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

Subject to the provisions of the next succeeding paragraph hereof, all property, real and personal, under the jurisdiction of the Parliament of Canada, held in trust for or to the use of a church, charge, circuit, or congregation of any of the negotiating Churches shall be held by trustees appointed by or on behalf of such church, charge, circuit, or congregation, upon trusts set forth and declared in a Model Trust Deed. This Model Trust Deed should be a schedule to the Act, and should contain, among others, a provision to the following effect: that the property is held for the church, charge, circuit, or congregation as a part of the United Church, and that no property so held shall be sold, exchanged, or in any manner encumbered, unless the Presbytery shall, at the instance of the church, charge, circuit, or congregation, have given its sanction, subject to an appeal, if desired, to the Conference. [article 5.3];
Any property or funds owned by a church, charge, circuit, or congregation at the time of the Union solely for its own benefit, or vested in trustees for the sole benefit of such church, charge, circuit, or congregation, and not for the denomination of which the said church, charge, circuit, or congregation formed a part, shall not be affected by the legislation giving effect to the Union or by any legislation of the United Church without the consent of the church, charge, circuit, or congregation for which such property is held in trust. [article 5.4]; and

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

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; and

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

Mulock, C.J.O. (Hodgins, J.A., Middleton, J.A. concurring)
Subject to the provisions of s. 6, it is declared in substance, by s. 4, that all property in Ontario belonging to or held in trust for any congregation of any of the negotiating churches shall be held for the benefit of the same congregation as a part of the United Church. Section 6 declares that property belonging to a 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 . . . . "

Mr. Mason pointed out that s. 6 applied only to property held by a congregation solely for its own benefit, and contended that under the Ontario Act of 1900, s. 5, if the congregation ceased to exist, the property would vest in the trustees of the Presbyterian Church in Canada for other purposes than those of the congregation, and that, therefore, not being held in trust solely for its benefit, s. 6 had no application.

Section 5, relied on by Mr. Mason, reads as follows:-

"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."

This section applies only (a) to a congregation which, at the time of the passing of that Act (April 30, 1900), shall have ceased to exist, and (b) to a congregation which has become disorganized.

The St. Andrew's congregation at Grafton had not, when s. 5 came into effect, ceased to exist, and there is no evidence that at that time it had become disorganised ; and, therefore, in my opinion, s. 5 does not operate on the interests of the congregation in the said property and the same is not subject to the provision of s. 4 unless and until the congregation "at a meeting thereof regularly called for the purpose shall consent that such provision shall apply" to the said property. [1929 4 D.L.R. 666-667];

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

Anglin C.J.C. (Rinfret J. concurring)
It follows that the property of the St. James congregation became vested in the United Church under the provisions of s. 4 of the Provincial Act, unless, and except in so far as, it fell within s. 6, to the provisions of which s. 4 was expressly made subject. This s. 6, which is the vital provision to be considered, reads as follows:

6. 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 section 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 Sections 3 and 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.

By earlier legislation of the province of New Brunswick, set forth at length by the Chief Justice in his judgment, to wit, c. 11, 1 William IV, (1831), c. 18, 2 William IV, (1832), c. 15, 3 William IV, (1833), c. 48, 38 Vic., (1875), and c. 99, 38 Vic., (1875), it was made abundantly clear that the property of St. James Presbyterian Church at Newcastle was vested fully and absolutely, and to all intents and purposes, and without qualification, in the Trustees of that church. It is said, however, for the respondents, that by a New Brunswick Act of 1907 (7 Edw. VII, c. 79), a reversionary right or interest therein was created in "The Board of Trustees of the Presbyterian Church in Canada, Eastern Section," because of the provision, that

6. 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 in 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 Home Mission scheme thereof, or as may be otherwise determined by the Synod of the said church.

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.

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. 642, 646]

Newcombe J.
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.
The congregation of St. James Presbyterian Church, not having voted non-concurrence within the time fixed therefor by statute, became merged in the United Church of Canada on June 10th, 1925, by virtue of section 4 of the United Church of Canada Act (Dom.), 14-15 Geo. V, c. 100. Thereafter as a congregation it was part of the United Church.

The statutory provisions dealing particularly with the property of a congregation joining the Union, are sections 3, 4 and 6 of the New Brunswick Act, which are embodied in sections 5, 6 and 8 of the Dominion Act. Section 3 of the local Act, with certain reservations, vests in the United Church the properties of the uniting church organizations as distinguished from properties of the congregations. Section 4 deals with congregational property and provides that, subject to section 6, all property within the province belonging to or held in trust for any congregation of any of the negotiating churches shall, from the coming into force of the section, be held, used and administered for the benefit of the same congregation as a part of the United Church, upon the trusts and subject to the provisions of a Model Deed set forth in the schedule. The property, therefore, of every congregation entering the Union was thereafter held by the trustees thereof upon the terms contained in the Model Deed, except in those cases falling within section 6. Section 6, upon which the appellants rely, reads as follows:--

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 section 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 Sections 3 and 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.

It was contended that under certain New Brunswick statutes the Trustees of St. James Presbyterian Church held the church property in trust solely for the benefit of the congregation thereof and that the Presbyterian Church in Canada, as a denomination, had no right or interest, reversionary or otherwise, therein.

In the view I take of the rights of the parties, it is unnecessary to determine whether or not the contention is well founded. I will assume that it is, and that the denomination had no right or interest in the congregational property. As there was no consent given by the congregation to the application of the provisions of section 3 or section 4 to its property as provided for in section 6, those sections do not apply, and the only question is: For whom do the trustees, in whose names the property is vested, hold it in trust?

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*). The scheme of the legislation which brought about the union of the churches was to permit the majority to determine the action of the congregation. If the majority decided to enter the Union, the congregation, as a congregation, became part of the United Church. If the majority decided against entering the Union, the congregation remained outside the Union with all its property. The majority spoke for the congregation. The congregation of St. James Presbyterian Church, by entering the Union, effected a change in its name but not of its identity. Under the Act it was still the same congregation although some of its members refused to go with it into the Union. Those who did go thereafter constituted the congregation, and the trustees in whose names its property was vested held it after the Union for the benefit of that congregation, as a congregation of the United Church. Without the consent of the congregation duly given, as provided in section 6, the congregational property cannot be vested in the United Church nor brought under the terms of the Model Deed, but I fail to find anything in any of the legislation indicating an intention that a congregation on entering the Union was either to forfeit its property or share it with former members thereof now non-concurring, because it preferred to continue keeping for itself the absolute control over its own property and refused to give the United Church any interest therein or control thereover. The congregation, as it is constituted at the present time, is alone, in my opinion, beneficially interested in the property and entitled thereto. This, as I see it, is the meaning and intent of the legislation. [1930 S.C.R. 660-663]

* ...having the right to unite with one another without loss of their identity [preamble to The Dominion Act]; and

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

i. The United Church of Canada statement of claim interpreted 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

The defendants allege that the property in question was held by its trustees for the benefit of the congregation in connection with the Presbyterian Church in Canada; that by the Act of 1900 (Ont.), c. 135, the Presbyterian Church in Canada became entitled to an interest therein [Aird v. Johnson {1929} 4 D.L.R. 665];

ii. the previous decision appealed 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

The congregation of Saint James Presbyterian Church (Newcastle, N.B.), being a congregation of "The Presbyterian Church of Canada" as such, it was legislated into and became merged in the United Church of Canada by virtue of 14 Geo. V. 1924 (Dom.), ch. 100, supplemented by 14 Geo. V, 1924 (N.B.), ch. 59. The Act 7 Edw. VII, 1907 (N.B.), ch. 79, being an Act to incorporate the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, section 6 thereof must be read with section 6 of 14 Geo. V., 1924 (N.B.), ch. 59, and it describes and designates with sufficient clearness such a right vested in the United Church in the congregational property of St. James as would exclude that property from the operation of section 6 of 14 Geo. V., 1924 (N.B.), ch. 59, and no consent of the congregation regularly called for the purpose was necessary in order to vest the property of St. James congregation in the United Church of Canada. [Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 257];

In the year 1907 by the Act of 7 Edward VII, ch. 79, the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, was created. This Act was passed upon the petition and at the request of the Synod of the Maritime Provinces in connection with the Presbyterian Church in Canada, within whose jurisdiction was the said St. James Church.

Section (6) of this Act is as follows:

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 in 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 said Synod of the said Church.

This confers upon the board of trustees created thereby a reversionary interest in the property of all Presbyterian congregations in this Province arising in any case where a congregation ceases to exist or becomes disorganized. Now while this can only happen upon a contingency and as a matter of fact may never happen, still the right or interest in the property exists unless removed by subsequent legislation. The trustees named acquired and still possess an interest by this Act in the property belonging to St. James Church. This church might never cease to exist nor be disorganized, and the beneficial use of or in the lands might never arise, but in any event the legal right existed and still exists. This Act and the above section thereof was in force in 1924 when the Church Union Act became law, and notwithstanding the provisions of sec. 30 thereof, which repeals all acts and portions of acts of this Province inconsistent with the provisions thereof in so far as necessary to give full effect thereto, I am of the opinion it is still in full force and effect so far as sec. 6 thereof is concerned, and taking the two Acts together and considering the purpose intended to be served thereby, there is nothing inconsistent in the portion of the section under consideration, and the rights created under the said sec. 6 (1907) still exist. [Grimmer, J.; Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 283-284];

It was upon the construction of section 6 of 14 Geo. V. ch. 59 (N.B.) that the learned Chief Justice held that the congregational property of Saint James Church did not become vested in the United Church, because a necessary preliminary, the consent of the congregation of Saint James Church, obtained at a meeting thereof regularly called for the purpose, was wanting. The section provides: --

6. The real and 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 section 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 sections 3 and 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.

The question is had the denomination of "The Presbyterian Church in Canada," one of the negotiating denominations, and the denomination to which the congregation of Saint James Church belonged, any right or interest reversionary or otherwise in the congregational property of Saint James Church, and in my opinion, a proper construction of the Act 7th Edw. VII, ch. 79, sec. 6 (N.B.) shows that it had. That is an Act to incorporate the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, and, curiously enough, it does not seem to have been brought to the attention of the learned Chief Justice at the hearing. Such, at any rate, I judge to be the case, for the Chief Justice does not refer to it in his judgment, and in my view of the case failure to mention it in the Court below was an unfortunate omission, because that Act contains, in my opinion, a provision which we cannot overlook but are obliged to consider in determining one of the questions arising in this controversy. The section to which I allude is as follows: --

6. 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, in 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 Synod of the said church.

It will be observed that the proviso to section 4 of 14 Geo. V. ch. 59 (N.B.) contains a somewhat analogous provision, namely, that in the event of failure or partial failure of the special trusts upon which any congregational property is held, the property, in the absence of any express provision for such an event, may be held, used, administered and disposed of by The United Church. Lands and premises belonging to the congregation of Saint James Church at Newcastle were held by the Trustees of that church, a corporation created by 2 Wm. IV. ch. 18, sec. 9 (3 L. & P. Stat. N.B. 378) for the use of the congregation. And now by virtue of section 6 of the Act of 1907 above set out, should that congregation cease to exist or become disorganized, the congregational property vests "in the said Board of Trustees," i.e., "The Board of Trustees of the Presbyterian Church in Canada, Eastern Section," the corporation created by the first section of the same Act (7 Edw. VII. ch. 79). Should the congregation of Saint James Church cease to exist or become disorganized, either of which contingencies though perhaps remote, is not impossible, then its lands and premises become vested in the Board of Trustees of The Presbyterian Church in Canada created by the Act, and are to be disposed of as provided for in this section. That seems to me to be clear. Though neither of the contingencies mentioned may happen, still there is the right in case one of them does happen. Having such a right, The Presbyterian Church in Canada cannot be said to have no right or interest in the property of such congregation. A reversionary interest is a sufficient right or interest. A grantor's reversion in real property is, as we know, deemed an actual vested estate although the grantor is said to be entitled to and not to be seized of such an estate. Reading this section and section 6 of 14 Geo. V. c. 59 (N.B.) together and giving to the language employed its plain, ordinary and grammatical meaning, I am of the opinion that the language of section 6 of ch. 79, Acts of 1907, describes and designates wish sufficient clearness, such a right vested in the United Church in the congregational property of Saint James Church as would exclude that property from the operation of section 6 of "The United Church of Canada Act" (N.B.): and that no consent of the congregation regularly called for the purpose was or is necessary or requisite in order to vest the property of Saint James Church congregation in The United Church of Canada. The congregational property went with the congregation when the latter voted itself into the Union, or, perhaps it would be more correct to say when it declined to vote itself out of the Union, as the evidence clearly shows that it did. If this view of the case is to prevail, it follows that the judgment of the learned Chief Justice on this branch of the case must be reversed, and the legal title of the congregational property of Saint James Church declared to be in The United Church of Canada in trust for the use and benefit of the Newcastle congregation of that church. [Barry, C.J., K.B.D.; Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 267-270];

I concur in the judgments of both my brother Barry, C.J., K.B.D., and Grimmer, J. [White, J.; Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 275]; 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 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)

Ordinances of the North-West Territories
1900

CHAPTER 34.

An Ordinance to incorporate the Board of Trustees of the Presbyterian Church in Canada.

[Assented to May 4, 1900.]

WHEREAS a petition has been presented by the General Assembly of the Presbyterian Church in Canada, praying for the passage of an Ordinance constituting the persons hereinafter named and their successors a body politic and corporate under the name of "The Board of Trustees of the Presbyterian Church in Canada;"

And whereas it is expedient to grant the prayer of the said petition:

Therefore the Lieutenant Governor by and with the advice and consent of the Legislative Assembly of the Territories enacts as follows:

1. The Reverend Robert Harvey Warden, D.D.; the Honourable Mr. Justice James McLennan; the Reverend William MacLaren, D.D.; William Mortimer Clark, Q.C.; Adam Rutherford Creelman, Q.C.; Hamilton Cassels and Robert Kilgour, and their successors to be appointed as hereinafter mentioned shall be and they are hereby constituted a body politic and corporate by the name of "The Board of Trustees of the Presbyterian Church in Canada."

2. The said corporation shall by the name aforesaid, have perpetual succession and a common seal; and by such name may from time to time and at all times hereafter acquire, hold, possess and enjoy and may have, take and receive by grant, transfer, gift, assignment, devise or bequest for them and their successors any lands, tenements and hereditaments and real and immovable property and estate within the North-West Territories and personal property and movables for the religious, charitable and educational purposes and uses of the said the Presbyterian Church in Canada within the limits of the North-West Territories ; and any of the trusts in connection with the said church and any of the religious, charitable or educational schemes of the said church (except any trusts, schemes or institutions connected with the said church which are now or which may be hereafter incorporated) and any such lands, tenements, hereditaments and real and immovable property and estate and personal property and movables shall be held by the said board of trustees for the benefit of the said church or the particular scheme of the said church or of any of the said trusts in connection therewith to or for which the said real or personal estate may be purchased, transferred, given, devised or bequeathed.

3. The said trustees shall at all times on the request of the committee appointed by the general assembly of said church for the management of the said schemes or trusts pay the annual rents, income or produce of any such lands, tenements or interests therein and of any such personal estate to the treasurer of the said church for the benefit of the scheme or trust for the use of which said lands, premises or interests therein or personal estate shall be held by the said board of trustees ; and shall also at the like request sell and convert into money the said lands, tenements or interests therein or securities for money and pay the proceeds of such sales to the said treasurer for the benefit of the said scheme or trust ; it being expressly declared that no purchaser from said trustees shall be bound to see that said request shall have been made or to inquire as to the application of said purchase money or the regularity of the appointment of said trustees but subject to the provisions of The Land Titles Act 1894 and amendments thereto the execution of the grant, conveyance, transfer, lease or other instrument shall be deemed sufficient and conclusive when executed as hereinafter set forth.

4. The said board of trustees may invest from time to time, all moneys which may come into its hands for the benefit of the said church or any of the said schemes or trusts in such securities real or personal as the said board of trustees may deem expedient, provided always that all lands which may become vested in the said board of trustees otherwise than by way of security or as a result of proceedings for the enforcement of any security and which shall not be actually required for the purpose of sites for churches, manses, school houses or cemeteries or any other purposes of the church shall be sold within twenty years after the said lands shall have become vested in the said board.

5. The members of the said board of trustees shall be elected annually by the general assembly and shall continue in office until their successors be appointed ; and four of the said trustees shall form a quorum of the said board and they shall elect from themselves a chairman.

6. The said board of trustees shall annually present a report to the general assembly in which shall be set forth fully the various moneys, securities and property, real and personal, which shall have come into its hands, and also show the disposition made by it of the interest and income arising from all said moneys, securities and properties.

7. No personal liability shall attach to any of the individual members of the said board of trustees for the failure of any investment or security which may be made by the said board.

8. All conveyances, grants, transfers, leases or assignments of any of said lands, tenements, personal property or securities shall be made by the said board of trustees under their corporate seal, which shall be attested by the signatures of the chairman of the said trustees, the treasurer of the said church and by the chairman, convener or other presiding officer of the committee or trust for whose benefit the lands, tenements, personal property or securities so disposed of shall have been held ; and subject as to lands and tenements to the provisions of The Land Titles Act 1894 such conveyances, grants, transfers, leases or assignments when so attested shall be deemed sufficient and conclusive.

9. The general assembly of the said church may from time to time make rules and regulations for the government and guidance of the said board of trustees.

10. This Ordinance shall be deemed to be a public Ordinance.

[Alberta became a province September 1, 1905]
__________

Statutes of Alberta
1922

CHAPTER 88.

An Act to amend The Ordinance incorporating the Board of Trustees of the Presbyterian Church in Canada.

(Assented to March 28, 1922.)

WHEREAS the Presbyterian Church in Canada has by its petition prayed that it be enacted as hereinafter set forth and it is expedient to grant the prayer of the said petition;
Therefore His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows:

1. The Ordinance entitled An Ordinance to Incorporate the Board of Trustees of the Presbyterian Church in Canada, being chapter 34 of the Ordinances of the North-West Territories, 1900, be and it is hereby amended by inserting after section 3 thereof the following sections:
"3a. Notwithstanding anything contained in The Companies Ordinance and The Ordinance respecting the Holding of Lands in Trust for Religious Societies and Congregations, all lands and premises which have been or shall hereafter at any time be held by any trustee or trustees for any congregation of the Presbyterian Church in Canada or by any company incorporated under The Congregations Holdings Act of 1907 or under The Companies Ordinance for the holding of property for a congregation of the said church, which congregation 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.
"3b. The registrar of titles for the land registration district in which any lands referred to in the next preceding section are situate shall, upon the production of a certified copy of a resolution purporting to have been passed by the presbytery to which the congregation belongs describing the lands and certifying that the congregation has ceased to exist or has become disorganized, cancel the existing certificate of title thereto and issue a new certificate of title to the lands, subject to any encumbrances endorsed on the cancelled certificate of title, in the name of the Board of Trustees of the Presbyterian Church in Canada; and in accepting such certificate of title there shall not be implied any covenant on behalf of the said board of trustees to pay any encumbrances on the said land."; 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), [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;

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

266 Exceptions.
(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 the 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.)

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;

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

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;

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

The General Council shall have full power:
To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated. [Basis of Union section 24(2)(b), renumbered to 8.4.2(b), 8.6.2 (2)]

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;

[it should be noted with respect to

Notwithstanding anything in this Act contained, it is hereby declared:-
That nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same or any of them, but subject to the conditions and safeguards in that behalf contained in the Basis of Union. {The United Church of Canada Act section 28(b)}; and

the safeguards

The General Council shall have full power:
To legislate on matters respecting the doctrine, worship, membership and government of the Church, subject to the conditions: First, that before any rule or law relative to these matters can become a permanent law, it must receive the approval of a majority of the Presbyteries, and, if advisable, pastoral charges also; Second, that no terms of admission to full membership shall be described other than those laid down in the New Testament; and, Third, that the freedom of worship at present enjoyed in the negotiating Churches shall not be interfered with in the United Church. [Basis of Union section 24(2)(a)];
To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated. {Basis of Union section 24(2)(b)};

section 24(2)(b) references legislation relating to bylaws, subordinate standards and formulas as "subject to the limitations elsewhere provided in this Basis of Union" would appear to make changes to permanent law affecting property ultra vires; and

it should also be noted with respect to the former Basis of Union section 7, renumbered to 5.4, the Appendix on Law, referenced by the first General Councils {1925 rop pp253-254; 1926 rop pp403-404; 1927 rop pp151-152; 1928 rop pp497-498 appended} and included in The Manual until 1964, is not part of The United Church of Canada Act and references a schedule to be attached to the Act, "to avoid uncertainty as to title, all churches, charges, circuits or congregations coming within the provision of this clause should be named in a schedule attached to the Act, and the provisions of this section should be limited to the churches, charges, circuits or congregations so enumerated in the schedule", which was abandoned September 26, 1923 as impossible

"It was also agreed that the proposed schedule 'D' to include properties held solely for the benefit of congregations should not include property in which the denomination to which the congregations belongs has any interest, reversionary or otherwise...
"It concluded that it would be impossible to prepare the proposed schedule 'D.'" {Gershom W. Mason, 'The Legislative Struggle for Church Union', The Ryerson Press, Toronto 1956 p24}

and is not found either as a schedule attached to the Act, or as any other schedule within The United Church of Canada, though it was recognized at an early date that such alleged schedule applied to congregations of the former Presbyterian Church in Canada within Saskatchewan

Congregational Property in Saskatchewan.
We recommend that the Executive of the General Conference be authorized to secure such action as in their opinion may be necessary to place the holding of title to congregational property in Saskatchewan on a similar basis as that which exists in other provinces. {rop 1934 p76};

and recognized that such alleged schedule applied to congregations of the former Congregational Churches in Canada

The exception does apply to property of a Congregation of the former Congregational Churches. {former bylaw section 78(a), 1946}

__________

APPENDIX ON LAW

1. When a Basis of Union has been agreed upon by the negotiating Churches, the union should be consummated and The United Church incorporated by a Special Act of the Parliament of Canada.

2. The Act of the Parliament of Canada consummating the Union and incorporating The United Church should contain, among others, provisions to the following effect:

(1) Ratifying and confirming the Basis of Union as agreed upon, and empowering The United Church to acquire and hold property.

(2) Making clear (a) that The United Church shall have the powers of legislation mentioned in paragraph 24, section (2) of the Polity section of the Basis of Union, subject to the safeguards thereby imposed, in such full and ample manner as to render impossible the existence in connection with The United Church of the conditions which have arisen in Scotland in connection with The United Free Church of Scotland, under the decision of the House of Lords, touching its property and doctrine.

(b) That all the estate, real and personal, belonging to or held in trust for or to the use of the negotiating Churches, or belonging to or held in trust for or to the use of any corporation under the government or control of, or in connection with, any of the said negotiating Churches, shall be vested in The United Church or in Boards, Committees or Corporations under the control thereof, and shall be used and administered in accordance with the terms and provisions of the Basis of Union.*

Note.-This provision would cover all property which might properly be described as denominational property.

(c) That, subject to the provisions of the next succeeding paragraph hereof, all property, real and personal, under the jurisdiction of the Parliament of Canada held in trust for or to the use of a church, charge, circuit or congregation of any of the negotiating Churches, shall be held by trustees appointed by or on behalf of such church, charge, circuit or congregation, upon trusts set forth and declared in a Model Trust Deed.

This Model Trust Deed should be a schedule to the Act and should contain, among others, a provision to the following effect : That the property is held for the church, charge, circuit, or congregation as a part of The United Church, and that no property so held shall be sold, exchanged, or in any manner encumbered unless the Presbytery shall, at the instance of the church, charge, circuit or congregation, have given its sanction, subject to an appeal, if desired, to the Conference.

(d) That any property or funds owned by a church, charge, circuit or congregation at the time of the union solely for its own benefit, or vested in trustees for the sole benefit of such church, charge, circuit or congregation, and not for the denomination of which the said church, circuit or congregation formed a part, shall not be affected by the legislation giving effect to the union or by any legislation of The United Church without the consent of the church, charge, circuit or congregation for which said property is held in trust.

Note.-To avoid uncertainty as to title, all churches, charges, circuits or congregations coming within the provision of this clause should be named in a schedule attached to the Act, and the provisions of this section should be limited to the churches, charges, circuits or congregations so enumerated in the schedule.

(e) That all lands, premises and property acquired for the use of a local church or pastoral charge of The United Church shall be held, used and administered upon the trusts of the said Model Trust Deed above referred to.

3. Special acts of the Legislatures of the several Provinces of the Dominion and of Newfoundland and the Bermudas and any other country in which the negotiating Churches hold property should be obtained, containing similar provisions and vesting in the manner above indicated the above and like classes of property and interests over which the said Legislatures may respectively have jurisdiction, and rendering effective in the said several jurisdictions the other provisions relating to the said union.

*At a meeting of the Presbyterian Union Committee held on December 15th, 1914, it was resolved that "it is expected that in the proposed legislation proper provision will be made to guard the rights or privileges of any minority which may be opposed to Union."

see also E. Lloyd Morrow, 'Church Union in Canada' {Its History, Motives, Doctrine and Government}, Thomas Allen Publisher, Toronto 1923 pp353, 354, 356, 364, 382, 393

Appendix IX.

THE PROPOSED ENABLING LEGISLATION

(a) LETTER OF TRANSMISSION.
(b) REPORT OF COUNSEL RE CHURCH UNION.
(c) PROPOSED DOMINION LEGISLATION.
(d) MODEL TRUST DEED.
(e) PROPOSED PROVINCIAL LEGISLATION.
(f) REPORT OF UNION COMMITTEE OF THE METHODIST CHURCH.

(a) LETTER OF TRANSMISSION.
TORONTO, September 28th, 1922.

REV. J. H. EDMISTON, D.D.
REV. T. ALBERT MOORE, D.D.
REV. W. H. WARRINER, D.D.
Secretaries of the Joint Committee on Church Union.

Dear Sirs:-
I beg to transmit to you herewith the following documents:-
1. Draft bill for the incorporation of the United Church of Canada.
2. Draft Provincial legislation.
3. Report dated Sept. 28, 1922, on the proposed legislation, from Gershom W. Mason, K.C., and McGregor Young, K.C., counsel for the Joint Committee.

These bills, in their present form, embody the amendments made in the original draft by the Committee on Law and Legislation to give effect to the recommendations of the Joint Committee on Church Union at its meeting on Sept. 22, 1922. These amendments are in the form recommended by counsel for the Committee and have been approved by the Joint Committee on Law and Legislation through its Sub-Committee appointed for such purpose. The report of counsel enclosed explains the proposed bill and gives the reason for the amendments made. May I respectfully suggest that you forward a copy of counsel's report with these bills to the Supreme Courts of the negotiating Churches?

Yours very truly,
N. W. ROWELL,
Chairman of the Joint Committee on Law and Legislation.
TORONTO, September 28th, 1922.

(b) REPORT OF COUNSEL RE CHURCH UNION.

HON. N. W. ROWELL, K. C.
Chairman,
Sub-Committee on Law and Legislation.
38 King Street West, Toronto.

Dear Sir:-

Re-CHURCH UNION

Pursuant to the instructions set out in your letter of the 26th of June last, we have considered the legislation required to give effect to the union of the negotiating churches and have prepared for submission to the Parliament of Canada and the Legislatures of the various provinces of Canada the bills which we think necessary for that purpose. These bills and a form of Model Trust Deed have been already sent to you. The Dominion Bill provides for the incorporation of the United Church of Canada and vests in the United Church such property and funds as are under the legislative control of Parliament and gives it power to acquire, hold and administer the property, funds and schemes received from the three churches. The Provincial Bills provide, subject to certain limitations therein set out, that the property of the congregations of the negotiating churches shall vest in the trustees of such congregations as a part of the United Church upon the trusts set out in the Model Trust Deed and that other property of the negotiating churches within the jurisdiction of the provinces shall vest in the United Church. They also provide for the exercise by the United Church of civil rights within the provinces and confirm and supplement the provisions of the Dominion Bill so as to enable the United Church to exercise within the provinces all the powers intended to be conferred upon it by its Act of Incorporation. In preparing the legislation many questions have arisen with which we will deal in the order in which their subject matter arises in the Dominion Bill.

5. SPECIAL CONGREGATIONAL PROPERTY.
Section 7 incorporates the provision in the Basis of Union that congregations owning specific property at the time of union solely for their own benefit and not for the denomination of which they are a part may continue to hold such property unaffected by this legislation. We have adopted the suggestion made in the Appendix on Law that all congregations coming within the scope of this section should be named in a schedule attached to the Bill. We assume that the negotiating churches will take the necessary steps to bring this section to the attention of the proper authorities in order that this schedule may be prepared in ample time and upon proper information. The schedule is also to set out specifically the property affected and before it can be prepared it will be necessary to have satisfactory evidence that such property is in fact the property of the congregation and is not held for the denomination of which it forms a part.

(c) PROPOSED DOMINION LEGISLATION
AN ACT INCORPORATING THE UNITED CHURCH OF CANADA

7. The rights of the several congregations named in Schedule "D" to this Act in regard to their respective properties therein set out, or, with the approval of the Presbytery within whose bounds such property is situate, of any congregation hereafter received into the United Church in regard to any real or personal property belonging to or held by or in trust for or to the use of such congregation, solely for its own benefit, shall not be subject to the provisions of sections four and five hereof, or to the control of the United Church, unless and until any such congregation at a meeting thereof duly called for the purpose shall consent that such provisions shall apply to any such property or a specified part thereof.

(e) PROPOSED DOMINION LEGISLATION

6. The rights of the several congregations named in Schedule "C" to this Act in regard to their respective properties therein set out, or, with the approval of the Presbytery within whose bounds such property is situate, of any congregation hereafter received into the United Church in regard to any real or personal property belonging to or held by or in trust for or to the use of such congregation, solely for its own benefit, shall not be subject to the provisions of sections three and four hereof, or to the control of the United Church, unless and until any such congregation at a meeting thereof duly called for the purpose shall consent that such provisions shall apply to any such property or a specified part thereof.

(f) REPORT OF UNION COMMITTEE OF THE METHODIST CHURCH

Your Committee organized, with Rev. W. R. Young, Chairman, and Mr. J. A. M. Patrick, Secretary.

Your Committee has considered the Proposed Acts incorporating the United Church of Canada, with Trusts of Model Deed, as amended by the Joint Committee on Church Union, and by the Joint Committee on Law and Legislation under the authority of the Joint Committee on Church Union, and Report of Counsel on proposed legislation to be presented to the Dominion Parliament and Provincial Legislatures, and reports as follows:-
We recommend that:-
1. The Acts as printed and distributed to Conference be approved, subject to the following changes and additions thereto:

DOMINION ACT.

(1) Section 7, recommended to be amended by the addition of the following words at the end thereof : "The persons entitled to vote at any meeting of such congregation shall be persons in full membership who are of the age of eighteen (18) years or over"; and

see also C. E. Silcox, 'Church Union in Canada', Institute of Social and Religious Research, New York, 1933 p156

It must be remembered that the sub-committee on Polity did not attempt to draw up a complete system of discipline. By special resolution in the joint committee, questions of worship and discipline were left in abeyance until after the United Church had been formed. The joint committee only sought to lay down in the Basis the fundamental principles of the government, and the church, created or re-created by the Union, was to work out these principles in more minute detail. Because of this, the work of the first General Councils was of necessity largely taken up with the development of codes of procedure and the preparation of a manual, and this was no easy task nor could all the curious and knotty problems that arose be foreseen. Wisdom, however, would seem to have been justified of her children, who proposed to make the experiment and to learn by living, rather than to refuse to move until every possible development had been seen in advance and provided against.

The joint committee, however, made one curious but natural omission. It had specified how the local churches should elect their representatives to presbytery; how presbyteries should elect their representatives to conferences and how conferences should elect their representatives to the General Council. It also gave power to the General Council to establish the boundaries of conferences and to conferences the power to establish the boundaries of presbyteries, but it forgot to say how the first General Council was to be formed, since there could be no conferences to elect representatives to the General Council until the General Council had itself determined the boundaries of the conferences. This matter was, however, foreseen by the committee on Law, when it came to prepare the bill for submission to the Dominion Parliament, and a section was included covering this emergency and providing that the first General Council should consist of 350 members, 150 to be appointed by the General Assembly of the Presbyterian Church, 150 to be appointed by the General Conference of the Methodist Church, 40 to be appointed by the Congregational Union and 10 to be appointed by the General Council of Local Union Churches. (United Church of Canada Act 14-15, George V, S. C. Chapter 100, section 21.)]; and

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

Mulock, C.J.O. (Hodgins, J.A., Middleton, J.A. concurring)
Subject to the provisions of s. 6, it is declared in substance, by s. 4, that all property in Ontario belonging to or held in trust for any congregation of any of the negotiating churches shall be held for the benefit of the same congregation as a part of the United Church. Section 6 declares that property belonging to a 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 . . . . "

Mr. Mason pointed out that s. 6 applied only to property held by a congregation solely for its own benefit, and contended that under the Ontario Act of 1900, s. 5, if the congregation ceased to exist, the property would vest in the trustees of the Presbyterian Church in Canada for other purposes than those of the congregation, and that, therefore, not being held in trust solely for its benefit, s. 6 had no application.

Section 5, relied on by Mr. Mason, reads as follows:-

"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."

This section applies only (a) to a congregation which, at the time of the passing of that Act (April 30, 1900), shall have ceased to exist, and (b) to a congregation which has become disorganized.

The St. Andrew's congregation at Grafton had not, when s. 5 came into effect, ceased to exist, and there is no evidence that at that time it had become disorganised ; and, therefore, in my opinion, s. 5 does not operate on the interests of the congregation in the said property and the same is not subject to the provision of s. 4 unless and until the congregation "at a meeting thereof regularly called for the purpose shall consent that such provision shall apply" to the said property. [1929 4 D.L.R. 666-667];

[it should be noted that any other interpretation of statute relating to congregation properties of the former Presbyterian Church in Canada, viz.

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."
But all such property, real or personal, as is affected by this Act, shall in all respects, save as aforesaid, be held and administered, as nearly as may be, in the same manner and subject to the same conditions as provided by the Deeds of Trust, Acts of Incorporation, or any other instruments or authority under which the same is now held or administered. [Ontario 1874 c. 75 An Act respecting the union of certain Presbyterian Churches therein named, sections 1, 6];

is addressed by "...and the same is not subject to the provision of s. 4 unless and until the congregation 'at a meeting thereof regularly called for the purpose shall consent that such provision shall apply' to the said property" in Aird v. Johnson {1929} 4 D.L.R. 664, nor is it contended elsewhere that prior to the Union of 1925 congregation properties of the former Presbyterian Church in Canada were vested in the denomination {or simply, the alleged status of congregation properties in Alberta and Saskatchewan in the disputed bylaw section 266(a)}];

the 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:
i. the previous decision appealed

This was an action brought by the plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, who voted against union, to recover the property from The United Church congregation. The congregation voted in favor of union by a majority of 19, the vote being 49 to 30. The plaintiffs claimed that they were the only congregation which satisfied the terms of the trusts in a deed of the Church and cemetery property made by John Grover in 1844. The action was tried at Cobourg on the 2nd and 3rd days of May 1928, before the Honourable Mr. Justice Rose, and was dismissed with costs. His judgment was based upon the Ontario Statutes of 1925, respecting the United Church, and he held that a statutory title was in the defendants as trustees of the congregation of The United Church. He also found that the congregation represented by the plaintiffs, did not satisfy the terms of the trust deed. He also held that the property came within section 4 of the Act by reason of The Presbyterian Church in Canada having a right or interest therein by reason of chapter 135 of the Ontario Statutes of 1900. [rop 1929 p89];

This was an action brought by the Plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, opposed to Union, to recover property from The United Church congregation, the majority of the Presbyterian congregation having voted in favor of Union. Part of the property had been conveyed to trustees for the congregation in 1844 upon certain trusts, and it was claimed that The United Church congregation could not hold the property in these circumstances. The action was tried at Cobourg in May, 1928, before the Hororable Mr. Justice Rose, and was dismissed. He held that the Defendants, the trustees of The United Church congregation, had a statutory title by virtue of the Ontario Act of 1925 respecting The United Church, that the congregation represented by the Plaintiffs did not fulfil the requirements of the trust deed, and that the property came within section 4 of the Act, by reason of The Presbyterian Church in Canada having a right or interest therein under the provisions of the Ontario Statute of 1900, incorporating the Board of Trustees of the Presbyterian Church in Canada. [rop 1930 p209];

ii. the statement of claim

The defendants allege that the property in question was held by its trustees for the benefit of the congregation in connection with the Presbyterian Church in Canada; that by the Act of 1900 (Ont.), c. 135, the Presbyterian Church in Canada became entitled to an interest therein [Aird v. Johnson {1929} 4 D.L.R. 665];

By an Act incorporating The Board of Trustees of The Presbyterian Church in Canada, chapter 135, 63 Victoria, (Ontario), The Presbyterian Church in Canada through its Board of Trustees became entitled to an interest in the lands held by the said trustees in certain events and by virtue of the legislation respecting the United Church of Canada, referred to in the succeeding paragraph hereof, The United Church of Canada succeeded to the interest of The Presbyterian Church in Canada in the said lands. [Statement of Defence article 7];

so as to be binding upon The United Church of Canada within the Province of Ontario; and

iii. internal correspondence

generally:

A number of questions have been brought before your Committee for consideration and action affecting the title to properties of the congregations of The United Church in the different Provinces of Canada, particularly cases where litigation has been started in respect of these properties, the more important of these bases being in British Columbia, Nova Scotia, Ontario, Quebec and New Brunswick. The general policy your Committee has adopted is that your Committee should not incur any financial responsibility in connection with litigation relating to local churches unless the issue raised some general principle or other question of general importance that might affect the position of the Church in relation to other titles and properties. Where the issue involved some general principle affecting titles and properties, your Committee has undertaken to give assistance where they have deemed that the case justified it. As these cases arise from time to time and require prompt consideration and action, we recommend that your Committee be empowered to take such action, in accordance with the above general principles, as may appear necessary from time to time to conserve the interests of The United Church. [Report of Law Committee to the Executive of the General Council, December l, 1925];

"...you can readily see how impossible it would be for The United Church itself to assume financial responsibility for all this litigation except in cases where some fundamental principle of the Act has been challenged" [R. B. Whitehead re Sheffield application, December 14, 1925], the action in 1927 listed G. W. Mason, K.C. Counsel for the Defendant The United Church of Canada;

and specific to Aird v. Johnson [1929] 4 D.L.R. 664:

Toronto 2, June 7, 1929.

Peter J. Hughes, Esq., K.C., Fredericton N. B.

Dear Sir:-

Aird vs Johnston.

Our Appellate Division has handed out judgment dismissing the plaintiffs' appeal herein. While we succeeded the reasons for judgment are unsatisfactory. They do not deal with the effect of section 6 at all. The Chief Justice puts his judgment on the ground that the congregation had consented to bring its property under section 4 at a special vote taken for the purpose and that this vote was taken notwithstanding that before the taking of the vote local union with the Methodist congregation had been formed and notwithstanding the fact that the litigation had been commenced before the vote was taken. He finds that by virtue of section 4 and the section relating to trusts, The United Church congregation was entitled to the property. He observed that the statute of 1900 in Ontario corresponding to your statute of 1907 appointing a Board of Trustees did not vest any interest in The Presbyterian Church as a denomination because the congregation had not ceased to exist. This is an unfortunate observation as he has failed to observe that the right is an existing right although its operation does not arise until the happening of some subsequent event.

Mr. Justice Middleton says that on the entry of the congregation into The United Church it carried with it its congregational property and, by virtue of the statute such entry did no violation to the trusts. No appeal is likely to be taken.

I hope to be able to forward a copy of the reasons shortly.

Yours truly,
G. Mason;

Toronto 2, August 30, 1929.

Hon. N. W. Rowell, K. C.,
38 King Street West,
Toronto 2.

Dear Mr. Rowell:-

Referring to our conversation of yesterday, two points have arisen in connection with the interpretation of section 6 of the Provincial legislation respecting The United Church.

Mr. Justice Rose held in two cases, Main vs The United Church and Aird vs Johnston, that section 6 was not applicable to the property in question although there was nothing in the deeds creating any interest in the property in favor of the denomination, because of the provisions of chapter of the Ontario statutes of 1900, Section 5 of this statute states that all lands which have been or shall hereafter at any time be held by any trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the Board of Trustees of The Presbyterian Church in Canada on trust to sell the same and pay over the proceeds of the sale to the treasurer of the Church for the benefit of the Home Mission Scheme or as may be otherwise determined by the General Assembly. There was similar legislation in nearly all of the provinces including New Brunswick, and in preparing the legislation it was thought that the effect of the provision was to prevent the real property of any congregation in such provinces coming under section 6 because section 6 applies only to property which a congregation holds solely for its own benefit and in which the denomination has no right or interest, reversionary or otherwise. In the Appellate Division, however, in the Aird vs Johnston appeal the Chief Justice held that this section 5 above mentioned applies only- (a) to a congregation which at the passing of this Act (April 30, 1900) shall have ceased to exist and (b) to a congregation which has become disorganized. The St. Andrew's congregation at Grafton has not, when section 5 came into effect, ceased to exist and there is no evidence that it had become disorganized. Therefore, in my opinion, section 5 does not operate in the interests of the congregation in said property and the same is not subject to the provision of section 4, unless and until a congregation "at a meeting thereof regularly called for the purpose, consent that such provision shall apply" to said property. [G. Mason, pp1-2];

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

Anglin C.J.C. (Rinfret J. concurring)
It follows that the property of the St. James congregation became vested in the United Church under the provisions of s. 4 of the Provincial Act, unless, and except in so far as, it fell within s. 6, to the provisions of which s. 4 was expressly made subject. This s. 6, which is the vital provision to be considered, reads as follows:

6. 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 section 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 Sections 3 and 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.

By earlier legislation of the province of New Brunswick, set forth at length by the Chief Justice in his judgment, to wit, c. 11, 1 William IV, (1831), c. 18, 2 William IV, (1832), c. 15, 3 William IV, (1833), c. 48, 38 Vic., (1875), and c. 99, 38 Vic., (1875), it was made abundantly clear that the property of St. James Presbyterian Church at Newcastle was vested fully and absolutely, and to all intents and purposes, and without qualification, in the Trustees of that church. It is said, however, for the respondents, that by a New Brunswick Act of 1907 (7 Edw. VII, c. 79), a reversionary right or interest therein was created in "The Board of Trustees of the Presbyterian Church in Canada, Eastern Section," because of the provision, that

6. 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 in 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 Home Mission scheme thereof, or as may be otherwise determined by the Synod of the said church.

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.

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. 642, 646]

Newcombe J.
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.
The congregation of St. James Presbyterian Church, not having voted non-concurrence within the time fixed therefor by statute, became merged in the United Church of Canada on June 10th, 1925, by virtue of section 4 of the United Church of Canada Act (Dom.), 14-15 Geo. V, c. 100. Thereafter as a congregation it was part of the United Church.

The statutory provisions dealing particularly with the property of a congregation joining the Union, are sections 3, 4 and 6 of the New Brunswick Act, which are embodied in sections 5, 6 and 8 of the Dominion Act. Section 3 of the local Act, with certain reservations, vests in the United Church the properties of the uniting church organizations as distinguished from properties of the congregations. Section 4 deals with congregational property and provides that, subject to section 6, all property within the province belonging to or held in trust for any congregation of any of the negotiating churches shall, from the coming into force of the section, be held, used and administered for the benefit of the same congregation as a part of the United Church, upon the trusts and subject to the provisions of a Model Deed set forth in the schedule. The property, therefore, of every congregation entering the Union was thereafter held by the trustees thereof upon the terms contained in the Model Deed, except in those cases falling within section 6. Section 6, upon which the appellants rely, reads as follows:--

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 section 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 Sections 3 and 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.

It was contended that under certain New Brunswick statutes the Trustees of St. James Presbyterian Church held the church property in trust solely for the benefit of the congregation thereof and that the Presbyterian Church in Canada, as a denomination, had no right or interest, reversionary or otherwise, therein.

In the view I take of the rights of the parties, it is unnecessary to determine whether or not the contention is well founded. I will assume that it is, and that the denomination had no right or interest in the congregational property. As there was no consent given by the congregation to the application of the provisions of section 3 or section 4 to its property as provided for in section 6, those sections do not apply, and the only question is: For whom do the trustees, in whose names the property is vested, hold it in trust?

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*). The scheme of the legislation which brought about the union of the churches was to permit the majority to determine the action of the congregation. If the majority decided to enter the Union, the congregation, as a congregation, became part of the United Church. If the majority decided against entering the Union, the congregation remained outside the Union with all its property. The majority spoke for the congregation. The congregation of St. James Presbyterian Church, by entering the Union, effected a change in its name but not of its identity. Under the Act it was still the same congregation although some of its members refused to go with it into the Union. Those who did go thereafter constituted the congregation, and the trustees in whose names its property was vested held it after the Union for the benefit of that congregation, as a congregation of the United Church. Without the consent of the congregation duly given, as provided in section 6, the congregational property cannot be vested in the United Church nor brought under the terms of the Model Deed, but I fail to find anything in any of the legislation indicating an intention that a congregation on entering the Union was either to forfeit its property or share it with former members thereof now non-concurring, because it preferred to continue keeping for itself the absolute control over its own property and refused to give the United Church any interest therein or control thereover. The congregation, as it is constituted at the present time, is alone, in my opinion, beneficially interested in the property and entitled thereto. This, as I see it, is the meaning and intent of the legislation. [1930 S.C.R. 660-663]

* ...having the right to unite with one another without loss of their identity [preamble to The Dominion Act];

[it should be noted that any other interpretation of statute relating to congregation properties of the former Presbyterian Church in Canada, viz.

As soon as the Union takes place, all property real or personal within New Brunswick, now belonging to or held in trust for or to the use of any Congregation in connexion or communion with the Presbyterian Church of New Brunswick, now united with the aforesaid Presbyterian Church of the Lower Provinces, 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."
But all such property, real or personal, as is affected by this Act, shall in all respects, save as aforesaid, be held and administered as nearly as may be in the same manner, and subject to the same conditions, as provided by the Deeds of Trust, Acts of Incorporation, or other instruments of authority under which the same is now held or administered.{New Brunswick 1875 c. 99 An Act respecting the union of certain Presbyterian Churches therein named, sections 1, 6};

is addressed by "by earlier legislation of the province of New Brunswick, set forth at length by the Chief Justice in his judgment, to wit, c. 11, 1 William IV, (1831), c. 18, 2 William IV, (1832), c. 15, 3 William IV, (1833), c. 48, 38 Vic., (1875), and c. 99, 38 Vic., (1875), it was made abundantly clear that the property of St. James Presbyterian Church at Newcastle was vested fully and absolutely, and to all intents and purposes, and without qualification, in the Trustees of that church"; "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"; "the denomination had no right or interest in the congregational property"; "the congregation, as it is constituted at the present time, is alone, in my opinion, beneficially interested in the property and entitled thereto" in Ferguson v. MacLean 1930 S.C.R. 630, nor is it contended elsewhere that prior to the Union of 1925 congregation properties of the former Presbyterian Church in Canada were vested in the denomination {for an exhaustive treatment re the vesting prior to 1925 of congregational property related to the Presbyterian Church in Canada, New Brunswick, see Ferguson v. MacLean RS48 - 1926 #101, Chancery Division; or simply, the alleged status of congregation properties in Alberta and Saskatchewan in the disputed bylaw section 266(a)}];

the 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:

i. the previous decision appealed

The congregation of Saint James Presbyterian Church (Newcastle, N.B.), being a congregation of "The Presbyterian Church of Canada" as such, it was legislated into and became merged in the United Church of Canada by virtue of 14 Geo. V. 1924 (Dom.), ch. 100, supplemented by 14 Geo. V, 1924 (N.B.), ch. 59. The Act 7 Edw. VII, 1907 (N.B.), ch. 79, being an Act to incorporate the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, section 6 thereof must be read with section 6 of 14 Geo. V., 1924 (N.B.), ch. 59, and it describes and designates with sufficient clearness such a right vested in the United Church in the congregational property of St. James as would exclude that property from the operation of section 6 of 14 Geo. V., 1924 (N.B.), ch. 59, and no consent of the congregation regularly called for the purpose was necessary in order to vest the property of St. James congregation in the United Church of Canada. [Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 257];

In the year 1907 by the Act of 7 Edward VII, ch. 79, the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, was created. This Act was passed upon the petition and at the request of the Synod of the Maritime Provinces in connection with the Presbyterian Church in Canada, within whose jurisdiction was the said St. James Church.

Section (6) of this Act is as follows:

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 in 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 said Synod of the said Church.

This confers upon the board of trustees created thereby a reversionary interest in the property of all Presbyterian congregations in this Province arising in any case where a congregation ceases to exist or becomes disorganized. Now while this can only happen upon a contingency and as a matter of fact may never happen, still the right or interest in the property exists unless removed by subsequent legislation. The trustees named acquired and still possess an interest by this Act in the property belonging to St. James Church. This church might never cease to exist nor be disorganized, and the beneficial use of or in the lands might never arise, but in any event the legal right existed and still exists. This Act and the above section thereof was in force in 1924 when the Church Union Act became law, and notwithstanding the provisions of sec. 30 thereof, which repeals all acts and portions of acts of this Province inconsistent with the provisions thereof in so far as necessary to give full effect thereto, I am of the opinion it is still in full force and effect so far as sec. 6 thereof is concerned, and taking the two Acts together and considering the purpose intended to be served thereby, there is nothing inconsistent in the portion of the section under consideration, and the rights created under the said sec. 6 (1907) still exist. [Grimmer, J.; Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 283-284];

It was upon the construction of section 6 of 14 Geo. V. ch. 59 (N.B.) that the learned Chief Justice held that the congregational property of Saint James Church did not become vested in the United Church, because a necessary preliminary, the consent of the congregation of Saint James Church, obtained at a meeting thereof regularly called for the purpose, was wanting. The section provides: --

6. The real and 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 section 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 sections 3 and 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.

The question is had the denomination of "The Presbyterian Church in Canada," one of the negotiating denominations, and the denomination to which the congregation of Saint James Church belonged, any right or interest reversionary or otherwise in the congregational property of Saint James Church, and in my opinion, a proper construction of the Act 7th Edw. VII, ch. 79, sec. 6 (N.B.) shows that it had. That is an Act to incorporate the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, and, curiously enough, it does not seem to have been brought to the attention of the learned Chief Justice at the hearing. Such, at any rate, I judge to be the case, for the Chief Justice does not refer to it in his judgment, and in my view of the case failure to mention it in the Court below was an unfortunate omission, because that Act contains, in my opinion, a provision which we cannot overlook but are obliged to consider in determining one of the questions arising in this controversy. The section to which I allude is as follows: --

6. 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, in 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 Synod of the said church.

It will be observed that the proviso to section 4 of 14 Geo. V. ch. 59 (N.B.) contains a somewhat analogous provision, namely, that in the event of failure or partial failure of the special trusts upon which any congregational property is held, the property, in the absence of any express provision for such an event, may be held, used, administered and disposed of by The United Church. Lands and premises belonging to the congregation of Saint James Church at Newcastle were held by the Trustees of that church, a corporation created by 2 Wm. IV. ch. 18, sec. 9 (3 L. & P. Stat. N.B. 378) for the use of the congregation. And now by virtue of section 6 of the Act of 1907 above set out, should that congregation cease to exist or become disorganized, the congregational property vests "in the said Board of Trustees," i.e., "The Board of Trustees of the Presbyterian Church in Canada, Eastern Section," the corporation created by the first section of the same Act (7 Edw. VII. ch. 79). Should the congregation of Saint James Church cease to exist or become disorganized, either of which contingencies though perhaps remote, is not impossible, then its lands and premises become vested in the Board of Trustees of The Presbyterian Church in Canada created by the Act, and are to be disposed of as provided for in this section. That seems to me to be clear. Though neither of the contingencies mentioned may happen, still there is the right in case one of them does happen. Having such a right, The Presbyterian Church in Canada cannot be said to have no right or interest in the property of such congregation. A reversionary interest is a sufficient right or interest. A grantor's reversion in real property is, as we know, deemed an actual vested estate although the grantor is said to be entitled to and not to be seized of such an estate. Reading this section and section 6 of 14 Geo. V. c. 59 (N.B.) together and giving to the language employed its plain, ordinary and grammatical meaning, I am of the opinion that the language of section 6 of ch. 79, Acts of 1907, describes and designates wish sufficient clearness, such a right vested in the United Church in the congregational property of Saint James Church as would exclude that property from the operation of section 6 of "The United Church of Canada Act" (N.B.): and that no consent of the congregation regularly called for the purpose was or is necessary or requisite in order to vest the property of Saint James Church congregation in The United Church of Canada. The congregational property went with the congregation when the latter voted itself into the Union, or, perhaps it would be more correct to say when it declined to vote itself out of the Union, as the evidence clearly shows that it did. If this view of the case is to prevail, it follows that the judgment of the learned Chief Justice on this branch of the case must be reversed, and the legal title of the congregational property of Saint James Church declared to be in The United Church of Canada in trust for the use and benefit of the Newcastle congregation of that church. [Barry, C.J., K.B.D.; Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 267-270];

I concur in the judgments of both my brother Barry, C.J., K.B.D., and Grimmer, J. [White, J.; Ferguson v. MacLean New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 275];

By the judgment of the Appeal Division the defendants' appeal was allowed with costs and the plaintiffs' cross-appeal was dismissed with costs, and the plaintiffs' suit was dismissed with costs. Grimmer J. and Barry, C.J. K.B., each delivered a written judgment, and White J. agreed in the result with them both. Both Grimmer J. and Barry, C.J. K.B., held (agreeing with the trial judge in this respect) that the votes were legal and proper votes. They also held that, by virtue of 7 Edw. VII, c. 79, s. 6 (N.B.), the Presbyterian Church in Canada, the denomination to which the St. James Church belonged, had a "right or interest, reversionary or otherwise" in the congregational property, within the meaning of s. 6 of c. 59, 14 Geo. V, N.B., and therefore the property was excluded from the operation of that section [Ferguson v. MacLean 1930 S.C.R. 635];The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929. [Law and Legislation, rop 1930 p214];

The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929. [Law and Legislation, rop 1930 p214];

ii. Respondent's Factum

In 1907 by 7 Edward V., Chapter 79 (N.B.) "The Board of Trustees of The Presbyterian Church In Canada, Eastern Section," was incorporated. Section 6 is as follows:

"6. 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 in 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 said synod of the said Church."

It is submitted that that section gives the said Board a reversionary interest in the property of all Presbyterian congregations in New Brunswick arising in case any such congregation should cease to exist or become disorganized, in which case the proceeds of the sale of the property is to be used for the uses of the church in general. Although this right is one which arises only on contingency that does not deprive it of being a right or interest in the property. The Board of Trustees of The Presbyterian Church In Canada, Eastern Section, had an interest in the property belonging to St. James Presbyterian Church in Newcastle. That provision was in force in 1924 when the Church Union Act was passed, and therefore it is submitted that Section 6 of the Act has no application to the properties in question. [Ferguson v. MacLean 1930 S.C.R., Respondent's Factum pp12-13];

so as to be binding upon The United Church of Canada; and

iii. internal correspondence

There has been no case yet, arising out of church union legislation, where the claim that the legislation is ultra vires has been tried out. There have been judgments which have interpreted the legislation. [G. Mason, November 16, 1928, p6];

It is, therefore, not accurate to say that property held under section 4 is held by The United Church. It is held by the trustees for the congregation, but subject to the control indicated in the above provisions of the Model Deed and subject to The United Church becoming the owner of the property in the event of the congregation ceasing to be an organized congregation.

For the above reasons I think that the expression in paragraph (2) of the grounds of appeal "to vest the property in The United Church" is not quite accurate and that it would be more accurate to say "to vest the property in the trustees for the congregation under the provisions of section 4 of the New Brunswick Act of 1924". [Mason, August 8, 1929];

where the United Church of Canada as respondent was intimately aware or ought to have been intimately aware of Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630 and former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), interpretation as inconsistent with

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; and

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"

i. Main vs. The United Church of Canada
This was an action tried before the Honorable Mr. Justice Rose at Hamilton, Ontario, November 22nd, 1927.
The action was instituted by persons claiming to be members and adherents of, and trustees for, the United Brethren Association Congregation, Village of Sheffield, against The United Church of Canada, and the Session and Committee of Stewards of Sheffield Congregation of The United Church of Canada, claiming the property of the Sheffield congregation on the ground that it was still the property of the plaintiffs.
The judgment of the court was in favor of the defendants, and is authority for the principle that a congregation could be received into the former Presbyterian Church in Canada before the passing of The United Church of Canada Act, by the action of the congregation as a body resolving to become a congregation of that Church, and the action of Presbytery in accepting the congregation as a congregation of the Presbyterian Church in Canada.
The congregation having voted to go into the Union under The United Church of Canada Act (Ontario), section 4, of the Ontario Act of 1925, applies unless displaced by section 6. Section 4 provides that after the passing of this Act, congregational property is held by the trustees for the congregations, as a part of The United Church of Canada. Section 6 provides that congregational property held by the trustees solely for its own benefit, and in which the denomination to which such congregations belongs, has no right or interest, reversionary or otherwise, shall not be affected by section 4 unless and until such congregation consents that section 4 shall apply. It was held that the effect of section 5, of chapter 135, of the Ontario Statutes of 1900 (Act incorporating the Board of trustees of the Presbyterian Church in Canada), was to vest in the Presbyterian Church in Canada a right or interest, reversionary or otherwise, in the Presbyterian Church in Canada, within the meaning of section 6, of The United Church of Canada Act, and that section 4, of The United Church of Canada Act applied. [The Committee on Law and Legislation, rop 1928 pp163-164];

ii. Aird vs. Johnson
This was an action brought by the plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, who voted against union, to recover the property from The United Church congregation. The congregation voted in favor of union by a majority of 19, the vote being 49 to 30. The plaintiffs claimed that they were the only congregation which satisfied the terms of the trusts in a deed of the Church and cemetery property made by John Grover in 1844. The action was tried at Cobourg on the 2nd and 3rd days of May 1928, before the Honourable Mr. Justice Rose, and was dismissed with costs. His judgment was based upon the Ontario Statutes of 1925, respecting the United Church, and he held that a statutory title was in the defendants as trustees of the congregation of The United Church. He also found that the congregation represented by the plaintiffs, did not satisfy the terms of the trust deed. He also held that the property came within section 4 of the Act by reason of The Presbyterian Church in Canada having a right or interest therein by reason of chapter 135 of the Ontario Statutes of 1900.
He found it unnecessary to deal with other defences raised.
An appeal was taken was argued before the First Appellate Division of the Supreme Court of Ontario, on April 15th, 1929, and on April 22nd, 1929. Judgment was reserved.*
*Judgment was delivered 4th of June, dismissing the appeal with costs. [The Committee on Law and Legislation, rop 1929 p89];

This action was brought by the Plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, opposed to Union, to recover property from The United Church congregation, the majority of the Presbyterian congregation having voted in favor of Union. Part of the property had been conveyed to trustees for the congregation in 1844 upon certain trusts, and it was claimed that The United Church congregation could not hold the property in these circumstances. The action was tried at Cobourg in May, 1928, before the Hororable Mr. Justice Rose, and was dismissed. He held that the Defendants, the trustees of The United Church congregation, had a statutory title by virtue of the Ontario Act of 1925 respecting The United Church, that the congregation represented by the Plaintiffs did not fulfil the requirements of the trust deed, and that the property came within section 4 of the Act, by reason of The Presbyterian Church in Canada having a right or interest therein under the provisions of the Ontario Statute of 1900, incorporating the Board of Trustees of the Presbyterian Church in Canada.
An appeal was taken to the First Appellate Division of the Supreme Court of Ontario, and was dismissed in June, 1929. The Chief Justice of Ontario placed his judgment on the ground that section 4 of the Act became applicable to the property by reason of a consent to that effect given by the congregation under section 6 of the Act, on the 5th of April, 1928, and that section 17 of the Act vested in The United Church the power of determining how the trusts were to be performed. Mr. Justice Magee held that it had not been shown that the provisions of the trust deed were not being complied with by The United Church congregation. Mr. Justice Middleton adopted the statement of Mr. Justice Orde in McLean vs. Ballantyne, 62 O.L.R. at 451:-"The entry into The United Church of any Presbyterian congregation carried with it the congregational property, and in the eyes of the law did no violation to the trusts upon which property was held.". [Law and Legislation, rop 1930 p209];

Judgment in this action was delivered the 4th day of June, 1929, dismissing the appeal of the Presbyterian Congregation at Grafton. [Committee on Law and Legislation, year book 1930 p77];

iii. Ferguson vs. McLean
This is an action brought by persons claiming to act on behalf of themselves and all communicants, pew-holders and adherents of St. James Presbyterian Church at Newcastle, New Brunswick, against the ministers, members of session and other officers of The United Church at Newcastle, seeking to recover the property of the congregation, which had voted in favor of Union by a very large majority.
The plaintiffs contended that pew-holders and adherents had been excluded from voting, and that the vote should be set aside, that the property of the congregation should either be granted to the non-concurrents or should be divided between the non-concurrents and The United Church congregation and that both the Dominion and Provincial legislation respecting The United Church are ultra vires.*
*Judgment was delivered 30th of April in favor of the Plaintiffs. An appeal is now pending. [The Committee on Law and Legislation, rop 1929 p90];

Judgment was delivered the 30th of April, 1929, in favor of the Newcastle Non-Concurring Congregation. An Appeal was taken from the judgement to the Supreme Court of Canada. It was argued on the 28th day of April, 1930, and judgment was reserved. [Committee on Law and Legislation, year book 1930 p77];

This was an action brought by persons claiming to act on behalf of themselves and all communicants, pew-holders and adherents of St. James Presbyterian Church at Newcastle, New Brunswick, against the ministers, members of session and other officers of The United Church at Newcastle, seeking to recover the property of the congregation, which had voted in favor of Union by a very large majority.
The plaintiffs contended that pew-holders and adherents had been excluded from voting and that the vote should be set aside, that the property of the congregation should either be granted to the non-concurrents or should be divided between the non-concurrents and The United Church congregation, and that both the Dominion and Provincial legislation respecting The United Church are ultra vires.
The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929.
The plaintiffs appealed to the Supreme Court of Canada and judgment is now pending. [Law and Legislation, rop 1930 p214];

The appeal of the plaintiffs from the judgment of the Appeal Division of the Supreme Court of New Brunswick was dismissed by the Supreme Court of Canada and the property in question remains the property of the congregation of the Newcastle United Church. [Law and Legislation, rop 1932 p396, year book/rop 1932 p64];

specifically reference to

It was held that the effect of section 5, of chapter 135, of the Ontario Statutes of 1900 (Act incorporating the Board of trustees of the Presbyterian Church in Canada), was to vest in the Presbyterian Church in Canada a right or interest, reversionary or otherwise, in the Presbyterian Church in Canada, within the meaning of section 6, of The United Church of Canada Act, and that section 4, of The United Church of Canada Act applied. [The Committee on Law and Legislation, rop 1928 p164];

He also held that the property came within section 4 of the Act by reason of The Presbyterian Church in Canada having a right or interest therein by reason of chapter 135 of the Ontario Statutes of 1900. [The Committee on Law and Legislation, rop 1929 p89];

and that the property came within section 4 of the Act, by reason of The Presbyterian Church in Canada having a right or interest therein under the provisions of the Ontario Statute of 1900, incorporating the Board of Trustees of the Presbyterian Church in Canada. [Law and Legislation, rop 1930 p209];

The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929. [Law and Legislation, rop 1930 p214];

without any indication that the courts, with respect to Aird vs. Johnson the First Appellate Division of the Supreme Court of Ontario and with respect to Ferguson vs. McLean the Supreme Court of Canada, dismissed such right or interest as applying to section 6 of the respective Provincial Acts, with the effect that unless commissioners to the General Council were in immediate contact with the respective court actions it was unlikely that they would be aware of the significance of the court decisions as they related to existing legislation of the General Council and were thereby deprived from debate as to the lawfulness of such legislation.

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

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;

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 Basis of Union set forth in Schedule A to this Act is hereby ratified and confirmed as such, and in so far as the terms and provisions thereof relating to polity and administration are not inconsistent with the provisions of this Act they shall have the same force and effect as if expressly set out herein. [The United Church of Canada Act, section 26]; and

The United Church of Canada Act authorizes

To make such by-laws, rules or regulations as it may deem expedient for the exercise of any powers conferred by this Act. [section 18(h)];
Notwithstanding anything in this Act contained, it is hereby declared:-
That nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same or any of them, but subject to the conditions and safeguards in that behalf contained in the Basis of Union. [section 28(b)]; and

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

The General Council shall have full power:
To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated. [section 24(2)(b), renumbered to 8.4.2(b), 8.6.2(b); it should be noted that someone has found fit to alter case and the word "this" in the Basis of Union as found in The United Church of Canada Act]; and

the Basis of Union exempts certain properties

Any property or funds owned by a church, charge, circuit, or congregation at the time of the Union solely for its own benefit, or vested in trustees for the sole benefit of such church, charge, circuit, or congregation, and not for the denomination of which the said church, charge, circuit, or congregation formed a part, shall not be affected by the legislation giving effect to the Union or by any legislation of the United Church without the consent of the church, charge, circuit, or congregation for which such property is held in trust. [article 5.4]; and

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

To do all such lawful acts or things as may be requisite to carry out the terms, provisions and objects of the Basis of Union and of this Act. [section 18(j)]; and

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

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;

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

The General Council shall have full power:
To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated. [Basis of Union section 24(2)(b), renumbered to 8.4.2(b), 8.6.2 (2)]

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

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;

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

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;

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;

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

The Basis of Union set forth in Schedule A to this Act is hereby ratified and confirmed as such, and in so far as the terms and provisions thereof relating to polity and administration are not inconsistent with the provisions of this Act they shall have the same force and effect as if expressly set out herein. [The United Church of Canada Act, section 26]; and

The United Church of Canada Act authorizes

To make such by-laws, rules or regulations as it may deem expedient for the exercise of any powers conferred by this Act. [section 18(h)];
Notwithstanding anything in this Act contained, it is hereby declared:-
That nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same or any of them, but subject to the conditions and safeguards in that behalf contained in the Basis of Union. [section 28(b)]; and

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

The General Council shall have full power:
To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated. [section 24(2)(b), renumbered to 8.4.2(b), 8.6.2(b); it should be noted that someone has found fit to alter case and the word "this" in the Basis of Union as found in The United Church of Canada Act]; and

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

To do all such lawful acts or things as may be requisite to carry out the terms, provisions and objects of the Basis of Union and of this Act. [section 18(j)]; and

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

the Basis of Union exempts certain properties

Any property or funds owned by a church, charge, circuit, or congregation at the time of the Union solely for its own benefit, or vested in trustees for the sole benefit of such church, charge, circuit, or congregation, and not for the denomination of which the said church, charge, circuit, or congregation formed a part, shall not be affected by the legislation giving effect to the Union or by any legislation of the United Church without the consent of the church, charge, circuit, or congregation for which such property is held in trust. [article 5.4]; and

the former bylaw sections 261(b), 112(b), 77(a), 78(a), 34(a), 34, interpret reversionary interest as excluding real property of former Presbyterian congregations from the above exception

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; 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

The General Council shall have full power:
To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated. [Basis of Union section 24(2)(b), renumbered to 8.4.2(b), 8.6.2 (2)]

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;

[it should be noted with respect to

Notwithstanding anything in this Act contained, it is hereby declared:-
That nothing in this Act contained shall be deemed to limit the independent and exclusive right and power of The United Church to legislate in all matters concerning its doctrine, worship, discipline and government, including therein the right and power from time to time to frame, adopt, alter, change, add to or modify its laws, subordinate standards and formulas and to determine and declare the same or any of them, but subject to the conditions and safeguards in that behalf contained in the Basis of Union. {The United Church of Canada Act section 28(b)}; and

the safeguards

The General Council shall have full power:
To legislate on matters respecting the doctrine, worship, membership and government of the Church, subject to the conditions: First, that before any rule or law relative to these matters can become a permanent law, it must receive the approval of a majority of the Presbyteries, and, if advisable, pastoral charges also; Second, that no terms of admission to full membership shall be described other than those laid down in the New Testament; and, Third, that the freedom of worship at present enjoyed in the negotiating Churches shall not be interfered with in the United Church. [Basis of Union section 24(2)(a)];
To legislate on all matters respecting property, subject to the limitations elsewhere provided in this Basis of Union, and subject also to the approval of the Conference in which the property is situated. {Basis of Union section 24(2)(b)};

section 24(2)(b) references legislation relating to bylaws, subordinate standards and formulas as "subject to the limitations elsewhere provided in this Basis of Union" would appear to make changes to permanent law affecting property ultra vires; and

it should also be noted with respect to the former Basis of Union section 7, renumbered to 5.4, the Appendix on Law, referenced by the first General Councils {1925 rop pp253-254; 1926 rop pp403-404; 1927 rop pp151-152; 1928 rop pp497-498 appended} and included in The Manual until 1964, is not part of The United Church of Canada Act and references a schedule to be attached to the Act, "to avoid uncertainty as to title, all churches, charges, circuits or congregations coming within the provision of this clause should be named in a schedule attached to the Act, and the provisions of this section should be limited to the churches, charges, circuits or congregations so enumerated in the schedule", which was abandoned September 26, 1923 as impossible

"It was also agreed that the proposed schedule 'D' to include properties held solely for the benefit of congregations should not include property in which the denomination to which the congregations belongs has any interest, reversionary or otherwise...
"It concluded that it would be impossible to prepare the proposed schedule 'D.'" {Gershom W. Mason, 'The Legislative Struggle for Church Union', The Ryerson Press, Toronto 1956 p24}

and is not found either as a schedule attached to the Act, or as any other schedule within The United Church of Canada, though it was recognized at an early date that such alleged schedule applied to congregations of the former Presbyterian Church in Canada within Saskatchewan

Congregational Property in Saskatchewan.
We recommend that the Executive of the General Conference be authorized to secure such action as in their opinion may be necessary to place the holding of title to congregational property in Saskatchewan on a similar basis as that which exists in other provinces. {rop 1934 p76};

and recognized that such alleged schedule applied to congregations of the former Congregational Churches in Canada

The exception does apply to property of a Congregation of the former Congregational Churches. {former bylaw section 78(a), 1946}

__________

APPENDIX ON LAW

1. When a Basis of Union has been agreed upon by the negotiating Churches, the union should be consummated and The United Church incorporated by a Special Act of the Parliament of Canada.

2. The Act of the Parliament of Canada consummating the Union and incorporating The United Church should contain, among others, provisions to the following effect:

(1) Ratifying and confirming the Basis of Union as agreed upon, and empowering The United Church to acquire and hold property.

(2) Making clear (a) that The United Church shall have the powers of legislation mentioned in paragraph 24, section (2) of the Polity section of the Basis of Union, subject to the safeguards thereby imposed, in such full and ample manner as to render impossible the existence in connection with The United Church of the conditions which have arisen in Scotland in connection with The United Free Church of Scotland, under the decision of the House of Lords, touching its property and doctrine.

(b) That all the estate, real and personal, belonging to or held in trust for or to the use of the negotiating Churches, or belonging to or held in trust for or to the use of any corporation under the government or control of, or in connection with, any of the said negotiating Churches, shall be vested in The United Church or in Boards, Committees or Corporations under the control thereof, and shall be used and administered in accordance with the terms and provisions of the Basis of Union.*

Note.-This provision would cover all property which might properly be described as denominational property.

(c) That, subject to the provisions of the next succeeding paragraph hereof, all property, real and personal, under the jurisdiction of the Parliament of Canada held in trust for or to the use of a church, charge, circuit or congregation of any of the negotiating Churches, shall be held by trustees appointed by or on behalf of such church, charge, circuit or congregation, upon trusts set forth and declared in a Model Trust Deed.

This Model Trust Deed should be a schedule to the Act and should contain, among others, a provision to the following effect : That the property is held for the church, charge, circuit, or congregation as a part of The United Church, and that no property so held shall be sold, exchanged, or in any manner encumbered unless the Presbytery shall, at the instance of the church, charge, circuit or congregation, have given its sanction, subject to an appeal, if desired, to the Conference.

(d) That any property or funds owned by a church, charge, circuit or congregation at the time of the union solely for its own benefit, or vested in trustees for the sole benefit of such church, charge, circuit or congregation, and not for the denomination of which the said church, circuit or congregation formed a part, shall not be affected by the legislation giving effect to the union or by any legislation of The United Church without the consent of the church, charge, circuit or congregation for which said property is held in trust.

Note.-To avoid uncertainty as to title, all churches, charges, circuits or congregations coming within the provision of this clause should be named in a schedule attached to the Act, and the provisions of this section should be limited to the churches, charges, circuits or congregations so enumerated in the schedule.

(e) That all lands, premises and property acquired for the use of a local church or pastoral charge of The United Church shall be held, used and administered upon the trusts of the said Model Trust Deed above referred to.

3. Special acts of the Legislatures of the several Provinces of the Dominion and of Newfoundland and the Bermudas and any other country in which the negotiating Churches hold property should be obtained, containing similar provisions and vesting in the manner above indicated the above and like classes of property and interests over which the said Legislatures may respectively have jurisdiction, and rendering effective in the said several jurisdictions the other provisions relating to the said union.

*At a meeting of the Presbyterian Union Committee held on December 15th, 1914, it was resolved that "it is expected that in the proposed legislation proper provision will be made to guard the rights or privileges of any minority which may be opposed to Union."

see also E. Lloyd Morrow, 'Church Union in Canada' {Its History, Motives, Doctrine and Government}, Thomas Allen Publisher, Toronto 1923 pp353, 354, 356, 364, 382, 393

Appendix IX.

THE PROPOSED ENABLING LEGISLATION

(a) LETTER OF TRANSMISSION.
(b) REPORT OF COUNSEL RE CHURCH UNION.
(c) PROPOSED DOMINION LEGISLATION.
(d) MODEL TRUST DEED.
(e) PROPOSED PROVINCIAL LEGISLATION.
(f) REPORT OF UNION COMMITTEE OF THE METHODIST CHURCH.

(a) LETTER OF TRANSMISSION.
TORONTO, September 28th, 1922.

REV. J. H. EDMISTON, D.D.
REV. T. ALBERT MOORE, D.D.
REV. W. H. WARRINER, D.D.
Secretaries of the Joint Committee on Church Union.

Dear Sirs:-
I beg to transmit to you herewith the following documents:-
1. Draft bill for the incorporation of the United Church of Canada.
2. Draft Provincial legislation.
3. Report dated Sept. 28, 1922, on the proposed legislation, from Gershom W. Mason, K.C., and McGregor Young, K.C., counsel for the Joint Committee.

These bills, in their present form, embody the amendments made in the original draft by the Committee on Law and Legislation to give effect to the recommendations of the Joint Committee on Church Union at its meeting on Sept. 22, 1922. These amendments are in the form recommended by counsel for the Committee and have been approved by the Joint Committee on Law and Legislation through its Sub-Committee appointed for such purpose. The report of counsel enclosed explains the proposed bill and gives the reason for the amendments made. May I respectfully suggest that you forward a copy of counsel's report with these bills to the Supreme Courts of the negotiating Churches?

Yours very truly,
N. W. ROWELL,
Chairman of the Joint Committee on Law and Legislation.
TORONTO, September 28th, 1922.

(b) REPORT OF COUNSEL RE CHURCH UNION.

HON. N. W. ROWELL, K. C.
Chairman,
Sub-Committee on Law and Legislation.
38 King Street West, Toronto.

Dear Sir:-

Re-CHURCH UNION

Pursuant to the instructions set out in your letter of the 26th of June last, we have considered the legislation required to give effect to the union of the negotiating churches and have prepared for submission to the Parliament of Canada and the Legislatures of the various provinces of Canada the bills which we think necessary for that purpose. These bills and a form of Model Trust Deed have been already sent to you. The Dominion Bill provides for the incorporation of the United Church of Canada and vests in the United Church such property and funds as are under the legislative control of Parliament and gives it power to acquire, hold and administer the property, funds and schemes received from the three churches. The Provincial Bills provide, subject to certain limitations therein set out, that the property of the congregations of the negotiating churches shall vest in the trustees of such congregations as a part of the United Church upon the trusts set out in the Model Trust Deed and that other property of the negotiating churches within the jurisdiction of the provinces shall vest in the United Church. They also provide for the exercise by the United Church of civil rights within the provinces and confirm and supplement the provisions of the Dominion Bill so as to enable the United Church to exercise within the provinces all the powers intended to be conferred upon it by its Act of Incorporation. In preparing the legislation many questions have arisen with which we will deal in the order in which their subject matter arises in the Dominion Bill.

5. SPECIAL CONGREGATIONAL PROPERTY.
Section 7 incorporates the provision in the Basis of Union that congregations owning specific property at the time of union solely for their own benefit and not for the denomination of which they are a part may continue to hold such property unaffected by this legislation. We have adopted the suggestion made in the Appendix on Law that all congregations coming within the scope of this section should be named in a schedule attached to the Bill. We assume that the negotiating churches will take the necessary steps to bring this section to the attention of the proper authorities in order that this schedule may be prepared in ample time and upon proper information. The schedule is also to set out specifically the property affected and before it can be prepared it will be necessary to have satisfactory evidence that such property is in fact the property of the congregation and is not held for the denomination of which it forms a part.

(c) PROPOSED DOMINION LEGISLATION
AN ACT INCORPORATING THE UNITED CHURCH OF CANADA

7. The rights of the several congregations named in Schedule "D" to this Act in regard to their respective properties therein set out, or, with the approval of the Presbytery within whose bounds such property is situate, of any congregation hereafter received into the United Church in regard to any real or personal property belonging to or held by or in trust for or to the use of such congregation, solely for its own benefit, shall not be subject to the provisions of sections four and five hereof, or to the control of the United Church, unless and until any such congregation at a meeting thereof duly called for the purpose shall consent that such provisions shall apply to any such property or a specified part thereof.

(e) PROPOSED DOMINION LEGISLATION

6. The rights of the several congregations named in Schedule "C" to this Act in regard to their respective properties therein set out, or, with the approval of the Presbytery within whose bounds such property is situate, of any congregation hereafter received into the United Church in regard to any real or personal property belonging to or held by or in trust for or to the use of such congregation, solely for its own benefit, shall not be subject to the provisions of sections three and four hereof, or to the control of the United Church, unless and until any such congregation at a meeting thereof duly called for the purpose shall consent that such provisions shall apply to any such property or a specified part thereof.

(f) REPORT OF UNION COMMITTEE OF THE METHODIST CHURCH

Your Committee organized, with Rev. W. R. Young, Chairman, and Mr. J. A. M. Patrick, Secretary.

Your Committee has considered the Proposed Acts incorporating the United Church of Canada, with Trusts of Model Deed, as amended by the Joint Committee on Church Union, and by the Joint Committee on Law and Legislation under the authority of the Joint Committee on Church Union, and Report of Counsel on proposed legislation to be presented to the Dominion Parliament and Provincial Legislatures, and reports as follows:-
We recommend that:-
1. The Acts as printed and distributed to Conference be approved, subject to the following changes and additions thereto:

DOMINION ACT.

(1) Section 7, recommended to be amended by the addition of the following words at the end thereof : "The persons entitled to vote at any meeting of such congregation shall be persons in full membership who are of the age of eighteen (18) years or over"; and

see also C. E. Silcox, 'Church Union in Canada', Institute of Social and Religious Research, New York, 1933 p156

It must be remembered that the sub-committee on Polity did not attempt to draw up a complete system of discipline. By special resolution in the joint committee, questions of worship and discipline were left in abeyance until after the United Church had been formed. The joint committee only sought to lay down in the Basis the fundamental principles of the government, and the church, created or re-created by the Union, was to work out these principles in more minute detail. Because of this, the work of the first General Councils was of necessity largely taken up with the development of codes of procedure and the preparation of a manual, and this was no easy task nor could all the curious and knotty problems that arose be foreseen. Wisdom, however, would seem to have been justified of her children, who proposed to make the experiment and to learn by living, rather than to refuse to move until every possible development had been seen in advance and provided against.

The joint committee, however, made one curious but natural omission. It had specified how the local churches should elect their representatives to presbytery; how presbyteries should elect their representatives to conferences and how conferences should elect their representatives to the General Council. It also gave power to the General Council to establish the boundaries of conferences and to conferences the power to establish the boundaries of presbyteries, but it forgot to say how the first General Council was to be formed, since there could be no conferences to elect representatives to the General Council until the General Council had itself determined the boundaries of the conferences. This matter was, however, foreseen by the committee on Law, when it came to prepare the bill for submission to the Dominion Parliament, and a section was included covering this emergency and providing that the first General Council should consist of 350 members, 150 to be appointed by the General Assembly of the Presbyterian Church, 150 to be appointed by the General Conference of the Methodist Church, 40 to be appointed by the Congregational Union and 10 to be appointed by the General Council of Local Union Churches. (United Church of Canada Act 14-15, George V, S. C. Chapter 100, section 21.)]; and

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:

i. the previous decision appealed

This was an action brought by the plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, who voted against union, to recover the property from The United Church congregation. The congregation voted in favor of union by a majority of 19, the vote being 49 to 30. The plaintiffs claimed that they were the only congregation which satisfied the terms of the trusts in a deed of the Church and cemetery property made by John Grover in 1844. The action was tried at Cobourg on the 2nd and 3rd days of May 1928, before the Honourable Mr. Justice Rose, and was dismissed with costs. His judgment was based upon the Ontario Statutes of 1925, respecting the United Church, and he held that a statutory title was in the defendants as trustees of the congregation of The United Church. He also found that the congregation represented by the plaintiffs, did not satisfy the terms of the trust deed. He also held that the property came within section 4 of the Act by reason of The Presbyterian Church in Canada having a right or interest therein by reason of chapter 135 of the Ontario Statutes of 1900. [rop 1929 p89];

This was an action brought by the Plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, opposed to Union, to recover property from The United Church congregation, the majority of the Presbyterian congregation having voted in favor of Union. Part of the property had been conveyed to trustees for the congregation in 1844 upon certain trusts, and it was claimed that The United Church congregation could not hold the property in these circumstances. The action was tried at Cobourg in May, 1928, before the Hororable Mr. Justice Rose, and was dismissed. He held that the Defendants, the trustees of The United Church congregation, had a statutory title by virtue of the Ontario Act of 1925 respecting The United Church, that the congregation represented by the Plaintiffs did not fulfil the requirements of the trust deed, and that the property came within section 4 of the Act, by reason of The Presbyterian Church in Canada having a right or interest therein under the provisions of the Ontario Statute of 1900, incorporating the Board of Trustees of the Presbyterian Church in Canada. [rop 1930 p209];

ii. the statement of claim

By an Act incorporating The Board of Trustees of The Presbyterian Church in Canada, chapter 135, 63 Victoria, (Ontario), The Presbyterian Church in Canada through its Board of Trustees became entitled to an interest in the lands held by the said trustees in certain events and by virtue of the legislation respecting the United Church of Canada, referred to in the succeeding paragraph hereof, The United Church of Canada succeeded to the interest of The Presbyterian Church in Canada in the said lands. [Statement of Defence article 7];

so as to be binding upon The United Church of Canada within the Province of Ontario; and

iii. internal correspondence

generally:

A number of questions have been brought before your Committee for consideration and action affecting the title to properties of the congregations of The United Church in the different Provinces of Canada, particularly cases where litigation has been started in respect of these properties, the more important of these bases being in British Columbia, Nova Scotia, Ontario, Quebec and New Brunswick. The general policy your Committee has adopted is that your Committee should not incur any financial responsibility in connection with litigation relating to local churches unless the issue raised some general principle or other question of general importance that might affect the position of the Church in relation to other titles and properties. Where the issue involved some general principle affecting titles and properties, your Committee has undertaken to give assistance where they have deemed that the case justified it. As these cases arise from time to time and require prompt consideration and action, we recommend that your Committee be empowered to take such action, in accordance with the above general principles, as may appear necessary from time to time to conserve the interests of The United Church. [Report of Law Committee to the Executive of the General Council, December l, 1925];

"...you can readily see how impossible it would be for The United Church itself to assume financial responsibility for all this litigation except in cases where some fundamental principle of the Act has been challenged" [R. B. Whitehead re Sheffield application, December 14, 1925], the action in 1927 listed G. W. Mason, K.C. Counsel for the Defendant The United Church of Canada;

and specific to Aird v. Johnson [1929] 4 D.L.R. 664:

Toronto 2, June 7, 1929.

Peter J. Hughes, Esq., K.C., Fredericton N. B.

Dear Sir:-

Aird vs Johnston.

Our Appellate Division has handed out judgment dismissing the plaintiffs' appeal herein. While we succeeded the reasons for judgment are unsatisfactory. They do not deal with the effect of section 6 at all. The Chief Justice puts his judgment on the ground that the congregation had consented to bring its property under section 4 at a special vote taken for the purpose and that this vote was taken notwithstanding that before the taking of the vote local union with the Methodist congregation had been formed and notwithstanding the fact that the litigation had been commenced before the vote was taken. He finds that by virtue of section 4 and the section relating to trusts, The United Church congregation was entitled to the property. He observed that the statute of 1900 in Ontario corresponding to your statute of 1907 appointing a Board of Trustees did not vest any interest in The Presbyterian Church as a denomination because the congregation had not ceased to exist. This is an unfortunate observation as he has failed to observe that the right is an existing right although its operation does not arise until the happening of some subsequent event.

Mr. Justice Middleton says that on the entry of the congregation into The United Church it carried with it its congregational property and, by virtue of the statute such entry did no violation to the trusts. No appeal is likely to be taken.

I hope to be able to forward a copy of the reasons shortly.

Yours truly,
G. Mason;

Toronto 2, August 30, 1929.

Hon. N. W. Rowell, K. C.,
38 King Street West,
Toronto 2.

Dear Mr. Rowell:-

Referring to our conversation of yesterday, two points have arisen in connection with the interpretation of section 6 of the Provincial legislation respecting The United Church.

Mr. Justice Rose held in two cases, Main vs The United Church and Aird vs Johnston, that section 6 was not applicable to the property in question although there was nothing in the deeds creating any interest in the property in favor of the denomination, because of the provisions of chapter of the Ontario statutes of 1900, Section 5 of this statute states that all lands which have been or shall hereafter at any time be held by any trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the Board of Trustees of The Presbyterian Church in Canada on trust to sell the same and pay over the proceeds of the sale to the treasurer of the Church for the benefit of the Home Mission Scheme or as may be otherwise determined by the General Assembly. There was similar legislation in nearly all of the provinces including New Brunswick, and in preparing the legislation it was thought that the effect of the provision was to prevent the real property of any congregation in such provinces coming under section 6 because section 6 applies only to property which a congregation holds solely for its own benefit and in which the denomination has no right or interest, reversionary or otherwise. In the Appellate Division, however, in the Aird vs Johnston appeal the Chief Justice held that this section 5 above mentioned applies only- (a) to a congregation which at the passing of this Act (April 30, 1900) shall have ceased to exist and (b) to a congregation which has become disorganized. The St. Andrew's congregation at Grafton has not, when section 5 came into effect, ceased to exist and there is no evidence that it had become disorganized. Therefore, in my opinion, section 5 does not operate in the interests of the congregation in said property and the same is not subject to the provision of section 4, unless and until a congregation "at a meeting thereof regularly called for the purpose, consent that such provision shall apply" to said property. [G. Mason, pp1-2];

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:

i. the previous decision appealed

By the judgment of the Appeal Division the defendants' appeal was allowed with costs and the plaintiffs' cross-appeal was dismissed with costs, and the plaintiffs' suit was dismissed with costs. Grimmer J. and Barry, C.J. K.B., each delivered a written judgment, and White J. agreed in the result with them both. Both Grimmer J. and Barry, C.J. K.B., held (agreeing with the trial judge in this respect) that the votes were legal and proper votes. They also held that, by virtue of 7 Edw. VII, c. 79, s. 6 (N.B.), the Presbyterian Church in Canada, the denomination to which the St. James Church belonged, had a "right or interest, reversionary or otherwise" in the congregational property, within the meaning of s. 6 of c. 59, 14 Geo. V, N.B., and therefore the property was excluded from the operation of that section [Ferguson v. MacLean 1930 S.C.R. 635];The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929. [Law and Legislation, rop 1930 p214];

The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929. [Law and Legislation, rop 1930 p214];

ii. Respondent's Factum

In 1907 by 7 Edward V., Chapter 79 (N.B.) "The Board of Trustees of The Presbyterian Church In Canada, Eastern Section," was incorporated. Section 6 is as follows:

"6. 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 in 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 said synod of the said Church."

It is submitted that that section gives the said Board a reversionary interest in the property of all Presbyterian congregations in New Brunswick arising in case any such congregation should cease to exist or become disorganized, in which case the proceeds of the sale of the property is to be used for the uses of the church in general. Although this right is one which arises only on contingency that does not deprive it of being a right or interest in the property. The Board of Trustees of The Presbyterian Church In Canada, Eastern Section, had an interest in the property belonging to St. James Presbyterian Church in Newcastle. That provision was in force in 1924 when the Church Union Act was passed, and therefore it is submitted that Section 6 of the Act has no application to the properties in question. [Ferguson v. MacLean 1930 S.C.R., Respondent's Factum pp12-13]; and

iii. internal correspondence

There has been no case yet, arising out of church union legislation, where the claim that the legislation is ultra vires has been tried out. There have been judgments which have interpreted the legislation. [G. Mason, November 16, 1928, p6];

It is, therefore, not accurate to say that property held under section 4 is held by The United Church. It is held by the trustees for the congregation, but subject to the control indicated in the above provisions of the Model Deed and subject to The United Church becoming the owner of the property in the event of the congregation ceasing to be an organized congregation.

For the above reasons I think that the expression in paragraph (2) of the grounds of appeal "to vest the property in The United Church" is not quite accurate and that it would be more accurate to say "to vest the property in the trustees for the congregation under the provisions of section 4 of the New Brunswick Act of 1924". [Mason, August 8, 1929];

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"

i. Main vs. The United Church of Canada
This was an action tried before the Honorable Mr. Justice Rose at Hamilton, Ontario, November 22nd, 1927.
The action was instituted by persons claiming to be members and adherents of, and trustees for, the United Brethren Association Congregation, Village of Sheffield, against The United Church of Canada, and the Session and Committee of Stewards of Sheffield Congregation of The United Church of Canada, claiming the property of the Sheffield congregation on the ground that it was still the property of the plaintiffs.
The judgment of the court was in favor of the defendants, and is authority for the principle that a congregation could be received into the former Presbyterian Church in Canada before the passing of The United Church of Canada Act, by the action of the congregation as a body resolving to become a congregation of that Church, and the action of Presbytery in accepting the congregation as a congregation of the Presbyterian Church in Canada.
The congregation having voted to go into the Union under The United Church of Canada Act (Ontario), section 4, of the Ontario Act of 1925, applies unless displaced by section 6. Section 4 provides that after the passing of this Act, congregational property is held by the trustees for the congregations, as a part of The United Church of Canada. Section 6 provides that congregational property held by the trustees solely for its own benefit, and in which the denomination to which such congregations belongs, has no right or interest, reversionary or otherwise, shall not be affected by section 4 unless and until such congregation consents that section 4 shall apply. It was held that the effect of section 5, of chapter 135, of the Ontario Statutes of 1900 (Act incorporating the Board of trustees of the Presbyterian Church in Canada), was to vest in the Presbyterian Church in Canada a right or interest, reversionary or otherwise, in the Presbyterian Church in Canada, within the meaning of section 6, of The United Church of Canada Act, and that section 4, of The United Church of Canada Act applied. [The Committee on Law and Legislation, rop 1928 pp163-164];

ii. Aird vs. Johnson
This was an action brought by the plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, who voted against union, to recover the property from The United Church congregation. The congregation voted in favor of union by a majority of 19, the vote being 49 to 30. The plaintiffs claimed that they were the only congregation which satisfied the terms of the trusts in a deed of the Church and cemetery property made by John Grover in 1844. The action was tried at Cobourg on the 2nd and 3rd days of May 1928, before the Honourable Mr. Justice Rose, and was dismissed with costs. His judgment was based upon the Ontario Statutes of 1925, respecting the United Church, and he held that a statutory title was in the defendants as trustees of the congregation of The United Church. He also found that the congregation represented by the plaintiffs, did not satisfy the terms of the trust deed. He also held that the property came within section 4 of the Act by reason of The Presbyterian Church in Canada having a right or interest therein by reason of chapter 135 of the Ontario Statutes of 1900.
He found it unnecessary to deal with other defences raised.
An appeal was taken was argued before the First Appellate Division of the Supreme Court of Ontario, on April 15th, 1929, and on April 22nd, 1929. Judgment was reserved.*
*Judgment was delivered 4th of June, dismissing the appeal with costs. [The Committee on Law and Legislation, rop 1929 p89];

This action was brought by the Plaintiff on behalf of himself and other members of the Presbyterian congregation at Grafton, opposed to Union, to recover property from The United Church congregation, the majority of the Presbyterian congregation having voted in favor of Union. Part of the property had been conveyed to trustees for the congregation in 1844 upon certain trusts, and it was claimed that The United Church congregation could not hold the property in these circumstances. The action was tried at Cobourg in May, 1928, before the Hororable Mr. Justice Rose, and was dismissed. He held that the Defendants, the trustees of The United Church congregation, had a statutory title by virtue of the Ontario Act of 1925 respecting The United Church, that the congregation represented by the Plaintiffs did not fulfil the requirements of the trust deed, and that the property came within section 4 of the Act, by reason of The Presbyterian Church in Canada having a right or interest therein under the provisions of the Ontario Statute of 1900, incorporating the Board of Trustees of the Presbyterian Church in Canada.
An appeal was taken to the First Appellate Division of the Supreme Court of Ontario, and was dismissed in June, 1929. The Chief Justice of Ontario placed his judgment on the ground that section 4 of the Act became applicable to the property by reason of a consent to that effect given by the congregation under section 6 of the Act, on the 5th of April, 1928, and that section 17 of the Act vested in The United Church the power of determining how the trusts were to be performed. Mr. Justice Magee held that it had not been shown that the provisions of the trust deed were not being complied with by The United Church congregation. Mr. Justice Middleton adopted the statement of Mr. Justice Orde in McLean vs. Ballantyne, 62 O.L.R. at 451:-"The entry into The United Church of any Presbyterian congregation carried with it the congregational property, and in the eyes of the law did no violation to the trusts upon which property was held.". [Law and Legislation, rop 1930 p209];

Judgment in this action was delivered the 4th day of June, 1929, dismissing the appeal of the Presbyterian Congregation at Grafton. [Committee on Law and Legislation, year book 1930 p77];

iii. Ferguson vs. McLean
This is an action brought by persons claiming to act on behalf of themselves and all communicants, pew-holders and adherents of St. James Presbyterian Church at Newcastle, New Brunswick, against the ministers, members of session and other officers of The United Church at Newcastle, seeking to recover the property of the congregation, which had voted in favor of Union by a very large majority.
The plaintiffs contended that pew-holders and adherents had been excluded from voting, and that the vote should be set aside, that the property of the congregation should either be granted to the non-concurrents or should be divided between the non-concurrents and The United Church congregation and that both the Dominion and Provincial legislation respecting The United Church are ultra vires.*
*Judgment was delivered 30th of April in favor of the Plaintiffs. An appeal is now pending. [The Committee on Law and Legislation, rop 1929 p90];

Judgment was delivered the 30th of April, 1929, in favor of the Newcastle Non-Concurring Congregation. An Appeal was taken from the judgement to the Supreme Court of Canada. It was argued on the 28th day of April, 1930, and judgment was reserved. [Committee on Law and Legislation, year book 1930 p77];

This was an action brought by persons claiming to act on behalf of themselves and all communicants, pew-holders and adherents of St. James Presbyterian Church at Newcastle, New Brunswick, against the ministers, members of session and other officers of The United Church at Newcastle, seeking to recover the property of the congregation, which had voted in favor of Union by a very large majority.
The plaintiffs contended that pew-holders and adherents had been excluded from voting and that the vote should be set aside, that the property of the congregation should either be granted to the non-concurrents or should be divided between the non-concurrents and The United Church congregation, and that both the Dominion and Provincial legislation respecting The United Church are ultra vires.
The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929.
The plaintiffs appealed to the Supreme Court of Canada and judgment is now pending. [Law and Legislation, rop 1930 p214];

The appeal of the plaintiffs from the judgment of the Appeal Division of the Supreme Court of New Brunswick was dismissed by the Supreme Court of Canada and the property in question remains the property of the congregation of the Newcastle United Church. [Law and Legislation, rop 1932 p396, year book/rop 1932 p64];

specifically reference to

It was held that the effect of section 5, of chapter 135, of the Ontario Statutes of 1900 (Act incorporating the Board of trustees of the Presbyterian Church in Canada), was to vest in the Presbyterian Church in Canada a right or interest, reversionary or otherwise, in the Presbyterian Church in Canada, within the meaning of section 6, of The United Church of Canada Act, and that section 4, of The United Church of Canada Act applied. [The Committee on Law and Legislation, rop 1928 p164];

He also held that the property came within section 4 of the Act by reason of The Presbyterian Church in Canada having a right or interest therein by reason of chapter 135 of the Ontario Statutes of 1900. [The Committee on Law and Legislation, rop 1929 p89];

and that the property came within section 4 of the Act, by reason of The Presbyterian Church in Canada having a right or interest therein under the provisions of the Ontario Statute of 1900, incorporating the Board of Trustees of the Presbyterian Church in Canada. [Law and Legislation, rop 1930 p209];

The action was tried by Chief Justice Sir Douglas Hazen, and judgment was delivered the 30 April, 1929, in favour of the plaintiffs, on the grounds that by virtue of the provisions of local statutes, the Presbyterian Church in Canada had no interest, reversionary or otherwise, unless and until such congregation, at a meeting regularly called for the purpose, consented that the provisions of the Act should apply thereto, and such vote not having been taken, the property did not become transferred to The United Church of Canada.
This judgment was reversed by the unanimous judgment of the Appeal Division of the Supreme Court of New Brunswick on the 22nd November, 1929. [Law and Legislation, rop 1930 p214];

without any indication that the courts, with respect to Aird vs. Johnson the First Appellate Division of the Supreme Court of Ontario and with respect to Ferguson vs. McLean both the Chancery Division of the New Brunswick Courts and the Supreme Court of Canada, dismissed such right or interest as applying to section 6 of the respective Provincial Acts, with the effect that unless commissioners to the General Council were in immediate contact with the respective court actions it was unlikely that they would be aware of the significance of the court decisions as they related to existing legislation of the General Council and were thereby deprived from debate as to the lawfulness of such legislation.

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

Mulock, C.J.O. (Hodgins, J.A., Middleton, J.A. concurring)
Subject to the provisions of s. 6, it is declared in substance, by s. 4, that all property in Ontario belonging to or held in trust for any congregation of any of the negotiating churches shall be held for the benefit of the same congregation as a part of the United Church. Section 6 declares that property belonging to a 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 . . . . "

Mr. Mason pointed out that s. 6 applied only to property held by a congregation solely for its own benefit, and contended that under the Ontario Act of 1900, s. 5, if the congregation ceased to exist, the property would vest in the trustees of the Presbyterian Church in Canada for other purposes than those of the congregation, and that, therefore, not being held in trust solely for its benefit, s. 6 had no application.

Section 5, relied on by Mr. Mason, reads as follows:-

"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."

This section applies only (a) to a congregation which, at the time of the passing of that Act (April 30, 1900), shall have ceased to exist, and (b) to a congregation which has become disorganized.

The St. Andrew's congregation at Grafton had not, when s. 5 came into effect, ceased to exist, and there is no evidence that at that time it had become disorganised ; and, therefore, in my opinion, s. 5 does not operate on the interests of the congregation in the said property and the same is not subject to the provision of s. 4 unless and until the congregation "at a meeting thereof regularly called for the purpose shall consent that such provision shall apply" to the said property. [1929 4 D.L.R. 666-667]

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

Anglin C.J.C. (Rinfret J. concurring)
It follows that the property of the St. James congregation became vested in the United Church under the provisions of s. 4 of the Provincial Act, unless, and except in so far as, it fell within s. 6, to the provisions of which s. 4 was expressly made subject. This s. 6, which is the vital provision to be considered, reads as follows:

6. 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 section 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 Sections 3 and 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.

By earlier legislation of the province of New Brunswick, set forth at length by the Chief Justice in his judgment, to wit, c. 11, 1 William IV, (1831), c. 18, 2 William IV, (1832), c. 15, 3 William IV, (1833), c. 48, 38 Vic., (1875), and c. 99, 38 Vic., (1875), it was made abundantly clear that the property of St. James Presbyterian Church at Newcastle was vested fully and absolutely, and to all intents and purposes, and without qualification, in the Trustees of that church. It is said, however, for the respondents, that by a New Brunswick Act of 1907 (7 Edw. VII, c. 79), a reversionary right or interest therein was created in "The Board of Trustees of the Presbyterian Church in Canada, Eastern Section," because of the provision, that

6. 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 in 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 Home Mission scheme thereof, or as may be otherwise determined by the Synod of the said church.

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.

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. 642, 646]

Newcombe J.
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.
The congregation of St. James Presbyterian Church, not having voted non-concurrence within the time fixed therefor by statute, became merged in the United Church of Canada on June 10th, 1925, by virtue of section 4 of the United Church of Canada Act (Dom.), 14-15 Geo. V, c. 100. Thereafter as a congregation it was part of the United Church.

The statutory provisions dealing particularly with the property of a congregation joining the Union, are sections 3, 4 and 6 of the New Brunswick Act, which are embodied in sections 5, 6 and 8 of the Dominion Act. Section 3 of the local Act, with certain reservations, vests in the United Church the properties of the uniting church organizations as distinguished from properties of the congregations. Section 4 deals with congregational property and provides that, subject to section 6, all property within the province belonging to or held in trust for any congregation of any of the negotiating churches shall, from the coming into force of the section, be held, used and administered for the benefit of the same congregation as a part of the United Church, upon the trusts and subject to the provisions of a Model Deed set forth in the schedule. The property, therefore, of every congregation entering the Union was thereafter held by the trustees thereof upon the terms contained in the Model Deed, except in those cases falling within section 6. Section 6, upon which the appellants rely, reads as follows:--

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 section 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 Sections 3 and 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.

It was contended that under certain New Brunswick statutes the Trustees of St. James Presbyterian Church held the church property in trust solely for the benefit of the congregation thereof and that the Presbyterian Church in Canada, as a denomination, had no right or interest, reversionary or otherwise, therein.

In the view I take of the rights of the parties, it is unnecessary to determine whether or not the contention is well founded. I will assume that it is, and that the denomination had no right or interest in the congregational property. As there was no consent given by the congregation to the application of the provisions of section 3 or section 4 to its property as provided for in section 6, those sections do not apply, and the only question is: For whom do the trustees, in whose names the property is vested, hold it in trust?

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*). The scheme of the legislation which brought about the union of the churches was to permit the majority to determine the action of the congregation. If the majority decided to enter the Union, the congregation, as a congregation, became part of the United Church. If the majority decided against entering the Union, the congregation remained outside the Union with all its property. The majority spoke for the congregation. The congregation of St. James Presbyterian Church, by entering the Union, effected a change in its name but not of its identity. Under the Act it was still the same congregation although some of its members refused to go with it into the Union. Those who did go thereafter constituted the congregation, and the trustees in whose names its property was vested held it after the Union for the benefit of that congregation, as a congregation of the United Church. Without the consent of the congregation duly given, as provided in section 6, the congregational property cannot be vested in the United Church nor brought under the terms of the Model Deed, but I fail to find anything in any of the legislation indicating an intention that a congregation on entering the Union was either to forfeit its property or share it with former members thereof now non-concurring, because it preferred to continue keeping for itself the absolute control over its own property and refused to give the United Church any interest therein or control thereover. The congregation, as it is constituted at the present time, is alone, in my opinion, beneficially interested in the property and entitled thereto. This, as I see it, is the meaning and intent of the legislation. [1930 S.C.R. 660-663]

* ...having the right to unite with one another without loss of their identity [preamble to The Dominion Act]

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

...if the Nova Scotia Act became applicable to all the property of St. Luke's congregation such congregational property as is dealt with in s. 6 would not be transferred without the consent of a meeting of the congregation regularly called for the purpose. [1930 A.C. 683]

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

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)).

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:

to make rulings on questions of jurisdiction or interpretation with respect to all matters of the polity, procedures, and practice of the United Church;

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 Subject to the provisions of the next succeeding paragraph hereof, all property, real and personal, under the jurisdiction of the Parliament of Canada, held in trust for or to the use of a church, charge, circuit, or congregation of any of the negotiating Churches shall be held by trustees appointed by or on behalf of such church, charge, circuit, or congregation, upon trusts set forth and declared in a Model Trust Deed. This Model Trust Deed should be a schedule to the Act, and should contain, among others, a provision to the following effect: that the property is held for the church, charge, circuit, or congregation as a part of the United Church, and that no property so held shall be sold, exchanged, or in any manner encumbered, unless the Presbytery shall, at the instance of the church, charge, circuit, or congregation, have given its sanction, subject to an appeal, if desired, to the Conference.
5.4 Any property or funds owned by a church, charge, circuit, or congregation at the time of the Union solely for its own benefit, or vested in trustees for the sole benefit of such church, charge, circuit, or congregation, and not for the denomination of which the said church, charge, circuit, or congregation formed a part, shall not be affected by the legislation giving effect to the Union or by any legislation of the United Church without the consent of the church, charge, circuit, or congregation for which such property is held in trust.

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:

266 Exceptions.
(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 the 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.)

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