Proposal

Theological Basis
"is nobody among you wise enough to judge a dispute?" [1 Corinthians 6:5 niv]
"the imperative of justice, which, as a measure of faithfulness, must not only be done but also be seen to be done" [Manual 065(b)]

Whereas the United Church initiated court action against the Dover Centre congregation [The United Church of Canada v. Anderson, Provincial Court (General Division) 1991 2 O.R. (3rd) 304]; and

Whereas the United Church used decision from that court action to seize properties of the Dover Centre congregation; and

Whereas the justice of the decision and of the subsequent seizing of properties is questioned as reference to Supreme Court of Canada decision Ferguson v. MacLean 1930 S.C.R. 630 failed to consider repeated statement that properties of former Presbyterian congregations continue to belong to those congregations and not to the denomination; and

Whereas appeal through the civil courts is neither requested nor appropriate use of financial resources; and

Whereas the General Council has retroactively considered the justice of other actions of the church;

THEREFORE BE IT RESOLVED that Renfrew Presbytery request the 39th General Council to consider Supreme Court of Canada decision Ferguson v. MacLean 1930 S.C.R. 630 statement that properties of former Presbyterian congregations continue to belong to those congregations and not to the denomination, and if the imperative of justice requires to make apology and restitution to the Dover Centre congregation.
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The initial draft of the proposal used legal language as the church argument is legal, based on the definition of reversionary interests as decided in The United Church of Canada v. Anderson, Provincial Court (General Division) 1991 2 O.R. (3rd) 304; see Congregational Board of Trustees Handbook pp. 11-12

Our polity provides that any property or funds owned by a 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 the Congregation decides that it is so to be held. (Basis of Union, section 5.4; By-Laws, subsection 266(a))

This exception applies to property of a congregation of the former Congregational Churches. The exception does not apply to Real Property of a former Methodist congregation, as under legislation affecting the Methodist Church the denomination had an interest in the Real Property of all Methodist congregations. The exception does not apply to the Real Property of a former Presbyterian congregation, except in Alberta and Saskatchewan, as elsewhere the provincial statutes incorporating the Board of Trustees of the Presbyterian Church in Canada vested a reversionary interest in such property in the denomination, should the congregation cease to exist. (By-Laws, subsection 266(a))

Reference to only the minority opinion of Duff J., Ferguson v. MacLean 1930 S.C.R. 630 in The United Church of Canada v. Anderson, Provincial Court (General Division) 1991 2 O.R. (3rd) 304 with respect to reversionary interests is inadequate proof texting, similar to summarizing the parable of the good Samaritan as 'the priest and the Levite "passed by on the other side"':

The Dover Centre property consists of ten different parcels of land conveyed by a number of separate grants. The grants involve lands held in trust for the congregation as opposed to a church or denomination.

Parcels 1 and 2 were granted to trustees of the congregation of the Canada Presbyterian denomination in the Township of Dover East for the site of a Canada Presbyterian church, chapel, parsonage or burying ground. The grant provides that these parcels will revert to the grantor if not used for the purpose of the Canada Presbyterian Church. The deed was dated January 21, 1871 and registered September 30, 1871.

Parcels 3 and 4 were granted to the trustees of the Dover Presbyterian Church as a site for a manse to be used in connection with the Presbyterian Church in Dover. This grant also provides that the parcels will revert to the grantor upon termination of the trust. The deed was dated May 7, 1887 and registered on December 12, 1887.

The Presbyterian Church was one of the negotiating churches which formed the United Church. When the Presbyterian Church of Canada was founded in 1875, the legislation bringing this into effect provided that all property in Ontario held in trust for any congregation of the uniting churches (and not dissenting from union) was thenceforth to be held in trust for the benefit of the same congregation in connection and communion with the Presbyterian Church in Canada. Section 1 of the Act respecting the union of certain Presbyterian churches therein named, supra, reads as follows:

1. As soon as the union takes place, all property, real or personal, within the Province of Ontario, now belonging to or held in trust for or to the use of any congregation in connexion or communion with any of the said Churches, shall thenceforth be held, used and administered for the benefit of the same congregation in connexion or communion with the united body, under the name of "The Presbyterian Church in Canada."

Because of s. 4 of the Ontario United Church of Canada Act, these parcels, after union, are held for the benefit of the same congregations as part of the United Church subject to the exceptions that I have mentioned.

Section 4 says that all property held by or in trust for any congregation of any negotiating church shall be held and used for the benefit of the same congregation as a part of the United Church upon the trusts set out in Schedule A but this will not include: (a) any property held "in trust for any special use of any congregation"; or (b) any property held in trust for the use of any congregation "solely for its own benefit" under s. 6. Do either of these exceptions apply?

"Special use"

The Dover Centre lands were given to the congregation for general church use, i.e., as a site for a church, chapel, burying ground, manse, etc. In the context of a church statute I cannot imagine how common general church use of church property can be considered a special use. Surely a special use must be beyond this. I am of the view that "special use" was intended to apply to the situations beyond ordinary church purposes; I can imagine such might be the case where property is given to a congregation to provide bursaries for students of parishioners, etc. In the present case, the most that can be said is that the land is held in trust for a "special" congregation -- not for a "special use" of the congregation.

"Solely for its own benefit"

Although s. 4 says the land held in trust for a congregation will continue to be held in trust for the congregation as part of the United Church, it is subject to s. 6 which says that if property is held in trust for a congregation "solely for its own benefit" it shall not be subject to s. 4 or the control of the United Church (or, by implication, to the terms of the model trust) unless and until the congregation votes consent. What does "solely for its own benefit" mean?

The words "solely for its own benefit" must, of necessity, exclude the possibility of any other beneficiary. This is the view taken by Duff J. in referring to comparable United Church and Presbyterian Church legislation in New Brunswick: "I think that condition excludes any other beneficiary, contingent or not" (Ferguson v. MacLean, [1930] S.C.R. 630, [1931] 1 D.L.R. 61, at p. 651 S.C.R.).

Parcels 1, 2, 3, and 4 of the Dover Centre lands were granted to the use of the congregation as a Presbyterian congregation. Section 5 of the Act incorporating the Board of Trustees for the Presbyterian Church in Canada, S.O. 1900, c. 135, says that if a Presbyterian congregation ceases to exist its property will vest in the trustees of the Presbyterian Church in Canada. Thus, at the time of union, the properties were held for purposes or uses beyond those of the congregation. Section 5 reads:

5. 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.

In addition to this, the possibility of the lands being held for the sole benefit of the congregation is denied by the express words which follow in the section [s. 6 of the Ontario United Church of Canada Act]. This is the portion which says: "and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise" in the property. Because of s. 5 of the Presbyterian Act it is abundantly clear that the Presbyterian Church also had an interest in these lands at the time of union, even though it might only be contingent.

There is a third reason. The grants all state that if the trustees cease to use the lands for church purposes the lands are to revert to the grantor's estate. This reversionary interest denies that the grant is "solely for the benefit" of the congregation.

Accordingly, I conclude that these lands do not fall under the s. 6 exception and do not escape the provisions of s. 4.

Stated simply the argument used by Duff J. and adopted as precedent by The United Church of Canada v. Anderson was if the church has an interest in the property, even one which only takes effect if the congregation ceases to exist or has become disorganized, nevertheless it is an interest and the exception "any real or personal property belonging to or held by or in trust for or to the use of any congregation, whether a congregation of the negotiating churches or a congregation received into The United Church after the coming into force of this Act, solely for its own benefit, and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise, shall not be subject to the provisions of section 4 hereof or to the control of The United Church, unless and until any such congregation at a meeting thereof regularly called for the purpose shall consent that such provisions shall apply to any such property or a specified part thereof" does not apply.

The unreferenced majority opinion of Ferguson v. MacLean 1930 S.C.R. 630 stated unequivocally that properties of former Presbyterian congregations continue to belong to the congregation and not to the denomination with respect to reversionary interests:

Anglin C.J.C (Rinfret J. concurring)
We are, however, unable to regard the mere possibility of a future interest thus created in favour of the Home Mission Scheme, or other object to be selected by the Synod of the Church, (assuming it to be in favour of 'the denomination' to which the St. James Congregation belonged), as such a 'right or interest, reversionary or otherwise,' as is contemplated by s. 6 of the Provincial Act." [1930 S.C.R. 642]
We are, therefore, of the opinion that, there having been no meeting of the congregation of St. James Presbyterian Church, regularly called for the purpose of giving consent under s. 6, and the provisions of ss. 3 and 4 of the Provincial Act therefore not applying to its property, or to any part thereof, because excluded by s. 6, such property continues vested in the Trustees, who hold it for the benefit of that congregation, as it was prior to the 10th of June, 1925, and did not pass under sections 3 and 4, to the United Church of Canada. [1930 S.C.R. 646]
Newcombe J.
In my judgment of the case, it is not shewn, either by the allegations or the proof, that the plaintiffs have any right to the declarations or relief claimed. It is not denied that the body in question became, by the operation of the statutes, a congregation of the United Church of Canada, and the intention, as I interpret it, was not to detach the congregation from its separate property, but rather to recognize and uphold its independence in relation to that property, although with power of consent or election, which has not been exercised, to introduce the terms and provisions incorporated by sections 6 and 4 of the Dominion and Provincial Acts, respectively. Unless the congregation consent, the property which it holds, in the words of the statute, solely for its own benefit, and in which its denomination has no right or interest, must remain where it was when the Union became effective, namely, with the congregation, and its consent is entirely discretionary. [1930 S.C.R. 659]
Lamont J.
Section 6 was enacted to give effect to the agreement contained in clause in the Basis of Union (Schedule 'A' to the Dominion Act) which provided that any property owned by a congregation or vested in trust for it solely for its own benefit should not be affected by the legislation giving effect to the Union, or by any legislation of the United Church, without the consent of the congregation. It therefore seems clear that in those cases to which section 6 applies it was the legislative intention that the congregational property should not be vested in the United Church or brought under the terms of the Model Deed unless and until the congregation by a proper vote consented thereto. No consent being given in this case, the congregational property, in my opinion, (and I state my conclusions merely) is held by the trustees thereof solely for the benefit of the congregation of St. James Church. That congregation, however, entered the Union and became a congregation of the United Church. In my opinion that does not affect its right to its property. By entering the Union it did not lose its identity (See Preamble to Dominion Act). [1930 S.C.R. 661-662]

Congregational Board of Trustees Handbook is at
http://www.united-church.ca/mtf/pdf/trustees2004.pdf
court decisions are at
http://www.axz.ca/dover.htm
http://www.axz.ca/ferguson.htm
and statute incorporating the Board of Trustees of the Presbyterian Church is at
http://www.axz.ca/act_10.htm