Friends of Toronto Public Cemeteries Inc. et al. v. Public Guardian and Trustee et al.

[Indexed as: Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee]

Ontario Reports

Ontario Superior Court of Justice

Dunphy J.

December 31, 2018

144 O.R. (3d) 521 | 2018 ONSC 7711

Case Summary

Civil procedure — Parties — Standing — Public interest standing not limited to constitutional cases — Applicants granted public interest standing to seek declaration that respondent was not complying with foundational statute of charitable trust which operated public cemeteries in Toronto.

Trusts and trustees — Charitable trusts — Trust established by public statute in early 19th century to operate non-denominational cemeteries in Toronto — Incorporation of trustees in 1871 not repealing prior statute — Rules for appointment of replacement trustees in that Act not replaced by procedures stipulated in Corporations Act — Corporations Act, 1953 not intended to replace existing statutory provisions governing special Act corporations — Corporation holding its assets as trustee of statutory trust — Statutory trust for charitable purpose — Corporations Act, 1953, S.O. 1953, c. 19.

In 1826, a trust was established by public statute to operate non-denominational cemeteries in Toronto. The statute was amended in 1849 by 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 (the "1849 Act"). The 1849 Act set out rules for the appointment of replacement trustees. The trustees were incorporated in 1871 by An Act to incorporate the Trustees of the Toronto Burying Ground, to confirm certain purchases made by them, to authorize them to acquire additional lands for the purposes of said trust, and to amend the Acts relating to said trusts, S.O. 34 Vic. c. 95 (the "1871 Act"). In 1987, the corporation stopped adhering to the procedure for the appointment of replacement trustees established in the 1871 Act. The applicants alleged that, as a result, none of the current trustees/directors had been properly elected. They also claimed that the operation of visitation centres and crematoria on cemetery grounds was outside the terms of the governing statutory trust. They brought an application for a series of declarations dealing with those matters and an order under s. 10 of the Charities Accounting Act, R.S.O. 1990, c. C.10 requiring the Public Guardian and Trustee to conduct an investigation.

Held, the application should be allowed in part.

The applicants were granted public interest standing to bring the application. Public interest standing is not limited to constitutional cases. The application clearly raised a serious justiciable issue. The applicants were not mere busybodies. As neighbours of the cemetery and members of the community, they had a stake in the question of the governance and accountability of the corporation charged with running the cemetery.

The 1849 Act rules for the appointment of trustees were not spent when the trustees were incorporated in 1871. There was no sign in the legislative record of an intention to make a complete break with the statutory past once the trust was incorporated. The 1871 Act did not explicitly repeal any prior statutes. The power [page522] conferred upon the trustees to make by-laws was made subject to existing laws. The corporation acquired all of the estate of the trust but was subject to all of the duties imposed on trustees not inconsistent with the 1871 Act itself. Those provisions clearly implied evolution within the existing legislative framework rather than blanket repeal and a clean slate as being the governing principle. The enactment of the Corporations Act, 1953 did not affect the continuing application of the 1849 Act to the appointment of replacement trustees. Part III of the Corporations Act, 1953 (corporations without share capital) and Part VIII (corporations generally) were stipulated to be applicable "except where it is otherwise expressly provided". The phrase "except where it is otherwise expressly provided" should not be read as referring to where it is otherwise provided in the Corporations Act itself. The Corporations Act was intended to supplement the existing statutory provisions governing special Act corporations rather than to replace them wholesale. The specific provisions of the special Acts were intended to prevail over general provisions in the Corporations Act, 1953, and the Corporations Act, 1953 was intend to fill in the gaps in a heterogeneous group of incorporating statutes containing greater or lesser degrees of detail land enacted over the span of more than a hundred years. As none of the current directors had been appointed in compliance with the mandatory rules set out in the 1849 Act, they were not validly appointed.

The corporation was itself a trust and held its assets as the trustee of the statutory trust. That statutory trust was not terminated in 1871 and was administered for a charitable purpose. The operation of a visitation centre on trust lands went beyond the terms of the governing statutory trust. It was not possible to determine on the evidence adduced on this application whether the operation of crematoria also went beyond the terms of the statutory trust.

The public interest did not require the appointment of an investigator under the Charities Accounting Act.

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524, [2012] S.C.J. No. 45, 2012 SCC 45, 352 D.L.R. (4th) 587, 434 N.R. 257, [2012] 10 W.W.R. 423, J.E. 2012-1793, 325 B.C.A.C. 1, 34 B.C.L.R. (5th) 1, 290 C.C.C. (3d) 1, 95 C.R. (6th) 1, 267 C.R.R. (2d) 1, EYB 2012-211411, 2012EXP-3353, 220 A.C.W.S. (3d) 536, 103 W.C.B. (2d) 625; Delta Air Lines Inc. v. Lukács, [2018] 1 S.C.R. 6, [2018] S.C.J. No. 2, 2018 SCC 2, 416 D.L.R. (4th) 579, EYB 2018-289407, 2018EXP-153, 28 Admin. L.R. (6th) 177, 287 A.C.W.S. (3d) 203; Oldfield (No. 2) (Re), 1949 CanLII 217 (MB KB), [1949] M.J. No. 43, [1949] 2 D.L.R. 175, [1949] 1 W.W.R. 540, 57 Man. R. 193 (K.B.); Scottish Burial Reform and Cremation Society v. Glasgow Corp., [1967] 3 All E.R. 215, [1967] UKHL 3, [1968] A.C. 138 (H.L. Scot.); Tomen v. Federation of Women Teachers' Associations of Ontario (1989), 70 O.R. (2d) 48, [1989] O.J. No. 1361, 61 D.L.R. (4th) 565, 34 O.A.C. 343, 38 Admin. L.R. 173, 42 C.R.R. 158, 1989 CanLII 4213, 16 A.C.W.S. (3d) 420 (C.A.); Victoria Order of Nurses for Canada v. Greater Hamilton Wellness Foundation, [2011] O.J. No. 4938, 2011 ONSC 5684, 94 B.L.R. (4th) 246, 75 E.T.R. (3d) 161, 209 A.C.W.S. (3d) 475 (S.C.J.), consd

Other cases referred to

Commissioners for Special Purposes of the Income Tax v. Pemsel, 1891 CanLII 21 (FOREP), [1891] A.C. 531 (H.L.); Humphrey Funeral Home -- A.W. Miles Chapel v. Toronto (City), [2007] O.J. No. 824, 32 M.P.L.R. (4th) 124, 155 A.C.W.S. (3d) 1219, 2007 CanLII 6899 (S.C.J.); Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, [2007] S.C.J. No. 14, 2007 SCC 14; Levy Estate (Re) (1989), 68 O.R. (2d) 385, [1989] O.J. No. 660, 58 D.L.R. (4th) 375, 33 O.A.C. 99, 33 E.T.R. 1, 15 A.C.W.S. (3d) 206, 1989 CanLII 4382 (C.A.) [page523]

Statutes referred to

Act respecting the Incorporation of Joint Stock Companies by Letters Patent, S.O. 1874 c. 35 [rep.]

Act to authorize the Trustees of the Toronto General Burying Ground, to acquire an additional lot of land, 1851, S.C. 14&15 Vic. c. 167 [rep.], s. 4

Act to enable the Trustees of the Toronto General Burying Ground to close same, to sell a portion thereof, and to acquire other ground for the purposes of the Trust, S.C. 1854/55, c. 146 [rep.], s. 3

An Act for the Incorporation of the Burnside Lying-in Hospital of Toronto, S.O. 31 Vic. c. 62 [rep.], ss. 1, 3, 4, 5

An Act respecting the Trustees of the Toronto General Burying Ground, S.O. 1910, c. 160 [rep.]

An Act to amend an Act therein mentioned and to vest the Toronto General Burying Ground in certain Trustees, and their successors, 1849, S.C. 12 Vic. c. 104 [rep.], ss. 2, 3, 4

An Act to authorize certain persons therein named, and their successors, to hold certain lands for the purposes therein mentioned, Acts of U.C. 7 Geo. IV, c. 21 [rep.], ss. 1, 2

An Act to authorize the formation of Companies for the establishment and management of Cemeteries in Upper Canada, 13 & 14 Vic. c. 76 [rep.]

An Act to authorize the sale of certain lands by the Trustees of the Toronto General Burying Grounds, 1876, S.O. 39 Vic. c. 66 [rep.]

An Act to authorize the Trustees of the Toronto General Burying Ground to sell certain lands, 1888, S.O. 1888, c. 88 [rep.], s. 1

An Act to Incorporate the Royal Canadian Yacht Club, S.O. 31 Vic. c. 69 [rep.], ss. 1, 2, 4

An Act to Incorporate the Sisters of L'Hotel Dieu for the Diocese of Kingston in the Province of Ontario, S.O. 31 Vic. c. 60 [rep.], s. 1

An Act to Incorporate the Trustees of the Toronto General Burying Ground, to confirm certain purchases made by them, to authorize them to acquire additional lands for the purposes of the said trust, and the amend the Acts relating to said trusts, S.O. 34 Vic. c. 95 [rep.], ss. 1, 2, 3, 5, 6, 7, 14, 15

An Act to Incorporate the Toronto Young Men's Christian Association, 31 Vic. c. 59 [rep.], ss. 1, 2, 4

An Act to permit Lands in Upper Canada to be conveyed to Trustees for Burial Places, 13 & 14 Vic. c. 77 [rep.]

Cemeteries Act, 1989, S.O. 1989, c. 50 [rep.], s. 88

Cemeteries Act, R.S.O. 1990, c. C.4 [rep.]

Charities Accounting Act, R.S.O. 1990, c. C.10, ss. 1(2), 7 [as am.], 10 [as am.]

Corporations Act, 1953, S.O. 1953, c. 19 [rep.], Parts III, VIII, ss. 100, 103, 106, 108, 110, 111, 112, 113(6), 284, 287(b)

Corporations Act, R.S.O. 1990, c. C.38 [as am.], Part I [as am.], s. 3, Part II [as am.], ss. 17, 34 [as am.], (9), 131(6), 117, 117.1, 129, Part VI [as am.], s. 229, Part VII [as am.], ss. 272, 274, 275 [as am.], 283 [as am.], 288(4) [as am.], 332

Funeral, Burial and Crematorium Services Act, 2002, S.O. 2002, c. 33

Joint Stock Companies General Clauses Act, R.S.O. 1877, c. 149 [rep.]

Teaching Profession Act, R.S.O. 1990, c. T.2

The Toronto General Burying Grounds Act, 1925, S.O. 1925, c. 132 [rep.], s. 2

The Toronto General Burying Grounds Act, 1968, S.O. 1968, s. 178 [rep.]

The Toronto General Burying Grounds Act, 1977, S.O. 1977, ss. 1, 110 [rep.]

APPLICATION for declaratory relief and for the appointment of an investigator. [page524]

Rodney Northey and Michael S.F. Watson, for applicants.

Daniel Mayer, for respondent Ministry of Attorney General.

Dana De Sante, for respondent Public Guardian and Trustee.

David W. Kent and Samantha Gordon, for respondents Mount Pleasant Group of Cemeteries.

[1] DUNPHY J.: — Forty-one years before Canada was launched as a nation and six years before the City of Toronto was incorporated, Thomas Carfrae the younger, Peter McPhail and a number of other inhabitants of what was then known as the Town of York brought a petition to the Legislative Council of Upper Canada. York's population had surged after the War of 1812. It was approaching 2,000 and was still growing. However, it had only a Catholic and an Anglican cemetery while people of all faiths were arriving daily. They had passed the hat at a number of public meetings and raised $300 -- a sum of money sufficient to purchase six acres of land a mile outside of town at the northwest corner of Yonge and Bloor. Their goal: to purchase the land and hold it for the purpose of a "general burying ground, as well for strangers as for the inhabitants of the town, of whatever sect or denomination they may be". They judged that due to the recent rapid growth of the town "and the small portions of ground . . . allotted for the purpose of cemeteries", there was a need.

[2] They judged correctly. Their petition to the Legislative Council of Upper Canada found favour and a statute named An Act to authorize certain persons therein named, and their successors, to hold certain lands for the purposes therein mentioned was duly passed and received royal assent in 1826: Acts of U.C. 7 Geo. IV, c. 21 (the "1826 Act"). The land that came to be known as "Potters Field" was purchased and started operation as a cemetery soon afterwards.

[3] Through a series of steps that I shall examine, the trustees of that land eventually became incorporated and the resulting corporation is now known as the Mount Pleasant Group of Cemeteries ("MPGC").

[4] From these humble beginnings in the distant suburbs of the then-Town of York, MPGC has grown in tandem with its host city Toronto. It presently operates ten cemeteries on 1,222 acres of land containing the resting place of some 600,000 former residents of Toronto. Its facilities now include four crematoria, 14 mausoleums and five visitation centres.

[5] The applicants are a non-profit corporation "Friends of Toronto Public Cemeteries Inc." and Ms. Wong-Tam, a Toronto resident who is also the city councillor for the area (acting in her private capacity here). The corporate applicant has approximately [page525] 100 members, most of whom live in the area around Mount Pleasant Cemetery.

[6] The applicants allege that MPGC is now governed by unaccountable, self-appointed directors acting in disregard of the legislation by which it is intended to be governed. The gist of their complaint is that none of the directors or members of MPGC have been appointed in accordance with the procedures established by an 1849 Act called 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 (the "1849 Act"). Since MPGC ceased complying with the procedures established in the 1849 Act after 1987, they allege that none of the current directors have been properly elected.

[7] The applicants also take issue with certain decisions taken by MPGC's directors that they contend stray beyond the narrow statutory trust MPGC is intended to discharge. They claim that the operation of funeral centres and crematoria on the cemetery grounds is outside the terms of the governing statutory trust. They seek a series of declarations dealing with these matters and an order under s. 10 of the Charities Accounting Act, R.S.O. 1990, c. C.10 requiring the Public Guardian and Trustee to conduct an investigation.

[8] MPGC has vigorously resisted all aspects of the application. They contest the applicants' standing and deny any violations of the governing statutes. MPGC takes the view that the 1849 Act rules for the appointment of trustees were entirely spent when MPGC was incorporated in 1871 and that at all events the procedures stipulated in the Corporations Act, R.S.O. 1990, c. C.38 now govern instead. These, MPGC contends, have been fully complied with at all times.

[9] Although nominally a party respondent, the Public Guardian and Trustee has supported the bulk of the relief sought by the applicants (with the exception of the claim for an investigation).

[10] The facts in this case are somewhat complex and the relief sought by the parties involved. They do not lend themselves to a ready summary. For the detailed reasons that follow, I have come to the conclusion that the applicants' claims are well-founded, and they are entitled certain aspects of the relief sought in their application. My conclusion is premised on three essential findings.

[11] First, the incorporation of MPGC in 1871 neither repealed prior Acts nor made any direct provision for the appointment of trustees or directors. No statute of general application at the time so provided either. This left unchanged the provisions for the appointment of trustees contained in the 1849 Act. Subsequent general company law statutes have neither expressly nor impliedly [page526] repealed the specific provisions of the 1849 Act dealing with the appointment of replacement trustees. The directors or trustees of the corporation -- the terms may here be used interchangeably -- are thus still required to be appointed in accordance with the terms of the 1849 Act. That Act has not been complied with since 1987 and all of the current directors of MPGC have been appointed since that time. It follows that none of the current directors of MPGC has been validly appointed.

[12] Second, MPGC is itself a trust that holds all of its lands and all proceeds of them as a trust. The trust prohibits using the lands dedicated to it for anything other than the operation of a "cemetery or cemeteries or places for burial of the dead". MPGC had undergone a variety of corporate mutations in recent years. These have included establishing an affiliated funeral home operation that carries on business upon MPGC cemetery lands. I agree with the applicants and the PGT that operating -- directly or via subsidiary or affiliated corporations -- a visitation centre on the trust lands goes beyond the terms of the governing statutory trust. The evidence before me is not conclusive as regards the current scale of operation of crematoria and I am unable to make a determination as regards that operation on the record before me.

[13] Third, I concur with the PGT that this is not a case for a formal investigation under s. 10 of the Charities Accounting Act. The trust that was incorporated and continued under the 1871 Act is a charitable one and MPGC is subject to the provisions of the Charities Accounting Act. However, I am not satisfied that the public interest would be served by ordering an investigation.

[14] This last conclusion must condition my approach to granting relief. MPGC is not a runaway train. There is no basis to conclude that its trustees -- even if invalidly appointed -- have acted in bad faith even if I have concluded that they have acted in error. They have not gone rogue. There is no reason to expect that directions of the court would not be followed.

[15] The provisions governing the appointment of trustees/ directors in the 1849 Act are, at this point, awkward if still applicable. Relatively informal town hall meetings to make legally binding decisions may have been an appropriate mechanism in a town of less than 30,000. That town is now a city of nearly three million. Should more than a small number of those residents take a direct interest in the appointment of trustees of MPGC, no venue in the City of Toronto would be large enough to contain them. How long there shall be two or more newspapers published in the city in which notices may continue to be published can only be guessed at. However, only the legislature can make permanent changes to the method of appointing trustees [page527] and our job as judges is to apply the law as best it can be done, not to write a new one.

[16] Since this court has jurisdiction to appoint trustees in these circumstances under s. 288(4) of the Corporations Act, I have determined that it is appropriate for me to utilize that jurisdiction and act to fill the void that my declarations will create. I shall appoint the seven most senior existing directors of MPGC as trustees of the corporation but shall require such appointments to be subject to confirmation in accordance with the 1849 Act while retaining jurisdiction to ensure an orderly public meeting process.

[17] My more detailed review of the facts and my conclusions in greater detail follow.

Factual and Statutory Background

(a) Statutory history

(i) 1826 Act

[18] The story must begin with the 1826 Act referred to above. The Act authorized the five named individuals to purchase and hold the land "for the purpose aforesaid" being "a general burying ground, as well as for strangers as for the inhabitants of the town of whatever sect or denomination they may be". The five individuals were described as "trustees" and it was provided that the trustees "and their successors" would have and hold the land "to and for the use and purpose aforesaid, in perpetuity forever". The trustees were also given, "for the purpose of this act" the power to enact such rules and regulations as may be necessary for the "management of the said land for the purpose aforesaid", providing such rules are not "repugnant to the laws of this province".

[19] It did not escape the attention of the Legislative Council that a perpetual trust with mortal trustees required some rules of succession. Section 2 of the 1826 Act established a means of succession that came into operation only when "two of the trustees herein named shall die, or shall become resident abroad, or become incapable of acting in the said trust". When it came time to fill a vacancy, the 1826 Statute relied upon direct democracy to fill the void: "it shall be in the power of inhabitant householders of the town of York upon notice thereof being given in the government Gazette, at least thirty days before such meeting, by the remaining trustee or trustees, to elect at a meeting to be held on the first Monday in the month of January, by the vote of the majority of such householders, the requisite number of trustees from among the inhabitant householders of the said town of York".

[20] There was a certain logic to this procedure as the inhabitants of the town of York were the ones who, by public subscription, [page528] had raised the funds to purchase the cemetery in the first place. The town was also of a size (about 2,000 at that time) where acting by way of public meeting appeared feasible.

[21] As shall be seen, due to York's inexorable growth, that process soon proved unwieldy.

(ii) 1849 Act

[22] According to the preamble of the 1849 Act, two of the five originally named trustees had died and one was no longer willing to act. Further, "the provision made in the [1826 Act] for perpetuating the Trust thereby created is inconvenient and ineffectual". The first section of the Act amended the 1826 Act and declared that the two remaining (and willing) trustees would be joined by five others such that the number of trustees would be fixed at seven thereafter instead of the original five.

[23] The method of electing trustees was also revised in the 1849 Act to replace the "direct democracy" model with a modified method. By s. 3 of the 1849 Act, the remaining trustees were vested with a positive duty to call a meeting of the trustees upon becoming "aware of the death or resignation of any other Trustee". At the meeting so called, the remaining trustees were to fill the vacancy "from among the inhabitant householders of the City of Toronto". However, s. 4 of the Act provided that:

No such election of a Trustee as aforesaid shall be valid until nor unless a notice of his election shall have been inserted in the Canada Gazette; and that if any time within one month from the insertion of such notice, the majority of the inhabitant householders of the City of Toronto, present at a public meeting called for that purpose by notice inserted at least twice, in two or more newspapers published in Toronto, shall agree to elect any inhabitant householder of the said City, other than the one elected by the surviving or remaining Trustees.

[24] There was thus a two and possibly three-step process for selecting replacement trustees established by the 1849 Act. First, the remaining trustees must call a meeting and elect a replacement. Second, the election of the replacement does not take effect until a notice of his or her election is placed in the Canada Gazette. At this point and not before, the trustee is considered to be validly elected but is subject to a time-limited procedure to be replaced by someone appointed at a public meeting called in the time and manner prescribed. If no such meeting is called and held, then the trustee is in office until he or she dies or retires, at which point the process begins anew. The prospect of direct action by the citizens remained in the background as a sort of pressure-release valve to ensure accountability to the community. [page529]

[25] The 1849 Act did not alter the objects of the trust but named the land held by the trust as "The Toronto General Burying Ground". The 1849 Act was designated as a Public Act.

(iii) 1851 Act

[26] In 1851, the Province of Canada passed the Act to authorize the Trustees of the Toronto General Burying Ground, to acquire an additional lot of land, 1851, S.C. 14&15 Vic. c. 167 authorizing the trustees to purchase an additional lot of 25 acres in the Township of York and that any lands so purchased "shall form part of the said Toronto General Burying Ground".

(iv) 1855 Act

[27] By 1855, the original "Potters Field" at Yonge and Bloor was proving too small for the needs of the growing City of Toronto and was becoming something of a nuisance to the growing village of Yorkville in which it was situate. On a joint petition of the trustees of the Toronto General Burying Ground, the Municipal Council of Yorkville and of the City of Toronto, the Act to enable the Trustees of the Toronto General Burying Ground to close same, to sell a portion thereof, and to acquire other ground for the purposes of the Trust, S.C. 1854/55, c. 146 (the "1855 Act") was passed by the Province of Canada. It does not appear that the authority to acquire additional land provided in 1851 had yet been acted upon.

[28] As the title implies, this Act provided for the process by which the original Toronto General Burying Ground was to be closed, for the sale of any land not containing remains free and clear of the trust obligation governing such land and for the removal of the remains buried there to another cemetery. It also charged the trustees to find and purchase a piece of land "well adapted for the purpose of a Public Cemetery" in the Township of York, such piece of land "to be conveyed to and vested in the said Trustees and their successors forever, and shall be by them held and used as a Public Cemetery, and in trust for the purposes of the said Acts". The referenced Acts are the 1826 Act, the 1849 Act and the 1851 Act. Section 3 of the 1855 Act provided that "it shall not be lawful for the said Trustees at any time after such piece of ground shall become vested in them for the purpose aforesaid, to make or suffer to be made any other use of the same than for the purpose of such Cemetery".

[29] The land acquired under this Act became known as the Toronto Necropolis in what was then the northeastern edge of Toronto and is now situate above Riverdale Farm. [page530]

(v) 1871 Act

[30] With Confederation in 1867, the Province of Ontario assumed legislative jurisdiction over the Trustees of the Toronto General Burying Ground from the former Province of Canada. In 1871, Ontario passed An Act to Incorporate the Trustees of the Toronto General Burying Ground, to confirm certain purchases made by them, to authorize them to acquire additional lands for the purposes of the said trust, and the amend the Acts relating to said trust, S.O. 34 Vic. c. 95 (the "1871 Act").

[31] The preamble to the 1871 Act recites the acquisition of the Toronto Necropolis by the trustees and that "doubts had arisen as to the right of the said trustees to hold and receive such lands". The preamble also recites that it was expedient to permit the trustees "to acquire additional lands in the township of York for the purposes of the said trust" and to permit the "resident householders of the village of Yorkville and of the township of York" to be eligible to fill vacancies as trustees.

[32] The relevant provisions of the 1871 Act for the purposes of this application include:

(a) s. 2: "All the estate, real and personal, now vested in or owned by or held by the Trustees of the Toronto General Burying Ground is hereby vested in and transferred to the said corporation . . . subject to all the conditions and duties imposed on the said trustees not inconsistent with the provisions of this Act";

(b) s. 3: "the deeds to the Toronto Necropolis transfers were confirmed to the corporation in fee simple, and the said corporation is hereby empowered to receive and hold the same for the purpose of said trust" (emphasis added);

(c) s. 5: "the corporation was authorized to purchase additional lands for the purpose of a cemetery in the township of York "which said piece or pieces of land shall and may be conveyed to and vested in the corporation to hold the same for the purposes hereinbefore declared";

(d) s. 6: "The said lands above described, and any other lands acquired by the corporation shall be used exclusively as a cemetery or cemeteries or places for the burial of the dead", authorizing the corporation "for this purpose" to subdivide the cemetery into lots of convenient size, pathways and avenues and to sell such lots "to be used and appropriated exclusively for the burial of the dead"; [page531]

(e) s. 7: "the corporation was authorized to embellish the land and erect buildings "as the nature of the establishment may require, and may also further take and hold such personal property as may be necessary and proper for attaining the objects and carrying into effect the purposes of the said corporation";

(f) s. 14: "The corporation was granted the authority to make by by-laws and to repeal and alter the same, such by-laws not being inconsistent with any existing law, for the management of its property and for the suitable remuneration of the trustees . . . and the regulation of its affairs"; and

(g) s. 15: "the corporation was granted the power to sell or exchange lands provided that the monies received as purchase money or the lands taken in exchange therefor be used and appropriated for the purposes of the trust".

[33] Section 4 of the 1871 Act made "resident householders" of Yorkville and the township of York "eligible for selection to fill vacancies as trustees of the said corporation", but otherwise made no particular provision for the manner of selection of trustees. As the preamble makes clear, s. 4 of the 1871 Act was intended to expand the eligibility provisions of the 1849 Act by including resident householders of the Township of York and the Village of Yorkville so that "the choice should not be limited to resident householders of the city of Toronto". By necessary implication, the eligibility provisions of s. 3 of the 1849 Act must have been intended to continue to apply post-incorporation because the 1871 Act otherwise made no provision for trustees coming from other than Yorkville and York.

(vi) 1876 Act

[34] In 1876, the Ontario Legislature passed An Act to authorize the sale of certain lands by the Trustees of the Toronto General Burying Grounds, 1876, S.O. 39 Vic. c. 66 (the "1876 Act"). This Act authorized the Trustees of Toronto General Burying Ground to sell a portion of the lands vested in them known as the "Toronto Necropolis" to the City of Toronto "free and discharged from the trusts upon which the same are by them held", such lands being destined to become a park (Riverdale Park and zoo for those historically minded). The preamble to the 1876 Act similarly mentions that the lands therein described "are vested in the Trustees of the Toronto General Burying Ground and are by the said corporation held subject to and for the carrying out of certain trusts in and by the Act of incorporation and other Acts relating [page532] to the said the Trustees of the Toronto General Burying Ground". It also recites that the Trustees of the Toronto General Burying Grounds had proceeded to use the land in question for the burial of the dead "being the sole purpose for which the lands are held by them", but that the City of Toronto had objected to this on health grounds and that the Trustees of the Toronto General Burying Grounds had acquired a large parcel of land at a much greater distance "which said parcel of land is held by them subject to the same trusts and for the same purposes as the lands hereinbefore described".

[35] The lands so conveyed to Toronto are what is now known as Riverdale Farm. The newly acquired distant land is what is now known as Mount Pleasant Cemetery.

(vii) 1888 Act

[36] In 1888, the legislature passed an Act allowing the Trustee of the Toronto General Burying Ground to sell another parcel of land that had been acquired adjacent to Mount Pleasant Cemetery, but that had not yet been enclosed within it "provided always that the proceeds arising from any such sale or sales are to be used and appropriated for the proper purposes of the said trust and for no other purposes whatever": An Act to authorize the Trustees of the Toronto General Burying Ground to sell certain lands, 1888, S.O. 1888, c. 88, s. 1 (the "1888 Act").

(viii) Other amending Acts

[37] In 1910, An Act respecting the Trustees of the Toronto General Burying Ground was passed, S.O. 1910, c. 160 (the "1910 Act"). This Act authorized the corporation to sell portions of its lands which are neither suitable nor required for cemetery purposes. The preamble to the 1910 Act described its purpose as being, among other things, to amend s. 4 of the 1851 Act (to lower the required height of the fence surrounding the Burying Ground), at the very least confirming the continuing intention of the legislature that the pre-incorporation statutes continued to govern the affairs of the corporation.

[38] The Toronto General Burying Grounds Act, 1925, S.O. 1925, c. 132 authorized the corporation to "acquire and hold lands within the County of York" and to "exercise all their corporate powers with reference thereto": s. 2.

[39] The Toronto General Burying Grounds Act, 1968, S.O. 1968, s. 178 authorized the corporation to acquire lands and hold lands within the limits of the Township of Pickering, the Town of Mississauga and the Township of Toronto Gore "and may exercise all its corporate powers with reference thereto". [page533]

[40] The Toronto General Burying Grounds Act, 1977, S.O. 1977, s. 110 expanded the authority to acquire lands in the 1968 statute to the Regional Municipalities of Durham, Halton and Peel, similarly granting the corporation authority in respect of such lands to "exercise all its corporate powers with reference thereto".

[41] Finally, in 1989, the Cemeteries Act, 1989 was passed (S.O. 1989, c. 50). Section 88 of this Act amended s. 1 of the 1977 Act by removing any remaining geographic limitations upon the corporation's capacity to acquire land.

(b) Recent history

[42] The corporation appears to have adhered to the procedure established in the 1849 Act until 1987, with notices being placed in the Ontario Gazette[^1] following each election of a new trustee. The last such published notice is dated June 4, 1987. All of the current directors of MPGC were appointed after 1987 and no public notice of the election of any of them has been made in the Ontario Gazette (or the Canada Gazette) since 1987.

[43] There is no record that any resident householder of Toronto or Yorkville has ever sought to hold a public meeting to select a different trustee since that procedure was established in the 1849 Act until the applicants began their activities leading to this application.

[44] Mr. Knott's affidavit contains a number of historical documents relating to MPGC gathered by him during the time he worked as a public relations consultant for MPGC under its prior management. Some of these documents explain how the corporation and its trustees viewed matters over the years immediately following its incorporation. These, along with statutes of the legislature after 1871, provide some insight into the intentions of the legislature in enacting the original 1871 Act. The evidence of the corporation/trust is of utility because it was the trustees who petitioned the legislature for the 1871 Act in the first place. The closer in time to 1871 (and the trustees then in office), the more potentially persuasive the evidence, but neither type of evidence can be decisive.

[45] In 1876, MPGC prepared what appears to be a public notice dated October 3, 1876. The means by which this was published has not been preserved, but Mr. Knott's affidavit establishes that it was prepared by the trustees. In the notice, the trustees [page534] gave as their reason for producing the notice misunderstandings concerning "this important Trust". The historical overview given mentioned the purchase of the Toronto Necropolis by reason of which purchase "it became the property of the citizens of Toronto". The various statutes referenced above were each reviewed, including only passing reference to the 1871 statute without specific reference to the fact of incorporation at that time. The notice went on to state:

Mount Pleasant Cemetery is therefore the property of the citizens, and its affairs are managed by a Board of Trustees, chosen according to law, who have no private interest whatsoever in the trust. . . .

[46] The 1876 Notice was signed by Mr. McMaster as Secretary of the Trustees and "by order of the Trustees". Mr. McMaster was one of the trustees appointed in the 1849 Act and had been a trustee continuously since then.

[47] In 1891, the Trust published a pamphlet describing the Trust, its history and the applicable rules and regulations. The pamphlet described the Trust in these terms:

Under the various Acts passed since 1826 down to the present time, granting powers and increased facilities for its due execution, several prominent features in relation to the Trust have never been lost sight of.

The property to be acquired was declared to be, and is to-day, that of the citizens of Toronto, to be administered by a Board of seven Trustees, to be elected in the manner set out in the said Acts.

The Trustees have no private interest whatever in the Trust, and all the money acquired from the various Cemeteries, after payment of expenses is laid out in the enlargement, improvement and beautifying of the grounds.

(Emphasis in original)

[48] The Rules and Regulations of the cemetery were revised in 1914. In connection with those revisions, the Trustees of the Toronto General Burying Grounds published the new Rules and Regulations with a page entitled "General Information" that described the "public character of the Trust and the fact that its funds are used solely for the purpose of administration and ornamentation and improvement of the grounds".

[49] An undated brochure describing Pine Hills Cemetery noted that this cemetery was administered by the Trustees of the Toronto General Burying Grounds, an organization described as being founded in 1826 that "has no shareholders and pays no dividends".

[50] As noted earlier, the corporation consistently posted notices following the appointment of new trustees in the Ontario Gazette, the last such notice having been given in 1987. Soon thereafter, a change in direction appears to have occurred. [page535]

[51] By 1989, the trustees of the corporation took to describing themselves as "directors" (s. 283 of the Corporations Act provides that the corporation's affairs shall be managed by a board of directors "howsoever designated" but does not require that they be designated as directors). In this same era (the year is not material), the directors also adopted by-laws fixing the number of directors at ten and limiting trustees to a maximum of three four-year terms. None of the prior statutes increased the number of trustees nor imposed term limits upon them.

[52] In 1989, the directors incorporated a new funeral centre corporation named "Canadian Memorial Services", a corporation established with a board of directors mirroring that of MPGC. At that time, cemeteries were forbidden from offering funeral services or acting as a transfer agent for remains. These activities were required to be undertaken in a separate company and it was for this reason that CMS was incorporated. CMS took over the operations of a funeral services provider and began operating under the name "The Simple Alternative".

[53] MPGC currently has six funeral centres on its cemetery properties. These are licensed to CMS. CMS pays licensing fees to MPGC fixed by agreement. MPGC provides funding to CMS and CMS pays MPGC interest on such loans. As a funeral service provider, CMS also refers potential cemetery clients to MPGC. MPGC is an "affiliate member" of CMS and in that capacity appoints four of CMS's directors. Those directors are also members. CMS is effectively a wholly owned subsidiary of MPGC in all but name.

[54] In January 1991, the corporation changed its name from "The Trustees of the Toronto General Burying Ground" to "Commemorative Services of Ontario". There is no dispute regarding the authority to have undertaken this name change.

[55] On July 19, 1991, the PGT requested copies of the financial statements of MPGC pursuant to the Charities Accounting Act. There followed an exchange of letters between the PGT and the solicitors for MPGC where MPGC's solicitors denied that MPGC was a charity. One such letter, dated September 12, 1991, contained the claim by MPGC that, since it had not passed a by-law relating to the disposition of its assets on dissolution, "pursuant to Section 132(5) of the Corporations Act, on dissolution, the net assets of our client are to be distributed to the members of the corporation".

[56] The issue does not appear to have been further pursued by the PGT at that time. In its factum, the PGT takes that position that it effectively "agreed to disagree" with MPGC because the latter took no issue with the fact of its regulation by the [page536] Cemeteries Regulation Unit and there were no allegations of financial impropriety.

[57] A great deal of emphasis was placed upon the text of the September 12, 1991 lawyer's letter in argument. Obviously, it was quite provocative to suggest that the directors could simply liquidate MPGC at will and distribute its net assets among themselves. Those assets -- even in 1991 -- would have had a very significant value (likely in the hundreds of millions of dollars).

[58] While infelicitous in its wording, I don't think the letter bears the weight sought to be placed upon it. It was in my view referencing a hypothetical situation only. Further, it referenced the "net assets" of the corporation. From the evidence before me, as shall be seen, it would appear that all or substantially all of the assets of the corporation are held subject to a statutory trust with the result that the net assets of this corporation are either nil or something very close to it. There has never been any serious question of the directors of MPGC liquidating the corporation for their own profit.

[59] In 1997, the name of the corporation was again changed to its current form, "Mount Pleasant Group of Cemeteries". Once again, no issue is taken with the authority to have undertaken this name change. The 1997 name change occurred in the context of a significant corporate reorganization that same year. As part of this, a new corporation was formed by the name of "Commemorative Services Canada Inc." (renamed later that year as "Mount Pleasant Memorial Services").

[60] In 2006, MPGC proposed to create a "visitation centre" at the Mount Pleasant Cemetery. A document describing this at the time characterized MPGC as "a commercial, privately-owned cemetery that has been operating at this location for 130 years". That same year, a group of local ratepayers (the Moore Park Residents' Association) complained to the PGT regarding the proposal of MPGC to construct the visitation centre and the allegation that it was a privately owned commercial cemetery.

[61] The proposed construction of the visitation centre in 2006 gave rise to litigation. The visitation centre proposed to replicate much of what might be found in a traditional funeral home. It would include a chapel for memorial services or funerals, a clergy room and a number of visitation rooms for paying last respects to the remains of the deceased. On March 5, 2007, Harvison Young J. (as she then was) decided an application brought by Humphrey Funeral Home seeking to challenge the proposed visitation centre on the grounds that it was not an "associated use" of the cemetery within the meaning of the relevant City of Toronto by-law. The application was rejected after considering the by-law and the [page537] overall regulatory context, including the pending proposed new regulatory framework (now in place). This application did not consider any of the special Act statutes governing MPGC: Humphrey Funeral Home -- A.W. Miles Chapel v. Toronto (City), [2007] O.J. No. 824, 2007 CanLII 6899 (S.C.J.).

[62] Shortly after the release of these reasons, the ratepayers group brought its concerns regarding the non-compliance with the 1849 Act to the attention of the PGT. From the chronology, it would appear that this is when it was first noticed that the 1849 Act was no longer being complied with.

[63] The Court of Appeal released its reasons upholding the decision of Harvison Young J. on November 30, 2007. Once again, no reference was made in those reasons to the 1849 Act or any of the other special Act statutes governing MPGC. Construction on the visitation centre began shortly thereafter and was completed in or about 2009.

[64] In 2008, MPGC brought an application to be continued under the Corporations Act. That application was ultimately withdrawn after the ministry -- in consultation with the PGT -- declined to proceed with it absent court orders clarifying, among other things, the application of the 1849 Act and absent clarification of its objects in conformity with the 1871 Act.

[65] In 2012, the Funeral, Burial and Crematorium Services Act, 2002, S.O. 2002, c. 33 replaced prior legislation governing the funeral and cemetery industries. As a result of these changes, cemeteries were enabled to own funeral homes and funeral homes were enabled to operate crematoria. Subsequent to this, there was a re-organization pursuant to which all of the assets of Mount Pleasant Memorial Services were transferred to MPGC and the former corporation applied to surrender its charter (which it ultimately did).

[66] In May 2013, Ms. Wong-Tam brought an administrative proceeding before the Environmental Review Tribunal seeking leave to appeal a decision of the Director of the Ministry of the Environment permitting an expanded crematorium operation at the Mount Pleasant cemetery. That application was rejected by the Environmental Review Tribunal on July 8, 2013.

[67] Also in 2013, the applicant "Friends of Toronto Public Cemeteries Inc." was incorporated by some members of the Moore Park Ratepayers Association that had been involved in the prior interventions regarding MPGC. Since its incorporation, a number of others have joined it as members although the majority of its members are from the Moore Park area surrounding the Mount Pleasant cemetery on its southern boundary. [page538]

[68] As of 2014, MPGC maintained three separate funds (in addition to its lands and buildings):

(a) a care and maintenance trust fund consisting of a portion of revenues collected upon the sale of burial rights that stood at $349 million;

(b) money paid for future services (the "Pre-paid Trust Fund") that stood at $113.5 million; and

(c) an Endowment Fund containing contributions of families to provide for supplemental care that stood at $3.9 million.

[69] In addition to these funds, MPGC maintains a "General Fund" that stood at $63.4 million in 2014. MPGC pays no dividends.

[70] MPGC is currently regulated by the Bereavement Authority of Ontario as well as by the PGT under the Funeral, Burial and Crematorium Services Act, 2002. Its cemeteries and visitation centres were inspected in 2010-2013 and financial records were inspected on two occasions.

Issues to be Argued

[71] The following issues raised in this application require resolution:

(a) Do the applicants or any of them have standing to bring this application?

(b) Are the current directors of MPGC validly appointed?

(c) Is MPGC a trust?

(d) Is MPGC trust a charitable trust?

(e) Has MPGC exceeded the objects of the trust?

(f) Is this an appropriate case for an investigation?

Analysis and Discussion

(i) Do the applicants or any of them have standing to bring this application?

[72] MPGC objects to the standing of the applicants. Pursuant to s. 332 of the Corporations Act, an application to order the corporation to perform any duty "imposed by this Act" may be made by a "shareholder, member or creditor" of a corporation. MPGC contends the applicants simply have no standing to complain regarding the actions or inaction of the board of directors of [page539] MPGC and this application amounts to the action of a mere outsider seeking to meddle in the domestic affairs of MPGC. Similarly, MPGC submits that the applicants cannot assert public interest standing because they do not raise a substantial or important constitutional issue: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524, [2012] S.C.J. No. 45, 2012 SCC 45, at paras. 22, 23, 37 and 42.

[73] The applicants for their part dispute that public interest standing is limited to constitutional cases. The Downtown Eastside case called for the court's discretion to be exercised in a "liberal and generous manner": Downtown Eastside, at para. 2.

[74] In my view, both applicants have established their standing to bring this application. Public interest standing is not limited to constitutional cases and the comments of Cromwell J. in Downtown Eastside must be viewed in the context of the case before the court at the time. A broader, more flexible approach to standing in the non-constitutional context was specifically endorsed by the Supreme Court of Canada in Delta Air Lines Inc. v. Lukács, [2018] 1 S.C.R. 6, [2018] S.C.J. No. 2, 2018 SCC 2, at paras. 16-19.

[75] The requirement that a "serious justiciable issue" be raised is clearly met in this case. The evidence that the 1849 Act is not being complied with is not disputed -- its very application (a legal question) is at the core of the dispute here. The applicants are not mere busybodies and the issues they raise were considered serious enough to motivate the rejection of the 2008 application to continue MPGC under the Corporations Act. As neighbours of the cemetery and members of the community, they have a stake in the question of the governance and accountability of the corporation charged with running the cemetery for these past 147 years. They have also demonstrated a serious and longstanding interest in the issues raised over the past decade and more.

[76] Furthermore, while residents of Toronto are not "members", they are the most analogous thing to the concept of "members" that can be identified as of the time of incorporation of the trust in 1871 since it was to their judgment that the 1849 Act ultimately turned when it came to validating the election of replacement trustees. If the applicants are correct that the residents of Toronto have a statutory right to consider whether to accept or reject the appointment of replacement trustees, this application is a reasonable avenue open to residents such as the applicants to vindicate that right. [page540]

[77] I find that the applicants satisfy the three criteria necessary to seek public interest standing and ought to be granted standing to bring this application.

(ii) Are the current directors of MPGC validly appointed?

[78] The answer to this question requires me to consider the state of affairs as regards the governance of this trust at three points in time: (i) immediately prior to the 1871 Act coming into force; (ii) immediately after the 1871 Act came into force; and (iii) immediately after the Corporations Act, 1953 came into force.

[79] Immediately prior to the coming into force of the 1871 Act,

(a) the Trust known as the Toronto General Burying Ground[^2] had perpetual succession granted by statute (therefore was not subject to the rule against perpetuities): 1826 Act, s. 1;

(b) trustees remained in office until death or resignation:[^3] 1849 Act, ss. 2 and 3;

(c) the Trust so constituted was governed by up to seven individual trustees who were required to be selected from among the "inhabitant householders" of the City of Toronto (1849 Act, ss. 3, 4);

(d) replacement trustees were conditionally chosen by the remaining trustees upon whom a duty was placed to call and hold a meeting of trustees for that purpose upon a vacancy arising: 1849 Act, s. 3;

(e) the election of replacement trustees did not take effect until the publication of a notice in the Ontario Gazette (as successor to the Canada Gazette): 1849 Act, s. 3; and

(f) the replacement trustees so elected held office subject to the possibility of a public meeting of "inhabitant householders" of the City of Toronto being called in the prescribed manner and time to elect another or others in their stead: 1849 Act, s. 4.

[80] The preamble to the 1871 Act indicates that the doubts had arisen as to the effectiveness of the various deeds by which [page541] the Toronto Necropolis lands had been acquired in the names of the individual trustees. Indeed, it is this issue more than any other that appears to have been the principal driving force behind the petition requesting incorporation. The preamble suggests no particular issue arising regarding the means of selecting replacement trustees beyond the suggestion that it was desirable that the residents of the growing City of Toronto suburbs -- York and Yorkville -- should also be eligible to serve as trustees.

[81] Neither the preamble nor the body of the 1871 Act expressed any particular intent to repeal prior statutes nor did the petition from the trustees (to the extent referenced in the preamble).

[82] Upon the passage of the 1871 Act, the entire corpus of the trust created by the prior Acts (1826-1851) and formerly held by the seven individual trustees was transferred to a corporation given the name of "The Trustees of the Toronto General Burying Ground" but subject to "all the conditions and duties imposed on the said trustees not inconsistent with the statute creating it": 1871 Act, s. 2 (emphasis added).

[83] The 1871 Act is silent on the matter of corporate governance with three notable exceptions.

[84] First, s. 4 made "resident householders of the village of Yorkville, or of the township of York" eligible "for selection to fill vacancies as trustees" of the corporation. The 1871 Act made no express mention of the eligibility of resident householders of the City of Toronto to serve as replacement trustees. Were the 1871 Act to be considered a complete code for the governance of the new corporation as MPGC urges me to find, only residents of Yorkville and York would thereafter have been eligible to serve as replacement trustees. Toronto residents would have ceased to be eligible. This would be clearly have been a notable lacuna in the 1871 Act as would the failure to establish a minimum or maximum number of trustees or directors. It would also contradict the preamble that recited the desire to extend eligibility to these new areas (without removing it from residents of Toronto).

[85] The logical inference is that the provisions of the 1849 Act establishing the number of trustees (fixed at seven) and making inhabitant householders of Toronto eligible to serve as trustees were intended by the 1871 Act to continue to apply.

[86] Second, s. 14 empowered the corporation to appoint a secretary and treasurer and to "make by-laws and to repeal or alter the same, such by-laws not being inconsistent with any existing law, for the management of its property and for the suitable remuneration of the trustees, the secretary, treasurer and other [page542] officers and servants of said corporation and the regulation of its affairs" (emphasis added).

[87] It is notable that s. 14 provided for the means of the appointment of officers of the corporation and for the remuneration of trustees but was pointedly silent on the means of appointing those same trustees. It would seem highly improbable to ascribe this silence to an intention that the trustees themselves should write their own rules for the appointment of their successors rather than looking to the provisions of a prior governing statute that was not specifically repealed. Once again, the logical inference is that the 1871 Act intended that the prior rules (those of the 1849 Act) would continue to apply.

[88] Finally, s. 1 of the 1871 Act declared the seven named trustees "and their successors" to be a body politic and corporate. Unlike the case of incorporated voluntary associations (which are creatures of the collectivity of members who voluntarily associate) or even letters patent companies (where subscribers become members), the very thing incorporated was the trust itself. Trusts do not by their nature have "members". This particular trust being incorporated was a perpetual statutory trust whose objects and rules of governance were already provided for in the prior statutes creating it. The incorporating statute did not create any "members" nor prescribe any particular means of creating them.

[89] This can be contrasted with the statutory regime created for cemetery corporations (An Act to authorize the formation of Companies for the establishment and management of Cemeteries in Upper Canada, 13 & 14 Vic. c. 76) and trustees of non-denominational cemeteries (An Act to permit Lands in Upper Canada to be conveyed to Trustees for Burial Places, 13 & 14 Vic. c. 77). The former contemplated subscribers/owners of plots becoming shareholders while the latter contemplated a deed specifying the means of appointing and replacing trustees. Both statutes -- as amended from time to time -- remained in force in 1871 and became part of the Revised Statutes of Ontario in 1877 (R.S.O. 1877, c. 170 and c. 171 respectively). Neither model was followed here.

[90] None of the parties has been able to refer to a statute existing in 1871 that applied to the newly created corporation. Indeed, the 1871 Act did not explicitly create any "directors", "trustees" or "members" of the new corporation but simply incorporated the existing trustees.

[91] There is no sign in the legislative record of an intention to make a complete break with the statutory past once the trust was incorporated. There was no explicit repeal of any prior statutes. The power conferred upon the trustees to make by-laws was [page543] made subject to existing laws. The corporation acquired all of the estate of the trust but was subject to all of the duties imposed on trustees not inconsistent with the 1871 Act itself. These provisions clearly imply evolution within the existing legislative framework rather than blanket repeal and a clean slate as being the governing principle.

[92] Subsequent enactments confirm the principle of continuity. The 1876 Act referred to the 1871 Act and highlighted the continuity of the trust over time and through the several Acts referenced of which the 1871 Act was but one. The 1910 Act specifically amended a provision of the 1851 Act that prescribed the height of the fence required to be built around the cemetery. Subsequent amendments altered and ultimately abolished the geographic limitations contained in the pre-incorporation statutes. None of these would have been required had the 1871 Act been intended as a complete code that implicitly repealed the prior statutes creating the trust.

[93] Indeed, the 1876 public notice issued by the trustees referred to the 1871 Act merely as an Act "amending former Acts" (emphasis added) without even mentioning the fact of incorporation at that time and concluded that "Mount Pleasant Cemetery is therefore the property of the citizens". Many of the trustees who had presumably authorized the petition resulting in the 1871 Act were still trustees in 1876.

[94] The 1891 publication of the rules and regulations of the corporation described the trust property as being that of "the citizens of Toronto" administered by "a Board of seven trustees to be elected in the manner set out in the said Acts". The requirement for seven trustees and the method of their selection was provided for in the 1849 Act not in the 1871 Act (beyond the extension of eligibility requirements).

[95] A useful contrast might be drawn with several contemporary private acts of incorporation where more specific rules of corporate governance were addressed in the incorporating statute:

(a) An Act to Incorporate the Toronto Young Men's Christian Association, S.O. 31 Vic. c. 59

The named members and such others who now or thereafter became members were declared a body politic and corporate (s. 1). The property of the former association was conveyed to the corporation (s. 2), the constitution and by-laws of the association became the constitution and by-laws of the corporation (s. 4) and the officers and "board of managers" retained their offices. [page544]

(b) An Act for the Incorporation of the Burnside Lying-in Hospital of Toronto, S.O. 31 Vic. c. 62

The named members and such others who become members were declared a body politic and corporate (s. 1). Quorum for members meetings was set at five and members were permitted to pass by laws including for the admission of members and the election of officers and a management committee (ss. 3 and 4), the property, officers and management committee prior to incorporation became the property, officers and management committee post-incorporation and the existing by-laws were confirmed until repealed (s. 5).

(c) An Act to Incorporate the Royal Canadian Yacht Club, S.O. 31 Vic. c. 69

The named officers "and such other persons as now are or hereafter shall become members" of the association were declared a body politic and corporate and the existing constitution, rules and regulations touching on the admission and expulsion of members and management of the association were confirmed to the extent not inconsistent with the laws of Ontario, and subject to repeal and change in the manner provided (s. 1). The existing property of the association was conveyed to the corporation (s. 2) and the corporation was authorized to issue stock (s. 4).

(d) An Act to Incorporate the Sisters of L'Hotel Dieu for the Diocese of Kingston in the Province of Ontario, S.O. 31 Vic. c. 60

The named sisters "and such other persons as shall under the provisions of this Act become members" of the association were declared a body politic and corporate and the existing mother superior and council were authorized to make rules for the management of the corporation and the admission of members, the existing rules in force being confirmed until repealed or changed (s. 1).

In each of these four statutes, an existing unincorporated association with existing members, directors (however described), by-laws and governance procedures petitioned for and received incorporation by special Act. Specific rules for the transition from one form to another were enacted with the general rule being that the existing rules were confirmed to be the rules of the corporation unless contrary to the laws of the province. [page545]

[96] Unlike these other instances of incorporation by private Act of the legislature, the Trustees of the Toronto General Burying Ground were already a creature of statute and had been the object of at least four separate statutes at the point of incorporation in 1871. As a trust, it had no "members" per se but trustees and objects. Having been a statutory trust from inception, it had no governing trust deed. The prior statutes already dealt with the question of by-laws and regulations and the number, appointment and replacement of trustees. There was no need for the legislature to create a corporate governance regime out of whole cloth -- there was a tried and true model already functioning and provided for by statute. As a result, the legislature saw little need to do more than tinker around the edges of the existing structure by expanding the eligibility requirements for trustees to two suburban towns (York and Yorkville) and by modernizing the by-law powers that had been in place since 1826.

[97] A notable similarity between these private incorporation statutes and the 1871 Act, however, is the concept of continuity. When proceeding to grant corporate status to existing associations, the pattern of the legislation reviewed was to maintain the prior forms and structures, converting them mutatis mutandis to the new corporate structure. Incorporation did not start the new entity with a blank slate and a complete code found in the incorporating statute.

[98] In the case of the 1871 Act, the near total silence of the legislature on the subject of corporate governance post-incorporation and the absence of any existing statute of general application that could be viewed as being incorporated by reference strongly points to the intention of the legislature as being one of leaving existing structures -- structures already prescribed by prior statute -- intact unless explicitly altered.

[99] MPGC suggests that the permissive power to make regulations and by-laws in s. 14 conferred jurisdiction upon the new corporation to make its own rules regarding the appointment of trustees and the admission of members. Section 14 of the 1871 Act granted to the corporation the authority to make "by-laws . . . not being inconsistent with any existing law for the management of its property and the suitable remuneration of the trustees . . . and the regulation of its affairs".

[100] I do not agree.

[101] Section 14 provides only such delegated authority to make rules and by-laws as is not "inconsistent with any existing law". The 1849 Act is such a law in relation to the appointment of trustees just as the 1851 Act was such a law in providing for the height of fences surrounding the cemetery until amended by [page546] the 1910 Act. None of these were repealed and s. 14 of the 1871 Act -- being constrained by "any existing law" -- cannot be construed as conferring upon trustees the delegated power to repeal prior Acts of the legislature that the legislature itself had not seen fit to repeal.

[102] MPGC's position is an exercise in logical bootstrapping. It is only if one assumes the prior statutes regarding the trust were repealed upon incorporation that one can conclude subsequently enacted by-laws and regulations do not conflict with them. Both the preamble and s. 2 of the 1871 Act belie any such legislative intent. There is no presumption of repeal of prior statutes and nothing in the text or context of the 1871 Act can be construed as providing for repeal by implication.

[103] The 1849 Act conferred a specific obligation upon the trustees to call a meeting to appoint a replacement trustee upon a vacancy arising and stipulated the rules applicable for doing so. Section 2 of the 1871 Act imposed all of the existing obligations of the trustees upon the new corporation unless inconsistent with the new Act. There is no inconsistency between the two.

[104] It should be noted here that there is no evidence that the trustees ever purported to pass any rules or regulations inconsistent with the 1849 Act -- at least not until recently -- and the statements contained in the 1891 publication of the rules and regulations of the cemetery strongly suggests that they did not.

[105] There is simply nothing in the legislative history to suggest an intention to cut the corporation loose from the oversight -- even if only theoretical -- of the citizens of Toronto. Indeed, there is no evidence that the theoretical oversight of the citizens of Toronto had ever moved beyond theory. The genesis of this trust was in the community of the people of Toronto. It was their public subscription that created the trust. Their ultimate authority had been specifically preserved -- even if in altered form -- with the 1849 Act. Subsequent public pronouncements of the trustees continued to affirm the vital role of the citizens of Toronto.

[106] I am of the view that immediately following passage of the 1871 Act, the rules for selection of trustees of the corporation were precisely the same as they were immediately before incorporation, subject only to the extension of eligibility to act as replacement trustees granted to residents of Yorkville and York by s. 4 of the 1871 Act. Notice in the Gazette continued to be required and replacement trustees were provisionally appointed only, subject always to being replaced at a public meeting called for the purpose if done within the requisite time and in the requisite manner. While not determinative of legislative intent, the available record of the conduct and public pronouncements of the [page547] trustees for more than a century afterwards supports this view of the 1871 Act.

[107] Has anything happened since 1871 to alter those rules?

[108] The 1874 Act respecting the Incorporation of Joint Stock Companies by Letters Patent, S.O. 1874 c. 35 provided a set of rules and regulations governing corporations incorporated under it but did not apply to special Act corporations. The Revised Statutes of Ontario 1877 contain a number of statutes applicable to joint stock companies, including the Joint Stock Companies General Clauses Act, R.S.O. 1877, c. 149. That statute supplied general clauses applicable to special Act companies but only those companies incorporated with certain specified objects, none of which encompass the operation of a cemetery.

[109] As noted earlier, the legislature continued to enact statutes in relation to the corporation amending either expressly or by necessary implication rules established by the pre-incorporation statutes, confirming implicitly that these statutes were not considered "spent" after 1871. Among these was the 1910 Act that specifically amended a provision of the 1851 Act governing the height of the fences required to surround the cemetery or cemeteries to be built. If s 14 of the 1871 Act conferred general rule-making power notwithstanding the pre-incorporation statutes, this statute would have been entirely unnecessary.

[110] The first general corporate statute applicable to MPGC enacted appears to be the Corporations Act, 1953, S.O. 1953, c. 19. In particular, Part III (corporations without share capital) and Part VIII (corporations general) of this statute were stipulated to be applicable "except where it is otherwise expressly provided" to "every corporation incorporated by or under a general or special Act of the Legislature" (ss. 100, 284). The provisions relevant to this application have been carried forward in the current Corporations Act.

[111] The essence of the dispute between the parties regarding the Corporations Act concerns what is meant by the limiting phrase "except where it is otherwise expressly provided".

[112] For MPGC, "except where it is otherwise expressly provided" should be read as referring to where it is otherwise provided in the Corporations Act itself. In support of this interpretation, MPGC refers to the following provisions of the Corporations Act where it provides that certain provisions are inapplicable in whole or in part to some specific types of corporation:

(a) sections 3 (Part I -- Corporations, Incorporation and Name); 17 (Part II -- Companies); 229 (Part VI Winding-Up); and 272 (Part VII -- Corporations, General) are each stated not to apply to a corporation within the meaning of the Loan and Trust Corporations Act apply "except as provided by that Act"; [page548]

(b) section 34(9) provides that s. 34 (authorizing a company[^4] to apply for supplementary letters patent) does not apply to a company incorporated by special Act except for the purpose of changing its name; and

(c) section 274 provides that a corporation has the capacities of a natural person, including outside the boundaries of Ontario "unless otherwise expressly provided in the Act or instrument creating it".

[113] MPGC also relies upon the comments regarding s. 117 of the Corporations Act in Tomen v. Federation of Women Teachers' Associations of Ontario (1989), 70 O.R. (2d) 48, [1989] O.J. No. 1361, 1989 CanLII 4213 (C.A.).

[114] For both the applicants and the PGT, the Corporations Act was intended to supplement the existing statutory provisions governing special Act corporations rather than replace them wholesale. There is no "conflict" to be resolved because the Corporations Act itself allows for the prospect of a specific provision of a prior "special Act" statute prevailing. Were there doubt in this regard, that doubt was resolved in 2017 with the enactment of s. 117.1 of the Corporations Act:

117.1(1) If there is a conflict between a provision that applies to a corporation in this Act or in a regulation made under it and a provision that applies to the corporation in any other Act or regulation, the provision in the other Act or regulation prevails.

(3) A provision in this Act or in a regulation made under it does not apply to a corporation to the extent that it is inconsistent with the intent or purpose of another Act or regulation that applies to the corporation.

[115] I do not view Tomen as being of any direct assistance in resolving this issue. In Tomen, the special Act in question pre-dated the Corporations Act, 1953 by almost ten years and thus contained no direct exemption from any of the provisions thereof. The Court of Appeal referred to the "except where it is otherwise expressly provided" language in s. 117 of the Corporations Act and considered whether the incorporating statute (the Teaching Profession Act, R.S.O. 1990, c. T.2) contained language "equivalent" to a direct exemption (at p. 51 O.R.). It obviously did not require a prior incorporating statute to create exemptions from future statutes and clearly did not read the Corporations Act as having implicitly repealing all such prior statutes unless [page549] specifically mentioned by name. In Tomen, there was no contradiction found between the permissive language of the incorporating statute permitting the board of governors to make regulations with the approval of the Lieutenant Governor in Council and the specific authority in s. 129 of the Corporations Act authorizing the board of directors to make by-laws, the latter being subordinate to and quite different from regulations enacted with the authority of the Lieutenant-Governor in Council.

[116] The question comes down to one of the intention of the legislature and cannot be resolved by the rigid application of presumptions or maxims of interpretation: Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, [2007] S.C.J. No. 14, 2007 SCC 14, at para. 58. In Lévis, the court considered the application of two conflicting maxims of interpretation, both of which are applicable here: the maxim that the more recent pronouncement takes precedence over the older one and the maxim that a specific provision takes precedence over a general one. There as here, the question must be resolved the ordinary tools of statutory construction which are designed to reveal and apply the intention of the legislature.

[117] Can it be said that general or permissive provisions of the Corporations Act, 1953 were intended to prevail over the earlier mandatory and specific provisions of the myriad of special acts applicable to corporations with neither share capital nor letters patent such as MPGC?

[118] The text of the Corporations Act, 1953 suggests no such interpretation. Numerous provisions conferred discretionary powers "subject to the letters patent, supplementary letters patent or by-laws" of a corporation (but not subject to the mandatory provisions of the incorporating statute). Examples include

(a) the power to create more than one class of membership: s. 103;

(b) limitations on the number of members: s. 106;

(c) the voting rights of members: s. 108;

(d) the ability to provide for ex officio directors: s. 110;

(e) the transferability of membership interests upon death: s. 111; and

(f) the ability to pass by-laws: s. 112.

[119] It cannot seriously be suggested that the legislature intended that the specific provisions of an existing statute should be rendered inoperative by reason of the general provisions of Corporations Act, 1953 while the operation of those same provisions [page550] were themselves subject to being excluded or varied by an existing by-law or letters patent both of which were clearly subordinate to pre-existing statute law.

[120] The interpretation suggested by MPGC would lead to the perverse result that specific corporate governance rules contained in letters patent or even by-laws should survive the passage of the Corporations Act, 1953 unaffected while those same provisions if contained in a special Act should be considered to be repealed and inoperative thereafter.

[121] If the Corporations Act, 1953 were intended to repeal and displace all of the myriad of special Acts previously governing special Act corporations, there would have been no need to restrict the ability of such corporations to apply for Supplementary Letters Patent beyond a mere change of name: Corporations Act, 1953, s. 113(6). Furthermore, if the enactment of the Corporations Act, 1953 were intended to repeal the prior statutes governing MPGC, the amendments in 1968, 1977 and 1989 extending and then removing the geographic limitations on the ability of MPGC to acquire land would have been quite unnecessary. Section 287(b) of the Corporations Act, 1953[^5] already conferred upon all corporations the general power to acquire land necessary for its use or carrying on its undertaking, however, such authority was similarly conditioned by the "except where it is otherwise expressly provided" language in s. 284.

[122] The interpretation that is more consistent with reason and common sense is that the specific provisions of the special Acts were intended to prevail over general provisions of the Corporations Act, 1953. The Corporations Act, 1953 was intended to fill in the gaps in a heterogeneous group of incorporating statutes containing greater or lesser degrees of detail and enacted over the span of more than one hundred years.

[123] I find that the 1849 Act continues to govern MPGC and such Act

(a) provides for seven directors;

(b) imposes a direct duty upon trustees to convene a meeting of trustees to select a replacement in the event of a vacancy arising from death or resignation; and

(c) prescribes a specific and mandatory procedure for selecting and confirming such replacement trustees by way of public notice and, if called in the prescribed manner, public meeting. [page551]

[124] None of the current directors has been appointed in compliance with these mandatory rules. The current board of directors consists of ten members instead of the seven trustees prescribed by law and none of them has been elected in accordance with the provisions of the 1849 Act. The by-laws provide term limits inconsistent with the 1849 Act. It is clear that a road forward must be found to bring the governance of MPGC in line with its governing statute.

[125] Given the failure of the trustees in office in 1987 to select replacement trustees in accordance with the governing law, there are no validly appointed trustees. The corporation has routinely appointed its trustees/directors as members. However, all of the current members have similarly been appointed "members" by trustees who were not validly appointed. It is not at all clear that the 1871 Act created any "members" at all.

[126] In the circumstances, I concur with the PGT that I have jurisdiction under s. 288(4) of the Corporations Act to appoint trustees. I intend to do so in order to avoid a vacuum in the governance of the trust but to require the trustees so selected to be confirmed in accordance with the procedure established in the 1849 Act.

(iii) Is MPGC a trust?

[127] Under the 1826 Act, the subject land was directed to be held by the trustees as "a general burying ground" forever. No change in purpose was made in the 1849 Act which dealt primarily with governance of the trust. The 1851 Act authorized the trustees to acquire 25 acres of additional land with authority to "sell, convey or otherwise dispose of the said lots to any person or persons . . . to be used and appropriated exclusively to the burial of the dead". The 1855 Act supplemented the authority to acquire additional land in the 1851 Act and provided that the lands to be acquired were to be "held and used as a Public Cemetery, and in trust for the purposes of the Acts" and "provided also that it shall not be lawful for the said Trustees . . . to make or suffer to be made any other use of the same than for the purposes of such Cemetery". The referenced statutes were the three prior statutes (1826, 1849 and 1851).

[128] The 1871 Act contains no language purporting to revoke or vary the objects of the trust established by the four prior statutes. Section 2 of the 1871 Act vested all of the estate, real and personal, of the trustees in the corporation as well as all of their powers, privileges granted by statute but subject to all of the conditions and duties imposed upon them not inconsistent with the 1871 Act. Title to the lands of the Toronto Necropolis referenced [page552] in the preamble were confirmed and vested in the corporation "to receive and hold the same for the purposes of said trust" by s. 3. The power to purchase additional land was conferred by s. 5, but s. 6 provided that the said lands "and any other lands acquired by the said corporation shall be used exclusively as a cemetery or cemeteries or places for the burial of the dead" with power to survey and subdivide such land into lots and to "sell, convey or otherwise dispose of the said lots to any person . . . to be used and appropriated exclusively for the burial of the dead" (emphasis added). Section 7 of the 1871 Act authorized the corporation to embellish the lands and erect buildings "as the nature of the establishment may require, and may also further take and hold such personal property as may be necessary and proper for attaining the objects and carrying into effect the purposes of the said corporation". Finally, s. 15 authorized the corporation to sell or exchange lands "provided that the monies received as purchase-money or the lands taken in exchange therefor be used and appropriated for the purposes of the trust".

[129] The legislature has continuously and consistently thereafter referred to the lands of the corporation as being held subject to a single, continuing trust. In 1876, the corporation was authorized to re-convey certain lands that were part of the Toronto Necropolis back to the City for the purposes of a park. The preamble to the 1876 Act referred to the Toronto Necropolis lands as being held "subject to and for the carrying out of certain trusts in and by the Act of incorporation and other Acts relating to the said Trustees of the Toronto General Burying Grounds" (emphasis added) and described burial of the dead as "the sole purpose for which the said lands are held by them". It also described the recently-acquired Mount Pleasant cemetery lands as being "held by them subject to the same trusts and for the same purposes" as the lands to be re-conveyed to the City. The 1888 Act authorized the sale of a portion of the Mount Pleasant cemetery consequent upon the lessened demand occasioned by the purchase of the land that became the Prospect Cemetery the prior year. The preamble to the 1888 Act referenced that additional acquisition of land as being "for the purposes of said trust" while s. 1 authorized the sale of surplus lands owned "for the purposes of the said trust . . . provided always that the proceeds arising from any and all such sale or sales are to be used and appropriated for the proper purposes of the said trust and for no other purposes whatever".

[130] I find that MPGC was incorporated by statute in 1871 with the specific and limited object of carrying out the statutory, perpetual trust created in 1826. That perpetual trust has continued to this day subject only to such amendments as the legislature itself has made and extends to all of the lands of MPGC [page553] and all proceeds thereof. The trust objects are to use the trust lands "exclusively as a cemetery or cemeteries or places for the burial of the dead" with all proceeds thereof to be "used and appropriated for the purposes of the trust". Neither the objects of the corporation (to act as trustee) nor of the trust can be altered except by statute.

[131] There is recent jurisprudence that suggests that a charitable corporation holds its assets beneficially to be used and applied solely to fulfill its charitable objects: Victoria Order of Nurses for Canada v. Greater Hamilton Wellness Foundation, [2011] O.J. No. 4938, 2011 ONSC 5684 (S.C.J.), at para. 72.

[132] Whether the corporation holds its property as trustee of a statutory trust that was continued in 1871 in corporate form or holds the same property beneficially for the sole purpose of carrying out the objects of the trust would appear to me to be a distinction without a practical difference. The objects of the statutory trust that the new corporation was charged with executing are the objects of the corporation and corporation is without authority to exceed those objects.

[133] That being said, it would appear to me that the Victoria Order of Nurses of Canada case cannot be extended to all charitable corporations without regard to their actual origins.

[134] The language of the 1871 Act imposed all of the obligations of the trustees upon the corporation and vested all of the assets of the trustees upon it. This language lends itself most naturally to the conclusion that the corporation holds its assets as trustee of the statutory trust. That conclusion is materially fortified by the references in s. 3 of the 1871 Act (which confirmed the corporation's title to the Toronto Necropolis lands to be held for the "purpose of such trust" and s. 1 of the 1888 Act that referenced the "lands now owned by [the trustees] for the purposes of the said trust" and directed any proceeds of sale of cemetery lands "are to be used and appropriated for the proper purposes of the said trust and for no other purposes whatsoever". There is no suggestion to be found in either statute that the trust was terminated in 1871. If it was not terminated, then it survives and if it survives, its trustee can be none other than the corporation formed upon the incorporation of the seven trustees charged with its execution prior to the point of incorporation. Subsequent amending statutes continued to refer to the subsisting trust.

[135] It seems to me that a blanket statement that no charitable corporations hold their assets in trust is simply too broad to be sustained. Care must be taken to examine the corporate and trust history to determine what conclusion best fits the facts. In this case, there was a 45-year-old express statutory trust in [page554] existence at the time of incorporation and the incorporating statute as well as later amending statutes made express reference to the survival of the trust post-incorporation. Absent a subsequent statute that explicitly or by necessary implication terminated the perpetual statutory trust created in 1826, that trust continues to this day.

(iv) Is the MPGC trust a charitable trust?

[136] The applicants seek a declaration that the trust administered by MPGC is a charitable trust because they wish to establish that MPGC is subject to the Charities Accounting Act and, in particular, the investigation powers contained therein. Pursuant to s. 1(2) of the Charities Accounting Act, "any corporation incorporated for a religious, educational, charitable or public purpose shall be deemed to be a trustee within the meaning of this Act".

[137] Section 7 of the Charities Accounting Act faithfully replicates the four-part English common-law Pemsel test.[^6] Pursuant to s. 7, "charitable purpose" means "(a) the relief of poverty, (b) education, (c) the advancement of religion, and (d) any purpose beneficial to the community, not falling under clause (a), (b) or (c)".

[138] Clearly, the present case must fit into the "basket clause" of the fourth category or not at all. MPGC operates cemeteries that are non-denominational and without explicit vocation to maintain a religious character. While there is an obligation to make available paupers' graves in certain circumstances, this is only an ancillary aspect to its operation.

[139] There would appear to be broad agreement among the parties that the activities of MPGC are intended to benefit the public. This emerges quite clearly from my earlier review of the history of MPGC from its origins until the present day. However, it is not every object that seeks the benefit of the public that will be characterized as charitable. MPGC correctly points out that the operation of an airport or a transit system are also of [page555] considerable public benefit without their operators necessarily being considered to pursue charitable objects.

[140] It is fair to observe that there is not a great deal of jurisprudence examining whether the operation of a not-for-profit public cemetery is a charitable purpose. However, what jurisprudence there is -- in Canada, the United Kingdom and elsewhere -- has been quite unanimous in reaching the conclusion that such a cemetery is pursuing a charitable purpose. MPGC for its part has not cited any cases that come squarely to the contrary conclusion.

[141] The leading case in this regard is the House of Lords decision in Scottish Burial Reform and Cremation Society v. Glasgow Corp., [1967] 3 All E.R. 215, [1967] UKHL 3 (H.L. Scot.) where Lord Reid noted (at p. 220 All E.R.) that "the disposal of the dead is, and always has been, not merely a purpose beneficial to the community, but a matter of public necessity". In Canada, a similar decision was reached in Oldfield (No. 2) (Re), 1949 CanLII 217 (MB KB), [1949] M.J. No. 43, [1949] 2 D.L.R. 175 (K.B.).

[142] In Oldfield, Williams C.J.K.B. carefully distinguished between charitable public purposes and non-charitable private purposes. The latter category would include bequests to maintain a particular monument or provide a resting place for a particular person or family. In that case, he found that a trust to maintain a particular grave site failed but a trust established to maintain the cemetery as a whole was a valid charitable purpose.

[143] In Levy Estate (Re) (1989), 68 O.R. (2d) 385, [1989] O.J. No. 660, 1989 CanLII 4382 (C.A.), our Court of Appeal cited Oldfield with approval as standing for the proposition that [at para. 10] "a bequest to maintain a municipal cemetery in France was a valid charitable bequest whether regarded as for the advancement of religion or for a purpose beneficial to the community".

[144] In my view, Oldfield and Scottish Burial both stand for the proposition that the operation of a non-profit, non-denominational public cemetery does qualify as a charitable purpose.

[145] I find that the statutory trust administered by MPGC is for a charitable purpose.

(v) Has MPGC exceeded the objects of the trust?

[146] The objects of the trust at the time of incorporation -- objects that no statute has since modified -- were to use the lands "as a cemetery or cemeteries or places for the burial of the dead". The 1876 Act referred to the burial of the dead as being the "sole purpose" for which the lands of the trust were held.

[147] Clearly, the initial object of seeing to the "burial of dead" has always included within its purview at least some ancillary [page556] activities. Various of the special Acts applicable to MPGC contained directions or granted authority in relation to the building of walls around the cemetery lands, the laying out of pathways and roadways, the construction of works related to drainage or connecting to sewers, the erection of necessary buildings and similar matters.

[148] It is quite likely that viewed through the eyes of the 19th century legislators who passed the various acts establishing and modifying the trust at issue in this case, there would have been a clearly understood difference between burial of the dead and preparation of the dead for burial. The former was an activity undertaken by cemeteries -- be they denominational or public -- while the latter was undertaken by undertakers and funeral homes or by the families themselves. These activities have existed as separate activities undertaken for centuries. In providing that the objects of the trust were limited to the operation of a public cemetery for the burial of the dead, there can be little doubt that neither the operation of a funeral home nor the operation of a crematorium was in prospect.

[149] On the other hand, statutes are considered to be always speaking and the objects of this trust are established by statute. The concept of a "public cemetery" is one that has evolved over the years and continues to evolve to this day. It was not until 1972 MPGC first built and operated a crematorium, at least as far as the evidence has established. Cemeteries were authorized to apply for licences to build and operate cemeteries (see the Cemeteries Act, R.S.O. 1990, c. C.4 -- repealed and replaced by the Funeral, Burial and Cremation Services Act, 2002).

[150] The evidence before me establishes that funds of the corporation have been used to acquire and capitalize CMS, a corporation that operates a funeral home business and operates that business in part on the lands of MPGC through licenses held to operate the visitation centres. In addition, the cemetery has built crematoria which are similarly operated upon its lands. MPGC has also built a total of six funeral centres, four crematoria and controls three funeral homes through CMS.

[151] The applicants contend that all of this is beyond the objects of the statutory trust MPGC is required to discharge.

[152] In my view, there is a danger in looking to what the list of activities any cemetery is authorized to undertake by a continually evolving statutory and regulatory framework as defining what the actual objects of this particular charitable trust are. To pick an extreme example, a hypothetical future regulation (or City by-law) authorizing cemeteries to operate casinos would not be of any assistance in construing the objects of this particular [page557] charitable trust established as it was by statute more than 180 years ago. Indeed, in 1826, there were comparatively few regulations applicable to cemeteries. They came under increasing regulation as time has gone by and the role of government as grown. They may yet come under less regulation should future governments so decide. Further, not all cemeteries are charitable ones. Commercial cemeteries may have powers not consistent with a charitable trust established by statute. Care must be taken to avoid an overly "frozen in time" view of what a cemetery is while at the same time avoiding the mistake of inferring that the intention of the legislature in one time frame can be inferred by subsequent regulatory changes in an entirely different time frame.

[153] The common theme that underlies the definition and description of the trust through all of the statutory references to it has been the concept of a place for the "burial of the dead". It is to that standard, in my view, that I must turn in assessing the questions raised here.

[154] As regards the visitation centre and funeral home business that MPGC has funded and permitted CMS to operate on its premises, it cannot in my view be said that those lands or their proceeds are being used "exclusively" for the burial of the dead. There may be a competitive advantage in having a captive funeral home referring possible clients to the cemetery, but that cannot be said to come within the scope of using the lands and proceeds "exclusively" for the burial of the dead in a public cemetery. The phrase "exclusively" does not admit of an overly broad and generous application of the concept of "ancillary". The visitation centres were built as a deliberate expansion of the "business" of MPGC but cannot be said to be devoted "exclusively" to the burial of the dead, particularly if the dead in question are potentially being buried elsewhere by families using the facilities.

[155] I find such operations to exceed the terms of the trust.

[156] I cannot reach any conclusions with the same degree of confidence as regards the crematorium business. Cremation was not widely practised in Ontario in the 19th century and it is widely practised today. It is, however, unquestionably a means of seeing to the safe and dignified preparation for burial of the remains of the dead.

[157] There is insufficient evidence before me as to the history of cremation in Ontario and its regulation -- including requirements that crematoria be located on cemetery properties -- to permit me to reach a firm conclusion on whether the construction or operation of a crematorium on cemetery lands comes within the objects of the statutory trust before me for consideration. [page558] It appears, for example, that the crematoria operated by MPGC are in general use and not dedicated to the cremation of remains destined for burial at the cemetery. That may well suggest that the lands dedicated to the crematoria are not in fact exclusively devoted to a cemetery for burial of the dead.

[158] In my view, I lack an adequate evidentiary foundation in the record before me to decide the question of the conformity of the current crematorium operation with the objects of the cemetery trust. I am therefore declining to make any declaration in regard to the cremation business at this time but do so without prejudice to the applicants pursuing relief in relation to that question with further and better evidence in future.

[159] However, the applicants are entitled to a declaration that the use of cemetery funds to acquire and capitalize CMS and the operation of visitation centres and funeral homes on cemetery lands is beyond the objects of the trust.

(vi) Is this an appropriate case for an investigation?

[160] The applicants seek an order under s. 10 of the Charities Accounting Act requiring an investigation by the PGT. They are not supported in this regard by the PGT.

[161] Section 10 of the Charities Accounting Act provides as follows:

10(1) Where any two or more persons allege a breach of a trust created for a charitable purpose or seek the direction of the court for the administration of a trust for a charitable purpose, they may apply to the Superior Court of Justice and the court may hear the application and make such order as it considers just for the carrying out of the trust under the law.

(3) Where the court is of the opinion that the public interest can be served by an investigation of the matter alleged in the application, the court may make an order directing the Public Guardian and Trustee to make such investigation as the Public Guardian and Trustee considers proper in the circumstances and report in writing thereon to the court and the Attorney General.

[162] There are no allegations of breach of trust in what I might characterize as the "traditional" sense of the word. The allegations before me relate to the method of appointment of trustees themselves and to disagreements as to whether certain activities undertaken by the corporation are or are not within the objects originally established for the trust and the corporation that is now charged with fulfilling its objects. There are no allegations that funds have gone missing or been misappropriated. The public interest does not require the appointment of an investigator with a general mandate to see what can be seen. [page559]

[163] It may be that circumstances will subsequently come to light that may warrant an investigation. I shall not be drawn into speculating what those circumstances might be. It is sufficient to say that nothing before me has singly or in combination raised a level of concern sufficient to warrant the calling for an investigation.

Disposition

[164] For the foregoing reasons, I find that the applicants are entitled to the following declarations:

(a) MPGC is required to be governed by a board of not more than seven trustees each of whom is required to be appointed in accordance with the provisions of the 1826 Act as amended by the 1849 Act;

(b) none of the ten current directors of MPGC has been validly appointed as a trustee of MPGC and none has the authority to appoint a new or replacement trustee;

(c) MPGC continues to hold its assets as trustee for the purposes of the trust created by the 1826 Act as amended by statute thereafter;

(d) the trust administered by MPGC is a charitable trust;

(e) MPGC is a trustee within the meaning of s. 1(2) of the Charities Accounting Act; and

(f) the funding and operation of visitation centres and the CMS funeral home business is beyond the scope of the existing statutory trust administered by MPGC.

[165] As noted earlier, I am declining to make any declarations in relation to the operation of the crematorium business without prejudice to a further application being made in that regard on better and more detailed evidence.

[166] The effect of the declarations made ought not to create a governance vacuum. As I indicated at the outset of my reasons, MPGC is not a runaway train and its directors have not gone rogue. The current proceedings are the result of a bona fide disagreement as to the application of the law, a disagreement which is rendered all the more understandable by the age of the rules under consideration.

[167] The applicants request that I cause MPGC to call for the election of new trustees in accordance with the 1849 Act while the PGT suggests that I ought to exercise my jurisdiction to appoint trustees on my own under s. 284(4) of the Corporations Act [page560] (which applies where, as here, a Part III non-share capital corporation has neither directors nor members). I propose to apply a hybrid of these two proposals.

[168] I am ordering that the seven most senior directors of MPGC currently in office shall be appointed by the court as trustees of MPGC and that notice of such appointment shall be placed in the Ontario Gazette prior to March 31, 2019. The record before me does not contain an up-to-date listing of the current directors of MPGC and their date of appointment. In the event of any doubt as to who are the seven most senior existing directors of MPGC, I may be approached for further directions.

[169] It shall be open to the applicants to call a public meeting in accordance with the provisions of the 1849 Act which public meeting may, if so advised, elect one or more inhabitant householders of the City of Toronto[^7] in replacement of one or more of the seven trustees named by me.

[170] I am directing the parties to negotiate a protocol to govern the calling and holding of the public meeting in question for approval by me. If a consensual protocol cannot be worked out, I may be approached for directions in that regard. It would be preferable were the timing of the notice in the Ontario Gazette to be coordinated with the intended date of such public meeting and the publication of notices as stipulated by the 1849 Act.

[171] A neutral chair of the public meeting should be provided for. Such chair will need authority (i) to retain neutral advisors and assistants; (ii) to adjourn and reschedule the meeting to a larger venue should the selected venue prove inadequate; and (iii) to seek directions from the court if needed.

[172] The applicants have been substantially successful in their application and are entitled to their costs of this application from MPGC. They have not acted for their personal benefit but to vindicate an important public interest. I shall receive submissions of the parties as to the scale and amount of costs if they are unable to reach agreement.

Application allowed in part.

Notes

[^1]: The Ontario Gazette is the successor to the Canada Gazette - formerly published by the Province of Canada - for matters coming within provincial jurisdiction following Confederation.

[^2]: The 1849 Act named the property of the Trust "the Toronto General Burying Ground" but did not name the Trust itself.

[^3]: I express no view as to whether the provisions of the 1826 Act that treated a vacancy as arising upon a trustee becoming incapable of acting or residing abroad continued to apply after the 1849 Act as the issue has not been raised here.

[^4]: "company" refers to a corporation with share capital - the analogous provision applicable to corporations without share capital is s. 131(6).

[^5]: Section 275 of the Corporations Act is now broader, permitting "a corporation . . . to acquire . . . and to hold any land or interest therein".

[^6]: The still-leading case on the matter is Commissioners for Special Purposes of the Income Tax v. Pemsel, 1891 CanLII 21 (FOREP), [1891] A.C. 531 (H.L.), which described the following four categories of charitable purposes:

(a) Relief of poverty;

(b) The advancement of education;

(c) The advancement of religion; or

(d) Such other purposes beneficial to the community that the court regards as charitable.

[^7]: The township of York and the village of Yorkville are now part of the City of Toronto since the amalgamation of the former borough of York with Toronto.