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In the Supreme Court of British Columbia In Citation: Rowland et al. v. Christian Brothers Date: 20000811 et al. 2000 BCSC 1221 Docket: A981297 A981616 A981617 A990098 Registry: VANCOUVER IN THE SUPREME COURT OF BRITISH COLUMBIA DOCKET: A981297 2000 BCSC 1221 (CanLII) REGISTRY: VANCOUVER BETWEEN: BROTHER PASCAL ROWLAND, BROTHER ANTHONY MURPHY, BROTHER KIERAN MURPHY AND BROTHER J. BARRY LYNCH PETITIONERS AND: VANCOUVER COLLEGE LIMITED, THE ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, REPRESENTED BY MOST REV. ADAM EXNER, THE ROMAN CATHOLIC ARCHBISHOP OF VANCOUVER, ON HIS OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF THE ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, THE CHRISTIAN BROTHERS OF IRELAND IN CANADA (IN LIQUIDATION), THE ATTORNEY GENERAL OF BRITISH COLUMBIA, THE ATTORNEY GENERAL FOR NEWFOUNDLAND, VANCOUVER COLLEGE FOUNDATION, VANCOUVER COLLEGE PARENTS ASSOCIATION AND VANCOUVER COLLEGE ALUMNI ASSOCIATION AND REPRESENTATIVE COUNSEL FOR PERSONS HAVING CLAIMS AS A RESULT OF PHYSICAL, SEXUAL OR EMOTIONAL ASSAULT OR ABUSE OR WHO OTHERWISE HAVE TORT CLAIMS IN THE LIQUIDATION, APPOINTED BY THE ONTARIO COURT OF JUSTICE IN THE MATTER OF THE WINDING-UP OF THE CHRISTIAN BROTHERS OF IRELAND IN CANADA RESPONDENTS IN THE SUPREME COURT OF BRITISH COLUMBIA DOCKET: A981616 Brother Pascal Rowland et al. v. The Christian Brothers of Ireland in Canada et al. Page 2 REGISTRY: VANCOUVER RE: ST. THOMAS MORE COLLEGIATE LTD. -AND- IN THE MATTER OF THE COMPANY ACT, R.S.B.C. 1996, SS. 68 AND 206 BETWEEN: ST. THOMAS MORE COLLEGIATE LTD. 2000 BCSC 1221 (CanLII) PETITIONER AND: JOHN T. BURNELL, THE ROMAN CATHOLIC ARCHIDOCESE OF VANCOUVER, REPRESENTED BY MOST REV. ADAM EXNER, WHO IS THE ROAMN CATHOLIC ARCHIBISHOP OF VANCOUVER, ON HIS OWN BEHALF AND ON BEHALF OF ALL THE CHRISTIAN BROTHERS OF IRELAND IN CANADA (IN LIQUIDATION), THE ATTORNEY GENERAL OF BRITISH COLUMBIA, THE ATTORNEY GENERAL OF NEWFOUNDLAND AND REPRESENTATIVE COUSNEL FOR PERSONS HAVING CLAIMS AS A RESULT OF PHYSICAL, SECUAL OR EMOTIONAL ASSAULT OR ABUSE OR WHO OTHERWISE HAVE TORT CLAIMS IN THE LIQUIDATION, APPOINTED BY THE ONTARIO COURT OF JUSTICE IN THE MATTER OF THE WINDING-UP OF THE CHRISTIAN BROTHERS OF IRELAND IN CANADA RESPONDENTS IN THE SUPREME COURT OF BRITISH COLUMBIA DOCKET: A981717 REGISTRY: VANCOUVER RE: IN THE MATTER OF ST. THOMAS MORE COLLEGIATE LTD. - AND - THE TRUSTEE ACT, R.S.B.C. 1996, C. 464 AND AMENDMENTS THERETO Brother Pascal Rowland et al. v. The Christian Brothers of Ireland in Canada et al. Page 3 BETWEEN: JOHN BURNELL, ST. THOMAS MORE COLLEGIATE LTD. PETITIONERS AND: THE CHRISTIAN BROTHERS OF IRELAND IN CANADA (IN LIQUIDATION), THE ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, REPRESENTED BY MOST REV. ADAM EXNER, WHO IS THE ROMAN CATHOLIC ARCHBISHOP OF VANCOUVER, ON HIS OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF THE ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, THE ATTORNEY GENERAL OF BRITISH COLUMBIA, THE ATTORNEY GENERAL OF NEWFOUNDLAND AND REPRESENTATIVE COUNSEL FOR PERSONS 2000 BCSC 1221 (CanLII) HAVING CLAIMS AS A RESULT OF PHYSICAL, SEXUAL, OR , EMOTIONAL ASSAULT OR ABUSE OR WHO OTHERWISE HAVE TORT CLAIMS IN THE LIQUIDATION, APPOINTED BY THE ONTARIO COURT OF JUSTICE IN THE MATTER OF THE WINDING-UP OF THE CHRISTIAN BROTHERS OF IRELAND IN CANADA RESPONDENTS IN THE SUPREME COURT OF BRITISH COLUMBIA DOCKET: A990098 REGISTRY: VANCOUVER BETWEEN: THE CHRISTIAN BROTHERS OF IRELAND IN CANADA (IN LIQUIDATION) PETITIONER AND: BROTHER PASCAL ROWLAND, BROTHER ANTHONY MURPHY, BROTHER KIERAN J. MURPHY, BROTHER J. BARRY LYNCH, JOHN BURNELL, ST. THOMAS MORE COLLEGIATE LTD., THE ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, AS REPRESENTED BY HIS MOST REVEREND ADAM EXNER. OMI ON HIS OWN BEHALF AND ON BEHALF OF ALL THE OTHER MEMBERS OF THE ROMAN CATHOLIC ARCHDIOCESE OF VANCOUVER, VANCOUVER COLLEGE LIMITED, VANCOUVER COLLEGE FOUNDATION, Brother Pascal Rowland et al. v. The Christian Brothers of Ireland in Canada et al. Page 4 VANCOUVER COLLEGE PARENTS ASSOCIATION AND VANCOUVER COLLEGE ALUMNI ASSOCIATION RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE LEVINE Counsel for the Petitioners in W.S. Berardino, Q.C. Petition A981297: S. Martin, R. Deol and 2000 BCSC 1221 (CanLII) M. Parrish (Articled Student) Counsel for the Petitioners in R.R. Sugden, Q.C. Petition A981616 and A981617: R.N. McFee Counsel for the Vancouver College G.K. Macintosh, Q.C. Limited: L.A. Warren Counsel for the Vancouver College D.G. Sanderson, Q.C. Foundation, Vancouver College (To March 17, 2000) Parents Association and Vancouver J.J.L. Hunter, Q.C. College Alumni Association: (From March 20, 2000) S.L. McHugh and E.J. Duncan Counsel for the Roman Catholic M.M. MacKinnon Archdiocese of Vancouver: A.T. Clarke and J.D. Cotter Counsel for the Liquidator: B.G. Baynham, Q.C. D. Wingfield, J.P. Sullivan And J.K. Dow (Articled Student) Counsel for the Attorney General of G.A. Urquhart, Q.C. Newfoundland and Labrador: S. Grattan-Doyle Counsel for Persons having claims as D.G. Garbig a result of physical, sexual or emotional assault or abuse or who otherwise have tort claims in the liquidation, appointed by the Ontario Court of Justice in the matter of the winding-up of the Christian Brothers of Ireland in Canada: Dates and Place of Hearing: February 14-17,21-23, March 6-9,13-17,20-24,27-31, April 10-14,2000 Vancouver, B.C. Brother Pascal Rowland et al. v. The Christian Brothers of Ireland in Canada et al. Page 5 TABLE OF CONTENTS I. INTRODUCTION 7 II. BACKGROUND OF THESE PROCEEDINGS 10 A. The Congregation of Christian Brothers and the Christian Brothers of Ireland in Canada 10 B. Mount Cashel and the Claims 11 C. Winding-Up of CBIC 12 D. Motion for Advice and Directions 12 E. Appeal from the Order of Blair J. 16 F. Implications for the Schools 16 III. THE PETITIONS 18 A. Vancouver College (Petition A981297) 18 1. The Petitioners 18 2. Other Parties 19 3. Relief Claimed 20 2000 BCSC 1221 (CanLII) B. St. Thomas More Collegiate (A981616 & A981617) 21 1. The Petitioners 21 2. Other Parties 22 3. Relief Claimed 22 (a) Rectification of STM Share Register 22 (b) Charitable Purpose 23 4. Standing of STM 24 C. The Liquidator (A990098) 25 1. Background 25 2. Relief Claimed 27 3. Positions of the Schools 27 4. Petition Dismissed 27 IV. LEGAL FRAMEWORK 28 A. "Charitable Purpose Trust" 31 B. "Specific Charitable Purpose Trust" 33 C. Intention of the Donor 36 D. Gifts or Trusts for Unincorporated Associations 1. Unincorporated Associations 40 2. Incorporated Entities 42 3. Bequests to Christian Brothers 43 4. Conclusion 45 E. Alternatives to Purpose Trusts: Contract, 46 Agency, Mandate F. Enforcement of a Charitable Use 47 G. Ownership of Property for a Charitable Purpose 49 50 V. FACTS 51 A. Vancouver College 51 1. The Parties 52 (a) The Archbishop and the Archdiocese 52 (b) The Christian Brothers 54 (c) The Local Committee 55 2. The Conditions 56 3. Fund-Raising 58 4. Acquisition of the Land 68 5. Incorporation of VCL 69 6. Declarations of Trust 73 7. Operation of the School 74 (a) Financing 75 Brother Pascal Rowland et al. v. The Christian Brothers of Ireland in Canada et al. Page 6 (b) Management 80 8. Ownership 82 B. St. Thomas More Collegiate 86 1. The Parties 88 (a) The Archbishop and the Archdiocese 88 (b) The Christian Brothers 89 (c) The Parishes 90 2. Commitments by the Archdiocese and the Congregation 3. Acquisition of the Land 90 4. Construction of the School 91 5. STM Agreement 92 6. Incorporation of STM 93 7. Operation of the School 96 (a) Operating Deficits 98 (b) Expansions 99 8. Ownership 104 (a) Marian High School 105 2000 BCSC 1221 (CanLII) (b) Joint Equity Agreement 107 111 VI. ANALYSIS 114 A. Vancouver College 115 1. Intention to Create a Trust 115 2. Subject-Matter of the Trust 122 3. Object of the Trust 124 4. Settlors of the Trust 125 5. Trustee of the Trust 127 6. Summary 130 B. St. Thomas More Collegiate 130 1. Intention to Create a Trust 130 (a) The Archdiocese 134 (b) Incorporation of STM 135 (c) Transfer of STM Shares to CBIC 136 (d) Transfer of Land to STM 138 2. Subject-Matter of the Trust 138 3. Object of the Trust 139 4. Settlor of the Trust 139 5. Trustee of the Trust 140 6. Rectification of STM's Share Register 140 7. Summary 143 VII. EVIDENCE TENDERED BY REPRESENTATIVE COUNSEL 144 VIII. COSTS 144 IX. SUMMARY OF FINDINGS 145 I. INTRODUCTION [1] Vancouver College and St. Thomas More Collegiate are Catholic schools located in Vancouver and Burnaby, British Columbia. Vancouver College has operated as a school since 1922 and St. Thomas More Collegiate Brother Pascal Rowland et al. v. The Christian Brothers of Ireland in Canada et al. Page 7 since 1960. This case concerns the beneficial ownership of the shares of Vancouver College Limited ("VCL") and St. Thomas More Collegiate Ltd. ("STM"), corporations which hold the property in which the schools operate. [2] The schools claim that the shares are owned by trustees for the specific charitable purpose of operating the schools. The Liquidator of the Christian Brothers of Ireland in Canada ("CBIC"), a corporation incorporated by special Act of Parliament in 1962, claims that CBIC owns 2000 BCSC 1221 (CanLII) them. The Liquidator wishes to sell the shares and use the proceeds to pay claims for damages brought against CBIC by men who as boys in the 1960s to the 1980s were victims of sexual, physical and emotional abuse at the Mount Cashel Orphanage in St. John's, Newfoundland. The schools resist the Liquidator's claims. [3] The path to these court proceedings is both tragic and tortuous. In addition to the schools, CBIC and the Liquidator, these proceedings involve the Congregation of Christian Brothers, established in Ireland as a world-wide Catholic teaching order in 1802; many individual Catholics and non-Catholics in Vancouver and neighbouring communities who, starting in 1922, contributed funds and volunteer efforts to establish and maintain the schools; close to 90 men who as boys suffered abuse at the hands of some members of the Congregation at Mount Cashel and other schools operated by the Congregation (not including Vancouver College and St.
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