Ukrainian Greek Orthodox Church of Canada et al. v. The Trustees of Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress et al., [1940] SCR 586

Supreme Court of Canada

Ukrainian Greek Orthodox Church of Canada et al. v. The Trustees of Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress et al., [1940] S.C.R. 586

Date: 1940-06-29

The Ukrainian Greek Orthodox Church of Canada, And Others (Plaintiffs) Appellants;

and

The Trustees of The Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, and Peter Mayewsky (Defendants) Respondents.

1940: February 7, 8, 9; 1940: June 29.

Present: Rinfret, Crocket, Davis, Kerwin and Hudson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Churches—Status of Voluntary Associations—Incorporation of religious body by Federal Parliament—Powers—Jurisdiction of Courts—Ukrainian Greek Orthodox Church of Canada—Expulsion of priest by Church Court—Refusal of congregation to recognize sentence—Action for injunction—Spiritual jurisdiction of corporate body over congregations—Antimins—Return of it by expulsed priest to corporation.

The respondent Mayewski was since 1931 a priest of the Congregation of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress in Winnipeg. He was tried in 1937 by a church court on charges

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of broadcasting services in defiance of the consistory's ruling and of acts of disloyalty and disobedience to the archbishop. The court sustained the charges, whereupon the archbishop as bishop of the Ukrainian Greek Orthodox Church of Canada excluded the respondent priest from the priesthood, of and membership in, the said church. The Congregation ignored the sentence and the respondent priest continued to act as such. An action was then brought in the name of the appellant, the Ukrainian Greek Orthodox Church of Canada and of two individual, co-appellants before this Court, who claim to be members of the respondent Congregation and to sue on behalf of a minority of these members who are opposed to the continuance of the ministry of the respondent priest. The appellant corporation was incorporated by a special Act of the Parliament of Canada in 1929 (19-20 Geo. V, c. 98) for the purposes "of administering the property and other temporal affairs connected with the spiritual jurisdiction of the said Corporation." All the congregations, parishes, missions of the Ukrainian Greek Orthodox Church of Canada " which are now included and are a part thereof, and which may at any time in the future become a part thereof" were by the Act constituted the Corporation. The respondent trustees are a body corporate registered under the Manitoba Church Lands Act (R.S.M., 1913, c. 31); they hold title to the church lands for the Congregation, by whom they are appointed for that purpose; but they have nothing to do with the appointment or maintenance of the clergy, nor do they exercise any spiritual jurisdiction or have any corporate concern with the. ecclesiastical functions of the bishop or the church court. The appellants' claim in the action was for an injunction restraining the respondent Mayewsky from officiating any longer or conducting, any further services as a priest of the appellant corporation or as a priest of the respondent congregation or parish or otherwise in the Cathedral; an injunction restraining the respondent trustees from procuring or permitting such officiating or conducting by the respondent Mayewsky; the return and delivery to the appellant corporation of what is called the antimins and an injunction restraining the respondent Mayewsky from wearing and using the said antimins. The antimins (a singular word) is a piece of linen about the size of a handkerchief which was given into the possession of the respondent Mayewsky at the time of his ordination as a priest of the appellant corporation for use in the ministration of the sacraments of the church. A counter-claim was brought by the respondent Mayewsky asking a declaration that he was a priest in good standing and that the purported disposition or expulsion of him as a priest was illegal, null and void, and for damages and other relief. The trial judge granted the injunction prayed for by the appellants and ordered the delivery of the antimins to the corporate appellant or to its Board of Consistory; and he also dismissed the counter-claim. The Court of Appeal, reversing that judgment in part, dismissed the appellants' action, but maintained the dismissal of the counter-claim. Both parties appealed to this Court by way of appeal and cross-appeal.

Held that the appeal should be dismissed with costs; and that the cross-appeal should also be dismissed, but without costs, subject to the terms of an agreement between counsel as to variation of the order of the Court of Appeal, so as to provide that the dismissal of the counter-claim shall not be deemed an adjudication on any of

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the issues raised thereby other than those adjudicated upon in the main action. Davis and Hudson JJ. dissenting in part and holding that the respondent Mayewsky should be ordered to deliver up the antimins to the appellant corporation.

Per Crocket J.—It was not intended by the federal statute of 1929 (by which the appellant corporation has been constituted) that the unincorporated church organization with all its congregations, priests and missions, together with their trustees as incorporated under provincial laws, should be merged in or absorbed by the corporate appellant, and the latter's so-called statutory charter has not deprived the trustees of the Cathedral of St. Mary the Protectress of its rights to hold the Cathedral property as trustees for the congregation, or the congregation of its right to manage its own temporal affairs. The antimins, having no substantial monetary value, the mere demand for their delivery to the Board of Consistory as the property of the corporate plaintiff would not, apart from all other considerations, be sufficient to justify the Manitoba Court in taking action by way of injunction. The manifest and sole purpose of this claim, as that of the whole action, was to enforce obedience to a purely ecclesiastical sentence or decree.

Per Davis J.—Under all the circumstances of this case, this Court should not interfere with the expulsion order of the Church Court by enquiring into the proceedings against the respondent priest, examining the nature of the charges and the character of the evidence and then setting aside such order. But it has not been proved that the Cathedral congregation at Winnipeg ever signified its intention to become a part of the appellant corporation as stipulated in the statute, or that the Consistory ever issued a certificate admitting such congregation to the corporation. That being so, the congregation never became a part of the corporation, and the corporation therefore has no legal right to interfere with the congregation in continuing the services of its present pastor. Nor has the appellant corporation the right to restrain the respondent Mayewsky from officiating in the charge of that congregation or from officiating elsewhere, so long as he does not officiate "as a priest of the appellant corporation."—As to appellant corporation's claim to the antimins: the property in it has at all times been in the appellant corporation, and the latter is entitled to the return forthwith of the same. Therefore, this Court should issue an order directing the respondent Mayewsky to deliver up forthwith the antimins to the appellant corporation and granting injunction against the respondent Mayewsky restraining him from officiating or conducting any services in Canada "as a priest of the appellant corporation" unless and until he may become reinstated in good standing as a priest of the said corporation, and, otherwise, the appellants' action should be dismissed.

Per Kerwin J.—The minutes of the meetings of the several councils of the unincorporated Ukrainian Greek Orthodox Church of Canada, held from 1918 to 1929 established that that Church never had any jurisdiction over the lands owned by the several congregations, the title to which, so far as concerns the Cathedral congregation, is vested by virtue of the provincial enactment in trustees; and, moreover, the terms of several sections of the Act of incorporation of 1920 indicate that the Federal Parliament did not ever purport to vest these lands in the Corporation; nowhere in the Act is there

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any grant of spiritual jurisdiction to the Corporation over the several congregations; the statute limits the power of the Corporation to temporal affairs over which alone it has any jurisdiction. Furthermore, while the respondent Mayewsky is a priest of the unincorporated Church, he never was a priest of the appellant Corporation as he never became a "part" of it or a "member" as defined in section 5 of the Act of 1929; and neither a declaration made to the Consistory of the Church by the respondent priest on September 17th, 1931, on his arrival in Canada nor the certificate issued to the priest the same day under the seal of the appellant corporation can confer upon the Corporation a power or jurisdiction that, according to the Special Act, it did not possess and was incapable of assuming; it was not legally competent to the respondent Mayewsky to give, or to the appellant corporation to accept or exercise, the jurisdiction claimed by the appellant corporation. Therefore, the appellants' action must fail. As to the question of the return and the delivery to the Corporation appellant of the antimins, the obligation of the priest in the undertaking was to return it to the Consistory of the unincorporated church in case he ceased to be a priest of that church; and that event not having occurred, the claim must also fail.

Per Hudson J.—The Cathedral congregation, respondent, never became a part of the corporate body, appellant, or subject to its control, either temporal or spiritual. As to the appellants' claim to prohibit the respondent Mayewsky from continuing to act as a priest of the congregation, it amounts to no more than a claim to have the Court enforce what is a purely ecclesiastical decree; no property right is involved so far as the appellants are concerned and the corporation makes no contribution to the salary of the priest, nor to the maintenance of the Cathedral Church. Moreover, this action is solely based on the powers of the appellant corporation, which is not shown to be vested with any authority to enforce spiritual discipline over priests or to disqualify them or to restrain any particular priest from officiating or any congregation from accepting his ministrations.—The appellant Corporation is entitled to the return to it of the antimins, irrespective of the validity or invalidity of the decree of excommunication.

APPEAL and CROSS-APPEAL from a judgment of the Court of Appeal for Manitoba (1)1 reversing in part the judgment of the trial judge, Donovan J., dismissing the appellants' action and maintaining the dismissal of a counter-claim.

The material facts of the case and the questions at issue are fully stated in the above head-note and in the judgments now reported.

Fred. Heap K.C. for the appellants.

J. S. Lamont K.C. and Wasyl Swystun for the respondents.

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Rinfret J.—The appeal should be dismissed with costs and the order of the Court of Appeal should be confirmed, except that the counter-claim should be disposed of in accordance with the agreement arrived at between the parties.

Crocket J.—This appeal arises out of an action, which the plaintiffs brought in the month of May, 1937, in the Court of King's Bench of the Province of Manitoba, praying for an injunction against the defendant Mayewsky, restraining him from officiating any longer or conducting any further services as a priest of the plaintiff corporation or as a priest of the congregation or parish of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress in the City of Winnipeg, and also an injunction restraining the trustees of the said Cathedral from permitting the said priest to so officiate as well as for the return and delivery to the corporation plaintiff's Board of Consistory of antimins worn or used by him as such priest.

The learned trial judge, Donovan J., granted the injunction prayed for and also ordered the delivery of the antimins to the corporate plaintiff or to its Board of Consistory. The defendants appealed to the Court of Appeal, which dismissed the plaintiffs' action as well as a counter-claim of the individual defendant, which he had entered for damages against the corporate plaintiff and nine individuals, including the bishop, his administrator and other members of the corporate plaintiff's Board of Consistory.

So far as the plaintiffs' action is concerned, a perusal of the statement of claim shows that it is entirely founded upon two main pretensions: first, that the defendant corporation acquired the Cathedral in the year 1925 in trust for a congregation or parish of the unincorporated body known as " The Ukrainian Greek Orthodox Church of Canada " and was made a component part of the plaintiff corporation by the latter's Act of Incorporation, ch. 98 of the Statutes of Canada, 1929, and subject to the lawful jurisdiction of the latter, and that the defendant Mayewsky thus became a priest of the latter corporation; and, second, that the corporate plaintiff, acting by and through its Board of Consistory, Archbishop, General Council and Church Court and having power and authority in that behalf from and under its charter and certain by-laws,

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decisions, canons and resolutions duly passed thereunder, duly expelled the said individual defendant from its priesthood. If the first of these pretensions is not made good the action cannot properly be maintained, for it is well settled that, unless some property or civil right is affected thereby, the civil courts of this country will not allow their process to be used for the enforcement of a purely ecclesiastical decree or order.

If there is any legal basis for the corporate plaintiff's assertion of civil or temporal jurisdiction over the Cathedral Church, there is no other source in which it can be found than the federal statute of 1929, by which it was constituted. The plaintiffs in this regard rely mainly on s. 2 of that statute. This section reads as follows:

All the congregations, parishes, missions, of the Ukrainian Greek Orthodox Church of Canada, which are now included and are a part thereof, and which may at any time in the future become a part thereof, are hereby constituted a corporation, public and politic under the name of "The Ukrainian Greek Orthodox Church of Canada," hereinafter called "the Corporation" for the purposes of administering the property, and other temporal affairs connected with the spiritual jurisdiction of the said Corporation.

It will be observed that while this section purports to embrace all congregations, parishes and missions, which were included in the unincorporated body of the church at the time of the enactment of the federal statute, as well as those which might at any time in the future become a part thereof, in the new corporation as a body "public and politic," the functions of that body are expressly limited to "the purposes of administering the property and other temporal affairs connected with the spiritual jurisdiction of the said corporation." The section does not of course purport to confer spiritual jurisdiction upon the new corporation, nor does it purport to vest in it any property whatsoever.

Having regard to its constitutional limitation in relation to property and civil rights in the Provinces, it is scarcely conceivable that Parliament could have intended to legislate into the corporation thus constituted the whole membership of all the individual autonomous congregations and missions of an unincorporated body of Christians without their consent, together with all the property held in trust for them under provincial laws. That there was no

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such intention appears conclusively to my mind from sections 4 and 6 (1) of the Act. Section 4 provides that the objects of the corporation shall be * * * to administer in Canada

such of the property, business and other temporal affairs of the said Ukrainian Greek Orthodox Church of Canada as may be entrusted by the said Ukrainian Greek Orthodox Church of Canada to the corporation.

Sec. 6(1) enacts that

Any congregation or mission of the Ukrainian Greek Orthodox Church of Canada, whether now in existence or which may be formed at any time in the future, shall signify its intention to become a part of the Corporation by a resolution passed at a duly called meeting thereof according to the constitution thereof.

The record discloses that no such resolution was ever passed by the congregation of the Cathedral Church. Each of these sections plainly visualizes the existence and continuation of the Ukrainian Greek Orthodox Church of Canada as an unincorporated body or denomination of Christian people professing and adhering to its own recognized creed, polity, forms of worship, etc., and both seem to me unmistakeably to negative the proposition that the statute itself merges that church organization and all its congregations, missions and trust properties in the new corporation, whether the latter be regarded as a purely religious or a combined religio-civil corporation. The apparently studied obscurity and ambiguity of the language of par. 4 of the statement of claim would seem to indicate the hesitancy and doubt with which the corporate plaintiff itself puts forward the claim that the suggested merger or absorption of the unincorporated church with all its congregations and trust property was effected by the federal statute. It alleges that

upon (or shortly after) the incorporation of the corporate plaintiff the unincorporated body of the same name * * * became (and it has ever since been) absorbed in and by the former (treating itself as so absorbed and being treated by the plaintiff as so absorbed).

One can only conjecture as to the purpose of the brackets, whether they are intended to indicate that the words contained within them may be eliminated at one's option. If one chooses to pass them over, it is perhaps possible to spell out of the truncated paragraph an allegation that the unincorporated church organization became incorporated in the corporate plaintiff in virtue of the enactment of

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chapter 98. If, however, one is disposed not to do this but to read the whole paragraph precisely as it is set out, it would seem to me to be reasonably capable of no other meaning than that the pretended merger or absorption of the unincorporated church in and by the corporate plaintiff was achieved, not by the latter's statutory incorporation, but by the very dubious and seemingly incomprehensible fact of the whole unincorporated denominational body comprising all its varied member congregations, and the corporate plaintiff itself having mutually assumed that it had been so absorbed irrespective of the provisions of the federal Act. It is therefore not surprising that the plaintiff corporation in bringing its action thus shrank from definitely relying upon the suggested statutory merger, inasmuch as the obvious result of the acceptance of such a proposition would be to place itself in the anomalous and impossible position of bringing an action against a corporation, which it was claiming was merged in itself and therefore non-existent, viz.: the trustees of the Cathedral Church.

For my part I have no hesitation in holding that it was never intended by the federal statute that the unincorporated church organization with all its congregations, priests and missions, together with their trustees as incorporated under provincial laws, should be merged in or absorbed by the corporate plaintiff, and that the latter's so-called statutory charter has not deprived the Trustees of the Cathedral of St. Mary the Protectress of its right to hold the Cathedral property as trustees for the congregation, or the congregation of its right to manage its own temporal affairs.

As to the antimins, which it is explained are consecrated linen or lace napkins used by a priest in the celebration of masses, and are alleged to belong to the corporate plaintiff, the claim against the defendant Mayewsky for the return and delivery of these to the plaintiff corporation's Board of Consistory depends entirely upon the allegation that he received them as a priest of the plaintiff corporation and his alleged expulsion as a priest thereof. This is clearly shown, I think, by par. 14 of the statement of claim. It rests, therefore, on precisely the same foundation as the claim for an injunction against the Trustees of the Cathedral and Mayewsky, viz.: that both the

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defendant corporation and its officiating priest had become absorbed in and by the corporate plaintiff in virtue of its incorporating Act of 1929, and must necessarily in my opinion stand or fall with it.

In any event the antimins, although of the highest importance as a badge and symbol of priesthood, have no substantial monetary value, as pointed out by Dennistoun, J.A., and I agree with him that the mere demand for their delivery to its Board of Consistory as the property of the corporate plaintiff, would not, apart from all other considerations, be sufficient to justify the Court in taking action by way of injunction. The manifest and sole purpose of this claim, as that of the whole action, is to enforce obedience to a purely ecclesiastical sentence or decree. For that reason I am of opinion that the Court of Appeal was fully justified in dismissing the plaintiffs' action.

The appeal should be dismissed with costs.

As to the cross-appeal from the dismissal of the counterclaim, counsel consented that this should be limited to such issues as are finally adjudicated upon in the main action and that its dismissal should be taken to be without prejudice to any action that might hereafter be brought in respect of any of the issues not so determined. Subject to the terms of this agreement, the order of the Court of Appeal, in so far as it concerns the counter-claim, should also be confirmed. There should be no costs on the cross-appeal.

Davis J.—The appellant corporation was incorporated by a special Act of the Parliament of Canada in 1929 (19-20 Geo. V, ch. 98) under the name of "The Ukrainian Greek Orthodox Church of Canada" for the purposes "of administering the property and other temporal affairs connected with the spiritual jurisdiction of the said Corporation." All the congregations, parishes, missions of the Ukrainian Greek Orthodox Church of Canada, " which are now included and are a part thereof, and which may at any time in the future become a part thereof" were by the Act constituted the corporation.

The trustees of the Cathedral church in Winnipeg (who were registered under the Manitoba Church Lands Act) together with the parish priest Peter Mayewsky, are the

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respondents (defendants). Two individuals joined with the corporation as plaintiffs (and are co-appellants); they claim to be members of the Cathedral congregation and, while admitting they are in a minority in their opposition to the continuance of the ministry of the present priest, they assume to sue on behalf of the other members of the Cathedral congregation "excepting such majority." The appellants' claim in the action was for an injunction restraining Mayewsky from officiating any longer or conducting any further services as a priest of the appellant corporation or as a priest of the congregation or parish or otherwise in the said Cathedral; an injunction restraining the respondent trustees, or officers, servants or agents, from procuring or permitting such officiating or conducting by the respondent Mayewsky; the return and delivery to the appellant corporation of what is called the antimins, and an injunction restraining the respondent Mayewsky from wearing and using the said antimins.

The basis of the appellants' action was that the respondent priest Mayewsky had become a priest of the appellant corporation in 1931 but that in 1937 he had been duly expelled from its priesthood and forbidden any longer to officiate as a priest of the appellant corporation or in the Winnipeg Cathedral; the appellant corporation claiming to have acted by and through its Board of Consistory, Archbishop, General Council and Church-court, having power and authority, it was alleged, in that behalf under the statute and certain by-laws, decisions, canons and resolutions. The antimins (said to be a singular word) was described to us as a piece of linen about the size of a handkerchief which was given into the possession of the respondent priest at the time of his ordination as a priest of the appellant congregation for use in the ministration of the sacraments of the Church.

There was a counter-claim by the respondents (?) asking a declaration that the respondent Mayewsky is a priest in good standing of The Ukrainian Greek Orthodox Church of Canada and that the purported deposition or expulsion of him as a priest of the said Church and as a member thereof was and is illegal and null and void; and other relief.

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Both the action and the counter-claim stand dismissed by the judgment of the Court of Appeal for Manitoba and both parties appealed to this Court by way of appeal and cross-appeal.

Two issues may be disposed of at once. The cross-appeal from the dismissal of the counter-claim merely asked that its dismissal

shall not be deemed to be an adjudication upon any of the issues raised in the said counter-claim, except to the extent that any of the said issues are finally adjudicated upon in the main action, and that the dismissal of the respondent's counter-claim is to be without prejudice to any action that may hereafter be brought in respect of any of the issues not so finally adjudicated upon.

Counsel for the appellant consented to this variation and the cross-appeal should therefore be allowed.

The other item is the antimins. Like most church quarrels, there is obviously much bitterness on both sides and the parish priest has gone so far by his counsel as to refuse on somewhat technical grounds to return to the appellant corporation the antimins, although at the time he sought and obtained ordination from the appellant corporation he acknowledged in writing to that corporation the receipt of the antimins as having been received from the Archbishop through the Consistory of the appellant corporation and he declared that the said antimins "is and shall remain to be the property of" the appellant corporation,

and as such shall be returned by me to the Consistory of the said Church in case I cease to be a priest of the Ukrainian Greek Orthodox Church of Canada.

It is argued that the respondent Mayewsky has never ceased to be a priest of the Church at large as distinguished from the church corporation; that in any event he was never properly expelled from the appellant corporation; and, thirdly, that the intervention of the Court cannot be sought for the return of the article because it has little or no money value. The property in the antimins clearly has at all times been in the appellant corporation, and it is entitled to the return forthwith of the same, and to this extent at least the appellant corporation should succeed against the respondent Mayewsky.

We may now consider the claim of the appellant corporation to restrain the respondent priest from officiating as a priest of the appellant' corporation. It is perfectly

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plain on the evidence that he took ordination and accepted a certificate of good standing from the appellant corporation. He has been expelled after charges have been heard by the Church Court of the appellant corporation and unless the expulsion order can be set aside as asked, the appellant corporation is entitled to the injunction sought in so far as acting as a priest of its corporation is concerned.

We are invited to enquire into the proceedings against the priest and to examine the nature of the charges and the character of the evidence and to set aside the order of the Church Court. It is contended that the charges were frivolous and that the expulsion should not be recognized by the civil courts. But the charges in substance were insubordination in an effort to undermine the authority and position of the Archbishop; it is not suggested that there was any dishonesty or lack of good faith on the part of the Church Court. The priest was duly notified of the charges and of the hearing by the Church Court but failed to appear. He had under the church law a right to appeal but he did not take advantage of it. Under these circumstances the Court cannot go behind the expulsion order of the domestic tribunal.

There then remains the larger question. The congregation of the Cathedral, obviously by a large majority, stand by their pastor and resist the effort of the appellant corporation to expel him from the charge. One difficulty is that the congregation as such is not before the Court. The respondent trustees are merely those individuals in whose names as trustees the title of the property stands by registration under the local provincial law, the Manitoba Church Lands Act. If, however, the congregation as such was a component part of the Church as incorporated, it might well be unnecessary that the congregation as such should be made a party. The evidence, I think, makes it abundantly plain that the congregation acted in many respects as if it were a part of the incorporated Church; but the evidence is quite insufficient to establish the proposition upon which the main claim in the action rests, that is, that the Cathedral congregation was strictly a part of the incorporated Church body. It is not shown that the

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congregation or parish joined in the petition for incorporation. The statute itself provides that all the congregations, parishes and missions " which are now included and are a part * * * and which may at any time in the future become a part" of the Ukrainian Greek Orthodox Church of Canada, constitute the incorporated body. (Sec. 2.) Any congregation or mission "whether now in existence or which may be formed at any time in the future " may signify its intention to become a part of the Corporation by a resolution passed at a duly called meeting thereof, according to the constitution thereof. (Sec. 6(1).) The copy of such resolution shall be certified by the chairman and the secretary of the said meeting, and shall be sent to the Consistory of the Corporation, and the Consistory may then issue a certificate admitting such congregation or mission to the Corporation. (Sec. 6 (2).)

That there is a difference between the Ukrainian Greek Orthodox Church of Canada and the corporation is shown by sec. 4 of the statute, which defines the objects of the corporation:

* * * and to administer in Canada such of the property, business and other temporal affairs of the said Ukrainian Greek Orthodox Church of Canada as may be entrusted by the said Ukrainian Greek Orthodox Church of Canada to the Corporation.

It is not proved that the Cathedral congregation at Winnipeg ever signified its intention to become a part of the corporation as stipulated in the statute, or that the Consistory ever issued a certificate admitting such congregation to the corporation. That being so, the congregation never became a part of the corporation, and the corporation therefore has no legal right to interfere with the congregation in continuing the services of its present pastor. Nor has the appellant corporation the right to restrain the respondent Mayewsky from officiating in the charge of that congregation or from officiating elsewhere, so long as he does not officiate "as a priest of the appellant corporation."

The appellants fail on their main ground of appeal but should succeed in part. The judgment of the Court should in my opinion be

(1) An order directing the respondent Mayewsky to deliver up forthwith the antimins to the appellant corporation.

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(2) An injunction against the respondent Mayewsky restraining him from officiating or conducting any services in Canada "as a priest of the appellant corporation" unless and until he may become reinstated in good standing as a priest of the said corporation.

(3) Subject to aforesaid, the action is dismissed.

(4) On the cross-appeal in the counter-claim, the order as asked goes by consent.

The question of costs presents some difficulty. Upon the whole, I think the appellants should have one-third of their costs of the action and of the appeals in the action but there should be no costs to either party of the counterclaim or of the appeals in the counter-claim.

Kerwin J.—The appellants, The Ukrainian Greek Orthodox Church of Canada, Joseph Bohonos and George Bugera, were the plaintiffs in an action instituted in the Court of King's Bench in Manitoba against the respondents, The Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, in the city of Winnipeg, in the province of M'anitoba, and Reverend Peter Mayewsky. The Ukrainian Greek Orthodox Church of Canada, one of the appellants, is a corporation incorporated by a Special Act of the Dominion Parliament, 19-20 George V, chapter 98, assented to May 1st, 1929. The two individual appellants are members in good standing of the congregation of The Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress. The respondents, the trustees, are a body politic and corporate by virtue of a resolution of the congregation of the Cathedral and of the provisions of The Church Lands Act, being chapter 31 of the Revised Statutes of Manitoba, 1913. The exact status of the other respondent, Reverend Peter Mayewsky, is one of the main issues in the appeal, the appellants claiming that he had been a priest of the appellant corporation but that he had been removed as such by proper proceedings; the respondents, on the other hand, contending that while he was and is a priest of the unincorporated spiritual body known as The Ukrainian Greek Orthodox Church of Canada, he never was a priest of the appellant corporation.

By the trial judgment, Reverend Mayewsky was restricted from officiating any longer or conducting any further

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services in the cathedral or otherwise; he was further restrained from wearing or using the antimins used by him in officiating in the cathedral, and he was ordered to forthwith deliver the antimins to the appellant corporation or its Board of Consistory; and the respondents the trustees, their officers, servants and agents were restrained from procuring or permitting such officiating or conducting by Reverend Mayewsky. A counter-claim by the present respondents was dismissed. On appeal to the Court of Appeal for Manitoba both the action and the counterclaim were dismissed. The plaintiffs now appeal by leave of the Court of Appeal. A notice of cross-appeal from that part of the order which dismissed the counter-claim was given but, on the argument, it was agreed between counsel that, whatever disposition might be made of the appeal, the counter-claim should stand dismissed without costs but such dismissal should not be deemed an adjudication upon any of the issues raised in the counter-claim except to the extent that any of those issues are finally adjudicated upon in the appeal, and that the dismissal of the counter-claim should be without prejudice to any action that may hereafter be brought in respect of any of the issues not so finally adjudicated upon.

In order to understand the respective contentions of the parties, it is necessary to commence with a meeting at Saskatoon on July 18th and 19th, 1918, of one hundred and fifty representatives of what are termed "the Ukrainian Settlers in Canada." The minutes of that meeting and most of the documents appearing in evidence are in a foreign language but translations into English have been agreed upon between the parties, and it is to such translations that reference will be made. According to the minutes just mentioned, it is recited in a resolution passed at the meeting:—

Whereas the head of Ruthenian Greek Catholic Church of Canada demands complete transfer of property of church congregations, without reservation, to the corporation of Ruthenian Greek Catholic bishop, in which according to the Act of Incorporation the bishop is the sole corporation and all Ruthenian Greek Catholic parishes, missions, are under sole management and are solely represented by the bishop himself.

Whereas in accordance with this Act of Incorporation the Ruthenian Greek Catholic parishes are deprived of all right to manage the properties of congregations;

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And whereas the said bishop denies spiritual jurisdiction to the Ukrainian married priests in Canada (which denials is contrary to the rights and privileges of our church rite), and in substitution establish a celibacy, that is to say, unmarried priests.

The resolution concludes:—

Therefore we the representatives of various Ukrainian settlements and communities in Western Canada resolve as follows:—

To establish Ukrainian Greek Orthodox Church of Canada upon the following principles:

(a) This church shall be in communion with other Eastern Orthodox Churches and shall adhere to the same dogmas and to the same church rites.

(b) The priests shall be married.

(c) The church property shall belong to the congregations and such congregations shall manage it.

(d) All bishops shall be elected by general church council, composed of priests and delegates representing church congregations and brotherhoods.

(e) The congregations shall have right to engage and discharge priests.

The 1918 meeting was apparently considered the first meeting or convention of The Ukrainian Greek Orthodox Church of Canada as the minutes of the next meeting referred to are headed "Minutes of the Second Ukrainian Greek Orthodox Church Convention at Saskatoon, December 11, 1919." In these minutes appears the statement:—

Our intention was and is to unite our regenerated "Ukrainian Greek Orthodox Church with the Kiev Metropolia. The Holy War, however, which our people is waging in Europe, does not allow as yet wider relations between us and Kiev, which are demanded by the union of our church with the Mother Church. As our church is unthinkable and impossible to exist with a bishop's supervision because we, once we came back to the Orthodox Church, have to adhere to her principles—we thought that before the time of the union of our Church with the Kiev Metropolia, we shall keep our own bishop for a short time and go under a temporary protectorate of the Syrian metropolitan Germanos. We could go under the protectorate of the Greek bishop Alexander in the United States, Metropolitan Germanos, however, is adherent of democratic principles to such an extent that he left the Church administration in the hands of parishes, the brotherhood, our consistory and our Council so that we could not find a better protector for a short while.

The references to Kiev are, of course, to the city of that name in Ukraine.

Presumably the second convention was adjourned to Winnipeg as in the minutes of what is called the second annual council held in that city on December 27th, 1919, appear the following resolutions, numbers 3 and 8:—

3.—that all Ukrainian Greek Orthodox parishes and priests submit themselves from this date under temporary spiritual jurisdiction of Metropolitan Germanos, who undertakes to fulfill all the duties and

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requirements of the bishop of the Ukrainian Greek Orthodox Church and supervise the spiritual side of the church life until the election and ordination of Ukrainian Orthodox bishop, with this reservation that the administrative right of the church remains with the church council, the brotherhood, consistory and the parishes.

* * *

8.—Be it resolved by this council that from now on the Consistory of the Ukrainian Greek Orthodox Church of Canada and the United States be formed with its temporary headquarters at Saskatoon and that such Consistory be composed of three priests and four lay members, president of the Brotherhood and of Church Council.

For reasons that will appear later, attention is here called to the "Brotherhood" mentioned in these minutes and in the minutes of later meetings.

At the third council, held in Winnipeg, Saskatoon and Edmonton on November 11th, 18th and 25th, 1920, it was decided that the Brotherhood and Consistory of the Church enter into an organic union with the Kiev Metropolia "as soon as conditions of communication will permit." On December 24th and 25th, 1921, at a joint meeting of the executive of the Brotherhood and the Consistory, it was resolved that it was necessary to secure a Ukrainian Bishop for Canada as well as three Ukrainian priests.

The fourth council was held on July 1.6th and 17th, 1924, and in what is stated as the introduction in the minutes of this meeting appears the following:—

The year 1924 shall become noted in the history of the Ukrainians in Canada for the reason that this year the Ukrainian Greek Orthodox Church of Canada obtained its Ukrainian bishop and thus united with all Ukrainian Orthodox Autocephalous Church which is under the leadership of old Ukrainian Metropolitan in Kiev Wasyl Lypkiwski.

Reference was then made at that meeting to the decision arrived at in 1919 that while

the Ukrainian Greek Orthodox Church of Canada considers itself part of the Ukrainian Greek Orthodox Church in Ukrainia,

there would be no opinion until the latter became autocephalous, that is, independent from the Russian or any other church. It was then pointed out that certain Ukrainians in the United States had succeeded in coming to an understanding with Kiev and had obtained a Ukrainian bishop from the Ukraine, namely, Archbishop John Theodorovich. The latter became the bishop of the newly

[Page 603]

formed Canadian Church and in September, 1925, at a conference of priests and the executive of the Brotherhood, the thanks of the meeting were expressed

to His Grace Archbishop John Theodorovich for his care over the Ukrainian Orthodox Church in Canada and declares to him their attachment as their head in America, at the same time the conference declares their unflinching allegiance to the Ukrainian Autocephalous Church with His Grace Metropolitan Wasyl Lupkiwsky.

Turning now to the position of the congregation of the Cathedral in Winnipeg, we find that it was organized in 1923 as a parish of the Ukrainian Greek Orthodox Church in Canada, the meetings of whose council we have been considering. From time to time communications were sent out on behalf of the congregation, asking for contributions from Ukrainians wherever they might be in Canada, and particularly those who considered themselves adherents and members of the Ukrainian Greek Orthodox Church, in order to commence the building of a cathedral "that would become the centre of the Ukrainian Orthodox Church of Canada." It is admitted that the first constitution of the congregation, although not produced, was adopted in 1924 and was handed, for revision, to Reverend Samuel W. Sawchuk, the first priest of the congregation. On September 13th, 1925, a resolution was passed at a meeting of the congregation which, while worded as if the congregation itself were to be constituted a body politic and corporate, was undoubtedly passed under the provisions of The Church Lands Act (R.S.M., 1913, c. 31). A copy of the resolution was filed within the prescribed time in the office of the Provincial Secretary, and by section 4 of the provincial enactment the trustees and their successors in office (not the congregation) became a body politic and corporate under the name of the

Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, in the City of Winnipeg, in the Province of Manitoba,

and

and have perpetual succession and a common seal, and by such name shall have all the powers and privileges possessed by or given to trustees under this Act, and under said name may sue and be sued, plead and be impleaded, answer and be answered in all courts and places whatever, and the said corporation shall have all the powers of corporations under The Manitoba Interpretation Act.

Title to the land upon which the cathedral was being erected was immediately taken and recorded in the names of the trustees.

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The revision of the congregation's first constitution being accomplished, what is known as the second constitution was adopted in March, 1926. By it:—

The parish shall adhere to the dogmas and the rites of the Ukrainian Greek Orthodox Church of Canada and shall foe under a joint spiritual supervision and jurisdiction of the Archbishop and the Consistory of the said. Church to the same extent as all other parishes forming the component part of the Ukrainian Greek Orthodox Church of Canada.

Spiritual leadership in the matters concerning services and church discipline is in the hands of Cathedral parish priest, which shall be appointed by the Archbishop and the Consistory of the Ukrainian Greek Orthodox Church of Canada upon understanding with the executive of the parish.

* * *

The church property belongs to the parish but the right of management of same shall be in (certain classes of members of) the parish.

The executive of the parish is to consist of the chairman, vice-chairman, recording secretary, financial secretary and treasurer (who are also the trustees) and two members of the executive and three members of the audit committee,—to be elected by a majority vote of certain classes of members present at a general meeting properly called in that behalf.

In 1929 was passed the special Act incorporating the plaintiff corporation.

The preamble recites that a petition has been presented on behalf of the congregations and parishes of the Ukrainian Greek Orthodox Church of Canada praying that it be enacted as thereinafter set forth.

By section 1 the Church declares that its faith and dogma are the same as that of the various already existing Greek Orthodox Churches and it adheres to the faith and dogma adopted by the first seven ecumenical councils of the Christian Church.

By section 2

all the congregations, parishes, missions, of the Ukrainian Greek Orthodox Church of Canada, which are now included and are a part thereof, and which may at any time in the future become a part thereof, are hereby constituted a corporation, public and politic, under the name of "The Ukrainian Greek Orthodox Church of Canada," hereinatfer called "the Corporation" for the purposes of administering the property and other temporal affairs connected with the spiritual jurisdiction of the said Corporation.

Section 4 details the objects of the Corporation, i.e.,

the maintenance and carrying on of charities or missions, erection, maintenance and conduct of churches, cemeteries, schools, colleges or orphanages and hospitals in any of the provinces of Canada, the advancement

[Page 605]

in other ways of education, religion, charity and benevolence, and to administer in Canada such of the property, business and other temporal affairs of the said Ukrainian Greek Orthodox Church of Canada as may be entrusted by the said Ukrainian Greek Orthodox Church of Canada to the Corporation.

Section 5 is a definition section. "Member" means any person who adheres to the faith, dogma and rite of the Church and who submits to the rules and regulations of the Corporation. "Congregation" means a group of members of the Corporation who already have organized and built a church which is officiated by a regular priest of the said church. "Mission" means a group of members of the Church who have declared themselves of the faith and dogma of the Church and who are in the process of formation of a congregation and have no church building. "Parish" means congregation or a group of congregations or missions officiated by one priest of the said Church.

By subsection 1 of section 6, any congregation or mission of the Church, whether now in existence or which may be formed at any time in the future, shall signify its intention to become a part of the Corporation by a resolution passed at a duly called meeting thereof, according to the constitution thereof. By subsection 2

the copy of such resolution shall be certified by the chairman and secretary of the said meeting and shall be sent to the consistory of the Corporation, and the Consistory may then issue a certificate admitting such congregation or mission to the Corporation.

By section 7,

only persons of the Ukrainian descent and of the faith dogma and rite of the Ukrainian Greek Orthodox Church of Canada shall be eligible for the office of priests, bishops, metropolitans, or other spiritual and administrative offices of the Corporation.

By section 8 the Corporation is to be managed by a Board of Consistory of at least five members, composed of even numbers of clergy and laity, and the head bishop of the Church, if resident in Canada, shall be the president of the Board. In the absence of the head bishop, the administrator who must be a clergyman, elected at the last general council, shall act as the president of the Board. The supreme power in all temporal matters of the Corporation shall be vested in the General Council of the Corporation to be held and called according to the rules and by-laws hereinafter referred to. Each congregation, mission or parish shall have the right of representation

[Page 606]

at such General Council of the Corporation, subject to the said rules and by-laws. Every clergyman of any rank in good standing in the said Church shall have the right to be present at the General Council and vote and take part in the proceedings thereof.

By section 9 the Corporation is given power to make by-laws for the appointment, subject as provided in the Act, of a Board of Consistory for the administration, management, and control of property, business and other temporal affairs of the Corporation.

It is clear from the meetings of the several councils of the unincorporated Ukrainian Greek Orthodox Church of Canada, held before 1929, that that Church never had any jurisdiction over the lands owned by the several congregations, the title to which, so far as concerns the Cathedral congregation, is vested by virtue of the provincial enactment in trustees. It is also clear from the Act of incorporation itself that Parliament did not even purport to vest these lands in the Corporation. There were meetings of a Council held after the Act came into force, and the minutes of those meetings continue the numerical designations adopted prior to May 1st, 1929. It is contended that the meetings subsequent to the Act were really meetings of the Board of Consistory of the Corporation only and indicate that the unincorporated church became absorbed in the appellant corporation. With this contention I find it impossible to agree.

Section 2 of the Act refers to "the spiritual jurisdiction of the said Corporation" but nowhere in the Act is there any grant of spiritual jurisdiction; so that we may take it that none exists in the Corporation. My construction of the Act leads to the conclusion that what is meant in section 2 is really the spiritual jurisdiction of the unincorporated church, that that church exists side by side with the Corporation, that the latter is endowed with authority over temporal affairs only, and that the phrase "other spiritual and administrative officers of the Corporation," in section 7, is used to describe the administrative officers who have dehors the Act some spiritual jurisdiction.

Several considerations point to this as being the proper construction. First, the "Brotherhood," many references to which appear in the minutes of the earlier councils, is not mentioned in the Act. Second, the concluding part of

[Page 607]

section 4 includes, among the objects of the Corporation, the administration in Canada of such of the property, business and other temporal affairs of the Church as might be entrusted by the Church to the Corporation. Third, subsection 5 of section 8 provides that every clergyman of any rank in good standing in the said Church shall have the right to be present at the General Council of the Corporation and vote and take part in the proceedings thereof. Fourth, if the Board of Consistory referred to in sections 8 and 9 has jurisdiction over temporal affairs only (as I think is clear) does that not infer that the Board of Consistory provided for by the General Councils of the Unincorporated Church should continue? In my opinion the Board of Consistory of the church did continue, with authority to exercise such spiritual jurisdiction as might, by consent have been conferred upon it. I construe subsection 3 of section 8:—

(3) The supreme power in all temporal matters of the Corporation shall be vested in the General Council of the Corporation to be held and called according to the rules and by-laws hereinafter referred to.

as really limiting the power of the Corporation to temporal affairs over which, alone, it has any jurisdiction.

Considerable time was devoted to the question as to whether the Cathedral congregation was a "part" of the Corporation. The proper determination of this question is rendered difficult because of section 2 of the Act enacting that all the congregations, etc., of the Church, which are now included and are a part thereof, are constituted a corporation, and section 6, providing for the signification of the intention of "any congregation or mission of the Ukrainian Greek Orthodox Church of Canada, whether now in existence or which may be formed at any time in the future" to become a part of the Corporation, by a resolution to be passed at a meeting of the congregation, and by the provisions of subsection 2 of section 6 that the Consistory "may then issue a certificate admitting such congregation or mission to the Corporation." Counsel for the respondents argued vigorously that the Cathedral congregation took no part in the application for the Act of Incorporation and it may be that the general statement of Reverend Samuel W. Sawchuk, that the congregation did take part in such

[Page 608]

application, although not contradicted, cannot be accepted in the absence of any record of such action in the minutes of the meetings of the congregation.

It is unnecessary to express any opinion upon the point. Even if it be conceded that the congregation is a part of the Corporation, I have already indicated that in my opinion the latter acquired no spiritual jurisdiction. Furthermore, in my view, while the respondent Mayewsky is a priest of the unincorporated Church he never was a priest of the Corporation. While "member" is defined in section 5, nowhere in the Act is any liability imposed or right conferred upon a member; so that while Mayewsky is a person "who adhered to the faith, dogma and rite of the Church," he did not submit to the rules and regulations of the Corporation.

The declaration signed by him on September 17th, 1931, and the certificate issued by the appellant corporation on the same day have not been overlooked. Attention should first be directed, however, to two letters addressed to Mayewsky in Galicia, from Reverend Samuel W. Sawchuk, who had by that time become "President of Consistory." In the first of these, dated June 14th, 1930, it is stated:—

His Grace Archbishop John Theodorpvich handed over to me your letter to him of the 18/5, 1930, and requested to make arrangements to bring you to Canada as a priest of the Ukrainian Orthodox Church. This they cannot be in United States of America owing to American immigration regulations.

New priests and candidates for priests with us are accepted by the conference of priesthood which will take place this year at the end of the month of July.

and in the second letter, dated September 11th, 1930:—

The governing body of the Ukrainian Greek Orthodox Church in Canada, favorably considered your application to accept you into the ranks of the Ukrainian Orthodox priests in Canada and instructed me to take necessary steps to bring you to Canada.

From these letters it appears that "new priests * * * with us are accepted by the conference of priesthood"; and that was the practice followed in the case of Mayewsky, who ultimately became the officiating priest of the Cathedral congregation. Nowhere in the Act of Incorporation of the appellant corporation is there any reference to a "conference of priesthood" so that the writer of the letter could not have been referring to the appellant congregation.

[Page 609]

Reverend Mayewsky arrived in Canada in 1931 and on September 17th of that year signed the following declaration:—

To the Honourable Consistory of The Ukrainian Greek

Orthodox Church of Canada,

Winnipeg, Manitoba.

Declaration

I, the undersigned priest Peter Mayewsky hereby declare that I will honestly and conscientiously fulfill the duties as a priest of The Ukrainian Greek Orthodox Church of Canada. That I will obey the Bishop and the Consistory of the said Church and will work for its welfare and development. I also declare that holy antimins which I have received from His Grace Archbishop John Theodorovich, through the Consistory of the Ukrainian Greek Orthodox Church of Canada, is and shall remain to be the property of The Ukrainian Greek Orthodox Church of Canada and as such shall be returned by me to the Consistory of said Church in case I ceased to be a priest of The Ukrainian Greek Orthodox Church of Canada.

Dated Winnipeg, Manitoba, this 17th day of September, 1931.

(Sgd.) Rev. Peter Mayewsky.

Signature of the priest.

Witness: S. W. Sawchuk.

On the same date a certificate was handed to him, reading as follows:—

Consistory of the Ukrainian Orthodox Church of Canada

Rev. S. W. Sawchuk, President,

479 Andrews St.,

Winnipeg, Canada.

Certificate

This will certify that Reverend Peter Mayewsky is a priest of The Ukrainian Greek Orthodox Church of Canada in good standing and as such is authorized to conduct Church services and to administer Holy Sacraments in accordance with the dogmas, teachings and rites of the said Church.

Dated at Winnipeg, Man., this 17th day of September, A.D. 1931.

Consistory of The Ukrainian Greek Orthodox Church of Canada.

Rev. S. W. Sawchuk, President.

Myr. Stechishin, Asst. Secretary.

(Seal reading: The Ukrainian Greek Orthodox Church of Canada.)

It is principally upon these documents that the appellant corporation bases its contention that in 1931 Mayewsky became one of its priests. As to the declaration, I merely observe that it refers, in my opinion, to the unincorporated Church. Reverend Mayewsky never became a "part" of the Corporation, he never became a "member" as defined in section 5 of the Act, and the declaration

[Page 610]

merely calls upon him to obey the Bishop and Council of the unincorporated Church. The certificate is under the seal of the appellant corporation but the granting of such a certificate and the retention thereof by Reverend Mayewsky cannot alter the fact that he was a Ukrainian Orthodox priest, that he was accepted as a priest of the unincorporated Greek Orthodox Church of Canada by the conference of priests of that church, and that no certificate issued by the appellant corporation and accepted by him could alter his status. In short, neither the declaration nor the certificate can confer upon the appellant corporation a power or jurisdiction that, according to the Special Act, it did not possess and was incapable of assuming.

On this point it is sufficient to refer to In the Matter of the Petition of Complaint of the Right Rev. John William Colenso, D.D., Lord Bishop of Natal, a decision of the Judicial Committee of the Privy Council2. The particular extract to which I desire to draw attention is set out in Merriman v. Williams3. That also was a decision of the Judicial Committee, in which their Lordships referred to a still earlier judgment in Long v. Grey4. In the last mentioned case the judgment adopted the opinion of the Colonial Court that certain letters patent which had been issued after the establishment of constitutional government were ineffectual to create any jurisdiction, ecclesiastical or civil, within the colony. In the case of the Lord Bishop of Natal (1), Lord Westbury declared that it was quite clear that the Crown had no power to confer any jurisdiction or coercive authority upon the Metropolitan over the suffragan bishops, or over any other person, and the question then arose whether the Bishop of Natal had, by contract, given the jurisdiction claimed by Bishop Gray. It was on this point that Lord Westbury said in the extract referred to:—

Even if the parties intended to enter into any such agreement (of which, however, we find no trace), it is not legally competent to the Bishop of Natal to give, or the Bishop of Cape to accept or exercise, any such jurisdiction.

[Page 611]

Similarly, in this case it was not legally competent to Reverend Mayewsky to give, or to the appellant corporation to accept or exercise, the jurisdiction claimed by the appellant corporation. It need only be added that once it is admitted that the power of the corporation is confined to temporal affairs, no estoppel can, of course, be raised by reason of the congregation being represented, and Reverend Mayewsky being present, at meetings of the Consistory or Council after May 1st, 1929; and this is so whether those bodies be considered as consistories or councils of the unincorporated church or of the appellant corporation. In view of this conclusion, it is unnecessary to refer to the charges made against Mayewsky, except to state that they were heard by what is termed a church-court of the appellant corporation, upon whose findings was promulgated the sentence of expulsion, and that the charges involved no variation in faith or dogma on the part of Mayewsky from that of the unincorporated church.

The Corporation also asked for the return and delivery to its Board of Consistory of the antimins mentioned in the declaration of September 17th, 1931. We were told that this word, while plural in form, really denotes a consecrated napkin of linen or lace, without which there could be no celebration of Mass. Upon this point my view is that the obligation in the undertaking is to return the antimins to the Consistory of the unincorporated church in case Reverend Mayewsky ceased to be a priest of that church. That event not having occurred, this branch of the claim must fail.

It is beyond question that none of the appellants can have any valid claim against the respondent trustees. The provincial statute is clear that these trustees are a corporation merely to take and hold title to land, and the constitution of the Cathedral congregation is plain that the latter did not even purport to entrust that body with any power of management.

Whatever may have been argued below, In this Court reliance was placed upon the fact that the individual appellants, Bohonos and Bugera, "join in this suit not only on their own behalf but also on behalf of the other members" of the Congregation, except the majority thereof. In fact the appellants divided the claim made against Reverend Mayewsky into two branches. The appellant

[Page 612]

corporation makes the only claim against him with respect to the antimins but, on the other hand, in respect of the other branch of the case (as to Reverend Mayewsky officiating in the Cathedral), the two individuals, it is stated, are the real plaintiffs. It is not admitted that the corporate plaintiff might not be also (or in the alternative) entitled to relief against the officiating in the cathedral but emphasis was placed upon what was alleged to be the undoubted right of the two individuals to succeed on that branch. From what has already been said, it is evident that there has been no departure by the congregation or Reverend Mayewsky from the belief and dogma of the unincorporated church, and for this reason, the claim of the individual appellants also fails.

It is perhaps advisable to point out that the Bishop is not a party to the claim and that the appeal fails to be decided on the basis of the claim advanced by the appellants. The alternative defence of the respondents, that if Reverend Mayewsky had ever been a priest of the appellant corporation, he was never legally expelled, need not be considered.

The appeal should be dismissed with costs and the order of the Court of Appeal confirmed, except that paragraph 3 thereof, dismissing the counter-claim without costs, should be amended so as to include the agreement with respect thereto, arrived at between the parties. There should be no costs of the cross-appeal.

Hudson J.—In this action the plaintiff asked for, and at the trial before Mr. Justice Donovan, recovered a judgment as follows: (1) restraining the defendant Mayewsky from officiating any longer or conducting any further services in the cathedral in question in this action (namely, the Cathedral Church of St. Mary the Protectress in Winnipeg) as a priest of the plaintiff corporation or as a priest of the said congregation or parish for which the defendant corporation (trustees) holds the said Cathedral, or otherwise: (2) that the defendant trustees, its officers, servants and agents be restrained from procuring or permitting such officiating or conducting as aforesaid by the defendant Mayewsky; (3) ordering that the defendant Mayewsky be restrained from wearing or using the antimins used by him in officiating in the said cathedral, and that he do forth-

[Page 613]

with deliver the said antimins to the corporate plaintiff or its Board of Consistory. There was a further order dismissing a counter-claim by Mayewsky.

On appeal to the Court of Appeal for Manitoba, the appeal was allowed, the judgment at the trial set aside and the action dismissed with costs, and it was further ordered that the counter-claim be dismissed without costs.

There was a cross-appeal to this court in respect to the dismissal of the counter-claim which might be disposed of at once. It merely asked that it be provided that such dismissal shall not be deemed to be an adjudication upon any of the issues raised in the said counter-claim, except to the extent that any of the said issues are finally adjudicated upon and, in the main action, that the dismissal of the respondent's counter-claim is to be without prejudice to any action that may hereafter be brought in respect of any of the issues not finally adjudicated upon. Counsel for the appellant consented to this variation and that the cross-appeal should therefore be allowed to this extent.

The defendants, the trustees of the Cathedral, are title holders of the Cathedral property in the city of Winnipeg under the provisions of the Church Lands Act of Manitoba and, subject to the provisions of that Act, are trustees for the congregation of the Cathedral. They hold a certificate of title therefor dated the 29th December, 1925. The congregation had before that time been organized and still continues as an active religious body.

The defendant trustees have no right to interfere in connection with the selection and maintenance! of the priest of the Cathedral, nor the financial affairs of the congregation other than those arising out of ownership of the property.

The congregation itself is not made a party to this action by representation or otherwise.

I am satisfied that no right of action exists against the defendant trustees because they have no right to remove the defendant Mayewsky and no right to represent the congregation before the court in this action. I would say at once that on this ground alone the action should be dismissed as against these defendants.

At the time the defendant trustees acquired title to the Cathedral property, the congregation adhered and still adheres to the dogmas and rites of the Ukrainian Greek

[Page 614]

Orthodox Church of Canada, a voluntary church body having as its members similar congregations in various parts of Canada.

The defendant Mayewsky is a duly ordained priest adhering to the same faith and doctrines and was duly appointed and installed as a priest of the congregation and still retains that position, with the approval of all of the members of the congregation except the individual plaintiffs. So far as appears, Mayewsky has not been guilty of any heretodoxy.

The plaintiff corporation was organized under the authority of a special Act of the Parliament of Canada, 1929, chapter 98. The objects of the corporation are set forth in section 4 which reads:

The objects of the Corporation shall be the maintenance and carrying on of charities or missions, erection, maintenance and conduct of churches, cemeteries, schools, colleges or orphanages and hospitals * * * the advancement * * * of education, religion, charity and benevolence, and to administer in Canada such of the property, business and other temporal affairs of the said Ukrainian Greek Orthodox Church' of Canada as may be entrusted by the said Ukrainian Greek Orthodox Church of Canada to the Corporation.

This section recognizes the continued existence of the voluntary body as a spiritual church as distinguished from the statutory body which it proceeded to incorporate. Under section 6 congregations might by resolution affiliate with the statutory church if they cared to do so. If they chose to remain outside the corporate church, they were not affected by the statute. They retained their name and their spiritual and temporal rights unchanged.

The congregation of the Cathedral Church of St. Mary the Protectress never did by resolution become part of the Dominion corporation and although their representatives have on many occasions collaborated with the officers and representatives of the corporation, I can find nothing to justify holding that the Cathedral congregation ever became a part of the corporate body or subject to its control, either temporal or spiritual.

The corporation in effect sues to enforce a decree of excommunication of the defendant Mayewsky on grounds of insubordination. There were no charges made against his private character or orthodoxy. The charges against him were heard before a church court and the proceedings there have been fully discussed and criticized in the court

[Page 615]

below but, in the view I take of this case, it is unnecessary for me to come to any conclusion as to the validity of the trial or the sentence.

The individual plaintiffs claim to be members of the Cathedral congregation and at least one of them has been accepted as such. They rest their case on the position taken by the corporate plaintiff and their claim must stand or fall with it.

In respect of the claim to prohibit the defendant Mayewsky from continuing to act as a priest of the congregation, it seems to me that this amounts to no more than a claim to have the court enforce what is a purely ecclesiastical decree. No property right is involved so far as the plaintiffs are concerned. The corporation makes no contribution to the salary of Mayewsky, nor to the maintenance of the Cathedral Church. For this reason, I think that the action fails to this extent. Moreover, I agree with the statement of Mr. Justice Robson in the court below that:

This action is solely based on the powers of this corporation. I do not see where this plaintiff corporation is vested with any authority to enforce spiritual discipline over priests or to disqualify them or to restrain any particular priest from officiating or any congregation from accepting his ministrations. In my view we cannot go beyond the statement of claim and ascertain whether Rev. Mayewsky could have been excluded under the general canons or rules of the church. Even if it might in fact possibly be the case that disciplinary action of some kind would be in order, it is my view from a perusal of the statute, that this corporation was not established to see to the enforcement of such sentences.

There remains to be considered the question of the antimins. The "antimins" (singular) is a linen cloth of little monetary worth but of some special sacerdotal value. From the evidence, it appears to have been entrusted to the defendant Mayewsky by the corporate plaintiffs. It remains their property. The defendant does not profess obedience to the corporate body as distinguished from the voluntary church. The corporate body has demanded its return and I think is entitled to succeed on this part of its claim, irrespective of the validity or invalidity of the decree of excommunication. The mere fact that it has little monetary value is not sufficient to deprive the court of jurisdiction. Its sacerdotal value is something which can be estimated only by the ecclesiastical bodies concerned.

[Page 616]

My conclusion of the whole matter is that the judgment below should be amended by directing the return of the antimins to the proper representatives of the corporate body, that the dismissal of the counter-claim should be subject to the provision heretofore mentioned, and otherwise the appeal should be dismissed.

As to costs, I would allow nothing in respect of the antimins nor of the counter-claim. The general costs of the appeal I would award to the respondent.

Appeal dismissed with costs.

Cross-appeal dismissed without costs.

Solicitors for the appellants: Heap, Arsenych & Murchison.

Solicitors for the respondents: Lamont, Layton & Swystun.