Ownership ‘clearly vested in the diocese’

Published September 1, 2008

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.”


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