A British Columbia Supreme Court justice on May 28 ruled that a group of dissident parishioners at Victoria’s St. Mary of the Incarnation, Metchosin, diocese of British Columbia, may not have exclusive use of the church building while the question of ownership is being decided.
“To grant the injunction and vest control of the church property in those who have elected to leave the jurisdiction of the Anglican Church of Canada … would strike a blow to the authority of the bishop of the diocese … and pose a serious threat to the hierarchical structure of the Anglican Church of Canada,” wrote Justice Marion J. Allan. “It would accelerate the schism by adding legal complexity to the theological debate.”
Commenting on the decision, Bishop James Cowan noted that, “we are deemed to be the owners of the property,” but declined further comment. In her decision, Justice Allan said legal ownership is “clearly vested in the diocese.”
Beneficial ownership – whether the property is held in trust for the congregation, diocese or national church – “is indeed an issue for future determination,” wrote the judge. Cheryl Chang, legal counsel for the Anglican Network in Canada, a breakaway group that includes St. Mary, said in an interview that legal title does not necessarily reflect who has beneficial ownership.
In February, the congregation voted to split from the Canadian church over theological disagreements including the blessing of same-sex unions, and align with the Anglican Province of the Southern Cone in southern South America. The vast majority of the congregation voted to leave, with 105 votes in favour, 14 opposed, and three abstentions.
The dissidents were using one of two church buildings at St. Mary’s, a 1991 building called the “new church” in the justice’s decision, and loyalists to the diocese were using an older, much smaller building called the “heritage church.”
After attempts at mediation failed in March, Bishop Cowan on April 4 had the locks changed at the new church. The next day, the dissidents filed suit, asking the court to prevent the diocese “from interfering with the plaintiffs and the other parishioners they represent in respect of their continued access to and exclusive use, occupation and enjoyment of (the new church).”
After Justice Allan’s decision, the network released a statement saying that it “will cause hardship to the congregation, as they will be forced to find alternate accommodations for Sunday services.”
The justice noted that the diocese said the network group “will be welcome to attend the new church for services and other activities and that no one will ever be denied communion.” She also wrote that Bishop Cowan “is currently looking for a conservative-minded priest to become the permanent incumbent,” but she also acknowledged that “it is unrealistic” that the group will agree, “particularly where the services are led by clergy selected by the bishop.”
The network group’s statement bore out her view. It quoted a spokesman for St. Mary’s, layperson Bud Boomer, as saying “We are being asked to hand (the church building) over to the Anglican Church of Canada, which in our view and the view of the majority of global Anglicans, has left Anglicanism and abandoned the historic faith once delivered to the saints.”
Rev. Andrew Hewlett, one of the two priests who filed the suit, along with a lay member of the congregation, referred to the small number of persons at St. Mary’s who are loyal to the diocese. “We are saddened that our ministries will be disrupted as we try to find accommodations for worship and mission while we know one building will sit empty and another will be under-utilized,” he said in the statement.
Justice Allan referred to a recent decision in Ontario Superior Court, which held that the Anglican diocese of Niagara, based in Hamilton, Ont., must have access to church buildings housing breakaway congregations until issues of ownership are decided.
