COURT FILE NO.: CV-12-448-00

DATE: 2013/APRIL/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Allan Smith, Carmon Smith and Marvin Smith, by his attorney, Allan Smith

Applicants

– and –

Cataraqui Cemetery Company

Respondent

Kurt R. Pearson, for the Applicants

Michael D. Swindley, for the Respondent

HEARD: December 6, 2012

The Honourable mr. justice j. m. johnston

REASONS FOR judgment

[1] This is an Application commenced by three brothers, Allan, Carmon and Marvin Smith (Marvin by his attorney, Allan Smith). The Respondent is the Cataraqui Cemetery Company, which operates the Cataraqui Cemetery, a historic cemetery located in Kingston, Ontario.

[2] The Applicants seek declaratory relief, together with an interim and permanent order, prohibiting the Respondent from interfering with the rights of the Applicants and their descendants to be buried at the Cataraqui Cemetery with full care and maintenance privileges in accordance with a deed that was granted to Darius Smith and Joseph Smith dated October 2, 1869. By way of a Declaration, the Applicants seek orders as follows:

(a) a declaration they are the lineal descendants (and heirs) of the late Joseph Smith, who died at Kingston, April 28, 1915;

(b) a declaration and order that they are entitled to burial rights (internment rights) along with their respective descendants and family members, at the Cataraqui Cemetery at Kingston;

(c) a declaration and order that they, as well as their respective descendants and family members, are entitled to transfer and convey all burial rights and care and maintenance privileges to their respective descendants by Will, in accordance with the Funeral, Burial and Cremation Services Act, 2002, SO 2002, C.33. (hereinafter referred to as “the Act”)

Position of the Respondents:

[3] The Respondents take the position that they are bound by the position taken by the Registrar of Cemeteries for the Province of Ontario. The Respondent argues that the Registrar has mandated that the Respondent:

(a) not take direction from any member of the Smith family (i.e., the purported heirs-at-law) with regard to interment rights without written documentation to prove standing as heirs-at-law and/or to prove a transfer of rights by Will or bequest;

(b) ensure that the purported heirs-at-law have first standing to be interred over all other possible descendants and;

[4] The Respondent’s position is that it is not a proper party to this proceeding. Rather, the Respondent argues the Applicants ought to have served all of the potential heirs of the late Joseph Smith and Darius Smith. Both parties to this proceeding agree that would involve potentially one thousand to two thousand respondents.

[5] The Respondent argues that the right of interring in a burial plot secedes, speaking generally, to the next-of-kin of the interment right holder (Strathcona Cemetery Co. Taylor [1924 3dlr 623 (ALTA) SC, Appellate Division at para. 39). Accordingly, it is the Respondent’s position that the onus lies with the Applicants to prove that they have an inherited the right of interment through bequest or succession. This principle, according to the Respondent, is enunciated in both the By-laws of the Cemetery, as well as, the Registrar of Cemeteries’ interpretation of the Funeral, Burial and Cremation Services Act (the Act). This Act came into force July 1st, 2012, and replaced the old Cemeteries Act, which had been in effect since 1990. The Act governs the day-to-day operations of all cemeteries in Ontario. This includes the sale and transfer of interment rights. The Act provides that the Minister of Government Services shall appoint a Registrar for the purposes of the administration of the Act. Generally, any questions regarding the operation of the cemetery and/or interpretation of the Act itself are passed from the General Manager of the cemetery to the Registrar. All cemeteries in Ontario follow, more or less, this chain of command, according to the Affidavit of Robert Lemmon, General Manager of the Respondent Cemetery. The Act defines “interment rights” as the right to require or direct the interment of human remains in the lot or plot. The Act also defines “interment right’s holder” as the person who holds the interment rights with respect to a lot or plot whether the person be the purchaser of the rights, the person named in the Certificate of Interment or such other person to whom the interment rights have been assigned.

[6] Section 48 of the Act provides that only an interment rights holder or a person authorized to act on the holder’s behalf has the right to inter any human remains in the lot or plot to which the interment rights relate in accordance with the cemetery by-laws.

[7] The Respondent’s position is that only the purchaser(s) of interment rights (in this case, Darius Smith and Joseph Smith), or their legal representative(s), may authorize interment in the plot(s) they hold rights over.

[8] The Respondent argues that the Applicants failed to provide satisfactory documentary evidence to establish any one of the three Applicants is the interment right holder of any of the Smith plots located in the Cataraqui Cemetery. Until such time as one of the possible two thousand heirs of Darius or Joseph Smith can provide satisfactory documentary evidence that they are the interment right holder, none of the remaining plots purchased by Darius and Joseph Smith can be used and, in effect, these plots shall forever be sealed.

Background:

[9] In 1869, the brothers, Darius and Joseph Smith, purchased sixty-four plots for interment of human remains in the Cataraqui Cemetery for the then princely sum of $100.00. In return for payment of the said funds, the two brothers were presented with a Deed to Lots 100, 101,102 and 103 and Section “A” (“the Smith Family Lots”).

[10] It is now acknowledged by the Respondent that the three Applicants are, in fact, the lineal descendants of Joseph Richardson Smith. Joseph Richardson Smith is the great-great grandfather of the three Applicants. He was buried at the Cataraqui Cemetery in 1915. The Applicants’ great-grandfather, William Campion Smith, died and is also buried in the Cataraqui Cemetery, with a burial date of January 17, 1952, in Lot 101. William Campion Smith was one of four children of Joseph Richardson Smith.

[11] Guy Moran Smith, born July 13, 1885, and is the grandfather of the three Applicants. This gentleman lived in Toronto and chose to be buried in Toronto and not Cataraqui Cemetery. Ronald Burton Smith,(father of the Applicants) born March 17, 1910, was buried in the Cataraqui Cemetery, in Lot 103, on October 12, 1995. The Applicants’ mother, Laura Smith, was buried in the Smith Family Lots in 1997.

[12] Darius Smith, one of the two original purchasers of the cemetery lots died and was interred at the Cataraqui Cemetery, Lot 100, in 1880.

[13] According to Exhibit “C” of the Affidavit of Robert Lemmon, sworn November 9, 2012, at least nine people, in addition to his brother Darius, were buried in the Smith Family lots at the Cataraqui Cemetery, before the death of Joseph Smith, including the following:

(1) C.N. Smith – ash buried August 2, 1894 – Lot 100

(2) Almira Smith – buried September 5, 1876 – Lot 101

(3) Nellie Smith (child) – buried February 27, 1878 – Lot 100

(4) D.C. Smith – buried December 4, 1887 – Lot 101

(5) O.A. Smith (child) – buried January 12, 1888 – Lot 101

(6) Mary Bateson – buried November 17, 1872 – Lot 103

(7) Harriot L. Spooner – buried September 8, 1876 – Lot 103

(8) Mary Leeman – buried 1885 – Lot 103

(9) D.M. Smith – buried May 1, 1880 – Lot 104

[14] The original purchasers of the sixty-four lots, Darius and Joseph Smith, remain today as the registered interment right holders of the sixty-four lots. The Cemetery was never notified of the transfer of the remaining lots, nor is there any evidence that Darius or Joseph Smith transferred their interment rights while they were alive or devised their rights by way of Will.

[15] The Respondents argue that the interment rights, if not specifically transferred by the two owners, would have been transferred upon their death pursuant to the residue clause of their respective Wills or, in the absence of a Will, by way of the laws that relate to intestate estates.

[16] The current General Manager of the Respondent Cemetery, Mr. Lemmon, deposed in his Affidavit November 8, 2012 at paragraph 45 that past practises of the Cemetery “was at times, unfortunately, spotty. Indeed, the Cemetery’s prior management did not follow the Act and the By-laws in allowing persons to be interred in the Smith plot without satisfactory evidence showing those interred were actually the heirs-at-law of Joseph Smith or Darius Smith”. Mr. Lemmon further deposed that, notwithstanding this fact, the Registrar of Cemeteries made it clear to the Respondent that “just because a burial was allowed in 1999 etc., doesn’t make it okay to continue to recognize the wrong individual(s) as interment right’s holders”.

Interment Rights – General:

[17] In general, when a person wishes their remains to be buried or cremated at a cemetery or interred, they purchase, not the land to which they wish to be interred, but rather the rights to be interred in a specified lot or plot of land. Essentially, a person is purchasing an interment right – the right to be interred in a specific area in the cemetery. According to Mr. Lemmon’s Affidavit, after purchasing interment rights, the purchaser is provided with an Interment Right’s Certificate as a record of how many rights were purchased and where, in the cemetery, the rights are located.

[18] In the case at bar, Darius Smith and Joseph Smith were provided with a Deed in 1869 which, according to the Respondent, is akin to the current Interment Right’s Certificate provided to purchasers by the cemetery.

1869 Deed

[19] The 1869 Deed to Darius and Joseph Smith states that they were entitled to Lots 100, 101, 102, 103 and Section “A” of the Cemetery:

“to have and to hold the above granted Premises to the said Darius Smith and Joseph Smith and their Heirs and Assigns forever subject, however, to limitations and conditions with the privileges specified in the rules of the said cemetery…that they are actually and lawfully seized of the Land hereby granted”.

Issues Raised in this Application:

(1) is the Cataraqui Cemetery Company a proper Respondent to this Application?

(2) who is permitted to be interred in the Smith Family Lots?

(a) is this question resolved by reference to the Funeral, Burial and Cremation Services Act, 2002, SO 2002, C.3 or is it governed by the 1869 Deed to Darius and Joseph Smith?

(b) what is the definition of ‘heirs’ within the meaning of the aforesaid 1869 Deed?

(c) what was the intention of Joseph Richardson Smith with respect to his remaining interment lots at the Cataraqui Cemetery?

(d) is the Respondent estopped from claiming the Applicants had no interment rights to the Smith Family Lots?

Analysis:

Respondent as Party:

[20] The Respondent argues that it is not a proper party to the proceedings and that it is merely enforcing the position given to it by the Registrar pursuant to the newly enacted legislation July 1, 2012, the Funeral, Burial & Cremation Services Act. The Registrar’s position is that the various lineal heirs of Darius and Joseph Smith must prove which of them is the interment right holder. In the absence of such proof, the matter must be determined by a court after all potential heirs have been given notice of the court proceeding.

[21] I reject the Respondent’s position. The Respondent is a necessary party to the proceeding. The Respondent is, in the final analysis, the entity responsible for interment in their cemetery. An individual wishing to be interred in the Cataraqui Cemetery makes an Application to the Respondent, not the Registrar. While it may be that the Respondent relies upon the Registrar, interpretation of the new Act and in turn advises potential purchasers of the position (in accordance with the Registrar’s view). Nonetheless, it is the Respondent who refused the request of the three Applicants to be interred in the Smith Family Lots. The Respondent and its predecessor have interred members of the Applicant’s family (the “Smiths”) since shortly after purchase of the lots in 1869. Of the sixty-four lots purchased in 1869, thirty-one remain, assuming the remaining plots are traditional coffin size plots. (Cremation plots are much smaller and could accommodate potentially hundreds of interments.) To date, thirty-three descendants of the two original purchasers have been interred.

[22] During the course of hearing of the Application, the Respondents argued that the Applicants ought to serve all potential heirs to the Smith plots, potentially one thousand to two thousand individuals. Both Mr. Lemmon and the Applicants agree that this is difficult. Mr. Lemmon, in an email dated August 2, 2011, stated, “both sides of the family agree it would be almost impossible to locate all the possible heirs.” The cost of such a process would be very significant. Accordingly, I find the Respondents are a proper and necessary party to this Application.

Do the Applicant’s have the Right to be Interred in the Smith Family Lots at the Cataraqui Cemetery:

[23] In consideration of all of the circumstances argued by both parties, the Affidavits filed and the Factums and the findings of fact I make herein, I am persuaded that the Applicants are entitled, as heirs of Joseph Richardson Smith, to be interred in the Smith Family Lots at the Cataraqui Cemetery, upon payment of current care and maintenance fee (per interment right) in the amount of $1,040.00.

[24] The 1869 Deed to Darius and Joseph Smith is the equivalent of what is now referred to as interment rights certificate granted to the two gentlemen and their heirs and assigns. For reasons that will follow, I find that proper time for interpretation of the Deed as 1869, the time of purchase. The current Act, according to the Respondent’s interpretation and the purported interpretation of the Registrar, provides that only interment right holders or those legally assigned interment rights can be interred in the disputed plots. The consequence such an interpretation will be, in cases of historic cemeteries where families purchased plots (as in this case) over 140 years ago, succeeding generations will, in many instances, be unable to prove that they own interment rights. The effect will be closure of many plots. In this case, it is very unlikely that any lineal descendant of Darius or Joseph Smith has the time or money to review each and every Will of any potential heir to determine the interment right holder.

[25] I find that the intentions of the parties to the 1869 Deed, namely, the predecessor to the Respondent and the two Smith brothers was to permit transfer interment rights to heirs . Further, it must have been contemplated that ‘heirs’ would to be defined broadly, such that it includes lineal descendants or family members of lineal descendant of either brother. In my view, it could not have been the intention of any of the parties to the Deed, to limit ‘heirs’ to immediate descendants or heirs-at-law. I rely upon the following facts and findings:

(1) Cataraqui Cemetery has, from the beginning, permitted lineal descendants of both Darius and Joseph Smith to be interred in the lots. In my view, the Respondent has traditionally taken the position that “heirs” shall be interpreted with broader meaning. In short, persons who could establish themselves as a lineal descendant of the original purchasers, or spouse or child of such individual, was entitled to interment in the Cemetery. This practice was carried on for over 140 years. Mr. Lemmon, in his Affidavit, suggests that the Respondent was in error by allowing these persons to be interred in the past. I reject this as reasoning after the fact rationalization. The only logical interpretation is that the Cemetery accepted a broader definition of ‘heirs’. In fact, the Respondent refused to allow the Applicants’ interment only upon advice of the Registrar, upon the passage of the new legislation.

(2) Darius Smith died in 1880. Joseph Smith died and was interred in Cataraqui Cemetery in 1915. At least nine persons, in addition to his brother, were interredin this Cemetery in Joseph’s lifetime. I find this to be strong evidence of Joseph Richardson Smith’s intention that his lineal descendants; not simply interment right holders would have the right to be buried in the Smith Lots.

(3) Mr. Darius Smith and Mr. Joseph Smith purchased sixty-four lots in 1869. Joseph had four children. The only logical inference from the fact that the brothers purchased so many lots, is they intended future generations of “Smiths” to be buried in the sixty-four lots. It simply does not make sense that the two brothers would purchase so many lots if, in fact, it was intended that only one or two persons per generation would have the right to decide who would be interred in the lots. I further find the Smith brothers purchased the lots enabling future family members to be buried in the same area, which indicates they placed value upon being buried as a family.

[26] The Smith family, over the generations, itself treated the definition of “heirs” in the 1869 Deed as including all lineal descendants. Successions of Smith generations are buried in the Cataraqui Cemetery. There is no evidence that any of the preceding Smith generation specifically transferred interment rights to the next generation. The lots were purchased for significant money in 1869. In my view, the failure to specifically convey or transfer interment rights to future generations was not an omission. Rather, it is further evidence each intended succeeding generations be entitled to interment in the Smith family Lots, if they chose, and if there was space remaining. Four generations of “Smiths” thought that the next generation would be entitled to interment in the lots purchased by Joseph and Darius Smith. They had good reason to hold such a view, because that was the Cemetery’s view as well.

[27] Further, I find that the word “heirs” in the 1869 Deed to Darius and Joseph Smith transferred the interment rights to brothers and lineal descendants of the brothers including spouses. The Deed is clear that it was forever.

Does the Funeral, Burial and Cremation Services Act which came into effect July 1, 2012, supercede the 1869 Deed?

[28] In my view, the Act cannot retroactively apply to the extent that it would remove substantive rights, unless the legislation specifically states so. The Act does not specifically state that it applies retroactively. Accordingly, I find that the 1869 Deed to Darius and Joseph Smith transferred interment rights in Lots 100 to 103 at the Cataraqui Cemetery to the brothers and their lineal descendants and spouses. The new legislation does not apply retroactively.

Are the Applicants the Lineal Descendants of Joseph Richardson Smith?

[29] I find, as a fact, that the three Applicants are the great-great grandsons of Joseph Richardson Smith. J. R. Smith was their great-great grandfather, William Campion Smith was their great grandfather, Guy Moran Smith was their grandfather, Ronald Burton Smith was their father. At one point in the litigation between the parties, the Respondent took the position that they were not lineal descendants. At the time of argument, it was conceded that the Applicants are lineal descendants. A number of immediate family members of the Applicants are interred in the Cataraqui Cemetery, including the Applicants’ mother and father, great-grandfather and great-great grandfather. I accept Carmon Smith’s Affidavit wherein he deposes that his grandfather, Guy Smith, is not buried at Cataraqui Cemetery but rather is buried at Mount Pleasant Cemetery in Toronto, Ontario, as he lived his entire life in Toronto.

Estoppel:

[30] In the event that I am wrong on my finding of the interpretation of the meaning of “heir” in the 1869 Deed and/or that the Deed prevails over the current Act, I go on to consider the Applicants’ argument that the Respondent is estopped from allowing the Applicants the right of interment.

[31] The Respondent argues estoppel cannot apply here because the Registrar advised the Cemetery that, the fact it made mistakes in the past and allowed persons to be interred, they were not interment right holders or did not have authority from the interment right holder to be interred, does not justify continuation of the error. Continuing to do so, would violate the potential rights of the actual interment right holders, according to the Respondent.

[32] I reject this argument. I find the Cataraqui Cemetery Company has, by its actions, permitted generations of the Smith family, including mother and father of the three Applicants, to believe that they are legally entitled to be buried in the Smith Family Lots. Succeeding generations of the Smith family acted upon the Respondent’s interpretation of interment rights. In my view, the Smith family and the Applicants, in particular, are prejudiced by the change in position of the Cataraqui Cemetery. The Applicants obviously feel very strongly and wish to be buried in the lots traditionally reserved for the Smith family. The Applicants’ mother and father were buried in the Smith Family Lots in the 1990’s. Had the Respondent taken the position that Ronald and Laura Smith (the Applicants’ parents) were not legally entitled to be interred in the Cataraqui Cemetery in the Smith Family Lots, they may well have chosen another location, thereby permitting their burial site to be sufficient size that their sons could also be interred beside them, at a later date. Further, they may have chosen a site large enough to accommodate their grandchildren. The evidence in this case is clear that four generations of Smiths (except for the Applicants’ grandfather) placed great weight on being buried in a communal family setting. It is extremely prejudicial to these Applicants to now be told, notwithstanding the fact thirty-one interment sites remain in the Smith Family Lots, they are not entitled to interment. The current position of the Respondent’s is unfair to the Applicants and to Ronald and Laura Smith, who obviously now have no recourse as to the location of their remains. The actions of the Respondent over the years, allowing various generations of Smiths to be buried in the Smith plots had the effect of inducing them to believe internment would be allowed. After the fact the rules seem to have changed. Prejudice is caused to the Applicant’s by the change in position after so many years.

[33] The Ontario Court of Appeal reviewed the principle of estoppel in Beer v. Townsgate I Ltd. (1997 36 O.R. [3ed] 136 (OCA)). At paragraph 68 of the Judgment, the Court stated:

“The principle of estoppel was outlined in Maracle v. Travellers’ Indemnity Co. of Canada 1991 CanLII 58 (SCC), [1991] 2 S.C.R. 50 (SCC). The concept is that a person is precluded from retracting a promise, by words or conduct upon which another has relied. Shelson Investments Ltd. v. Durkovich supra, involved the defendant’s late communication of acceptance of the plaintiff’s counter-offer to buy an apartment building. O’Leary J. held that the wording of the counter-offer made communication of acceptance unnecessary, but that, in any event, the plaintiff’s silence and accompanied conduct estopped him from denying a binding contract on the ground of lack of communication.”

[34] Applying the law of estoppel to the case at bar, I find that the Respondent’s silence, in fact, acts of permitting interment to over twenty Smiths since 1869 without formal proof that they are interment right holders in the Smith Family Lots, prevents them from now insisting the Applicants prove they are the interment right holder of the said lots.

Potential Claims of Clayton and David Smith:

[35] In my Partial Ruling on this Application, I found that Clayton and David Smith are distant relatives of the Applicants. Clayton and David Smith approached the Respondent several years ago inquiring about entitlement to be interred in the Smith Family Lots at the Cataraqui Cemetery. Clayton and David Smith and the three Applicants are the only Smiths, based on the evidence, that have approached the Respondent seeking interment rights. I agreed with the Applicants that serving one thousand to two thousand potential Smith heirs was not reasonable but serving two was. Both Smiths were served in accordance with my December, 2012, Order. Neither Smith has chosen to file a Reply or take a position. Pursuant to my December Order, I was prepared to continue the oral hearing in this Application if Clayton or David Smith wished to participate. Given that neither has filed a Reply, I proceed to render this Judgment based on the evidence supplied to me by counsel for the parties on December 6, 2012.

Summary:

[36] I find that the Applicants are the lineal descendants of Joseph Richardson Smith. I find the 1869 Deed between Darius and Joseph Smith and the predecessor to the Respondent is binding today. The Deed provides that “heirs” of Darius and Joseph Smith are entitled to interment in the Smith Family Lots. “Heirs” include lineal descendants. The Applicants are lineal descendants.

[37] Practice since the purchase of the rights in 1869 has been that lineal descendants are entitled to interment on a first-come first-serve basis. Accordingly, any Smith who is a lineal descendant of Darius or Joseph Smith, the original purchasers of the lots, is entitled to interment in the Smith Family Lots at the Cataraqui Cemetery, provided that the care and maintenance fee of $1,040.00 per interment (or such rate as may apply at the time of interment). Accordingly, I declare an Order that the Applicants, their lineal descendants and spouses are entitled to interment rights in the Smith Family Lots at the Cataraqui Cemetery, upon payment of the care and maintenance expenses that exist at the time of reserving the interment right. Thirty-one additional interments remain of the sixty-four purchased in 1869. As such, interments shall be granted on a first-come first-serve basis in accordance with the terms of this Order.

[38] For reasons that should be obvious in the above Judgment, I decline to grant the relief sought in paragraph 1 (c) of the Applicants’ Application Record.

[39] I grant a permanent and mandatory Order prohibiting the Respondent from interfering with the rights of the Applicants, in accordance with the terms of this Order, provided the fees stipulated herein have been paid in advance.

Costs:

[40] The Applicants notified me at the conclusion of argument that, if they were successful, they wish an opportunity to argue costs, including arguing that the third party, the Registrar, be ordered to pay some or all of the Applicants’ costs. Without deciding the issue, in my view, there is a presumption against awarding costs against an entity that is not party to the proceeding. In the event the Applicants wish to pursue third party costs, they shall prepare and serve a Factum on the issue of third party costs and shall file a Bill of Costs, together with written submissions limited to five pages as to the quantum of costs. The written submissions and Factum shall be served upon the Respondent’s counsel and the Registrar. The Respondent and/or Registrar shall be entitled to file jointly or individually a Factum and response to the written submissions on quantum of costs. Given the unique nature of the Claim, I am prepared to entertain scheduling of a date to argue the matter orally if requested by either party or the Registrar.

[41] The Applicants shall prepare, serve and file their material in thirty days. The responding parties shall be entitled to thirty days from the date of service to file any material in response.

[42] In the event Third Party costs are not sought, no factum on the costs issue is required. Counsel shall file and serve their written submissions on costs.

The Honourable Mr. Justice J. M. Johnston

Released: April 26, 2013