Bruderheim Community Church v Moravian Church in America (Canadian District), 2017 ABQB 355

Court of Queen’s Bench of Alberta Citation: Bruderheim Community Church v Moravian Church in America (Canadian District), 2017 ABQB 355 Date: 20170531 Docket: 1703 10116 Registry: Edmonton Between: Bruderheim Community Church and the Bruderheim Moravian Church Applicants - and - Board of Elders of the Canadian District of the Moravian Church In America Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R.

Burrows _______________________________________________________ [ 1 ] The Bruderheim Community Church and the Bruderheim Moravian Church seek an interim injunction preventing the Board of Elders of the Canadian District of the Moravian Church in America from interfering with their continued use and enjoyment of land and the church and associated buildings which are on it, located in the Town of Bruderheim, Alberta. [ 2 ] The Bruderheim Community Church (“BCC”) was incorporated under the Religious Societies Land Act on April 4, 2017. The Bruderheim Moravian Church (“BMC”) is not incorporated.

Members of the BMC were until May 1, 2016, a church congregation associated with the Moravian Church, Northern Province (“MCNP”), a protestant Christian denomination with a heritage dating back to 1457. [ 3 ] The Board of Elders of the Canadian District of the Moravian Church in America (“BECD”) was incorporated in 1909 by a statute of Canada:

An Act to incorporate the Board of Elders of the Canadian District of the Moravian Church in America, 8-9 Edward VII, c. 112. The BECD is part of the MCNP.

[ 4 ] The BMC has possessed and used church buildings located on 40 acres of land in the Town of Bruderheim, Alberta (“the Land”) for about 120 years. It does not however hold legal title to the Land. Legal title is held by the BECD. [ 5 ] In June 2014, the MCNP held a Synod which adopted a resolution by which “individuals regardless of sexual orientation and whether single, married or in a covenanted relationship” could be ordained and considered clergy in the MCNP. [ 6 ] After considerable deliberation, the members of the BMC decided that they could not accept the Synod’s resolution.

On May 1, 2016, a meeting of the members of the congregation adopted a motion to disassociate from the Moravian Church, Northern Province.

Subsequently, the members of the congregation incorporated the BCC. [ 7 ] On March 16, 2017, on the recommendation of the BECD, the church body with authority to do so dissolved the BMC. [ 8 ] On March 17, 2017, the BECD by its counsel gave notice to the “Bruderheim Moravian Church” to vacate the Land by May 31, 2017, and advised that failing compliance the BECD would apply for an order for possession and ejectment pursuant to the Civil Enforcement Act. [ 9 ] On May 26, 2017, the BCC and BMC commenced these proceedings by Originating Application. [ 10 ] On May 30, 2017, the BCC and BMC applied before me for the interim injunction described previously.

The application was on notice. Both sides filed affidavits. [ 11 ] The question is whether the BCC and the BMC have established the three parts of the test for an interim injunction: that there is a serious issue to be tried; that they will suffer irreparable harm if the injunction is not granted; and that the balance of convenience favours granting the injunction. Serious Issue to be Tried [ 12 ] The materials filed on this application include the following documents relating to the title to the Land: a.

A land grant dated April 14, 1897, by which, pursuant to the Dominion Lands Act , the Land was conveyed by the Government of Canada to “Wilhelm Lilge, Frank Heffner, and Gustav Werner, their successors and assigns. . . To have and to hold the said lands unto the said Wilhelm Lilge, Frank Heffner and Gustav Werner, their successors and assigns forever, in trust, for the purposes of the Congregation of the Moravian Church at Bruderheim aforesaid , and to be devoted to public purposes within the meaning of Clause Thirty-one of the said Act.” b.

A certificate of title dated May 20, 1907, certifying that “Wilhelm Lilge, Frank Heffner and Gustav Werner, all of Bruderheim in the Provincial District of Alberta, in the North West Territories . . . Trustees of the Moravian Congregation of Bruderheim . . . is ( sic) now the owner of an estate in fee simple in” . . . the Land. c.

A certificate of title, number 66I22, dated October 18, 1912, certifying that “The Board of Elders of the Canadian District of the Moravian Church in America, a body corporate, is now the owner of an estate in fee simple in the Land “. . . subject to the condition that the same shall be held in trust for the Congregation of the Moravian Church in Bruderheim and to be devoted to public purposes only . . .” d.

A duplicate certificate of title dated October 18, 1912, (duplicate in respect of the certificate of title, number 66I22, just described) and apparently issued sometime after July, 1975 certifying that the BECD is the owner of the Land. The legal description excepts out of the 40 acres three parcels totalling 14.14 acres, leaving 35.86 acres.

The title is expressed to be held “. . . subject to the conditions that the same shall be held in trust for the congregation of the Moravian Church at Bruderheim and to be devoted to public purposes only.” The following endorsement also appears on the title immediately after the statement of this condition: “The habendum clause has been discharged as to pt. of L.S.D. 13 containing thirty one and seventy four hundredths (31.74) acres by inst. number 3472 H.Q. [Instrument number 3472 H.Q. is not included in the materials on this application.] e.

A land title certificate, certified as an accurate reproduction of the certificate of title as of January 11, 2017, again title number 66I22, showing the BECD as owner of a fee simple estate in the Land. The condition contained in each of the previous versions of the title, that the Land is held in trust for the congregation of the Moravian Church at Bruderheim, does not appear on this version of the title.

There is an endorsement of the registration on March 19, 1990, of a habendum clause as registration number 902 075 704. [The document referenced in that endorsement is not in the materials on this application.] f. A caveat referencing an equitable mortgage of the Land by the BECD to the Alberta Treasury Branch dated April 7, 1994. The legal description of the Land in the caveat is the same as on the duplicate certificate of title descripted in item “d” above.

It includes the mention of the trust and the discharge of the habendum clause. [ 13 ] The reason for the change in the wording of title 66I22 to remove reference to the trust is not revealed in the materials filed. Neither is the date that this change was effected. Beyond speculation that the change may have had something to do with making the title consistent with general Torrens system principles by which equitable interests are not to appear on title except by way of the

registration of a caveat, Counsel did not address the reason or significance of the change. It may be that the documents not included inthe materials, Instrument 3472 H.Q. and registration number 902 075 704, would shed light on this point. On the materials before me,however, there is little to suggest that the trust referenced in the early versions of the title held by the BECD does not still exist.

On thematerials before me, the position that the title held by the BECD is a bare legal title, and that beneficial title is held by “the congregationof the Moravian Church at Bruderheim” is clearly not frivolous. [14] Mr. Laycraft conceded that the first part of the test is satisfied. He accepted that there is a serious issue as to whether or notthe BECD holds title as trustee. The issue, he noted, goes beyond the nature of the estate held by the BECD. It extends to whether ornot the third certainty required for a valid trust, certainty of object or beneficiary, exists here.

Included in that question is whether eitherof the Applicants, the BCC and the BMC, are “the congregation of the Moravian Church at Bruderheim”.

However, that the BMC hasuntil recently been recognized by the BECD as the party entitled to possession and use of the Land is consistent with the BMC at leastbeing the intended beneficiary. [15] The serious issues to be tried also include how internal “laws” of the church relating to the incorporation of congregations, theownership of property generally and the vesting of property when a congregation severs its connection with the MNCP affect therespective rights of the parties. Adherence to these internal church laws may be a matter of contractual obligation for the parties.

Thereare features of the internal church laws which have been referenced in the materials which appear to support both sides of the trust issue. [16] In any event, it is conceded and I am satisfied that there are serious issues to be tried. Irreparable Harm [17] In the affidavit in support of the application, Larry Bartz, a member of the boards of the BMC and the BCC, deposes: The Congregation consists of 55 families residing in Bruderheim and north central Alberta area and has as a group a history of worship inthe church on the land for in excess of 120 years.

By reason of the demand, and the necessary accumulation of evidence to reply, thereis an urgency to this action and the interim injunction application with ejectment causing or likely to cause irreparable harm notcompensable by damages. [18] Mr. Laycraft submits that, as a description of irreparable harm, this statement is somewhat lacking.

However, I understandthe point being made to be that the harm anticipated if the interim injunction is not granted and the congregation is made to vacate thechurch building, is the interruption of the long standing worship tradition of the 55 families that make up the congregation. [19] The requirement that the applicant establish that irreparable harm will follow if the injunction is not granted is not arequirement that the anticipated harm be devastating or otherwise of a great magnitude.

The harm will be considered irreparable if it isof such a nature that it cannot be readily addressed and remedied by an award of monetary damages. If the harm can be remedied bymonetary damages then there is no reason to restrain the conduct that it is alleged will cause the harm since those who suffer it will beable to pursue their damage claim. [20] In my view, the part of the test is satisfied.

I have no doubt that it is a vital and fundamental element of the faith tradition ofthe members of the BMC that their corporate worship be carried out on the land where it has taken place for more than a century and onwhich, as I understand it, the graves of former members of the worshiping community, their ancestors, are located. The forcedinterruption of the regular worship tradition of the individual worshipers and of this close community of worshippers is harm. And it is atype of harm that is not susceptible of translation into a monetary award. It is irreparable harm. Balance of Convenience [21] Mr.

Bartz deposes that the BECD “would suffer no loss to my knowledge from maintenance of the status quo and thecontinued occupancy of the Church and Land by the [BMC] and I assert that the balance of convenience favors that status quo.” [22] The BECD President, Scott Gregory Weir, deposes in the affidavit filed in response to this application that the BECD seeks“to care for the souls who wish to remain adherents to the MCNP” and is prevented from doing so by the occupation of the churchbuildings by the BMC and the BCC.

Anticipating that it will have possession of the church buildings after May 31, 2017, the BECD hassent out a notice, as I understand it, to the members of the BMC, advising, amongst other things, that beginning on Sunday, June 4 at 2pm a Moravian worship service will be conducted. The intention is to continue this weekly. [23] Mr. Weir also notes that there are other facilities in Bruderheim where the BMC and BCC could conduct their worshipservices. Presumably so could the BECD. [24] In my view, though the balance of convenience is close to even, it favours the BMC and BCC.

The evidence offered by theBECD does not establish that there are worshipers who want to worship at the services they propose to conduct. By contrast, theevidence offered by the BMC and BCC includes the minutes of meetings which indicate that the decision to disassociate from theMoravian Church and the decision to incorporate the BCC were passed by very large majorities with very few contrary votes.

I inferfrom this that the vast majority of the members of this church community would likely continue to worship in the manner and place thatthey have done for many many years unless prevented by the eviction they seek to restrain. [25] I am not convinced that the desires of both sides regarding use of the church facilities for worship cannot be reasonablyaccommodated. In a similar situation Milanetti J. of the Ontario Superior Court of Justice ordered the disputing parties to cooperate inthe use of the church buildings at the centre of the dispute: Synod of the Diocese of Niagara v.

Bales (2008) (ON SC), 292 D.L.R. (4th) 228. The terms of my order, as set out at the end of this decision, will attempt to do the same. [26] The BECD also suggests that it will suffer harm if an injunction is granted because other congregations who are watching thiscase with interest may be moved by the granting of an injunction in this case to take steps similar to those taken by the BMC and BCC. In my view, the weight this consideration adds to the BECD’s side of the balance is negligible. The question before me is whether

pending a judicial determination of the serious issues which have arisen in this matter the BECD should be allowed to exclude from the church premises, the congregation which has traditionally and consistently had responsibility for and use of the church buildings on the Land though they have not held legal title. No reasonable person would view this decision as determining the merits of the parties’ respective positions. It is no more than a determination of the arrangements that should govern while those serious issues remain outstanding, unresolved and very much up in the air.

Undertaking as to damages [ 27 ] Mr. Bartz’ affidavit contains this paragraph: I am authorized on behalf of the Applicants, and do personally undertake to the court to pay any damages found by the court to have resulted to the respondent or other party restrained by the injunction requested should it later be held that the injunction should not be continued or made permanent.

Order [ 28 ] I am satisfied that an interim injunction restraining the BECD, pending the determination of this action, from requiring the BMC and the BCC to vacate the Land should be granted. [ 29 ] My order granting the interim injunction will however be subject to the following conditions which in my view are appropriate in the circumstances: 1. The interim injunction will be for an initial term of 8 months.

It will expire on January 31, 2018 unless the BMC and BCC establish to the satisfaction of the court in a further application to be brought before that date that the BMC and BCC have prosecuted this action with reasonable efficiency. 2. Notwithstanding the injunction, the BECD shall be permitted to conduct a worship service in the church premises each Sunday afternoon at 2:00 p.m. For that purpose, the BMC and BCC shall permit the BECD to have access to the church buildings from 1:30 p.m. until 4:30 p.m. each Sunday afternoon beginning June 4, 2017. 3.

The BMC and BCC shall properly maintain the church buildings and Land during the continuance of the interim injunction. 4. The BMC and BCC shall permit a representative of the BECD to inspect the church and other buildings on the land at least once a month during regular business hours provided that the BECD gives the BMC and BCC 48 hours written notice of an intention to conduct an inspection. 5. The parties will apply to Associate Chief Justice Rooke for the appointment of a case management judge for this action before June 30, 2017. Heard on the 30 th day of May, 2017.

Dated at the City of Edmonton, Alberta this 31 st day of May, 2017. B.R. Burrows J.C.Q.B.A. Appearances: Randolph O. Langley for the Applicants James B. Laycraft, Q.C. for the Respondent