The B.C. Court of Appeal has recently upheld the November 2009 trial decision in Bentley v. Anglican Synod of the Diocese of New Westminster. We reported on the trial judgment in the January 2010 issue of this Newsletter. The case addressed, among other things, the right of four incorporated Anglican parishes that disagreed with their Bishop’s position on same-sex unions to secede from their Diocese and to have certain church properties turned over to them. At trial, the judge held that the parishes did not have the right to unilaterally leave the Diocese or take control of the church properties. The plaintiff parishes appealed this decision, and a unanimous Court of Appeal upheld the trial judge’s ruling.
The appellant parishes sought a declaration that the parish properties are held on trust either for “Anglican worship” without more, or (as argued in the court below) for orthodox Anglican ministry, as they regard themselves as remaining true to the fundamental doctrines of the Anglican Church (“the ACC”). They argued that the Bishop’s willingness to bless same-sex unions by clergy in the Diocese broke with orthodox Anglican doctrine. The parishes argued that they alone remained true to orthodox doctrine and should therefore not be deprived of their rights to the use of the parish properties. The Bishop argued that because the plaintiffs have allegedly left the Church and removed themselves from its supervision, and are in fact attempting to form a new conservative group in opposition to the Church, they have ceased to be true adherents to Anglican doctrine.
The Court of Appeal rejected the appellants’ argument, and one of the central holdings was a rejection of the approach to religious legal disputes taken by American courts. When deciding property disputes of this sort between religious bodies, U.S. courts have sought to refrain from resolving religious doctrinal controversies and to interpret the legal rights provided for in church documents in purely non-religious terms. The Court of Appeal in Bentley cited a leading Canadian academic in this area, Margaret Ogilvie, in disagreeing with the U.S. approach:
The effect of this deference [in the U.S.] in the interests of the free exercise of religion has been to create a quasi-sovereign or virtually autonomous sphere for churches, justified by the de facto legislative power of the American Supreme Court, which has no parallel in a parliamentary system. Even an entrenched Charter neither permits such zones to be created in Canada nor forbids courts to hear all disputes brought before them. Rather, it is fundamental to the common law that courts cannot decline jurisdiction or defer to some body, other than a sovereign parliament, within the Anglo-Canadian political system. Whether Canadian courts wish to do so or not, they are obliged to deal with church property disputes, including their doctrinal aspects.
The Court of Appeal concluded that the church properties and assets were held on implied trusts and that those trusts may be described as for “the purpose of Anglican ministry”. For that reason, some analysis of the doctrinal matters (including with respect to how religious doctrines can and have changed over time) was necessary. While addressing the appellant’s arguments as “commendably creative”, the Court held that there is little authority to support the notion that internal disagreement on a doctrinal issue can support a cy-près claim (allowing the court to potentially vary the terms of the trust to permit the dissident parishes to hold and control the parish properties as against the claims of the Bishop and his supporters). The Court was also clearly uncomfortable with the potential difficulties that could arise were it to get involved on a cy-près basis.
In its concluding words, the Court of Appeal held that it is antithetical to the nature of Anglicanism to contemplate “Anglican ministry” in a parish that has withdrawn from the authority of its diocese and bishop.” It stated that the parishes could not remove themselves from their bishop’s oversight and the diocesan structure while still retaining the right to use properties that are held for purposes of Anglican ministry in Canada.
The Court also noted that it would not likely grant a remedy that imports more uncertainty, may cause more turmoil and conflict than already exists and that might involve the Court too far inside the religious beliefs of religious believers and their communities. The Court stated:
In this instance, it is almost impossible to anticipate all the consequences that would be set into motion on an institutional level by a cy-près order. The concept of having four parishes located within the Diocese (which is a geographical unit) but not belonging to the Diocese, and receiving episcopal oversight from a bishop in South America, would insert the Court into the internal affairs of the ACC in a manner that has no precedent. Even an order restricted to the more mundane aspects of how the properties of the four parishes may be used would trench onto the practical operation of the Diocese and parish corporations in a way that cannot be entirely foreseen. Many questions would arise that would likely necessitate further litigation and judicial involvement.
This decision is noteworthy in part for its comments about the proper role of the courts in deciding matters of religious doctrine, and for the Court’s apparent support for the proposition that courts may have no choice but to address matters of church doctrine when deciding property disputes between religious organizations. It should be noted, however, that the passage quoted by the Court in support of this proposition pre-dates later comments by the Supreme Court of Canada (notably in 2004 in Syndicat Northcrest v. Anselem) which have cautioned against “judicial determinations of theological or religious disputes, or of contentious matters or religious doctrine, which may unjustifiably entangle the court in the affairs of religion.” There thus exists a tension with respect to the role of the courts in religious disputes which may require resolution in future cases.
We understand that no decision has been made yet whether the appellants in Bentley will seek leave to appeal to the Supreme Court of Canada.