IN THE SUPREME COURT OF ONTARIO
B E T W E E N:
ALBERT MAIN, BERT TUCKER, JOHN STUDIMAN, MARY THOMPSON, NETTIE MAIN, and AUGUSTA RUSSELL, on behalf of themselves and all other members and adherents of and as Trustees for, The United Brethren Association Congregation Village of Sheffield,
THE UNITED CHURCH OF CANADA, THE REVEREND A.O.PATTERSON and NELSON CULHAM, WILLIAM M. FRASER, GEORGE E. GRUMMETT, ORMOND B. WASHBURN, BRICE CULHAM, and ARTHUR DECKER, Session of the Sheffield Church of the United Church of Canada, MARY MEWHINNEY, JANE MAIN, CHARLES TUTTON, CECIL CULHAM, RICHARD BOND, GEORGE E. GRUMMETT, E.S.SNIDER and ARTHUR DECKER, Committee of Stewards of the Sheffield church of the United Church of Canada, FRANK SWEET, JIRDEN MAIN, WILLIAM M. FRASER, NELSON CULHAM, THOMAS NORMAN, EDGAR CORNELL and TRUMAN MAIN, Trustees.
---Tried before The Honourable Mr. Justice Rose, at Hamilton, Ontario, November 22nd, 23rd and 24th,1927.
---S. F. Washington, K.C.
---T. B. McQuesten
Counsel for Plaintiffs,
---G. W. Mason, K.C.
Counsel for the Defendant The United Church of Canada.
---J. R. Schofield
Counsel for the Defendants other than the United Church of Canada.
Reasons for Judgement
I am much indebted to counsel for their very careful and thorough arguments of this case, as a result of which, rightly or wrongly, I think that I understand the questions involved, and that I am in a position to give judgment without further examination of the documents or consideration of the statutes or authorities that have been referred to.
Without going into the history of the matter, I think it is made abundantly plain that a time came when the property in question was held in trust for the Sheffield Congregation of the United Brethren Association of Congregational Churches, and that a later time came when, by proper conveyance, the property came to be held by trustees for or to the use of this same Sheffield Congregation, which had become a congregation of the Presbyterian Church in Canada. It is true that the individual members of the Sheffield Congregation had not, as individuals, been received into the Presbyterian Church; but it is equally true that the congregation as a congregation had been received into the Hamilton Presbytery in what as Mr. Mason has pointed out, is the only way in which a congregation could be received -- that is, by the action of the congregation as a body and of the Presbytery. Having come into the Hamilton Presbytery and become a congregation of the Presbyterian Church, the congregation at Sheffield continued to be a congregation of the Presbyterian Church until the time of the Union, and the members of the congregation, without objection from any one of them, seen to have done what was incumbent upon them as Presbyterians belonging to the Sheffield Congregation. The congregation held its meetings, elected its officers, elected its elders --who, again referring to what Mr. Mason says, are probably the men who occupy the position that in most distinctively Presbyterian -- sent its representatives to the Presbytery, some, or at least one of whom in turn went on to the Assembly, paid its assessments -- they are not called assessments, but its dues for the general purposes of the church, missionary and otherwise -- and, in short, behaved as what it was and what there cannot be, as I see it, the slightest doubt that it was, a congregation of the Presbyterian Church in Canada. As such a congregation it held a vote as to whether it should or should not come into the Union that was brought about by the legislation of 1924 in the Dominion, I think, and 1925 in Ontario; and the vote was favourable to the Union.
The result, then, is in my opinion that section 4 of the Ontario Act of 1925 applies, unless it is displaced by section 6. Section 4 enacts that all property, real and personal, within the province held in trust for or to the use of any congregation of any of the negotiating churches shall, from and after the coming into force of the Act, be held, used and administered for the benefit of the same congregation as part of the United Church in the manner prescribed in the Statute. As I have said often enough, it seems to me that the property in dispute was property held in trust for or to the use of a congregation of a negotiating church, and therefore that section 4 applies to it unless section 6 displaces section 4.
Section 6 enacts that any real or personal property belonging to or held by or in trust for or to the use of any congregation, solely for its -- that is, the congregation's -- 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 until a certain act is done by the congregation. Mr. Mason's submission is that sections 5 of chapter 135 of the Ontario Statutes of 1900 has the effect of making this section 6 inapplcable to the property in Sheffield. Section 5 of the Statutes of 1900 gave to the Presbyterian Church in Canada, as I think, some right or interest, reversionary or otherwise, in this disputed property held for the use of the Presbyterian Congregation at Sheffield; and so section 6 of the Act of 1925 is out of the way, and section 4 operates, and the property is held for the use of the Sheffield Congregation as part of the United Church upon the trusts stated in the Act.
That being my view of the case, it is quite unnecessary that I should deal with some of the questions raised by Mr. Washington in his argument, and with a great many of the matters that have been the subject of discussion with witnesses as the case has proceeded. However, it is perhaps desirable that I should deal with one matter of fact, upon which Mr. Washington based in part his argument that the property in question could never have been held in trust for the congregation as a congregation of the Presbyterian Church. Mr. Washington, referring to the well-known Free Church ease in 1904 Appeal Cases, and to cases which I have not seen, but most of which seem to be later in the Canadian reports, advances the proposition that it was beyond the powers of the persons in whom the formal title was, in whom the fee was vested, or of a majority of the congregation and almost, he seems to say, of the whole congregation, to transfer the property to trustees for the use of a congregation of the Presbyterian Church, because so to transfer it would be to divert the property radically from the purposes of the creators of the trust. He bases that upon the suggestion, to which some of the evidence lends some support, that the creed of the Liberal Branch of the United Brethren in Christ is radically different from the doctrine, whether expressed in the creeds or elsewhere, of the Presbyterian Church in Canada. All that I intend to say about that is that I think the weight of evidence is, and in so far as it is necessary for me to find I find, that there is nothing in the loyal acceptance of the creed of the Liberal Branch of the United Brethren in Christ which prevents the acceptance of the doctrines of the Presbyterian Church in Canada. The creed of the United Brethren, as pointed out by one of the witnesses, is not elaborate, and probably is couched in language which is extremely general; but I was satisfied by the evidence that there was nothing in it which prevented the acceptance of the more highly developed and elaborately stated doctrine of the Presbyterian Church. The same thing could be said, and could be said, it anything, more positively, by way of comparison between the creed of the United Brethren in Christ Liberal Branch and the statement of doctrine contained in the schedule to the Union Act of 1924; but I cannot quite grasp how any question as to the conflict between those two creeds arises in this ease.
I think that that probably is the only finding of fact that I need make, unless it is desirable that I say that I think on the evidence that the congregation using the stone church at the time of the passing of the resolution of March, 1927, received adequate notice of the intention to hold the meeting, and of the purposes of the meeting. It is true that Mr. Patterson has not a very clear recollection at the moment of the explanation that he gave to his congregation of the reasons for calling the meeting. I should have been astonished it he had had a very clear recollection of it at this time unless he had refreshed his memory by studying the statute again. I do not think that the provisions of sections 4 and 6 of the statute of 1925 are provisions which anyone but a lawyer or someone who had occasion to consider then pretty often and pretty carefully would carry in his mind accurately for a considerable length of time, and I was not at all astonished to note Mr. Patterson's failure to tell exactly what it was that he said to his people before the meeting was held. But the other witness, Mr. Culham, the member of the congregation helped considerably towards a realization of what probably was said, and then we have the fact that the matter had been explained by the solicitor in two letters, and that Mr. Patterson had read the statute and in all probability knew at the time what it was that was to be under discussion, and so in all probability couched his announcement in language sufficient to tell his hearers in general terms the purpose of the meeting. Of course, no steps were taken to give notice to these members of the old congregation who had dissociated themselves from the persons who were holding their services in the Church as members of the United Church of Canada, but I have not heard, and it is inconceivable, I think, that any of those persons had been excluded from the building or would have been denied a right to vote had they chosen to come, and the persons who are to vote are under the statute not the persons who formed the congregational at any time anterior to the vote, but, as I take it, the members of the congregation at the time when the congregation is called upon to give the consent provided for by section 6. However, all this is more or less beside the case if I am right in the view to which Mr. Mason's argument has led me, that section 6 has no application at all.
The result is that the action must be dismissed, and, if costs are asked, that it must be dismissed with costs, Do you ask them, Mr. Mason?
MR. MASON: In the meantime, my Lord, I shall have to do so. That will be subject to negotiation between my friend and myself.
R. N. Dickson C.S.R.,