Counsel: N. Nurgitz & B. Howak for Applicants
A. Fitch for Respondent
K.G. Houston for the Rev. C. De Haan
IN THE MATTER OF “The Trustee Act” 1954, R.S.M., Cap. 273, and
IN THE MATTER OF The trusts of an indenture dated August 30, 1961
BETWEEN:
Jasper Steendam and Wicher Beugelink, Applicants-and-
The Canadian Reformed Church at Winnipeg, Respondent
Dickson, J[udge].
Applicants are bare trustees for The Canadian Reformed Church, an unincorporated religious society having its church at Winnipeg, of real property comprising one parcel with the church located thereon and another parcel with the church manse located thereon. The two trust agreements under which applicants hold the real property are dated August 30, 1961 and provide:
Paragraph 7 – The Trustees expressly covenant and admit that they hold the land as bare trustees for the Church, and that they will deal with the land and lawful instructions that may be given to them, in writing, by the Church.
Paragraph 9 – For the purposes of this Agreement, the direction or designation of the Church shall be a written direction signed by the members of the Church Consistory or a majority of them.
The applicants have received conflicting demands from two opposing Church factions and in this motion ask for the direction of the Court pursuant to the Trustee Act R.S.M. 1954 Cap. 273.
The Canadian Reformed Churches were established by Dutch immigrants who emigrated to Canada after the Second World War and who were members of the Dutch Reformed Churches in Holland while they were living in that country. The Canadian Reformed Churches and the Dutch Reformed Churches share a common faith and doctrine. All of the Ministers in Canada were formerly called as Ministers in Holland.
The doctrinal standards of the Canadian Reformed Churches, all derived from the Dutch Reformed Churches, consist of (i) the Belgic Confession of Faith, (ii) the Heidelberg Catechism, and (iii) the Canons of Dort. These doctrinal standards and the Church Order were adopted by the Dutch Reformed Churches at a Synod held in 1618-1619.
The relation between the Three Forms of Unity and the Church Order was described in this manner, “the Three Forms of Unity are the basis, and the Church Order is the fence around it, to ensure that everything is done on the basis of the Three Forms of Unity and within the framework of it.”
Reverend De Haan was ordained as a minister of the Dutch Reformed Churches in the Netherlands in November 1952. On March 9, 1958 he was ordained as Minister of the Canadian Reformed Church at Winnipeg. This motion concerns the refusal of Reverend De Haan to sign a form of subscription under which he would, briefly expressed, declare that:
Reverend De Haan does not take issue with the form of subscription. He signed a similar form in Holland. At the time he refused to sign the present subscription form he considered himself bound by and subject to the terms of the subscription form.
The reason for his refusal to sign appears from the following questions and answers:
“Q. You dispute the authority of the Classis to ask this of you, is that correct?
A. Right.
Q. This is the real basis of your objection?
A. That is the real basis.
Q. Then when the consistory asked you to sign in 1965, what was the real basis of your objection then?
A. Still the same Classical issue because the Consistory did so in comfirmation of the Classis’ decision previously taken.
Q. In other words, you considered that the jurisdiction that the Classis claimed from the Canadian Reformed Church in Winnipeg was not in accordance with what you understood this jurisdiction to be?
Not in this particular case.”
He considers the Classis to be a lower assembly than the Consistory.
The question in issue is therefore the jurisdiction of the Classis.
The Consistory of any Church consists of ministers, elders and deacons representative of the congregation, at least three elders and two deacons.
The other assemblies are formed by delegates; the Classis consisting of delegates from the Churches that together form a Classis; the Regional or Particular Synod consisting of delegates from two or more Classes; and the General Synod consisting of delegates from Regional or Particular Synods.
The Classes, Particular Synods and General Synods are not permanent bodies. They cease to function when they have dealt with the business placed on the agenda. Therefore it may be said that a Classis, Particular Synod or General Synod has no continuous authority. But this does not mean that these bodies are without authority. Each time a Classis convenes it has the authority given it by Article 30 of the Church Order of Dort. Upon the business coming before the Classis being concluded, all decisions and regulations enacted by it continue to bind the local Churches. The Classes, Particular Synods and General Synods are called Major Assemblies as against the Assembly in each case which constituted the Major Assembly. The constituting assembly in each case is called a Minor Assembly, with relation to the higher constituted Assembly.
The first Classis of the Canadian Reformed Churches, acting in confederation, was held November 15, 1950.
On November 27, 1952 the Church of Winnipeg which was being built and established by the Dutch immigrants was declared to belong to the region of the Classis West of the Canadian Reformed Churches in compliance with accepted Church Order.
On November 27th, 1952, the Regulations of the Classis West in Canada were passed. Article 12 of those Regulations provides:
“Church to Keep Records
The Classis appoints a Church to keep the records of the Classis in good order. The following shall be kept:
(The translation of resort has been given as “region”).
At a meeting of the Classis held on November 15th and 16th, 1961, a delegate appointed to check the classical records pointed out that the Classis Canada West did not have among its records the subscription forms of all the ministers and therefore it was decided by the Classis to translate the subscription form of Dort into the English language and to mail it to the various Churches of the Classis in Western Canada for approval.
At a further meeting of the Classis held on June 27th and 28th, 1962, the translated form of the subscription was read to and approved by the Classis and a decision made by the Classis to send the translated version of the subscription form to all of the Canadian Reformed Churches for examination.
At the Classis in March, 1963, the translated form of subscription was adopted and the ministers that were present were requested to sign the form of subscription as translated. All signed except Reverend De Haan who advised that he would not sign.
He has maintained that refusal.
On 8th April, 1965, the Consistory of the Canadian Reformed Church at Winnipeg together with the Consistory of the Canadian Reformed Church at Carman suspended the Reverend De Haan. Reverend De Haan has disputed his suspension. The Classis, the Particular Synod and the General Synod have all upheld his suspension on appeal. He has, notwithstanding continued to preach to a small group from the congregation and he and his group claim to be, and represent themselves, as, The Canadian Reformed Church of Winnipeg.
In considering the jurisdiction of the Classis reference must first be had to Article XXXII of the Confession of Faith of the Canadian Reformed Churches which reads:
“ARTICLE XXXII
In the meantime we believe, though it is useful and beneficial that those who are rulers of the Church institute and establish certain ordinances among themselves for maintaining the body of the Church, yet that they ought studiously to take care that they do not depart from those things which Christ, our only Master, has instituted. And therefore, we reject all human inventions, and all laws which men would introduce into the worship of God, thereby to bind and compel the conscience in any manner whatever. Therefore we admit only of that which tends to nourish and preserve concord and unity, and to keep all men in obedience to God. For this purpose, excommunication or church discipline is requisite, with all that pertains to it, according to the Word of God.”
From Article XXXII springs authority to establish rules for the protection of the Church.
The following Articles of the Church Order are relevant:
“Art. 1 For the maintenance of good order in the Church of Christ it is necessary, that there should be: offices, assemblies, supervision of doctrine, sacraments and ceremonies, and Christian discipline; of which matters the following articles treat in due order.
Art. 29 Four kinds of ecclesiastical assemblies shall be maintained; the Consistory, the Classis, the Particular Synod and the General or National Synod.
Art. 30 In these assemblies ecclesiastical matters only shall be transacted and that in an ecclesiastical manner.
In major assemblies only such matters shall be dealt with as could not be finished in minor assemblies, or such as pertain to the churches of the major assembly in common.
Art. 31 If any one complains that he has been wronged by the decision of a minor assembly he shall have the right to appeal to a major ecclesiastical assembly; and whatever may be agreed upon by a majority vote shall be considered settled and binding, unless it be proved to conflict with the Word of God or with the articles decided upon in this General Synod, as long as they are not changed by another General Synod.
Art. 36 The same jurisdiction has the Classis over the Consistory as the Particular Synod over the Classis and the General Synod over the Particular.
Art. 53 All ministers of the Word of God and likewise the Professors of Theology (which also behooves the other professors and schoolteachers) shall subscribe to the three formulas of Unity, namely the Belgic Confession of Faith, the Heidelberg Catechism and the Canons of Dordrecht, 1618-1619 and the Ministers of the Word who refuse to do so shall de facto be suspended from their office by the Consistory or Classis until they shall have given a full statement and if they obstinately persist in refusing they shall be deposed from their office.”
Beneath Article 53 the following words appear:
“The form of subscription for the Ministers of the Word, for the Professors of the Theological Seminary and for the professors and Teachers of the Faculty of Theology at the Free University, see Appendix XI.”
The words quoted immediately above do not form part of Article 53. The form set out in Appendix XI is not a liturgical form. However, it appears from the evidence that this form was approved by the Synod in 1618-19 and has been in use by the Dutch Reformed Churches ever since. Every theological student must subscribe to it before being ordained. After ordination, a minister who moves from one Classical area to another is required to sign it anew. The form which Reverend De Haan has refused to sign is the form set out in Appendix XI, translated to English.
I am satisfied that the Classis was within its jurisdiction in requiring (i) a form of subscription from its ministers and (ii) that the form be that which had been in use within the Dutch Reformed Church since 1618-19. The existence of Classical assemblies is recognized in Articles 29 and 36 of the Church Order. Article 36 makes it clear that the Classis has jurisdiction over the consistory and not the reverse, as Reverend De Haan contends. The jurisdiction of the Classis extends to and is limited to ecclesiastical matters. There can be no doubt that the subscription form, the purpose of which is to preserve the purity of faith and doctrine, is an ecclesiastical matter. The other limitation placed upon the jurisdiction of the Classis is that the subject be one which cannot be finished at the Consistory level or such as pertains to the Churches of the Classis in common. Again it appears obvious that the form of subscription which the Ministers are required to sign pertains to the Churches of the Classis in Common.
It is within the power of the Classis to seek to maintain unity of faith and to this end require of the ministers of all member Churches the promises defined in the form found in Appendix XI of the Church Order. This was the form that each Minister at the Classis, including Reverend De Haan, was familiar with and has signed as a condition preceding to ordination.
When the Canadian Reformed Church at Winnipeg joined the confederacy of Churches in the Classis it accepted the Church Order of Dort as part of the Church life to be had in common with the other Churches of the Classis. Implicit in that decision was acceptance of the subscription form found in Appendix XI of the Church Order. It may be that the Classis could have selected some other form of subscription but it chose not to do so. When the Classis in 1952, some six years before Reverend De Haan’s arrival in Canada, passed Article 12 of the Classical Regulations and referred to “The subscription form” there can be no doubt whatever as to the form referred to. It was the form found in Appendix XI. If any other form had been intended, the Regulations would have set it forth in detail. The decision taken later to have the form translated to English was routine and procedural and not of substance.
Reverend W.W.J. VanOene, Minister of the Gospel of the Canadian Reformed Churches at New Westminster, B.C. was asked:
“If the Consistory in Winnipeg examined the rules, examined the minutes or anything else that had happened in the Classis they would never have found any place where it says this was the form that shall be kept?”
He replied:
“This wasn’t necessary because everyone understands when we speak about the subscription form there is only one.”
I accept the evidence of Reverend W.W.J. VanOene that the Consistory has the right to demand of the Minister that he shall sign the subscription form and that the Classis also has that right.
It is, I think, not without significance that in Holland the requirement that people sign the subscription form is reached, according to the evidence of Reverend De Haan, at a Classical level. If such is the case it is difficult to see why Reverend De Haan would expect the decision of the Canadian Reformed Churches to be reached elsewhere than at the Classical level. He did not claim that the Classes in Holland did not have authority to demand of him the signing of the form.
The present controversy seems to have arisen from the fact that some members of the Church considered that in asking Reverend De Haan to sign the subscription form there was a breach of faith because the terms under which Reverend De Haan came to the Church were such as to relieve him of any such obligation. The effect of the correspondence leaves some room for doubt. However, two points seem clear, firstly, that any Church within the confederacy of Canadian Reformed Churches would be in breach of its solemn undertakings to the other Churches if it attempted to relieve its Minister from commitment to the Church Order and, secondly, from his testimony during the hearing of the motion Reverend De Haan does not claim to be exempt from the provisions of the Church Order of Dort in his call to Winnipeg. His complaint concerns the jurisdiction of the Classis.
Reverend Mr. VanOene was asked the following questions and gave the following answers:
"Q. In the Dutch Reformed Church is it possible for a consistory to exempt a church from being bound by the terms of the subscription form?
A. No.
Q. Is it possible for a church of the Canadian Reformed Churches?
A. No.
Q. What would the situation be with respect to the relationship of church claiming to be a Canadian Reformed Church but where the minister was exempt from the terms of the subscription form?
A. If the church would not heed the warnings of the sister churches there would be no other course open than to declare this church no longer belongs to the Confederation of the Reformed Churches.
Q. Would you say the character of that church has changed?
A. Because it had changed already it could no longer be considered to be a Canadian Reformed Church."
Even if the contentions of Reverend De Haan are conceded and one accepted the position, which I do not, that it is the Consistory alone which has the right to call for completion of a subscription form and prescribe its nature, the evidence is that the Consistory of the Canadian Reformed Church at Winnipeg did in fact call upon Reverend De Haan to sign the form of subscription adopted by the Classis and met with refusal.
The question which has been asked by the applicants is answered in this manner: The applicants shall comply with the instructions given to the applicants by the “Consistory of the Canadian Reformed Church” dated at Transcona in Manitoba on the 2nd day of November, 1965.
I have concluded that the applicants are entitled to costs in the amount of $100.00 from the respondent. There shall otherwise be no costs.
R.E. Dickson
DELIVERED the 4th
Day of August, 1967
Editorial note: Justice Dickson was appointed to the Court of Queen’s Bench in Manitoba in 1963 and four years later was elevated to the Manitoba Court of Appeal. He was appointed to the Supreme Court of Canada on March 26, 1973 and became its chief justice on April 18, 1984. He served on the Supreme Court of Canada for 17 years before retiring on June 30, 1990.