IN THE MATTER OF an appeal from the ruling of the General Secretary of the General Council of The United Church of Canada, dated July 11, 2006 (06-009-R)
OF THE GENERAL SECRETARY
OF THE GENERAL COUNCIL
OF THE UNITED CHURCH OF CANADA
Barristers and Solicitors
Suite 1600, The Exchange Tower
130 King Street West
Toronto, ON M5X 1J5
Tel: (416) 947-5073
Fax: (416) 365-1876
Solicitors for the General Secretary
of the General Council, Jim Sinclair
Judicial Committee of the General Council of The United Church of Canada
3250 Bloor Street West
Attention: Kathy McDonald
Rev. Don Anderson
R.R. 6, 71 Blackburn Road
PART 1: OVERVIEW STATEMENT
1. This is the reply of Jim Sinclair, the General Secretary of the General Council of The United Church of Canada ("General Secretary"), to an appeal under By-Law 076 (b) iii by Rev. Don Anderson from a ruling of the General Secretary dated July 11, 2006, ("Ruling").
2. The Ruling was given in response to a request made by Rev. Anderson dated June 13, 2006 to the General Secretary, for a ruling regarding the vesting of properties of former Congregations of the Presbyterian Church in Canada following union with The United Church of Canada ("UCC") in 1925. The Ruling was based on the General Secretary's authority to interpret Church polity, under paragraph 513(f) of the By-Laws.
3. It is the position of the General Secretary that Rev. Anderson has no standing to appeal from the Ruling because he is not a church member "directly affected by it " within the meaning of By-Law 076 (a). Furthermore he has not met any of the five grounds for appeal enumerated in By-Law 076 (f). In any event, there is no error in the Ruling which is clearly a correct interpretation of the clear language of the relevant By-Laws.
4. The General Secretary submits that, pursuant to By-Law 076 (m) ii, the executive of the Judicial Committee should refuse to hear the appeal. In the event that the Judicial Committee hears the appeal, it should be dismissed for the same reasons.
PART II: BACKGROUND
Facts giving rise to this appeal
5. The appellant Rev. Anderson is the settled Minister in White Lake Pastoral Charge, consisting of three Congregations: St Andrew's Burnstown, St Andrew's Calabogie and St Andrew's White Lake. None of these Congregations has ceased to exist, nor is any action pending that would result in any of these Congregations ceasing to exist.
6. By letter dated June 13, 2006 addressed to the General Secretary ("Request for Ruling"), Rev. Anderson requested a ruling re the vesting of properties of former Congregations of the Presbyterian Church in Canada following union with U.C.C. in 1925.
(i) Request for Ruling, Reply Record, Tab 1
7. By letter dated July 11, 2006 addressed to Rev. Anderson, the General Secretary provided the Ruling which provided in part: "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 [of Union], as more particularly outlined in paragraph 266(a) of the by-laws."
(i) Ruling, Reply Record, Tab 2
8. Rev. Anderson has made repeated efforts over recent years to initiate proposals requesting action of the General Council on the issue of congregational property. He initiated a petition on this subject in 2003 which was defeated. He made a further petition (now called a "proposal") in 2006. It was also defeated.
(i) Affidavit of Wendy Bulloch dated September 21, 2006, Reply Record, Tab 3
Church By-laws governing this appeal
9. Interpretations of Church polity are among the powers and duties of the General Secretary.
(i) By-Law 513 (f), Sch "B" hereto, p. (i)
10. An appeal may be made against any ruling of the General Secretary on questions of jurisdiction or interpretation to the Judicial Committee of the General Council.
(i) By-Law 076 (b) iii, Sch "B" hereto, p. (i)
11. An appeal may be made against a ruling of the General Secretary only by a person or Court directly affected by the ruling.
(i) By-Law 076 (a), Sch "B" hereto, p. (i)
12. An appeal must be based on one of the five grounds enumerated in By-Law 076 (f). Rev. Anderson relies on all five grounds for this appeal.
(i) By-Law 076 (f), Sch "B" hereto, p. (i)
(ii) Appellant's Statement August 21, 2006 p. 1/58, 10/58, 32/58, 34/58
13. In an appeal to the Judicial Committee of the General Council the Executive of the Judicial Committee shall review the Appellant's Statement and the Court's Reply and shall make a decision either to refuse to hear the appeal, or to proceed to hear the appeal.
(i) By-Law 076 (m) ii, Sch "B" hereto, p. (i)
PART III: ISSUES AND ARGUMENT
14. There are three issues in this appeal:
(A) Does Rev. Anderson have standing to appeal from the Ruling?
(B) Does the appeal meet any of the grounds for appeal enumerated in By-Law 076(f)?;
(C) Is there any error in the Ruling that would make it reviewable by the Judicial Committee?
Issue (A): Standing
15. Rev. Anderson is not a person "directly affected" by the ruling and therefore has no standing to appeal from the Ruling. Rev. Anderson is the settled Minister in White Lake Pastoral Charge, consisting of three Congregations: St Andrew's Burnstown, St Andrew's Calabogie and St Andrew's White Lake. None of these Congregations has ceased to exist, nor is any action pending that would result in any of these Congregations ceasing to exist. Therefore the application of the By-Laws regarding vesting property in those Congregations, is moot.
16. The "directly affected" test must be interpreted to mean what it says - "directly affected". It certainly cannot mean its opposite, "indirectly affected". Rev Anderson is no more affected by the Ruling than any other member of the Church. If any member of the Church could appeal a ruling of the General Secretary or a Decision of a Church court, the Church appeal process would become unmanageable.
17. As stated in paragraph 8 above, Rev. Anderson has made repeated efforts to initiate proposals (petitions) requesting action at the General Council on the issue of congregational property. These were defeated. The Request for Ruling and this appeal are the latest efforts by Rev. Anderson to advance this agenda.
(i) Affidavit of Wendy Bulloch dated September 21, 2006, Reply Record, Tab 3.
Issue (B): The appeal does not meet any of the grounds for appeal enumerated in By-Law 076(f)
18. It is apparent that Rev. Anderson is attempting through his Request for Ruling and this appeal of the Ruling, to do what he was unable to do through his 2003 and 2006 petitions (proposals): he is effectively asking the Church to disregard the 1991 Ontario Court decision in The United Church of Canada v. Anderson which determined at civil law, the very question raised in this appeal. The General Secretary cannot through an interpretation ruling of Church law under By-Law 513, change civil as determined by the civil law courts. If the Church is to change its laws, that is a matter for the Church's law-making bodies. If Rev. Anderson seeks to change the civil law, that is a matter for the civil courts.
19. The first ground for appeal relied on by Rev. Anderson is that the General Secretary failed to "consider the matter as completely as practicable" in making the Ruling.
20. A full and complete performance of the General Secretary's role in issuing a ruling interpreting Church law is achieved by a complete consideration of the relevant Church laws. The General Secretary considered the relevant laws completely in making the Ruling. This ground of appeal is therefore not available.
21. This ground appears to be based on the fact that the General Secretary declined to pronounce on the correctness or incorrectness of Rev. Anderson's detailed theories as to the interpretation of various decisions of the civil courts. The General Secretary correctly based his ruling on his interpretation of church polity as set out in the Manual.
22. This appeal seems to be based on the contention that the governing civil law is the statement made by Mulock C.J.0 in 1929 in Aird v. Johnson that the reversionary provision in s. 5 of the 1900 Act incorporating the Board of Trustees for the Presbyterian Church in Canada does not amount to "..other purposes than those of the Congregation" and therefore there is no reversionary interest for former Presbyterian Congregations, as a result of which their property does not revert to the United Church of Canada upon the dissolution of a Congregation. Rev. Anderson seems to argue that Church law that conflicts with this statement of Justice Mulock in Aird v. Johnson.
(i) An Act incorporating the Board of Trustees of the Presbyterian Church in Canada, S.O. 1900, c. 135, s. 5, Sch "B" hereto, p. (xii)
23. It is not clear whether Justice Mulock's statement was supported by a majority of the four judges that wrote that decision. Nor is it clear that the statement was anything but obiter dicta. What is clear is that the exact opposite conclusion was reached by Gautreau J. in the 1991 decision of United Church of Canada v. Anderson: in addition to this, the possibility of the lands being held for the sole benefit of the Congregation is denied by the express words which follow in the section [s. 6 of the Ontario United Church of Canada Act]... Because of s. 5 of the Presbyterian Act it is abundantly clear that the Presbyterian Church also had an interest in these lands at the time of union, even though it might only be contingent."
(i) United Church of Canada v. Anderson (1991), 2 O.R. (3d) 304 (Ont Gen Div), Reply Record, Tab 7
24. No appeal was taken from Gautreau J.'s decision in Anderson. The Ruling is in accordance with that decision.
25. Rev. Anderson also quotes extensively from the Supreme Court of Canada's 1930 decision in Ferguson v. Maclean. He weaves together sections from the four different judgments rendered, to try to show a majority of the court held that that Presbyterian Congregation's property did not become vested in The United Church of Canada. However this is not an accurate description of the court's decision. The majority of that court (Anglin C.J.C. and Rinfret J. dissenting) held the Congregation did become by statutory operation a Congregation of The United Church and that the non-concurring members had no claim to its property. The appeal by the members of the Congregation who did not concur with the Union and claimed ownership of the Congregation's property was dismissed.
26. Rev. Anderson intimates the Aird and McLean decisions were not considered in the Anderson case, In fact Gautreau J. referred to both decisions in his reasons (page 304) and even quoted from Aird. (p. 315). The passage in Mulock C.J.0's decision relied upon by Rev. Anderson throughout the Appellant's Statement was underlined in the copy handed up to Gautreau J. by counsel for the respondent Congregations in that case.
(i) Request for Ruling, para (d), Reply Record, Tab 1
(ii) United Church of Canada v. Anderson (1991), 2 OR. (3d) 304 (Ont Gen Div), Reply Record, Tab 7
(iii) Excerpt from the Factum of the Respondents in United Church of Canada v. Anderson, Reply Record, Tab 4
27. Rev. Anderson challenges the Ruling on the basis that it relies unduly on By-Law 266(a). Rev. Anderson appears to contend that By-Law 266(a) is invalid because it is legislation in respect of congregational property by General Council which has not been approved by the appropriate Conference. In fact By-Law 266(a) is consistent with the enabling legislation, the Ontario United Church of Canada Act 1925, the Trust of Model Deed and the Basis of Union. No additional powers or rights have been conferred by By-Law 266(a). Conference approval would only be required in the event a By-Law was inconsistent, or went beyond the enabling legislation.
(i) The United Church of Canada Act, S.O. 1925, c. 125, Sch "B" hereto, p. (iv to xi)
(ii) By-Law 266 (a), Sch "B" hereto, p. (i)
28. Essentially these same arguments are repeated by Rev. Anderson under the heading of each of the other four grounds for appeal enumerated in By-Law 076 (f) ii, iii, iv, v. It is submitted that they do not meet those grounds for appeal, for the same reason they do not meet the ground of appeal in By-Law 076(f) i.
(C) In any event, there is no error in the Ruling that would make it reviewable by the Judicial Committee
29. The General Secretary's powers in granting a ruling under By-Law 513 (f) are confined to the questions set out therein. In the Ruling the Secretary General reviewed the Church laws in issue and interpreted them in accordance with their plain meaning. The General Secretary made no error in arriving at his conclusions. The Ruling is a correct interpretation of the plain language of the Church law.
30. Furthermore, and contrary to what is said in the Appellant's Statement, the Ruling does not conflict with the law as determined by the civil courts. The Ruling conforms with the most recent decision of the civil courts concerning vesting of congregational property within the United Church: United Church of Canada v. Anderson. That decision was not appealed.
(i) United Church of Canada v. Anderson (1991), 2 O.R. (3d) 304 (Ont. Gen. Div.), Reply Record, Tab 7
PART IV: ORDER SOUGHT BY THE RESPONDENT
31. For the foregoing reasons, the General Secretary seeks a decision of the executive of the Judicial Committee refusing to hear this appeal
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Counsel for the General Secretary of the General Council, Jim Sinclair
Date: September 21, 2006
AUTHORITIES REFERRED TO
1. Aird v. Johnson,  4 DLR 664, 64 OLR 223 (CA)
2. Ferguson v. Maclean,  SCR 630,  1 DLR 61
3. United Church of Canada v. Anderson (1991), 2 O.R. (3d) 304 (Ont. Gen. Div.) .
RELEVANT PROVISIONS OF STATUTES,
REGULATIONS AND BY-LAWS
By-Law 076 (a): An Appeal may be made only against a Decision or against a ruling of the General Secretary of the General Council. An Appeal may be made only by a person or a Court directly affected by the Decision or ruling. In the case of a Decision made by a Formal Hearing Committee, an Appeal may be made only by a Party to the Formal Hearing.
By-Law 076 (b) iii: An Appeal may be made as follows:
iii: against any ruling of the General Secretary of the General Council on questions of jurisdiction or interpretation, to the Judicial Committee of the General Council.
By-Law 076 (f): Grounds for Appeal. Grounds for Appeal are:
|The failure of the Court that made the Decision against which the Appeal is being made to consider the matter as completely as practicable;|
|an injustice in the disposition of the matter;|
|that the Decision was against the evidence and the weight of the evidence;|
|that the Decision was wrong in law; or|
|the availability of newly discovered evidence that might have an important bearing on the case.|
By-Law 076 (m) ii: Whether to Hear. Before any Appeal may be heard,
in the case of an Appeal to the Judicial Committee of the General Council, its Executive, shall review the written statements referred to in subsections (g) and (i) above, and shall make a Decision either to refuse to hear the Appeal because it does not meet the grounds for an Appeal or to proceed to hear the Appeal. Notice of such Decision shall be given in writing to the Parties concerned, and in the case of a Decision to refuse to hear the Appeal shall include the reasons for such Decision. Such Decision is not subject to Appeal.
By-Law 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 require 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 Congregation Churches).
By-Law 266 (b): Property Held in Trust for Special Use. Any property held in trust for any special use of a Congregation shall be held, used, and administered for the benefit of such Congregation as part of the United Church as the same was held, used, and administered for the benefit of such Congregation prior to the coming into force of the legislation effecting Church Union.
By-Law 513 (f): Duties of General Secretary. The primary duty of the General Secretary of the General Council is to be the senior staff and administrative officer of the General Council, its Executive, and its Sub-Executive. No other responsibilities should be laid upon or assumed by the General Secretary that would interfere with effective functioning in this primary area. The General Secretary must assist the Executive of the General Council to discharge its responsibilities as set out in section 524, and especially subsection 524(a). In discharging this primary duty, the General Secretary shall be responsible for the following, inter alia:
(f) to make rulings on questions of jurisdiction or interpretation with respect to all matters of the policy, procedures, and practice of the United Church.
THE BASIS OF UNION
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.
1 . The United Church of Canada Act, S.O. 1925, c. 125, s. 2, s. 3, s. 4, s. 6, s.8 and Schedule A thereto
2. An Act incorporating the Board of Trustees of the Presbyterian Church in Canada, S.O. 1900, c. 135, s. 5
United Church of Canada Act,
S.O. 1925, c.125
|2. In this Act, unless the context otherwise requires, the expression-||Definitions|
|(c) "Congregation" means any local church, charge, circuit, congregation, preaching station or other local unit for purposes of worship in connection or in communion with any of the negotiating churches or of The United Church of Canada.||"Congregation."|
|3. Save as hereinafter provided, all property, real and personal, within this Province, belonging to or held in trust for or to the use of The Presbyterian Church in Canada, The Methodist Church, and The Congregational Churches, or belonging to or held in trust for or to the use of any corporation, board, committee or other body, whether incorporated or unincorporated, created by or under the government or control of, or in connection with, any of the said churches. shall upon the coming into force of this Act be vested in The United Church, to be held, used and administered, subject to the provisions of this Act, in accordance with the terms and provisions of the Basis of Union.||General propery vested in the United Church.|
|4. Subject to the provisions of section 6 hereof, all property, real and personal, within this Province, belonging to or held by or 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 this Act be held, used and administered for the benefit of the same congregation as a part of The United Church in the manner and upon the trusts and subject to the terms and provisions set forth in Schedule "A" to this Act and all property, real and personal, within this Province, thereafter acquired for or belonging to or held by or in trust for or to the use of any congregation of The United Church shall be held, used and administered for the benefit of the said congregation as a part of The United Church upon the said trusts and subject to the said terms and provisions. Provided that any property, real or personal, held at the time of the coming into force of this Act or thereafter acquired by devise, bequest, transfer or gift, in trust for any special use of any congregation, shall be held, used and administered in accordance with the special trusts so declared in thereof, not being contrary to law or to any by-law, rule or regulation of The United Church, and that in the event of failure or partial failure of any of the said trusts, the said property, in the absence of any express provision for such event, may be held, used, administered or disposed of as may be provided by any by-law, rule or regulation made from time to time by The United Church.||Property of congregations.|
|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 Act, solely for its own benefit, and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise, shall not be subject to the provisions of section 4 hereof or to the control of The United Church, unless and until any such congregation at a meeting thereof regularly called for the purpose shall consent that such provisions shall apply to any such property or a specified part thereof.||Special property of congregations.|
|8.-(a) Provided always that if any congregation in connection or communion with any of the negotiating churches shall, at a meeting of the congregation regularly called and held before the 10th day of June, 1925, decide by a majority of votes of the persons present at such meeting and entitled to vote thereat not to enter the said union of the said churches, then and in such case the property, real and personal, belonging or held in trust for or to the use of or for the benefit of such non-concurring congregation shall remain unaffected by this Act, except that any church formed by non- concurring congregations of the respective negotiating churches into which such congregation enters shall stand in the place of the respective negotiating churches in respect of any such trusts relating to such property, and except that in respect of any such congregation which does not enter any church so formed such property shall be held by the existing trustees or other trustees elected by the congregation free from any trust or reversion in favour of the respective negotiating churches and free from any control thereof or connection therewith. In the case of non-concurring congregations of The Presbyterian Church in Canada, their property on and after June 10th, 1925, shall stand in the same relation to the church to be formed by such non-concurring Congregations as it stood to the Presbyterian Church in Canada before the passage of this Act. The vote herein provided for shall be taken by ballot in such form and manner and at such time within the limit prescribed by this subsection as the congregation may decide: Provided that not less than two weeks shall be allowed for the taking of said vote by ballot as aforesaid. The said meeting may be adjourned for the purpose of said ballot being taken, but not for a longer period than thirty days.||Property of non-concurring congregations.|
|(b) Subject to the provisions of clause (f) of this section, any vote on the question of entering the said union taken in a congregation prior to the coming into form of this Act in accordance with the provisions of the Act of Incorporation shall be deemed to be the vote of such congregation for the purposes of this section.||Adoption of votes taken under Dominion Act.|
|(c) The persons entitled to vote. under the provisions of subsection (a) of this section shall be those persons who were in full membership and whose names were on the roll of the church on the 19th day of July, 1924, or who by the constitution of the congregation, if so provided, or by the practice of the Church with which they are connected, would have been entitled to vote at a meeting of the congregation on matters affecting the disposal of property, on the 19th day of July, 1924.||Persons entitled to vote.|
|(d) A meeting of the congregation for the purpose aforesaid may be called by the authority of the session or official board of its own motion and shall be called by the session or official board on requisition to the session or official board in writing of ten members entitled to vote under the provisions of this section in a congregation of one hundred members or less; or twenty-five such members in congregations having over one hundred and not more than five hundred members; and fifty members in congregations of over five hundred and not more than one thousand members; and one hundred such members m congregations of over one thousand members.||Calling of meeting for voting on Union.|
|Such meeting shall be called by public notice read before the congregation at each diet of worship on two successive Lord's Days on which public service is held and such notice shall specify the object of the meeting. Provided further that such meeting shall be held within thirty days of the receipt. of the requisition by the clerk of sessions or recording steward of the official board, or in case of any congregation not having a session or official board, by the ordained minister recognized as in charge thereof by presbytery or district meeting.||Notice.
To be held within thirty days after requisition.
|(e) "Congregation" in this section means a local church as mentioned in The Basis of Union.||"Congregation."|
|(f) Any action or other proceeding brought prior to the 10th day of June, 1925, and questioning the validity or effect of any vote taken under the provisions of the Act of Incorporation or of this Act may be proceeded with and finally adjudicated upon in all respects as though this Act had not been passed.||Provision as to litigation.|
|(g) No action or other proceeding questioning the validity or effect of any such vote shall be brought after the 31st day of March, 1926.||Limitation of action.
as amended by S.O. 1926, c. 113, s. 2
TRUSTS OF MODEL DEED.
AND it is hereby declared that the said Trustees and their successors or the Trustee or Trustees for the time being acting in the trusts herein shall hold the said lands upon the following trusts:-
|COLUMN ONE.||COLUMN TWO.|
|1. Upon trust to use the trust property for purposes directed by congregation and maintenance of public worship.||1. For the use and benefit of the said church, charge, circuit, preaching station or congregation, as the case may be (hereinafter called the congregation), as a part of The United Church of Canada, as well for the site of a church, chapel, meeting house, school, manse, parsonage or minister's dwelling or other place for religious, charitable, educational, congregational or social purposes, glebe or burial ground, as the said congregation may direct, as for the support and maintenance of public worship, and the propagation of Christian knowledge, according to the doctrine, discipline, by-laws, rules and regulations of The United Church of Canada.|
|2. To erect and repair buildings.||2. And upon further trust, out of all moneys received by them for that purpose, to build, erect, add to, alter, repair, enlarge or rebuild any of the buildings aforesaid from time to time as they may deem expedient, and where they deem it necessary, to take down and remove any of said buildings for any of the purposes aforesaid.|
|3. To obey all lawful orders and directions.||3. And upon further trust, that they shall and will obey, perform and fulfil and suffer to be obeyed, performed and fulfilled with respect to the said lands, and to any building or buildings at any time thereon, or to any burial ground, the lawful orders and directions respectively of the Official Board of the said congregation, the Presbytery and Conference respectively within whose bounds and under whose ecclesiastical jurisdiction the said congregation shall from time to time be, and of the General Council of The United Church of Canada.|
|4. To permit use of the trust property for church, manse, and Sunday-school purposes.||4. And upon further trust, to permit, in conformity with the doctrines,
discipline, by-laws, rules and regulations of The United Church of Canada
and not otherwise, the following:-
(a) The use of the said church, chapel or meeting-house, as a place of religious worship by a congregation of The United Church of Canada and for meetings or services of religious or spiritual character or such benevolent or congregational purposes as may be approved by the Session of such congregation, and the conduct of public worship and the various services and ordinances of religious worship therein by the minister of the said congregation or, with the approval of the Session or of the said minister, by any other minister of The United Church of Canada or by any minister of any other religious denomination.
(b) The performance of burial services in any burial ground or cemetery belonging to or under the control of the congregation;
(c) The use of the manse, parsonage or minister's dwelling or dwellings with the appurtenances thereof by the minister or ministers of the congregation free from payment of any rent;
(d) The use of any church, chapel, meeting-house, school or other building for the purposes of a Sunday school at such hours and times as will not interfere with public worship, and
(e) The use of any buildings erected upon the said lands, other than a church, chapel or meeting-house, for such purposes as may from time to time be approved by the Session of the congregation.
|5. To let and sell pews and burial plots and to let manses.||5. And upon further trust, to let any pews and seats at a reasonable rent, if so authorized by the Official Board of the congregation, with power to delegate any such letting to any person or persons whom they may appoint for that purpose; to let any buildings, not required for purposes of worship, at a reasonable rent; and if there shall be a burial ground or cemetery, to sell or let vaults, tombs or burial plots at a reasonable price or rent; and to account for and pay all moneys received in respect of any such letting or sale, less any expense incurred in the execution of these trusts, to the Treasurer of the congregation, or should there be no Treasurer, then to the Committee of Stewards of the congregation, or such person as shall be designated by the said Committee for the purpose of receiving the same. In case the Trustees are of opinion that any manse, parsonage or minister's dwelling is not required for the use of the minister or ministers of the congregation, or is not desirable for the use of such minister or ministers, they may, with the consent in writing of said minister or ministers, let the same and use and apply the rent derived therefrom towards paying the board and lodging of such minister or ministers or the rent for a more suitable and convenient residence for such minister or ministers.|
|6. The trustees shall have power to sell, mortgage, exchange, or lease the trust property with the consent of the Presbytery.||6. The Trustees or a majority of them may, but only with the consent in writing of the Presbytery within the bounds of which the lands are situate (such consent to be under the hand of the presiding officer or secretary or clerk thereof), sell the said lands or any part thereof either by public sale or private contract and either for cash or upon credit and upon such terms as to price and for such price and upon such terms as to payment or otherwise as they may deem expedient; mortgage, hypothecate or exchange the said lands or any part thereof; let any church, chapel or meeting-house upon the same for such rent and upon such terms as they may deem expedient; and make all such conveyances, mortgages, leases and assurances as may be required to complete any such sale, mortgage, hypothecation, exchange or lease. The said Trustees after first paying or otherwise providing for all indebtedness of the Trustees shall apply the moneys arising from such sale, mortgage, hypothecation, lease or exchange for the purposes of such congregation as the Official Board thereof shall direct, but should such congregation cease to exist as an organized body, such proceeds, less any expense incurred in the execution of these trusts, shall be paid to The United Church of Canada to be applied for such purposes for the benefit of The United Church of Canada as the Conference within the bounds of which the said lands are situate may determine under the by-laws, rules and regulations of the General Council. Every application by Trustees for the consent of a Presbytery as aforesaid shall be in writing and shall state the purpose for which the moneys arising from such intended sale, mortgage, hypothecation, lease or exchange will be applied. Any decision of a Presbytery with regard to the sale, mortgage, hypothecation, lease or exchange of the said lands or any part thereof shall be subject to appeal to the Conference within the bounds of which the said lands are situate, at the instance of not fewer than any five members of the congregation affected thereby. In every case where the consent of such Presbytery or Conference has been obtained as aforesaid it shall not be incumbent upon the purchaser, mortgagee or lessee of the said lands or of any part thereof to enquire into the necessity, expediency or propriety of any such sale, mortgage, hypothecation, lease or exchange, or to see to the application of the moneys paid to the Trustees. A certificate of the secretary or clerk of any Presbytery or Conference that any such consent has been given shall be sufficient and conclusive evidence of such consent.|
|7. The trustees shall keep proper accounts and minutes.||7. The said Trustees shall keep a proper book or books of account showing all moneys received and disbursed by them, and a book or books of minutes showing correctly all minutes of their meetings and of resolutions passed and proceedings taken thereat, and such book or books shall at all reasonable times be open for inspection by the minister in charge of the congregation and by the Chairman of the Committee of Stewards, and any person or persons named by them or either of them, and the said minister or the said chairman and any person named by them or either of them as aforesaid shall have the right to make such copies or abstracts of or extracts from the said accounts or minutes, as he or they may desire, and upon request from the Committee of Stewards the Trustees shall submit all books of accounts and minutes, and all vouchers, receipts, papers and documents relating to the said accounts, for audit by the Committee of Stewards, or such person or persons as the said Committee may appoint for the purpose.|
|8. The trustees shall have seven days' notice of all special meetings and one day's notice of other meetings.||8. Every meeting of Trustees for considering the making of any alteration of or addition to any building on the said lands, or any part thereof, or for considering the sale, mortgage, hypothecation, lease or exchange of the said lands, or any part thereof, except the letting or sale of pews, seats, vaults, tombs or burial plots, or for considering any litigation or legal proceedings in connection with the trust estate, shall be deemed a special meeting, and each member shall be entitled to seven days' notice in writing thereof, specifying the time, place and purpose of such meeting. Such notice shall be either personally delivered to each Trustee, or mailed to or delivered to him or her at his or her usual place of abode or business. Ordinary meetings may be called at any time by giving at least one day's notice in writing to each Trustee in the manner aforesaid, or by public announcement at a service for public worship at least one day prior to such meeting. Meetings may be called by the minister in charge of the congregation, or by at least two of the Trustees. Notwithstanding anything herein contained no meeting or any business transacted thereat shall be invalid by reason of any lack or defect of service of notice arising from inability to ascertain the usual place of abode or business of any Trustee. All questions shall be determined by the majority vote of the Trustees present at a meeting, and the Chairman shall have a casting vote in the event of a tie. The minister of such congregation shall have the right to preside as Chairman at all meetings of the Trustees and may appoint a deputy to act in his place in his absence, and in the absence of the Minister and of any such deputy the Trustees present may elect a Chairman from among themselves.|
|9. The number of trustees shall not be fewer than three or more than fifteen, and vacancies shall be filled by election by the congregation, or in default of such election, by the Presbytery, and the property of a congregation which ceases to exist shall be subject to the trusts determined by the Conference.||9. The number of said Trustees shall not be fewer than three or more
than fifteen provided that where the number of existing Trustees is more
than fifteen all such Trustees shall remain in office but that no vacancy
in the office of trustee shall be filled until the number of Trustees is
reduced below fifteen, in which case the number shall not again exceed
fifteen. In case any of the said Trustees or any Trustee appointed under
this provision shall, during his or her term of office, die, resign or,
having been, cease to be a member of The United Church of Canada in full
communion, or remove to such a distance, or fail to attend meetings for
such period not less than one year, as shall in the opinion of his or her
co-trustees expressed by a two-thirds vote of said co-trustees, render
it inexpedient for him or her to remain a Trustee, or in case the said
congregation shall think proper to remove a Trustee from his or her office
as Trustee, it shall be lawful for the said congregation, at any meeting
called by notice from the pulpit during public worship on each of the two
next preceding Sundays on which public worship is held, to declare by the
votes of two-thirds of the members then present that such Trustee has ceased
to be a Trustee of the said congregation, and such person shall thereupon
cease to be a Trustee, and at the same meeting it shall be lawful for the
said congregation by a like vote to appoint a successor to such Trustee
provided, however, that no Trustee who is personally liable for payment
of any indebtedness in respect of the property of a congregation shall
be removed without his consent unless indemnified to his satisfaction in
respect of any such liability and unless at least eight days' notice in
writing of such meeting shall have been mailed to each of the Trustees
at his or her last known address, which notice shall state the business
to be transacted at such meeting. If no successor shall be appointed at
such meeting a meeting may be called in like manner for the purpose of
filling such vacancy, and at such meeting a new Trustee or new Trustees
(as the case may require) shall be appointed by the votes of the majority
of the members then present. The notice calling a meeting for the purpose
of declaring or filling a vacancy or vacancies in the office of Trustee
shall be read from the pulpit by the minister or person officiating as
minister, at the request of any Trustee, or of any seven members of the
congregation, and every such meeting may be adjourned from time to time
by the vote of the majority of the members present. During any vacancy
in the office of Trustee, the remaining Trustees, not being fewer than
three in number, shall have all the powers of the full board. A majority
of the Trustees shall form a quorum save when the number of Trustees exceeds
nine, in which case five shall form a quorum. The majority of the Trustees
shall be members of The United Church of Canada.
A minute of every such appointment of a Trustee shall be entered in a book to be kept for the purpose, and signed by the person presiding at the meeting, and such minute so signed shall be sufficient evidence of the fact that the person or persons therein named was or were appointed and elected at such meeting, but any omission or neglect to make or sign such minute shall not invalidate such appointment or election.
And it is hereby further declared that in case there shall be at any time fewer than three Trustees, the presiding officer or clerk of the Presbytery within whose bounds and under whose jurisdiction the said congregation shall be, shall, with the remaining Trustee or Trustees, be the Trustees under these presents until the full Board is duly appointed, and at any time thereafter the Presbytery may cause notice to be given from the pulpit on two consecutive Sundays requiring the said congregation to proceed with the appointment of new Trustees. And if the said congregation shall not in the meantime have appointed new Trustees in the manner hereinbefore provided, it shall be lawful for the said Presbytery at any time after four weeks from the last giving of such notice, by resolution duly entered in the minutes of the Presbytery, to appoint new Trustees. Such appointment shall be communicated to the congregation by notice from the pulpit as soon as conveniently may be thereafter, and from the time of such communication the Trustee or Trustees so appointed shall be a Trustee or Trustees hereunder.
And it is further declared that if at any time there shall cease to be an organized congregation entitled to the use, benefit and enjoyment of the said lands, it shall be lawful at any time or times for the said Presbytery to fill any vacancy in the number of Trustees, and the said lands shall thenceforth be held subject to such trusts and for such purposes for the benefit of The United Church of Canada as the Conference within the bounds of which the said lands are situate may determine under the by-laws, rules and regulations of the General Council.
|10. Trustees shall not be liable for involuntary loss.||10. A Trustee shall not be responsible for the failure of any investment or security made or taken by the Trustees or for anything done in connection with the trust estate except for his own acts and to account for any moneys coming into his own hands, and shall not be liable for injury done by others to the said trust premises, or to any part thereof.|
|11. In congregations existing previous to the Union which have not adopted the plan of organization prescribed for pastoral charges as provided by the Basis of Union, the words "Official Board" and "Committee of Stewards" and "Session" in this schedule shall mean such Board or Committee or other body respectively discharging similar functions in such congregations, as to which in case of doubt the opinion of the Presbytery to which such congregation belongs shall be final and conclusive.|
An Act incorporating the Board of Trustees of the Presbyterian
Church in Canada,
S.O. 1900, C. 135
|5. All lands and premises which have been or shall hereafter at any time be held by any trustee or trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the said Board of Trustees on trust to sell the same and pay over the proceeds of the said sale to the Treasurer of the said Church for the benefit of the Home Mission scheme thereof or as may be otherwise determined by the General Assembly of the said Church.||Lands of congregations which have ceased to exist.|
IN THE MATTER OF an appeal from the ruling of the General Secretary of the General Council of The United Church of Canada, dated July 11, 2006 (06-009-R)
OF THE GENERAL SECRETARY
OF THE GENERAL COUNCIL
OF THE UNITED CHURCH OF CANADA
Barristers and Solicitors
Suite 1600, The Exchange Tower
130 King Street West
Toronto, ON M5X 1J5
Tel: (416) 947-5073
Fax: (416) 365-1876
Solicitors for the General Secretary of the
General Council, Jim Sinclair