RELIGIOUS INSTITUTIONS ANDTHE LAW IN ONTARIO: AN

HISTORICAL STUDY OF THELAWS ENABLING RELIGIOUS

ORGANIZATIONS TO HOLD LAND

A .H. Oosterhoff*

I. INTRODUCTION

In 1979 the new Religious Organizations' Lands Act' was passed. Itis the latest Ontario statute in a long series of enactments dating back 150years which enable religious institutions to hold land for their purposes.The Act does not present a break with the past. Rather, it extends theprivileges theretofore enjoyed solely by Christian and Jewish religiousinstitutions to all legitimate religious organizations. Its major purpose isto make the law more attuned to today's pluralistic society in which thereare numerous religious groups, many of which have been established inthis province since the Second World War, which do not stand in theJudaeo-Christian tradition.

It is significant that the Act provides a non-exclusive list oforganizations that may take advantage of it:2 l'histoire se r;pi'te. Thefirst statute respecting religious institutions also contained a list ofreligious societies for whose benefit it was enacted.' However, while the1979 Act lists what would appear to be virtually all religious persuasionspresently represented in this province, there are significant gaps in thelist contained in the 1828 Act. Specifically, the Church of England andthe 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 RELtGIOUSINSTITUTIONS (H. Leal. Chairman 1969) [hereafter cited as OLRC RI-PORT]. The authorof this article was engaged by the Commission as Director of the Reference. This articleis based in part on research conducted for the Report. However. the opinions nowexpressed 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 totake advantage of the Act these organizations must satisfy certain additional criteria.namely. they must be charitable, organized for the advancement of religion and theconduct of religious worship. and be permanently established both as to the continuity oftheir existence and as to their religious beliefs, rituals and practice. The Commission didnot recommend that such a list be included: OLRC REPORT. It . Appendix A (DraftBill). at 63.

1 Religious Societies Relief Act. S.U.C. 1828. c. 2.

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

II. HISTORICAL BACKGROUND

A. Corporate Capacity

The Preamble of the 1828 Act recited that religious societies ofseveral named denominations of Christians had experienced difficulty inholding title to land for their purposes because they were not corporatebodies. To remedy this disability it enabled them to hold land by meansof 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 otherreligious body was not a juristic entity. It was merely a voluntaryassociation of persons and, as such, incapable of holding land or ofbringing or defending actions in its collective name. In this respect areligious organization was no different from any other unincorporatedassociation. All such bodies had the same disabilities, 5 unless a specialcapacity 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 oftrustees, or have a special status conferred upon it by the state. For abody which may be expected to exist in perpetuity, such as a church, itwas inconvenient and expensive to have its land held by trustees.Whenever one or more of the trustees died, became incapacitated ormoved 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, at922 (Ch. 1852); Kingston v. Salvation Army, 6 O.L.R. 406, at 410 (K.B. 1903), aff d 7O.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 (anunincorporated association cannot take a lease); Henderson v. Toronto Gen. TrustsCorp., 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 Unincorporated Associations, 6CAN. 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. LocalUnion No. 33, 5 O.L.R. 424 (C.A. 1903).

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necessary to convey the land to newly appointed trustees. For this reasonthe legislature in 1828 chose to give the named religious organizations aspecial quasi-corporate status, or rather, it conferred that status upon thetrustees appointed by them to hold their temporalities. The effect of thestatute was to eliminate the need for new conveyances each time a newtrustee was appointed and to permit the trustees to take title in acollective 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 thiskind of enabling legislation. By the Edict of Milan of 313 AD and thelater edict of 321, Constantine recognized the proprietary rights of theChristian Church and permitted the faithful to leave their property to the"holy and venerable congregation of the Catholic Church".' Thereafterthe local congregations and later the Church universal were regarded ashaving juristic personalities.8 Similarly, charitable foundations such asmonasteries, alms houses and orphanages, controlled by the Church,were regarded as corporations. The idea of corporate personality derivedfrom the Roman collegia and universitates, societies organized by tradesand professions. The concept was sustained and nurtured by the canonlaw and was subsequently imported into England and continental Europeby the Church. Roman law via ecclesiastical law was, thus, the origin ofthe English ecclesiastical corporation. io

The corporate idea found its first expression in England in thevillage church, represented by the parson. The latter was regarded as acorporation 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 passedautomatically to his successor upon his death." : If the parish wasendowed, that is, owned by another, the title would be vested in theparson by the owner as a temporal recompense for his spiritual care. Thisis the advowson. 14 Moreover. as often happened, if the title was

7 P. DUFF, PERSONALTY IN ROMAN PRIVATE LAVX 173 t1938. 1971 repri.)s Id. at 175-77.9 Id. at 177-79.1o W. BLACKSTONE. I COMMENTARIES ON THE LAW OF ENGtAND

4 6 8 -6 9 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.

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appropriated, that is, annexed to a spiritual corporation such as amonastery, it became the perpetual parson of the church and it appointeda deputy or vicar to attend to the spiritual needs of the parish. '5

The corporate idea was later extended to the collegiate, abbatial andepiscopal churches as well. The collegiate churches were corporationsaggregate. However, the abbot and bishop were regarded as corporationssole.16 In addition, churchwardens were regarded as being a kind ofcorporation at common law. They had title to the goods and chattels ofthe 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 acorporate identity derives from the state, the early church corporationswere not thought of as having been created by the state because they hadalways been there. 8 Later ecclesiastical and lay corporations werethought to have derived their status by prescription, that is, by the king'spresumed intent, since they existed for a "time whereof memory of menrunneth not to the contrary". a Since early modern times, corporationscould only be created by express consent of the state, either by letterspatent, Act of Parliament 20 or, as is common today, under a generalincorporation statute. 21

B. Mortnain

With the expansion of the religious corporations in England therearose a concern that much of the land in the realm was being taken out ofcommerce and being held in perpetuity in the dead hand. This concernled to the enactment of the early statutes known as the Statutes ofMortmain, the first of which was contained in Magna Carta. 22 Thesestatutes forbade alienation to religious houses and, subsequently, to allcorporations, ecclesiastical or lay, except under licence from the feudallord and, later, the king.23

During the Reformation the religious houses were dissolved andtheir property was appropriated by the Crown.24 However, the idea of theChurch as a corporate body, represented by its several officials, was notabolished. It was simply transferred to the new reformed church. On the

I' Id. at 384-85.11 Supra 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 Historical and Comparative Review, 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).

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other hand, the mortmain fear continued after the Reformation and wasgiven new expression in the Charitable Uses Act,2: usually referred to asthe Mortmain Act. This Act was not directed solely at corporations, butat charities whether incorporated or not. Its purpose, however, was thesame, namely to prevent the tying-up of land in perpetuity.2'

The Act prohibited devises of land to charities27 and severelyrestricted conveyances to charities or upon charitable trust. A con-veyance, charge or encumbrance of lands, or of personality to be laid outin the purchase of lands, upon trust for any charitable use, was declaredto be void, unless it was by deed executed at least twelve months beforethe grantor's death, the deed was enrolled in the Court of Chancerywithin six months after its execution, and the conveyance took effect inpossession forthwith without any power of revocation in the grantor, hissuccessors and assigns. The Act applied to both gifts and purchases.

The early Statutes of Mortmain as well as the Act of 1736 becamepart of the law of Ontario and had a restrictive effect on the power ofreligious institutions to hold land.

C. The Established Church

Another factor which inhibited the holding of land by religiousorganizations was the restrictions and disabilities imposed upon thosewho dissented from the Church of England as established during theReformation, that is, the Nonconformists or Dissenters, both Protestantand Roman Catholic. They were required to attend the Church ofEngland and to take prescribed oaths when seeking office by the Acts ofUniformity.28 Failure to do so rendered them liable to penalties.Subsequent statutes, commencing with the Toleration Act,2u removedmost of these disabilities.3"

The Church of England was established by law at the time theCanadas were settled by the British. This was so at common law, for thechurch was recognized as a separate estate under the protection of thestate 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. SeeOosterhoff. supra note 23. at 279.

28 Uniformity Act 1548. 2 & 3 Edw. 6. c. 1: Uniformity Act 1551. 5 & 6 Edw o 6,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); Libertyof Religious Worship Act. 18 & 19 Vict.. c. 86 (1855): Promissory Oaths Acts, 31 & 32Vict.. c. 72 (1868): 34 & 35 Vict., c. 48 (1871).

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by Magna Carta. 31 However, several statutes passed during the reign ofHenry VIII 32 and, more particularly, the Acts of Uniformity 33 recog-nized the Church of England as a separate national Church subject to theking and imposed by law the doctrine and polity of the Church.

"Established" in this sense does not merely mean the recognitionby the state and the protection of a religious organization's property.Today all bonafide religions are so recognized and protected. The wordcan be used in that sense. 34 Its usual connotation with reference to theChurch, however, is the national Church or state-recognized form ofreligion. 35 "The process of establishment means that the State hasaccepted the Church as the religious body in its opinion truly teaching theChristian faith and given to it a certain legal position and to its decrees ifgiven under certain legal conditions certain legal sanctions. ' '

3", Thisencompasses a duty on the state to give support to the Church, notnecessarily by way of endowment,37 but by seeing to it that the doctrineand polity of the Church are maintained. 38 The Church of England is inthis sense the established church in England. Similarly, the Church ofScotland is the established church in Scotland. 39 The fact that the latterwas one of the two established churches in the United Kingdom when theCanadas were settled later became significant in the settlement of theClergy Reserves question in Upper Canada.

D. Church and State in the Canadas

When the North American colonies were settled by the British, theChurch 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, 76L.J.K.B. 690, at 700.

32 Ecclesiastical Appeals Act 1532, 24 Hen. 8, c. 12; Submission of the ClergyAct 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).311 OXFORD 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 andIreland were fused as the United Church of England and Ireland. However, this Unionwas dissolved by the Irish Church Act 1869, 32 & 33 Vict., c. 42 and the Church ofIreland was disestablished.

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Virginia and Maryland, 4 Nova Scotia"' and New Brunswick.4" It alsoseems that in some of the New England states a form of Protestant churchestablishment existed, which consisted of an amalgamation of theecclesiastical and the municipal jurisdictions. 4

As to Nova Scotia, it had been ceded by the French to the British bythe Treaty of Utrecht in 1713. This Treaty guaranteed to the inhabitantsthe right to enjoy the free exercise of their religion. 4 However, becauseof the refusal of the Acadians to swear the oath of allegiance to theBritish Crown and the exigencies of the wars with France, many wereforcibly removed from the province in the great expulsion of 1755-56."In those circumstances and taking into consideration the determination ofthe British to anglicize Nova Scotia, the establishment of the Church ofEngland and the suppression of the Roman Church by the statute of 1758is understandable.46

While the British had similar plans to anglicize Quebec after itsconquest in 1759, circumstances there, particularly the large Frenchpopulation, made this impossible. The need to assure a population loyalto the British Crown in view of the threat of war from the Americancolonies and the efforts of sympathetic governors ensured that the Churchof Rome remained defacto the established church in Canada under royalsupremacy. The inhabitants had been guaranteed the free exercise of theirreligion by the Treaty of Paris and the Proclamation of 1763 and thisright, together with the right to tithe the Roman Catholic inhabitants, wasconfirmed by the British North America (Quebec) Act. 7 Nevertheless,the British intention was clearly to establish the Church of England inQuebec and merely to tolerate the free exercise of the religion of theRoman Catholic inhabitants.4 8

That the Church of England was never established in Quebec wasdue principally to the failure of the intended process of anglicization, andalso 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 MoreEffectual 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 ThisProvince, 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.

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part of the province. This led to the division of Quebec into the twoprovinces of Upper and Lower Canada by the Constitutional Act."

The sections of the Constitutional Act dealing with religionevidenced a clear intention that the Church of England be established inUpper Canada, but left its actual establishment to local initiative whencircumstances should permit."0 Section 35 provided for the collection oftithes for the support of a Protestant clergy; sections 36 and 37 providedfor the setting aside of one-seventh of the lands in the province, theso-called Clergy Reserves, for the support and maintenance of thisclergy; and section 38 provided for the constitution of parsonages orrectories "according to the Establishment of the Church of England" inevery township or parish upon the authorization of the King, and for theendowment of the rectories and parsonages with land.

The subsequent history of these provisions demonstrates that theChurch of England was not in fact established in the province. The rightto collect tithes was abrogated by an Act of the provincial legislature in182151 because it was thought politically inexpedient to attemptcollection.52

The Clergy Reserves question took much longer to settle andresulted in much acrimonious debate. A brief summary of thatcontroversy will suffice. 53 Initially the reserves were leased, but theincome from them was low. This revenue was paid not only for thesupport of the Anglican clergy, but also for the support of the Church ofScotland and other denominations which had seceded from that Church,the Church of Rome, the British Wesleyan Methodist Church and theMethodist Episcopal Church, the latter being affiliated with theAmerican church of that name. 54 The Clergy Reserves (Canada) Sale Actof 1840,-- an Imperial statute, authorized the sale of the reserves, theproceeds to be distributed to the Church of England (one-third) and theChurch of Scotland (one-sixth), with the residue to be used for purposesof public worship and religious instruction in Canada. Several otherProtestant churches and the Roman Catholic Church eventually benefitedfrom this settlement, although some voluntarist groups were reluctant toaccept any moneys from this source.- 6 Finally, after enabling legislation

19 1791,31 Geo. 3, c. 31.Young, A Fallacy in Canadian History, 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 andImprovements Act of 1827, 7 & 8 Geo. 4, c. 62, authorized the sale of one-quarter of thereserves.

. A. WILSON,supra note 53, at 197-98.

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was passed by the Imperial Parliament."7 the Clergy Reserves Act of185458 secularized the reserves. Two funds were created, one each forUpper and Lower Canada, for the benefit of municipalities. The Actprovided for the continuation of existing stipends during the lives of theincumbents, with the possibility of commutation, in which case thecapital value was to be paid to designated churches. In the result, theChurch of England, the Church of Scotland, the Roman Catholic Churchand the Methodist Church received substantial capital endowments out ofthe reserves.5 9

No rectories were constituted until 1836 when forty-four wereendowed with glebes. 60 This event caused so much political and religiousdebate that section 38 of the Constitutional Act, permitting theestablishment of rectories, was repealed by a provincial statute in 185 1. iThe rectory endowments were eventually sold, since they proveddifficult to manage, 62 pursuant to a provincial enabling statute of 1866."3

Although the Clergy Reserves question and related matters do nothave a direct bearing on the matter under consideration here, they doillustrate the political and religious climate in which The ReligiousSocieties 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 of1828 provide as follows:

WHEREAS religious societies of various denominations of Christians finddifficulty 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 capacityto take and hold the same in perpetual succession: And whereas it is expedientto 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 anoccasion to take a conveyance of land for any of the uses aforesaid, it shalland may be lawful for them to appoint Trustees. to whom. and their

57 Canada Clergy Reserves (Powers to Provincial Legislaturel Act, 1853. 16 & 17Vict., c. 21.

-11 S.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.

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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 nameexpressed in such deed, shall be capable of taking, holding and possessingsuch land, and of commencing and maintaining any action or actions in law orequity for the protection thereof, and of their right thereto.

The Churches of England and Rome were not included in the list ofreligious societies which could take advantage of the Act. The formerwas regarded by many as the Church established by law and, as has beenseen, the common law accorded corporate status to the Church, or at leastto certain of its officers, such as rectors, bishops and churchwardens.Hence the Church of England was not under the disability that the Actsought to relieve. Nevertheless, it seems that in some cases specialtrustees had to be appointed by the executive council to take title to theglebes assigned to the Church of England."5

The canon law accorded corporate status to the officers of theRoman Catholic Church, but such status had not been recognized by thecommon law since the Reformation. Hence, although under the samedisabilities as the Protestant dissenting churches, it was deliberatelyomitted from the list. The Legislative Council had wanted to include it,but the Executive Council was of the opinion that this Church alreadyenjoyed the privileges being conferred by the Act. 66 It is doubtful thatthis 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 builtwas conveyed in 1822 to the Right Reverend Alexander McDonell, thefirst Roman Catholic Bishop in the province, and four others as trusteesfor the Roman Catholic inhabitants of York to be used as the site of achurch, churchyard, burial ground and clergyman's residence. The deeddid not confer a corporate status upon the trustees but, although theywere empowered to appoint their successors, a subsequent conveyance tothe new trustees was required.67 The Executive Council had also wantedto expunge the Presbyterians from the list but finally concurred in leavingthem in. The reason for the intended omission is not apparent, but it mayhave been thought that relief was not necessary for the PresbyterianChurch since it was one of the two established churches of the UnitedKingdom.

The essence of the Act of 1828, therefore, was to enable churches totake conveyances of land for their purposes in the name of trustees who,with their successors in perpetual succession, by the name expressed inthe deed, could hold the land and commence and maintain actions toprotect it. Thus, the trustees formed a kind of corporation since theyenjoyed perpetual succession and could adopt a collective name. Latercases 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).

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bringing actions and holding land." However, they were not in fact acorporation in the ordinary sense of the word. The legislation did notmake provision for a common seal,"' nor did it empower the trustees tomake bylaws to govern their affairs. The powers of the trustees to dealwith the property were under the direct or ultimate control of thecongregation which appointed them. Hence, although they were en-dowed with some corporate attributes, they could not be said to constitutea true corporation. Such limitations were apparent in later legislationwhich circumscribed the trustees' powers.

The objectives for which religious societies could hold land wereexpanded in later legislation. However, under section 2 of the Act onlyfive acres could be acquired by any one congregation for the prescribedpurposes. Although this restriction was later dropped, it was evidencethat the legislature was apprehensive about the accumulation of land bythe church. Later legislation imposed other restrictions which werefounded on the same concern.

Finally, sections 3 and 4 of the Act required the trustees to registerthe deeds taken under it within twelve months of their execution andallowed 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 anexclusively English ancestry.

As noted earlier, the Church of England did not require legislationof this kind since its officers enjoyed corporate capacity by the commonlaw. However, as a result of the industrial revolution it became apparentin England that additional churches were required and legislation waspassed on several occasions to assist in, or to enable the financingthereof. Some of these statutes contained provisions that foreshadowedthe 1828 Act. Thus, for example, section 1 of the Gifts for Churches Actof 180370 provided that any person could, by deed or will, give land of upto five acres or chattels of up to £500 towards erecting, repairing orpurchasing 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 ofAinleyville Congregation v. Grewer. 23 U.C.C.P. 533 (1874); Humphreys v. Hunter, 20U.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 laterconsolidations.

70 43 Geo. 3. c. 108.

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or Law to the contrary notwithstanding". The instrument had to beexecuted at least three months before the death of the grantor or testator.

The Church Building Act of 182471 contained a provision similar tothe 1828 Act in that it provided for the vesting of the site of a church andcemetery in a person or persons and their successors in perpetualsuccession as bodies corporate in the name specified in the sentence ofconsecration of the church, without liability to forfeiture under theStatute of Mortmain. This Act applied to churches built by subscriptionfor the Church of England.

On the other hand, while the Places of Religious Worship Act of181272 provided for the registration of places of religious worship fordissenters, it did not make provision for the holding of land by trusteeshaving perpetual succession. That right was not conferred in Englanduntil the Trustees Appointment Act, in 1850.73

A private statute for the Roman Catholic Church in York precededbut made similar provisions to the Act of 1828. By the York RomanCatholic Congregation Act of 1821,'7 James Baby, Reverend AlexanderMcDonell and John Small, who had received one acre of land by letterspatent in York in trust for the use and accommodation of a RomanCatholic clergyman, were granted the right to sell the land and to buyother land for the same purpose, in trust and with succession andlimitation of that trust so as to secure the same in perpetuity.

Several pieces of legislation existed, therefore, on which the Act of1828 could have been based. Nevertheless, it would seem that its originsdid not lie exclusively in England.

A similar but more extensive act was passed in Nova Scotia in thesame year. Section 1 of The Act Concerning Religious Congregationsand Societies7 5 permitted any society or congregation of Christians oftwenty or more persons who were capable of legally contracting toappoint trustees, to give the trustees a name of office and to authorizethem to hold lands for

the Scite of their Church, Chapel or Place of meeting for Public Worship orPlaces 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 thesupport and maintenance of the said Congregation and the Ministers, Officersand Members thereof, or in aid or support of other lawful objects, connectedwith such religious establishments.

Under sections 3 and 4 the trustees had perpetual succession and couldsue and be sued in their name of office. Under section 5 eachcongregation was limited in the amount of land it could hold to an amountnot exceeding an annual value of£ 2,000 and to personal property notexceeding£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.

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5, the Act did not apply to the Church of England, since it wasestablished by law in the province. Protestant dissenters had in fact beenempowered to erect and build meeting houses for public worship in Nova

Scotia since 175876 and in New Brunswick since 1786. 7 7 However, in

neither of the statutes which permitted them to do so was any provisionmade for a method of holding land for that purpose.

It is probable that the Nova Scotia and Ontario statutes were derivedin part from similar legislation in New England. Many of the inhabitantsof both provinces hailed from the United States and maintained a closeconnection with the churches in that country. They were undoubtedlyaware of the legislation in several states enabling churches to hold land.

For example, by a provincial statute enacted in Massachusetts in 1754"s

the ministers of the several Protestant churches were made corporationssole and could take lands for a parsonage or for the use of the ministry in

perpetual succession. This statute as re-enacted after the AmericanRevolution provided:

That the deacons of the several protestant churches, not being episcopalchurches. 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 thesame ....

While it is impossible to trace the exact provenance of the Act of

1828, it is likely, therefore, that it had both English and Americanantecedents. Nevertheless. the final product was exclusively an UpperCanada product, tailored to suit the prevailing political and religiouscircumstances 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

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basis as churches. 80 The statutes contain recitals virtually identical to the1828 Act, namely that difficulties had been encountered by personswishing to hold land for these purposes for want of a corporate capacity.Both statutes confer perpetual succession on the trustees, enable them toadopt a collective name and empower them to sue and be sued in thatname.

The 1828 Act was amended on numerous occasions and the powersand duties of the trustees and the religious institutions which theyrepresented 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 forseveral reasons. First, section 1 of the 1840 Act repealed the quantityrestriction contained in the 1828 Act. Apparently, experience showedthat five acres were inadequate for many churches. Second, section 2empowered the religious societies named in the 1828 Act to hold land"for the support of public worship and the propagation of Christianknowledge, as well as for the purposes mentioned in the said [ 1828] Act,any thing in the Statutes commonly called the Statutes of Mortmainnotwithstanding". Third, under section 3 the rights and privilegesconferred by the Act were extended to the Roman Catholic Church, "tobe exercised according to the government of the said Church".Apparently, the rights conferred by the 1828 Act were not given to theRoman Catholic Church. This was probably inadvertent and appears tohave been corrected five years later.

There was no need to add the Church of England at this time, since aspecial statute was passed at the same time to make provision for thetemporalities of this Church.82

The next amendment took place in 1845 when the powers conferredby the 1828 Act (including, for the first time, the right to hold land for aresidence for a minister) were extended to all religious societies orcongregations of Christians, "anything in the Statutes commonly calledthe 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 thisProvince 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 toTrustees 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 thereinMentioned, S.U.C. 1840, c. 73.

82 An Act to Make Provision for the Management of the Temporalities of theUnited Church of England and Ireland in this Province, and for other Purposes thereinMentioned, S.U.C. 1840, c. 74.

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notwithstanding".8 3 This would, therefore. include the Roman CatholicChurch. It should be noted. however, that the rights conferred by the Actof 1840 were not extended to all Christian denominations in 1845.

It is apparent, therefore, that in 1845 there continued to be twoclasses of Christians, namely. all Christian denominations who had therights conferred by the 1828 Act. and the denominations named in thatAct, to which the Roman Catholics were added in 1840, who had theadditional right of holding land for the support of public worship and thepropagation of Christian knowledge. This also is apparent from the 1859consolidation, which continued the distinction."

Why the additional power to hold land for the support of publicworship and the propagation of Christian knowledge was conferred in1840 is unclear. It may have been thought advisable for the benefit ofdenominational schools, for the support of missions, or for themaintenance of the church press and publications." ' The latter wassubsequently specifically provided for, perhaps at the request of theMethodists 86

2. Registration Requirements

Until 1873, when the first comprehensive statute respectingreligious institutions was enacted. there were several provisions underthe legislation respecting registration of conveyances taken by trustees.Section 3 of the 1828 Act required that these be registered within twelvemonths of execution, but often this was not done and validatinglegislation was required.17 The registration requirement was retained formany 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.

14 An 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.

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3. Powers of Sale, Mortgage and Lease

The 1828 Act was very limited in scope. It permitted the acquisitionof land by religious societies, but conferred no powers to dispose ofunnecessary land, to lease it, or to raise money by way of mortgage on itfor their purposes. Undoubtedly these powers were exercised from timeto time, but this caused title problems. Hence a series of statutes waspassed 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 orbody having the direction of the temporal affairs of the society, wasconferred in the 1849 Religious Societies Relief Act.8" The trustees hadto apply the moneys in the purchase of other lands or for the improvementof other lands held by them in trust for the church. Moreover, accordingto section 2 of that Act, if land had been given to them for specialpurposes, it could not be sold without the consent of the grantor or hisrepresentatives.

A power to mortgage was given to the trustees in 1850.90 They couldthereafter give a mortgage on the lands of the society to secure debtsincurred for the building, repairing and improving of the church.

The power to lease was conferred in 1855 in An Act to Authorize theSale or Lease of Lands in Upper Canada, Held in Trust for the Use ofCongregations or Religious Bodies. 9' The difficulty in this respect asrecited in the Preamble of that Act was that the trustees had no expresspower to lease, and so could not manage the lands under their controleffectively in that they could not lease them so as to bind theirsuccessors. Sections 1 and 4 permitted the trustees, with the consent ofthe religious society, to lease any land not immediately required by it,except land held for the purpose of erecting a church or for a burialground, for a period not exceeding twenty-one years, with power to enterinto any covenant for the renewal of the lease at the expiration of any orevery term for a further twenty-one-year or lesser period. Section 1 alsoprovided for the amount of the rent, its calculation and collection.Further, section 5 authorized the trustees to sell any land no longernecessary for the religious society by public or private sale with thesociety's consent, and sections 6 and 7 required the trustees to accountannually to the society; they could also be called upon to account by theCourt 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 notedthat, although the society had to authorize the sale, it could not authorize that it becarried 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 areErected in Upper Canada to Mortgage the Same to Pay off the Debts due by SuchChurches, S.C. 1850, c. 78.

"' S.C. 1855,c. 119.

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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

leases without confirmation for twenty-one years or three lives.94 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

meeting of a religious society or congregation. 1

" 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).."7 An 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 secessionthe 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)

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5. Joint Houses of Worship

It seems that on occasion two or more religious societies wished tobuild a joint house of worship. An enabling statute permitting them to doso was passed in 1869.98 The Act provided for the appointment by eachsociety of trustees who were given the same powers as those enjoyed bytrustees 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 theProvince of Ontario of 187311 was the first attempt to consolidate andimprove the various statutes passed since 1828. The Act contained anumber of new provisions.

First, section 1 extended the purposes for which land might be heldto include a bookstore, printing or publishing office and any otherreligious or congregational purpose whatsoever. As earlier noted, thiswas probably at the request of the Methodist Church which controlled asubstantial press.

Second, section 19 of the Act provided that it did not affect anyspecial act obtained by any religious society or congregation ofChristians, but should be construed as supplementary thereto. Thisprovision was necessary, because by this time numerous private statutesrespecting individual churches, as well as denominations or subdivisionsthereof, had been enacted.

Third, the Act contained a mortmain provision which was muchmore severe than the five-acre restriction contained in section 2 of the1828 Act. Its introduction and the subsequent adoption of a generalmortmain statute were the cause of many problems as regards churchlands.

B. Mortmain

Although both aspects of mortmain, that is, the restrictions againstcorporations holding land and the restrictions on conveyances tocharitable uses, became part of the law of Ontario, the Mortmain Act of1736100 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.

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The law of mortmain was not generally thought to be applicable to

the colonies' and an early Upper Canada decision followed thatview. 1'02 In a subsequent case, Anderson v. Toddio however, the courtreversed itself. That case concerned the validity of a will in which thetestator left all his property, real and personal, on trust for the use of the

Canadian Wesleyan New Connexion Body of Missionaries in Africa. Thecourt held that the Mortmain Act of 1736 was in force in Upper Canadadespite its earlier opinion to the contrary. What had happened in the

meantime was that two statutes had been passed by the provinciallegislature which enabled religious societies generally and the Church ofEngland specifically to hold land notwithstanding any provision to the

contrary in the Statutes of Mortmain. ,o4 In the case of the Church ofEngland, however, this was made subject to a proviso that land conveyed

to a bishop or a parson or rector, or other incumbent, for the endowmentof 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 personconveying it. '0o

The court thus argued that, since the legislature specifically made

reference to the Statutes of Mortmain by excluding their application toreligious 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, asearlier noted, the non obstante clauses in these statutes were simplycopied from English statutes respecting churches. The real reason for the

decision appears to be that, if the Statutes of Mortmain were not held tobe in force in Upper Canada, then the Church of England would be morerestricted in its rights to hold land than religious societies generally, forthe statute respecting the latter did not contain any proviso as to the date

of execution of conveyances. The court thought that that result surelycould not have been intended by the legislature. ,0 7 Hence the devise to

the Canadian Wesleyan Methodists was not saved by the non obstanteclause 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. 16.105 S. 16 of the Churches Temporalities Act was construed as applying to a wIll

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 acorporation.

106 Anderson.supra note 103. at 88. 90. 91.107 id. at 89. 90.

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Whatever one may think of this reasoning, the law of mortmain wasthereafter firmly established in this province.' 0 Subsequent statutesdealing with specific religious institutions usually addressed the ques-tion. One of the first was a statute respecting the Wesleyan MethodistChurch. 1 9 Section 1 of that Act enabled the corporation established bythe Act to hold land in mortmain without letters of licence."10 Thisprovision was typically appropriate to corporations, however, and didnot necessarily cover assurances for charitable uses against which theMortmain Act of 1736 was designed. Moreover, section 6 of the Actlimited the amount of land that could be held to£5,000 in annual value.

Later statutes contained more stringent provisions which are similarto the general Act of 1873.111 The Property of Religious Institutions Actof 1873112 permitted religious societies or congregations of Christians toacquire land by gift, devise or bequest if the instrument was made at leastsix months before the testator's death. However, the aggregate annualvalue of lands so received could not exceed $1,000 and the lands soacquired had to be sold within seven years. If they were not sold, theyreverted to the person from whom they had been acquired, or his heirs,personal representatives or assigns. Thus, although up until this timechurches had been free to and did receive lands by gift or devise for theirpurposes, 113 their right to do so was now to be severely restricted.

It was held, however, in a wide construction of this provision that adevise to a church to be used as a manse did not have to be sold withinseven years, since that was one of the purposes for which churches mighthold land by the statute. But the trustees could not hold on to the land andlease it." 4 Moreover, even if the land taken under a devise had to besold, the seven-year period did not begin to run until after the land vestedin 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, supranote 23, at 302.

109 An Act to Incorporate the Benevolent Societies of the Wesleyan MethodistChurch in Canada, S.C. 1851, c. 142.

I0 Cf. An Act to Incorporate the Church Societies of the United Church ofEngland 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 MissionarySociety", S.O. 1873, c. 146, s. 2; An Act to Incorporate "The Toronto BaptistMissionary Union", S.O. 1873, c. 145, s. 2; An Act to Incorporate the Regular BaptistMissionary 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 toAuthorize the Sale or Lease of Lands in Upper Canada, Held in Trust for the Use ofCongregations or Religious Bodies, S.C. 1855, c. 119, appears to have assumed thatlands could be acquired in this manner.

14 Sills v. Warner, 27 O.R. 266 (C.P.D. 1896). In fact, an amendment to thesame effect as the decision in this case was made in the 1887 revision: An Act respectingthe Property of Religious Institutions, R.S.O. 1887, c. 237, s. 23. There appears to beno amending statute authorizing this change. Moreover, the testator in the Sills case haddied before the amendment.

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person for life with remainder to a church, time did not begin to run untilthe 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 forapplication of the proceeds to a church.'" 6 This was in line with the casesdecided under the Mortmain Act of 1736."7 but does not seem warrantedby the language of the statute. The effect of the cases was that unless theconditions specified in the legislation were complied with, or unless thereligious society was empowered by special act to acquire land by deed ordevise and to hold it in mortmain. as some churches were, the devisewould be subject to the Mortmain Act. I s

The enactment of the English mortmain legislation in Ontariobrought about a change with respect to religious institutions. Englandhad consolidated and re-enacted its mortmain statutes in 1888 in theMortmain and Charitable Uses Act."" Three years later another statutewas passed which permitted devises of land to charities but required theland to be sold within one year of the testator's death, and redefined"land" to exclude from the restrictive legislation gifts of money securedon land and gifts of land on trust for sale. M20 The latter statute was copiedone year later in Ontario's own Mortmain and Charitable Uses Act.'"'Section 4 of the Ontario Act required that the land be sold within twoyears of the testator's death or such extended period as might be allowedby the court. Under section 5. failure to sell it within this time causeddivestment and required a sale by a public official, the proceeds of salebeing returned to the charity. Section 7 of the Act permitted land to beretained by the charity upon application to the court, if it was required forthe charity's actual use and occupation.

In 1902 Ontario enacted the equivalent of the 1888 Englishlegislation. 2 2 The effect of the two statutes was that: ( 1) conveyances tocorporations were voidable, that is. subject to forfeiture, unless a licencein mortmain or a private statute permitting the corporation to hold land inmortmain 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 fulland valuable consideration) be made at least six months before the

115 Re 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).521 S.O. 1892. c. 20.

12' The Mortmain and Charitable Uses Act. 1902. S.0, 1902, c. 2 (consolidatedas R.S.O. 1897. c. 333).

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assuror's death; and (3) devises to charities were valid, but the land hadto be sold within two years, or else they were divested. ' 23

The two statutes were consolidated in 1909 and at that time therequirement of sale was extended to inter vivos conveyances as well. II2

,

This change appears to have been made because of a continuing fear ofthe accumulation of large amounts of land in the hands of charitableorganizations, especially churches. 2 5 The old mortmain phobia clearlywas not yet dead!

Although minor amendments have been made over the years, the1909 statute in essence remains in force in Ontario. 2

1 This means thatreligious institutions are subject to its restrictions. In other words, areligious society which has acquired land must dispose of it inaccordance with The Mortmain and Charitable Uses Act unless the landis being used for the purposes set out in the Religious Organizations'Lands Act. '27 The latter Act has precedence over the former because it isa specific statute, whereas the former is general. ' 2 8

The enactment of the 1892 and 1902 mortmain legislation has hadlittle effect on incorporated religious institutions. It may be that until theenactment 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 forpayment of the proceeds to a church were now, of course, valid. '31 Therestriction contained in the 1873 Act Respecting the Property ofReligious Institutions in Ontario 32 as well as similar restrictionscontained in private acts, which required that a gift or devise of land bemade at least six months before the death of the grantor or testator, wereheld to be impliedly repealed by the Mortmain and Charitable Uses Actof 1892, the latter being an enabling statute and more generous in thisrespect. 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).

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Nevertheless, the section was dropped from the 1912 revision of TheReligious Institutions Act' 4 as being effete."'

The restrictions contained in the Mortmain and Charitable Uses Actare an inconvenience to churches and other charities and manyorganizations have obtained private legislation enabling them to holdland despite that Act. 3 6

C. Extension to other Religious Institutions

Although there were several private statutes respecting the Churchof England, it appears that land was often conveyed to trustees for the useof this Church. Accordingly, a number of statutes were passed in the late1800's extending the provisions of the Property of Religious InstitutionsAct to this Church, provisions being made according to the episcopalnature of its church government and for special situations. 117 Theseprovisions remained in the Act until 1979, when a special statute wasenacted for the Anglican Church. ' 8

Special provisions were also added for the Methodist Church in1904.' 39 However, they were dropped in the 1927 revision,'4 becausethey had been rendered otiose by the Act of Union of 1925. 1

In 1890, the provisions of the Act were extended to "any religioussociety or congregation of Jews. professing the Jewish religion". 4 .

D. Other Changes After 1873

Other amendments to the legislation during this period were mostlyof 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 ReligiousInstitutions Act to the Church of England. S.O. 1879. c. 37: An Act to Amend the ActRespecting 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. 344.14 1 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 RelieveHer Majesty's Subjects from Certain Penalties and Disabilities in Regard to ReligiousOpinion, 9 & 10 Vict., c. 59. s. 2. Presumably there was no need for Upper Canada toadopt that legislation at that time. since the Jewish population in the province was thenonly about .2%. See J. CARELESS. THE UNION OF THE CANADAS: THE GRowirhi OFCANADIAN INSTITUTIONS 1841 -1857. at 31 (1967).

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of trustees and extensions of the power to mortgage lands, 43 a power fortwo or more religious societies to hold land for a burial ground jointly bymeans of trustees, 4 4 a confirmation of the right of the trustees to taketitle in a collective name, 145 a power to take additional land, "t provisionsrespecting notice of sales of land 4 ' and the right to convey land to thetrustees of a new congregation which had separated from an existingone. 1

48

V. THE RELIGIOUS INSTITUTIONS ACT, 1912-1979

A. Major Changes

In 1912 The Religious Institutions Act was consolidated andrevised. '19 There were only a few significant changes in the new Act.First, section 5 of the Act contained a special provision respecting landsdevised, given or transferred to the Methodist Church. Second, section13 permitted trustees to convey to trustees of another congregation wherethe two chose to unite. Third, section 14 permitted trustees to conveyland to any incorporated board of the denomination of which it formedpart. Such conveyances could only be made with the consent of thecongregation in the same manner as for a sale.

B. Subsequent Histolr,

Between 1912 and 1979 only minor changes occurred in thelegislation, mainly of a housekeeping nature. The provisions respectingthe Methodist Church were deleted from the 1927 revision 50 becausethey had become obsolete by the 1925 Act of Union. A new provisionrespecting 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 ReligiousInstitutions, 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.

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C. The 1979 Statute

Apart from some important changes to be mentioned, the Act of1979-5 merely clarified and reorganized the previous legislation. Asnoted at the outset, the most important change effected by the Act was toextend the privileges of holding land by means of trustees with perpetualsuccession to virtually all religious persuasions now represented in theprovince, subject to certain conditions. The purposes for which landmight be held under the legislation were broadened by section 2 toinclude a cremation ground. a theological seminary or similar institutionof religious instruction and a religious camp. retreat or training centre.

Sub-section 10(1) reduced the maximum time for which land couldbe leased to forty years and. by sub-section 12(2). the Mortmain andCharitable Uses Act was expressly made to apply to land not required fora religious organization's actual occupation for one of the purposesspecified in the Act and not leased by it.

Other new provisions included were sections 23 and 24, respectingapplications to the court for directions where a religious organization hasceased to exist, and for a determination of whether a religiousorganization might take advantage of the Act. The latter provision wasnecessary because of the new definition of "'religious organization". 17"

The former sections extending the legislation to the Roman CatholicChurch and to Jewish societies and congregations were deleted as beingredundant. They were covered by the definition of "religious organiza-tion".'-' The same was not true for the section respecting the AnglicanChurch since it applied the legislation in modified form to suit its ownform of church government. Hence, as earlier noted, a separate statutewas enacted for this denomination, incorporating these provisions andextending the provisions of the 1979 Act to it.

The Act always was and remains biased in favour of religiousorganizations with a congregational form of church government. In otherwords, the trustees are appointed by. and derive their authority forspecific acts such as sale, lease and mortgage from, the congregation orother organization, assembled in a meeting called for that purpose. Itmay be questioned whether this model is appropriate for many religiousorganizations. Some organizations, one suspects, are not governed onthat basis at all but are subject to the direction of a local ordenominational board. Those organizations for whom the Act is notsuitable must, therefore, seek incorporation either under the generalstatute 5 6 or under a special act. Section 4 of the Act does make a specialprovision for a religious organization whose property is vested in oneperson 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.

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deemed to be the trustee for the purposes of the Act. This would seem tobe directed to churches organized along episcopal lines.

Vt. COMPARISON WITH OTHER JURISDICTIONS

A. The Canadian Provinces

Legislation similar to the 1979 Act exists in several of the Canadianprovinces, and was enacted at an early stage of colonial, provincial orterritorial development. 57 Several of these statutes remain restricted intheir application to religious societies of Christians. 5 8 Moreover, somemake special reference to specific denominations. 139

Although the English law of mortmain was not received in any of theother provinces,' 60 some of the statutes respecting religious institutionsdo contain mortmain provisions in that they place a limit on the amountof property such institutions may hold. '6'

There is also legislation in some of these provinces permittingincorporation of churches other than under the general incorporationstatutes. 162

157 The Religious Societies' Land Act, R.S.A. 1980, c. R-14; Trustee (ChurchProperty) 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 andSocieties Act, R.S.N.S. 1967, c. 268 (as amended by S.N.S. 1970, c. 66); ReligiousCongregations 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 similarlegislation 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 notapply to the Church of England.

"0 See Oosterhoff, supra note 23, at 272, 298-99, 307. Quebec has mortmainlegislation 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 theyearly value of $8,000, personal property not exceeding $40,000; Quebec Act, s. 9: onearpent within the walls of the cities of Montreal and Quebec, 8 arpents outside the wallsof those cities but within their boundaries, 200 English acres elsewhere; SaskatchewanAct, 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 notexceeding $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.

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B. The United States

There is legislation similar to the 1979 Act in about half of theAmerican states, namely, statutes which enable trustees to take and holdland in trust for a religious society.':' There are one or two states whichhave abolished the disability of unincorporated religious societies to holdland entirely and enable such societies themselves to hold title to land. Itseems, however, that statutes enabling churches to incorporate are morecommon and are used more frequently in the United States than inCanada. Only Virginia and West Virginia lack statutes which permitchurches to incorporate because of constitutional restrictions. However,statutes in these states permit the holding of land by trustees in trust forreligious bodies. The American statutes permitting incorporation bychurches are either specifically directed to churches or are generalincorporation statutes. Of those directed specifically to churches, thereare three types: the trustee corporation, in which the trustees are thecorporation, but hold the land for the benefit of the church; themembership corporation, in which the religious body is itself incorpo-rated; and the corporation sole. The second of these forms is the mostcommon.

Mortmain legislation is in effect in the United States in the sense thatreligious organizations are often restricted in the quantity or value of landthey may hold. 164 In addition, there are death-bed restrictions, that is,testamentary gifts to charity made within a specified period precedingdate of death, and percentage restrictions, that is, testamentary gifts tocharity of more than a specified percentage of the value of the estate."'However, it now appears that these two types of restrictions may beinvalid. In a number of recent cases several statutes imposing theserestrictions have been declared unconstitutional for their denial offreedom of religion, contrary to the First Amendment, 6' or for violationof the equal protection clauses of the Fourteenth Amendment. "7

VII. CONCLUSION

The history of church-state relations has fluctuated sharply over theyears. 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.

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treatment for particular churches and grudging recognition of others, byattempts of the church to influence the affairs of state and by endeavoursat complete withdrawal from the world.

Nevertheless, the church, while not of this world, exists within itand must render unto Caesar that which is Caesar's. It may and should befree in the exercise of its religious doctrines and rites and it may look tothe state for protection of its right to be so. However, as regards itstemporalities, it must look to the state for more direct support. The seriesof statutes respecting religious institutions enacted in this provinceduring the last century and a half, as well as those elsewhere, seeks to dothat. The legislation is imperfect; it may not suit all religious faiths, but itdoes grant religious organizations the opportunity to seek protection forand security of title to their property.