



COURT OF APPEAL FOR ONTARIO

CITATION:  Pankerichan
    v. Djokic, 2014 ONCA 709

DATE: 20141017

DOCKET: C55524

Doherty, Lauwers and Strathy JJ.A.

BETWEEN

Zoran
    Pankerichan, Milan Vukosavljevic, (Elected Trustees

For St.
    Nicholas Serbian Orthodox Church-School

Congregation
    of Hamilton) and Sveto Dojcinovic, Miroslav

Cucuz,
    Branko Bibic, Sava Bibic, Milan Brkovic, Milan Dabic,

Mirko
    Dronjak, Dusan Ivancevic, Marko Krekic, Todor Maric,

Dragan
    Pankerichan, Veljko Stanojcic, Sretko Tadic, Branko

Vincic,
    Dragomir Vrabac, Slavko Vrzina, Radovan Vukaljevic

Applicants

(Appellants)

and

Rt. Rev.
    Bishop Georgije Djokic, Rev. Radmilo Gardovic, V. Rev.

Ljubomir
    Rajic, V. Rev. Milutin Veljko, V. Rev. Lazar Vukojev,

Zoran
    Curcic, Milosav Ivkovic, Milan Lazic, Ilija Rakanovic,

Milenko
    Savovic, Dobro Stanisic, Radoslav Veljovic and Rev.

Djuro
    Samac, Goran Propovic, Nikola Manojlovic, Vladimir

Savic,
    Srobljub Mitic, Ostoja Maglov, Gliso Popov, Todor

Manojlovic,
    Vesna Zdero, Slavko Zdero, Damjan Gligic

Respondents

(Respondents)

Elena Mamay, for the appellant

Milena Protich, for the respondent

Heard: February 6, 2014

On appeal from the decision of Justice Robert B. Reid of
    the Superior Court of Justice, dated April 23, 2012, with reasons reported at
    2012 ONSC 2438, [2012] O.J. No. 6633, in which he dismissed the application.

Lauwers J.A.:

[1]

The appellants and the respondents are in a dispute about control over
    church property. The resolution of the dispute requires careful consideration
    of statutory authorities and church documents. After hearing this appeal, the
    panel dismissed it with reasons to follow. These are the reasons.

A.

overview

(1)

The Parties

[2]

The appellants are members of a Hamilton, Ontario congregation of the
    Serbian Orthodox Church (the Church), known as the Serbian Orthodox Church-School
    Congregation of St. Nicholas in Unity (the Congregation).  A number of
    the appellants were elected to the Executive Board of the Congregation on
    February 13, 2005. The appellant, Zoran Pankerichan, is described in the
    minutes as an elected trustee for the Congregation.

[3]

The respondent Bishop Georgije Djokic is the head of the Serbian
    Orthodox Diocese of Canada (the Diocese). The other named respondents are
    members of the Diocesan Council, the two parish priests of the Congregation and
    members of the Temporary Trusteeship appointed by the Diocesan Administrative
    Board on September 1, 2005.

(2)

The Protest

[4]

In 2005, Bishop Djokic obliged the Congregations long-time parish
    priest to retire against his will. When the Bishop introduced the new priest
    during a liturgical celebration on August 28, 2005, some Congregation members
    protested, including some of the appellants. The ensuing events eventually led
    to the application and to this appeal.

(3)

The Congregational Properties and the Application

[5]

The Congregation occupies a number of properties that it uses for religious
    and ancillary purposes. The Congregation is not incorporated. Its properties
    are held in trust under the provisions of the
Religious Organizations' Lands
    Act
, R.S.O. 1990, c. R.23 (
ROLA
).

[6]

The deeds to the Congregational properties convey them to, variously,
    certain named individuals as Trustees of the Congregation of the Serbian
    Eastern Orthodox Church of St. Nicholas in Unity, or In trust for the
    Congregation of the Serbian Eastern Orthodox Church of St. Nicholas in Unity,
    and in one instance, without naming the individuals, to Trustees of St.
    Nicholas Serbian Orthodox Church. The deeds had the standard habendum clause,
    namely: To have and hold unto the said grantees, their successors, and
    assigns, to and for their sole and only use forever. There are, however, no
    express trust terms in any of the deeds. None of the trustees named in the deeds
    appear to have been a party to the application.

[7]

After the August protest, on September 1, 2005, the Diocesan
    Administrative Board, with the support of the Bishop, removed the
    Congregations elected Executive Board and replaced it with a Temporary
    Trusteeship. This eliminated the Executive Boards ability to control and
    manage the property and financial affairs of the Congregation.

[8]

The appellants applied for a declaration that the Congregations elected
    trustees hold the Congregational properties in trust and that the elected
    trustees, not the Temporary Trusteeship appointed by the Diocesan
    Administrative Board, have authority to manage and deal with the properties.
    They also sought a declaration that the replacement of the Congregations
    Executive Board by the Temporary Trusteeship wrongfully invaded a property
    trust.

[9]

The application judge refused to make the declarations or to order the requested
    consequential relief of reinstating the Executive Board, requiring new
    elections, and requiring an accounting by the Temporary Trusteeship.

[10]

The
    parties filed a large record. The major affidavits were sworn by Mr. Pankerichan,
    on behalf of the appellants, and Davor Milicevic, the secretary to the Bishop,
    on behalf of the respondents. The affidavits exhibited many documents
    associated with the Congregation the Diocese, and the Church.

[11]

The
    parties broadly agree on some basic facts but significant differences remain
    regarding how and why events unfolded. It is fair to say that the application
    judge generally accepted the evidence of Davor Milicevic where it conflicted
    with that of Mr. Pankerichan.

B.

The Structure of the Serbian orthodox church

[12]

The
    Church is described as an autocephalous religious body (meaning its
head bishop does not report to any higher-ranking bishop)
with
    its centre, or See, in Belgrade, Serbia. The Church has a constitution.

[13]

The
    Church is subdivided into dioceses, each headed by a diocesan bishop. As Davor Milicevic
    says, each Diocese is ecclesiastically, hierarchically and juridically an
    integral part of the Serbian Orthodox Church. Each diocese is subdivided into geographical
    parishes as designated by the diocesan bishop. A parish can be elevated into a church-school
    congregation by the diocesan bishop.

[14]

The
    Congregation was established in Hamilton in 1964. At that time the parishes and
    congregations in Canada were part of the Eastern American and Canadian Diocese
    under the authority of a diocesan bishop located in Edgeworth, Pennsylvania. That
    diocese had a constitution that was adopted in 1927 and was consistent with the
    Churchs constitution. The Congregation adopted bylaws in 1979 (the Bylaws)
    that were consistent with the 1927 diocesan constitution.

[15]

The
    Eastern American and Canadian Diocese adopted a new constitution in 1982 (the 1982
    Constitution). The new Serbian Orthodox Diocese of Canada was created in 1983,
    and Bishop Djokic was appointed as its first bishop the following year. In 1995
    the Diocesan Assembly adopted a constitution, also known as the Statute, for
    the Canadian Diocese. The Statute was subsequently ratified by the Churchs
    Holy Assembly of Bishops and is consistent with the Churchs constitution.

[16]

As
    a result of a Diocesan Assembly held in February 1996, parishes and congregations
    were directed to comply with the Statute and to bring their bylaws into conformity
    with it by September 1, 1996. In February 2007 the Diocesan Assembly decided
    that for parishes that had not adapted their bylaws, such as the Congregation,
    the Statute would be the only governing bylaw.

The Governance Model

[17]

As
    the application judge noted, the Church is hierarchical. Each parish or
    congregation is subordinate to its diocese, which is subordinate to the
    Churchs patriarch.

[18]

Although
    the 1927 diocesan constitution is not in the evidence, there appears to be a consistent
    governance pattern that is repeated in the 1982 Constitution and the 1996
    Statute, and is also reflected in the Congregations Bylaws. Regarding
    organizational hierarchy and the Dioceses control over the activities of the
    Congregation, there have not been any fundamental changes in principle between
    1979, when the Bylaws were enacted, and the present governing rules under the
    Statute.

[19]

Each
    parish and congregation annually elects an executive board. The membership of
    the board must be approved by the Diocese. The executive board has always been
    subject to the authority of the Diocese.

[20]

The
    nature of this hierarchical relationship is reflected in the oath of office
    that the Congregations Bylaws require members of the Executive Board to swear.
    This oath is also found in the rules to the 1982 Constitution and is
    substantially similar to the oath required by the Statute:

I (name and surname) swear by Almighty God and with my honor
    that I will as an Orthodox Christian, obey, respect, fulfill, protect and
    defend the Holy Canons, laws, traditions, regulations, order of the Holy
    Orthodox Church and my  Diocesan Bishop, and that I will, as a member of the
    Serbian Orthodox Church Congregation of St Nicholas in Hamilton, my parish
    church, I will regularly and devotedly fulfill all duties and obligations,
    prescribed by the Constitution, Rules and Regulations of the Serbian Orthodox
    Church in the United States of America and Canada and the By-Laws prescribed by
    this Church-School Congregation, so help me God. (Bylaws, art. 81)

[21]

The
    rules under the 1982 Constitution provided that the Diocesan authorities could substitute
    a temporary trusteeship if they determined that the Executive Board was not
    serving in accordance with the precepts of the Church (arts. 41 and 44). The Statute
    provides similarly in art. 31.15:

If in the opinion of the Diocesan authorities, the Executive
    Board of a Church-School Congregation is not serving according to the precepts
    of the Church, the Diocesan Administrative Board may appoint a temporary
    trusteeship which performs all the duties of the Executive Board and which has
    all the rights, powers and obligations of an Executive Board under this
    Statute, until the Diocesan Administrative Board determines that conditions in
    the Church-School Congregation have normalized so that a new Board may be
    elected.

[22]

The
    Congregations Bylaws acknowledge this authority in art. 31: If an Annual
    Assembly deliberately oversteps the boundaries of its authority and disregards
    the directives of the Diocese, the Diocesan authorities are within their rights
    to annul such a decision.

[23]

Article
    31.15 of the Statute is the provision under which the Diocesan Administrative
    Board replaced the Congregations Executive Board with the Temporary Trusteeship
    in 2005. It substantially repeats art. 44 of the 1982 Constitution.

[24]

As
    required by the Statute, the Diocese attempted to hold new elections for the
    Executive Board in early 2006, but protests continued. Things had not improved
    by the end of 2006.

The Executive Board and Congregational Property

[25]

The
    Executive Board has always been responsible for administering the
    Congregational property. The 1982 Constitution stated, in art. 26:

1. The Church and other buildings constituting
    parish property shall be used in the service of the [] needs of the parish. Parish
    property shall at all times be held subject to and administered in accordance
    with this Constitution, the Rules and Regulations and the laws of the state or
    province in which the parish may be registered.

2. [] Property of the Church-School
    congregation shall be used to serve the Church, school, religious-educational
    and charitable purposes of the congregation. Properties of the Church-School
    congregation shall be administered directly by the board thereof, under the
    direct control of the Diocesan council, and in accordance with this
    Constitution, the rules and Regulations, and the laws of the state or province
    in which it is incorporated.

The Statute states:

The Diocesan Bishop supervises the administration of real and
    personal property by the clergy and laity of the respective administrative
    bodies of the Church in the Diocese of Canada. (Art. 14.3)

The properties of the Congregation are administered directly by
    the Executive Board thereof under the direct control of the Diocesan Council
    and Diocesan Bishop according to this Statute. (Art. 29.9)

[26]

The
    Bylaws provide:

The officers of the Church-School Board represent and are
    responsible for the movable and real estate property. The rights and duties are
    as follows: to buy, sell, rent property of the Church-School Congregation if
    and when such transaction is approved at an extraordinary meeting by the two
    thirds of members in good standing. (Art. 41(a))

Among the duties of the Executive Board listed in art. 42
    of the Bylaws is managing Church property (subsection (c)).

[27]

Despite
    this responsibility, art. 42(h) of the Bylaws states that if conflicts arise in
    the performance of any Executive Board duties and the membership cannot find a
    solution, the Diocesan Council can make a final binding decision.

[28]

The
    position of Trustee is created by art. 56 of the Bylaws, presumably to
    reflect the deeds to the Congregational properties. It provides:

The TRUSTEES are elected at the Annual Assembly from the
    members. [] Without their consent and signatures no loan can be taken on
    behalf of the Church-School Congregation, nor can any piece of property be sold
    even if the Executive Board of the Church-School Congregation has decided so.

If there arises a question of buying some property for the
    Church-School Congregation and which is found to be profitable and it can be
    purchased if the money is borrowed against already owned Church-School
    Congregation property and two thirds of the members in good standing vote for
    it, be it on a regular or Extraordinary assembly meeting convened for that
    purpose, then trustees are obliged to consent to it and grant their signatures.

In accordance with the Constitution of the Serbian Orthodox
    Church and Diocesan Constitution all decisions relating to purchasing,
    incurring debts or giving away in any form of the property of the Church-School
    Congregation foreseen by articles 41 and 56 of these bylaws, must be submitted
    to the Diocesan Authorities, namely to the Bishop for final approval.

[29]

Trustees
    are responsible for taking out loans and selling property, but this requires
    approval by two-thirds of the Congregation and by the Diocese (arts. 41, 56).

[30]

The
    nature of the property interests is addressed in both the 1982 Constitution and
    the Statute. Article 26 of the 1982 Constitution states that parish property is
    to be used in serving the needs of the parish, but in the event of dissolution
    of a church-school congregation it devolves to the Diocese.

[31]

The
    Statute provides:

The property of the Church-School Congregation consists of all
    its property in general as well as property of individual funds, institutions
    and establishments acquired by the Congregation with its material means or by
    gift. Such property shall be used to serve the church, school, religious,
    educational and charitable purposes of the Congregation

and shall be
    maintained by the congregation. (Art 29.8)

All property of the Church or its bodies in Canada is held on
    trusts for the Serbian Orthodox Diocese of Canada. If the Serbian Orthodox
    Diocese of Canada ceases operations, its property is to be held in trust by the
    Serbian Orthodox Church for the renewal of church life in the Canadian Diocese.
    (Art 9.4)

Properties of the dissolved or disbanded parish devolve to the
    Diocese to be used for missionary purposes. (Art 28.19)

[32]

Similarly,
    art. 82 of the Bylaws provides: In case that the Church-school congregation in
    Hamilton ceases to exist, all Church property will be held for safe keeping by
    the Canadian Diocese, which will try to revive this Church-School
    Congregation.

C.

The Decision Below

[33]

The
    application judge reviewed the governance documents of the Diocese and the
    roles and responsibilities of parishes. He also reviewed the Congregations Bylaws,
    how the Bylaws came into force and the process by which the Diocese replaced
    the Executive Board with the Temporary Trusteeship. He identified the
    threshold question at para. 41 as whether the respondents had violated trust
    law in constructively removing and replacing the elected trustees. Such a
    violation, he noted, would be a breach of property rights which could justify
    judicial intervention.

[34]

The
    application judge referred to the relevant provisions of the
ROLA
.  Two of the properties were
    purchased when its predecessor,
The
Religious Institutions Act,
S.O. 1912, c. 81, was in force. The others were bought after the
ROLA
came into force. The parties accept
    the application judges statement, at para. 6, that all of the properties are
    held pursuant to the
ROLA
.

[35]

The
    application judge found, at paras. 26-27, that, indisputably, the Congregation
    falls within the definition of a religious organization in section 1(1) of ROLA.
    He also found that the Congregation's trustees fall within the definition of
    trustees in the [ROLA] as regards of the holding of
real
property. He
    noted, consistent with s. 3 of the ROLA, that the religious organization may by
    resolution adopted at a meeting of the organization provide for the appointment
    and removal of trustees, and that a trustee is to hold office until he or she
    dies, resigns or ceases to be a member of the organization, "unless the
    constitution or a resolution of the religious organization otherwise
    provides."

[36]

The
    core of the application judges decision is found at para. 42:

There is no doubt that the Congregation's property is held in a
    charitable trust for the benefit of its members. Since the Congregation is an
    unincorporated organization, its property must be held in trust, and
ROLA
applies to the real property. In non-hierarchical organizations, the trustees
    may be said to hold property in trust for themselves and all members of the
    congregation. Here the structure of the Church as set out in its Statute makes
    it clear that individual members do not have a beneficial, equitable interest
    in the property. The property would devolve to the Diocese in the event of
    dissolution of the Congregation, therefore individual members of the
    Congregation have no right to an ownership interest in either the real or
    personal property held for the Congregation but rather they have the right to
    share in the benefits derived indirectly from the use of that property for
    religious purposes by virtue of their membership. As a result, their
individual
property rights are not engaged as for example in a case where membership in
    the religious organization was accompanied by certain rights to occupy and use
    communally owned property.

[37]

Regarding
    the relationship between the Executive Board, the trustees, and the Diocese,
    the application judge found, at paras. 43 and 44:

[I]t is reasonable to say that under both the Congregation's
    bylaws and the Statute, the actions of the trustees are directed by the
    administrative decisions of the Executive Board (or temporary trusteeship) and
    subject to diocesan approval.

Since the Congregation's bylaws were superseded by the Statute
    as a result of the diocesan resolution in February 2007, the provisions of the
    Statute apply to this matter. In it, the Executive Board is given the duty to
    represent and protect the interests of the Congregation and administer
    Congregation property as directed by the Assembly and Diocesan Administrative
    Board. In effect, by the Statute, the Executive Board is given the role
    previously shared (at least nominally) in the bylaws between the Executive
    Board and the trustees.

[38]

The
    application judge concluded, at para. 46, that the Diocese acted in compliance
    with s. 3 of the ROLA when it replaced the Executive Board of the Congregation
    with the Temporary Trusteeship. He noted that:

The trustees have continued to exist but the entity directing
    them has been changed by the Bishop and diocesan authorities. As a result, I
    find no breach of provincial law and therefore no engagement of property,
    contract or other civil rights.

[39]

As
    I interpret these findings, according to the application judge, the members of
    the Temporary Trusteeship are now the trustees for the purposes of the ROLA.
    When a new Executive Board is elected by the Congregation, those new members
    will then assume the role of trustees under the ROLA
,
unless new congregational
    bylaws, as approved by the Diocese, revive the position of trustee.

D.

THE ISSUE

[40]

The
    factual context raises the following issue: Are the Congregational properties
    held in trust to be managed by the previously elected trustees, as the
    appellants contend, or by the Temporary Trusteeship, as the respondents contend?

E.

The Positions of the Parties

[41]

While
    conceding that the Diocese has overriding authority over spiritual and
    ecclesiastical matters, the appellants take the position that the
    Congregation, through the trustees and the Executive Board elected in 2005, has
    overriding authority over matters relating to the Real Property which was
    granted to them [by] the Deeds. The appellants argue, as noted by the
    application judge at para. 22, that under the ROLA, it was not legal to
    constructively remove the trustees of the real property. They assert that the
    Dioceses purported authority to do so, must be subservient to provincial
    legislation and was therefore invalid in these circumstances.

[42]

The
    appellants argue that the application judge erred by looking beyond the deeds
    to base his analysis on the Statute, the resolutions made by the Diocese based
    upon the Statute, and the Dioceses Trusteeship that was imposed pursuant to
    the Statute. These documents, according to the appellants, are irrelevant and
    extraneous factors. They argue that the application judge should have taken a
    rigorously secular, American approach to resolving church property disputes
    known as the neutral principles of law doctrine (NPL doctrine).

[43]

The
    respondents support the application judges reasoning.

F.

ANALYSIS

[44]

At
    bottom, the appellants argument is based, as I will explain, on a
    misapprehension of the nature and purpose of the ROLA. In aid of their argument
    the appellants enlist the American NPL doctrine. On close examination, however,
    this doctrine is not helpful in resolving this case. The application judge did
    not err in his application of the principles of law as they have developed in
    Ontario and in Canada.

[45]

In this section of the reasons I consider first the purpose
    and genesis of the
ROLA
,
and second, how courts have approached disputes within
    religious organizations. I next turn to the application judges analysis, and
    then conclude by addressing the American
NPL doctrine
.

(1)

The Purpose and Genesis of the
ROLA

[46]

The
ROLA
was enacted in 1979 after
    the Ontario Law Reform Commissions report on 
Mortmain, Charitable Uses and Religious Institutions
(Toronto:
    Ministry of the Attorney General, 1969). It is the successor statute to
The
    Religious Institutions
Act
, which had been in force, with few
    changes, since 1873.

[47]

The
    Commissions report noted, at p. 49, that
The

Religious Institutions
    Act
was originally designed to permit religious societies to acquire and
    hold land for places of public worship and related uses in a convenient way.
    The Commission supported its revision because it continues to be of great
    utility, particularly, for smaller denominations. The main advantage of the
    legislation, according to the Commission, was the benefit of perpetual
    succession for trustees. Without legislation these organizations would be
    treated in law like any other unincorporated association, and could hold land
    only through individual trustees whose appointment, tenure and power would be
    governed by the more onerous provisions of
The

Trustee Act
.

[48]

Professor
    Albert H. Oosterhoff served as director of research for the Commission. In his
    view, the ROLA effected two important changes. The first was to extend the
    privileges of holding land by means of trustees with perpetual succession to
    virtually all religious persuasions (Albert H. Oosterhoff, 
Religious Institutions and the Law in Ontario: An
    Historical Study of the Laws Enabling Religious Organizations to Hold Land

    (1981) 13 Ottawa L. Rev. 441 at p. 465). Second, the purposes for which land
    might be held under legislation were broadened to ancillary uses other than
    worship.

[49]

Professor
    Oosterhoff noted, at p. 465, however, that:

The Act always was and remains biased in favour of religious
    organizations with a congregational form of church government. In other words,
    the trustees are appointed by and derive their authority for specific acts such
    as sale, lease and mortgage from the congregation or other organization,
    assembled in a meeting called for that purpose. It may be questioned whether
    this model is appropriate for many religious organizations.

[50]

However,
    there is no hint in the Commissions report or in the ROLA

of any
    intention to force governance changes on religious organizations, for example,
    by making congregational democratic practices mandatory for hierarchical
    organizations.

[51]

Professor
    Oosterhoff observed, at pp. 465-466, that s. 4 of the ROLA would respect an
    episcopal form of organization by permitting the property to be held by one
    person, where, under the organizations constitution, customs or practices, its
    property is vested in one person. He did not refer specifically to s. 3(2) of
    the ROLA, which provides that [u]nless the constitution or a resolution of the
    religious organization otherwise provides, a trustee holds office until he or
    she dies, resigns or ceases to be a member of the organization. This was the provision
    on which the application judge based his decision.

(2)

The Courts Approach to Disputes within a Religious Organization

[52]

While
    the law relating to property disputes within a religious organization might
    seem arcane, in my view most issues can be resolved using a mix of ordinary
    trust and contract law principles the court applies to voluntary associations
    and analogous relationships. See, generally, Professor Margaret Ogilvie,
Religious
    Institutions and the Law in Canada
, 3rd ed.

(Toronto: Irwin Law, 2010),
    at 217, and at 291 and following.

(a)

Judicial Diffidence

[53]

The
    invitation to a court to intervene in the internal affairs of a religious
    organization comes invariably, as it did in this case, at the request of
    members who feel aggrieved by the actions of the organization.

[54]

The
    application judge accurately observed, at para. 40, that: Courts are reluctant
    to exercise jurisdiction over disputes within religious organizations that
    involve issues of church governance. He added that while disputes about religious
    doctrine are not appropriate for judicial determination, courts
have
intervened to review the actions of religious bodies when the controversies
    (typically regarding membership) involve property, contracts or other civil
    rights. This was a fair characterization of how Canadian courts generally approach
    disputes within religious organizations.

[55]

There
    are good reasons for judicial diffidence. Freedom of religion, a fundamental right
    protected by the
Canadian Charter of Rights and Freedoms
, Part I of the
Constitution
    Act, 1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982, c.
    11,

can be implicated in such disputes and must be respected. Courts also
    recognize the real risk of misunderstanding the relevant religious tradition
    and culture, and that a mistaken decision could saddle the organization with difficult
    if not unworkable consequences:
Lakeside Colony of Hutterian Brethren v.
    Hofer
, [1992] 3 S.C.R. 165, at paras. 63-64.

[56]

Judicial
    angst about the area shows in the numerous cases cited and explained by
    Professor Alvin Esau in "The Judicial Resolution of Church Property
    Disputes" (2003) 40 Alta. L. Rev. 767, and by Professor Margaret Ogilvie
    in Church Property Disputes: Some Organizing Principles (1992) 42 U.T.L.J.
    377,  and in
Religious Institutions and the Law in Canada
.

(b)

A Consistent Method has Emerged

[57]

While
    it is fair to say that Canadian courts are still feeling their way through the principles
    underpinning the connection between civil law, on the one hand, and religious
    organizations and their internal laws, on the other, a relatively consistent method
    or pattern has emerged in property disputes. This can be seen in two recent
    decisions involving the Anglican Church of Canada, one by the British Columbia
    Court of Appeal and the other by this court:
Bentley v.
Anglican
Synod of the Diocese of New
    Westminster
, 2010 BCCA 506, 11 B.C.L.R. (5th) 209, leave to appeal
    refused, [2011] S.C.C.A. No. 26, and
Incorporated Synod of the Diocese of
    Huron v. Delicata
, 2013 ONCA 540, 117 O.R. (3d) 1, leave to appeal refused,
[
2013] S.C.C.A. No. 439
.

[58]

In
    both cases, the dissident majority of a parish congregation was opposed to the decision
    of the Anglican Church of Canada (ACC) to permit the blessing of same-sex
    partnerships. Both congregations sought
a declaration that they
    were the beneficial owners of the property held in trust
for the parish.
    Each appeal court saw its task as construing the terms of the trust on which
    the properties were held. In doing so, each court considered the deeds, the
    applicable legislation, the canons or church law promulgated by each diocese, and,
    to some extent, the doctrinal context.

[59]

In
Bentley
, the B.C. Court of Appeal considered the historical and
    statutory context of the incorporation of the parish corporations and found
    that the property was held on implied trusts for the purpose of Anglican
    Ministry (paras 63-65). The court found, at paras. 74-75, that in Canada,
    Anglican ministry and Anglicanism cannot be separated from the notion of
    the ACCs episcopal authority. The ACC is a quintessentially hierarchical
    body and Anglican ministry in Canada
is
as defined by the ACC.
    Thus, although the parish corporations hold the property in trust for the
    purposes of Anglican ministry, this court found that the trial judge did not
    err in declining to grant a
cy-près
order as it was antithetical to the
    nature of Anglicanism to contemplate Anglican ministry in a parish that has
    withdrawn from the authority of its diocese and bishop.

[60]

The authority of the Anglican Diocese of Huron was
at issue in
Delicata.
The Diocese was incorporated by
    S.O. 1875, c. 74, which provides that property held for church purposes may be
    conveyed to the Synod (the governing council of the diocese), which shall hold
    the property in trust. The Act also empowers the Synod to enact canons, which
    function as bylaws. Canon 14 provides that legal title to all real property
    held by any parish or congregation within the diocese must be registered in the
    name of the Incorporated Synod of the Diocese of Huron, which holds such
    property in trust for the benefit of the Parish or congregation (paras.
    17-19).

[61]

This court confirmed the trial judges conclusion
    that the Parish for which the property was held in trust is a static entity:
    members may come and go, but the parish itself remains constant and cannot
    sever itself from the diocese (para. 69). This conclusion was based on the
    language and purpose of Canon 14, which states that church property cannot be
    disposed of without the Bishops consent (para. 70). This provision implies
    that the Bishop, and by extension the Diocese, retains control over church
    property in perpetuity for the benefit of members of the Diocese. The courts interpretation
    of the
Anglican Church of Canada Act,
S.O. 1979, c. 46 also supported
    this conclusion. Section 2(1) of this Act requires the consent of diocesan
    bishop and of the Synods executive committee to any sale, lease or encumbrance
    of church land (para. 71). I observe that the trial judge and this court relied
    on expert evidence about the institutional structure and doctrines of the Anglican
    Church.

[62]

The analytical method applied by both appeal courts of
construing
    the terms of the trust by considering the deeds, the applicable legislation,
    the canons or church law promulgated by each diocese and, to some extent, the
    doctrinal context, was not novel. The same approach was applied to a similar
    dispute in
United Church of Canada v. Anderson
(1991), 2 O.R. (3d) 304, [1991]
    O.J. No. 234 (Gen. Div.), and in numerous earlier and later cases cited by
    Professor Esau involving Hutterites, Lutherans, Greek Orthodox, Presbyterians,
    Christian Reformed and other faith groups. Professor Esau summarizes how courts
    have approached these cases at paras. 117-118 of his article, where he states
    that Canadian courts will not simply defer to the ecclesiastical judgments of church
    authorities about membership issues without judicially reviewing those
    decisions to ensure that they conform with the internal law of the religious
    group. He adds that: Canadian courts can interpret and apply both express and
    implied doctrinal trusts to resolve property disputes when membership alone
    does not determine the matter, and are willing to muddle through religious
    documents and entertain the conflicting testimony of religious experts. As I
    noted earlier, this happened in
Delicata.

[63]

That
    said, it is highly unlikely that a Canadian court today would engage in the
    thoroughgoing doctrinal analysis this court undertook in
Wodell v. Potter
(1929), O.J. No. 74 at para. 45, 64 O.L.R. 484. The court was obliged to
    determine which of two factions in a Baptist church was entitled to the
    property under the
Property of Religious Institutions Act
(the previous title
    of
The Religious Institutions Act
).

The trust requirements in the
    deed imposed a very detailed theological litmus test
.
While the court
    did interpret these requirements and ultimately held that both factions met the
    trust terms, Riddell J.A. noted the courts discomfort at para. 45:

The Court has no jurisdiction in this case to enter upon the
    belief of any man, except as the inquiry may be necessary to determine
    property-rights of some kind. We have declared the rights of the plaintiffs in
    respect of the class of persons for whom they hold the property in question;
    and that is as far as the should attempt to go.

[64]

In summary, while courts are cognizant of the unique
    implications of property disputes within religious organizations, they have
    nonetheless been willing to imply trust terms and to construe institutional
    documents that involve some aspect of religious doctrine. I now turn to whether
    the application judge correctly applied this approach in the case at hand.

(3)

Application to this Dispute

[65]

What
    makes this intra-congregational dispute unusual is that there is no schism.
    There is no dissident group that wishes to leave the Congregation and take the
    Congregations property with it. Although the Temporary Trusteeship has been
    imposed by the Diocese, it is composed of members of the Congregation. Further,
    the Congregational properties have continued to be used throughout this time by
    the Congregation in the same way that it did before this litigation started. No
    one has been displaced. While there is some suggestion of disputes regarding
    expenditures on the roof and the floor, these are relatively minor. For reasons
    that are not clear, the appellants simply seek to wrest control of the
    properties from the Temporary Trusteeship.

[66]

It
    is common ground that the trustees who took title did so in accordance with
The
    Religious Institutions

Act
or the
ROLA
and were properly empowered to do so by the
    Congregation under the terms of each statute, and that the Congregations
    properties are held in trust under the ROLA.

[67]

The
    appellants argue that:

the deeds clearly and unequivocally designate the
    Congregation as the sole beneficiary under each deed executed in 1963 and 1964
    respectively. Since then, the Congregation has continuously exercised its
    authority and absolute control over the real estate property, through the
    original trustees and their successors, who were elected and accountable to the
    Congregation, in compliance with
ROLA
and the deeds.

[68]

The application judge had the deeds before him, and in the
    absence of express trust terms, correctly expanded his analysis to the ROLA,
    the 1982 Constitution, the Statute, and the Bylaws of the Congregation. He
    considered particularly, art. 56 of the Bylaws, excerpted above, on which the
    appellants rely.

[69]

The
    appellants take issue with the application judges finding that the actions of
    the Diocese in replacing the Executive Board of the Congregation with Temporary
    Trustees complied with s. 3 of the ROLA.

[70]

But
    the appellants do not quarrel with Church law per se. In fact, they also look
    beyond the deeds and rely on Church law to found their claim that they are the
    trustees of the Congregational properties under the
ROLA
by virtue of their election pursuant to art. 56 of the
    Bylaws. They say that the
ROLA
attaches to that election and gives them specific and exclusive authority over
    the property. However, the appellants invocation of the Congregations Bylaws
    admits what is undeniable: that s. 3 of the
ROLA

applies. Of particular importance is
s. 3(2), which provides:

Unless the constitution or a resolution of the religious
    organization otherwise provides, a trustee holds office until he or she dies,
    resigns or ceases to be a member of the organization.

This section specifically acknowledges that the religious
    organizations constitution or resolutions can supersede elements of the
ROLA
, as the application judge held.

[71]

Further,
    art. 56 of the Bylaws cannot be separated from the context of the Bylaws as a
    whole, and the Congregations relationship to the Church and the Diocese. The Bylaws
    make this relationship clear: the powers of trustees under the
ROLA
with respect to the acquisition,
    disposition and mortgaging of land are clearly subject to the approval of the
    Diocese.
The application judge correctly
    concluded that the Temporary Trusteeship holds the Congregational properties in
    trust.
The duty of the trustees to hold the properties under the
    direction of the Temporary Trusteeship follows from s. 3 of the
ROLA, art. 29.9 of the Statute and arts. 41 and 56 of
    the Bylaws.

[72]

Regarding
    the replacement of the Executive Board with the Temporary Trusteeship, the
    application judge concluded,  that:

Those actions were not in conflict with section 3 of
ROLA
.
    The trustees have continued to exist but the entity directing them has been
    changed by the Bishop and diocesan authorities. As a result, I find no breach
    of provincial law and therefore no engagement of property, contract or other
    civil rights. (Para. 46)

[73]

The
    application judges conclusion was based on the evidence, and on his
    application of the applicable law to it; the appellants have identified no
    error in his consideration of the evidence or in his application of the law.

(4)

The American Neutral Principles of Law Doctrine

[74]

The
    appellants argue that the application judge erred by failing to apply a strict
    interpretation of the American NPL doctrine. Under this approach, they argue,
    he should have excluded from consideration virtually all of the Church,
    Diocesan and Congregational documents. They submit that this court adopted the
    NPL doctrine in
Balkou v. Gouleff
,
    68 O.R. (2d) 574,
[1989] O.J. No. 655, (C.A.), and in
Montréal
    and Canadian Diocese of the Russian Orthodox Church Outside of Russia Inc. v.
    Protection of the Holy Virgin Russian Orthodox Church (Outside of Russia) in
    Ottawa, Inc.
, 167 O.A.C. 138,
[2002] O.J. No. 4698 (C.A.), leave to appeal refused [2003] SCCA No. 285.

[75]

Although
    I do not agree that this court has adopted the NPL doctrine as the mandatory
    approach to all church property disputes, the trial judge effectively took the
    approach required by it. The appellants argument thus loses much of its force.

(a)

Description of the American Neutral Principles of Law Doctrine

[76]

The
    NPL doctrine reflects ongoing tension in American courts about how to reconcile
    the obligation to adjudicate church property disputes with the constitutional
    limits imposed by the First Amendment anti-establishment clause.

[77]

The
    doctrine was adopted by a slim majority of the U.S. Supreme Court in
Jones
    v. Wolf
, 443 U.S. 595 (1979). Under the NPL approach, a court must analyze
    deeds and other documents detailing entitled to church property in a
    completely secular manner, relying exclusively on objective,
    well-established concepts of trust and property law. (pp. 611-612. Internal
    citations omitted.)

[78]

The
    appellants submissions misunderstand the role of the NPL doctrine in American
    jurisprudence.
[1]
Significantly, the majority in
Jones v. Wolf
did not hold that the application
    of the NPL doctrine is mandatory in all cases: it remains open to states to
    apply the traditional approaches of polity deference or abstention (p. 602).
[2]
Further, the majority contemplated consideration of the provisions in the
    constitution of the general church to determine who controlled the property
    (p. 603). It is thus clear that the NPL doctrine does not preclude courts
    from examining a variety of internal church documents at both the
    congregational and hierarchical levels.
[3]


(b)

Application of the NPL Doctrine to the Decision Below

[79]

Contrary
    to the appellants argument, when the NPL doctrine is viewed in its full scope,
    it is clear that the application judges decision is consistent with both this
    courts usual approach and the neutral principles approach. The application
    judge examined the ROLA, and the range of documents relevant to the terms of
    the trust affecting the congregational properties, and to the issue of how
    trustees should be appointed, including the deeds, the Statute, the resolutions
    of the Diocese made pursuant to this Statute, and the terms of the Temporary
    Trusteeship. He concluded that the Diocese had the administrative authority to replace
    the Executive Board with the Temporary Trusteeship. In so finding, he did not
    determine any doctrinal issues but rather followed the process outlined in
Jones
    v. Wolf
.


(c)

The Neutral Principles of Law Doctrine in the Ontario Court of Appeal

[80]

The
    appellants assert that this court adopted the NPL doctrine as a binding
    approach to property disputes within religious organizations in
Balkou
and
Holy Virgin
. I disagree.

[81]

Balkou
involved a schism in the Russian Orthodox Church outside of Russia. Although
    the court cited
Jones v. Wolf
, it did so not in reference to the
    property dispute, but with respect to the trial judges declaration that the
    parish fell under the jurisdiction of one church and not another, and that
    consequently the parish priest had no right to officiate as a priest. As for
    the property dispute in
Balkou
, the court relied on
Wodell v. Potter
rather
    than on the NPL doctrine. Since the endorsement in
Balkou
did not apply
Jones
    v. Wolf
to the property issues in that case, it should not be interpreted
    as adopting the NPL approach for application in all church property disputes.


[82]

Holy
    Virgin
also involved a church property dispute that was rooted in a doctrinal
    schism over whether the congregation could withdraw from the Russian Orthodox
    Church Outside of Russia. The trial judge specifically adverted to
Balkou
and to
Jones v. Wolf
. See
[2001] O.J. No. 438 (S.C.), at para. 42.

[83]

On
    appeal, this court concluded, at para. 7, that because the parties' dispute
    over the validity of the proposed amendments  is at heart a religious dispute,
    under the neutral principles approach affirmed by the Supreme Court of
    Canada, the court has no role to play. I have been unable to find a case in
    which the Supreme Court of Canada has affirmed the NPL doctrine, and infer that
    this court was referring to and relying on the 1940 Supreme Court case of
Ukrainian
    Greek Orthodox Church v. Trustees of Ukrainian Greek Orthodox Cathedral
,
    which had been cited in argument. The NPL doctrine was not adopted in the
    United States until about thirty years later.

[84]

On
    close examination, it is evident that NPL doctrine did not determine the outcome
    of the property issues in either
Balkou
or
Holy Virgin
. Both were
    short endorsements, not full decisions, and must be interpreted in light of
    this courts statement in
R. v. Singh
2014 ONCA 293
,
that care
    must be taken to avoid reading unwarranted jurisprudential principles into a
    decision of the court rendered in an endorsement. (para. 12)

[85]

Finally,
    it is important to keep in mind that the NPL doctrine is rooted in the First
    Amendment of the American Constitution. In light of Chief Justice Dicksons
    observations in
R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, at
    paras. 105 and 109, that American constitutional law is not particularly
    helpful since the Canadian Constitution does not contain an anti-establishment
    principle analogous to the American First Amendment, it would be a significant
    jurisprudential step for a Canadian court to adopt the NPL doctrine
    holus-bolus. I conclude that this did not occur in
Balkou
or
Holy
    Virgin
. I note that in Bentley, the B.C. Court of Appeal declined to adopt
    the neutral principles approach (para. 55).

(d)

Concluding Observations on NPL Doctrine

[86]

In
    the absence of the anti-establishment concerns that exist under the American
    constitution, Canadian courts have not hesitated to interpret religious
    documents that involve doctrinal matters when adjudicating church property
    cases. This courts reference to the NPL doctrine in
Balkou
and
Holy
    Virgin
did not overrule this established approach.
The issues and
    evidence before the application judge necessitated consideration of internal
    church documents. It was not an error for him to take these documents into
    account in reaching his decision.

G.

Disposition

[87]

The
    appeal is dismissed with costs fixed at $15,000 all-inclusive.

Released:  October 17, 2014  DD

P.
    Lauwers J.A.

I
    agree D. Doherty J.A.

I
    agree G. R. Strathy J.A.





[1]
The current state of American law permits courts to take one of three
    approaches in disputes about church property. The first is known as polity
    deference, the second is the NPL doctrine, and the third is simple abstention
    from deciding. See generally Esau, and Professor Kent Greenawalt, Hands Off!
    Civil Court Involvement in Conflicts over Religious Property (1998) 98 Colum.
    L. Rev. 1843.



[2]
Blackmun J. noted a State may adopt any one of various approaches for settling
    church property disputes so long as it involves no consideration of doctrinal
    matters, whether the ritual and liturgy of worship or the tenets of faith (p.
    602). Further, any rule of majority representation can always be overcome,
    under the neutral-principles approach, either by providing, in the corporate
    charter or the constitution of the general church, that the identity of the
    local church is to be established in some other way, or by providing that the
    church property is held in trust for the general church and those who remain
    loyal to it. Indeed, the State may adopt any method of overcoming the
    majoritarian presumption, so long as the use of that method does not impair
    free-exercise rights or entangle the civil courts in matters of religious
    controversy. (pp. 607-608)



[3]
Professor Greenawalt notes, at p. 1887, that not only is such inquiry
    permitted, in determining questions of who forms the true congregation of a
    church, examination of these documents may be required.


