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Theological Digest & Outlook Selections from the August 2000 issue (Vol. XV, No. 2) NOTE: THE OPINIONS EXPRESSED IN THE SIGNED ARTICLES ARE THOSE OF THE AUTHORS AND DO NOT NECESSARILY REFLECT ENDORSEMENT BY CHURCH ALIVE.
"The man who acts for himself has a fool for a client" and the Church that cried "Wolf" It was a plan for the time, the time of "Pomp and Circumstance". In a "Land of hope and glory…" It was by all accounts a very simple and straightforward plan. The plan was to teach Aboriginal children English and educate them in traditional Christian values in a residential school setting away from their family and tribal influences. The Aboriginals today refer to it as Cultural Genocide and claim compensation for the loss of their language and culture. To the Church it is called the "Residential School Problem" and it stems from what is now conceded to have been a misconceived policy by the Fathers of Confederation and John A. McDonald. It was a deliberate government policy to assimilate the Aboriginal population into the general population of Canada. For most it has been a confusing mish mash of guilt and accusation accompanied by intimidating and scandalous demands for damages. The ordinary person lacks sufficient context to understand the basis of complaint, the involvement of the churches and the raging debate over liability and ethical responsibility and why an aggressive defence strategy has not been adopted so far. It smells of cover up, but what is being covered up and why? There are very real and difficult legal problems. The fact is that many of these are of the Church’s own making and of a kind and quality that the leadership of the United Church of Canada must face into them and personally accept full responsibility for their existence and resolution. The absence of information leads inexorably to exaggeration and a resulting failure by the members to truly comprehend the problem. An analytic dissection of the problem and a realistic assessment of the liability exposure is required together with an understanding of the difficulties of damage assessment peculiar to these cases. Only then can one formulate an assessment of the probable overall cost to settle these cases and devise a strategy. There exists a paradox in that the leadership of the United Church of Canada is confronted by salvation through the medium of a reality they refuse to acknowledge. They deny that doctrinal changes have been adopted in the last 30 years choosing to ascribe the changes to 20th century research and scholarship. Doctrinal change has been firmly denied. Everyone acknowledges that there has been no formal attempt to effect doctrinal change but there are now forces in play that demonstrate equally clearly that changes in doctrine have in fact occurred. The ultimate irony is that the fact of these changes and the illegality of the changes is the factor that perhaps more than any other provides the key to the protection of the church’s property from seizure. These doctrinal changes are in all other respects unrelated to the Residential School Problem. Meanwhile, the 19th Century Residential School policy was directed toward the Aboriginal children and required they be removed from their families and removed from the hunting and gathering way of life of their ancestors and collected in Residential Schools where they could be "educated". In the result they were neither adequately educated in our culture nor did they learn the skills required to be hunters and gatherers. They were possessed of none of the skills required to live in a contemporary North American society nor those required to survive in the wild. They became sociological misfits. It is alleged that this contributed in large part to the destruction of the Aboriginal culture and the many social problems of Aboriginal society. The churches of many denominations functioned essentially as subcontractors being funded by the Federal Government. They were independent in terms of the theology they taught, their methods of teaching, their supervision, etc. Only the overall assimilation policy was a constant. The churches saw this as a home missions subsidy. All of this educational activity was arguably done over a period of 150 years in good faith, without negligence and in accordance with the prevailing opinions of that time. Of course this isn’t the only context, there is another more sinister aspect that perhaps explains in part the intensity of the self flagellation. To be wrong is not sinful it is only to be human unless one is knowingly wrong. Accordingly, the cultural genocide issue is legally very problematic, particularly the liability of the Churches. In any event, the Federal Government would have the primary liability exposure for devising and espousing the destruction of the Aboriginal culture and irretrievably altering it is alleged the lives of those exposed to the Residential School system. The contractors or churches would ordinarily have available as a primary defence the fact they were merely implementing a policy determined and contracted for by the Federal Government. Any liability on the part of the Churches would be a joint liability. The significance of that is that each joint wrongdoer is responsible for the whole of the damage. As a tactical issue, one would expect the plaintiffs, if successful, to seek full recovery as a matter of pure convenience from the purse of the Federal Government and leave the government with their rights of contribution over against the various churches or contractors. However, as indicated, this is not the only context. There is a second aspect of much more formidable concern to the churches and that is that the administration of these residential schools was so badly supervised that in many instances sexual abuse of the students attending the schools not only occurred but was tolerated by the Churches that ran the schools. This is a very embarrassing tom tom for the Aboriginals to pound and reeks of hypocrisy and cover up. The sexual abuse of itself gives rise to an altogether separate and distinct claim for damages, a claim for which there certainly is liability. Both the institution and the perpetrator would have a responsibility. The BC experience appears to have extended this principle of vicarious responsibility to the Federal Government. It is probable that the duty owed by the Federal Government to the children involved is one that is so very high as to be incapable of delegation to anyone even to a contractor church. It is difficult to conceive of anyone who would seriously argue that a Church did not also have a liability in such circumstances, both morally and legally. Why is there a liability defence being offered at all? The tactical reality is that the actual sex offender is unlikely to have any money and in many instances is deceased. He or she would very likely not defend. The defense of these cases by the institutional defendant is almost impossible and the institutional defendant would be exposed 100% for the damages. Recovery from the government in the first instance would again be the most strategic choice for the plaintiffs and their lawyers. That is of material tactical advantage to the churches involved and should be exploited. When it comes to assessing the damages, the combination of the allegations of cultural genocide and sexual abuse in the same action gives rise to some very interesting and difficult problems. The first problem is that most of the sexual abuse cases will attract a punitive damage or aggravated damage component because of the gravity of the offence or circumstances of cover-up. Secondly, the damages flowing from the original erroneous premise of assimilation (that is the foundation of the residential school problem) will be extremely difficult to separate from those damages flowing from the sexual abuse. Psychologically the types of damage to the person are of similar character and quality and may be indistinguishable. Some damages will be capable of separation, but a lot of them will be merged and impossible to sort out. Because it is unlikely that the treatment of these individuals can be separated and because it is similarly unlikely that the damages can be segregated adequately into constituent parts, it will very likely be necessary to resort to a theory of general damages based on principles of loss of amenities and the loss of enjoyment of life. Arguably this is a damage aspect that has been capped by the Supreme Court of Canada. That cap has historically only been applied to cases involving complete destruction of the person short of death. The damage in these cases is simply not comparable. The assessment of damages will vary from individual to individual depending on the extent to which the problems are found to have to have been contributed to by one or other cause and depending on the seriousness of the problems encountered. Unless there is something quite unusual about a particular case we would think it unlikely for an assessment in any one case to exceed $150,000. Furthermore, unless it can be shown that some action on the part of the institution was of itself deserving of special punishment it is unlikely that there would be a vicarious liability for the punitive damages. The punitive awards would go against the individual perpetrators only, leaving that amount of award essentially uncollectable. An assessment of damages in a case such as this might be calculated $75,000 for the injury caused by the residential school system, $75,000 for the sexual assault and $50,000 punitive damage. The church’s exposure however would be only with respect to the middle assessment of $75,000 and it could quite genuinely look at capping its liability exposure realistically at somewhere around $100,000 per case of sexual abuse, inclusive of interest and costs for settlement purposes. The biggest problem will be the matter of costs because each of these cases will have to be tried separately and will take many weeks to try. The costs of defense alone will be substantial and will exceed the $75,000 damage exposure. Although with the economies of volume and the repetition of many of the issues these could be assessed realistically as a bloc in the vicinity of $50,000 per case. Up until now a casual media observer might view the Institutional United Church as being bent on self destruction and self flagellation. It is so busy saying it is sorry and reconciling affairs and asking the members of the church to "participate in this journey of healing and reconciliation" that it seems to overlook the fact that it is in a lawsuit. Everyone else at the party wants the head of The United Church on a pike and its hide nailed to the wall. Statements like "there are moral and historical questions here that go to the nerve of the church and its value system" only serve to widen the responsibility of the United Church in a situation where it is highly unlikely it has any liability at all. We are not only falling on our swords, we are manufacturing the sword to fall on. Asking the congregations to open up their pockets and help the national body of the church to survive the massive legal claims against it is tantamount to putting up a flag that tells the Federal Government that we are prepared to accept and fund a measure of responsibility for the erroneous assimilation policy not of our making. All of this may seem very cold and apparently detached. Because dollars are involved the analysis is seemingly lacking in compassion. This is an intangible problem where one is dealing with a church and one that is very difficult conceptually. The difficulty is that the principles of litigation appear to run contra to the Christian dictum to love one’s enemy and to travel the extra mile. There is a sense that there is something dirty or evil about the process of litigation. Forgiveness involves notions of acknowledgement of guilt and restoring the other person. How else can one account for these words: "When the church is called to account for its past involvement in residential schools by First Nations people both within and outside the church, the responsibility borne by some cannot be kept at a distance. The call to support and to participate in healing and reconciliation initiatives must be an invitation which is open to all the members of the body. When the church is called by the courts of our land to compensate victims of abuse in schools which bore our name, the burden of response is not laid upon one part of the body alone. Rather the whole body is given the opportunity to share both the burden itself and the decisions about how the burden is to be borne by the body. It is important to remember that when Paul talks about shared experience in the body he does not dwell only in the realm of suffering. He also speaks of sharing honour. In the coming months and years The United Church of Canada is being given a unique opportunity to work together to respond to one of the most painful chapters in our history. If we make this response with integrity, if our response is based upon our ability to listen to the testimony of survivors of the residential school system, if our response is based upon our common mission found in the gospel of Jesus Christ, then we will have brought honour to the church of Christ manifest in The United Church of Canada. As we share in the stories of pain, so also will we share in the honour that comes when the body confesses its past, makes reparations for that past and walks the road of repentance which leads to new life and new relationships." What is overlooked by those who would express such concerns is that the legal process is an unequivocally adversarial process. There are many ways of resolving disputes, but human beings being as human beings are, the last resort is a resort to violence and force. The lawsuit is just short of that. It is a war of words conducted pursuant to some basic fundamental rules. It is a last resort process. It is resorted to after candour, honesty and negotiation and even mediation have been exhausted. It is not a process of reconciliation. It is a no holds barred process that is hostile to notions of sharing and cooperation. It is plain and simply a dog fight in which self interest and self defense are the sole motivating force. "A lawsuit is not a tea party." Nor can one make a procedural silk purse from a sow’s ear. Once resorted to by one party there is no turning back. There exists no optional course. Alternate Dispute Resolution is not a different process, it is merely descriptive of a number of alternate methods of resolving the differences. King Solomon in his famous arbitration never intended the mother to end up with only half a baby. There is certainly no place for misplaced notions of innocence and naiveté. Nor is there a requirement to lie or cheat or to act in any way unethically. There is an obligation to defend, in whatever method is adopted, to keep your cards to yourself and to play those cards with a skill that takes into account the timing of events and the strengths and weakness of yourself and your opponents. Remember the intent of ADR is not to administer less perfect justice or justice without lawyers. The intent is to deliver justice efficiently and quickly. The Institutional Church in determining a defence strategy must ultimately recognize that the Federal Government is not its friend. If the Federal Government can shift the burden of paying only a portion of the ultimate loss to the members of the United Church of Canada, they most certainly will. At the same time, if the United Church of Canada can convince the Federal Government that:
The Government of Canada must recognize that the pragmatic people of Canada will recognize the utility of the Institutional Churchs at election time and will not permit these churches to be destroyed. In short, the Federal Government will be found to be bluffing. They will back down, but only if someone calls their bluff. Of course there must exist a strategy of loss control that would be acceptable to a Christian church. Ethical business methods however are good business methods and anyone who believes the contrary is not a businessman. But ethical doesn’t require the farm to be given away as atonement for sins that were never committed. The time has come to play hard ball. Hard ball with the plaintiffs and hard ball with the Federal Government. Hard ball is not unethical, it merely requires one to stand firm and stand for something. That the Institutional Church is no stranger to sexual abuse and has a policy to deal with same. Precisely why it is so protective of the Residential Schools and preferential to its occurrence in the local parish is not at all clear. The time has certainly arrived to pay the Piper, but most of the tunes in this case are those called for by another other than ourselves and the person who called the tune should be the first called upon to pay. We must separate the sexual abuse from the genocide. The announced 7,000 cases involving Residential Schools complaints present a staggering legal challenge, but these exist against all of the denominations and the Federal Government. Only 350 of these cases are against the United Church of Canada. 6,650 cases are against someone else. Three hundred and fifty injury claims arising from a single disaster or incident such as an explosion or flood is really not unusual. The is simply not a big deal for an insurer of any consequence or a major target defendant. More important, the majority of these claims are not for sexual abuse. We do not know how many there are, but we do know that there are fewer than 150. With the liability so obvious and the damages so capable of analysis, the first thing one should do to bring this problem under control is to seek to avoid the costs of litigation. To do this one must first know what your total exposure really is not what it is imagined to be. Ignorance must be stripped away and the hard reality exposed and grasped. One is incapable of reasoning with fog and it is even worse when one is stricken with hysteria and panic. Let us assume that by exercising principles of loss control each of these cases could be settled for $100,000 cash inclusive of interest and costs, the maximum exposure would be $15,000,000 a sum that should be very manageable. Bank financing would be the business-like thing to do and that is what the members of the Institutional Church should expect the institution to do. In addition to any judgment the plaintiff will be entitled to costs and you can expect these to be also in the order of $75,000 although they would be shared 50/50 so that in aggregate you would look at a $100,000 exposure, plus $50,000 in defense costs, plus $37,500 in plaintiff’s legal costs. Were it possible to fund a settlement account in the amount of $15,000,000 the proper strategy here would be to make a settlement offer to each sexual abuse claimant of $100,000 on account of the sexual harassment claims only to include all claims for interest and costs to be paid in cash forthwith to the plaintiffs in exchange for a full release. Such a strategy capitalizes on speed, greed and need generally an unbeatable triumvirate. My guess would be that 50% of all the sex abuse cases would be gone within the year and another 45% within 3 years leaving only 5% to go to the trial process with a maximum of 2.5% ending up in court. This raises the question of contribution from others to fund the account, particularly insurance and what insurance coverage might be available. The settlement need not be delayed however. To determine the insurance issue, one is required to examine each of the insurance policies that were in force during the various periods in question and what coverage was available to the United Church of Canada during each period. This can be a very complex and lengthy job and frequently can take years to resolve. The opportunity to settle and any economies to be effected will have disappeared. Everyone’s investment in the litigation will be so great that settlement will be out of the question. The answer lies in borrowing the money, settling the claims and thereafter negotiating, or if necessary suing the insurers. There will unquestionably be a dispute by the insurer as to coverage under the policy for sexual harassment, but that type of exclusionary concern is a matter of relatively recent history so that there is a good chance there is some coverage under some of those policies, particularly coverage with respect to the costs of defense. A great deal will turn on how the plaintiffs plead their action. If the actions are pleaded in negligence there will be coverage for the defense costs at a minimum. One would believe it possible to negotiate with the insurers to obtain a substantial contribution. A lot would depend on how convinced they are. There exists a question as to whether the conduct of the Institutional Church to date has embarrassed, prejudiced or otherwise compromised that coverage. It could depend very much on whether or not the insurers were a party to the statements that have been made in the media. So far as the plaintiffs are concerned, the money is available immediately rather than five or six years from now and in consequence the offers should be most attractive. Secondly, they leave open the issue of the residential school claims against the Government and indeed provides funding for their pursuit. It also reduces the threat of the capping of the general damages because the one issue of damages has been removed from the court and the court is able to focus only on the question of damages caused by the residential school system itself. A defendant such as the Institutional Church should consider such a compromise because at the moment it is notionally in an indefensible legal position. It is tied as a defendant into a case involving principles of first impression. That is like being on a roller coaster and wanting to get off. The duties of the Federal Government towards the Aboriginal people, the duties of the Department of Indian Affairs and their policy of assimilation, these are issues that will go all the way to the Supreme Court of Canada. The legal costs of participating side by side with the Federal Government in making history will be astronomical and the Institutional Church, if it is silly, will allow itself to be carried along for the ride. The Federal Government’s strategy will be to try to enmesh the Institutional Church as much as possible in these issues. Investment in strategy meetings, brainstorming sessions, settlement conferences, anything at all so long as our staff are investing effort and resources that they will seek to avoid abandoning, so as to extract their maximum contribution finally to any ultimate settlement. The hope is that they will pay just to stop the train. Settling the sexual harassment cases at this time would be preemptively to jump off the train. This would leave the Federal Government very much alone holding the bag. It is in this context that one must re-examine the statements as to the exposure of the church assets to being seized and sold to satisfy the claims being made. In terms of negotiating a settlement with a plaintiff, it is a disastrous strategy to tell the plaintiffs that they may have access to all of the assets of the church to pay their judgment. It just makes them more confident in terms of holding out for the maximum assessment they can get. You have removed from the plaintiff the fear that there may not be enough money around to pay the judgment. Such fear is an extraordinarily powerful device in terms of motivating people to accept a compromise settlement. That card has been played or thrown away and one really questions the wisdom of having done so. In the second place these statements can be construed as having conceded liability by implication. Was the insurer a party to these statements? It is just this type of self-incriminating, apologetic statement that is feared by any insurer and regularly gives rise to denials of coverage under liability policies. Particularly so if the insured has been warned in advance by the insurer not to make those statements that are or are arguably admissions of liability. A well-run business would expect their liability insurers to respond and assume responsibility for the defence of these cases. The United Church carries on and conducts itself in a most curious manner for one with insurance coverage for these claims. The membership are entitled to some pretty frank disclosure. Is there insurance coverage? Has the insurer agreed to defend and if not why not? Finally, it is about time we heard someone admit that there exists another very serious legal problem. The assertion that the assets of the congregations are available to satisfy these judgments is based on legal principles that have been disputed and argued to be questionable and probably wrong. Rectification would require a judicial interpretation that the Institutional Church and General Council in particular have acted unlawfully and have departed theologically and doctrinally from the terms of the Basis of Union. A very bitter pill and one that is almost too hard to swallow for the powers that be. The Institutional Church itself cannot acknowledge this contrary opinion because they themselves are responsible for the bad law coming into existence. It was they who took one of their own congregations to court and it was they who sought and obtained the judgment that the Congregational property was held in trust – beneficially for the Institutional Church. They did this to defeat the claims of the dissident congregation that chose to leave the United Church of Canada over the issue of the ordination of homosexuals in 1988. But before discussing the impossibility of sucking and whistling at the same time, one must understand the argument supporting the view that the assets of the congregation may be available to satisfy these judgments. There are three decided cases relied upon by the United Church of Canada. These are:
- a very controversial decision - a very pedestrian straightforward common sense decision - a unique public policy statement that makes sense These three cases do provide a basis for an argument that the congregational property is subject to seizure to satisfy the debts of The United Church of Canada. However, they are more important for what they do not say than they are for what they do say. The Christian Brothers of Ireland case resulted from the abuse of residents at the Mount Cashel Orphanage in St. John’s, Newfoundland. There were 90 boys who were victims of sexual and emotional abuse at the hands of a few of the Christian Brothers. The Christian Brothers applied for winding up as a corporation. While the assets of the Brotherhood were $4,000,000. The issue in the case was over whether the shares of two educational properties in British Columbia worth approximately $36,000,000 and owned by the Brotherhood were part of the assets of the Brotherhood, or whether they could be said to be in trust and free from seizure by creditors. The shares were "held in trust for the respective purposes of operating" a Catholic private school in Vancouver and a Catholic high school in Burnaby, British Columbia. The holding was that while the assets must be used for the corporation’s charitable purposes, this did not mean that they are to be shielded from responding to legitimate claims. The charitable corporation is liable to compensate those it injures when it goes about its good works in the wrong way. To a large extent it is a public policy question of who should bear the loss, the charitable endeavour or the victim of the abuse. It had long been held that property held in trust is not available to the personal creditors of a trustee because the trustee cannot allow its personal or other affairs to interfere with those of the trust. The holding in this case was to the effect that this principle does not apply when the trust objects are a charitable purpose (as opposed to person beneficiaries) and when the claim is against the trustee not in relation to the trustee’ personal or other affairs, but in relation to the wrongs done in the context of the charitable purpose itself. In those circumstances the trust property should not be exempted from seizure and sale. This case is not authority for the proposition that a trust expressly for the use of people such as a local congregation to construct and build a church for worship purposes in the village of Timbuktu would be capable of seizure and sale to respond to a claim for damages caused at a residential school operated by the home missions of the head office of the Institutional Church. The distinction between a trust for charitable purposes and a trust for the use of particular persons such as a particular congregation simply cannot be overlooked and is the particular focus of the next case. Ferguson v. McLain is a decision of the Supreme Court of Canada very shortly after the union of churches took place specifically interpreting the sections of the incorporating Statutes of the United Church of Canada that pertain to the property of the United Church and the trusts under which that property is held. It is quite clear that the statute intended that "all property real or personal within the Province of Ontario now belonging to or held in trust for or to the use of any congregation in connection or communion with any of the said churches (the United Church) shall henceforth be held, used and administered for the benefit of the same congregation in connection or communion with the united body (the United Church) upon the trusts set out in Schedule "A" (the model trust deed). The Ferguson case does not attempt to give the model trust deed any meaning other than the plain ordinary meaning of the words. The Model Trust Deed enumerates the trusts on which the property is held, the first one being: "1. For the use and benefit of the said church, charge, circuit, preaching station or congregation as the case may be for religious charitable educational congregational or social purposes…as the congregation may direct…as for the support and maintenance of public worship and the propagation of a Christian knowledge according to the doctrine, discipline, by-laws, rules and regulations of the United Church of Canada." Were there any doubt at all as to whether or not the beneficiary of the trust was the congregation, this is resolved by reference to clause 9 of the Model Trust Deed which makes provision for the eventuality that a particular congregation will die out or will no longer have any members. This is a very long paragraph covering almost two pages, but it concludes as follows: "And it is further declared that if at any time there shall cease to be an organized congregation entitled to the use, benefit and enjoyment of the said lands, it shall be lawful at any time or times for the said Presbytery to fill any vacancy in the number of trustees and the said lands shall thenceforth be held subject to such trusts and for such purposes for the benefit of the United Church of Canada as the Conference within the balance of which the said lands are situate may determine…" The reasoning of the Court in the Ferguson case supports the argument that the United Church holds the properties in trust for persons rather than for purposes as had been the case in the Christian Brothers decision. Finally, there is the Anderson or Dover Centre case which clearly supports the view that Section 4 of the United Church of Canada Act creates a trust beneficially in favour of the Institutional United Church of Canada as distinct from a trust in favour of the congregation, or in other words, a trust for purposes as distinct from a trust for persons. The problem, however, is not created so much by the authority of the decision which many believe was wrongly decided, but by the fact that that proposition was asserted by the Institutional United Church of Canada itself. In other words, it went to the Courts and sought a declaration by the Courts that the correct interpretation of the Statute gave the beneficial interest in the property to the United Church of Canada. Before anyone can try to argue the contrary, one must get over the proposition that the United Church of Canada as a party to that litigation is forever prevented from arguing the contrary position. This is known as the law of estoppel on the record. It is only common sense that a person cannot assert one position in one case and assert the contrary proposition in the next case. Not only is it frowned on by the Courts, but ethically it would be almost inconceivable that an institution of morality such as a church would assert the opposite proposition. It was thank goodness merely a decision of a single trial judge in the Ontario Courts. It could be ignored completely by a higher court such as a Court of Appeal and probably even the Provincial Courts of another province. The Dover Center or Anderson decision has been severely criticized and today is unlikely to be followed. It was the subject of a scholarly and extensive criticism published in the University of Toronto Law Journal by Professor Margaret Ogilvie. Church Property Disputes, some organizing principles 1992 42 University of Toronto Law Journal 377. She is regarded by some as the leading academic authority on ecclesiastical law in Canada and teaches at the Carlton University. Simply stated, the judge who decided Anderson did not apply the correct principles of law in that he never directed his mind to the trust arguments. In fairness the circumstances of the particular matter were such that it may be they were never cited to him. There is certainly no mention of Lord Overtoun’s case, the leading authority on the subject. When the same issues arose in Bermuda, the Supreme Court of Bermuda reaffirmed the applicability of that decision of the Privy Council in 1904 which at that time would have been most persuasive on the Canadian Courts. That is the case of the General Assembly of the Free Church of Scotland, v. Overtoun, 1904, Appeal Cases, 515. If Professor Ogilvie and the Courts of Bermuda are correct that Lord Overtoun’s case still governs, there is open to a congregation or to a group of congregations within the United Church of Canada a right to apply to the Courts for a declaration that the Dover Centre case was wrongly decided and that the trusts created by the model trust deed are in fact in favour of the congregations or in favour of persons rather than purposes. That there is underlying the Dover Centre Case the doctrinal problem of the ordination of homosexuals is a matter of serious political concern. The reason this is so is simply that the parishioners in the Dover Centre case were arguing for the right to withdraw from the United Church of Canada with their property because of the doctrinal differences that they had with the Institutional Church. It was to prevent this withdrawal that the United Church of Canada went to court and it was on this issue that the local congregation were defeated by the United Church of Canada as an institution. When the Institutional Church did this they had no idea that they might be legally placing themselves in the same position as the Christian Brothers. If congregations move to set aside the Dover Centre case, they would be adopting the arguments of the plaintiffs in the Bermuda case and the plaintiff in Lord Overtoun’s case. In short the Institutional United Church of Canada may well find that its congregations are liberated from the doctrinal statements of the Institutional Church, and are entitled to the use of their property so long as they practice their faith in accordance with the original Articles of the Statements of Faith in the Basis of Union. In short, those who oppose the ordination of homosexuals may well be empowered with an argument to withdraw from the Institutional Church with their property intact. To all of this the average member must recoil like a boxer who has taken altogether too many blows. Such members want nothing more than to shake their heads to clear them and seek shelter in the neutral corners of their home congregations. What had been their retreat and fortress from cares and worries, a place one could derive inspiration and renewal of the spirit has suddenly become for many a nightmarish and frightening place.
The light at the end of the tunnel is that Scottish case decided almost 100 years ago called the General Assembly of the free Church of Scotland and Lord Overton and others 1904 A.C. 515.
The principle holding is simply that where there is a split in the church or within the congregation. The essential principle is that a trust for a church is to be enforced for the benefit of those adhering to the original principles of that trust, irrespective of their numbers. On doctrinal lines the property is found to be held by the trustees for the benefit of those who subscribed to the original doctrinal position on which the church or congregation was established. In practice, however, the simple fact is that it is not quite that simple. The United Church statutes include a document called the Basis of Union. Essentially this is the contract that the covenanting churches entered into in 1925 when they joined the Union and formed the United Church of Canada. It sets out in meticulous detail the doctrinal position that each of the three churches shared with the other. Professor Ogilvie suggests that in 1925 Lord Overton’s case was very fresh to mind. The Union of the Scottish churches had come to grief because one of them possessed the power to amend or change its doctrine and did so. The other one was not possessed of the power to amend its doctrinal statement and didn’t want to. Their Act of Union contained no conferred power to amend or change the doctrine. The founders of the United Church of Canada to avoid the result in Lord Overton’s case very carefully included in their contract an amending formula so that the new United Church could amend its doctrine. The amending formula thus designed required that the doctrinal change be approved by General Council and then submitted to each of the Presbyteries for ratification by way of "remit" and required the approval of a majority of the pastoral charges before the doctrinal change could be effective. The conservative wing of the church asserts that there have been significant doctrinal changes since 1950 and the liberal left would assert that there have been none. Both agree there have been no doctrinal remits. Each side can summon legions of theologians and the semantical discussions and opinions that follow are about as meaningful as the legendary debates on angels and pinheads. To prove in a courtroom that there has been a change effected to the original doctrine would be difficult, if not impossible. The problem exists as to how to bring effective closure to any argument. Were the matter to have rested with the Dovercentre case (United Church of Canada v. Anderson, 1991, 2 O.R. (3rd) 304. As earlier mentioned, there was a failure in that case to look at the underlying trusts as they existed at the time the trusts were created. In the result it would thereafter be unlikely that the ordinary member would have very much hope. The fight would be lost by default because of the difficulties in factual proof and the enormous financial costs that would be assumed in trying to reverse that decision.
Along comes the decision of the Supreme Court of Bermuda dated the 10th of June 1998. It is the case of the Synod of the Wesleyan Methodist Church of Bermuda v. Lightbourne. The real significance is most profound and very subtle. It exposed the Achilles heel of the United Church of Canada. To be sure it was to adopt Lord Overton’s case and the argument of Professor Ogilvie and thus is authority for the proposition that the law is as therein stated. Its true significance is however much larger than that. In its simplest terms the Synod of the Wesleyan Methodist Church of Bermuda functions as a presbytery of the United Church of Canada and a part of Maritime Conference. There are certain features of Bermuda law with respect to property ownership that prevent union between the Synod of the Wesleyan Methodist Church of Bermuda and the United Church of Canada. However in matters of doctrine they follow the doctrinal guidance and direction of the United Church of Canada and subscribe to the doctrinal statements in the Basis of Union. The specific trusts under which the trustees held the property provide the same "to be used for the celebration therein of the worship of Almighty God for the holding of a Sabbath school and for other religious and moral purposes in accordance to the doctrinal rules and usages of the Methodist Church and for no other use, intent or purpose whatsoever". The question then became, what was meant by the words "Methodist Church" as it appeared in the wording of the trust deeds. The holding was that the "doctrine of the Methodist Church are declared to be those contained in the 25 articles of religion and those taught by Reverend John Wesley M.A. in his notes on the new Testament and in the first 52 sermons of the first series of his discourses published during his lifetime". The factual problem in the case was to prove that at the time of union in 1925 the doctrinal statements of the United Church of Canada were in congruence with the doctrinal statements of the Methodist Church of 1925 and those in turn were in congruence with the doctrine and religion as taught by John Wesley and his 25 Articles of Faith. From there it was a very simple task to prove that the present doctrine as exemplified by the United Church of Canada in 1998 constituted a departure from the doctrinal statements of John Wesley and his 25 Articles of Faith. The expert opinion adopted by the court was that of Dr. Victor Shepherd, an acknowledged world expert on the doctrine, theology and faith of John Wesley. That opinion was accepted by the court and was as follows: "It is my opinion that neither in its formal theology nor in its informal theology can the United Church of Canada be said to be congruent with the doctrine of the 25 Articles of the late Reverend Mr. John Wesley. Any one of these documents published by the United Church standing alone is directly contrary to John Wesley’s theology and doctrinal statements as they are reflected in the 25 articles. The documents on sexuality cannot be reconciled and would be rejected outright by Wesley. The new creed and the amendments to the hymn book "Voices United" are non "Methodist". The authority of scripture is totally offensive to Wesley’s 25 Articles and Mending the World violates the principle centrepiece of the Christian Faith and therefore Methodism namely the Uniqueness of Jesus Christ. Finally the whole exchange with the Moderator of the United Church and the Executive of General Council brings into focus the continuing violation of the 25 Articles of faith down to the present day. The United Church in its interpretation of its own doctrinal statements is in conflict with the same 25 Articles". That was the secret. The possibility existed to prove factually by way of expert testimony that the present doctrinal statements of the United Church of Canada didn’t accord with John Wesley and John Wesley did accord with the Basis of Union. The secret then was to take something that could be proven and use it to demonstrate that for which proof was being sought without getting into questions of semantics or interpretation. But that is not all. It just so happens a very similar trust was carried over into Canada. An examination of the documents would suggest very strongly that the United Church of Canada Statutes of 1925 both federally and provincially were the product of Methodist draftsmanship. The new United Church of Canada statutes amended every act that was inconsistent with them so as to make all inconsistencies conform with the new legislation. They also enacted that all properties held in trust at the time of union were to be continued in trust under the same trusts provided they were not inconsistent with the new legislation. The reader will remember the evidence in the Bermuda case to the effect that the United Church of Canada Act, 1925, and in particular the doctrinal statements in the Basis of Union were congruent with the doctrinal statements and faith of the Methodist Church and in particular the 25 Articles of John Wesley. In short they could not be said to be inconsistent. Thus it becomes important to examine the trusts under which the property in the Methodist Church were held at the time of union. To make it easy we will just look at one statute, namely: The Statute of Canada in 1884 which was a statute uniting four Methodist Churches under the name of "the Methodist Church". This is the church which continued down to union in 1925 and joined in forming the United Church of Canada. That Statute in 1884 provided that property: "…shall be held for the use of such congregation or congregations circuit station or mission in connection with the said Methodist Church upon the trusts and subject to the provisions set forth in Schedule "B" of this Act" Then when one refers back to Schedule "B" one discovers this astonishing and interesting trust: "Provided always that no person or persons whomsoever shall at any time hereafter be permitted to preach or expound God’s holy word or to perform any of the usual acts of religious worship upon the said parcel or tract of land inheritance or in the said Church of places of religious worship and premises or any of them or any part or parts thereto or in or upon the appurtenances thereto belonging or any of them or any part or parts thereof who shall maintain promulgate or teach any doctrine or practice contrary to what is contained in certain notes on the New Testament, may be reputed to be the notes of John Wesley and in the first four volumes of sermons, may reputed to be written and published by him. In the result the express trust that existed in Canada with respect to the Methodist Churches existed at the time of union in 1925 and not being inconsistent was carried over into the United Church of Canada and is perhaps a stronger case than the express trust in Bermuda. One can expect an immediate outcry that such an interpretation stifles growth and prevents change. There is an amending formula within the Basis of Union which could have been used to affect the doctrinal changes. It was not used. A deliberate choice was made to try to affect the doctrinal changes without disclosing to the membership that the changes were being made. The disclosure would have had to have been made in the event that the changes had been referred to the Presbyteries for a remit as required. The choice was made to make the changes by semantical distinction and an abundance of smoke and mirrors. One can only speculate as to why. In the result we may have a solution to the property problems but the doctrinal debate is now out in the open. Perhaps that is where it belongs.
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