AIRD v. JOHNSON.

Ontario Supreme Court, Appellate Division, Mulock, C.J.0., Magee, Hodgins and Middleton, JJ.A. June 4, 1929.

Religious Institutions-Church Union-Property of old congregation held on certain trusts-Effect of legislation- jurisdiction of Courts.

A majority of the congregation of a Presbyterian Church voted in favour of Church union and consented that the provisions of s. 4 of the United Church of Canada Act (Ont.), should apply. Under s. 4 it is provided that all property 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 part of the United Church. Section 17 of the Act declares that any trust in respect of such property shall continue to exist and be performed, as nearly as may be for the like purposes and objects, as the United Church may determine. Plaintiff, on behalf of himself and others, sought to restrain the trustees of the church property from using it or disposing of it otherwise than by transferring it to the members or the non-concurring members of the old congregation. Held, the Court had no power to grant the injunction asked for. Per Mulock, C.J.0., Hodgins and Middleton, JJ.A., because of the power conferred on the United Church by the legislation above referred to. Per Magee, J.A., because the plaintiff had failed to show that the present minister, elders and members of the Church did not come within the terms of the trust on which the property was originally conveyed.

APPEAL the plaintiff from the judgment of Rose, J., dismissing the plaintiff's action for an injunction. Affirmed.

J. H. Fraser, K.C., and N. S. Macdonnell, K.C., for appellant.

G. W. Mason, K.C., and H. E. Whitehead, for respondents.

MULOCK, C.J.O.:-This is an appeal from the judgment of Rose, J., who dismissed the action. The plaintiff, John Aird, on behalf of himself and other members of the Presbyterian Church in Canada at Grafton who voted against union with the United Church of Canada, brought this action for an injunction restraining the defendants, trustees of the church property in question, from using or disposing of it otherwise than by transferring it to the plaintiff or trustees for the plaintiff and other members of the Presbyterian Church in Canada at Grafton; and for other relief.

In the statement of claim the plaintiff alleged that for many years he had been and still was a member of the congregation of the Presbyterian Church at Grafton known as St. Andrew's Presbyterian Church ; that when a vote of union with the United Church of Canada was taken in the said congregation in the month of January, 1925, he voted against such union; that since the vote was taken he and other members of the congregation who had voted against union had continued to worship together as a congregation, seeking to preserve and continue the St. Andrew's congregation as a congregation of Presbyterians which makes the Westminster Confession of Faith the rule by which public worship and divine service are conducted ; that the defendants claim to be trustees of the property in question for a United Church congregation at Grafton, and are preventing the plaintiff and others from worshipping therein as a congregation of Presbyterians.

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 ; that the Presbyterian Church in Canada united with the Methodist and Congregational Churches in Canada and formed the United Church of Canada, which, by virtue of an Act of the Legislature of Ontario, the United Church of Canada Act, 1925 (Ont.), c. 125, succeeded to the interests of the Presbyterian Church in Canada in the said property ; and the defendants claim that the Presbyterian congregation at Grafton, having voted in favour of union, became a congregation in the United Church, and the defendants allege that they hold the said property, under the provisions of s. 4 of the United Church of Canada Act, for the benefit of the said congregation as a part of the United Church of Canada, subject to the terms of Schedule A. to the said last mentioned Act. If such be the effect of the legislation, it is unnecessary to consider other questions raised by Mr. Fraser.

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.

On April 5, 1928, at a meeting regularly called by the St. Andrew's congregation at Grafton of the United Church of Canada, it was resolved that the "congregation, pursuant to s. 6 of the said Act " (being 1925 (Ont.), c. 125), " consents that the provisions of s. 4 of the said Act shall apply to the property both real and personal belonging to or held by or in trust for or to the use of the congregation."

Mr. Fraser contended that because of the congregation at Grafton having entered the Union it had lost the power to give the consent contemplated by s. 6. I do not share that view. The body of people who constituted the congregation of the Presbyterian St. Andrew's Church at Grafton continued as a congregation when it entered the United Church, and, subject to the provisions of s. 4, it had the same interest in the property in question when it became a congregation as a part of the United Church as if enjoyed before entering the Union. Further, s. 2(c) of the 1925 Act defines "congregation" as meaning "any . . . . church . . . . or other local unit for purposes of worship in connection . . . . with any of the negotiating churches or of The United Church of Canada." Further, s. 6 entitles a congregation of the negotiating churches or "a congregation received into The United Church after the coming into force of this Act" to consent to the application of the provisions of s. 4 to property belonging to or held in trust for such congregation. I, therefore, am of opinion that the congregation of St. Andrew's Church at Grafton, after entering the Union, was entitled to and did effectually consent to the application of the provisions of s. 4 to the property in question.

There remains to consider the effect of the 1925 Act in respect of the property in question.

Section 4 requires it to be held for the benefit of what was formerly the congregation of the Presbyterian Church of St. Andrew's at Grafton, but which is now a congregation as part of the United Church upon the trusts and subject to the terms of Schedule A. (the model deed).

Section 17 declares that any trust in respect of such property prior to the coming into effect of the Act "shall continue to exist and to be performed as nearly as may be far the like purposes or objects in connection with The United Church as The United Church may determine, and anything done in pursuance of the Act of Incorporation or of this Act shall not be deemed to be a breach of any such trust, but shall be deemed to be in compliance therewith and a performance thereof, and the entry of any congregation into The United Church shall not be deemed a change of its adherence or principles or doctrines or religious standards within the meaning of any such trust." Under this section the original trusts are to be performed as nearly as may be for the like purposes and objects in connection with the United Church as that church shall determine, and, so performed, the performance shall not be deemed a breach of trust but a compliance therewith. Thus, this legislation having vested in the United Church the power of determining how the trusts are to be performed, and having provided that what is done in pursuance of the legislation in question shall not be deemed a breach of trust, but on the contrary shall be deemed to be a compliance therewith, this Court has no jurisdiction to grant the relief asked; and the appeal should be dismissed with costs.

MAGEE, J.A.:-I agree that this appeal should be dismissed. The deed from John Grover to the trustees of the Presbyterian Church at Grafton was expressly stated to be for the site of a church and burying ground for the use of a congregation of Presbyterians whose minister, elders, and members make the Westminster Confession of Faith the rule by which public worship and divine service are to be conducted in the church built or to be built upon the land, in trust and confidence that the trustees shall at all times thereafter permit any Presbyterian minister or preacher, ministers or preachers, he or they being a member or members of the said Presbyterian Church and duly adhering to the said Confession of Faith, to preach and perform religious service in the church and burial service in the said burying ground, said preacher or preachers being duly elected according to the constitution and laws adopted at a general meeting of the congregation as soon as practicable after the execution of the deed.

Counsel for the appellant was unable to show that the present minister, elders, or members of the church did not make the Westminster Confession the rule by which public worship and divine service are to be conducted or that the minister or preacher did not adhere thereto.

It is only in regard to those provisions in the deed that there could be any question as to the statutes applying, and the evidence as to them fails.

HODGINS, J.A., agrees with MULOCK, C.J.0.

MIDDLETON, J.A.:-I agree with the conclusions arrived at by my Lord and desire to add little to what be has written.

While many may regard the Church Union legislation as harsh and unjust, and as oppressive and unfair to the minority of the Presbyterian Church who adhere to Calvinism and cannot regard a colourless creed smacking much of Arminianism as at all equivalent to the Westminster Confession of Faith, it must not be forgotten that Parliament is supreme and has full control over property and civil rights and can as to them do as it determines without any question of the morality of its action.

This was pointedly put in Florence Min. Co. v. Cobalt Lake Min. Co. (1909), 18 O.L.R. 275, at p. 279 ; affirmed (1910), 43 O.L.R. 474, where it was said:-

"The Legislature within its jurisdiction, can do everything that is not naturally impossible, and is restrained by no rule human or divine. If it be that the plaintiffs acquired any rights . . . . the Legislature had the power to take them away. The prohibition 'Thou shalt not steal,' has no legal force upon the sovereign body."

Much the same thing was said long ago in Re Goodhue (1872), 19 Gr. 366, where it was held that the legislature has the power to declare that the property of A. shall be deemed to be the property of B., and that the Courts must give effect to this exercise of the legislative power. Draper, C.J.A., at p. 383, said:-

"'A Court of Justice cannot set itself above the Legislature. It must suppose that what the Legislature has enacted is reasonable; and all, therefore, that we can do, is to try and find out what the Legislature intended."

Here it seems plain that the legislature intended to leave it to the United Church to determine whether the trusts declared by pious men of old who thought much of certain doctrines are now being observed and so to determine whether the property in question belongs to the new "body corporate and politic" created by the Act or remains held in trust for that venerable church which Parliament cannot destroy because it is not a body politic amenable to the Civil Courts or to Parliament. Our duty therefore is to give effect to the law as we find it. Those who contributed to the building of a particular church, hoping and declaring that it should forever be used for a particular purpose, and who now find that it is being used for some other purpose and has been taken from them without compensation, must realise that the contest was lost when the legislature passed the Act in question and that the Courts cannot now aid them.

The effect of the legislation is well stated by my brother Orde in McLean v. Ballantyne, [1928] 4 D.L.R. 37, at p. 44, 62 O.L.R. 443:-

"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 violence to the trusts upon which that property was held."

The two bodies, the "uniting " and the "non-concurring Presbyterians of Canada," are both in reality "keeping alive the faith and tenets of Presbyterianism," a thing hard to under stand, yet supported by the evidence in this case.

Appeal dismissed.

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© Queen's Printer for Ontario, 1929. This is an unofficial version of Government of Ontario legal materials.