Mistruths vs Fact
Mistruths vs Fact
Appeal Decision Analysis
Despite the Court of Appeal finding in favour of MPGC on every issue, The Friends of Toronto Public Cemeteries (FTPC) continue to share mistruths and make unfounded claims.
Here are some of the fallacies and mistruths FTPC continue to share, along with the facts.
- FTPC states that public involvement in the oversight of Mount Pleasant Group of Cemeteries has been usurped with the Court of Appeal decision.
- FTPC’s claim in this respect is circular. The Court of Appeal has ruled that the governance rules applicable to a pre-1871 trust structure that no longer exist were never intended to apply to MPGC. The Court of Appeal has ruled on the meaning of the former legislation. Nothing has been usurped. The Court’s ruling simply affirms what the governing legislation always meant.
- FTPC makes this claim based on rules that were put in place 171 years ago in 1849 relating to how trustee vacancies were filled. At that time, if residents of Toronto did not agree with a candidate elected by the remaining trustees, the public could put forward alternative candidates and a public vote was conducted. Today, such a process would be absurd for any corporation. In 1871, the organisation incorporated and the rules for board member succession changed with the adoption of by-laws that give the board the ability to decide how best to appoint its directors.
- MPGC has operated under the rules of corporate law for almost 150 years. The rules that apply to filling board vacancies were at the core of the court case. The Court of Appeal decision verified that the rules changed when MPGC incorporated in 1871. MPGC’s interpretation of those rules is correct and our board has always been properly constituted.
- FTPC incorrectly states that the individual board members of MPGC now own the trust assets and can profit from the Court of Appeal ruling.
- This statement is nothing more than fear-mongering. The directors of MPGC’s board do not own the cemetery assets. The Court of Appeal recognised the unique character of the statutory trust governing MPGC. At law, MPGC “owns” the assets of the group, but it does not “own” them in the same way a business corporation does.
- MPGC is non-share capital corporation and as such, does not have shareholders in the way that share capital corporations do, so MPGC cannot cause the corporation to be wound up and dissolved, with the assets being distributed among shareholders. MPGC was incorporated in 1871 to operate the trust as a cemetery which is open to all in perpetuity. If MPGC were to dissolve, the assets would be given to the various municipalities where the cemeteries exist as per the by-laws of MPGC.
- As with all non-share capital corporations in Ontario, MPGC is prohibited from carrying on business for the purpose of gain for its members. Any surpluses generated by the company must be used for its cemetery operations. Such surpluses are not the property of any members or its directors, nor does such property belong to the government or the “taxpayers of Ontario”.
- The board of MPGC manages the affairs of MPGC, which includes the power to make decisions to sell and buy assets. As fiduciaries, any decision the board makes must be informed by the best interests of the corporation. The interests of MPGC cannot be separated from its statutory mandate, which is to operate its cemeteries in perpetuity. As has been the case since its inception, all of the board’s decisions concerning the affairs of MPGC are made consistently with that mandate.
- As a rare statutory corporation, MPGC’s statutory objects provide absolute protection for the assets of MPGC. It is legally impossible for the board of MPGC to act in a manner that is not compliant with the corporation’s mandate to ensure perpetual succession of the corporation. The board members cannot sell the assets of the statutory trust for personal gain, as our opponents would like the public to believe.
- The suggestion that MPGC’s board can “sell the cemeteries off - either one by one, or wholesale, to another cemetery/funeral home company, like SCI - which is a big American company”, “and split the proceeds 8 ways” is simply not possible. As per the statutory trust created and the corporate laws which govern MPGC, the directors are charged with the duties of perpetual care and public interest. They have a statutory duty to operate the burial grounds as well as fiduciary duties to do so.
- FTPC incorrectly states that the public subsidize the cemetery operation because of tax forgiveness.
- This claim is also categorically untrue. No cemeteries pay municipal taxes due to their unique legislated perpetual maintenance responsibilities (which are a requirement under the Funeral Burial and Cremation Services Act (FBCSA)).
- Furthermore, MPGC is no different than ninety-five percent of cemeteries in the Province of Ontario who do not pay income tax because of their legislated not-for-profit, religious or municipal operation status. The 5 per cent who do pay income tax are for-profit, commercially-run operations, where the shareholders are compensated from the success of the organisation.
- MPGC has never received grants, funding, or land from any level of government.
- FTPC repeatedly refers to Mount Pleasant Group of Cemeteries as a Public Trust when it is a Statutory Trust
- In its decision the Court of Appeal stated “it should be emphasised that, consistent with the application [lower Court] judge’s finding, all parties before this court concede that a statutory trust was established by the Legislature.”
- The term “public trust” does not have a specific meaning in our legal system. Whatever someone using the term might intend, the label itself does not mean that the government or the public was intended to have any specific power or control over MPGC. To the extent it means anything to say that MPGC is the trustee of a statutory trust, it is a trust not for the benefit of any segment of the public, but is rather a trust to achieve the designated statutory purposes.
- MPGC was established by a Special Act of the Ontario Legislature in 1871 to be the trustee responsible for carrying out the objectives identified in an earlier statute – to provide cemetery and burial facilities on a non-denominational basis. MPGC is not itself a trust. And unlike a typical trustee, whose obligations come from a person who privately establishes a trust, MPGC’s obligations as the trustee of the trust are statutory, not from a private trust arrangement. MPGC is legally bound to pursue the purposes set out in its 1871 incorporating statute, and those who manage MPGC are bound by corporate law rules to ensure those purposes are pursued.
- The original charter and objects of the organisation from 1826 which bind those who manage it, is preserved in the 1871 statute which indicates that the corporation’s purpose and obligation is to acquire and hold lands to be used exclusively as a cemetery or places for the burial of the dead in perpetuity.
- A common theme perpetuated by FTPC is the claim that MPGC is a $3 billion organisation whose assets are owned by the Public (Province) and with this decision they have been taken away.
- There are three incorrect claims in this statement
- The suggestion that MPGC is a $3 billion organisation is a gross overstatement of the facts. FTPC attributes the majority of this valuation on land values based on equivalent real estate prices for developable land. However, developed cemetery land where burials have taken place must remain in perpetuity and therefore cannot be sold for real estate purposes. MPGC has over 600,000 souls buried in its cemeteries and the land they are buried in has no real estate value in the sense that FTPC is implying.
- As of March 31, 2020, the end of our last fiscal year, MPGC’s total assets were $985 Million. $682 Million of this is our Care and Maintenance and Prepaid Trust Funds. The Care and Maintenance Fund is mandated by the province and is made up of a portion of the revenue from the sale of each interment right. The capital cannot be removed and the income earned on the capital is used to pay for maintenance costs of the cemetery. This is how the province ensures that cemeteries can be maintained in perpetuity. Prepaid trust funds are the revenues from people purchasing cemetery and funeral services in advance. These are held in trust until the product or service is delivered. Both of these funds are held by our Trustee, CIBC Trust, who has full control, supervision, and authority over the Funds.
- Prior to 1871, ownership of the cemetery properties rested with the individual trustees of the company. In 1871, the trustees incorporated the company under a Special Act and in doing so transferred the trust assets to the corporation, The Trustees of the Toronto General Burying Grounds (now named MPGC), as the trustee. The cemetery properties have always rested with the trustee(s), and not the Province.
- Accordingly, the cemetery properties have not been “taken away from the Province.”