All About Estates

Whose Land Is It Anyways? Friends of Toronto Public Cemeteries v. Mount Pleasant Group of Cemeteries

In a recent decision that pitted a Toronto citizens’ group against cemetery operators, Justice Dunphy found that the cemeteries were publically owned, required public oversight, and were operating beyond the terms of the trust that govern the cemeteries.

In 1826, a group sought to buy land to create a non-denominational cemetery to meet the needs of the growing city of York. They petitioned the Legislative Council of Upper Canada and a statute was created authorizing the creation of the cemetery (known as “Potters Field”) and creating a statutory trust.  In 1871, the trustees incorporated as the Mount Pleasant Group of Cemeteries (“MPGC”) and expanded its operation.  The MPGC presently operates 10 cemeteries on 1, 222 acres of land as well as 4 crematories, 14 mausoleums, and 5 visitation centres and overseas the management of significant assets.

The Applicants, Friends of Toronto Public Cemeteries (“FTPC”), alleged that MPGC had stopped complying with its governing legislation.  Specifically, none of the current directors had been elected in accordance with an 1849 Act that required public consultation and public elections (the “1849 Act”)[1].  MPGC stopped complying with the requirements of the 1849 Act in 1987.  As such, the directors were self-appointed and there was no public accountability. Additionally, FTPC sought an order that the operation of the crematories and funeral centres were beyond the intention of the trust, which specified it was to provide land for the burial of the dead. Finally, the FTPC sought an accounting from MPGC pursuant to the Charities Accounting Act.

MPGC’s position was that the 1849 Act was not applicable as MPGC incorporated in 1871 and was now governed under the Corporations Act. As a private corporation, they operated privately owned commercial cemeteries and were not subject to charitable government oversight.

Justice Dunphy disagreed with MPGC’s position. He found that MPGC was incorporated by statute in 1871 with a specific objective of carrying out the statutory, perpetual trust created in 1826.  As such, the trust can only be amended by legislation and extends to all land operated by MPGC.  Incorporating in 1871 did not change how trustees and directors were to be appointed and trust was not a privately owned corporation.  As the 1849 Act had not been complied with since 1987, none of the current directors were validly appointed. While the 1849 Act provisions were awkward (informal town hall meetings) in the modern context, they provided an element of public oversight and only legislation could change the method of how trustees would be chosen. However, to address the power vacuum that removing all the directors would create, Justice Dunphy ordered the appointment of 7 current MPGC directors as trustees subject to the confirmation process in accordance with the 1849 Act.

Justice Dunphy also found that the visitation centres on the trust lands were beyond the terms of the trust and the trust objects could only be altered by statute. He made no determination as to the crematories as there was an incomplete evidentiary record on that point.

However, while finding that MPGC had a charitable purpose, Justice Dunphy declined to order an accounting as there was no evidence of bad faith on the directors’ part.

The MPGC intends to appeal the decision.

[1]An Act to amend an Act therein mentioned and to vest the Toronto General Burying Ground in Certain Trustees, and their successors”, S.C. 12 Vic. c. 104.

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com

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