RELIGIOUS INSTITUTIONS AND THE LAW IN ONTARIO: AN HISTORICAL STUDY OF THE LAWS ENABLING RELIGIOUS ORGANIZATIONS TO HOLD LAND

A .H. Oosterhoff*

I. INTRODUCTION

In 1979 the new Religious Organizations' Lands Act' was passed. It is the latest Ontario statute in a long series of enactments dating back 150 years which enable religious institutions to hold land for their purposes. The Act does not present a break with the past. Rather, it extends the privileges theretofore enjoyed solely by Christian and Jewish religious institutions to all legitimate religious organizations. Its major purpose is to make the law more attuned to today's pluralistic society in which there are numerous religious groups, many of which have been established in this province since the Second World War, which do not stand in the Judaeo-Christian tradition. It is significant that the Act provides a non-exclusive list of organizations that may take advantage of it:2 l'histoire se r;pi'te. The first statute respecting religious institutions also contained a list of religious societies for whose benefit it was enacted.' However, while the 1979 Act lists what would appear to be virtually all religious persuasions presently represented in this province, there are significant gaps in the list contained in the 1828 Act. Specifically, the Church of England and the Church of Rome were omitted from that list. Both were subsequently

* Faculty of Law. University of Western Ontario S.O. 1979, c. 45: now R.S.O. 1980. c. 448. The Act is based on the Ontario Law Reform Commission's REPORT ON MORTMAIN. CHARITABIE Usis AND RELtGIOUS INSTITUTIONS (H. Leal. Chairman 1969) [hereafter cited as OLRC RI-PORT]. The author of this article was engaged by the Commission as Director of the Reference. This article is based in part on research conducted for the Report. However. the opinions now expressed are the author's, and not necessarily those of the Commission. 2 As listed in s. 1(1)(b). these organizations are: Buddhist. Christian. Hindu, Islamic. Jewish. Baha'i. Longhouse Indian. Sikh. Unitarian and Zoroastrian. In order to take advantage of the Act these organizations must satisfy certain additional criteria. namely. they must be charitable, organized for the advancement of religion and the conduct of religious worship. and be permanently established both as to the continuity of their existence and as to their religious beliefs, rituals and practice. The Commission did not recommend that such a list be included: OLRC REPORT. It . Appendix A (Draft Bill). at 63. 1 Religious Societies Relief Act. S.U.C. 1828. c. 2. Ottawa Law Review [ Vol. 13:3

added in one form or another, but their initial omission provides one of the clues to the need for the statute. In order to understand why the legislation was necessary, one must have regard to the historical relationship between church and state, the political and religious climate of the time and the subsequent history of the legislation. This article is concerned primarily with the situation in Ontario, but since conditions were similar in other jurisdictions references will be made to the law of the other provinces and the United States.

II. HISTORICAL BACKGROUND

A. CorporateCapacity

The Preamble of the 1828 Act recited that religious societies of several named denominations of Christians had experienced difficulty in holding title to land for their purposes because they were not corporate bodies. To remedy this disability it enabled them to hold land by means of trustees who, with their successors, were constituted a quasi- corporation for this purpose. 4 It is apparent from the Act that a church, congregation or other religious body was not a juristic entity. It was merely a voluntary association of persons and, as such, incapable of holding land or of bringing or defending actions in its collective name. In this respect a religious organization was no different from any other unincorporated association. All such bodies had the same disabilities, 5 unless a special capacity was conferred upon them by statute.' In order for a religious organization to be able to hold land, therefore, it either had to be incorporated, hold the land by means of trustees, or have a special status conferred upon it by the state. For a body which may be expected to exist in perpetuity, such as a church, it was inconvenient and expensive to have its land held by trustees. Whenever one or more of the trustees died, became incapacitated or moved away or, it may be, ceased to be a member of the church, it was

4 S. I. See, e.g., Flemyng v. Hector, 12 M. & W. 172, at 179, 187, 150 E.R. 716, at 719, 723 (Ex. 1836); Re St. James Club, 2 De G.M. & G. 383, at 388, 42 E.R. 920, at 922 (Ch. 1852); Kingston v. Salvation Army, 6 O.L.R. 406, at 410 (K.B. 1903), aff d 7 O.L.R. 681 (Div'l Ct. 1904) (an unincorporated religious society cannot be sued); Canada Morning News Co. v. Thompson, [1930] S.C.R. 338, [1930] 3 D.L.R. 833 (an unincorporated association cannot take a lease); Henderson v. Toronto Gen. Trusts Corp., 62 O.L.R. 303, [1928] 3 D.L.R. 411 (C.A.). For commentary, see Williams, Some Developments of the Law Relating to Voluntary UnincorporatedAssociations, 6 CAN. B. REV. 16, at 19 (1928). 6 Such as trade unions: Taff Vale Ry. Co. v. Amalgamated Soc'y of Ry. Servants, [1901] A.C. 426, 70 L.J.K.B. 905 (H.L.); Metallic Roofing Co. of Canada v. Local Union No. 33, 5 O.L.R. 424 (C.A. 1903). 1981] Religious Institutionsand the Laws' in Ontario necessary to convey the land to newly appointed trustees. For this reason the legislature in 1828 chose to give the named religious organizations a special quasi-corporate status, or rather, it conferred that status upon the trustees appointed by them to hold their temporalities. The effect of the statute was to eliminate the need for new conveyances each time a new trustee was appointed and to permit the trustees to take title in a collective or corporate name and to sue and be sued in that name. It was not necessary in the earlier years of the Church to have this kind of enabling legislation. By the Edict of Milan of 313 AD and the later edict of 321, Constantine recognized the proprietary rights of the Christian Church and permitted the faithful to leave their property to the "holy and venerable congregation of the Catholic Church".' Thereafter the local congregations and later the Church universal were regarded as having juristic personalities. 8 Similarly, charitable foundations such as monasteries, alms houses and orphanages, controlled by the Church, were regarded as corporations. The idea of corporate personality derived from the Roman collegia and universitates, societies organized by trades and professions. The concept was sustained and nurtured by the canon law and was subsequently imported into England and continental Europe by the Church. Roman law via ecclesiastical law was, thus, the origin of the English ecclesiastical corporation. io The corporate idea found its first expression in England in the village church, represented by the parson. The latter was regarded as a corporation sole, which seems to be an exclusively English develop- ment.'1 Blackstone described him as follows:

A parson, persona ecclesiae. is one that hath full possession of all the rights of a parochial church. He is called parson, persona, because by his person the church. which is an invisible body is represented, and he is in himself a body corporate. in order to protect and defend the rights of the church (which he personates) by a perpetual succession.. The parson or rector owned the freehold in the church, church yard, parsonage house, the glebe and the tithes during his life and title passed automatically to his successor upon his death." : If the parish was endowed, that is, owned by another, the title would be vested in the parson by the owner as a temporal recompense for his spiritual care. This is the advowson. 14 Moreover. as often happened, if the title was

7 P. DUFF, PERSONALTY IN ROMAN PRIVATE LAVX173 t1938. 1971 repri.) s Id. at 175-77. 9 Id. at 177-79. 4 6 8 6 9 1o W. BLACKSTONE. I COMMENTARIES ON THE LAW OF ENGtAND - t15th ed. 1809. E. Christian ed.): W. HOLDSWORTH. III A HISTORY OF ENGLISH LAy. 470 t5th ed. 1942). 1, F. POLLOCK & F. MAITLAND. I THE HISTORY OI. ENGI isiI LAW BE-ORE, THE TIME OF EDWARD, Bk. 2, 502-03 (2nd ed. 1898). 12 W. BLACKSTONE. supra note 10. at 384. 13 Id. 14 Id. at 470. Ottawa Law Review [Vol. 13:3 appropriated, that is, annexed to a spiritual corporation such as a monastery, it became the perpetual parson of the church and it appointed a deputy or vicar to attend to the spiritual needs of the parish. '5 The corporate idea was later extended to the collegiate, abbatial and episcopal churches as well. The collegiate churches were corporations aggregate. However, the abbot and bishop were regarded as corporations 16 sole. In addition, churchwardens were regarded as being a kind of corporation at common law. They had title to the goods and chattels of the church and could bring and defend actions in respect of them. I It should be noted that while the recognition of a body as having a corporate identity derives from the state, the early church corporations were not thought of as having been created by the state because they had always been there. 8 Later ecclesiastical and lay corporations were thought to have derived their status by prescription, that is, by the king's presumed intent, since they existed for a "time whereof memory of men runneth not to the contrary". a Since early modern times, corporations could only be created by express consent of the state, either by letters patent, Act of Parliament 20 or, as is common today, under a general incorporation statute. 21

B. Mortnain

With the expansion of the religious corporations in England there arose a concern that much of the land in the realm was being taken out of commerce and being held in perpetuity in the dead hand. This concern led to the enactment of the early statutes known as the Statutes of Mortmain, the first of which was contained in Magna Carta. 22 These statutes forbade alienation to religious houses and, subsequently, to all corporations, ecclesiastical or lay, except under licence from the feudal lord and, later, the king.23 During the Reformation the religious houses were dissolved and their property was appropriated by the Crown.24 However, the idea of the Church as a corporate body, represented by its several officials, was not abolished. It was simply transferred to the new reformed church. On the

Id.I' at 384-85. 11Supra note 11, at 504-06. 17 W. BLACKSTONE, supra note 10, at 394. 18 Id. at 468-69. ,a Id. at 473. The City of London is given as an example. 20 Id. 21 Churches and other non-profit organizations may, e.g., be incorporated under Part III of the Corporations Act, R.S.O. 1980, c. 95. 22 Magna Carta, 1297, 25 Edw. 1, cc. 39, 43; re-enacted 9 Hen. 3, cc. 32, 36 (1225) and 25 Edw. 1,cc. 1 (1297). 23 Oosterhoff, The Law of Mortmain: An Historicaland ComparativeReview, 27 U. TORONTO L.J. 257, at 264 (1977). 2' For details of the several statutes, see L. SHELFORD, A PRACTICAL TREATISE OF THE LAW OF MORTMAIN AND CHARITABLE USES AND TRUSTS 19-21 (1836). 1981] Religious Institutions and the Law in Ontario other hand, the mortmain fear continued after the Reformation and was given new expression in the Charitable Uses Act,2: usually referred to as the Mortmain Act. This Act was not directed solely at corporations, but at charities whether incorporated or not. Its purpose, however, was the same, namely to prevent the tying-up of land in perpetuity.2' The Act prohibited devises of land to charities27 and severely restricted conveyances to charities or upon charitable trust. A con- veyance, charge or encumbrance of lands, or of personality to be laid out in the purchase of lands, upon trust for any charitable use, was declared to be void, unless it was by deed executed at least twelve months before the grantor's death, the deed was enrolled in the Court of Chancery within six months after its execution, and the conveyance took effect in possession forthwith without any power of revocation in the grantor, his successors and assigns. The Act applied to both gifts and purchases. The early Statutes of Mortmain as well as the Act of 1736 became part of the law of Ontario and had a restrictive effect on the power of religious institutions to hold land.

C. The EstablishedChurch

Another factor which inhibited the holding of land by religious organizations was the restrictions and disabilities imposed upon those who dissented from the Church of England as established during the Reformation, that is, the Nonconformists or Dissenters, both Protestant and Roman Catholic. They were required to attend the Church of England and to take prescribed oaths when seeking office by the Acts of Uniformity.28 Failure to do so rendered them liable to penalties. Subsequent statutes, commencing with the Toleration Act,2u removed most of these disabilities.3" The Church of England was established by law at the time the Canadas were settled by the British. This was so at common law, for the church was recognized as a separate estate under the protection of the state at common law and its rights and liberties were held to be inviolable

25 9Geo. 2. c. 36(1735). 26 See Luckraft v. Pridham. [18771 6 Ch. D. 205. at 214, 37 L.T. 204, at 204 (C.A.) (Jessell M.R.). See also W. HOLDSWORTH. AN HISTORICAl INTRODUCTION TO THE LAND LAW 110 (1927). 27 One of the main reasons why the Act was passed was to prevent improvident death-bed gifts. particularly to the church, thereby disinheriting the donor's heirs. See Oosterhoff. supra note 23. at 279. 28 Uniformity Act 1548. 2 & 3 Edw. 6. c. 1: Uniformity Act 1551. 5 & 6 Edw o6, c. 1:Act of Uniformity 1558. 1 Eliz. 1. c. 2: Act of Uniformity 1662. 14 Car. 2. c. 4. 29 I Wm.&M..c. 18(1688). 30 See also Roman Catholic Relief Act. 31 Geo. 3. c. 32 (1791). Places of Religious Worship Act, 52 Geo. 3. c. 155 (1812): Roman Catholic Relief Act, 10 Geo. 4. c. 7 (1829): Places of Worship Registration Act. 18 & 19 Vict.. c. 81 (1855); Liberty of Religious Worship Act. 18 & 19 Vict.. c. 86 (1855): Promissory Oaths Acts, 31 & 32 Vict.. c. 72 (1868): 34 & 35 Vict., c. 48 (1871). Ottawa Law Review [Vol. 13:3

by Magna Carta. 31 However, several statutes passed during the reign of Henry VIII 32 and, more particularly, the Acts of Uniformity 33 recog- nized the Church of England as a separate national Church subject to the king and imposed by law the doctrine and polity of the Church. "Established" in this sense does not merely mean the recognition by the state and the protection of a religious organization's property. Today all bonafide religions are so recognized and protected. The word can be used in that sense. 34 Its usual connotation with reference to the Church, however, is the national Church or state-recognized form of religion. 35 "The process of establishment means that the State has accepted the Church as the religious body in its opinion truly teaching the Christian faith and given to it a certain legal position and to its decrees if ' ' given under certain legal conditions certain legal sanctions. 3", This encompasses a duty on the state to give support to the Church, not necessarily by way of endowment,37 but by seeing to it that the doctrine and polity of the Church are maintained. 38 The Church of England is in this sense the established church in England. Similarly, the Church of Scotland is the established church in Scotland. 39 The fact that the latter was one of the two established churches in the United Kingdom when the Canadas were settled later became significant in the settlement of the Clergy Reserves question in Upper Canada.

D. Church and State in the Canadas

When the North American colonies were settled by the British, the Church of England was established in a number of colonies, including

31 1217, c. 1, and see Marshall v. Graham, [1907] 2 K.B. 112, at 126, 76 L.J.K.B. 690, at 700. 32 Ecclesiastical Appeals Act 1532, 24 Hen. 8, c. 12; Submission of the Clergy Act 1533, 25 Hen. 8, c. 19; Payment of Annates Act 1533, 25 Hen. 8, c. 20: Ecclesiastical Licences Act 1533, 25 Hen. 8, c. 21; Supremacy of the Crown Act 1534, 26 Hen. 8, c. 1. 33 See note 28 supra. 3' Attorney General v. Pearson, 3 Mer. 353, at 356, 36 E.R. 135, at 139 (L.C. 1817). 311OXFORD ENGLISH DICTIONARY (1933); s.v. Establish 7, Church 5c.

3" Marshall, supra note 3 1, at 126, 76 L.J.K.B. at 700. 37 Free Church of Scotland v. Overtoun, [1904] A.C. 515, at 680, 91 L.T. 394, at 416. 38 Id. at 733. '9 See Union With Scotland Act 1706, 6 Anne, c. 11, ss. 2-5. By the Union With Ireland Act 1800, 39 & 40 Geo. 3, c. 67, s. 1, art. 5, the Churches of England and Ireland were fused as the United Church of England and Ireland. However, this Union was dissolved by the Irish Church Act 1869, 32 & 33 Vict., c. 42 and the Church of Ireland was disestablished. 1981] Religious Institutions and the Law in Ontarto

Virginia and Maryland, 4 Nova Scotia"' and New Brunswick.4" It also seems that in some of the New England states a form of Protestant church establishment existed, which consisted of an amalgamation of the ecclesiastical and the municipal jurisdictions. 4 As to Nova Scotia, it had been ceded by the French to the British by the Treaty of Utrecht in 1713. This Treaty guaranteed to the inhabitants the right to enjoy the free exercise of their religion. 4 However, because of the refusal of the Acadians to swear the oath of allegiance to the British Crown and the exigencies of the wars with France, many were forcibly removed from the province in the great expulsion of 1755-56." In those circumstances and taking into consideration the determination of the British to anglicize Nova Scotia, the establishment of the Church of England and the suppression of the Roman Church by the statute of 1758 is understandable.46 While the British had similar plans to anglicize Quebec after its conquest in 1759, circumstances there, particularly the large French population, made this impossible. The need to assure a population loyal to the British Crown in view of the threat of war from the American colonies and the efforts of sympathetic governors ensured that the Church of Rome remained defacto the established church in Canada under royal supremacy. The inhabitants had been guaranteed the free exercise of their religion by the Treaty of Paris and the Proclamation of 1763 and this right, together with the right to tithe the Roman Catholic inhabitants, was confirmed by the British North America (Quebec) Act. 7 Nevertheless, the British intention was clearly to establish the Church of England in Quebec and merely to tolerate the free exercise of the religion of the Roman Catholic inhabitants.4 8 That the Church of England was never established in Quebec was due principally to the failure of the intended process of anglicization, and also to the large influx of Loyalists and others, mostly into the western

40 As to these states, see E. GAUSTAD. A RELIGious HISTORY OF AsRICA 36-46, 72-79 (1966); Terrett v. Taylor. 13 U.S. 41. at 46 (1815) (Story J.). ' An Act for the Establishment of Religious Publick Worship in this Province. and for Suppressing Popery, S.N.S. 1758. c. 5. See also An Act for the Better and More Effectual Establishment of the Church of England in This Province, S.N.S. 1759, c. 10. 12 An Act for Preserving the Church of England. as by Law Established in This Province, and for Securing Liberty of Conscience in Matters of Religion, S.N.B. 1786, c. 4. 4, See Kauper & Ellis. Religious Corporations and the Lot%'. 71 M¢i'. L. RE%% 1500, at 1506 (1973). " Art. XIV. See CHURCH AND STATE IN CANADA 1627-1867: BAsIC DOCUMENTS 23-24 (J. Moir ed. 1967) [hereafter referred to as Moirl. 45 W. MACNUTT. THE ATLANTIC PROVINCES: TIlE EMERGENCE OF COLONIAL SOCIETY 1712-1857. at 42-46 (1965). 46 An Act for the Establishment of Religious Publick Worship in this Province and for Suppressing Popery, S.N.S. 1758. c. 5. 47 1774. 14Geo. 3,c. 83. s. 5. 41 Moir, supra note 44, Instructions to Governor Murray. 1763, paras. 28-39, at 78-80: Instructions to Governor Carleton. 1775. paras. 20-29. at 99-103. Ottawa Law Review (Vol. 13:3 part of the province. This led to the division of Quebec into the two provinces of Upper and Lower Canada by the Constitutional Act." The sections of the Constitutional Act dealing with religion evidenced a clear intention that the Church of England be established in Upper Canada, but left its actual establishment to local initiative when circumstances should permit."0 Section 35 provided for the collection of tithes for the support of a Protestant clergy; sections 36 and 37 provided for the setting aside of one-seventh of the lands in the province, the so-called Clergy Reserves, for the support and maintenance of this clergy; and section 38 provided for the constitution of parsonages or rectories "according to the Establishment of the Church of England" in every township or parish upon the authorization of the King, and for the endowment of the rectories and parsonages with land. The subsequent history of these provisions demonstrates that the Church of England was not in fact established in the province. The right to collect tithes was abrogated by an Act of the provincial legislature in 182151 because it was thought politically inexpedient to attempt collection.52 The Clergy Reserves question took much longer to settle and resulted in much acrimonious debate. A brief summary of that controversy will suffice. 53 Initially the reserves were leased, but the income from them was low. This revenue was paid not only for the support of the Anglican clergy, but also for the support of the Church of Scotland and other denominations which had seceded from that Church, the Church of Rome, the British Wesleyan Methodist Church and the Methodist Episcopal Church, the latter being affiliated with the American church of that name. 54 The Clergy Reserves (Canada) Sale Act of 1840,-- an Imperial statute, authorized the sale of the reserves, the proceeds to be distributed to the Church of England (one-third) and the Church of Scotland (one-sixth), with the residue to be used for purposes of public worship and religious instruction in Canada. Several other Protestant churches and the Roman Catholic Church eventually benefited from this settlement, although some voluntarist groups were reluctant to accept any moneys from this source.- 6 Finally, after enabling legislation

19 1791,31 Geo. 3, c. 31. Young, A Fallacy in CanadianHistory, 15 CAN. His. REV. 351, at 357 (1934); Talman, The Position of the Church in Upper Canada, 1791-1840, 15 CAN. His. REV. 361 (1934). -1 An Act Relative to the Right of Tythes Within this Province, S.U.C. 1821, c. 32. 52 Talman, supra note 50. -1 For a detailed study of the Reserves, see A. WILSON, THE CLERGY RESERVES Or UPPER CANADA: A CANADIAN MORTMAIN (1968). '4 THE SEVENTH REPORT ON GRIEVANCES ch. 14 (1835). 3 & 4 Vict., c. 78, An earlier statute, the Clergy Reserves Sales and Improvements Act of 1827, 7 & 8 Geo. 4, c. 62, authorized the sale of one-quarter of the reserves. . A. WILSON,supra note 53, at 197-98. 1981] Religious hstintutionsand the Law in Ontario was passed by the Imperial Parliament."7 the Clergy Reserves Act of 185458 secularized the reserves. Two funds were created, one each for Upper and Lower Canada, for the benefit of municipalities. The Act provided for the continuation of existing stipends during the lives of the incumbents, with the possibility of commutation, in which case the capital value was to be paid to designated churches. In the result, the Church of England, the Church of Scotland, the Roman Catholic Church and the Methodist Church received substantial capital endowments out of the reserves.5 9 No rectories were constituted until 1836 when forty-four were endowed with glebes. 60 This event caused so much political and religious debate that section 38 of the Constitutional Act, permitting the establishment of rectories, was repealed by a provincial statute in 185 1. i The rectory endowments were eventually sold, since they proved difficult to manage, 62 pursuant to a provincial enabling statute of 1866."3 Although the Clergy Reserves question and related matters do not have a direct bearing on the matter under consideration here, they do illustrate the political and religious climate in which The Religious Societies Relief Act 6 4 was passed and are thus relevant to an understand- ing of the need for that Act.

III. THE RELIGIOUS SOCIETIES RELIEF ACT

A. The 1828 Act and its Effect

The Preamble and section 1 of The Religious Societies Relief Act of 1828 provide as follows: WHEREAS religious societies of various denominations of Christians find difficulty in securing the title of land requisite for the site of a church, meeting-house or chapel. or burying-ground. for want of a corporate capacity to take and hold the same in perpetual succession: And whereas it is expedient to provide some safe and adequate relief in such cases: Be it ther'Jore etnacted .. . [t]hat whenever any religious congregation or society of Presbyterians. Lutherans, Calvinists. Methodists. Congregationalists. Independants, Anabaptists. Quakers. Menonists. Tunkers or Moravians. shall have an occasion to take a conveyance of land for any of the uses aforesaid, it shall and may be lawful for them to appoint Trustees. to whom. and their

57 Canada Clergy Reserves (Powers to Provincial Legislaturel Act, 1853. 16 & 17 Vict., c. 21. -11S.C. 1854. c. 2. .59 A. WILSON. supra note 53. at 216. I" Id. at 123. G. CRAIG. UPPER CANADA: TIHE FORMArivt, YEARS 1784-1841. at 235 (1963). 61 Rectories Act. S.C. 1851. c. 175. 62 A. WILSON. supra note 53. at 217. 63 Sale of Rectory Lands Act. S.C. 1866. c. 16. 64 S.U.C. 1828. c. 2. Ottawa Law Review [Vol. 13:3

successors, to be appointed in such manner as shall be specified in the deed, the land requisite for all or any of the purposes aforesaid may be conveyed; and such Trustees and their successors in perpetual succession, by the name expressed in such deed, shall be capable of taking, holding and possessing such land, and of commencing and maintaining any action or actions in law or equity for the protection thereof, and of their right thereto. The Churches of England and Rome were not included in the list of religious societies which could take advantage of the Act. The former was regarded by many as the Church established by law and, as has been seen, the common law accorded corporate status to the Church, or at least to certain of its officers, such as rectors, bishops and churchwardens. Hence the Church of England was not under the disability that the Act sought to relieve. Nevertheless, it seems that in some cases special trustees had to be appointed by the executive council to take title to the glebes assigned to the Church of England."5 The canon law accorded corporate status to the officers of the Roman Catholic Church, but such status had not been recognized by the common law since the Reformation. Hence, although under the same disabilities as the Protestant dissenting churches, it was deliberately omitted from the list. The Legislative Council had wanted to include it, but the Executive Council was of the opinion that this Church already enjoyed the privileges being conferred by the Act. 66 It is doubtful that this was so. In any event, they were not exercised at first. For example, the land upon which the first Roman Catholic Church in York was built was conveyed in 1822 to the Right Reverend Alexander McDonell, the first Roman Catholic Bishop in the province, and four others as trustees for the Roman Catholic inhabitants of York to be used as the site of a church, churchyard, burial ground and clergyman's residence. The deed did not confer a corporate status upon the trustees but, although they were empowered to appoint their successors, a subsequent conveyance to the new trustees was required.67 The Executive Council had also wanted to expunge the Presbyterians from the list but finally concurred in leaving them in. The reason for the intended omission is not apparent, but it may have been thought that relief was not necessary for the Presbyterian Church since it was one of the two established churches of the United Kingdom. The essence of the Act of 1828, therefore, was to enable churches to take conveyances of land for their purposes in the name of trustees who, with their successors in perpetual succession, by the name expressed in the deed, could hold the land and commence and maintain actions to protect it. Thus, the trustees formed a kind of corporation since they enjoyed perpetual succession and could adopt a collective name. Later cases indeed speak of the trustees as a corporation for the purposes of

6. Talman, supra note 50, at 368. 66 Upper Canada House of Assembly, Journals and Appendices, 92 Parl.. Ist sess., 12. 67 See McDonell v. McDougall, 3 U.C.K.B. 177 (1833). 1981] Religious Institutions tand the Lem in Ontarto bringing actions and holding land." However, they were not in fact a corporation in the ordinary sense of the word. The legislation did not make provision for a common seal,"' nor did it empower the trustees to make bylaws to govern their affairs. The powers of the trustees to deal with the property were under the direct or ultimate control of the congregation which appointed them. Hence, although they were en- dowed with some corporate attributes, they could not be said to constitute a true corporation. Such limitations were apparent in later legislation which circumscribed the trustees' powers. The objectives for which religious societies could hold land were expanded in later legislation. However, under section 2 of the Act only five acres could be acquired by any one congregation for the prescribed purposes. Although this restriction was later dropped, it was evidence that the legislature was apprehensive about the accumulation of land by the church. Later legislation imposed other restrictions which were founded on the same concern. Finally, sections 3 and 4 of the Act required the trustees to register the deeds taken under it within twelve months of their execution and allowed for the validation of earlier deeds provided they were registered.

B. The Provenance of the Legislation

Although the legislature often adopted English legislation, espe- cially in the area of property law, it is doubtful that the Act had an exclusively English ancestry. As noted earlier, the Church of England did not require legislation of this kind since its officers enjoyed corporate capacity by the common law. However, as a result of the industrial revolution it became apparent in England that additional churches were required and legislation was passed on several occasions to assist in, or to enable the financing thereof. Some of these statutes contained provisions that foreshadowed the 1828 Act. Thus, for example, section 1 of the Gifts for Churches Act of 180370 provided that any person could, by deed or will, give land of up to five acres or chattels of up to £500 towards erecting, repairing or purchasing a church, chapel or manse for the Church of England "without any License . . .the Statute of Mortmain, or any other Statute

" Gait Trustees v. Bain, 3 U.C.Q.B. 198. at 205-07. 212 (1847); Trustees of Ainleyville Congregation v. Grewer. 23 U.C.C.P. 533 (1874); Humphreys v.Hunter, 20 U.C.C.P. 456 (1870): Trustees of the Toronto Berkeley Street Congregation v. Stevens, 37 U.C.Q.B. 9 (1875). Trustees of the Franklin Church v. Maguire, 23 Gr. 102 (1876); Kingston v. Salvation Army. 6 O.L.R. 406 (H.C. 1903). afflfd 7 O.L.R. 681 (Div'l Ct. 1904); Re Wansley & Brown. 21 O.R. 34 (Ch. D. 1891): Beat), v. Gregory, 24 O.A.R. 325 (1897). 69 An Act to Amend Certain Acts for the Relief of Religious Societtes. S.C. 1849. c. 91. s. 2. This section did provide for a seal but was never carmed forward into later consolidations. 70 43 Geo. 3.c. 108. Ottawa Law Review [Vol. 13:3 or Law to the contrary notwithstanding". The instrument had to be executed at least three months before the death of the grantor or testator. The Church Building Act of 182471 contained a provision similar to the 1828 Act in that it provided for the vesting of the site of a church and cemetery in a person or persons and their successors in perpetual succession as bodies corporate in the name specified in the sentence of consecration of the church, without liability to forfeiture under the Statute of Mortmain. This Act applied to churches built by subscription for the Church of England. On the other hand, while the Places of Religious Worship Act of 181272 provided for the registration of places of religious worship for dissenters, it did not make provision for the holding of land by trustees having perpetual succession. That right was not conferred in England until the Trustees Appointment Act, in 1850.73 A private statute for the Roman Catholic Church in York preceded but made similar provisions to the Act of 1828. By the York Roman Catholic Congregation Act of 1821,'7 James Baby, Reverend Alexander McDonell and John Small, who had received one acre of land by letters patent in York in trust for the use and accommodation of a Roman Catholic clergyman, were granted the right to sell the land and to buy other land for the same purpose, in trust and with succession and limitation of that trust so as to secure the same in perpetuity. Several pieces of legislation existed, therefore, on which the Act of 1828 could have been based. Nevertheless, it would seem that its origins did not lie exclusively in England. A similar but more extensive act was passed in Nova Scotia in the same year. Section 1 of The Act Concerning Religious Congregations and Societies7 5 permitted any society or congregation of Christians of twenty or more persons who were capable of legally contracting to appoint trustees, to give the trustees a name of office and to authorize them to hold lands for the Scite of their Church, Chapel or Place of meeting for Public Worship or Places of Interment, or for the House, Manse or Residence of the Pastor, Minister or Clergyman of such Congregation, or for and as a Glebe, or for the support and maintenance of the said Congregation and the Ministers, Officers and Members thereof, or in aid or support of other lawful objects, connected with such religious establishments. Under sections 3 and 4 the trustees had perpetual succession and could sue and be sued in their name of office. Under section 5 each congregation was limited in the amount of land it could hold to an amount not exceeding an annual value of£ 2,000 and to personal property not exceeding£e 10.000 in the whole at any time. Also, according to section

7 5 Geo. 4, c. 103, s. 14. 72 52 Geo. 3, c. 155. 71 13 & 14 Vict., c. 28. 71 S.U.C. 1821, c. 29. 75 S.N.S. 1828, c. 6. 1981] Religious Institutions and the Law in Ontario

5, the Act did not apply to the Church of England, since it was established by law in the province. Protestant dissenters had in fact been empowered to erect and build meeting houses for public worship in Nova 7 7 Scotia since 175876 and in New Brunswick since 1786. However, in neither of the statutes which permitted them to do so was any provision made for a method of holding land for that purpose. It is probable that the Nova Scotia and Ontario statutes were derived in part from similar legislation in New England. Many of the inhabitants of both provinces hailed from the United States and maintained a close connection with the churches in that country. They were undoubtedly of the legislation in several states enabling churches to hold land. aware s For example, by a provincial statute enacted in Massachusetts in 1754" the ministers of the several Protestant churches were made corporations sole and could take lands for a parsonage or for the use of the ministry in perpetual succession. This statute as re-enacted after the American Revolution provided: That the deacons of the several protestant churches, not being episcopal churches. and the church wardens of the several episcopal churches, are. and shall be deemed so far bodies corporate. as to take in succession all grants and donations, whether real or personal. made either to their several churches, the poor of their churches, or to them and their successors, and to sue and defend in all actions touching the same: and whenever the ministers, elders or vestry, shall in such original grants or donations have been joined with such deacons or church wardens as donees or grantees in succession, in such cases, such officers and their successors. together with the deacons or church wardens. shall be deemed the corporation for such purposes as aforesaid; and the minister or ministers of the several protestant churches, of whatever denomination, are and shall be deemed capable of taking in succession an), parsonage land or lands, granted to the minister and his successors, or to the use of the ministers, and of suing and defending all actions touching the same .... While it is impossible to trace the exact provenance of the Act of 1828, it is likely, therefore, that it had both English and American antecedents. Nevertheless. the final product was exclusively an Upper Canada product, tailored to suit the prevailing political and religious circumstances of the times. It seems clear that the legislation was useful not only for churches, but also for other purposes. Some years later statutes were enacted enabling trustees to hold land for schools and cemeteries on the same

7C An Act for the Establishment of Religious Publick Worship in tls Province, and for Suppressing Popery. S.N.S. 1758. c. 5. s. 2. 7 An Act for Preserving the Church of England. as by Law Established in this Province. and for Securing Liberty of Conscience in Matters of Religion. S N.B. 1786. c. 4. 78 28 Geo. 2. c. 9 (1754). See Weston %.Hunt. 2 Mass. 500. at 501 t 1807) 71 Stats. Mass. 1786. c. 12. quoted in Kauper & Ellis. -tpra note 43, at 1508 Ottawa Law Review I[Vol. 13:3

basis as churches. 80 The statutes contain recitals virtually identical to the 1828 Act, namely that difficulties had been encountered by persons wishing to hold land for these purposes for want of a corporate capacity. Both statutes confer perpetual succession on the trustees, enable them to adopt a collective name and empower them to sue and be sued in that name. The 1828 Act was amended on numerous occasions and the powers and duties of the trustees and the religious institutions which they represented became more defined.

C. Subsequent History: 1840-1873

1. Extension to Other Religious Societies of Christians

The first amendment occurred in 184081 and was significant for several reasons. First, section 1 of the 1840 Act repealed the quantity restriction contained in the 1828 Act. Apparently, experience showed that five acres were inadequate for many churches. Second, section 2 empowered the religious societies named in the 1828 Act to hold land "for the support of public worship and the propagation of Christian knowledge, as well as for the purposes mentioned in the said [ 1828] Act, any thing in the Statutes commonly called the Statutes of Mortmain notwithstanding". Third, under section 3 the rights and privileges conferred by the Act were extended to the Roman Catholic Church, "to be exercised according to the government of the said Church". Apparently, the rights conferred by the 1828 Act were not given to the Roman Catholic Church. This was probably inadvertent and appears to have been corrected five years later. There was no need to add the Church of England at this time, since a special statute was passed at the same time to make provision for the temporalities of this Church.82 The next amendment took place in 1845 when the powers conferred by the 1828 Act (including, for the first time, the right to hold land for a residence for a minister) were extended to all religious societies or congregations of Christians, "anything in the Statutes commonly called the Statutes of Mortmain, or any other law to the contrary hereof

80 An Act to provide for vesting in Trustees the Sites of Schools in that part of this Province called Upper Canada, S.C. 1846, c. 17; now School Trust Conveyances Act, R.S.O. 1980, c. 465; An Act to Permit Lands in Upper Canada to be conveyed to Trustees for Burial Places, S.C. 1850, c. 77; now Cemeteries Act, R.S.O. 1980, c. 59, s. 72. 8 An Act to amend An Act for the Relief of the Religious Societies therein Mentioned, S.U.C. 1840, c. 73. 82 An Act to Make Provision for the Management of the Temporalities of the United Church of England and Ireland in this Province, and for other Purposes therein Mentioned, S.U.C. 1840, c. 74. 1981] Religious Institutionsand the Law in Ontario notwithstanding".8 3 This would, therefore. include the Roman Catholic Church. It should be noted. however, that the rights conferred by the Act of 1840 were not extended to all Christian denominations in 1845. It is apparent, therefore, that in 1845 there continued to be two classes of Christians, namely. all Christian denominations who had the rights conferred by the 1828 Act. and the denominations named in that Act, to which the Roman Catholics were added in 1840, who had the additional right of holding land for the support of public worship and the propagation of Christian knowledge. This also is apparent from the 1859 consolidation, which continued the distinction." Why the additional power to hold land for the support of public worship and the propagation of Christian knowledge was conferred in 1840 is unclear. It may have been thought advisable for the benefit of denominational schools, for the support of missions, or for the ' maintenance of the church press and publications." The latter was subsequently specifically provided for, perhaps at the request of the Methodists 86

2. Registration Requirements

Until 1873, when the first comprehensive statute respecting religious institutions was enacted. there were several provisions under the legislation respecting registration of conveyances taken by trustees. Section 3 of the 1828 Act required that these be registered within twelve months of execution, but often this was not done and validating legislation was required.17 The registration requirement was retained for many years; it finally disappeared in the revision of 1927.8

83 An Act to Extend the Provisions of Two Certain Acts of the Parliament of Upper Canada. to other Denominations of Christians than those therein Enumerated. S.C. 1845. c. 15, Preamble. s. 1. 14An Act respecting the Property of Religious Institutions in Upper Canada. C.S.U.C. 1859, c. 69, ss. 1. 13. 8' See J.MOIR. CHURCH AND STATE IN CANADA Wi-ST: T!IREE STUDIES IN THE RELATION OF DENOMINATIONALISM AND NATIONALISM. 1841-1867. at Xti. chs. 6. 7 (1959). 86 An Act Respecting the Property of Religious Institutions in the Province of Ontario. S.O. 1873. c. 135. s. 15. 87 An Act to extend the provisions of two certain Acts of the Parliament of the Province of Upper Canada. to other Denominations of Christians than those therein Enumerated. S.C. 1845. c. 15: An Act to Amend Certain Acts for the Relief of Religious Societies, S.C. 1849. c. 91. s. 1: An Act to Amend Certain Acts for the Relief of Religious Societies, S.C. 1853. c. 126: An Act Further to Extend the Time for the Registration of Conveyances to Religious Institutions in Upper Canada. S.C. 1861. c. 43. s. 1: An Act Further to Extend the Time for the Registration of Conveyances to Religious Institutions in Ontario. S.O. 1869. c. 29. 88 The Religious Institutions Act. R.S.O. 1927. c. 344. Ottawa Law Review [ Vol. 13:3

3. Powers of Sale, Mortgage and Lease

The 1828 Act was very limited in scope. It permitted the acquisition of land by religious societies, but conferred no powers to dispose of unnecessary land, to lease it, or to raise money by way of mortgage on it for their purposes. Undoubtedly these powers were exercised from time to time, but this caused title problems. Hence a series of statutes was passed in the late 1840's and the 1850's which conferred these powers. A power of sale, subject to the approval of the conference, synod or body having the direction of the temporal affairs of the society, was conferred in the 1849 Religious Societies Relief Act.8" The trustees had to apply the moneys in the purchase of other lands or for the improvement of other lands held by them in trust for the church. Moreover, according to section 2 of that Act, if land had been given to them for special purposes, it could not be sold without the consent of the grantor or his representatives. A power to mortgage was given to the trustees in 1850.90 They could thereafter give a mortgage on the lands of the society to secure debts incurred for the building, repairing and improving of the church. The power to lease was conferred in 1855 in An Act to Authorize the Sale or Lease of Lands in Upper Canada, Held in Trust for the Use of Congregations or Religious Bodies. 9' The difficulty in this respect as recited in the Preamble of that Act was that the trustees had no express power to lease, and so could not manage the lands under their control effectively in that they could not lease them so as to bind their successors. Sections 1 and 4 permitted the trustees, with the consent of the religious society, to lease any land not immediately required by it, except land held for the purpose of erecting a church or for a burial ground, for a period not exceeding twenty-one years, with power to enter into any covenant for the renewal of the lease at the expiration of any or every term for a further twenty-one-year or lesser period. Section 1 also provided for the amount of the rent, its calculation and collection. Further, section 5 authorized the trustees to sell any land no longer necessary for the religious society by public or private sale with the society's consent, and sections 6 and 7 required the trustees to account annually to the society; they could also be called upon to account by the Court of Chancery.

8 An Act to Amend Certain Acts for the Relief of Religious Societies, S.C. 1849, c. 91, s. 2 [hereafter cited as Religious Societies Relief Act 1849]. It should be noted that, although the society had to authorize the sale, it could not authorize that it be carried out by anyone other than the trustees. They alone had the power of sale: Irving v. McLachlan, 5 Grant 625 (1856). " An Act to Authorize the Trustees Holding Land upon which Churches are Erected in Upper Canada to Mortgage the Same to Pay off the Debts due by Such Churches, S.C. 1850, c. 78. "' S.C. 1855,c. 119. 1981] Religious Institutions and the Law in Ontarto

The meaning of the power to lease is difficult to ascertain. It would seem to be capable of two interpretations: either the trustees are enabled to covenant for the perpetual renewal of leases for maximum terms of twenty-one years, or they are restricted to a total of forty-two years. The latter interpretation is probably the correct one and it was adopted by the Ontario Law Reform Commission."" The origin of the leasing power is obscure, but probably lies in the common law and a series of early statutes. At common law ecclesiastical corporations aggregate could grant leases without restriction. So could corporations sole, but only with the confirmation of others, such as, in the case of a bishop, the dean and chapter, and in the case of a parson or vicar, the patron and ordinary."" By an enabling statute in 1540, corporations sole, except parsons and vicars, could thereafter make such 4 leases without confirmation for twenty-one years or three lives.9 By subsequent legislation all ecclesiastical corporations, sole and aggregate, were disabled from making leases for longer than twenty-one years or three lives. 9 An Act in 1842 permitted an), incumbent of an ecclesiasti- cal benefice to lease any part of the lands belonging to the benefice on an improving lease for twenty years with the consent of the bishop and patron .96

4. Power to Appoint Successor Trustees

The 1828 Act and subsequent statutes provided that the appointment of successor trustees be specified in the deed by which they took title. In many cases this was not done. A statute in 1864, therefore, provided a method whereby new trustees might be elected and appointed in a public 1 meeting of a religious society or congregation.

" See OLRC REPORT. supra note I. at 53. ": R. BURN. ECCLESIASTICAL LA"S II 363 (9th ed. R. Phillimore 1842) .1 Lessees to enjoy the Farm against the Tenants in Tall Act. 32 Hen 8. c 28 (1540). "" An Act to Restore to the Crown the Ancient Jurisdiction oxer the Estate Ecclesiastical and Spiritual. and Abolishing all Foreign Powers Repugnant to the Same. 1 Eliz. 1. c. 19 (1558): Fraudulent Deeds made b) Spiritual Persons to Defeat their Successors of Remedy for Dilapidation shall be Void, 13 Ehz. I. c 10 (1570). An Act for the Continuation. Explanation. Perfecting and Enlarging of dters Statutes. 14 Ehz 1, c. 11 (1572): An Act for Explanation of the Statutes. inttuled, against defeating of Dilapidations. and against Leases to be made of Spiritual Promotions in Some Respects, 18 Eliz. 1.c. 11 (1576). 96 The Ecclesiastical Leases Act. 5 & 6 Vict.. c. 27 (1842). ."7An Act to Enable Certain Religious Societies or Congregations of Christians to Appoint Successors to Trustees of Land held on their Behalf. S.C. 1864, c 53. If the deed did not specify the manner in which new trustees ssere to be appointed, the provisions of the Act applied and the general law regarding the appointment of trustees was ousted: Re Lutheran Church of Hamilton. 34 0.L.R. 228 (WeeklN Ct 1915). If the deed did not specify how the trustees were to be appointed, its pro%isions had to be strictly followed: Smallwood v. Abbott. 18 U.C.Q.B. 564 (1859): Wodell % Potter. 64 O.L.R. 27 (1929). varied 64 O.L.R. 484 (App. Div. 1929). In the esent of a secession the trustees, although seceders. would thus be required to hold the land in trust for that body adjudged to be the true church: Brewster %.Hendershot. 27 0 A R 232 (1900) Ottawa Law Review[ [Vol. 13:3

5. Joint Houses of Worship

It seems that on occasion two or more religious societies wished to build a joint house of worship. An enabling statute permitting them to do so was passed in 1869.98 The Act provided for the appointment by each society of trustees who were given the same powers as those enjoyed by trustees for individual religious institutions.

IV. THE PROPERTY OF RELIGIOUS INSTITUTIONS ACT: 1873-1912

A. Major Changes

An Act respecting the Property of Religious Institutions in the Province of Ontario of 187311 was the first attempt to consolidate and improve the various statutes passed since 1828. The Act contained a number of new provisions. First, section 1 extended the purposes for which land might be held to include a bookstore, printing or publishing office and any other religious or congregational purpose whatsoever. As earlier noted, this was probably at the request of the Methodist Church which controlled a substantial press. Second, section 19 of the Act provided that it did not affect any special act obtained by any religious society or congregation of Christians, but should be construed as supplementary thereto. This provision was necessary, because by this time numerous private statutes respecting individual churches, as well as denominations or subdivisions thereof, had been enacted. Third, the Act contained a mortmain provision which was much more severe than the five-acre restriction contained in section 2 of the 1828 Act. Its introduction and the subsequent adoption of a general mortmain statute were the cause of many problems as regards church lands.

B. Mortmain

Although both aspects of mortmain, that is, the restrictions against corporations holding land and the restrictions on conveyances to charitable uses, became part of the law of Ontario, the Mortmain Act of 1736100 is most significant as far as church lands are concerned.

" An Act Respecting Titles to Union Houses of Religious Worship, S.O. 1868-69, c. 50. " S.O. 1873, c. 135. o 9 Geo. 2, c. 36. 1981] Religious Institutionsand the Law in Ontario

The law of mortmain was not generally thought to be applicable to the colonies' and an early Upper Canada decision followed that view. 10'2 In a subsequent case, Anderson v. Toddio however, the court reversed itself. That case concerned the validity of a will in which the testator left all his property, real and personal, on trust for the use of the Canadian Wesleyan New Connexion Body of Missionaries in Africa. The court held that the Mortmain Act of 1736 was in force in Upper Canada despite its earlier opinion to the contrary. What had happened in the meantime was that two statutes had been passed by the provincial legislature which enabled religious societies generally and the Church of England specifically to hold land notwithstanding any provision to the contrary in the Statutes of Mortmain. ,o4 In the case of the Church of England, however, this was made subject to a proviso that land conveyed to a bishop or a parson or rector, or other incumbent, for the endowment of the see, parsonage or rectory or for the general uses of the Church, had to be made and executed at least six months before the death of the person conveying it.' 0o The court thus argued that, since the legislature specifically made reference to the Statutes of Mortmain by excluding their application to religious bodies in the two statutes of 1840. it must have formed the opinion that those statutes were introduced into the province.,'" It is doubtful that this result followed. What is much more likely is that, as earlier noted, the non obstante clauses in these statutes were simply copied from English statutes respecting churches. The real reason for the decision appears to be that, if the Statutes of Mortmain were not held to be in force in Upper Canada, then the Church of England would be more restricted in its rights to hold land than religious societies generally, for the statute respecting the latter did not contain any proviso as to the date of execution of conveyances. The court thought that that result surely 0 7 could not have been intended by the legislature. , Hence the devise to the Canadian Wesleyan Methodists was not saved by the non obstante clause in the Religious Societies Relief Amendment Act of 1841.

101 Attorney-General v. Stewart. 2 Mer. 143. 35 E.R. 895 (Ch. D. 1817). Whicker v. Hume, 7 H.L.C. 124. 11 E.R. 50 (H.L. 1858) Jex v. McKinney. 14 App. Cas, 77 (P.C. 1889) (British Honduras). 112 McDonell. supra note 67. at 185-86. 103 2 U.C.Q.B. 82 (1846). "04 Religious Societies Relief Amendment Act. S.U.C. 1840. c, 73, s. 2. Church Temporalities Act, S.U.C. 1840. c. 74. s. 16. to a wIll 105 S. 16 of the Churches Temporalities Act was construed as applying executed at least six months before the testator's death (Baker v.Clark. 7 U.C.Q.B. 44 (1850)). but it is hard to imagine that the word "conveyance" can include a will. The restriction in the section did not. apparently. apply to land held for a church, churchyard or burying ground. the freehold of which was vested by s. I in the parson or other incumbent and the churchwardens. By s. 6 the churchwardens were constituted a corporation. 106 Anderson.supra note 103. at 88. 90. 91. 107 id. at 89. 90. Ottawa Law Review [Vol. 13:3

Whatever one may think of this reasoning, the law of mortmain was thereafter firmly established in this province.' 0 Subsequent statutes dealing with specific religious institutions usually addressed the ques- tion. One of the first was a statute respecting the Wesleyan Methodist 1 9 Church. Section 1 of that Act enabled the corporation established by the Act to hold land in mortmain without letters of licence."10 This provision was typically appropriate to corporations, however, and did not necessarily cover assurances for charitable uses against which the Mortmain Act of 1736 was designed. Moreover, section 6 of the Act limited the amount of land that could be held to£5,000 in annual value. Later statutes contained more stringent provisions which are similar to the general Act of 1873.111 The Property of Religious Institutions Act of 1873112 permitted religious societies or congregations of Christians to acquire land by gift, devise or bequest if the instrument was made at least six months before the testator's death. However, the aggregate annual value of lands so received could not exceed $1,000 and the lands so acquired had to be sold within seven years. If they were not sold, they reverted to the person from whom they had been acquired, or his heirs, personal representatives or assigns. Thus, although up until this time churches had been free to and did receive lands by gift or devise for their purposes, 113 their right to do so was now to be severely restricted. It was held, however, in a wide construction of this provision that a devise to a church to be used as a manse did not have to be sold within seven years, since that was one of the purposes for which churches might hold land by the statute. But the trustees could not hold on to the land and 4 lease it." Moreover, even if the land taken under a devise had to be sold, the seven-year period did not begin to run until after the land vested in possession in the church. Hence, where there was a devise of land to a

08 Whitby v. Liscombe, 23 Gr. 1, at 15 (C.A. 1875); see also Oosterhoff, supra note 23, at 302. 109 An Act to Incorporate the Benevolent Societies of the Wesleyan Methodist Church in Canada, S.C. 1851, c. 142. I0 Cf. An Act to Incorporate the Church Societies of the United Church of England and Ireland, in the Dioceses of Quebec and Toronto, S.C. 1843, c. 68, s. 1. "' See, e.g., An Act to Incorporate "The Canadian Congregational Missionary Society", S.O. 1873, c. 146, s. 2; An Act to Incorporate "The Toronto Baptist Missionary Union", S.O. 1873, c. 145, s. 2; An Act to Incorporate the Regular Baptist Missionary Convention of Ontario, S.O. 1871-72, c. 110, s. 1. 112 S.O. 1873, c. 135, s. 20. 113 Whether they were entitled to do so, at least by devise, depended upon whether the "Mortmain Act" of 1736 was in force in the province. The Preamble to An Act to Authorize the Sale or Lease of Lands in Upper Canada, Held in Trust for the Use of Congregations or Religious Bodies, S.C. 1855, c. 119, appears to have assumed that lands could be acquired in this manner. 14 Sills v. Warner, 27 O.R. 266 (C.P.D. 1896). In fact, an amendment to the same effect as the decision in this case was made in the 1887 revision: An Act respecting the Property of Religious Institutions, R.S.O. 1887, c. 237, s. 23. There appears to be no amending statute authorizing this change. Moreover, the testator in the Sills case had died before the amendment. 1981] Religious Instituiionsand the Law in Ontario person for life with remainder to a church, time did not begin to run until the life tenant's death. 1 3 Generally speaking, however, the legislation was strictly construed. It was applied, for example. to devises of land upon trust for sale and for application of the proceeds to a church.'" 6 This was in line with the cases decided under the Mortmain Act of 1736."7 but does not seem warranted by the language of the statute. The effect of the cases was that unless the conditions specified in the legislation were complied with, or unless the religious society was empowered by special act to acquire land by deed or devise and to hold it in mortmain. as some churches were, the devise would be subject to the Mortmain Act. I s The enactment of the English mortmain legislation in Ontario brought about a change with respect to religious institutions. England had consolidated and re-enacted its mortmain statutes in 1888 in the Mortmain and Charitable Uses Act."" Three years later another statute was passed which permitted devises of land to charities but required the land to be sold within one year of the testator's death, and redefined "land" to exclude from the restrictive legislation gifts of money secured on land and gifts of land on trust for sale. M20The latter statute was copied one year later in Ontario's own Mortmain and Charitable Uses Act.'"' Section 4 of the Ontario Act required that the land be sold within two years of the testator's death or such extended period as might be allowed by the court. Under section 5. failure to sell it within this time caused divestment and required a sale by a public official, the proceeds of sale being returned to the charity. Section 7 of the Act permitted land to be retained by the charity upon application to the court, if it was required for the charity's actual use and occupation. In 1902 Ontario enacted the equivalent of the 1888 English legislation. 2 2 The effect of the two statutes was that: ( 1)conveyances to corporations were voidable, that is. subject to forfeiture, unless a licence in mortmain or a private statute permitting the corporation to hold land in mortmain was obtained: (2) conveyances to charities were valid, provided that the conditions in the Act of 1902 were complied with, namely, that the conveyances had to take effect in possession forthwith, be without power of revocation or reservation, and (unless made for full and valuable consideration) be made at least six months before the

115Re Naylor. 5 0.L.R. 153 (S.C. Chambers 1902). '"I Labatt v. Campbell. 7 O.R. 250 (Ch. 1884); Smith %.Methodist Church. 16 0.R. 199 (Ch. 1888): Tyrell v. Senior. 20 O.A.R. 156 (1892). 11 See Oosterhoff. supra note 23. at 285. "' See cases cited in note 116 qwra: Re Youart. 10 O.W.R. 373 (1907); Re Archer. 14 0.L.R. 374 (Wkly. Ct. 1907). "' 51 &52Vict..c. 42. 121 Mortmain and Charitable Uses Act. 1891. 54 & 55 \ict.. c. 73 (consolidated as R.S.O. 1897. c. 112). 521S.O. 1892. c. 20. 12'The Mortmain and Charitable Uses Act. 1902. S.0, 1902, c. 2 (consolidated as R.S.O. 1897. c. 333). Ottawa Law Review [ Vol. 13:3 assuror's death; and (3) devises to charities were valid, but the land had to be sold within two years, or else they were divested.' 23 The two statutes were consolidated in 1909 and at that time the 2 requirement of sale was extended to inter vivos conveyances as well. II, This change appears to have been made because of a continuing fear of the accumulation of large amounts of land in the hands of charitable organizations, especially churches. 2 5 The old mortmain phobia clearly was not yet dead! Although minor amendments have been made over the years, the 2 1909 statute in essence remains in force in Ontario. 1 This means that religious institutions are subject to its restrictions. In other words, a religious society which has acquired land must dispose of it in accordance with The Mortmain and Charitable Uses Act unless the land is being used for the purposes set out in the Religious Organizations' Lands Act.' 27 The latter Act has precedence over the former because it is a specific statute, whereas the former is general.' 2 8 The enactment of the 1892 and 1902 mortmain legislation has had little effect on incorporated religious institutions. It may be that until the enactment of a general incorporation statute which permitted corpora- tions incorporated in Ontario to hold land for their purposes2 9 incorporated religious societies had to obtain a licence in mortmain..10 As to religious societies generally, devises on trust for sale and for payment of the proceeds to a church were now, of course, valid. '31 The restriction contained in the 1873 Act Respecting the Property of Religious Institutions in Ontario 32 as well as similar restrictions contained in private acts, which required that a gift or devise of land be made at least six months before the death of the grantor or testator, were held to be impliedly repealed by the Mortmain and Charitable Uses Act of 1892, the latter being an enabling statute and more generous in this respect. 133 In fact, the requirement of sale was much more restrictive.

123 See Oosterhoff, supra note 23, at 309-10. 124 The Mortmain and Charitable Uses Act, S.O. 1909, c. 58, s. 7. ' See the comments of Mr. Dymond in GOVERNMENT OF ONTARIO, RECORDS OF THE STATUTE LAW REVISION COUNCIL 1890-1912 III, at 1007-08. 126 See Mortmain and Charitable Uses Act, R.S.O. 1980, c. 297. ,27 R.S.O. 1980, c. 448. 128 See OLRC REPORT, supra note 1, at 45-46, 52-53. 121 Corporations Act, R.S.O. 1980, c. 95, ss. 275-76; Business Corporations Act. R.S.O. 1980, c. 54, s. 14(2), paras. 11-13. "' Re Hagerman, 13 O.W.N. 406 (S.C. Chambers 1918). "' Re Johnson, 5 O.L.R. 459 (Div'l Ct. 1903). 132 S.O. 1873, c. 135, s. 20. 133 Re Kinny. 6 O.L.R. 459, at 462, 23 Can. L.T. 332 (S.C. Chambers 1903); Re Barrett, 10 O.L.R. 337, at 339-40, 25 Can. L.T. 533 (S.C. Chambers 1905); Madill v. McConnell, 16 O.L.R. 314, at 318,323-25 (Div'l Ct. 1908), affd 17 O.L.R. 209 (C.A. 1908); Thomas v. McTear, 14 O.W.R. 386 (H.C. 1909); Re McDonagh, 18 O.W.N. 154 (S.C. Chambers 1920). 1981] Religious Instiutions and the Law in Ontario

Nevertheless, the section was dropped from the 1912 revision of The Religious Institutions Act' 4 as being effete."' The restrictions contained in the Mortmain and Charitable Uses Act are an inconvenience to churches and other charities and many organizations have obtained private legislation enabling them to hold land despite that Act. 3 6

C. Extension to other Religious Institutions

Although there were several private statutes respecting the Church of England, it appears that land was often conveyed to trustees for the use of this Church. Accordingly, a number of statutes were passed in the late 1800's extending the provisions of the Property of Religious Institutions Act to this Church, provisions being made according to the episcopal nature of its church government and for special situations. 117 These provisions remained in the Act until 1979, when a special statute was enacted for the Anglican Church. ' 8 Special provisions were also added for the Methodist Church in 1904.' 39 However, they were dropped in the 1927 revision,'4 because they had been rendered otiose by the Act of Union of 1925. 1 In 1890, the provisions of the Act were extended to "any religious society or congregation of Jews. professing the Jewish religion". 4 .

D. Other Changes After 1873

Other amendments to the legislation during this period were mostly of a housekeeping nature. These included a power to change the number

S.0. 1912. c. 81. 131 See supra note 125. VIII at 5139-50: see alo Vote. 48 CAN. L.J. (N.S.) 406 (1912). 136 See, e.g., The United Church of Canada Act, S.O. 1925, c. 125. ss, 19. 26; The University of Western Ontario Act. 1974. S.O. 1974. c. 163. s. 8(2). 13' An Act to Extend the Religious Institutions Act to the Church of England in Ontario. S.O. 1878, c. 25: An Act Respecting the Application of the Religious Institutions Act to the Church of England. S.O. 1879. c. 37: An Act to Amend the Act Respecting the Application of the Religious Institutions Act to the Church of England, S.O. 1886. c. 48. '31 The Anglican Church of Canada Act, 1979. S.O. 1979. c 46. '39 An Act to Amend The Act Respecting the Property of Religious Institutions. S.O. 1904, c. 36. 140 The Religious Institutions Act. R.S.O. 1927. c. 344. 141 The United Church of Canada Act. S.O. 1925. c. 125. ". An Act for the Relief of Persons Professing the Jewish Religion, S.O. 1890. c. 74. s. 1. Similar provision had been made in England in 1846. See An Act to Relieve Her Majesty's Subjects from Certain Penalties and Disabilities in Regard to Religious Opinion, 9 & 10 Vict., c. 59. s. 2. Presumably there was no need for Upper Canada to adopt that legislation at that time. since the Jewish population in the province was then only about .2%. See J.CARELESS. THE UNION OF THE CANADAS: THE GRowirhi OF CANADIAN INSTITUTIONS 1841 -1857. at 31 (1967). Ottawa Law Review [Vol. 13:3 of trustees and extensions of the power to mortgage lands, 43 a power for two or more religious societies to hold land for a burial ground jointly by means of trustees, 4 4 a confirmation of the right of the trustees to take title in a collective name, 145 a power to take additional land, "t provisions respecting notice of sales of land 4 ' and the right to convey land to the trustees of a new congregation which had separated from an existing 48 one. 1

V. THE RELIGIOUS INSTITUTIONS ACT, 1912-1979

A. Major Changes

In 1912 The Religious Institutions Act was consolidated and revised. '19 There were only a few significant changes in the new Act. First, section 5 of the Act contained a special provision respecting lands devised, given or transferred to the Methodist Church. Second, section 13 permitted trustees to convey to trustees of another congregation where the two chose to unite. Third, section 14 permitted trustees to convey land to any incorporated board of the denomination of which it formed part. Such conveyances could only be made with the consent of the congregation in the same manner as for a sale.

B. Subsequent Histolr,

Between 1912 and 1979 only minor changes occurred in the legislation, mainly of a housekeeping nature. The provisions respecting the Methodist Church were deleted from the 1927 revision 50 because they had become obsolete by the 1925 Act of Union. A new provision respecting sales or exchanges of property was added in 1920. '1' Finally, there were two amendments relating to the Anglican Church. '5 2

143 An Act to Authorize Certain Variations in Deeds to Trustees for Religious Institutions, S.O. 1879, c. 36, ss. 1-5, 7. 144 An Act to Amend the Act Respecting the Property of Religious Institutions. S.O. 1882, c. 31. -'z An Act to Make Further Provision Respecting the Property of Religious Institutions, S.O. 1889, c. 54. 14' The Statute Law Amendment Act, 1908, S.O. 1908, c. 33, s. 56. 117 The Statute Law Amendment Act, 1909, S.O. 1909, c. 26, s. 2. '48 An Act to Amend The Act Respecting the Property of Religious Institutions, S.O. 1910, c. 106. 14,1S. 0. 1912, c. 81. 50 The Religious Institutions Act, R.S.O. 1927, c. 344. The Religious Institutions Amendment Act, 1920, S.O. 1920, c. 106. 152 The Religious Institutions Amendment Act, 1957, S.O. 1957, c. 108; The Religious Institutions Amendment Act, 1968, S.O. 1968, c. 117. 1981] Religious Institutions and the Law tin Ontarto

C. The 1979 Statute

Apart from some important changes to be mentioned, the Act of 1979-5 merely clarified and reorganized the previous legislation. As noted at the outset, the most important change effected by the Act was to extend the privileges of holding land by means of trustees with perpetual succession to virtually all religious persuasions now represented in the province, subject to certain conditions. The purposes for which land might be held under the legislation were broadened by section 2 to include a cremation ground. a theological seminary or similar institution of religious instruction and a religious camp. retreat or training centre. Sub-section 10(1) reduced the maximum time for which land could be leased to forty years and. by sub-section 12(2). the Mortmain and Charitable Uses Act was expressly made to apply to land not required for a religious organization's actual occupation for one of the purposes specified in the Act and not leased by it. Other new provisions included were sections 23 and 24, respecting applications to the court for directions where a religious organization has ceased to exist, and for a determination of whether a religious organization might take advantage of the Act. The latter provision was necessary because of the new definition of "'religious organization". 17" The former sections extending the legislation to the Roman Catholic Church and to Jewish societies and congregations were deleted as being redundant. They were covered by the definition of "religious organiza- tion".'-' The same was not true for the section respecting the Anglican Church since it applied the legislation in modified form to suit its own form of church government. Hence, as earlier noted, a separate statute was enacted for this denomination, incorporating these provisions and extending the provisions of the 1979 Act to it. The Act always was and remains biased in favour of religious organizations with a congregational form of church government. In other words, the trustees are appointed by. and derive their authority for specific acts such as sale, lease and mortgage from, the congregation or other organization, assembled in a meeting called for that purpose. It may be questioned whether this model is appropriate for many religious organizations. Some organizations, one suspects, are not governed on that basis at all but are subject to the direction of a local or denominational board. Those organizations for whom the Act is not suitable must, therefore, seek incorporation either under the general statute 5 6 or under a special act. Section 4 of the Act does make a special provision for a religious organization whose property is vested in one person according to its church polity, by which that person is then

The Religious Organizations' Lands Act. 1979. S.O. 1979. c,45. ., See OLRC REPORT. supra note 1. at 54. For the conditions imposed by this definition. see note 2 %tpra, 156 Corporations Act. R.S.O. 1980. c. 95. Part Ill. Ottawa Law Review [ Vol. 13:3 deemed to be the trustee for the purposes of the Act. This would seem to be directed to churches organized along episcopal lines.

Vt. COMPARISON WITH OTHER JURISDICTIONS

A. The CanadianProvinces

Legislation similar to the 1979 Act exists in several of the Canadian provinces, and was enacted at an early stage of colonial, provincial or territorial development. 57 Several of these statutes remain restricted in their application to religious societies of Christians. 5 8 Moreover, some make special reference to specific denominations. 139 Although the English law of mortmain was not received in any of the other provinces,' 60 some of the statutes respecting religious institutions do contain mortmain provisions in that they place a limit on the amount of property such institutions may hold. '6' There is also legislation in some of these provinces permitting incorporation of churches other than under the general incorporation statutes. 162

157 The Religious Societies' Land Act, R.S.A. 1980, c. R-14; Trustee (Church Property) Act, R.S.B.C. 1979, c. 415; The Religious Societies' Lands Act, R.S.M. 1970, c. R-70 (as amended by S.M. 1978, c. 49, s. 85); Religious Congregations and Societies Act, R.S.N.S. 1967, c. 268 (as amended by S.N.S. 1970, c. 66); Religious Congregations Lands Act, R.S.Q. 1977, c. T-7; The Religious Societies Land Act, R.S.S. 1978, c. R-19; Religious Societies Land Ordinance, R.O.N.W.T. 1974, c. R-5 (as amended by O.N.W.T. 1977 (3rd sess.), c. 2, s. 21). There appears to be no similar legislation in New Brunswick, Prince Edward Island or Newfoundland. 158 E.g., the Acts of British Columbia, Nova Scotia, Quebec and Saskatchewan. .a Alberta Act, s. 10: special provision for the Presbyterian Church; Nova Scotia Act, s. 17: Act does not apply to the Church of England; Quebec Act, s. 10: Act does not apply to the Church of England. "0 See Oosterhoff, supra note 23, at 272, 298-99, 307. Quebec has mortmain legislation which derives from a royal edict of 1743. The Mortmain Act, R.S.Q. 1977, c. M-I, applies only to corporations, however, and not specifically to charitable uses. "I Alberta Act, s. 2(4): 320 acres; Manitoba Act, s. 3(1): 20 acres for a cemetary. 300 acres for other purposes; Nova Scotia Act, s. 4: real property not exceeding the yearly value of $8,000, personal property not exceeding $40,000; Quebec Act, s. 9: one arpent within the walls of the cities of Montreal and Quebec, 8 arpents outside the walls of those cities but within their boundaries, 200 English acres elsewhere; Saskatchewan Act, s. 2: 320 acres; Northwest Territories Ordinance, s. 2(4): 130 hectares. 162 Alberta Act, ss. 11-25; the Church Incorporation Act, R.S.Q. 1977, c. C-63, enables Protestant individual churches to incorporate and to hold immovables not exceeding $300,000 in value; the Religious Corporations Act, R.S.Q. 1977, c. C-71, enables charitable and other non-profit societies to incorporate; the Societies Ordinance. R.O.Y.T. 1974, c. S-10, enables charitable and other non-profit societies to incorpo- rate. 19811 Religious Institutions and the Law in Ontarto

B. The United States

There is legislation similar to the 1979 Act in about half of the American states, namely, statutes which enable trustees to take and hold land in trust for a religious society.':' There are one or two states which have abolished the disability of unincorporated religious societies to hold land entirely and enable such societies themselves to hold title to land. It seems, however, that statutes enabling churches to incorporate are more common and are used more frequently in the United States than in Canada. Only Virginia and West Virginia lack statutes which permit churches to incorporate because of constitutional restrictions. However, statutes in these states permit the holding of land by trustees in trust for religious bodies. The American statutes permitting incorporation by churches are either specifically directed to churches or are general incorporation statutes. Of those directed specifically to churches, there are three types: the trustee corporation, in which the trustees are the corporation, but hold the land for the benefit of the church; the membership corporation, in which the religious body is itself incorpo- rated; and the corporation sole. The second of these forms is the most common. Mortmain legislation is in effect in the United States in the sense that religious organizations are often restricted in the quantity or value of land they may hold. 164 In addition, there are death-bed restrictions, that is, testamentary gifts to charity made within a specified period preceding date of death, and percentage restrictions, that is, testamentary gifts to charity of more than a specified percentage of the value of the estate."' However, it now appears that these two types of restrictions may be invalid. In a number of recent cases several statutes imposing these restrictions have been declared unconstitutional for their denial of freedom of religion, contrary to the First Amendment, 6' or for violation of the equal protection clauses of the Fourteenth Amendment. "7

VII. CONCLUSION

The history of church-state relations has fluctuated sharply over the years. It is marked by persecution and toleration, by preferential

13 For information referred to in this paragraph. see Kauper & Ellis, supra note 43. at 1511-41. 16 Joslin. "Mortanain" in Canada and Mhe Unted States. A Conparative Stud%, 29 CAN. B. REV. 621. at 623-26 (1951): Oosterhoff. supra note 23. at 324. 165 Oosterhoff, id. at 325-26. 166 In re Small, 100 Wash. D.C.L. Rep. 453 (1972): In re Estate of Riley. 329 A. 2d 511 (Pa. 1974), cert. denied. 421 U.S. 971 (1975). 17 In re Estate of Cavill, 329 A. 2d 503 (Pa. 1974); Estate of French, 365 A. 2d 621 (D.C.C.A. 1976). See also Bomes. The Dead Hand: The Last Grasp', 28 U. FLA. L. REV. 351 (1975-76): Des Jardins. Note. 52 NOTRE DAME LAwYtER 638 (1976-77. 468 Ottawa Law Review [Vol. 13:3 treatment for particular churches and grudging recognition of others, by attempts of the church to influence the affairs of state and by endeavours at complete withdrawal from the world. Nevertheless, the church, while not of this world, exists within it and must render unto Caesar that which is Caesar's. It may and should be free in the exercise of its religious doctrines and rites and it may look to the state for protection of its right to be so. However, as regards its temporalities, it must look to the state for more direct support. The series of statutes respecting religious institutions enacted in this province during the last century and a half, as well as those elsewhere, seeks to do that. The legislation is imperfect; it may not suit all religious faiths, but it does grant religious organizations the opportunity to seek protection for and security of title to their property.