Response to Renfrew Presbytery 19/02/08
appended request 18/09/07

within the context of
considering motion(s) related to any matter involving congregation property per bylaw sections 267 and 335 where a congregation is not leaving;
where
the Judicial Committee Executive decision denied status to appeal arguing congregation properties are only directly affected if the congregation is leaving;
by refusing to consider my request re the injustice of that decision presbytery is also complicit with the Judicial Committee Executive decision;
presbytery may not contravene decision arguing property is not directly affected, especially decision it is complicit with, and then continue to treat the same property as directly affected by requiring presbytery sanction.

Or simply, the church can't make decision arguing property is not directly affected and then continue to treat the same property as directly affected.

I rise on a point of order.

APPENDIX III
THE RULES OF DEBATE AND ORDER
2. Questions of Privilege and Order
(a) A point of order may be raised while a matter is pending or while another member has the floor. When a point of order is raised it must be dealt with by the Presiding Officer without debate. If a member has the floor when a point of order is raised by another member, that member must yield the floor until the Presiding Officer has made a ruling.

The motion before presbytery is ultra vires per
. appendix iii 7 (c)

7. Procedure on Voting
(c) An affirmative vote on a motion does not validate any motion that is ultra vires of the Court, or that contravenes a decision of a higher Court.

The Judicial Committee Executive, acting on behalf of the General Council, having made Decision which relies on interpretation of the minutes that congregation property is only directly affected if the congregation is leaving, referencing a class of congregations whose property is interpreted as held under the Trusts of Model Deed and thereby applicable to all properties held under the Trusts of Model Deed, precludes requirement for presbytery sanction related to any matter involving congregation property per bylaw sections 267 and 335 where a congregation is not leaving.

The presbytery may not contravene a decision of a higher Court.

. estoppel

- being precluded from a course of action by one's own previous behaviour; [The Concise Oxford Dictionary]
- an impediment or bar to a right of action arising from a man's own act, or where he is forbidden by law to speak against his own deed; [The Shorter Oxford English Dictionary]

Renfrew Presbytery, having made Decision not to hear my request with respect to the justice of using "not directly affected by the ruling" in dismissing Appeal of Ruling 06-009-R, may not act inconsistently by considering motion(s) which relate to a class of congregation properties interpreted as held under the Trusts of Model Deed where the congregation is not leaving as now being directly affected.

DEFINITIONS
001 In these By-Laws:
"Decision" means any disposition of a matter by a Court, or by a body authorized to act on behalf of the Court.
__________

General Council 2003
Appeal Deficiencies

NB6 assigned to Commission B
Whereas justice is an integral part of our church, and
Whereas only a decision by a formal hearing/court or ruling by the General Secretary may be appealed, and
Whereas a decision "means any disposition of a matter by a Court, or by a body authorized to act on behalf of the Court, by motion", and
Whereas often minutes are not available to the appellant and by default the appeal fails to meet the grounds for an appeal, and
Whereas refusal of a court to make decision is not appealable, and
Whereas within the courts improper use of ruling as a decision is not appealable to another court, and
Whereas an appeal may be dismissed arbitrarily by citing the appellant is not eligible to appeal

Therefore be it resolved that the Manual Committee address deficiencies in the appeal process.
[Record of Proceedings 2003, pp. 55, 186]

APPEAL PROCESS - NB6
Motion: Mary-Beth Moriarity/Richard Bott
That the 38^th General Council adopt New Business 6 that The Manual Committee address deficiencies in the appeal process.
Carried
[Record of Proceedings 2003, p. 94]

The motion(s) before presbytery is therefore ultra vires the presbytery.

Karen McLean
Secretary
Renfrew Presbytery
79 Wilson W
Perth, Ontario
K7H 2N7

Karen

re request the support of Renfrew Presbytery with respect to the justice of using "not directly affected by the ruling" in dismissing Appeal of Ruling 06-009-R

appended
Judicial Committee Executive Decision
Judicial Committee Executive minutes 27/11/06
     Appeal of Ruling 06-009-R

I request the support of Renfrew Presbytery with respect to formally questioning the justice of using "not directly affected by the ruling" in dismissing Appeal of Ruling 06-009-R [similar request was made to the former chair of presbytery 18/12/06 and with faxes to presbytery 15/01/07 {not received}, 10/04/07, and 28/08/07]:

The Executive reached the conclusion that you are not directly affected by the ruling and, as a result, have no status to appeal it.

Ruling 06-009-R is about the static disposition of certain properties, whether those properties are held under the provisions of section 5.3 or section 5.4 of the basis

it is therefore my ruling that the property of congregations that were formerly Presbyterian (other than in Alberta and Saskatchewan) are governed by the provisions of 5.3 of the Basis, as more particularly outlined in paragraph 266(a) of the by-laws;

"...the situation raised by Reverend Anderson" is about the static disposition of certain properties, whether legally those properties are held under the provisions of section 5.3 of the basis

I request the Judicial Committee make decision

i. bylaw section 266(a) is incompetent as authority for interpreting "whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation";

ii. the ruling, lacking authority for interpreting "whether the denomination of which that congregation formed part (Congregational, Methodist or Presbyterian) had any interest in the property of the congregation", must declare properties of former congregations of the Presbyterian Church in Canada, which as negotiating congregations entered the Union of 1925 and took the name of The United Church of Canada are held under the provisions of section 5.4 of the Basis of Union;

until such time as the General Council specifically lawfully reconsiders bylaw section 266(a) and obtains the approval of Conference(s).

Further
 i. as the deficiencies of bylaw section 266(a), formerly 261(b), 112(b), 77(a), 78(a), 34(a), have been recited from an early date so as to be constructive to the thought, interpretation, directives, and history of the church; and
 ii. as the General Council was aware of those deficiencies or ought to have been aware of those deficiencies as respondent to Aird v. Johnson [1929] 4 D.L.R 664 and Ferguson v. MacLean 1930 S.C.R. 630; and
 iii. as the Judicial Committee ruling was interpreted without qualification "no basic changes in the Manual could be made without action of the General Council" [1977 rop p646, 1976 year book pp9, 12, 13];
if the General Council should contemplate any bylaw with similar intent as that argued against by the appeal and seek the approval of Conference(s), "the imperative of justice, which, as a measure of faithfulness, must not only be done but also be seen to be done" [Manual 065(b)] requires the church to "be seen", particularly as to the above deficiencies being constructive to the thought, interpretation, directives, and history of the church, as part of any such reconsideration;

without the ruling or appeal making any reference to "leaving"; and

the Trusts of Model Deed gives settled order of ministry status of being directly affected by a matter relating to property

the minister of such congregation shall have the right to preside as Chairman at all meetings of the Trustees... [Appendix ii, 8; bylaw section 261]; and

policy documents of the United Church of Canada caution trustees of personal liability if they are negligent with respect to insurance [cf. Congregational Board of Trustees Handbook 2004 p. 30, Financial Handbook for Congregations 2006 p. 116], the Insurance Act of Ontario reading

the insurer is not liable for loss or damage to property owned by any person other than the insured, unless the interest of the insured therein is stated in the contract; and

appeal deficiencies passed by the 38th General Council specifically include "an appeal may be dismissed arbitrarily by citing the appellant is not eligible to appeal" with requirement that the deficiency be addressed [rop 2003 pp. 55, 94, 186, 815]; and where

no other party, including conference(s) for which cc was delayed, was made aware of the ruling within the time required to appeal [cf. as of 14/06/07 the Executive Secretary of Bay of Quinte Conference had not received formal notification of the ruling];

leave question of the justice of using "not directly affected by the ruling" to dismiss hearing the appeal.

As the rights and responsibilities of settled order of ministry are "directly affected" by matters relating to property and no other party was made aware of the ruling within the time required to appeal, the support of Renfrew Presbytery is requested with respect to formally questioning the justice of using "not directly affected by the ruling" in dismissing Appeal of Ruling 06-009-R.

Don Anderson

December 11, 2006

Don Anderson
R. R. #6
71 Blackburn Road
Renfrew, Ontario
K7V 3Z9

Dear Reverend Anderson:

Re: Appeal from General Secretary's Ruling 06-009-R

Your appeal from the General Secretary's Ruling was considered by the Judicial Committee Executive at its meeting last Monday, November 27, 2006.

The Executive considered section 076(a) which requires that "An Appeal may be made only by a person or a Court directly affected by the Decision or ruling," The Executive reached the conclusion that you are not directly affected by the ruling and, as a result, have no status to appeal it.

Yours sincerely,

Charles Huband
Acting Chair
Judicial Committee Executive

Cc: Jim Sinclair, General Secretary, General Council

5. Anderson appeal from General Secretary's Ruling 06-009-R

Acting Chair Austin withdrew as did John Hamilton and the General Secretary, Jim Sinclair. Charles Huband assumed the Chair for this portion of the meeting.

The discussion commenced around the issue of standing to bring the appeal. The Executive sought and received clarification that there is not at the present time a congregation which is in the situation raised by Reverend Anderson. The Executive agreed that if a congregation might fall within the exception to section 266(a) it might make the argument which is raised in the appeal.

Motion: Green/Gaudin that since Reverend Anderson is not directly affected he has no status to proceed with the appeal of this Ruling.
CARRIED

6. Adjournment

Motion: there being no other business, the meeting of the Judicial Committee Executive be adjourned.
CARRIED

Charles Huband, Chair
Kathy McDonald, Secretary