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Historical Study of the Laws Enabling Religious Organizations to Hold Land

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Historical Study of the Laws Enabling Religious Organizations to Hold Land 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.
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