Commercial Litigation and Dispute Resolution Blog

On December 12, 2010, the trustees of four dissident parishes within the Anglican Church of Canada (the “ACC”) announced that they will ask the Supreme Court of Canada to hear their appeal from the decision that the lands and buildings used by those parishes are held in trust for the ACC.  Effectively, this decision means that those congregations must vacant their lands and buildings if they continue to worship under the auspices of he Anglican Church in Canada or the “ANiC” (a parallel structure set up by conservative parishes in Canada governed by the Bishop of the Southern Cone).

This schism is rooted in the 1998 decision of Diocesan Synod (effectively the local representative governing body), which was put into effect by the Bishop of the Diocese of New Westminster in 2002, to authorize, but not require, the blessing of same-sex unions by clergy of this Diocese.  The blessing is distinct from the sacrament of marriage which is not performed for same-sex couples anywhere in the Anglican Church, outside of the State of Massachusetts.  This decision was heavily debated in the Anglican world and has been criticized by conservative as being doctrinally inconsistent with the main tenants of the Anglican Church Communion (the world-wide Anglican organization).

In response to the Bishop’s assent to the blessing of same-sex marriages, the Parishes of St. John’s (Shaughnessy), The Good Sheppard, St. Matthias and St. Luke, and St. Mathews (Abbotsford) overwhelmingly passed resolutions that, to remain in full “communion” with the Anglican Church Communion, the parishes requested oversight of the Bishop of the Southern Cone (which does not allow the blessing of same-sex unions), agreed to affiliate with the ANiC and directed their parish trustees to take all steps necessary to effect these changes.

The ACC is a highly hierarchical organization and grants the Bishop of the Diocese wide ranging powers to govern.  In response to these resolution, the parish priests voluntarily resigned from the Ministry within the Anglican Church of Canada but did not remove themselves from the parish properties and buildings. This decision led to the four parishes bringing legal action against the Diocese of New Westminster and the Bishop.

The trial decision was released on November 25, 2009.  At trial, the Parishes argued that the properties and buildings were held in trust for “Anglican ministry” which meant traditional and orthodox Anglican doctrine.  By approving same-sex blessings, the Parishes argued that the Diocese of New Westminster had departed from orthodox Anglican doctrine.  As a result, the trust could no longer be performed within the ACC strucure and the court should vary the trust (called a “Cy-pres” remedy) to allow for the continued use by the existing congregations under the auspices of the ANiC.

The trial judge disagreed.  He found that all properties and buildings were subject to the internal organizations of the ACC and that the Court should be “neutral” and not engage in doctrinal issues.  Alternatively, if the properties and buildings were held in trust for the “Anglican ministry”, this meant that they were held in trust subject to the structure of the ACC and the doctrinal changes were properly approved according to that structure. 

The British Columbia Court of Appeal dismissed the parishes' appeal and upheld the trial judge’s decision.  However, they narrowed the legal basis for doing so.  The Court did not agree that the courts should remain “neutral” and rejected that as a legal basis for the decision.  Instead, the Court agreed that parish assets are held in trust and that the trust is for the purpose of “Anglican ministry”.  The Court concluded “after much anxious reflection” that it was antithetical to the nature of Anglicanism to contemplate an “Anglican ministry” in a parish that had withdrawn from its diocese and bishop.  Accordingly, the purpose of the trust on which the parish corporations hold the church buildings and other assets is to further Anglican ministry in accordance with Anglican doctrine within the ACC. In Canada, the General Synod has the final word on doctrinal matters so Anglican doctrine now included the ability to bless same-sex unions.

This schism now moves to its final legal stage – the Supreme Court of Canada.  A decision of whether the Supreme Court of Canada will agree to hear the case is expected within four to six months.