News Update - November 28

"The Properties Remain with the Diocese"

More than seven years after delegates from eight parishes walked out of diocesan synod and 21 months after the vestry meetings of four of those congregations voted to leave the Anglican Church of Canada (ACC) to join the Anglican Network in Canada (ANiC), a B.C. judge has finally ruled on two of the most significant points of contention between the Diocese of New Westminster and the dissenting churches. In a 98-page judgement issued November 25, 2009, Justice Stephen Kelleher of the B.C. Supreme Court has determined both that "a parish does not have authority to unilaterally leave the Diocese, and it is consequently ultra vires for it to pass a resolution purporting to do so," and that "the properties remain with the Diocese" (¶ 256).

In passing judgement on two cases tried before the court in May and June of 2009, Justice Kelleher's findings were not all favourable to the diocese. While ruling that trustees "do not have authority to use [parish] properties outside of the Diocese," including "for purposes related to ANiC" (¶ 294), he also judged that "Bishop [Michael] Ingham [of New Westminster] did not have authority to terminate the appointment of trustees validly elected by the vestry"(¶ 293). The net effect of this ruling was that "the individuals elected or appointed at the annual vestry meetings of St. Matthias and St. Luke and the Church of the Good Shepherd on February 24, 2008 continue to hold their positions as trustees of their respective parish corporations" (¶ 294), irrespective of their purported dismissal and replacement in August.

As a result, all the existing trustees of the parishes of Church of Good Shepherd, Vancouver, St. John (Shaughnessy), Vancouver, St. Matthias and St. Luke, Vancouver, and St. Matthew, Abbotsford, remain in place. But Justice Kelleher has ruled that they must "exercise their authority in relation to the parish properties in accordance with the [1893] Act [to Incorporate the Anglican Synod of the Diocese of New Westminster], as well as the Constitution, Canons, Rules and Regulations of the Diocese." So they cannot take those properties into ANiC.

In addition to deciding such major issues of parish ownership and leadership, Justice Kelleher gave a specific ruling that funds of some $2.2 million resulting from a 1992 bequest by Dr. Daphne Wai-Chan Chun to Church of Good Shepherd should be "held on trust for the building needs of the ANiC congregation" (¶ 329). His primary rationale, which revolved around complex issues of trust law, was based on his finding that "Dr. Chun intended the proceeds to be applied to the building needs of the parish that served the Chinese community" (¶ 329), together with "the unlikelihood that there will be need for a new building for the Chinese community in the Diocese" (¶ 328).

Initial Reactions

In a Pastoral Letter dated November 29, Bishop Ingham stressed that "the Supreme Court of British Columbia has ruled clearly in favour of the Diocese in the matter of parish property ownership." His prayer was "that we might all put this sad conflict behind us and get on with the mission of Jesus Christ. No good is served by bitterness or triumphalism." Bishop Ingham also invited the congregations affected "to remain in the buildings where they worship and to move forward together with us in the Diocese as one people under God." It was his intention, he said, "to appoint new clergy who will respect and continue the worshipping style of the congregations, who will also work cooperatively with me and the Diocese."

In a statement of November 25, the ANiC described Justice Kelleher's judgement as "a mixed decision," and highlighted his ruling that "the Bishop of New Westminster did not have legal or canonical authority for his purported termination and replacement of [parish] Trustees, who were validly elected by the congregations." The ANiC statement also noted the judge's ruling that trustees were required "to exercise their authority" in accordance with diocesan legal and canonical requirements and conceded that "this clearly leaves the parties in a difficult position."

At press-time, no conclusion had yet been reached by ANiC on whether or not to appeal Justice Kelleher's verdict. "The 98-page decision is very complex," said Chancellor Cheryl Chang, "and our lawyers will need some time to review it."

But the B.C. Supreme Court judgement was already being seen as potentially precedent-setting elsewhere in Canada. In a November 26 release posted on its website, the Diocese of Niagara, which is also engaged in legal battles over church property as a result of ANiC members' departure from the ACC, stated that "we are pleased that the Vancouver judge has recognized the structure of the Anglican Church and most specifically, the Diocese of New Westminster. This decision supports our contention that while individuals are free to leave the Church, the property has always been held in trust by the Diocese. We are now anticipating moving this legal case forward here in Niagara and to have this matter settled so that we may continue in our mission and ministry."

Pending decisions on such matters as an ANiC appeal, significant matters also remained to be resolved in the Diocese of New Westminster. For example, the ANiC congregations continued operations in diocesan buildings "worth more than $20 million," according to Douglas Todd, reporting in the November 26 edition of the "Vancouver Sun" newspaper. In a letter to their members, leaders of St. John (Shaughnessy) stated that "services this Sunday and all St. John's ministries will continue exactly as planned until further notice."

BC Supreme Court Judgement

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