Anglican Network in Canada NEWS RELEASE
BC Supreme Court issues mixed decision in church property dispute
FOR IMMEDIATE RELEASE: 25 November 2009, 4:30pm PST
Vancouver, BC – Mr Justice Stephen Kelleher of the British Columbia Supreme Court issued a mixed decision today in the case involving the Anglican Church of Canada (ACoC) Diocese of New Westminster and four Greater Vancouver parishes in the Anglican Network in Canada.
The four parishes – St Matthew’s (Abbotsford), St Matthias & St Luke’s (Vancouver), St John’s Shaughnessy (Vancouver) and Church of the Good Shepherd (Vancouver) – had asked the courts in early September 2008 to clarify their Trustees’ responsibilities in light of hostile action taken by the Diocese of New Westminster. After all four parishes voted overwhelmingly in February 2008 to disaffiliate with the ACoC and realign with the Anglican Network in Canada (ANiC), the bishop purported to terminate and replace the Trustees and take control of two of the churches’ properties and their bank accounts. ANiC is now part of the Anglican Church in North America (ACNA), a new Anglican province formed as a result of the worldwide split in the Anglican Church over profound disagreement on issues of doctrine.
Mr. Justice Kelleher found that the Bishop of New Westminster did not have legal or canonical authority for his purported termination and replacement of the Trustees, who were validly elected by the congregations and who control the use of the properties. However, he said the Trustees were required to exercise their authority “in relation to the parish properties in accordance with the Act, as well as the Constitution, Canons, Rules and Regulations of the Diocese.” He then said he would “leave it to the parties to arrive at a workable solution”. This clearly leaves the parties in a difficult position as they dispute the interpretation of those documents, particularly the Constitution.
Mr Justice Kelleher preferred to follow American legal principles rather than apply British and Canadian cases which have held that “As a rule, where a church organization is formed for the purpose of promoting certain defined doctrines of religion, the church property which it acquires is impressed with a trust to carry out that purpose, and a majority cannot divert the property to inconsistent uses against the protest of a minority however small.” (See Anderson v. Gislason 1920 Man. CA) He also chose not to apply established British and Canadian “cy pres” trust principles in dealing with the church properties.
However, he did apply trust principles in finding that the $2.2 million bequest of Dr. Daphne Chun to “the building fund of the Church of Good Shepherd” should be held on trust for the building needs of the ANiC congregation.
“We are very grateful that Mr. Justice Kelleher understood and respected Dr. Chun’s intention when she left her bequest to our building fund” said Eric Law, a Trustee of the congregation of Good Shepherd. “We look forward to using those funds toward the building we currently worship in.”
Without deciding the issue, Mr. Justice Kelleher also expressed his opinion that “the parish properties are held on trust for Anglican ministry as defined by the [Anglican Church of Canada].” In recent years, the ACoC’s governing body has changed church doctrine to the dismay of the global Anglican Communion.
“The 98 page decision is very complex and our lawyers will need some time to review it before we make any decisions about whether to appeal” said Cheryl Chang, Chancellor (in-house legal advisor) to the ANiC. “It is a great concern to hear that a majority can redefine and change the doctrine of the church and that those who wish to remain faithful to the church’s teaching must change their beliefs or sacrifice their buildings. At the end of the day, if forced to choose, we will have to choose our faith over our buildings.”
“People will turn to what is true,” said Bishop Donald Harvey. “So, as Archbishop Bob Duncan, our ACNA Primate said last week, even if we have to leave our properties, “We’ll have the souls and they’ll get the stuff. We’ll get the future, they’ll get the past. I’d rather have the souls and the future”. Our greatest concern is for the congregations and the ministries. We will continue to preach the unchanging gospel of Jesus Christ, even if called to sacrifice buildings and money in the process.”
ANiC now numbers 33 parishes and eight forming congregations in North America with more than 3500 in church on an average Sunday. Members of the Anglican Network in Canada are committed to remaining faithful to Holy Scripture and established Anglican doctrine and to ensuring that orthodox Anglicans are able to remain in full communion with their Anglican brothers and sisters outside North America.
ANiC is under the Episcopal authority of Bishop Harvey and is a diocese in the Anglican Church in North America which unites over 100,000 faithful Anglicans from across this continent. ANiC is also affiliated with the Anglican Province of the Southern Cone (in South America) under Primate Gregory Venables.
For more information see the ANiC website.
Update: the judgement is here and the Diocese of New Westminster has its news release here.
First reaction: ?
Isn’t the judge supposed to decide the issues? It’s for the bloggers to express opinions and we have that ground well covered without judges invading our turf.
That was my reaction, too. It was a 98 page decision, I’ll bet Cheryl will be busy over the next few days…
For Kate #2
I believe Cheryl Chang will be busy for several weeks in reviewing this decision. The tragedy is the fact that this entire case was precipitated by the Diocese of New Westminster and its apostate so-called bishop. He has proven to be nothing less than a “wolf in sheep’s clothing” and I continue to be astounded by the lack of any action by the Primate to deal with apostasy that clearly reigns within the House of Bishops.
He then said he would “leave it to the parties to arrive at a workable solution”
Without deciding the issue
expressed his opinion
I am reminded of Deep Thought’s Answer – after pondering 7.5 million years – to the Ultimate Question of Life, the Universe, and Everything:
42.
The actual judgement is here
And the Diocese of New West has their interpretation here
This looks as if the judge has decided that the properties stay with the ACoC:
The sense I have had for a while is that the ACoC and TEC will get precisely what they want – the property and the bank accounts. Or, in other words, they will inherit the kingdom of rust and moths.
The loss is not unexpected.
Justice Kelleher’s reasons are of a nature that I most feared: we lose, but there are errors in the judge’s reasoning that make it tempting to appeal. He had no authority to reject the centuries old case law regarding the holding of church property on trust and adopt the American “neutral principles of law” approach. However even if we were to appeal and win on that point, we will lose anyway, for reasons set out in the judge’s reasoning on the trust argument.
The overreliance on the Solumn Declaration of 1893 was a huge mistake, because we cannot prove that the ACoC has abandoned it, as would be required to win the case. Justice Kelleher has set out some of the reasons. It is merely a resolution of General Synod, which GS can amend or change at any time. The ACoC has done nothing formally in derogation of it. We cannot prove that it has renounced its fundamental doctrines.
I have not discussed this before publicly lest it come to the attention of the other side, but the fundamental-principles doctrine we have been arguing has never, in the entire history of the Canada and the United Kingdom, been successfully argued except in case of a change of denomination. That is the kind of abandonment of fundamental principles required in order to win a case such as this.
So although the judge’s conclusion that under a trust argument the ACoC may change its doctrine in any way it chooses is wrong, even if the appeal court rejects it, we lose the case anyway.
It is not in our interest to appeal the decision; the risk is too great that the court will overturn the building-fund decision and the illegal-firing-of-trustees decision. I suppose the best we can do in NW is try to get a small sum of money on respect of the illegal trustee replacement and an agreement that neither side will appeal.
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I have been saying all along that we never had more than a 2% chance to win this case (upped to 5% with the addition of the cy pres argument.) For some reason God has allowed our leaders to be deluded regarding both the facts and law of this case. To date little damage has been done; the building fund part of the case was worthy of litigation anyway, and as long as we were in court the whole thing might as well be litigated. But the time for self-deception and disingenuous spin of the kind in this press release is over.
In Ontario there was not the realism to make a serious settlement offer to the diocese (a realistic offer would have had them keep the buildings and pay us around 25% of their net worth). It has been stated that the congregations stated that they wanted to keep their buildings and didn’t want to pay money to the diocese for buildings they had already paid for. They didn’t seem to realize, and apparently our internal structure created no way to inform them, that they weren’t going to have any choice in the matter. A negotiated settlement is now worth nothing to the diocese. Let us pray that our leaders have the strength and prudence to negotiate/arrange the best means of putting this all behind is and prepare for a new start.
Toral,
I don’t think our chances of winning were ever misrepresented – I am speaking from what I know at our end of the country: we always knew we could lose (I know we haven’t been to court over the building ownership in Niagara yet, but New West has presumably set the precedent).
I’m not sure how you can come up with as definitive a number as a 5% chance of winning; that seems highly implausible to me. Nevertheless, for my part, even if we had known our chances of success were very small, I would still have wanted to fight the court case; the only alternative would have been to roll over, play dead and be bludgeoned by a bullying heretical diocese. We may not have won, but I think we have fought the good fight.
One thing I am inclined to agree with you about is that the ruling is not as ambiguous as I first thought when I read the ANiC news release. I am not a lawyer, but the meaning of [295] seems clear enough to me: the trustees are still in place and have to either come under Ingham’s authority or quit. Also the lack of necessity to decide mentioned in [273] seems irrelevant since it is clear Kelleher has decided who owns the properties.
Although lawyers are usually reluctant to give their clients a numerical percentage chance of success, the fact is that the first requirement of a settlement offer, or a decision whether to accept one, is to multiply the likelihood of success by the amount at stake. So he must always have an amount in mind.
I disagree with your position regarding fighting the good fight, but I respect it (just as I respect the position that we ought just to have walked away from the property.) I think that your position, to use a secular phrase, is like letting the ACoC have free rent for a space in your head. Better to let the dead bury their own dead.
Judge Kellher may well have decided on the legal issues involved in this case but this is a clear example of judgements that may well be legally correct but definitely not morally correct. Being a civil court it has no interest in theological issues. The decision shows the failure of the ACoC to have effective procedures in effect to discipline apostate bishops. Once a clergy person becomes a bishop he/she seem to have absolute power and when you have a primate and other members of the House of Bishops who are content to simply sit back and allow apostasy to reign that absolute power is sealed – sealed on this side of the grave but definitely not on the other side.
I am totally confident in the abilities of our legal team and we need to pray for our clergy and congregations as they try to get past this tragic decision. There is no question that Michael Ingham will push this for all it is worth as he clearly demonstrates his loyalty and that is definitely NOT our Lord and Saviour.
You know I have been reading both sides of this situation and it is really very sad isn’t it. On one hand we have a Bishop saying ALL are welcome in the Anglican Church. On the other side – a break away group wanting to exclude certain people. This group seems increasingly embittered after being told by the courts they can not keep church property that is not theirs. Hatred sews it’s own rewards. I also believe if the break-away group’s position was correct and truly supported by God, they would have triumphed over a Bishop they call apostate!
They did not triumph. The Diocese of New Westminster seems to be reaching out to these people much like the loving father who welcomed his prodigal son back into the fold. The break away group’s reaction released in a brief statement suggests it will study the court decision while individual members rush to the internet to heap derision upon the Bishop and the Diocese. I think Jesus Christ was very clear when he talked about Christian actions and Christian values. So far what I am seeing here is a break away group behaving in direct contrast to basic Christian belief yet claiming to be righteous.
There’s where you are wrong. It is not a matter of inclusion – all are truly welcome in ANiC churches. It is a matter of doctrine, and the authority of the bible.
It also depends upon how you define triumph. By worldly definitions, yes, it looks like Ingham won. However, as our archbishop said, “They get the stuff, we get the souls”. That seems more in tune with a biblical definition of triumph to me.
Bill [#12],
Bp. Ingham did not say all are welcome in the ACoC: the invitation for parishioners to stay with the diocese was not extended to the parish’s clergy, including J. I. Packer.
The ANiC parishes trust God and his provision. The fact that they were not successful in the lawsuit does not lessen that trust; if following God’s leading always meant earthly success, Jesus would not have died on the cross, early Christians would not have been eaten by lions and ANiC would have won the court case. As I suspect you know – it doesn’t work that way.
Bp. Ingham’s invitation has less of the loving father about it and more of the invitation of the spider to the fly.
ANiC does not claim to be “righteous”; it is because we are not righteous that we need the salvation that only Christ offers – the uniqueness of which Michael Ingham has denied.
Bill (#12), in a comment on another thread, I recently claimed that “my ultimate allegiance is to God’s Word.” Therefore, if you can show from God’s Word where the “break away group” is “behaving in direct contrast to basic Christian belief”, I need to pay attention. Please note, however, that I’m not interested in one or two verses rippped out of their immediate context, or out of the context of the entirety of Scripture (such verses are inevitably easily countered by other verses also ripped out of their context). I’m interested in a more doctrinal view. I would also like to know your stance concerning the infallibility and inerrancy of Scripture. I hold to both.
I’m also interested in your Scriptural basis for the following comment:
Extending your logic, it would seem that you don’t believe the Apostles held a correct positon on much of anything or were supported by God. But maybe I misunderstand?
Warren, you stole my thought exactly! So many faithful witnesses through the ages hardly ‘triumphant’ in this sense, yet they received (will receive?) a crown of glory!
Brian
Comment deleted by admin
It looks like sinner is working overtime to live up to his name. Hopefully he’ll get to the part about repentance in the Bible sometime soon.
“Sinner” won’t be making any more comments.
Bill #12 –
You say you have been reading both sides of this situation Bill…. Are your eyes open?
IF, and I emphasize the word IF, you are truly aware of this whole situation and IF you believe in the Written Word Of God (The Holy Bible) and IF you believe in Truth and IF you really understand ~ then, Bill, you would not possibly be able to take the stand you have taken.
Wolves in Sheep’s clothing come in two types……
Those who take action and then those who sit on the sideline and support the wolves….. You must be a sideline sitter and supporter, Huh?
For Bill #12
I have only two questions for you.
1. Just who does Michael Ingham invite back. It definitely is not those who accept both the authority of Scripture and the uniqueness of Jesus Christ. By his words and actions he clearly denies both and, as such, cannot really officiate at the Lord’s Supper. How could that be possible when he believes all religions lead to the same place? If that were true what would be the purpose of Christ’s suffering and death, and more importantly, what would that say about the justice of God in putting his Son through that suffering and death?
Michael Ingham’s invitation is solely to those who willingly accept his apostasy or worse still those who are taken in by his deceptive ways. If he were truly interested in the Gospel – something that is impossible considering his current beliefs – he would gladly allow the clergy and congregations to continue in their ministries. You must remember God’s word is NOT subject to the approval of bishops and definitely not subject to any majority vote at any synod.
2. Do you really believe Michael Ingham is reaching out “like a loving father”?? Consider all the facts, his invitation is more like that by a spider to a fly. I pray that all true believers will not be taken in by this slick invitation.
We are not the “break away group” as you state but rather at the orthodox believers who accept both the authority of Scripture and the uniqueness of Jesus Christ. A Christian must accept both unconditionally. We were never promises an easy time. The truth of Scripture is not determined by social acceptance or attitudes.
As to your claim that we would have triumphed you are forgetting the court is a civil court and, as such, is not concerned with theological issues. That is one of the main reasons the Diocese steered matters in that direction.
It is time for us to consider the words of hymn number 121 in the blue Book of Common Praise:-
“Christian doest thou see them on the holy ground, how the hosts of darkness compass thee around?
Christian, up and smite them, counting gain but loss; smite them by the merit of the holy Cross.” You will undoubtedly want to check the remainder of this much needed words at this time. It is definitely applicable to this situation.