Ferguson v. MacLean
Supreme Court of Canada
1930 S.C.R. 630

"Held: The congregation not having passed a vote of non-concurrence, it became, by statutory operation, a congregation of the United Church, and, (Anglin C.J.C. and Rinfret dissenting), even if the property fell within s. 6 of c. 59, 14 Geo. V, N.B. (and corresponding s. 8 of c. 100, 14-15 Geo. V, Dom.), yet, after the Union, it was held for the benefit of the congregation as a congregation of the United Church; the absence of consent under s. 6 merely leaving the property unaffected by the trusts, and not subject to the terms and conditions, set out in the 'Model Deed' (schedule A of the provincial Act; schedule B of the Dominion Act)." [1930 S.C.R. 631]

The decision affirmed the judgement of the Supreme Court of New Brunswick to the effect "that the property went with the congregation into the Union, and that the plaintiffs, who had not concurred in the Union and had separated themselves from the congregation, had no claim to the property". The decision, however, did not affirm the opinion "Grimmer J. and Barry, C.J. K.B., 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" [1930 S.C.R. 635], but rather four of the five judges gave opinion otherwise [appended].

The United Church of Canada v. Anderson
Provincial Court [General Division]
1991 2 O.R. (3rd) 304

"Held, a declaration should issue that title in the lands was held by and for the United Church.

"Section 3 of the Ontario United Church of Canada Act provides that property belonging to the three churches which came together to form the United Church (the negotiating churches) was to vest in the United Church. Under s. 4 of the Act, all property held by or in trust for any congregation of any negotiating church was held for the benefit of the same congregation as part of the United Church, but this did not include (a) any property held 'in trust for any special use of any congregation' of the United Church or (b) under s. 6 of the Act, any property held in trust for the use of any congregation 'solely for its own benefit'. The lands in question either vested in the United Church under s. 3 of the Act or were held for the use of the United Church under s. 4; the exceptions in s. 4 and s. 6 did not apply.

"The respondents' argument that the statutes in this case offended the Canadian Charter of Rights and Freedoms in that they denied or interfered with freedom of religion could not stand as the Charter does not apply to private activity, and churches are private bodies." [1991 2 O.R. (3rd) 304]

Trusts attached to properties and the majority opinion of Ferguson v. MacLean, 1930 S.C.R. 630, with respect to reversionary interests, were not presented.

The Synod of the Wesleyan Methodist Church of Bermuda v. Willard Lightbourne
Supreme Court of Bermuda
1996/280, 282

"I find that the parties to action 280/1996 have acted and continue to act ultra vires the trust whilst the parties to action 282/1996 are acting in accordance with the trust."

The decision found the defendants most closely adhere to the original doctrine, polity and practice of the Methodist Church of John Wesley and the 25 Articles of Faith, while the Synod of the Wesleyan Methodist Church of Bermuda by not severing ties with the United Church of Canada acted and continues to act ultra vires the trust.

Anglin C.J.C (Rinfret J. concurring) (Anglin C.J.C. and Rinfret J. dissenting by affirming the plaintiffs continued to have an interest in the property)
"We are, however, unable to regard the mere possibility of a future interest thus created in favour of the Home Mission Scheme, or other object to be selected by the Synod of the Church, (assuming it to be in favour of 'the denomination' to which the St. James Congregation belonged), as such a 'right or interest, reversionary or otherwise,'as is contemplated by s. 6 of the Provincial Act." [1930 S.C.R. 642]

"We are, therefore, of the opinion that, there having been no meeting of the congregation of St. James Presbyterian Church, regularly called for the purpose of giving consent under s. 6, and the provisions of ss. 3 and 4 of the Provincial Act therefore not applying to its property, or to any part thereof, because excluded by s. 6, such property continues vested in the Trustees, who hold it for the benefit of that congregation, as it was prior to the 10th of June, 1925, and did not pass under sections 3 and 4, to the United Church of Canada." [1930 S.C.R. 646]

Duff J.
"But it is right to add that I am unable to accept the contention that the trusts upon which the property in question is held are of such a character as to bring the trust property within section 6..." [1930 S.C.R. 649]

Newcombe J.
"In my judgment of the case, it is not shewn, either by the allegations or the proof, that the plaintiffs have any right to the declarations or relief claimed. It is not denied that the body in question became, by the operation of the statutes, a congregation of the United Church of Canada, and the intention, as I interpret it, was not to detach the congregation from its separate property, but rather to recognize and uphold its independence in relation to that property, although with power of consent or election, which has not been exercised, to introduce the terms and provisions incorporated by sections 6 and 4 of the Dominion and Provincial Acts, respectively. Unless the congregation consent, the property which it holds, in the words of the statute, solely for its own benefit, and in which its denomination has no right or interest, must remain where it was when the Union became effective, namely, with the congregation, and its consent is entirely discretionary." [1930 S.C.R. 659]

Lamont J.
"This is an appeal from the judgment of the Appeal Division of the Supreme Court of New Brunswick dismissing the plaintiff's action. The plaintiffs, who were members or adherents of St. James Presbyterian Church at Newcastle, N.B., not concurring in or agreeing to Church Union, brought this action for (inter alia) a declaration as to their rights in the property and assets of the Church, the majority of the congregation of which had voted in favour of entering the Union. Numerous arguments were advanced for the purpose of procuring a reversal of the judgment of the Appeal Division and of shewing that the plaintiffs had some right or interest in the church property. Of these I find it necessary to refer to one only, namely, that under section 6 of the New Brunswick Act (14 Geo. V, ch. 59) a second vote of the congregation was needed to decide whether or not the property of the church should pass with it into the Union and that as such vote had not been taken the church property was held by the trustees thereof for the use of the non-concurring members or at least for the use of those who, prior to the Union, had constituted the congregation.

"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. As the plaintiffs are no longer a part of the congregation in the Union, they have no valid claim to share in its property." [1930 S.C.R. 660]