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
rev@magma.ca
http://www.magma.ca/~rev/
__________

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
Aird v. Johnson [1929] 4 D.L.R 664
Ferguson v. MacLean  New Brunswick Supreme Court, Appellate Division 1929 2 M.P.R. 257
St. Luke's Presbyterian Congregation of Saltsprings [Trustees] v. Cameron 1930 A.C. 673
Ferguson v. MacLean  1930 S.C.R. 630
The United Church of Canada v. Anderson  1991 2 O.R. (3rd) 304
and statutes are at
1900 c. 135 An Act incorporating the Board of Trustees of the Presbyterian Church in Canada  Ontario
1907 c. 79 An Act to incorporate The Board of Trustees of the Presbyterian Church in Canada, Eastern Section  New Brunswick
1924 c. 59 The United Church of Canada Act  New Brunswick
1924 c. 100 The United Church of Canada Act  Canada
1925 c. 125 The United Church of Canada Act  Ontario