Bentley v Anglican Synod of the Diocese of New Westminster

The action was brought in two combined suits, the plaintiffs being 22 clergy and lay members of four parishes, the defendants being the diocesan synod and Bishop of New Westminster in Canada. The parishes concerned had sought to leave the diocese after the decision of the diocesan synod and bishop to approve a rite for the blessing of same-sex unions. The parishes concerned voted in congregational meetings to ally themselves with the Anglican Network in Canada (ANiC), a grouping of conservative parishes, and to accept episcopal oversight from the Archbishop of the Province of the Southern Cone in South America. The bishop started a canonical process to depose the clergy (who had voluntarily resigned their licences) and invoked a canonical provision to remove lay officers from two of the parishes. The dispute centred on property issues. The bishop held that as the clergy had ceased to be ministers of the Anglican Church of Canada their continued use of the buildings was not lawful. The plaintiffs argued that ‘first, the parish properties are held on trust; second, the terms of the trust require that parish ministry and liturgy be consistent with historic, orthodox Anglican doctrine and practice in full communion with the worldwide Church; third, the bishop's actions had made performance of the trust impracticable; and fourth, the court should therefore order a cy-près scheme directing modification of the terms of the trust.’ The judge concluded that it was not necessary to analyse the purposes of the trust in which the buildings were held as the claim failed on legal principles. The diocese and parish corporations are incorporated under the terms of the Act to Incorporate the Anglican Synod of the Diocese of New Westminster 1893. This makes major decisions within a parish corporation subject to the consent of the diocese's executive committee and bishop. A parish does not have the right unilaterally to leave the diocese. Consent not forthcoming, the property remains in the hands of the diocese. The judge dismissed the larger part of the claims of the plaintiffs but ruled that the bishop's removal of parish trustees and appointment of others was illegal. In a separate part of the judgment, the judge ruled that a cy-près scheme be established to fulfil the charitable intent of one significant recent bequest made to help build up the church that served the Chinese community, which was now part of ANiC. Thus the charitable intent of the bequest would be best met by its application to the ANiC congregation. Reference was made in the judgment to the Principles of Canon Law Common to the Churches of the Anglican Communion published by the Anglican Communion Office in 2008. [WA]