VIA FAX (613) 623-4661 AND ORDINARY MAIL

March 6, 1998

Rev. Don Anderson
Box 171
Waba Crescent
White Lake, Ontario
KOA 3LO

Dear Rev. Anderson:

Re: Your appeal of the Decision by the General Council Executive

The Judicial Committee Executive has made a Decision to refuse to hear your appeal because it does not meet the grounds for an Appeal.

The reasons for the Decision are enclosed.

Yours very truly,

Cynthia J. Gunn
Legal/Judicial Counsel

Section 76 (i) of the Manual

Appellant: Rev. Donald Anderson

Respondent: General Council Executive

Decision under Appeal: Response to Media Coverage

re: Moderator

November 24, 1997

Decision by Judicial Committee Executive: to refuse to hear the Appeal

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The Judicial Committee Executive has some doubt as to whether the action taken by the General Council Executive constituted a appealable "Decision" within the meaning of the Manual, and as to whether the Appellant has standing to appeal the action of the General Council Executive. The Judicial Committee Executive has declined to rule on these questions, and has considered whether the Appeal meets the grounds for an Appeal as provided in paragraph G) of Section 76 of the Manual.

The Judicial Committee Executive received further material from the Appellant dated February 10, 1998, which was sent by the Appellant in reply to the Statement of Reply of the General Council Executive. The Judicial Committee Executive notes that there is no provision in the Manual for the submission of a reply to a Statement of Reply. The Judicial Committee Executive has declined to consider the Appellant's further material.

The Judicial Committee Executive has considered separately each request for relief made in the Appellant's letter of December 31, 1997. These requests have been considered in light of the grounds for appeal contained in paragraph (e) of Section 76 of the Manual, which are the only grounds for Appeal permitted under the Manual.

1. The Judicial Committee Executive refuses to hear the Appeal because it does not meet the grounds for an Appeal. The Appellant argues that the General Council Executive failed to recognize the requirements of Order of Ministry as distinct from those members of congregations, when the General Council Executive stated "...we do not believe that faithfulness consists in assenting to particular statements. Rarely, if ever, do we use doctrinal standards to exclude anyone from the circle of belonging". The Judicial Committee Executive notes, however, that the General Council Executive also stated that "What is required additionally of those being ordained or commissioned in the United Church is 'essential agreement' with the doctrinal articles of the Basis of Union." Any individual statement made by the General Council Executive must be interpreted within the context of the entire response of the General Council Executive.

The Judicial Committee Executive finds that the Appellant has not demonstrated that the General Council Executive failed to consider the matter before it as completely as practicable, or that there was any injustice in the disposition by the General Council Executive of the matter that was before it. The Judicial Committee finds that the Appellant has not established that the response by the General Council Executive was against the evidence and the weight of the evidence, or that it was wrong in law. As to the final ground of appeal under paragraph (e) of Section 76 of the Manual, the Appellant has not alleged any newly discovered evidence that might have an important bearing on the case

2. The Judicial Committee Executive refuses to hear the Appeal because it does not meet the grounds for an Appeal. The appellant argues that the General Council Executive wrongly included certain documents as statements of doctrine which the Manual does not reference as 'Doctrine'. The Judicial Committee Executive notes that the General Council Executive referred to those documents as "official statements and documents" containing further expressions of the doctrine of the United Church, as opposed to referring to them as "statements of doctrine" in themselves. The Judicial Committee Executive also notes that the Articles of Faith are described in 2.0 of the Basis of Union as "...a brief summary of our common faith". These words are explicitly non-limiting. While the Basis of Union cannot be changed without a Remit, it is consistent with the polity of the United Church for the General Council to adopt statements and documents which contain further expressions, interpretations and commentary relating to our faith.

The Appellant has not demonstrated that the General Council Executive failed to consider the matter as completely as practicable, or that there was an injustice in the disposition of the matter. The appellant has not established that the action of the General Council Executive was against the evidence and the weight of the evidence, or that it was wrong in law. As to the final ground of appeal under paragraph (e) of Section 76 of the Manual, the Appellant has not alleged any newly discovered evidence that might have an important bearing on the case.

3. The Judicial Committee Executive refuses to hear the Appeal because it does not meet the grounds for an Appeal. The Appellant argues that the General Council Executive failed to resolve the issues of the complaint contained in the petition from Bay of Quinte Conference and in the correspondence from those who wrote to the General Council Executive. As to the ground that the General Council Executive failed to consider the matter as completely as practicable, the Judicial Committee Executive notes that the General Council Executive made a thorough and complete responses to the concerns raised in the Petition originating with Oshawa Presbytery and in the correspondence received by the General Council Executive. The Judicial Committee Executive notes that neither Oshawa Presbytery nor the Bay of Quinte Conference has appealed the action taken by the General Council Executive in response to the petition originating with that Presbytery, and transmitted with concurrence by that Conference. The General Council Executive informed those who wrote to the General Council of the response made the General Council Executive to their concerns, and of the courses of action available to them in relation to this matter.

For these reason also, the Judicial Committee Executive finds that the Appellant has failed to establish that there was an injustice in the disposition of the matter, that the action of the General Council Executive was against the evidence and the weight of the evidence, or that the action of the General Council Executive was wrong in law. As to the final ground of appeal under paragraph (e) of Section 76 of the Manual, the Appellant did not allege any newly discovered evidence that might have an important bearing on the case.

4. The Appellant asks the Judicial Committee to formally declare what is Doctrine and what is not doctrine of The United Church of Canada. The Judicial Committee has no authority to declare what is doctrine and what is not doctrine of The United Church of Canada. It is within the mandate of the General Council to legislate on matters respecting the doctrine of The United Church of Canada [Basis of Union 8.6.2].

5. The Appellant asks the Judicial Committee to require the General Council Executive to affirm as doctrine of The United Church of Canada the doctrinal statements set forth in the Basis of Union, or in the alternative, to require the General Council Executive to seek amendment immediately to the Basis of Union and immediately seek approval of the new doctrine by way of remit to all Pastoral Charges and Presbyteries. The Judicial Committee has no authority to require the General Council Executive to affirm doctrinal statements as doctrine of The United Church of Canada. It is not within the mandate of the General Council Executive to make such affirmations. Only the General Council has authority to legislate on matters respecting the doctrine of The United Church of Canada [Basis of Union 8.6.2]. The General Council Executive also has no power to authorize a remit. That is within the exclusive jurisdiction of the General Council.

6. The Appellant asks the Judicial Committee to require the General Council Executive to publish the findings of the Judicial Committee. This Decision of the Judicial Committee Executive will be reported to the 37th General Council of The United Church of Canada as required under Section 543 of the Manual. Notice of this Decision will also be given to the parties. It is open to either party to share this Decision with others. The Judicial Committee Executive declines to impose any requirement on the General Council Executive that it publish this Decision.

Date of Decision: February 16, 1998

I agree with the disposition of the intended appeal as suggested by my colleagues on the Executive of the Judicial Committee. I share their view that the intended appellant does not rest any aspect of his appeal on the permissible grounds for an appeal as set forth in paragraph (e) of Section 76 of the Manual.

The majority of the members of the Executive of the Judicial Committee express doubt as to Rev. Anderson's status to bring the appeal and whether the in appeal is with respect to a "Decision or Ruling" as required in paragraph (a) of Section 76.

Concerning the latter issue, I have no doubt that the General Council Executive did not make decisions or rulings of the kind which can give rise to an appeal.

In my opinion, the Executive of General Council was simply performing an administrative function by responding to complaints, criticisms, concerns, and commendations with respect to the moderator. The Executive of General Council also considered a petition, but its disposition did not involve a decision or ruling of the kind envisioned in paragraph (a) of Section 76. Whether the responses of the Executive of General Council were appropriate is not a matter which the Judicial Committee has any jurisdiction to determine.

It was never intended that a member of The United Church of Canada would have any right to appeal the administrative processes of the Executive of General Council or, indeed, the administrative processes of conferences or presbyteries.

The requirement that there be a "Decision or Ruling" as a foundation for an appeal is obvious. An appeal should be in such a form that it can either be allowed or dismissed. To take a specific example, the Executive of General Council did not make a decision or ruling as to what constitutes doctrine, nor was it asked to do so. Absent such a decision or ruling, the intended appeal is simply an invitation that the Executive of the Judicial Committee define what constitutes doctrine. It is an invitation which must be rejected since the Judicial Committee has no jurisdiction to do so.

In the field of civil law, there is an old adage - an appeal is from the judgment or order as entered, not from the reasons of the trial judge. In the present case, there is no judgment or order (no decision or ruling). There are simply reasons, from which no appeal lies.

_________________

Charles R. Huband