to unidentified recipient(s)
re attached
Not trying to resurrect the property appeal, it is history, but despite
the United Church of Canada walking away there remains:
i. the only Manual authorized person is precluded from interpreting
United Church of Canada v. Anderson as authority per "...based on
my interpretation of church polity as set out in The Manual" and "...matters
of civil law are beyond my role as General Secretary";
ii. the United Church of Canada is precluded from disputing the static
disposition of property having similarly refused status to appeal;
iii. the deficiencies of bylaw section 266(a), formerly 261(b), 112(b),
77(a), 78(a), 34(a), recited from an early date so as to be constructive
to the thought, interpretation, directives, and history of the church were
not dismissed; |
and "that important issues
are raised by the appeal" as expressed by the judicial committee
executive were apparently just words without intent...
The appeal was like [hesitant about using analogies as the appeal was
seen as neither a chess game nor a poker game by myself]
i. a chess game in which the United Church of Canada made expedient
moves without consideration of how those moves might affect it in the future;
and
ii. a poker game in which bylaw section 076 (v) implied all personal assets
including my house were on the table, but having played poorly and lost
the United Church of Canada is now simply walking away; |
leaving me with question of the integrity of this church.
I believe the basis for what each of us does is trying to honor God,
or a different way of expressing that is "...whatever does not proceed
from faith is sin" [ROM 14:23b]. In the context
that follows two things are evident:
i. the perfect church has a membership of one -- and even within it
there exists some conflict [biblically think the word is "sin"];
and
ii. the reality is not everyone honors God the same way; |
so if corporately we are to honor God one of the things we need to learn
is "how to play together in the same sandbox".
"Is it acceptable as a christian
to coerce?"
The property appeal was about using property to coerce - "the vesting
of property should not be used as an instrument of power in relating with
the congregations" - and went to the extent of appeal only because
the abuse was repetitively denied with less formal process [similar to
dealing with denial in an abusive marriage].
Cynthia's response to my e-mail, though expressing interest if presbytery
uses authority improperly, avoids both
i. coercion is initiated by general council and presbytery is only
the henchman to enforce its policies;
effectively denying
| taking Dover Centre to the civil court and seizing properties were
primarily to intimidate other dissenting congregations [where previously
offer to purchase the properties had been made and afterwards two of the
properties were immediately sold back to the congregations for a modest
seventy thousand dollars];
using property to silence legitimate dissent, with questions of property
keeping congregations within the denomination and in line with the church's
policies:
- ignoring "the freedom of worship at present enjoyed in the negotiating
Churches shall not be interfered with in the United Church" [basis
8.6.2 (1) (c)] with mandatory inclusive hiring policies including threat
of legal reprisal and using property as a non-escape clause;
- ignoring "in the management of their local affairs the various churches,
charges, circuits or congregations of the negotiating Churches shall be
entitled to continue the organization and practices...enjoyed by them at
the time of the union" [basis 5.1] by requiring participation in the
centralized payroll system [with statement "at
this point, any concern about the General Council's authority is a moot
issue"] and using property as a non-escape clause;
- ignoring "it shall be
the duty of the session to have the oversight of...the order of public
worship, including the service of praise and the use of the church edifice"
[basis 5.10.1 (5)] [until remit otherwise] and "the freedom of worship
at present enjoyed in the negotiating Churches shall not be interfered
with in the United Church" [basis 8.6.2 (1) (c)] with statements and
policies trespassing the constitutional prerogative of sessions - most
recently requiring congregations move towards inclusivity invigilated by
each triennial review [though advised of question of constitutionality]
- and using property as a non-escape clause; and
- the policies and public statements of general council respecting human
sexuality have left congregations with questionable defense
before the human rights commission while using property as a non-escape
clause;
where congregations feel the abuse of property as "if you don't
like it you can leave, but you leave your church behind"; and
|
|
ii. statements made for specific ends in the ruling and refusal of status
to appeal as subsequently binding on the United Church of Canada;
estoppel
"... a rule of evidence which precludes a person from denying the
truth of some statement previously made by himself";
the only Manual authorized person is precluded from interpreting
United Church of Canada v. Anderson as authority per "...based on
my interpretation of church polity as set out in The Manual" and "...matters
of civil law are beyond my role as General Secretary":
- prerequisite for inclusion in the Manual is approval by the general
council or, alternatively before 1976 by the executive of general council,
where bylaw 266 (a) used as the only authority for ruling 06-009-R was
last approved in 1968 and could not have considered a court decision which
was delivered in 1991; and
"matters of civil law are beyond my role as General Secretary"
[ruling 06-009-R] was used
to avoid considering the Supreme Court of Ontario and Supreme Court of
Canada decisions as they might apply to the United Church of Canada and
to the request for ruling:
- the only Manual authorized person disqualified the general secretary
and hence the United Church of Canada from interpreting civil law;
where the above response ignores estopple as subsequently binding on
the United Church of Canada by continuing to interpret civil law:
"consistent with the civil law as established in the Dover Centre
case"; and
"...our official understanding...of...law relating to congregational
property";
the United Church of Canada is precluded from disputing the static disposition
of property [whether property is held under the provisions of section 5.3
or 5.4 of the basis] having similarly refused status to appeal, where property
is not directly affected by
static disposition;
question of static disposition being ultra vires;
the future implications of static disposition; |
the United Church of Canada is then not directly affected if congregations
of the former Presbyterian Church in Canada simply choose to hold property
under the provisions of section 5.4 of the basis
| "Any property or funds owned by a church, charge, circuit or
congregation at the time of the union solely for its own benefit, or vested
in trustees for the sole benefit of such church, charge, circuit or congregation,
and not for the denomination of which the said church, charge, circuit
or congregation formed a part, shall not be affected by the legislation
giving effect to the union or by any legislation of The United Church without
the consent of the church, charge, circuit or congregation for which such
property is held in trust." |
based on interpretation "...for the sole use and benefit of
the said congregation" in the Model Trust Deeds used by the Presbyterian
Church in Canada [Rules AND Forms of Procedure IN
THE CHURCH COURTS OF THE PRESBYTERIAN CHURCH IN CANADA, Toronto,
The Westminister Co., Limited 1909, pp. 128, 130, 132, 138], where
- section 5.4 of the basis is the interpretation passed by those who legislated
The United Church of Canada Act;
- section 5.4 of the basis relates to how the former Presbyterian Church
in Canada and not how the United Church of Canada interpreted property
"at the time of the union";
- the provision "shall not be affected by the legislation giving
effect to the union" removes real and personal property from the
United Church of Canada argument based on interpretation of The United
Church of Canada Act ["...and in which the denomination to which
such congregation belongs has no right or interest, reversionary or otherwise"
{articles 6 and 8 of the provincial and dominion acts respectively}]; and
- the provision "or by any legislation of The United Church"
removes real and personal property from any Manual requirement or
ruling;
where the above response ignores estopple as subsequently binding on
the United Church of Canada by continuing to cite the ruling:
"the original ruling [06-009-R] still stands as the General Secretary's
interpretation of polity"; and
"...our official understanding...of policy...relating to congregational
property";
|
or as concluded, "decisions
are two edged swords, cutting both ways, leaving the question of property
with different rules than those of appeal ...straightforward and quite
simple";
|
|
where the obvious avoidance questions further conversation.
The problem is not whether dissent exists, but rather how we deal with
it.
The property appeal was not about leaving, though it considered the
possibility of leaving might be required to initiate learning a different
way to deal with controversial issues... that the valuing of individual
church members - what the reformation understood as the 'priesthood of
all believers' - and simple justice require dialogue without intimidation.
Otherwise the disaffection experienced in the last two decades will find
us increasingly in separate sandboxes practising functional congregationalism.
--
Don Anderson
rev@magma.ca
http://www.axz.ca/
Subject: RE: appeal
From: "Gunn, Cynthia" <cgunn@united-church.ca>
Date: Wed, 26 Aug 2009 09:12:55 -0400
To: <rev@magma.ca>, "Sanders, Nora" <nsanders@united-church.ca>
CC: "McDonald, Kathy" <kmcdonal@united-church.ca>, "John
H. Young" <john.young@queensu.ca>, "Bulloch, Wendy - Bay
of Quinte" <execsec@bayofquinteconference.ca>, "Karen McLean"
<mclean79@sympatico.ca>, "Bronwen Harman" <bharman@horizontech.ca>
Hello Don,
You asked "where do we go from here" in relation to this matter,
and I am responding on Nora's behalf.
In terms of church court processes, there is no further action that
can be taken with respect to the General Secretary's ruling on the property
issue. The General Council's decision on the review of the Judicial Committee's
decision was the last step in that process.
The original ruling [06-009-R] still stands as the General Secretary's
interpretation of polity. It is consistent with the civil law as established
in the Dover Centre case.
I understand that you disagree with both the ruling and the civil court's
decision in the Dover Centre case, but they are our official understandings
of policy and law relating to congregational property.
I also know of your concern that Presbyteries will use their authority
in relation to property to intimidate congregations. To be frank, this
does not seem to be a concern currently shared by others in the church,
as it has not been brought to our attention either informally or through
a proposal to the General Council except by you.
If a Presbytery acts improperly on a property matter, there is recourse.
Those directly affected by the decision may appeal it, or they may seek
to resolve the matter through the United Church's conflict resolution policy,
or they may launch a formal complaint, or the Conference may initiate action
under its oversight of Presbyteries.
Don, I know that this is an area of church life about which you care
passionately. If you become aware of a situation where Presbytery is using
authority improperly, I invite you to bring it to my attention personally.
While I could not intervene, I would be interested to learn how these various
church court processes play out in the situation. In my experience, they
work well to hold church courts accountable to due process and fairness
in their decision-making, even if those involved do not agree with the
decisions themselves.
All the best,
Cynthia
Cynthia Gunn
Legal/Judicial Counsel
The United Church of Canada
From: Don Anderson [mailto:rev@magma.ca]
Sent: Monday, August 17, 2009 10:47 AM
To: Sanders, Nora
Cc: Gunn, Cynthia; McDonald, Kathy; John H. Young; Bulloch, Wendy - Bay
of Quinte; Karen McLean; Bronwen Harman
Subject: appeal
71 Blackburn Road RR6
Renfrew, Ontario
K7V 3Z9
613-433-8227
rev@magma.ca
August 17, 2009
Nora Sanders
General Secretary
The United Church of Canada
3250 Bloor Street West
Toronto, Ontario
M8X 2Y4
Nora
re http://www.axz.ca/vesting.htm
The General Council by refusing status to appeal has exhausted the procedural
means available to me within the church to address "the vesting of
property should not be used as an instrument of power in relating with
the congregations", including
. informal dialogue since 1998;
. a friendly abstract petition in 2003;
. a non-abstract proposal requesting apology in 2006;
. request for alternative means to ruling in 2006;
. request for ruling followed with definitive legal appeal and request
for review in 2006; and
. offer to withdraw my appeal in 2007 if without reference to who owns
property the United Church of Canada either apologized to Dover Centre
or alternatively disavowed and repudiated the use of property to intimidate.
So while there is basis for
Ruling 06-009-R
i. estoppel
"... a rule of evidence which precludes a person from denying the
truth of some statement previously made by himself";
precludes the only Manual authorized person from interpreting
United Church of Canada v. Anderson as authority per "...based on
my interpretation of church polity as set out in The Manual" and "...matters
of civil law are beyond my role as General Secretary";
|
|
Review
ii. estoppel
"... a rule of evidence which precludes a person from denying the
truth of some statement previously made by himself";
properties of former congregations of the Presbyterian Church in Canada
were held "for the sole use and benefit of the said congregation"
at the time of union [Rules AND Forms of Procedure
IN THE CHURCH COURTS OF THE PRESBYTERIAN CHURCH IN CANADA,
Toronto, The Westminister Co., Limited 1909, pp. 128, 130, 132, 138] and
may thereafter be held under the provisions of section 5.4 of the basis
without dispute by the United Church of Canada which is not directly affected
simply by reason of the static disposition of property; and
|
iii. the deficiencies of bylaw section 266(a), formerly 261(b), 112(b),
77(a), 78(a), 34(a), recited from an early date so as to be constructive
to the thought, interpretation, directives, and history of the church were
not dismissed;
|
|
preferred is recognition "that
important issues are raised by the appeal" as expressed by the
Judicial Committee Executive, though not within my rights to initiate.
Where do we go from here?
--
Don Anderson
rev@magma.ca
http://www.axz.ca/