



COURT OF APPEAL FOR ONTARIO

CITATION:
    Delicata v. Incorporated Synod of the Diocese of Huron, 2013 ONCA 540

DATE: 20130904

DOCKET: C54245

Rosenberg, Rouleau and Pepall JJ.A.

BETWEEN

Christine Delicata and Pat Hyttenrauch

Plaintiffs (Appellants)

and

The
    Incorporated Synod of the Diocese of Huron and

Robert
    Bennett in his capacity as the Anglican Bishop of the Diocese of Huron

Defendants (Respondents)

BETWEEN:

The Incorporated Synod of
    the Diocese of Huron

Plaintiff (Respondent)

and

Christine Delicata, Pat Hyttenrauch, Tom Carman, Paul
    Almond,

Harold Dolman, Kathy Knight and David Henderson and St.
    Aidans Bequeathment and Finance Fund

Defendants
    (Appellants)

Peter R. Jervis, for the appellants

Brian T. Daly and Sean Flaherty, for the respondents

Heard:  May 7, 2013

On appeal from the order of Justice T. David Little of
    the Superior Court of Justice, dated August 15, 2011, reported at 2011 ONSC
    4403, and from the costs order of Justice Helen A. Rady of the Superior Court
    of Justice, dated September 26, 2012.

Pepall J.A.:

OVERVIEW

[1]

In September 2008, the membership of St. Aidans Anglican Church in
    Windsor voted to leave the Anglican Diocese of Huron. This decision resulted
    from profound and long-standing theological differences relating to Biblical
    interpretation and the authority for Anglican doctrine found in the Scriptures.
    The catalyst for the vote was the position adopted by the Diocese of Huron and
    the Anglican Church of Canada on blessing same-sex unions, a position which was
    unacceptable to the members of St. Aidans.

[2]

Following the vote, the churchwardens of St. Aidans Anglican Church,
    Christine Delicata and Pat Hyttenrauch, brought an action in Superior Court
    seeking a declaration that the current members of the church are the beneficial
    owners of the church property and of a charitable foundation established and
    maintained by St. Aidans members. Ms. Delicata and Ms. Hyttenrauch were
    subsequently appointed as representatives of all the members of St. Aidans
    Anglican Church who had voted to leave the Diocese of Huron.

[3]

The Diocese of Huron and its bishop, Robert Bennett, disputed this claim
    and counter-sued for declaratory relief relating to the same property against Ms.
    Delicata, Ms. Hyttenrauch and certain other members of St. Aidans congregation.
    For the purposes of this appeal, the plaintiffs in the Delicata/Hyttenrauch
    action and the individual defendants in the Diocese of Huron action are
    referred to collectively as the St. Aidans Group.

[4]

In essence, while the parties disputes originated in theological
    differences, they ultimately devolved into this conflict over property.

[5]

The actions were heard together in the spring of 2011. The outcome of
    the actions turned on the interpretation of Canon 14 which was approved by and
    governs the Diocese of Huron. It provides that the Diocese holds all real
    property in trust for the benefit of the Parish or congregation. At trial,
    the St. Aidans Group submitted that a parish is a fluid concept that describes
    the people who comprise the congregation at any one time. The Diocese submitted
    that a parish is a static concept that continues in perpetuity regardless of
    changes in membership. The trial judge preferred the Dioceses interpretation.

[6]

The St. Aidans Group appeals. The Diocese seeks leave to cross-appeal
    the lower courts order that each party bear its own costs.

[7]

For the reasons that follow, I would dismiss the appeal. I would allow
    the motion for leave to appeal costs and allow the cross-appeal in part.

BACKGROUND

The Structure of the Anglican Church

[8]

The parties positions and the trial judges reasons in this case cannot
    be understood without a basic appreciation of the structure of the Anglican
    Church.

[9]

The Anglican Church is comprised of 38 provinces that span the
    globe. Each province has an archbishop (or primate) at its head. Provinces are
    subdivided into dioceses, each headed by a bishop. The governing body of a
    diocese is called a synod, which is an elected body composed of the bishop,
    clergy and laity.

[10]

The 38 provinces of the Anglican Church are known collectively as
    the Anglican Communion. There are four instruments of unity or instruments
    of communion that link the
Communion together:
    the Archbishop of Canterbury; the Lambeth Conference, a conference of bishops
    that meets every ten years; the Anglican Consultative Council; and the biennial
    meeting of the primates. None of these bodies has legislative authority over
    the provinces.

The Anglican Church of Canada

[11]

The
    Anglican Church of Canada is one of the 38 provinces of the Anglican Church. It
    was founded in 1893 as an amalgam of various dioceses that had previously
    formed part of the Church of England. The basic constitution of the Anglican
    Church of Canada is the Solemn Declaration of 1893, wherein the founding members
    committed themselves to remain in full communion with the Church of England
    throughout the world.

[12]

The
    Anglican Church of Canada has three constitutional levels: the National Church,
    four ecclesiastical provinces, and 30 dioceses.  Each of the dioceses has
    detailed and specific jurisdiction and each is headed by a bishop. Each has a
    synod, or council, that functions as its ecclesiastical legislature.

The Diocese of Huron

[13]

The
    Diocese of Huron was one of the founding members of the Anglican Church of Canada.
    It was incorporated in 1875 by an Act of the Legislative Assembly of the
    Province of Ontario: 38 Vict. Cap LXXIV Ont. Stat (the Act).

[14]

Section
    5 of the Act states that any property held or acquired for any church purpose
    in connection with the Church of England in Canada may be conveyed to the
    Synod, which shall perform the trusts relating thereto. Section 6 states that
    the Synod shall hold all property vested in trust, and may sell and
    absolutely dispose of all or any property and hold the proceeds in trust.

[15]

By
    virtue of s. 8 of the Act, the Synod of the Diocese of Huron was given full
    power and authority to make such canons, rules, regulations and by-laws as the
    Synod considered necessary.

[16]

Pursuant
    to this section, the Diocese of Huron approved both a constitution and a list
    of canons, which are essentially the Dioceses by-laws. They provide, amongst
    other things, that no one may officiate in any congregation of the Diocese
    without the Bishops consent (Canon 7), that the Bishop is the chief pastor in
    each Parish of the Diocese (Canon 9), and that rearrangement of the Parishes in
    the Diocese requires the Bishops approval (Canon 12).

Canon 14

[17]

Canon 14, Title to Real Property and Acquisition, Maintenance and
    Repair of Church Buildings, is central to the disposition of this appeal. It
    states, in part:

1.    Legal title to all real property
    held by any Parish or congregation in the Diocese is registered in the name of
    The Incorporated Synod of the Diocese of Huron, which holds it in trust for the
    benefit of the Parish or congregation.

2.    Before any church is consecrated,
    the legal title thereto shall be registered in the name of The Incorporated
    Synod of the Diocese of Huron, which holds it in trust for the benefit of the
    Parish or congregation.

3.    The sale, leasing, mortgaging or
    other disposition of any church, parish hall, rectory  or other real property
    owned by the Parish or congregation, however the title is registered, shall
    require the prior consent of the Vestry, the Diocesan Council and the Bishop of
    the Diocese.

[18]

In
    other words, Canon 14 confirms that the Synod holds all real property in trust
    for the benefit of the Parish or congregation. It further confirms that the
    disposition of any real property owned by the Parish or congregation requires,
    amongst others, the Bishops consent.

[19]

Although
    the words parish and congregation are not defined in the canons, the canons
    clearly contemplate that two or more congregations may form one Parish. For
    example, Canon 13(6) provides that [i]f there is more than one congregation in
    a Parish, each shall bear its proper share of the expenses of running the
    Parish, including utilities, municipal taxes and insurance. Canon 19(9)
    provides that [i]n the event there are two or more congregations forming one
    Parish, there shall be a separate Parish Council for each congregation.

[20]

The
    issue in this appeal, as in the court below, is the meaning of in trust for
    the benefit of the Parish or congregation.

St. Aidans Parish

[21]

St.
    Aidans Anglican Parish was established in 1922 or 1923 in what was then Ford
    City  now Windsor  Ontario. It became one of what would eventually be 146
    parishes in the Diocese of Huron.

[22]

In
    1952, real property was purchased and a church was constructed for St. Aidans.
    The real property was registered in the name of the Diocese of Huron in trust
    for the benefit of St. Aidans Parish or congregation.

[23]

Although
    the trial judge made no findings about these matters, in an affidavit filed at
    trial, the appellant Ms. Hyttenrauch deposed that the church property has been
    expanded twice. In 1978, the members of St. Aidans purchased a piece of land
    adjacent to the existing property for $18,000. In the late 1990s, they built a
    new fellowship hall attached to the existing building at a cost of $610,000.
    Ms. Hyttenrauch stated that funds for the addition were raised entirely by
    the church members.

[24]

St.
    Aidans Anglican Church is known to be a theologically conservative,
    evangelical congregation. Its troubled relationship with the Diocese of Huron
    is illustrative of the conflict among individual churches, dioceses and the
    wider Anglican Church of Canada that has developed and deepened over the past
    number of years.

The Conflict within the Anglican Church

[25]

At
    its most basic, the conflict reflected in this litigation is between Anglicans
    who maintain traditional, conservative theological interpretations of the
    Scriptures and those who have adopted more liberal interpretations. These
    profound theological differences have come into sharp focus over the blessing
    of same-sex unions.

[26]

The
    movement towards the blessing of same-sex unions started in the 1990s in some
    dioceses, particularly the Diocese of New Westminster in British Columbia. This
    development was controversial, and at the global decennial Lambeth Conference
    in 1998, a majority of bishops passed a resolution rejecting the blessing of
    same-sex unions.

[27]

In
    spite of the Lambeth resolution, in 2002 the Synod of the Diocese of New
    Westminster resolved, and its bishop accepted, that priests should be permitted
    to bless same-sex unions in certain circumstances.

[28]

Believing
    that its own diocese was no longer in communion with the wider Anglican
    Church, four parishes in the Diocese of New Westminster purported to break
    away.  They formed the Anglican Network in Canada (ANiC) under the Episcopal
    oversight of a sympathetic bishop located in southeast Asia. They then sued the
    Diocese of New Westminster for the right to retain the church properties,
    claiming that the properties were held in trust for historical, orthodox,
    Anglican doctrine and practice. I will discuss the outcome of the B.C.
    litigation later in these reasons.

[29]

These
    developments, as well as the election of an openly gay bishop in New Hampshire,
    were regarded as grave challenges for the Anglican Church. In 2003, the
    Archbishop of Canterbury commissioned a report to explore the canonical
    understandings of communion, impaired and broken communion, and the ways in
    which provinces of the Anglican Communion may relate to one another in situations
    where the ecclesiastical authorities of one province feel unable to maintain
    the fullness of communion with another part of the Anglican Communion.

[30]

The
    resulting Windsor Report, released in 2004, observed that the instruments of
    unity and communion have been threatened by the current divisions within the
    Church. It also questioned the theological basis for blessing same-sex unions
    and noted that the clear and repeated statements of the Instruments of Unity
    have advised against the development of such rites. The Windsor Report
    recommended a moratorium on the blessing of same-sex unions.

[31]

In
    2007, the General Synod of the Anglican Church of Canada passed a resolution
    stating that the blessing of same-sex unions is not in conflict with the core
    doctrine (in the sense of being creedal) of the Anglican Church of Canada. In
    other words, the General Synod took the position that the blessing of same-sex
    unions was not a matter of creed, and therefore not an action that would
    imperil communion with the wider Church.

[32]

Not
    surprisingly, this resolution was controversial and served to deepen the
    divisions between the Anglican Church of Canada and detractors in the ANiC, as
    well as with more conservative provinces within the Anglican Communion
    globally.

The Conflict Between St. Aidans and the Diocese of Huron

[33]

Against
    this backdrop, in May 2008 the Synod of the Diocese of Huron voted to request
    that the Bishop grant permission to clergy, whose conscience permits, to bless
    the duly solemnized and registered civil marriages between same-sex couples.
    The Bishop accepted the resolution as valid and said he would seek further
    guidance before making a final decision.

[34]

Although
    a final decision was still pending, many members of St. Aidans nonetheless
    felt that in order to remain a Biblically faithful parish in full communion
    with the global Church of England and in compliance with the Solemn Declaration
    of 1893, they could no longer remain in the Diocese of Huron.

[35]

In
    accordance with the canonical rules on special meetings, on September 28, 2008,
    110 out of 140 members of the St. Aidans vestry (i.e. the members eligible to
    vote on church matters) attended a meeting to discuss the Synods resolution.
    By a vote of 109 to 0, with one abstention, they passed a resolution purporting
    to leave the Diocese and requesting on an emergency and pastoral basis the
    Episcopal oversight of a bishop in the Province of the Southern Cone, in South
    America.

The Litigation

[36]

In
    January 2009, the churchwardens of St. Aidans, the appellants Ms. Delicata and
    Ms. Hyttenrauch, commenced court proceedings against the Incorporated Synod of
    the Diocese of Huron and Robert Bennett in his capacity as Bishop. As I
    explained earlier, the trial judge made an order appointing Ms. Delicata and Ms.
    Hyttenrauch as representative plaintiffs for the people who voted to leave the
    Diocese on September 28, 2008. These more than 100 individuals are identified
    in Schedule A to the judgment under appeal.

[37]

The
    principal claim advanced by Ms. Delicata and Ms. Hyttenrauch in their
    representative capacity was that the Diocese holds the church property in an
    express trust for the purpose of continuing traditional, orthodox Anglican
    worship, ministry and practice considered within the doctrines and practices
    traditionally held and practiced by orthodox Anglicans, and in particular to
    the religious doctrines and practices referred to in the Solemn Declaration of
    1893. Church property was defined to consist of all real estate presently
    held in trust by the Diocese of Huron for St. Aidans Parish or congregation.

[38]

In
    the alternative, they claimed that the Diocese holds the property in a
    charitable purpose trust. They also sought a declaration of beneficial
    ownership of the proceeds of the St. Aidans Bequeathment and Financial Fund
    (the Foundation), which was established in 2000 to preach, promote and
    advance the spiritual teachings of the Parish.

[39]

Ms.
    Delicata and Ms. Hyttenrauch in their representative capacity also sought
    declarations that:

·

The
    Dioceses actions are inconsistent with the trust on which the property of the
    Parish is held;

·

The
    congregations use of the property is consistent with the terms of the trust
    in continuing to uphold traditional, historic and current doctrine and
    practices of the Anglican Communion; and

·

The
    congregations seeking of Episcopal oversight from the Anglican Province of the
    Southern Cone is consistent with the terms of the trust over the property.

[40]

Shortly
    after the representative plaintiffs commenced their action, as mentioned, the
    Diocese launched its own proceedings against Ms. Delicata, Ms. Hyttenrauch and
    others. It sought a declaration of ownership of the church property and related
    injunctive relief. On the eve of trial, the Diocese was granted leave to add the
    Foundation as a party defendant with a view to obtaining an accounting of
    Foundation funds since 2008, an order directing repayment of certain funds to
    the Foundation, and an order directing transfer of the Foundation to the
    Parish.

[41]

Ultimately,
    the two actions were directed to be tried together. The case management judge
    directed that the trial would start after the litigation involving the four
    parishes in New Westminster, British Columbia had concluded. The trial in that
    action took place in the spring of 2009 and the trial judge released his
    reasons dismissing the church members claim in November of that year. The
    British Columbia Court of Appeal dismissed their appeal in November 2010:
Bentley
    v. Anglican Synod of the Diocese of New Westminster
, 2009 BCSC 1608, 52
    E.T.R. (3d) 246, affd, 2010 BCCA 506, 62 E.T.R. (3d) 1, leave to appeal
    refused, [2011] S.C.C.A. No. 26.

[42]

The
    trial in this case commenced in April 2011.

THE DECISION BELOW

[43]

The
    trial judge framed the issues before him as follows:

(1)

What is meant
    by Parish or congregation?

(2)

Who is the
    beneficial owner of St. Aidans church property? and

(3)

Who is the
    beneficial owner of the St. Aidans Bequeathment and Financial Fund?

[44]

The
    trial judge answered all of these questions in favour of the Diocese.

[45]

At
    the outset of his analysis, the trial judge considered the conflicting
    affidavit evidence before him on the interpretation of the word parish, found
    in Canon 14. Reverend Percy ODriscoll, one of the Dioceses witnesses,
    described a parish as an entity whose members may choose to leave, while the
    parish itself continues in perpetuity to be the responsibility of the bishop of
    the diocese in which it is geographically located. By contrast, Prof. John
    Stackhouse, a witness for the St. Aidans Group, stated that the definition of
    parish is flexible and varies with the context. In this case, Prof.
    Stackhouse deposed that parish means the people who at any one time consist
    of, or make up, the congregation.

[46]

The
    trial judge preferred Reverend ODriscolls interpretation. He explained, at
    para. 34: Professor Stackhouses contextual definition is porous. Members of
    the parish are transient. They come and go. Relying upon [his] definition,
    members could acquire an uncrystallized interest in the assets of the parish
    during their tenure, which interest could be crystallized at any time.

[47]

The
    trial judge determined that while members in a Parish can come and go at any
    time, the Parish itself remains, irrespective of the limited number of
    individual members left behind following the September 2008 vote. The Parish
    could not sever itself from the Diocese.

[48]

The
    trial judge determined that there was an express trust that provided for three
    certainties: the trustee was the Diocese of Huron; the trust property was the
    church property; and the beneficiary was the Parish or congregation. Since the
    Parish could consist of more than one congregation but did not in this case,
    the object or beneficiary of the express trust was St. Aidans Parish of the
    Diocese of Huron.

[49]

In
    light of this finding, there was no need for the trial judge to consider the
    charitable purpose trust argument advanced by the St. Aidans Group.  In any
    event, he agreed with the B.C. Court of Appeals analysis in
Bentley, supra
,
    in which Newbury J.A. rejected the plaintiffs
cy près

argument
    as both legally and practically flawed.

[50]

The
    trial judge stated that he completely agreed with Newbury J.A.s comments
    from
Bentley
, at para. 76, which he excerpted at para. 52 of his own
    reasons:


I prefer to rest my conclusion that the appeal must be
    dismissed, however, on the basis that the purpose of the trusts  is to further
    Anglican ministry in accordance with Anglican doctrine, and that in Canada, the
    General Synod [of the Anglican Church of Canada] has the final word on
    doctrinal matters. This is not to say that the plaintiffs are not in communion
    with the wider Anglican Church  that is a question on which I would not
    presume to opine. I do say, however, that members of the Anglican Church in
    Canada belong to an organization that has subscribed to government by
    bishops. The plaintiffs cannot in my respectful opinion remove themselves from
    their bishop's oversight and the Diocesan structure
and
retain the right
    to use properties that are held for purposes
of Anglican
    ministry in Canad
a. [Emphasis in original.]

[51]

In
    light of this analysis, the trial judge held, at para. 53, that the effect of
    the September 2008 vote to leave the Diocese of Huron and seek alternative
    Episcopal support merely means that [the St. Aidans Group] leaves behind the
    property of St. Aidans Parish of the Diocese of Huron.

[52]

The
    trial judge further held, at para. 54, that the vote of the Vestry to leave the
    Diocese was
ultra vires
: Those members of the Vestry severed their
    personal relationship with the Diocese of Huron. St. Aidans Parish of the
    Diocese of Huron remains intact.

[53]

Similarly,
    the trial judge held that the beneficial owner of the Foundation is St. Aidans
    Diocesan Parish. He explained that the Foundation was established by letters
    patent dated December 27, 2000. The Foundation was incorporated to hold the
    funds contributed to St. Aidans Anglican Church. The letters patent defined
    the objects of the corporation as to receive and maintain funds and to use those
    funds exclusively to preach, promote and advance the spiritual teachings of
    the parish of St. Aidan Anglican Church of Windsor, Ontario, by practicing the
    religious observances, tenets and doctrines associated with the Anglican
    faith.

[54]

The
    major sources of the Foundations funds were twofold. In 2001 the Foundation
    received $418,605 from a bequest made by the Duckworths, who were longstanding
    members of the congregation. In 2002 the Foundation received $157,375.00 from
    the sale of the Parish rectory.

[55]

The
    trial judge found that since 2001, the Foundation had been used to maintain
    Parish property and to support St. Aidans Anglican Church and its Anglican
    faith.  The one exception was the payment of $30,000, made in 2008, to the ANiC
    to assist the ANiC with its legal fees. The trial judge found, at para. 64,
    that this payment amounted to a breach of trust.

[56]

Unlike
    in the case of the church building, the trial judge held that the Diocese is
    not the trustee of the Foundation. Instead he declared, at para. 72, that the
    existing officers of the Foundation corporation hold all assets of the
    Foundation for the benefit of St. Aidans Parish of the Diocese of Huron.

[57]

The
    trial judge acknowledged that this effectively meant that the Foundations
    trustees and its beneficiary had conflicting interests. Other than the
    aforementioned $30,000, the trial judge did not provide particulars of other
    transfers. However, he did direct that all Foundation funds presently held in
    various bank or financial institution accounts to which they were transferred
    by members of the St. Aidans Group be consolidated and returned to the churchwardens
    of St. Aidans Parish of the Diocese of Huron to be held in trust for the
    purposes of the Foundation.

THE COSTS ORDER

[58]

The
    trial judge concluded by dismissing the action instituted by Ms. Delicata and
    Ms. Hyttenrauch in their representative capacity with costs and reserving on
    the issue of costs in the action instituted by the Diocese of Huron for
    declaratory relief. He noted that an orderly transfer of the Foundations
    assets without the need for any further litigation, and the co-operation of the
    St. Aidans Group in this regard, would be looked upon favourably when the
    cost determination was made.

[59]

Unfortunately,
    the trial judge died.  Accordingly, Rady J. presided over the costs hearing. 
    She ordered that, in the interests of promoting harmony within the church, the
    parties each bear their own costs.

[60]

The
    costs judge acknowledged that in
Bentley
, the trial judge awarded the
    successful diocese its costs. That decision was upheld by a majority of the
    B.C. Court of Appeal on the ground that, regardless of its theological origins,
    the dispute was over property and should be treated as such. Newbury J.A.
    dissented on the costs issue, holding that the trial judge erred in failing to
    consider that the plaintiffs were driven by their conscience to pursue the
    litigation, and that a no-costs order should be made in the interests of
    harmony.

[61]

The
    costs judge in this case preferred Newbury J.A.s analysis. She explained, at
    para. 27, that while it was true that that in essence, the case was a property
    dispute, it also involved parishioners acting in accordance [with] their
    spiritual conscience calling upon them to dissent. The costs judge approved of
    Newbury J.A.s observation that from time to time, a court will make a no-costs
    order in proceedings involving church property to promote harmony.

THE APPEAL

[62]

The
    appellants submit that the trial judge erred in his analysis of the trust
    arguments, and in particular erred by:

(1)

failing to
    give meaning to both words in the disjunctive phrase Parish or congregation;

(2)

in the
    alternative, failing to grant an equitable remedy on the basis of unjust
    enrichment over the church building and the Foundation; and

(3)

misinterpreting
    the nature and purpose of the Foundation and concluding that the $30,000
    provided by the Foundation to the ANiC breached the objects of the charitable
    corporation.

[63]

The
    Diocese seeks leave to appeal the costs order, arguing that it was an error to
    depart from the presumption that successful parties are entitled to their
    costs.

ANALYSIS

The meaning of Parish or congregation

[64]

The
    appellants primary submission is that the trial judge erred in his
    interpretation of Canon 14, which provides that church property is to be held
    by the Diocese in trust for the Parish or congregation. The appellants submit
    that the trial judge erred by treating the words Parish or congregation as
    interchangeable and interpreting them to refer to the political unit or
    parish under the Diocesan structure, rather than the individuals who comprise
    St. Aidans church congregation at any one time.

[65]

The
    appellants submit that the trial judge made three errors in his interpretation
    and determination of the trusts beneficiaries.

[66]

First,
    the trial judge failed to consider the plain meaning of the words parish and
    congregation and failed to give meaning to both words. The plain meaning of
    those words in this context must be interpreted to refer to the class of
    individuals who worshipped at St. Aidans church and who comprised its
    congregation.

[67]

Second,
    the appellants submit that the trial judge failed to look at the contextual
    evidence which, they say, reflects the settlers intention that the trust
    property would be held for the class of theologically conservative Anglicans
    who worshipped at St. Aidans Church in accordance with traditional
    Anglican teachings and theology.

[68]

Third,
    the appellants submit that the trial judge erred in failing to consider or
    apply the proper test for certainty of objects in a discretionary trust. He
    improperly required an ascertained entity to serve as the trust object.  In
    particular, he failed to apply the appropriate principle for determining the
    ascertainable objects of the beneficial class of the trust as articulated in
Re
    Gulbenkians Settlement Trust
,
[1970]
    A.C. 508 at pp. 518-519 (H.L.).

[69]

I
    do not accept the appellants submissions. I agree with the trial judges
    analysis and conclusion that the words Parish or congregation must denote a
    static entity that may not be severed from the Diocese and that is not defined
    by any particular group of members at any particular time. I reject the snapshot
    theory advanced by the appellants for three reasons.

[70]

First,
    the appellants proposed interpretation is inconsistent with the language and
    purpose of Canon 14. Canon 14 states that church property cannot be sold,
    mortgaged or otherwise disposed of without the Bishops prior consent.  This
    reinforces the conclusion that the Bishop, and by extension the Diocese,
    retains control over all church property in perpetuity for the benefit of the
    members of the Diocese. That objective would be wholly undermined by the
    appellants proposed interpretation of the words Parish or congregation,
    which would permit the Diocese to be splintered and its property distributed at
    the will of a single group of estranged congregants.

[71]

Second,
    the appellants proposed interpretation is inconsistent with the
Anglican
    Church of Canada Act
, S.O. 1979, c. 46. Section 2(1) provides that land
    shall not be sold or leased, mortgaged or otherwise encumbered  except with
    the consent of the vestry of the church or congregation interested therein
and
    of the bishop of the diocese and the executive committee of the synod of the
    diocese
 (emphasis added). The appellants proposed interpretation would
    allow the church property to be conveyed to them without the consent of the
    bishop or the synod, contrary to the statute.

[72]

Third,
    the appellants argument must be considered in light of Canon 18, which
    describes the composition of the vestry in a given congregation. It provides
    that a vestry is composed of all baptized members of the congregation who have
    reached 16 years of age and who, for at least three months during the preceding
    12 months of the date of the relevant vestry meeting, have been identifiably
    involved with such congregation with regular worship, fellowship and financial
    support. If the appellants snapshot theory is correct, then any group of
    worshippers who meets the minimum requirements of Canon 18 could constitute a
    parish and could, by majority vote, leave the Diocese and take the church
    property with them. This is clearly not what the canons intended.

[73]

Finally
    on this point,
Re Gulbenkians Settlement

does not assist the
    appellants. The trial judge did not dismiss their trust argument because the
    class of beneficiaries was uncertain.

[74]

Accordingly,
    the appellants first argument fails.

Unjust Enrichment

[75]

It
    follows that the appellants unjust enrichment argument (which the respondents
    say was not argued in the court below) must fail as well. The congregants who
    contributed money or labour to maintaining the church property knew they were
    doing so for the benefit of St. Aidans Parish of the Diocese of Huron. It must
    be inferred that they also knew what the canons and statute stated.  I would
    not give effect to this ground of appeal.

The Foundation

[76]

Similarly,
I agree with the trial judges
    conclusions with respect to the Foundation. They were also consistent with the
    evidence of the President of the Foundation.

[77]

As
    I explained earlier, the letters patent state that the object of the Foundation
    is to preach, promote and advance the spiritual teachings
of the parish of
    St. Aidans Anglican Church of Windsor
 (emphasis added).  The appellants
    submit that for purposes of the Foundation, parish is synonymous with the then
    current membership of St. Aidans church. For the reasons I have already given,
    that interpretation is incorrect.

[78]

It
    follows that the trial judge correctly held that it was a breach of trust for
    the officers to use Foundation funds to help pay the ANiCs legal bills. As the
    respondents put it in their factum: The appellants sought to use property of
    the Foundation, held in trust for the Diocesan Parish congregation, to finance
    litigation  so as to defeat the claims that the church property was held in
    trust for the Diocesan Parish Congregation.

Cross-appeal on Costs

[79]

Turning to the cross-appeal, in my view, the costs judge erred in
    treating the pursuit of harmony as a reason to depart from the usual rule
    that a successful party is entitled to costs. There was no basis in the
    evidence for any such determination.  As a matter of principle, in our justice
    system litigation over spiritual or religious convictions should not
    presumptively have a safe harbour from costs. Moreover, the parties clearly
    expected exposure to costs; at the September 2008 meeting, a resolution was
    passed to indemnify Ms. Delicata and Ms. Hyttenrauch should they be ordered to
    pay costs personally.

[80]

The
    appellants were unsuccessful and therefore the respondents are presumptively
    entitled to costs.  In my view, there was nothing in the facts which would
    displace this presumption.

[81]

The
    respondents sought $445,486.37 inclusive of fees, disbursements and taxes for
    both actions in the court below.  The appellants bill of costs amounted to
    $267,616.60.  Taking all the relevant factors into account, I would fix costs
    in the court below at $100,000 in favour of the respondents in the Delicata
    action and order no costs in the Dioceses action.  In my view, and
    particularly in light of the amounts and nature of the issues involved, this is
    a fair and reasonable award.

[82]

Given
    the foregoing analysis, it would be inappropriate for the appellants to use
    Foundation funds to satisfy the costs order as they had proposed in the court
    below.  I would order that the Delicata and Hyttenrauch appellants pay these
    costs, bearing in mind that they represent and have an indemnity given by those
    people who voted to leave the Diocese on September 28, 2008.

CONCLUSION

[83]

The
    appeal is dismissed, leave to cross-appeal the costs order is granted and the
    cross-appeal is allowed in part. If the parties cannot agree on costs of this
    appeal, they may make brief submissions in writing.

Released:

MR                                                  Sarah
    E. Pepall J.A.

SEP -4 2013                                    I agree
    M. Rosenberg J.A.

I
    agree Paul Rouleau J.A.


