Wednesday, January 6, 2010

The Strange Death of the Original-Principles Trust (Pt 2)

Kelleher J.’s approach is to treat the application of the neutral principles of law, which is step one of the process, as both beginning and end of it. The cases he cites in support of his approach are all irrelevant to the case at hand. Two cases are cited in support of the proposition that questions of church doctrine are inappropriate subjects for judicial determination. Kelleher J. notes in particular that one of these cases referred approvingly to the U. S. Supreme Court’s groundbreaking 1979 decision in Jones v. Wolf (8). However it is not necessary to look to cases relying on American constitutional law in support of the doctrine that Anglo-Canadian courts ordinarily refrain from determining issues of church doctrine. That also is a centuries-old common-law doctrine, and the inquiry into fundamental original doctrines is a carefully carved out exception to it, as Professor Ogilvie explains in her text. Kelleher J. further cites Protection of the Holy Virgin Russian Orthodox Church (9), where the Quebec Court of Appeal declined a request for a declaration that to be a member of the parish, a person must observe the teachings of the church. There was no trust argument in that case so the refusal of the court to get involved in matters of doctrine has no relevance here. The portion of the trial court decision cited an Ontario Court of Appeal decision in Balkou v. Gouleff (11). In that case the court was asked to determine whether church doctrine forbade membership in Communist organizations. Again, this is not a church property case and has no bearing on the fundamental-principle doctrine.

The oddest citation in support of this approach comes in paragraph 252, where Kelleher J. cites a statement by Burton J.A. in Itter v. Howe (1896)(12) in support of the proposition that “[t]he notion of civil courts deferring to ecclesiastical authority on questions of doctrine has deep provenance in Canada.” As a refutation of the fundamental-principles doctrine, this reference is negated more than adequately by Kelleher J. himself in paragraphs 268 and 269, where he discusses the case and demonstrates that the fundamental-principle rule was applied in it. The dissidents lost in Itter v. Howe, but the principle itself was recognized --as it always has been until Bentley v. New Westminster was released.

The other argument Kelleher J. uses is that trust doctrine does not apply in the case of a hierarchical church such as the Anglican Church, which was an elaborate and complicated set of rules, procedures, and authorities. This appears to be an acceptance of the defendants’ novel argument, also derivative of American categorizations, that the trust doctrine applies only in congregational churches, and not hierarchical ones. I have not been able to find any case law cited by either Kelleher J. or the defendants in support of this proposition; I believe none exists. The doctrine has always applied to hierarchical and non-hierarchical churches; to churches with elaborately constructed internal mechanisms and those with no written statements of doctrine at all. The analysis has been applied to eastern Orthodox churches which are more hierarchical than the Anglican Church. It has been applied to the Methodist Episcopal Church in the 1830s, a hierarchical church within the legal meaning of the term and one with a more detailed and precise set of rules and internal procedures than Anglicans have. There is no basis for this argument in either precedent or logic; the ill that the fundamental-principles doctrine attempts to remedy is the same whether the abandonment has occurred by an arbitrary decision in a single congregation with no written doctrinal statement or a thoroughly debated decision in a denomination with 500 pages of constitution and canons.

What would impel Kelleher J. to reject the existing doctrine so brazenly? I want to discuss this because orthodox Christians succumb all too easily to the temptation, and I use the word literally, to attribute all adverse judicial decisions to the implacable hostility of the secular world and its rejection of the truth in Christ. It must be acknowledged that in any case where judicial bias, open or covert, influences a decision, the probability is great that the relevant bias will be against orthodox Christianity. However in Bentley the possibility that the adverse decision was actuated by bias can be completely dismissed. A companion issue in the case involved the disposition of the Chun bequest, a $2.2 million building fund claimed by both a dissenting and a successor ACoC congregation. Without discussing the trust issues there, it may be said that the choice of beneficiary was something close to an act of pure equitable discretion. The departing ACNA congregation was awarded control of the Chun bequest. It is impossible that a judge motivated by hostility to orthodox doctrine would have made that decision.

The reason that the place of the fundamental-principles doctrine could be seen in advance of this litigation to be somewhat precarious is that it has an archaic air to it. Aspects of it seem to belong to a bygone age, to a time when any educated English gentleman, of whatever religious belief, who might find himself on the bench could be expected to know the basic doctrines of not only the Church of England but the major sectarian groups (and even of “Papists”, as they were described in one of the major early House of Lords precedents). Like the law lords in the case marking the high water mark of the doctrine, Free Church of Scotland v. Overtoun (13) (see Wikipedia entry), a judge could be expected to engage in learned discussion on the degree of significance of an alteration of the doctrine of double predestination by the adoption of the statement that “God is not willing that any should perish, but that all should come to repentance.” In a post-Christian age, we cannot expect judges to bring with them that kind of expertise. Nor are Christian churches the only religious institutions to which the doctrine applies. In the English case of Varsani v Jesani , a Hindu sect’s founder was believed to be the incarnation of the Supreme Being, and a division arose over the extent to which his successor also enjoyed divine status. Carnwith J. was faced with the task of determining which faction (if either) had deviated from the sect’s original fundamental principles, in a sect with no written doctrinal statement that could be adverted to. Understandably, he balked, and found a solution in a statutory scheme that allowed division of properties between the factions. There is no equivalent statutory provision in Canada, so a judge here would have to make that challenging factual determination.

The necessary entanglement of the state in church affairs of the fundamental-doctrines rule leads activist judges to look for some way to extinguish it. The strength of this sentiment may be seem from the reaction to the decision by Don Hutchinson, general legal counsel for the Evangelical Fellowship of Canada (EFC). It is churches like EFC members who derive the most benefit from a doctrine protecting established orthodoxy. Despite this, Hutchinson said “he found it appropriate that Justice Kelleher "respected the religious freedom of the Anglican communion" by allowing internal Anglican processes to resolve internal Anglican disputes. "We don't want the courts or government making final decisions on the beliefs, practice and polity of a church."

So far so good as to the chances of a successful appeal by the ANiC churches, who at the time of writing are in a discernment process to determine whether they should appeal. (A notice of appeal has been filed to meet the deadline.) However, as we shall subsequently see, the situation gets much stickier when we look at ANiC's ability to show that the ACoC has indeed violated the original principles doctrine as the coirts have applied it.


(8) (1979), 443 U.S. 595, 1979 U.S. LEXIS 16
(9) (1st ed., at 209).
(10) [2001] O.J. No. 438 (S.C.); varied 2002 CanLII 3570 (ON C.A.), 30 B.L.R. (3d) 315, 167 O.A.C. 138
(11) (1989) 68 O.R. (2d) 574.
(12) (1896), 23 O.A.R. 256, [1896] O.J. No. 31 (QL) (C.A.)
(13) [1904] AC 515 (H.L.)

The Strange Death of the Original-Principles Trust (Pt 1)

In the last decade, congregations in the Anglican diocese of New Westminster have had to respond to the heterodox doctrinal positions taken by the diocese and its Bishop Michael Ingham. One option was to separate from the Anglican Church of Canada ("ACoC") and affiliate with an orthodox Anglican province overseas. They might then wonder what property rights their congregations would retain. There was a rule of law on the subject on which they might have thought they could rely. It has been in place in the United Kingdom and Canada for over 150 years. Its validity had never been called into question. It had been taken for granted as a valid rule of law in the most recent cases on the subject: in Scotland in 2005 (1), in England in 1998 (2), in the Supreme Court of Canada in 1970 (3), and in British Columbia itself in 1981 (4). It has been summarized by Professor Ogilvie, in her text on church law, as follows:
It is a well-settled principle of law that the property of a religious institution must be held and applied to the original purposes for which that institution was founded, that is, for the original "trust". Such property cannot be redirected to other purposes by a mere majority of members, and where a majority decides upon a diversion, the property remains in trust for the dissenting minority (even one person) who adheres to the original trust for which the property was given. (5)
There are a number of qualifications that need to be applied to this statement of law, most importantly that it is only the upholding of those doctrines that can be classified as fundamental that form the original trust, but that the rule of law existed has never been in dispute.

In Bentley v. New Westminster, (available free at (6) Mr Justice Stephen Kelleher, deciding ownership of the property of 4 orthodox Anglican congregations who had left the diocese, came to the surprising conclusion that this rule of law no longer existed. Or at least that he was able to decide a question of ownership where departure from fundamental doctrines was alleged while ignoring the rule, which amounts to the same thing. We have some detailed eyewitness accounts of the trial and can reconstruct how the justice was led to this novel conclusion, and they testify to the value of audacity in litigation strategy; the defendant diocese simply denied that any such doctrine existed.

Reading Kelleher J.’s legal analysis (beginning at para. 247), we can see that he has gotten off track, very early in his analysis, when he summarizes the defendant diocese’s position:
the defendants contend that the issues in dispute can be resolved by reference to statutes and canon law, and that it is unnecessary to turn to trust principles....What the defendants advance is akin to the "neutral principles of law" approach that American courts routinely apply in resolving church property disputes....
Kelleher J. goes on to explain this so-called neutral principles of law approach, citing a recent California case:
The court should consider sources such as the deeds to the property in dispute, the local church’s articles of incorporation, the general church’s constitution, canons, and rules, and relevant statutes, including statutes specifically concerning religious property, such as [charitable corporations legislation].
The reader’s first reaction will be to wonder what a principle of law developed by American courts in order to bring American church property law into compliance with the First Amendment to the American constitution by avoiding excessive entanglement of church and state has to do with the application of the well-established church property law of British Columbia. Kelleher J. "acknowledges that the neutral principles of law approach is a consequence of the First Amendment’s separation of church and state" in para. 249. But upon further consideration, this first reaction, that we are faced here with a pure doctrinal innovation based upon an arbitrary transplanting of American law, is misplaced. The neutral principles of law approach is not a new American approach. Properly understood, it is not an alternative to the Anglo-Canadian fundamental-purposes trust approach. The approaches are complementary, and have heretofore coexisted. Anglo-Canadian law, although having no need of the name, has always applied the "neutral principles of law" approach to answer the first question in any property dispute: who owns the property? And further, where necessary, do the holders of legal title hold the property on trust, express or implied, for some other entity within the denomination? And then, once these questions have been decided, once the "neutral principles of law" approach has been exhausted, where there has been a division within a church, there remains the question of whether one side of the division has abandoned the fundamental doctrines upon which the church has been based. For, to quote Prof. Ogilvie again,
"...regardless of denomination or polity, where a congregation or denomination decides to change its fundamental doctrinal standards from those for which the property was given, the property is to be held on trust for those members who adhere to the original standard." (7)
11 Canadian cases are cited for this proposition, and more could be found, without even counting cases from Great Britain where the doctrine was formed and evolved.

First the neutral principles of property law are applied, then, if it is alleged that the title holders at law have abandoned the original fundamental principles for the furtherance of which the property is held, the special original-principles trust test is applied. That’s the law of Canada.


(1) Free Church Of Scotland v. General Assembly Of The Free Church Of Scotland [2005] ScotCS CSOH_46

(2) Varsani v Jesani [1998] EWCA Civ 630 (3 April 1998);

(3) Hofer v. Hofer, [1970] S.C.R. 958, 1970 CanLII 161 (S.C.C.), 73 W.W.R. (N.S.) 644

(4) Chong v. Lee, 1981 CanLII 732 (BC S.C.), 29 B.C.L.R. 13

(5) M. H. Ogilvie, Religious Institutions and the Law in Canada (Toronto: Irwin Law, 2nd ed., 2003, at 293-94

(6) 2009 BCSC 1608 (CanLII),

(7) Ogilvie, (1st ed., 1996,) at 211.