exception 77 (b) will not be held under the Model Trust Deed unless and until such Congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted that in all the Provinces except Alberta and Saskatchewan no real property of a former Presbyterian Congregation is included in exception 77 (b) as the Provincial statutes incorporating The Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of a former Methodist Congregation is included in exception 77 (b), as under legislation affecting the Methodist Church the denomination had an interest in the real property of all Methodist Congregations. The exception does apply to property of a Congregation of the former Congregational Churches. re-numbering
1946 General Council
rop pp36, 41, 48 minutes adopted bylaws 1-100

note: 1946 uses "Methodists...33 (b)" in error
1929-1944 34. (a) The property of a Congregation covered by exception 33, (b), will not be held under the Model Trust Deed unless and until such Congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted, however, that in nearly all the Provinces no real property of any former Presbyterian Congregation is included in exception 33, (b), as the different Provincial statutes incorporating The Board of Trustees of The Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the Congregation cease to exist. It should also be noted that no real property of any former Methodist Congregation is included in exception 33, (b), as under the legislation affecting the Methodist Church, the denomination had an interest in the real property of all Methodist Congregations. 1928 General Council
rop pp67, 110-118 referred to Executive with power to issue revised edition, subject to revision and amendment by the next General Council;
1929 year book/rop pp18, 37-8 revised Manual...
1928 34. The property of a Congregation covered by exception 33, (b), will not be held under the Model Trust Deed unless and until such congregation at a meeting thereof, regularly called for the purpose, consents that it shall be so held. It should be noted, however, that in all the Provinces no real property of any former Presbyterian Congregation is included in exception 33, (b), as the different Provincial statutes incorporating The Board of Trustees of The Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist. It should also be noted that no real property of any former Methodist Congregation is included in exception 33, (b), as under the legislation affecting the Methodist Church, the denomination had an interest in the real property of all Methodist congregations. 1925 General Council
year book/rop p36 "the {Executive} Committee may appoint Committees from among the members, or otherwise, for inquiry and report to it, or for such other purposes as it may direct";
1926 General Council
year book/rop p71 "that a book of rules and regulations...with the exception of items re the Ministry, be referred to the Executive Committee with power to issue;
1927 Executive Committee
year book p10, "The report on Undeferred Areas, with the exception of items regarding the Ministry, and the Seal, with instructions to the Executive Committee concerning the name to be used as title of the Book, with the memorials which had been referred to the Committee on unreferred Areas, and any other memorials not dealt with by the Council referred to the Executive Committee by the General Council, were referred to a special Committee to be called the committee on Procedure and Government, to report to a subsequent meeting of the Executive Committee;
1927 Sub-Executive
year book pp29-30 Report Committee on Procedure and Government
"...and the Book be issued as directed by the General Council, stating that while it is for the time being for the guidance of the whole Church, it is 'subject to revision and amendment by the next General Council.'";
year book pp41-42 "On motion further consideration of the report of the Committee on Procedure and Government was deferred until the next meeting of the Executive Committee; each member of the Executive was requested to give consideration to the report and send forward any suggestions at as early date as possible, to enable the presentation of a complete report to the next meeting of this Executive Committee.
"The present report, and further sections as they be prepared, were ordered to be submitted as soon as prepared to the Committee on Law and Legislation, and the recommendation already adopted regarding issuance was reconsidered and deleted.";
1928 Sub-Executive
year book/rop p142 "The Committee on Procedure and Government was instructed to complete its work in the preparation of The Manual, and issue the same at the earliest possible date, through the Executive Committee, according to the directions of the General Council";
year book/rop p145 "The Committee on Procedure and Government presented its final report as directed by the Executive. Copies had been sent to the members of the Committee on Law and Legislation and members of the Executive.
"On motion, it was agreed that the report of the Committee be adopted: that the Committee be authorized to proceed with the printing of sufficient copies to meet the demand of the Church, making prominent in the publicity given in the Church press the statement that the book is 'issued under the authority of the General Council of 1926, by the Executive, subject to revision and amendment by the next General Council.'";
1928 General Council
rop p156 The Manual published March 24, 1928

[notes:
 a. a review of The Manual from 1928 to 2004 cross referenced to minutes reveals bylaws relating to property almost singularly lack the required approval for editorial changes, deletions, insertions, and renumbering required of other bylaw changes;
 b. bylaw section 266(a), formerly bylaw sections 261(b), 112(b), 77(a), 78(a), has factual errors relating to "in no province except Alberta" as described above, "i. the failure of the Court that made the Decision against which the Appeal is being made to consider the matter as completely as practicable;"].

As the ruling relies solely on "interpretation of church polity as set out in The Manual" a necessary prerequisite to authority claimed by the respondent is that the authority have specific lawful authorization by the General Council or, prior to 1976, its Executive/Sub-Executive. From the above table it is seen that bylaw section 266(a) derives its authority from former bylaw sections 112(b), 78(a), 34(a), 34 as the only texts authorized by the General Council or its Executive/Sub-Executive. The minutes as found in the Record of Proceedings and Year Books give no other indication of any other approval by the General Council or Executive/Sub-Executive, and as noted the 1976 Year Book interpreted the Judicial Committee ruling [1977 rop p646] without qualification "no basic changes in the Manual could be made without action of the General Council".

 ii. the referenced legislation and administration of former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, interpretation

were ultra vires the General Council without Conference(s) approval as required by the conditions and safeguards of The United Church of Canada Act and the Basis of Union;

 iii. the Aird v. Johnson [1929] 4 D.L.R. 664 interpretation of section 5 of the 1900 statute incorporating the Board of Trustees of the Presbyterian Church in Canada as it applies to "and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise" as found in section 6 of the Provincial Act is not incidental, but directly addresses:

 iv. the Ferguson v. MacLean 1930 S.C.R. 630 interpretation of section 5 of the 1907 statute incorporating the Board of Trustees of the Presbyterian Church in Canada as it applies to "and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise" as found in sections 6 and 8 of the Provincial and Dominion Acts respectively is not incidental, but directly addresses:

 v. the apparent bias in reporting litigation relating to "and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise"

The availability of newly discovered evidence that might have an important bearing on the case impacts directly on and is included in
iii. that the Decision was against the evidence and the weight of the evidence;
iv. that the Decision was wrong in law;


RR 6
71 Blackburn Road
Renfrew, Ontario
K7V 3Z9
613-433-8227
rev@magma.ca
June 13, 2006

Jim Sinclair
General Secretary
The United Church of Canada
3250 Bloor Street West
Etobicoke, Ontario
M8X 2Y4

Jim

I request ruling re the vesting of properties of former congregations of the Presbyterian Church in Canada, which as negotiating congregations entered the Union of 1925 and took the name of The United Church of Canada, with reference to [summarized with complete texts appended]
     a. the majority opinion expressed by three of the four judges in the Supreme Court of Ontario decision Aird v. Johnson [1929] 4 D.L.R. 664

     b. the majority opinion expressed by four of the five judges in the Supreme Court of Canada decision Ferguson v. MacLean 1930 S.C.R. 630

     c. the opinion expressed in the Privy Council decision St. Luke's Presbyterian Congregation of Saltsprings [Trustees] v. Cameron 1930 A.C. 673

     d. the above statements were not referenced in the lower court decision The United Church of Canada v. Anderson 1991 2 O.R. (3rd) 304 as expressed in the Congregational Board of Trustees Handbook






Don Anderson
__________

Congregational Board of Trustees Handbook is at
http://www.united-church.ca/mtf/pdf/trustees2004.pdf
court decisions are at
Ferguson v. MacLean  RS48 - 1926 #101, Chancery Division
http://www.magma.ca/~rev/FERG_CD.HTM
Aird v. Johnson [1929] 4 D.L.R 664
http://www.magma.ca/~rev/AIRD.HTM
Ferguson v. MacLean  New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 257
http://www.magma.ca/~rev/FERG_NB.HTM
St. Luke's Presbyterian Congregation of Saltsprings [Trustees] v. Cameron 1930 A.C. 673
http://www.magma.ca/~rev/TRUSTEES.HTM
Ferguson v. MacLean  1930 S.C.R. 630
http://www.magma.ca/~rev/FERGUSON.HTM
The United Church of Canada v. Anderson  1991 2 O.R. (3rd) 304
http://www.magma.ca/~rev/DOVER.HTM
and statutes are at
1900 c. 135 An Act incorporating the Board of Trustees of the Presbyterian Church in Canada  Ontario
http://www.magma.ca/~rev/ACT_10.HTM
1907 c. 79 An Act to incorporate The Board of Trustees of the Presbyterian Church in Canada, Eastern Section  New Brunswick
http://www.magma.ca/~rev/ACT_14.HTM
1924 c. 59 The United Church of Canada Act  New Brunswick
http://www.magma.ca/~rev/ACT_15.HTM
1924 c. 100 The United Church of Canada Act  Canada
http://www.magma.ca/~rev/ACT.HTM
1925 c. 125 The United Church of Canada Act  Ontario
http://www.magma.ca/~rev/ACT_17.HTM


0 6 - 0 0 9 - R

VIA E-MAIL TO rev@magma.ca

July 11, 2006

Don Anderson
RR6
71 Blackburn Road
Renfrew, Ontario
K7V 3Z9

Dear Don:

Re: Property of former Congregations of The Presbyterian Church in Canada

You asked for a ruling regarding the vesting of properties of former Congregations of the Presbyterian Church in Canada, which congregations entered Union in 1925.

While you asked for me to reference certain civil court decisions in my ruling, matters of civil law are beyond my role as General Secretary. Under paragraph (f) of Section 513 of The Manual, the General Secretary has the authority:

I issue this ruling based on my interpretation of church polity as set out in The Manual.

5.3 and 5.4 of the Basis of Union are relevant here:

5.3 of the Basis applies to all congregations of the negotiating denominations that entered the United Church at the time of church union. All property held by or on behalf of such congregations is to be held in trust for the congregation as part of the United Church pursuant to the terms of the Trusts of Model Deed. This provision was automatic for all congregations entering church union; no action was required of the congregation in order for the property of that congregation to be governed by 5.3 and the Trusts of Model Deed.

5.4 of the Basis sets out one exception to the rule established in 5.3. The exception applies to congregational property that was held solely for the benefit of the congregation, and not for the denomination of which it formed a part. The question then becomes whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation. If there was a denominational interest, the exception would not apply. If there was no denominational interest, the exception would apply.

If the exception applied, the congregation then had a choice. It could either continue to hold the property for the exclusive benefit of the congregation, or it could choose to hold the property on the same terms as set out in 5.3 i.e., for the congregation as part of the United Church pursuant to the Trusts of Model Deed. Under 5.4, it was presumed that the congregation would continue to hold the property for the exclusive benefit of the congregation unless the congregation consented to holding the property on the terms as set out in 5.3.

Section 266 of the by-laws elaborates on the exception and the circumstances in which it applies:

Paragraph 266(a) is clear and unequivocal. It states that the exception does not apply to the property of former Presbyterian congregations, except for those congregations in Alberta and Saskatchewan.

As mentioned in the discussion of 5.3 above, the exception would not apply if the Presbyterian denomination had an interest in the property of the congregation. Paragraph 266(a) states that “the provincial statutes incorporating the Board of Trustees of the Presbyterian Church in Canada vest a reversionary interest in such property in the denomination, should the congregation cease to exist.” Since the Presbyterian denomination did have an interest in the property of its congregations, the exception would not apply in any province other than Alberta or Saskatchewan.

It is therefore my ruling that the property of congregations that were formerly Presbyterian (other than in Alberta and Saskatchewan) are governed by the provisions of 5.3 of the Basis, as more particularly outlined in paragraph 266(a) of the by-laws.

I wanted to note briefly the implications for those congregations whose property is governed by 5.3 of the Basis. Such property is held in trust for the congregation as part of The United Church of Canada [Section 1, Trusts of Model Deed]. Presbytery approval is required before such property may be “sold, exchanged, or in any manner encumbered” [5.3, Basis]. If the congregation ceases to exist at any time, its property shall be applied for the benefit of The United Church of Canada as the Conference may determine [Section 9, Trusts of Model Deed]. A congregation “ceases to exist” by Presbytery action, either approving a resolution passed by the congregation to disband, or making a decision to disband the congregation [Section 270, by-laws].

Recognizing the deep sensitivities in matters of property and being conscious of the possibility of significant differences with whatever is decided, the Manual provisions cited above have attempted to provide clear guidance to Presbyteries exercising their decision-making role. By doing so, those who determined our policies assumed that in exercising its authority a Presbytery seeks at all times to reflect the integrity of the Gospel by acting fairly, impartially, and in good faith. It strives to provide careful consideration of the issues at hand as well as the impacts of its decisions made in good faith.

Yours very truly,

Jim Sinclair
General Secretary, General Council

cc.
Conference Executive Secretaries
Joe Ramsay, MEPS


documentation re court decisions is at
Main vs. The United Church of Canada
http://www.magma.ca/~rev/MAIN.HTM
Aird v. Johnson [1929] 4 D.L.R 664
http://www.magma.ca/~rev/AIRD.HTM
Ferguson v. MacLean  RS48 - 1926 #101, Chancery Division
http://www.magma.ca/~rev/FERG_CD.HTM
Ferguson v. MacLean  New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 257
http://www.magma.ca/~rev/FERG_NB.HTM
Ferguson v. MacLean  1930 S.C.R. 630
http://www.magma.ca/~rev/FERGUSON.HTM
Respondent Factum, Ferguson v. MacLean  1930 S.C.R. 630
http://www.magma.ca/~rev/FACTUM.HTM
and re statutes is at Acts of Parliament,
http://www.magma.ca/~rev/ACTS.HTM
specifically
1874 c. 75 An Act respecting the union of certain Presbyterian Churches therein named  Ontario
http://www.magma.ca/~rev/ACT_07.HTM
1875 c. 48 An Act concerning the Congregations of Churches connected with the Church of Scotland in this Province  New Brunswick
http://www.magma.ca/~rev/ACT_22.HTM
1875 c. 99 An Act respecting the union of certain Presbyterian Churches therein named  New Brunswick
http://www.magma.ca/~rev/ACT_23.HTM
1900 c. 135 An Act incorporating the Board of Trustees of the Presbyterian Church in Canada  Ontario
http://www.magma.ca/~rev/ACT_10.HTM
1900 c. 34 An Ordinance to incorporate the Board of Trustees of the Presbyterian Church in Canada.  North-West Territories [applies to Alberta and Saskatchewan]
http://www.magma.ca/~rev/ACT_20.HTM
1907 c. 79 An Act to incorporate The Board of Trustees of the Presbyterian Church in Canada, Eastern Section  New Brunswick
http://www.magma.ca/~rev/ACT_14.HTM
1922 c. 88 An Act to amend The Ordinance incorporating the Board of Trustees of the Presbyterian Church in Canada.  Alberta
http://www.magma.ca/~rev/ACT_21.HTM
1924 c. 59 The United Church of Canada Act  New Brunswick
http://www.magma.ca/~rev/ACT_15.HTM
1924 c. 100 The United Church of Canada Act  Canada
http://www.magma.ca/~rev/ACT.HTM
1925 c. 125 An Act respecting the Union of certain Churches therein named.  Ontario
http://www.magma.ca/~rev/ACT_17.HTM