Top 5 Civil Appeals From The Court Of Appeal (October 2013)

1. Delicata v. Incorporated Synod of the Diocese of Huron, 2013 ONCA 540 (Rosenberg, Rouleau and Pepall JJ.A.), September 4, 2013

2. Kutlesa v. Kutlesa, 2013 ONCA 549 (Cronk, Blair and Strathy JJ.A.), September 9, 2013

3. Apotex Inc. v. Abbott Laboratories, Limited, 2013 ONCA 555 (Goudge, Watt and Pepall JJ.A.), September 12, 2013

4. Detlor v. Brantford (City), 2013 ONCA 560 (Doherty, Laskin and Simmons JJ.A.), September 13, 2013

5. Durham (Regional Municipality) v. Oshawa (City), 2013 ONCA 573 (Weiler, Sharpe and Rouleau JJ.A.), September 25, 2013

1. Delicata v. Incorporated Synod of the Diocese of Huron, 2013 ONCA 540 (Rosenberg, Rouleau and Pepall JJ.A.), September 4, 2013

   What began as a theological conflict within the Anglican Church devolved into a dispute over church property and, ultimately, the interpretation of three words in a governing Canon.

   In 2008, the membership of St. Aidan's Anglican Church in Windsor voted to leave the Anglican Diocese of Huron. This decision, which reflected fundamental differences within the Anglican Church with respect to Biblical interpretation, came about due to the position adopted by the Diocese and the Anglican Church of Canada on blessing same-sex unions. This position was unacceptable to the members of St. Aidan's, a theologically conservative, evangelical congregation.

   After breaking with the Diocese, the churchwardens of St. Aidan's, Christine Delicata and Pat Hyttenrauch, brought an action in Superior Court against the Incorporated Synod of the Diocese of Huron and its bishop, Robert Bennett, seeking, among other things, a declaration that the members of the church were the beneficial owners of the church property and of the St. Aidan's Bequeathment and Financial Fund, a charitable foundation established and maintained by St. Aidan's members. Delicata and Hyttenrauch were designated representative plaintiffs for the more than one hundred congregants who voted to leave the Diocese. The Diocese and Bennett sought its own declaration of ownership of the church property. The Diocese also sought an accounting of the charitable foundation's funds and an order directing transfer of the foundation to the parish.

   The actions, which were heard together, turned on the interpretation of Canon 14, which governs the Diocese of Huron. Canon 14 stipulates in part that the Diocese holds all real property "in trust for the benefit of the Parish or congregation."

   The central issue at trial was the meaning of the words "Parish or congregation". The St. Aidan's parties argued that a parish is a fluid concept that describes the people who comprise a congregation at any one time, while the Diocese submitted that a parish is a static entity that continues in perpetuity regardless of changes in membership. The trial judge preferred the Diocese's position, finding that while members in a parish may come and go, the parish itself remains and cannot sever itself from the Diocese. The trial judge concluded that the Diocese was the beneficial owner of both the church property and the St. Aidan's Bequeathment and Financial Fund.

   The St. Aidan's parties appealed, arguing that the trial judge erred by treating the words "Parish or congregation" as interchangeable and, in the alternative, in failing to grant an equitable remedy on the basis of unjust enrichment over the church building and the charitable foundation. The Diocese sought leave to cross-appeal the order that each party bear its own costs in the interest of preserving harmony within the church.

   Writing for the Court of Appeal, Pepall J.A. agreed with the trial judge's analysis, finding that the words "Parish or congregation" refer to a "static entity that may not be severed from the Diocese and that is not defined by any particular group of members at any particular time." Pepall J.A. explained that the appellants' interpretation of the provision was contrary to the language and purpose of Canon 14, which states that church property cannot be sold, mortgaged or otherwise disposed of without the Bishop's prior consent. This indicates that the Diocese controls all church property for the benefit of its members, an objective which would be frustrated by the appellants' interpretation. The appellants' "snapshot" vision of a parish as the people who comprise a congregation at a particular time would allow the Diocese's property to be dispersed at the will of its congregants.

   Moreover, under the appellants' interpretation, any group of congregants composing a vestry in accordance with the minimal requirements outlined in Canon 18 could constitute a parish and, upon leaving the Diocese, take church property with them.

   Pepall J.A. went on to note that the appellants' interpretation is inconsistent with the Anglican Church of Canada Act, S.O. 1979 c. 46, which provides at s. 2(1) that land "shall not be sold or leased, mortgaged or otherwise encumbered ... except with the consent of the vestry of the church or congregation interested therein and of the bishop of the diocese ...".

   Pepall J.A. also rejected the appellants' unjust enrichment claim, finding that those congregants who contributed to the maintenance of the church property knew that they were doing so for the benefit of St. Aidan's Parish of the Diocese of Huron.

   With respect to the St. Aidan's Bequeathment and Financial Fund, Pepall J.A. agreed with the trial judge that funds provided by it to the dissident Anglican...