



COURT OF APPEAL FOR ONTARIO

CITATION:
    Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020
    ONCA 282

DATE:
    20200505

DOCKET:
    C66494

Pepall, Tulloch and Benotto JJ.A.

BETWEEN

Friends of Toronto
    Public Cemeteries Inc. and Kristyn Wong-Tam

Applicants
    (Respondents/

Appellants
    by way of cross-appeal)

and

Public Guardian and Trustee
and
Mount
    Pleasant Group of Cemeteries

Respondents
    (
Appellant
/
Respondent
/

Respondents
    by way of cross-appeal)

Ronald G. Slaght, Q.C. and Margaret Robbins, for the
    appellant/respondent by way of cross-appeal, Mount Pleasant Group of Cemeteries

Michael S.F. Watson, Rodney Northey and Michael Finley, for
    the respondents/appellants by way of cross-appeal, Friends of Toronto Public
    Cemeteries Inc. and Kristyn Wong-Tam

Dana De Sante, for the respondent/respondent by way of
    cross-appeal, Public Guardian and Trustee

Heard:
    November 13, 2019

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated December 31, 2018, with reasons reported at
    2018 ONSC 7711, 144 O.R. (3d) 521.

Pepall J.A.:

INTRODUCTION

[1]

This appeal involves the interpretation of
    archaic statutes, and the operation of modern cemeteries by the appellant,
    Mount Pleasant Group of Cemeteries (MPGC), a not-for-profit, non-share
    capital corporation created by a special Act of the Legislature of Upper Canada
    in the 1800s. The development of a crematorium and visitation centre at one of
    MPGCs cemeteries was the catalyst that resulted in proceedings brought by the
    respondents, Friends of Toronto Public Cemeteries Inc., a company incorporated
    to pursue this application, which consists of members of a local neighbourhood ratepayers
    association, and Kristyn Wong-Tam, a Toronto resident
[1]
(collectively referred to as FTPC). FTPC challenges MPGCs
    governance and status. The Public Guardian and Trustee (the PGT) was named as
    a respondent to the proceedings.

[2]

There are four broad issues on this appeal.

[3]

The first involves the application judges
    conclusion that statutes from 1826 and 1849 continue to govern the election and
    appointment of MPGCs trustees or directors. MPGC argues that a statute from
    1871 fundamentally changed the election and governance model provided for in
    the 1826 and 1849 statutes.

[4]

The second issue involves the application
    judges conclusion that MPGCs visitation centre and funeral home businesses
    exceed MPGCs objects. (Based on the evidence before him, the application judge
    was unable to decide whether the current crematoria operations exceed MPGCs
    objects.) MPGC argues that none of these business activities are outside of
    MPGCs objects, and in any event, the relief granted was not requested by the
    respondents.

[5]

The third issue concerns the application judges
    finding that MPGC was a charitable trust subject to the provisions of the
Charities Accounting Act
, R.S.O. 1990, c. C.10 (the 
CAA
). MPGC argues that it
    does not have a charitable purpose.

[6]

Finally, the fourth issue, which is the basis of
    the cross-appeal, involves the application judges decision not to order the
    PGT to conduct an investigation of MPGC under the
CAA
. The application
    judge concluded that the public interest would not be served by ordering such
    an investigation.

[7]

MPGC appeals the application judges conclusion
    on the first three issues. FTPC cross-appeals from the refusal of the
    application judge to order an investigation. The PGT supports FTPCs position on
    the main appeal, but opposes FTPCs cross-appeal seeking an investigation.

[8]

For the reasons that follow, I would allow the
    appeal and dismiss the cross-appeal.

FACTS

[9]

The War of 1812 brought a surge in the
    population of the Town of York in Upper Canada. Up to 1825, Yorks only two
    burial grounds were an Anglican cemetery and a Catholic cemetery. With the
    increase in population, there was a need for a non-denominational cemetery.
    This heralded the birth in 1826 of a six-acre cemetery at Potters Field located
    at the northwest corner of what is now the intersection of Bloor and Yonge streets.
    This was followed by the acquisition of the Toronto Necropolis in the 1850s and
    the acquisition of a 205-acre plot that opened as Mount Pleasant Cemetery in
    1876.

[10]

Over time, those cemetery operations have expanded.
    MPGC now has close to 450 employees and operates ten cemeteries on 1,222 acres
    of land containing the resting place of roughly 600,000 people. Its facilities
    are in Toronto, Vaughan, Pickering, Richmond Hill, Brampton, and Oshawa, and
    include four crematoria, 14 mausoleums and five visitation centres. Other than
    the original $300 raised in 1826 to acquire Potters Field, there has been no
    recourse to government funding or public fundraising in the course of MPGCs
    extensive expansion.

[11]

A more detailed history of MPGC is revealed in
    numerous statutes.

(1)

1826 Act

[12]

In 1826, certain
    inhabitants of the Town of York petitioned the Legislative Council of Upper
    Canada. The petition resulted in
An act to
    authorize certain persons therein named, and their successors, to hold certain
    lands for the purpose therein mentioned
, 1826, Act of U.C. 7 G. 4, c. 21 (the 
1826 Act
).

[13]

The
1826 Act
stated that the
    inhabitants of the Town of York had held meetings to fix a plan to obtain land
    for the purpose of a general burying ground, as well for strangers as for
    inhabitants of the town, of whatever sect or denomination they may be. It also
    stated that arrangements had been made to purchase six acres of land for this
    purpose by means of a private subscription. The petitioners asked the Legislative
    Council to authorize five named individuals, who had been nominated by the
    subscribers as trustees, as well as their successors, to hold the six acres of
    land in a corporate capacity. They also requested that power be given to make
    such rules and regulations as may be necessary.

[14]

The
1826 Act
declared that it was
    lawful for the five named trustees and their successors to buy and hold the six
    acres of land for the aforesaid purpose of a general burying ground, and that
    it was lawful for the trustees, and their successors, to be appointed as
    hereinafter mentioned, to have and to hold the same, to and for the use and
    purpose aforesaid, in perpetuity forever.

[15]

Section II of the
1826 Act
expressly provided
    a mechanism to avoid a failure of succession. If more than two of the trustees
    died, became resident abroad, or became otherwise incapable of acting, inhabitant
    householders of the Town of York could be elected as trustees (to complete the
    number of five trustees) by a vote of the majority of the inhabitant
    householders of the Town of York on the first Monday of January, upon 30 days
    notice in the government Gazette. The six acres to be purchased would
    immediately vest in the new trustees upon their election.

[16]

Section III of the
1826 Act
provided
    that for the time being, the trustees would have the power to make rules and
    regulations for the due management of the said land for the purpose
    aforesaid.

[17]

In the result, although the petitioners had
    sought the right to hold the land in a corporate capacity, this element of the
    petition was not enacted. The land vested in five trustees for the purpose of a
    general burying ground whose successors would be elected by inhabitant
    householders of the Town of York.

(2)

1849 Act

[18]

Next came the 1849
    statute:
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 (the 
1849 Act
).

[19]

Perpetual succession was of evident concern. Two
    of the trustees had died and one was no longer willing to act. The preamble of
    the
1849 Act
noted that the provision in the
1826 Act
for perpetuating
    the Trust thereby created is inconvenient and ineffectual, and it is therefore
    expedient to name new Trustees for the purposes of the said Act, and to make
    better provision for perpetuating the succession of such Trustees. It repealed
    Section II of the
1826 Act
(dealing with the election of trustees) and that part of the first
    section limiting the number of trustees to five, declared certain individuals
    to be trustees under the
1849
    Act
(along
    with the two remaining and willing trustees from the
1826 Act
)
, and
    vested the land in them and their successors. The number of trustees under the
1849
    Act

was fixed at seven.

[20]

The
1849 Act

also introduced a
    new method of electing trustees. If a trustee died or resigned, it was the duty
    of each of the remaining trustees to call a meeting of the remaining trustees and
    elect a replacement from among the inhabitant householders of the City of
    Toronto
[2]
. The
    election would not be valid unless and until a notice of the election had been
    placed in the Canada Gazette. However, if within one month from the notice, the
    majority of the inhabitant householders of the City of Toronto present at a
    public meeting (announced twice in two or more newspapers) agreed to elect any inhabitant
    householder of the City other than the one elected by the trustees, that person
    would supersede the one chosen by the trustees. Thus, public elections were
    maintained in the
1849 Act
but now only served to overturn the trustees selection of a
    successor.

[21]

It is this procedure that the respondents urged
    upon the application judge and which he accepted as governing MPGC today. Put
    differently, the respondents argued, and the application judge agreed, that the
    1849 pioneer procedure for appointing trustees should apply to MPGC nearly two
    centuries later.

[22]

The
1849 Act
also provided
    that the parcel of land held by the trustees would now be called The Toronto
    General Burying Ground. The
1849 Act
therefore
made two major changes:
    it changed the governance by the trustees in whom the land was vested and assigned
    a name to the land.

(3)

1851 and 1855 Acts

[23]

The scheme enacted required repeated legislative
    attention. Under the 1851 statute,
An 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 (the 
1851 Act
), the trustees asked for
    and were granted the right to lease land and to buy more land. (No land was in
    fact acquired under the
1851 Act
.) The
1851 Act
also
    permitted an aggrieved party to sue the trustees for fouling the water,
    empowered the trustees to make regulations for burials, prohibited certain
    interments, and imposed certain enclosure requirements.

[24]

In 1855, the trustees were authorized to close
    the existing burial ground at Potters Field and to purchase a site in the Township
    of York, provided it was not used for any purpose other than a cemetery. The
    land acquired under the 1855 statute,

An Act to enable the Trustees of
    the Toronto General Burying Ground, to close the same, to sell a portion
    thereof, and to acquire other ground for the purposes of the Trust
,
    1855, S.C. 14&15 Vic., c. 146 (the 
1855 Act
), was the Toronto Necropolis,
    located in the north-east of Toronto.

[25]

The year 1867 brought Confederation and the
    Province of Ontario assumed jurisdiction over the cemetery from the former
    Province of Canada.

(4)

1871 Act

[26]

In 1871, the Legislature
    of the young new province enacted the statute that is in issue in these proceedings:
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 to
    amend the Acts relating to the said trust
, 1871, S.O. 34 Vic., c. 95 (the 
1871 Act
). Unlike
    the
1826
and
1849 Acts
, no reference was made to successors in the title.

[27]

The preamble of the
1871 Act
reveals that the
    trustees again made a petition. They reported that they had contracted to buy
    land from the Toronto Necropolis and that it was expedient to buy more. The
    preamble continued:

it is desirable that resident householders of
    the village of Yorkville and of the township of York may be
eligible for
    selection
to fill vacancies as trustees, and that the choice should not be
    limited to resident householders of the city of Toronto; and that it is
    expedient that the said trustees and their successors should be constituted
a
    body corporate
by the name of The Trustees of the Toronto General Burying
    Grounds; and that it is expedient that the provisions hereinafter contained
    should be enacted for the
better management
of the said trust, and
    whereas it is prayed by the said petition that the said trustees shall be
incorporated
and the said deeds confirmed, and the said corporation empowered to hold said
    lands and acquire additional lands for the purposes of the said trust, and that
    the provisions hereinafter contained should be enacted for the
better management
of the said trust[Emphasis added.]

[28]

The Legislature then proceeded to enact the
    following provisions, among others.

[29]

Section 1 of the
1871 Act
expressly
    stated that the seven named individuals and their successors are:

hereby constituted and declared a body,
    corporate and politic, by the name of The Trustees of the Toronto General
    Burying Grounds, and by that name shall have perpetual succession and a common
    seal, and by that name
shall
sue and be sued, plead and be impleaded in all courts whatsoever, and shall
    have all the powers vested in corporations generally by the
Interpretation Act
.

[30]

Section 2 went on to provide:

All the estate, real and personal, now vested
    in or owned or held by the Trustees of the Toronto General Burying Ground is
    hereby vested in and transferred to the said corporation hereby constituted,
    and all the powers and privileges granted to the said trustees by any former Act
    or Acts of the Province of Upper Canada or of Canada are hereby granted to said
    corporation, subject nevertheless, to all the conditions and duties imposed on
    said trustees not inconsistent with the provisions of this Act; and the said
    corporation shall be liable for all the debts, obligations and liabilities of
    the said trustees of the Toronto General Burying Ground.

[31]

Section 3 of the Act vested the lands in the corporation
    and empowered the corporation to hold the purchased land for the purposes of the
    trust.

[32]

Section 4 then stated that Resident
    householders of the village of Yorkville, or of the township of York, shall be
    eligible for selection to fill vacancies as trustees of the said corporation.
[3]


[33]

The corporation was also given power to acquire additional
    lands in s. 5. Section 6 provided that the lands acquired by the corporation
    were to be used exclusively as a cemetery or cemeteries or places for the
    burial of the dead. The corporation could also sell lots to any person or
    persons on such terms and conditions and subject to such by laws of the
    corporation, and at such prices as shall be agreed on, to be used and
    appropriated exclusively for the burial of the dead.

[34]

Section 7 stated that the corporation may enclose,
    lay out, improve and embellish such land in such manner, and may erect such buildings
    thereon, 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. Section 8 went on to state that the lands were not to be
    encumbered by the corporation. Moreover, the cemeteries or burying grounds were
    exempt from all public taxes, rates or assessments under s. 13.

[35]

Section 14 is of particular importance. It stated:

That the said corporation shall appoint a
    secretary and treasurer to the same, with power to dismiss and re-appoint or
    appoint another at pleasure; and are hereby authorized 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, secretary, treasurer and other officers and servants of said
    corporation and the regulation of its affairs.

[36]

The
1871 Act
therefore introduced a
    corporation and perpetual succession into the structure. The parameters of that
    corporate structure lie at the core of the first ground of appeal.

(5)

Interpretation Act

[37]

As mentioned, s. 1 of the
1871 Act
declared the seven individuals a body corporate and politic, which would have
    all the powers generally vested in corporations by the 
Interpretation Act
. The relevant Act then in force was
An Act Respecting the Statutes
, S.O. 1867-1869, c. 1 (the
    
1867 Interpretation Act
)
. Subsection 7(28) stated:

Words making any association or number of persons
    a corporation or body politic and corporate, shall vest in such corporation,
    power to sue and be sued, contract and be contracted with, by their corporate
    name, to have a common seal, and to alter or change the same at their pleasure,
    and to have perpetual succession, and power to acquire and hold personal
    property or moveables for the purposes for which the corporation is
    constituted, and to alienate the same at pleasure; and shall also vest in any
    majority of the members of the Corporation, the power to bind the others by
    their acts; and shall exempt the individual members of the Corporation from
    personal liability for its debts or obligations or acts, provided they do not
    contravene the provisions of the Act incorporating them

[38]

Subsection 7(32) provided that every Act was to
    be construed so as to reserve to the Legislature the power of repealing or
    amending it, and of revoking, restricting or modifying any power, privilege or
    advantage thereby vested or granted.

[39]

Lastly, s. 7(39) stated that the preamble of an
    Act shall be deemed a part thereof intended to assist in explaining the
    purport and object of the Act. Furthermore, every enactment was to be deemed
    remedial and was to receive such fair, large, and liberal construction and
    interpretation as will best ensure the attainment of the object of the Act, and
    of such provision or enactment, according to their true intent, meaning and
    spirit.

[40]

The current
Legislation Act, 2006
,
    S.O. 2006, c. 21, Sched. F, mirrors ss. 7(28), 7(32) and 7(39) of the 1867 statute
    in ss. 7, 64(1), 69 and 92(1).

(6)

Subsequent Acts Dedicated to MPGC

[41]

The years 1876, 1888, 1910, 1925, 1968 and 1977
    saw other Acts which authorized further sales and purchases by the corporation.
    Proceeds of disposition were to be used for the proper purposes of the trust. The
    preamble of the
1876 Act
(
An
    Act to authorize the sale of certain lands by the Trustees of the Toronto
    General Burying Grounds to the City of Toronto
, 1876, S.O. 39 Vic., c. 66)
    spoke of the burial of the dead being the sole purpose for which the lands were
    held and reiterated that the lands were held subject to and for the carrying
    out of certain trusts.

[42]

The
1910 Act
(
An Act respecting the Trustees of
    the Toronto General Burying Grounds
, S.O. 1910, c. 160) again addressed
    the sale of land. The preamble contemplated the amendment of s. 4 of the
1851 Act
dealing
    with enclosure of cemetery lands, but s. 3 of the
1910 Act
in fact repealed
    s. 4 of the
1851 Act
entirely and substituted it with a different provision. The remaining
    relevant 20
th
century statutes authorized the corporation to acquire
    lands in other locations including the Regional Municipalities of Durham,
    Halton, and Peel.

(7)

The
Corporations Act, 1953

[43]

The year 1953 saw the introduction of the
Corporations
    Act, 1953
, S.O. 1953, c. 19, concerning corporations with or without share
    capital. Part III of the statute, respecting corporations without share
    capital, applied to every corporation incorporated by or under a general or
    special Act of the Legislature except where it is otherwise expressly
    provided. Part III therefore applied to MPGC unless the respondents are
    correct in their assertion that the
1849 Act
expressly provided
    otherwise. Subsection 112(1) of the
Corporations Act, 1953
stated that
    [t]he directors of a corporation may pass by-laws not contrary to this Actto
    regulate,(g) the time for and the manner of election of directorsand (j) the
    conduct in all other particulars of the affairs of the corporation.

(8)

Cemetery Legislation

[44]

In 1913, the Legislature passed
An Act
    respecting Cemeteries and the Interment of the Dead
, S.O. 1913, c. 56,
    which defined cemetery to mean and include any land which is set apart or
    used as a place for the interment of the dead, or in which human bodies have
    been buried. This Act was amended in the years that followed. In 1980, for
    example, the Legislature passed the
Cemeteries Act
, R.S.O. 1980, c.
    59, and then revised it in 1989 with
An Act to revise the Cemeteries Act
,
    S.O. 1989, c. 50. The 1989
Cemeteries Act
had a broader definition of
    cemetery as land set aside to be used for the interment of human remains and
    includes a mausoleum, columbarium or other structure intended for the interment
    of human remains. Cemetery services received a broad definition and included in
    respect of a cemetery, such other services as are provided by the owner of the
    cemetery at the cemetery.

[45]

This Act was repealed in 2012 and replaced by
    provisions of the
Funeral,
    Burial and Cremation Services Act, 2002
, S.O.
    2002, c. 33 (the 
FBCSA
), which permits appropriately-licensed
    entities to operate funeral homes and crematoria.

(9) Trustees Conduct

[46]

The respondents rely on the MPGC trustees
    conduct to support their position that the election procedure described in the
1849 Act
continues
    to govern MPGC today. Most notably, notices were placed in the Ontario Gazette
    following the election of a new trustee until 1987, when this practice stopped.
    There is no record that any resident householder of the City of Toronto ever
    sought to hold a public meeting to select a different trustee from that chosen
    by the existing trustees and no public meeting was ever held.

[47]

In 1891, the corporation published a pamphlet
    stating that [t]he 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. References to Acts was
    to the various Acts passed since 1826 down to the present time [being 1891].

[48]

By 1975, the trustees started to describe
    themselves as directors,
[4]
and,
    as mentioned, by 1987, the corporation stopped placing notices in the Ontario
    Gazette. As the application judge noted, s. 283 of the
Corporations Act
, R.S.O. 1990, c. C.38, currently provides that the corporations
    affairs shall be managed by a board of directors howsoever designated, but
    does not require they be designated as directors.

[49]

The application judge found that the by-laws of
    MPGC around 1989 provided for ten directors, each of whom had a maximum of three
    four-year terms.
[5]


[50]

Directors are members of MPGC. Directors receive
    an honorarium, but MPGC does not pay dividends or make other distributions to
    its members. The maximum received for a directors honorarium and meeting
    attendances is in the $25,000 to $35,000 range annually.

[51]

Cremation and other alternative services became
    increasingly popular in the 1980s and MPGC grew concerned that these
    alternatives would cut into its revenues and impact its ability to meet its
    obligations, including its perpetual care obligations. As the appellants
    President, Glenn McClary, stated, the tradition of interring human remains in a
    cemetery was also being reassessed. Now cremated remains are frequently
    scattered in nature or kept at home in a decorative urn. To secure new sources
    of revenue, MPGC decided to offer funeral services as part of its product and
    service offerings. Due to regulations, however, this required a separate
    corporation.

[52]

In 1989, the directors of MPGC incorporated a
    new funeral services corporation named Canadian Memorial Services (CMS), a not-for-profit,
    non-share capital company with a board of directors that more or less mirrored
    MPGCs. MPGC appoints four of CMS directors. CMS has three funeral homes, four
    crematoria, and five visitation centres that are located in MPGC cemeteries. CMS
    pays licensing fees to MPGC, who provides loans to, and receives interest from,
    CMS. As a funeral service provider, CMS also refers potential cemetery clients
    to MPGC. As the application judge found, CMS is effectively a wholly-owned
    subsidiary of MPGC in all but name. CMS long-term objectives are to meet a
    public need for funeral services and to contribute to ensuring the long-term
    financial viability of MPGC.

[53]

In January 1991, the corporation changed its
    name from The Trustees of the Toronto General Burying Ground to
    Commemorative Services of Ontario and then to Mount Pleasant Group of
    Cemeteries in 1997. No dispute is taken as to the authority to affect these
    name changes. For ease of reference, the company has been referred to as MPGC
    throughout these reasons.

(10) Dispute with the PGT

[54]

On July 19, 1991, the PGT requested copies of
    MPGCs financial statements, taking the position that MPGC was a charity and
    relying on the provisions of the
CAA
. MPGCs solicitors, Weir & Foulds,
    responded, denying that MPGC was a charity subject to the
CAA
, and
    referred the PGT to Revenue Canadas written advice that MPGC was not a charity.
    Among other things, MPGCs solicitor observed that pursuant to s. 132(5) of the
Corporations Act
, on dissolution, the net assets of MPGC were to be distributed to
    the members of the company.
[6]


[55]

The PGT did not pursue the matter. MPGC had not
    taken issue with the fact that it was regulated by the Cemeteries Regulation Unit
    and moreover, there were no allegations of any financial impropriety. The
    application judge noted that there was never any serious question of the
    directors of MPGC liquidating the corporation for their own profit. The letter
    sent by MPGCs solicitors referenced the net assets of the corporation and,
    in any event, all or substantially all of the assets of the company were held
    subject to a statutory trust.

[56]

In 1997, as mentioned, the name of the company
    was changed to its current name, Mount Pleasant Group of Cemeteries. That
    year there was a corporate reorganization and another company was established
    to provide funeral services. That company was later renamed Mount Pleasant
    Memorial Services.

(11) 21
st
Century Developments

[57]

In 2006, MPGC wished to create a visitation
    centre at the Mount Pleasant Cemetery. The visitation centre proposed to
    replicate much of what might be found in a traditional funeral home, including
    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. This development
    became a focus of the neighbourhood dispute, and the pleasant descriptor of
    MPGCs peaceful history became less apt.

[58]

In 2006, a group of local ratepayers (referred to
    in the record as the Moore Park Residents Association or the Moore Park
    Ratepayers Association) complained to the PGT about the proposed visitation
    centre and MPGCs assertion that it was a privately-owned commercial cemetery.

[59]

Subsequently, the PGT reiterated that MPGC was a
    charity. An exchange of letters ensued, but the PGT took no further steps.

[60]

Around this time, Humphrey Funeral Home and the
    Moore Park Ratepayers Association applied to court and challenged the establishment
    of a visitation centre on the grounds that it was not an associated use to
    the main use of the cemetery within the meaning of the relevant City of Toronto
    by-law. In March of 2007, the application was rejected in reasons given by
    Harvison Young J. (as she then was). No express reference was made to any of
    the special statutes that had governed MPGC:
Humphrey Funeral Home v. Toronto (City)
(2007)
, 32 M.P.L.R. (4th) 124 (Ont. S.C.). The Court of Appeal for Ontario
    released its reasons upholding the decision and dismissed Humphrey Funeral
    Homes application in November 2007:
Humphrey Funeral Home  A.W. Miles Chapel v. Toronto
    (City)
, 2007 ONCA 828, 40 M.P.L.R. (4th) 126. This
    court agreed with Harvison Young J. that the cemetery is as much about the
    living survivors as it is about the disposition of human remains: at para. 7. The
    visitation centre fell within a use that was associated with a cemetery.

[61]

Construction of the visitation centre began
    shortly afterwards and was completed in or about 2009. It has been in operation
    since that time.

[62]

In the meantime, in 2008, the appellant brought
    and then withdrew an application to be continued under the
Corporations Act
.

[63]

In 2010, in response to correspondence sent by counsel
    for the Moore Park Ratepayers Association to the Premier of Ontario, the Deputy
    Minister of Research and Innovation and Consumer Services responded and stated
    that given the local nature of the dispute, and the fact that there was
    appropriate government oversight of the cemeteries operated by MPGC, the
    government was not considering making any legislative amendments to address the
    issue of the validity of the board of directors.

[64]

As mentioned, in 2012, the
FBCSA

was enacted. In
    his affidavit, MPGCs President explained that the
FBCSA
allowed MPGC
    to simplify its corporate structure as cemeteries were now able to own funeral
    homes and funeral homes were able to operate crematoria. Accordingly, there was
    an ensuing reorganization in which Mount Pleasant Memorial Services surrendered
    its charter and transferred its assets to MPGC.

[65]

In 2013, the respondent FTPC was incorporated by
    some members of the Moore Park Ratepayers Association that had been involved
    in the prior interventions, augmented by others who joined as members. That
    same year, the respondent Ms. Wong-Tam brought a proceeding before the Environmental
    Review Tribunal seeking leave to appeal a decision of the Director of the
    Ministry of the Environment that had permitted an expanded crematorium
    operation at the Mount Pleasant Cemetery. On July 8, 2013, the Environmental
    Review Tribunal rejected her application.

[66]

MPGC is self-sufficient. As of 2014, when Mr.
    McClarys affidavit was sworn, in addition to ownership of its lands and
    buildings, MPGC maintained numerous separate funds, as described by Mr. McClary:

Care and Maintenance (C&M) Trust
    Fund

When MPGC sells an interment right, be it a
    grave, a crypt in a mausoleum or a niche in a columbarium, provincial
    legislation requires that a certain portion of the revenue be deposited in a
    C&M Trust FundThe C&M Trust Fund must be managed by a corporation
    registered under the Loan and Trust Corporations Act or by a Credit UnionHSBC
    Trust Company (Canada) (HSBC) is the trustee for the C&M Trust FundOur
    C&M Trust Fund was valued at $349 million as of March 31, 2014.

Prepaid Trust Fund

When money is received from the sale of a
    product or service that is not being delivered until a date in the future,
    provincial legislation requires that the money be deposited into a Prepaid
    Trust Fund. This trust fund must be managed by a corporation registered under
    the Loan and Trust Corporations Act or by a Credit Union. HSBC is the trustee
    for our Prepaid Trust FundAs of March 31, 2014, our cemetery Prepaid Trust
    Fund was valued at $113.5 million.

Endowment Fund

When families wish to make a provision for
    ongoing special care of their interment right, at a level not provided by the
    regular cemetery maintenance program, they can invest a specific amount in our Endowment
    Fund. This amount will be invested in interest bearing securities. The capital
    can be refunded at any time, and the interest earned each year will go to
    providing the desired special care (for example wreath placement, monument
    cleaning, or special gardening or flower requirements) As of March 31, 2014,
    our Endowment Fund was valued at $3.9 million.

General Fund

After operating expenses and care and
    maintenance contributions are deducted from revenues, any balance is placed in MPGCs
    General Fund. This fund is used to create products and services that meet the
    changing needs of Toronto families; to develop new facilities and enhance
    existing ones; and to secure new lands to meet the needs of the Greater Toronto
    Areas rapidly-growing population. As of March 31, 2014, our General fund was
    valued at $63.4 million.

[67]

MPGC has consistently taken the position that it
    is not a charity. It says it does not act for a charitable purpose and charges
    market and above market rates. In 1977, Revenue Canada confirmed that MPGC was
    not a charity for the purposes of the
Income Tax Act
in force
    at the time.

(12) Government Oversight

[68]

MPGC and CMS are subject to considerable
    government oversight. MPGC and CMS are currently regulated by the Bereavement
    Authority of Ontario as well as by the PGT under the
FBCSA
. A brief
    summary of this oversight, and of the information MPGC and CMS provide to the
    supervising organizations, was also described by MPGCs President.

(A)
    Cemetery Registrar

[69]

A registrar is appointed under s. 3 of the
FBCSA
to administer certain of its provisions. The
FBCSA
requires that any
    information requested by the registrar be provided within the time that the
    registrar specifies, with the information that the registrar requests,
    including at the registrars request, verification, by affidavit or otherwise,
    of any of the information requested: s. 111. MPGCs President stated that MPGC
    files annual reports with the registrar within 90 days of its fiscal year end
    in respect of: (a) Cemetery Activity; (b) the Care and Maintenance Fund; (c)
    the Prepaid Trust Fund; and (d) Audited Financial Statements (when available
    after completion of the audit).

[70]

FBCSA
cemetery
    oversight also extends to: (a) directors, management and sales staff changes; (b)
    licensing and education of cemetery operators, crematorium operators and sales
    representatives; (c) selling and display of caskets; (d) pricing and contracts;
    (e) trust funds; (f) record keeping; (g) construction of interment rights; (h)
    cemetery by-laws; (i) customer complaints; (j) site inspections; and (k)
    information to be available to the public.

[71]

Over the 2010-2011 period, all MPGC cemetery
    sites except Pine Hills in Scarborough were inspected. The MPGC site at Meadowvale
    in Mississauga was inspected twice. Financial records at MPGCs head office
    were also inspected twice.

(B) Board Funeral Services

[72]

CMS is also heavily regulated under the
FBCSA
.
    Sections 8 and 9 require operators to hold a valid licence. In addition, MPGCs
    President explained that funeral oversight also extends to: (a) directors,
    management and licensed staff changes; (b) licensing and education of funeral
    directors and preplanning sales representatives; (c) premises and vehicles; (d)
    selling and display of caskets; (e) pricing and contracts; (f) trust funds; (g)
    record keeping; (h) customer complaints; (i) site inspections and
    investigations; and (j) discipline.

[73]

Prior to 2013, CMS had three licensed funeral
    homes, operating under the name The Simple Alternative. In 2013, the five
    MPGC visitation centres were licensed to CMS and inspections were conducted
    prior to the issuance of licences. Regular inspections were also conducted.

(C) Powers
    of the PGT

[74]

The PGT may require any licensee or trustee to
    provide: (a) audited financial statements for any trust account or trust fund;
    and (b) any information related to trust accounts or trust funds:
FBCSA
,
    s. 58.

[75]

MPGCs financial records are regularly
    inspected. At the time the application was heard by the application judge, MPGC
    cemeteries and visitation centres were described as having been inspected from
    2010 to 2013, which included the inspection of financial records on two
    occasions. As the application judge observed, there were no allegations that
    funds had gone missing or had been misappropriated, nor any basis to conclude
    that the directors had acted in bad faith: at para. 14.

[76]

I will return to the oversight provisions in the
FBCSA
when discussing the third issue relating to a charitable purpose
    trust.

(13) Court Proceedings

[77]

On April 29, 2013 (and then as amended on May 30,
    2014), FTPC applied for a number of declarations and orders. FTPC sought a
    declaration that MPGC continues to be governed by the
1826 Act
, as
    amended by the
1849 Act
, including the provisions in the
1849 Act
relating to the public election of trustees. Accordingly, they sought a
    declaration that the current directors of MPGC were not validly appointed. FTPC
    also sought a declaration that MPGC was incorporated pursuant to the
1871
    Act
for the sole purpose of acting as trustee for the statutory trust
    created in 1826 (what it called the Burying Grounds Trust) and for the
    benefit of the public. In addition, FTPC asked that the Burying Grounds Trust be
    declared a charitable purpose trust within the meaning of the
CAA
, and
    that MPGC be declared a charitable corporation within the meaning of the
CAA
.
    Finally, FTPC sought an order pursuant to s. 10 of the
CAA
that the
    PGT investigate: whether MPGC had conducted its affairs consistent with its
    legal obligations as a trustee; whether MPGC had elected or appointed its
    directors in a manner consistent with the requirements of the
1826
and
1849 Acts
; and whether MPGC had ensured that the Burying
    Grounds Trust was appropriately compensated.

[78]

The application was stated to have been brought
    because MPGC was now denying: (1) that it was a trustee; (2) that its lands and
    assets were subject to a trust; (3) that it was subject to the Special Act incorporating
    it; (4) and that it had any accountability to the public or the province. The
    PGT was named as a respondent to the application. Ms. Wong-Tam was added as an
    applicant in May 2014.

REASONS OF THE APPLICATION JUDGE

[79]

The application judge granted the application
    with the exception of the request for an investigation. He determined that the
    incorporation of MPGC in 1871 neither repealed prior Acts nor made any direct
    provision for the appointment of directors. The provisions for the appointment
    of trustees contained in the
1849 Act
remained the same. As such,
    directors were required to be appointed in accordance with the terms of the
1849 Act
. As
    there had been noncompliance since 1987, the application judge held that all of
    the current directors had been invalidly appointed. Relying on s. 288(4) of the
Corporations Act
, he appointed MPGCs seven most senior directors as trustees and
    ordered the parties to negotiate a protocol (to be approved by him) to govern
    the meeting for the election. The trustees were to place a notice of the
    meeting in the Ontario Gazette. It would then be open to FPTC to call a public
    meeting in accordance with the provisions of the
1849 Act
at which one or
    more inhabitant householders of the City of Toronto could be elected in
    replacement of one or more of the seven trustees named by the application judge.

[80]

The application judge also declared that MPGC was
    a trustee subject to the provisions of the
CAA
, and that the trust
    administered by it was a charitable trust because the operation of a
    non-profit, non-denominational public cemetery qualified as a charitable
    purpose. He further declared that the funding and operation of visitation
    centres and the CMS funeral home business went beyond the scope of the
    statutory trust. As the evidence before him was inconclusive on the current
    scale of operation of crematoria, he was unable to make a determination in that
    regard. Nothing was said on how MPGC was to manage in the interim with all
    these now illegal lines of business.

[81]

The application judge was not satisfied that the
    public interest would be served by ordering an investigation. To use his
    terminology, MPGC was not a runaway train. He stated, at para. 14, that [t]here
    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.

[82]

The application judges reasons were released on
    December 31, 2018. MPGC appealed from that decision. The respondent FTPC
    cross-appealed from the application judges refusal to order an investigation
    under the
CAA
.

[83]

On March 14, 2019, on consent, this court
    granted an order staying the following declarations granted by the application
    judge: (1) that 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
; (2)
    that 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; and (3) that 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.

GROUNDS OF APPEAL

[84]

The appellant relies on three alleged errors of
    the application judge in support of its appeal. It states that the application
    judge (1) erred in his statutory interpretation of the 1800s legislation, and
    in particular, the
1871 Act
; (2) erred in declaring that the operation
    of the visitation centres and funeral homes was outside MPGCs legislative
    objects, which was relief the respondents did not request; and (3) erred in concluding
    that MPGC was a charitable trust (referred to throughout these reasons as a
    charitable purpose trust). The parties agree that a standard of correctness applies
    to each of these grounds.

ISSUE 1: DID THE
    APPLICATION JUDGE ERR IN HIS INTERPRETATION OF THE
1871 ACT
?


(1) Positions of
    the Parties

[85]

The appellant submits that the application judge
    erred by disregarding the fundamental shift to the corporate legal framework
    governing MPGC that was introduced by the Legislature in 1871. The appellant argues
    that the application judge failed to recognize that with incorporation,
    perpetual succession was no longer a concern and that MPGCs governing body was
    given the power to pass by-laws to regulate its affairs, which necessarily
    included governance. The expansion of trustee eligibility requirements in the
    absence of a corresponding change to the voting requirement is consistent with
    this. Moreover, the change to the legislation reflected a legislative intent to
    prioritize efficiency of governance over public oversight.

[86]

The appellant also argues that the scope of the
    by-law making power found in s. 14 of the
1871 Act
gave MPGC full
    authority to elect its directors, an authority that is consistent with general
    corporate statutes in effect around the time of the
1871 Act
, the
    interpretation mandated by the
Interpretation Act
, and the statutory
    principles of harmony and consistency, as well as common sense. It submits that
    the application judges errors in statutory interpretation led to an outcome
    that is inconsistent with the purpose of the 1871 legislation and results in an
    absurdity.

[87]

The respondent FTPC and the PGT dispute that the
1871 Act
reflected a fundamental shift in the legal framework governing MPGC.
    Their position is that the
1849
    Act
established both the number of MPGCs trustees
    (seven) and the manner in which they were to be selected, not the
1871 Act
or any subsequent statutes. The
1849 Act
was not repealed either expressly
    or impliedly; incorporation did not alter the method of selection of the
    trustees; and the creation of a body corporate did not constitute a repeal of
    the prior statutes. The respondent FTPC and the PGT contend that the
1871 Act
provided for the trust to be continued and be bound by all the conditions and
    duties imposed by the prior legislation. Moreover, they submit that MPGCs subsequent
    conduct and publications support this interpretation.

[88]

Before embarking on an analysis of the legal
    effect of the
1871 Act
, it should be emphasized that, consistent with the application
    judges finding, all parties before this court concede that a statutory trust
    was established by the Legislature and no appeal is taken in that regard. Accordingly,
    I do not propose to address that issue.
[7]

[89]

The parties also agree on nomenclature. Under
    the
1826
and
1849 Acts
, the men identified in the
    statutes were trustees who held the land in trust as dictated by the statutes.
    With the introduction of the
1871 Act
, the corporation was the trustee
    and the individual trustees no longer held that position in a legal sense. The
1871 Act
continues to speak of trustees rather than directors, but this is an issue of
    nomenclature rather than legal significance, a fact acknowledged by the
    application judge and by counsel.

(2) Analysis

[90]

The starting point with statutory interpretation
    is Elmer Driedgers description of the modern principle:

Today there is only one principle or approach,
    namely, the words of an Act are to be read in their entire context, in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament: Elmer A. Driedger, The
    Construction of Statutes (Toronto: Butterworths, 1974), at p. 67.

[91]

Both under s. 7(39) of the
1867
    Interpretation Act
and s. 64(1) of the current
Legislation Act
,
2006
, every enactment shall be deemed to be remedial and
    receive such fair, large, and liberal construction and interpretation as will
    best ensure the attainment of the object of the Act.

[92]

The modern principle was adopted by the Supreme
    Court in
Rizzo & Rizzo
    Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21. Justice
    Iacobucci observed that statutory interpretation cannot be founded on the
    wording of the legislation alone: at para. 21. Among other things, he
    considered the purpose of the Act, along with its consequences or effects, and
    also noted that the legislature does not intend to produce absurd consequences:
    at para. 27. See also
Bell ExpressVu Limited Partnership v. Rex
, 2002
    SCC 42, [2002] 2 S.C.R. 559, at para. 26. That decision reiterated the
    presumption of harmony, coherence, and consistency between statutes dealing
    with the same subject matter:
Bell ExpressVu
, at para. 27.

[93]

It is fair to say that the historical Acts in
    issue in this appeal are not models of legislative clarity; rather, they are
    products of their times, times devoid of computers, photocopiers, and ubiquity
    of publication. As historical statutes, they present real interpretative
    challenges.

[94]

Changes to legislation may be effected by
    amendment or express or implied repeal: Ruth Sullivan,
Sullivan on the Construction of Statutes
, 6th ed. (Markham: LexisNexis Canada Inc., 2014) (QL), at para.
    24.30.

[95]

The appellant took the position in oral argument
    that it was not relying on implied repeal and argued that changes to MPGCs
    governance were effected by amendment, as reflected in the title of the
1871
    Act
. In oral submissions, counsel relied on Sullivans commentary on amending
    legislation (found in a chapter of her book entitled Temporal Operation) in
    support of his position. She writes, at paras. 24.7024.72, that in analyzing
    the temporal operation of amendments, the courts look to substance rather than
    form and that the part of the amendment that introduces new law is treated as
    new legislation. Sullivan goes on to state that the part of existing law that
    is not substantively reproduced in the new text is treated as a repeal. It
    ceases to be law and ceases to be in force from the moment the amendment
    operates: Sullivan, at para. 24.71.

[96]

While I accept that the governance of MPGC was
    altered by the
1871 Act
, in this passage, Sullivan is addressing the
    temporal operation of amendments rather than providing a stand-alone
    interpretative principle. Accordingly, I would not place weight, as the
    appellant does, on this passage.

[97]

The appellant also relies on
Montreal v.
    ILGWU Center Inc.
(1971), 1974 S.C.R. 59, in support of its position. In
    that case, the relevant amending Act expressly stated that it was replacing the
    prior Act. From a timing perspective, the part of the prior Act that was
    replaced (i.e., that was not substantively reproduced in the new Act) was treated
    as a repeal. The decision does not stand for the proposition that a substantive
    change requires that all continuing provisions be reproduced, failing which,
    those provisions that are not reproduced are considered to be repealed.

[98]

As FTPC argued, the appellants submission is
    more properly characterized as being based on implied repeal. As a standard of
    correctness applies to statutory interpretation, the appellants
    mischaracterization is not determinative; it is for this court to determine
    points of law:
Orphan Well Association v. Grant Thornton Ltd.
, 2019 SCC
    5, [2019] 1 S.C.R. 50, at para. 125. I see no unfairness as FTPC addressed
    implied repeal in its factum and, in any event, the substance of the appellants
    argument was based on implied repeal and was simply mischaracterized.

[99]

In
R. v. Mercure
, [1988] 1 S.C.R. 234, a
    case relied upon by FTPC, La Forest J. addressed implied repeal at p. 265:

[S]tringent testshave been established to
    warrant a holding that a statute has been impliedly repealed. As the court put
    it in
The India
(1865), 12 L.T.N.S. 316, at p. 316, a prior
    statute is repealed by implication only if the entire subject-matter has been
    so dealt with in subsequent statutes that, according to all ordinary reasoning,
    the particular provisions in the prior statute could not have been intended to
    subsist.

[100]

In
Conseil scolaire francophone de la Colombie-Britannique v.
    British Columbia
, 2013 SCC 42, [2013] 2 S.C.R. 774, also relied upon by
    the FTPC, Wagner J. (as he then was) commented on the holding in
Mercure
,
    stating at para. 44:

[A]n implied repeal has occurred if subsequent
    legislation has occupied the field to such an extent that the court can infer
    that the legislature intended to repeal the earlier statutes. There was no
    mention in
Mercure
of
    a requirement to prove conflict. Both the test for implied repeal and the test
    for implied modification are based on the occupation of the field by subsequent
    legislation.

[101]

A modern statute designed to repeal a prior statute is likely to so
    do explicitly. And, as Sullivan observes at para. 24.39, under current Canadian
    practice, repeal is usually carried out through the enactment of stylized
    provisions.

[102]

Although repeal was clearly a known concept in 1849, as mentioned,
    there was no express repeal here of any parts of the
1849 Act
. Moreover,
    there is a general presumption against implied repeal. That said, the strength
    of that presumption against implied repeal varies according to the context. In
    modern times, when standards of legislative drafting are high, the presumption
    against implied repeal is stronger: Diggory Bailey & Luke Norbury,
Bennion
    on Statutory Interpretation
, 7th ed (UK: Lexis Nexis, 2019), at p. 207.
[8]
In a similar vein, Lord Roskill observed in
Government of United States of
    America v. Jennings and Another

(1982), 75 Cr.

App. R. 367 (H.L.), that earlier cases on implied
    repeal had to be approached and applied with caution, since until
    comparatively late in the last century statutes were not drafted with the same
    skill as today: p. 376.
[9]
.

[103]

Reading the words of the
1871 Act
in their entire context, and
    in their grammatical and ordinary sense harmoniously with the scheme and object
    of the Act, I conclude that the Legislature intended to change the governance
    of MPGC to a corporation with perpetual succession being achieved through the
    enactment of by-laws rather than through the vehicle of an election. The
1871
    Act
occupied the field. Furthermore, a contrary conclusion produces absurd
    results. As such, the 1849 trustee selection process was no longer applicable. I
    reach this conclusion for the following reasons.

(A) Preamble of
1871
    Act

[104]

Originally, the petitioners petitioned the government to hold the
    six acres of land in a corporate capacity. As noted, this was not granted by
    the Legislative Council in the
1826 Act
. The five named individuals
    were to hold the land in trust. They were also given the power, for the time
    being, to make rules and regulations for the purposes described in the
Act

and for the due management of
    the land. In addition, the trustee selection process would prevent the failure
    of such estate in succession.

[105]

In the immediately succeeding statutes dealing with the cemetery,
    the Legislative Council worked with different formulations. By 1871, the Legislature
    had now resolved, as the name of the statute suggests, to Incorporate the Trustees
    of the Toronto General Burying Ground and, among other things, to amend the
    Acts relating to the said trust. The individual trustees were relieved of responsibilities
    that were then vested in the corporation.

[106]

At the time, s. 7(39) of the
1867
Interpretation Act
directed the reader to the preamble of an Act to assist in
    explaining its purport and object. The
1871 Act
s preamble identified
    the following objects:

·

it was expedient that the trustees and their
    successors should be constituted a body corporate;

·

the provisions of the Act were enacted for the
    better management of the trust (repeated twice in the preamble);

·

it was expedient that the trustees have the
    power to acquire additional lands; and

·

it was desirable for the residents of the
    village of Yorkville and the Township of York to be eligible for selection to
    fill vacancies as trustees, and the choice should not be limited to residents
    of the City of Toronto.

[107]

The application judge did not focus on all elements of the preamble
    (and particularly the better management and body corporate objects)which
    assisted in explaining the purpose of the
1871 Act

and hence failed to give effect to the
    Acts purpose. The public election component of the
1849 Act
was
    subsumed and replaced by the vehicle of incorporation which provided for
    perpetual succession, the factor to which I will now turn.

(B) Perpetual Succession as an Object

[108]

In addition to the direction given by the preamble, the language of
    the
1871 Act
reflects a legislative intent to establish a corporation, with the
    individuals in whom the lands had previously been vested now being constituted
    and declared a body, corporate and politic. Thus, s. 1 of the Act recognized
    that perpetual succession was achieved and s. 2 stated that all property
    previously vested in the trustees was vested and transferred to the corporation. 
    Incorporation now ensured perpetual succession, and this object of the
1849 Act,
described
    in that Acts preamble, was therefore rendered unnecessary. Contrary to the
    application judges assumption, there was nothing in the legislation that
    suggested any public oversight concerns: see para. 105 of the application
    judges reasons. Rather, the
1849 Act
suggested a concern with
    perpetual succession, a concern that was eliminated with incorporation in 1871.

(C) Better Management as an Object

[109]

Recall too that the preamble of the
1871 Act
repeatedly
    stated that the provisions hereinafter contained were enacted for the better
    management of the said trust. These provisions would necessarily include s. 14
    on governance, a subject I will now address.

[110]

Importantly, the
1871 Act
substituted a new corporate regime
    for the prior regime. Incorporation represented a fundamental shift in the
    trusts capacity, persona and operations. This new regime included replacement
    provisions for corporate governance, specifically in s. 14, where the corporation
    was granted authority to pass by-laws for the management of its property and
    for the regulation of its affairs. In
Ontario Teachers Federation v. Ontario Secondary
    School Teachers Federation et al.
, 2002 CanLII
    41933 (Ont. C.A.), leave to appeal refused, 2003 CarswellOnt 1279 (S.C.C.), this
    court interpreted the term affairs of a corporation expansively and
    determined that it encompassed the governance of a corporation: at para. 31.

[111]

In the case before us, by giving the corporation this authority, the
    Legislature intended The Trustees of the Toronto General Burying Grounds to
    address its own governance.

[112]

The evolution of the statutory scheme reflects the Legislative
    Councils emphasis on efficiency, convenience, and enhanced management of the
    trust. The fledging colonys
1826 Act
provided for direct democracyall
    inhabitant householders of the Town of York could vote to replace a trustee who
    had died, became resident abroad, or was incapable of acting. In 1849, it was
    recognized that this method to ensure perpetual succession was inconvenient
    and ineffectual and Trustees were given the power of selection subject to
    notice and further potential for a public election. With a growing population,
    1871 demanded further change and a need to ensure the better management of
    the trust. Hence the introduction of the efficiency of incorporation and the
    demise of a system of direct democracy for the governance of Torontos
    non-denominational cemetery. The directors/trustees would be elected not at
    public municipal elections but pursuant to the by-law powers anchored in the
1871 Act
.

(D) Context and Other Comparable
    Statutes

[113]

In addition to the aforementioned context, other statutes of the era
    provided for governance by directors acting under the authority of by-laws: F.W.
Wegenast
,

The Law
    of Canadian Companies
(Toronto: Burroughs and Company [Eastern] Limited,
    1931), at p. 22.

[114]

I would also observe that the
Corporations Act, 1953
continued the corporate model featured in the
1871 Act
. In that
    statute, Part III applied to every corporation without share capital
    incorporated by or under a general or special Act of the Legislature except
    where it was otherwise expressly provided. Upon incorporation, each applicant
    became a member and the members would elect the directors. Section 112 of the

Corporations Act
,
1953
provided that the directors of a corporation could
    pass by-laws not contrary to the Act for, among other things, the time for and
    the manner of election of directors and the conduct in all other particulars of
    the affairs of the corporation: ss. 112(g) and (j).

[115]

The application judge determined that the provisions of the
Corporations
    Act, 1953
did not render the specific provisions of the
1849 Act
inoperative. However, given that the 1849 election provisions had been spent by
    the
1871 Act
, there was no such need. Rather, the
Corporations Act
,
1953
,
    served to reiterate and provide more detail and clearer particulars on the role
    of directors within the construct of a corporation. This is in keeping with the
    presumption of coherence in enactments of the same legislature: Pierre-André Côté,
Interpretation of Legislation in Canada
, 4th ed. (Toronto: Carswell,
    2011), at p. 365.

[116]

The respondents place weight on the notices placed in the Ontario
    Gazette and publications in the years following the
1871 Act
.
    However, while I accept that subsequent conduct may provide some insight, it
    should not determine the interpretation of a statute. Indeed, the respondents
    concede the non-determinative nature of subsequent documents and conduct.

(E) Language of the
1871 Act

[117]

The
1871 Act
also confirmed that the corporation would have all the powers
    vested in corporations generally by the
1867
Interpretation Act
.  This latter statute provided for perpetual succession in a
    corporation, thereby eliminating the need for the municipal elections described
    in the 1826 and 1849 statutes.

[118]

This interpretation does not ignore s. 2 of the
1871 Act
,
as
    asserted by the respondents. That section stated that all the powers and
    privileges granted to the trustees by any former Act of the Province of Upper
    Canada or Canada were granted to the corporation subject to all the conditions
    and duties imposed on the trustees not inconsistent with the
1871 Act
. Section
    1 gave the new corporation all the powers vested in corporations generally by
    the
1867
Interpretation
    Act
. The public election process was inconsistent
    with the corporate governance model, a model instituted to achieve better
    management of the trust, and governance being an obvious recurring issue for
    the Legislature. The conditions or duties of concern related not to
    governance but to the trust and the nature of the trust property being cemeteries
    and burial grounds. The
1871
    Act
s reference in s. 14 to the by-laws not being
    inconsistent with any existing law is similarly not fatal to the appellants
    position as the public election process was eliminated due to incorporation. Furthermore,
    with both subsections, the Legislature could have readily referred to the
    specific statutory provisions it wished to retain rather than using the generic
    language it did, language which, if interpreted as proposed by the respondents,
    would defeat the better management purpose of the
1871 Act
.

(F) Consequences and Effects

1.
Eligible Voters

[119]

There is also s. 4 of the
1871 Act
. It rendered resident
    householders of the village of Yorkville or of the Township of York eligible
    for selection to fill vacancies as trustees of the corporation. However,
    nowhere are these resident householders accorded a power to vote in any
    election. It would be anomalous if the
1849 Act
continued to
    govern appointment of trustees as submitted by the respondents. This would mean
    that householders from the village of Yorkville and Township of York would be
    eligible for selection as trustees but, unlike householders of the City of
    Toronto, would have no ability to participate in any vote. The power to vote
    would be confined to resident householders of the City of Toronto as prescribed
    by the
1849 Act
. The emphasis in the
1871 Act
on eligibility for selection
    undermines the submission that the eligibility to vote provisions of the
1849 Act
survived.
    The anomalous outcome associated with the public elections model advanced by
    the respondents supports the conclusion that the structure intended by the
1871 Act
was a
    governance model based on corporate status rather than public elections.

2.
Absurd Procedure and
    Results

[120]

Interpreting the statutes as proposed by the respondents and as
    accepted by the application judge would require the following steps to elect a
    replacement trustee:

·

notice in the Ontario Gazette;

·

two announcements of a public meeting in two
    newspapers;

·

a public meeting held within one month of the notice
    in the Ontario Gazette if requested;    and

·

an election by the majority of the inhabitant
    householders of the City of Toronto present at the meeting.

[121]

In my view, the consequences of the interpretation advocated by the
    respondents would be impractical and absurd. The application judge found that
    there have been no validly appointed trustees since the corporation ceased
    posting notices in the Canada Gazette over thirty years ago. The public
    elections model would demand an election apparatus far removed from any in the
    contemplation of the legislators of 1849. Moreover, the public elections model
    would result in City of Toronto inhabitant householders being the only eligible
    electors for cemeteries extending to the Regional Municipalities of Durham,
    Halton and Peel, among others. There is also a real issue as to who would be
    encompassed by the term inhabitant householders and as to the territorial
    limitations of the City of Toronto descriptor. The corporate structure erased
    this cumbersome (and no doubt costly) process. Moreover, the procedure eludes
    implementation. Even if one were to accept that voters from the village of
    Yorkville and the Township of York were precluded from voting, the definitional
    questions raised on the meaning to be ascribed to those former community
    entities and inhabitant householders are unanswerable.

[122]

The public election model was uncovered by legal sleuthing close to
    two centuries after the statutes in issue had been enacted. It did not emerge
    as a result of any societal imperative or injustice. And, the Ontario
    Government advised counsel for the Moore Park Ratepayers Association that the
    Government saw no need to amend the legislation.

[123]

The Legislature is presumed to have intended its statutes to apply
    in a way that is not contrary to reason and justice. This presumption has been
    expressed in a variety of ways. In
Berardinelli v. Ontario Housing Corp.
(1978)
, [1979] 1 S.C.R. 275, Estey J. explained at p. 284:

When one interpretation can be placed upon a
    statutory provision which would bring about a more workable and practical
    result, such an interpretation should be preferred if the words invoked by the
    Legislature can reasonably bear it.

[124]

In
Rizzo
, at para. 27, the Supreme Court addressed
    absurdity in interpretation. Iacobucci J. explained that:

an interpretation can be considered absurd if
    it leads to ridiculous or frivolous consequences, if it is extremely
    unreasonable or inequitable, if it is illogical or incoherent, or if it is
    incompatible with other provisions or with the object of the legislative
    enactment [citation omitted]. Sullivan echoes these comments noting that a
    label of absurdity can be attached to interpretations which defeat the purpose
    of a statute or render some aspect of it pointless or futile [citation
    omitted].

[125]

In my view, the purpose, scheme and legislative intention all
    support the conclusion that the
1871 Act
heralded a new corporate regime. In
    maintaining adherence to the 1849 electoral governance structure, the
    application judge did not give effect to the change in the legal status of the
    trustees and their evolution into a corporation, a change that reflected a new governance
    model. The application judge expressly identified those sections of the Act he
    considered to be relevant but did not consider all the detail of the
1871 Act
s
    preamble, and in particular, the better management object. Based on the
    provisions of the
1867
Interpretation Act
, the preamble formed part
    of the statute. He did not wrestle with the changed legal status of the trustees
    and the change of purpose that was incorporated into the Acts title. Moreover,
    the object of better management had to be referable to the preceding statuteput
    differently, the 1871 management model was expressly designed to be better than
    that contained in the
1849
    Act
, an Act dedicated to an election model.

[126]

Moreover, the
1871 Act
should be interpreted in a dynamic
    manner applied to present circumstances and not in a manner that is
    inconsistent with the legislative intent or that produces impractical,
    unworkable, anomalous and absurd results. Absurd interpretations are presumed
    not to be intended. (See also:
Paul v. The Queen
, [1982] 1 S.C.R. 621,
    at pp. 662-664;
Re Vabalis
, 2 D.L.R. (4th) 382 (Ont. C.A.)). I
    conclude that with the enactment of the
1871 Act
, the Legislature
    intended to displace the public election model, and that the application judge
    erred in concluding otherwise.

[127]

I would allow this ground of appeal. The
1871 Act
permits an interpretation that both reflects the legislative intent at the time
    and permits a governance model untethered from pioneer electoral practices.

ISSUE TWO: ARE THE
    VISITATION CENTRE AND FUNERAL HOME OPERATIONS OUTSIDE OF MPGCS LEGISLATIVE
    OBJECTS?

[128]

To recap, the
1826
    Act
provided that the land was for a general
    burying ground. The
1871
    Act
stated that the lands were to be used
    exclusively as a cemetery or cemeteries or places for the burial of the dead.

[129]

The application judge found that the terms of the trust prohibited the
    use of MPGCs lands for anything other than the operation of a public cemetery
    for the burial of the dead. He granted a declaration that [t]he funding and
    operation of visitation centres and the CMS funeral home business is beyond the
    scope of the existing statutory trust administered by MPGC: at para. 164. He
    reasoned that in the 19
th
century, there would have been a clearly
    understood difference between burial of the dead and preparation of the dead
    for burial, the former being the responsibility of cemeteries and the latter of
    undertakers, funeral homes, or families. On the other hand, he observed that statutes
    are considered to be always speaking. Using burial of the dead as the defining
    requirement, he concluded that visitation centres and the funeral home business
    did not qualify. He declined to make any finding or declaration on crematoria
    because he did not have sufficient evidence on the history of cremation in
    Ontario and its regulation: at paras. 156-157.

(1) Positions of the
    Parties

[130]

The appellant begins by arguing that none of the respondents claimed
    the relief granted, namely a declaration that the use of cemetery funds to
    acquire and capitalize CMS and the operation of visitation centres and funeral
    homes on the cemetery lands is beyond the objects of the trust. It also submits
    that the application judge did not advert to the correct test and applied an
    unduly restrictive interpretation of MPGCs objects. These objects should have
    been construed purposively. He disregarded the evidence on the rational and
    close relationship between the cemetery business and the visitation centre and
    funeral home operations, and ought to have deferred to the board of directors
    whose decisions are entitled to deference under the business judgment rule.

[131]

The PGT respondent submits that the issue of the operation of these
    other businesses had been raised in the context of the investigation requested
    by FTPC. It emphasizes that the issue of whether MPGC was authorized to carry
    on the funeral home business was raised in the PGTs factum before the
    application judge. The PGT also submits that the application judge applied the
    correct test. MPGC only has the powers expressly or impliedly granted by
    statute, and the
1871 Act
provided that it was to use the lands exclusively as a cemetery or
    cemeteries or places for the burial of the dead.

[132]

The FTPC respondent states that there was no legal basis for the
    trustees to disregard the express terms of a statutory trust. The object of the
    trust was to provide a place for people to be buried, not to prepare people for
    burial. The
1871 Act
expressly requires that trust land be used exclusively as a
    cemetery or cemeteries or places for the burial of the dead. Subsequent Acts
    were consistent with that purpose. Moreover, FTPC notes that until repealed in
    2012, the former
Cemeteries
    Act
did not include funeral home services in the
    definition of cemetery services. Lastly, it submits that the appellants reliance
    on the business judgment rule is a new argument, and that nevertheless, the
    business judgment rule does not shield directors from improper conduct and
    potential breaches of duty.

(2) Analysis

(A) Did the Respondents Claim the
    Declaratory Relief Granted?

[133]

I start by examining the respondent FTPCs Amended Notice of
    Application to ascertain whether there is any basis for the appellants first
    argument. It is the case that there is no mention in FTPCs Amended Notice of
    Application of the declaratory relief the application judge granted with
    respect to the funeral homes and visitation centres. Nor are they the focus of the
    11 pages of enumerated grounds for the application.

[134]

The PGT did not issue a separate Notice of Application so reliance
    must be placed on the relief sought by FTPC.

[135]

In
Rodaro v. Royal Bank of Canada
, 2002 CanLII 41834 (Ont.
    C.A.), at paras. 60-61, Doherty J.A. explained that quite apart from fairness
    concerns associated with a new theory of liability advanced at trial, courts
    rely on the adversarial process to get at the truth. It is fundamental to the
    litigation process that lawsuits be decided within the boundaries of the
    pleadings. As Labrosse J.A. said in
60635 Ontario Limited v. 1002953
    Ontario Inc.
, 1999 CanLII 789 (Ont. C.A.), at para. 9:

[T]he parties to a legal suit are entitled to
    have a resolution of their differences on the basis of the issues joined in the
    pleadings. A finding of liability and resulting damages against a defendant on
    a basis that was not pleaded in the statement of claim cannot
    stand.   It deprives the defendant of the opportunity to address that
    issue in the evidence at trial.

[136]

The issue of the operation of the visitation centres and funeral
    home businesses arose in the context of FTPCs request for an investigation by
    the PGT as to whether the appellant had complied with its legal obligations as
    a trustee. As the appellant stated at para. 64 of its factum filed before the
    application judge, FTPC asserts that MPGCs use of its lands and funds with
    respect to visitation centres and [CMS] is inconsistent with the purpose of
    the [1826 Trust]. FTPC offered eight grounds in support of its request for an
    investigation, three of which related to the objects of the trust and whether
    they were being honoured. One of these was that MPGCs use of its lands and
    funds with respect to visitation centres and CMS was inconsistent with the
    purpose of the
1826 Act
. While not expressly pleaded as requested
    declaratory relief, certainly the appellant could not be said to have been
    caught totally by surprise. The issue of the operation of the funeral
    businesses, the visitation centres, and crematoria arose out of the request for
    an investigation as to whether the appellant had complied with its legal
    obligations as a trustee.

[137]

However, there is a material difference between the issue being
    raised in the context of a request for an order for an investigation by the PGT
    and a request for a declaration that the operation of the visitation centres
    and the CMS funeral home business are beyond the scope of the trust.

[138]

The language of s. 10 of the
CAA
is flexible. Subsection
    10(3) states:

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 PGT to
    make such investigation as the PGT considers proper in the circumstances and
    report in writing thereon to the court and the Attorney General.

[139]

Thus an investigation must first examine the allegation of
    illegality. In contrast, a declaration pronounces on the illegality of these
    operations.

[140]

It is also noteworthy that the application judge acknowledged that
    he had an inadequate evidentiary foundation to render a decision on the issue
    of crematoria. Had declaratory relief been sought on the legality of the three
    impugned business lines of the appellant, presumably the evidentiary record
    would have been more extensive. This is particularly so given that at least
    some of the business lines, including the visitation centre at Mount Pleasant
    Cemetery, are fully operational.

[141]

I would allow the appeal on the second issue on this ground alone. That
    said, I also am of the view that this ground of appeal should succeed on its
    merits.

(B) MPGCs Objects

[142]

Section 63 of the
Legislation Act
,
2006
provides
    that the law is always speaking, as did its predecessor, the
1867
Interpretation
    Act
, in s. 6(1). Citing this provision in the 1970 version of the
    Ontario
Interpretation Act
,
Estey J.A. (as he then was) in
Cash
    v. George Dundas Realty Ltd.
, 40 D.L.R. (3d) 31 (Ont. C.A.), affd [1976]
    2 S.C.R. 796, succinctly captured this point: [w]e are now concerned only with
    applying the statute according to its plain meaning in the light of the current
    practices and standards of the community: at p. 38. More recently, as Sharpe
    J.A., writing for this court in
Hilson v. 1336365 Alberta Ltd.
, 2019
    ONCA 1000, 148 O.R. (3d) 609, stated at para. 28:

Fourth, we do not accept the submission that
    the appellants contention is supported by the principles of statutory
    interpretation. The argument that when interpreting the word instrument we
    should rigidly adhere to the specific problem that motivated its enactment
    would be contrary to the
Interpretation Act
,
R.S.O. 1990, c. I.11, s. 4: The law
    shall be considered as always speaking and, where a matter or thing is
    expressed in the present tense, it is to be applied to the circumstances as
    they arise, so that effect may be given to each Act and every part of it
    according to its true intent and meaning. This direction should be read
    together with s. 10 that all statutes shall be deemed to be remedial ... and
    shall accordingly receive such fair, large and liberal construction and
    interpretation as will best ensure the attainment of the object of the Act
    according to its true intent, meaning and spirit. See also Ruth Sullivan,
Statutory Interpretation
, 3rd ed.
    (Toronto: Irwin Law, 2016), at pp. 120-1. Unless the language of an enactment
    compels us to do so, we should avoid interpreting legislation in a way that
    produces impractical and unjust results.

[143]

This issue was also canvassed by this court in
Ackland v. Yonge-Esplanade Enterprises Ltd.
(1992), 10 O.R. (3d) 97 (C.A.). There the court
    asked whether the correct presumptive approach to statutory interpretation is an
    historical one or an updating or ambulatory one. Put differently, the court
    considered whether an Act should be interpreted as a fixed-time Act or an
    on-going Act. In that case, Morden A.C.J.O. quoted the following excerpt from
    Sir Rupert Cross,
Statutory
    Interpretation
, 2nd ed. (London: Butterworths,
    1987), at p. 50:

But the proposition that an Act is always
    speaking is often taken to mean that a statutory provision has to be considered
    first and foremost as a norm of the current legal system, whence it takes its
    force, rather than just as a product of an historically defined Parliamentary
    assembly. It has a legal existence independently of the historical
    contingencies of its promulgation, and accordingly should be interpreted in the
    light of its place within the system of legal norms currently in force. Such an
    approach takes account of the viewpoint of the ordinary legal interpreter of
    today, who expects to apply ordinary current meaning to legal texts, rather
    than to embark on research into linguistic, cultural and political history,
    unless he is specifically put on notice that the latter approach is required.

[144]

Similarly, Côté states at p. 226:

But merely because the meaning of legislation
    at the time of its enactment must be respected in no way suggests that the
    statutes effect is confined to material or social facts or events then
    existing. It is necessary to distinguish the meaning of a term from the things
    that may be included in its ambit.

An enactment dated January 15, 1980 dealing
    with automobiles will obviously apply to cars built in 1981: the law is ever
    commanding; and whatever be the sense of the verb or verbs contained in a
    provision, such provision shall be deemed to be in force at all times and under
    all circumstances to which it may apply. The guideline favouring the common
    meaning at the time of adoption does not mean that all terms in all statutes
    must always be confined to their original meanings. Broad statutory categories
    are often held to include things unknown when the statute was enacted.

[145]

Although the parties focused on the elasticity of MPGCs corporate objects,
    the real question is whether the objects of the trust permit the operation of
    the two of three additional lines of business that the application judge ruled
    upon and which are in issue. Certainly the power to operate a funeral home or
    visitation centre was not expressly conferred on MPGC. However, in my view,
    that power is included within the ambit of cemeteries or places for the burial
    of the dead. In this regard I make three observations:

[146]

First, the
1826
    Act
spoke of the trust object being a general
    burying ground. The
1871
    Act
stated that lands acquired were to be used
    exclusively as a cemetery or cemeteries or places for the burial of the dead.
    The evidence before the application judge was that in the late 1980s, cremation
    began to emerge as an increasingly popular alternative to traditional burial
    services. This placed financial pressure on MPGCs ability to meet its
    perpetual care obligations. Put differently, MPGC had to ensure that its
    obligations to those who were dead and buried in the ground could be met. The crematoria,
    visitation centres, and funeral homes, which provide ancillary services, were
    operated both in furtherance of the better management of the trust but also in
    keeping with the statutory trust objects.

[147]

Secondly, this changed environment is reflected in the Legislatures
    enactment of legislation that expressly permitted cemeteries to operate
    crematoria and funeral homes. Permitting the ancillary operations is in keeping
    with the principle of statutory coherence and a remedial interpretation.

[148]

Thirdly, treating these ancillary operations as incidental to the
    cemetery aligns with this courts decision in
Humphrey Funeral Home
.
    Although admittedly dealing with the application of a by-law, this courts
    holding from that case is apposite here. The operation of visitation centres
    and funeral homes are associated uses of operating the cemetery.

[149]

For these reasons, I would allow this ground of appeal on both bases
    advanced by the appellant.

ISSUE 3: IS MPGC A
    CHARITABLE PURPOSE TRUST?

[150]

The
    third issue is whether the MPGC trust is a charitable purpose trust subject to
    the provisions of the
CAA
(for ease of
    discussion, I will refer to MPGC for the remainder of this section rather
    than the MPGC trust). The significance of this designation is at a minimum
    twofold. First, s. 10(1) of the
CAA
provides:

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. [Emphasis added.]

[151]

Second,
    as indicated, s. 10(3) of the
CAA
provides
    that the court, if of the opinion that the public interest would be served by
    an investigation of the matter alleged in an application, may make an order
    directing the PGT to conduct an investigation as the PGT considers proper in
    the circumstances. As mentioned, the PGT resisted and continues to resist any
    investigation of MPGC.
[10]

[152]

The
    application judge held that MPGC is a charitable purpose trust. He noted that
    s. 1(2) of the
CAA
provided that a corporation
    incorporated for a religious, educational, charitable or public purpose shall
    be deemed to be a trustee within the meaning of the Act. He also noted the
    broad agreement of the parties that the activities of MPGC are intended to
    benefit the public. Turning to the case law, the application judge observed
    that the limited jurisprudence supported the conclusion that a cemetery pursues
    a charitable purpose.
Applying Re Oldfield Estate (No. 2)
,
    [1949] 2 D.L.R. 175 (Man. K.B.)
and
Scottish Burial Reform and Cremation
    Society v. Glasgow Corp.
, [1967] 3 W.L.R. 1132 (H.L. Scotland), he
    found that the operation of a non-profit, non-denominational public cemetery
    qualified as a charitable purpose.

[153]

For the reasons that follow, I disagree with the application judges
    conclusion. In my view, MPGC is not a charitable purpose trust and is therefore
    not subject to the
CAA
.

(1) Positions of the Parties

[154]

The appellant submits
    that the application judge erred in assuming that MPGCs activities were charitable
    because MPGC provided a benefit to the public. It argues that MPGC is not a
    charitable trust for three principal reasons: (i) this was the conclusion of
    the CRA; (ii) MPGC charges market or above market rates in keeping with rates
    charged by for-profit cemeteries; and (iii) 70 per cent of non-denominational
    cemeteries in Ontario are not considered to be charities. The appellant submits
    that the application judge erroneously interpreted and relied on
Scottish Burial and Re Oldfield
.
The evidence did not support the
    application judges conclusion and, in any event, MPGC is already highly
    regulated.

[155]

The respondent FTPC
    submits that the only available case law, which includes
Scottish
    Burial and Re Oldfield
, supports the application judges conclusion
    that operating a non-denominational cemetery may constitute a charitable
    purpose. The respondent FTPC also notes that the Supreme Court has held that a
    charitable organization may operate a commercial enterprise, so long as the
    enterprise serves as a means of accomplishing the purposes of the organization,
    rather than an end in itself:
Vancouver
    Society of Immigrants & Visible Minority Women v. Minister of National
    Revenue
, [1999] 1 S.C.R. 10, at para. 60 (per Gonthier J.s
    dissenting reasons).

[156]

The
    PGT states that the application judge did recognize that the mere existence of
    a public benefit is not enough to qualify an activity as charitable. The PGT
    highlights that MPGC has had a charitable character and purpose from inception,
    and the factors relied upon by the appellant are not persuasive: CRAs position
    is not determinative; charges for commercial services do not preclude
    charitable status; and other non-denominational cemeteries may not have applied
    for charitable registration under the
Income Tax Act
, R.S.C. 1985, c. 1 (5th supp.) (the ITA).
    This does not mean that they would not qualify as charities at common law. The
    PGT also argues that
Scottish
    Burial
is not so narrow in scope as to hold that only burial reform
    and cremations are charitable.

(2) Analysis

[157]

The
    origin of the contest in this case has little to do with the traditional lens
    through which a request for a charitable designation often arises. Typically,
    the contextual framework for such a request is income tax based. In
Vancouver Society
, Gonthier J.,
    in dissent, described the considerable privileges that attach to charitable
    status. Organizations seek the ability to generate donations that produce
    charitable receipts, which in turn justify a deduction from income so as to
    achieve a reduced tax exposure. In that same decision, Iacobucci J, writing for
    the majority, also commented on the tremendous tax advantages and the
    consequent loss of revenue to the public treasury that arises from a charitable
    status designation. In
A.Y.S.A. Amateur Youth Soccer Assn.
    v. Canada Revenue Agency
, 2007 SCC 42, [2007] 3 S.C.R. 217,
    Rothstein J. observed, at para. 6, that associations that qualify as non-profit
    organizations under the
ITA
, but not as
    registered charities, pay no tax on income but cannot issue tax receipts to
    donors.

[158]

As
    with the
CAA
, the
ITA
relies on the common law definition of charity, which is subject to incremental
    change as the common law adapts to societal change:
A.Y.S.A.
,
    at para. 8. Rothstein J. explained that [u]nless legislation provides
    otherwise, it will be for the courts, through the jurisprudence, to determine
    what is or is not a charity for legal purposes: at para. 8.

[159]

In this case, the issue of charitable status has already been
    canvassed with the Minister of National Revenue, and in 1977, Revenue Canada
    communicated its advice that MPGC was not a charity for tax purposes. MPGC does
    not solicit funds and is entirely self-sufficient. The income tax context is totally
    absent from this case. Furthermore, the
1871 Act
itself provided that
    the said cemeteries or burying grounds shall be, and are hereby declared
    exempt from all public taxes, rates or assessments.
[11]

[160]

Here, the charitable
    status designation is sought so that the respondent FTPC can avail itself of
    the provisions of the
CAA
and obtain an order
    that MPGC be investigated by the PGT. However, as already discussed, MPGC is heavily
    regulated under the Bereavement Authority of Ontario, the
FBCSA
,
    and its regulations. So, by way of example, the PGT may require a funeral
    operator such as MPGC to provide audited financial statements on any trust
    account or trust fund that is required to be established under the
FBCSA
. Upon receiving a written direction from the PGT,
    a person who is required under the
FBCSA

to establish a trust fund or hold money in trust shall
    apply to the Superior Court of Justice to pass accounts. MPGC must also have
    appropriate
licences
for its
operations
,
    maintain certain trust accounts, provide certain audited financial statements,
    maintain certain records, and report certain changes to the Registrar under the
FBCSA
. The
FBCSA
also provides for a separate complaint and inspection procedure. No charitable
    designation is required for any of this.

[161]

All this is to say
    that the framework within which the issue of charitable status arises in this
    case presents a very different context.

(A)
    Statutory Trust

[162]

As conceded by counsel
    for the appellant, and, in any event, as found by the application judge, the
    appellant is the trustee of a statutory trust. The parties submissions on this
    third ground of appeal focused on the definition of charitable purpose under
    the common law. However, all parties concede that MPGC is a statutory trust and
    there is no appeal of that issue.

[163]

A
    statutory trust, as the name implies, is a creature of statute:
The
    Guarantee Company of North America v. Royal Bank of Canada
, 2019 ONCA 9,
    144 O.R. (3d) 225, at para. 18. Being a creature of statute, a statutory trust
    does not have to fulfill the requirements of the common law of trusts:
British
    Columbia v. Henfrey Samson Belair Ltd.
, [1989] 2 S.C.R. 24;
Guarantee
,
    at paras. 36, 47. Indeed, the authors of
Oosterhoff on Trusts
suggest
    that statutory trusts are generally imposed in the absence of at least one of
    the three certainties of trust law (certainty of intention, subject matter, and
    object): A.H. Oosterhoff, Robert Chambers & Mitchell McInnes,
Oosterhoff
    on Trusts: Text, Commentary and Materials
, 8th ed. (Toronto: Carswell,
    2014), at p. 29. As noted by the Supreme Court, the provincial governments may
    define trust as they choose for matters within their own legislative
    competence:
Henfrey
, at p. 35.

[164]

These
    authorities indicate that a statutory trust is a flexible device. In
XMCO
    Canada Ltd., Re
, 1991 CarswellOnt 161 (C.J.), for example, Killeen J.
    described it as expansive and having a special form: at paras. 18, 20. (See
    also:
Guarantee
, at paras. 50, 79;
Henfrey
, at pp. 34-35.) As
    such, and being a creature of statute, a statutory trust may be altered by the Legislature.

[165]

Statutory
    trusts are a difficult fit with charitable purpose trusts. A statutory trust is
    a creature of statute and clear statutory language reflecting a legislative
    intention to create a charitable purpose trust would be expected. I see no such
    language in any of the relevant Acts. In this regard, it is telling that the Legislature
    did not use the word charitable or charity, even though the modern concept
    of charities dates back to the 17
th
century
Statute of Elizabeth
.
    One feature of a statutory trust is that, as a creature of statute, it can be
    changed by the Legislature. No party in this case contends that the Legislature
    could not change further the legislation affecting MPGC.

[166]

Statutes
    are to be read as being coherent: Sullivan, at para. 11.2. The
CAA
supplements the courts inherent jurisdiction to supervise the activities of
    charitable organizations:
Asian Outreach Canada v. Hutchinson
, 1999
    CarswellOnt 1794 (S.C.), at para. 26. As noted by van Rensburg J. (as she then
    was) in
Friends of Camp Aneesh v. Girl Guides of Canada
, 2012 ONSC
    6855, at para. 25, the
CAA
creates machinery and provides procedures
    and does not significantly extend the jurisdiction of the Court over the
    matters to which it refers. In
Re Centenary Hospital Association

(1989),
    59 D.L.R. (4th) 449 (Ont. S.C.), after reviewing the legislative history of the
CAA
and other Acts governing public hospitals, the court found that
    the activities of public hospitals were not covered by the
CAA

because:

the [
Public Hospitals Act
, R.S.O.
    1980, c. 410] was intended to provide an exclusive statutory scheme for the
    supervision and regulation of public hospitals and it was not contemplated that
    the
Charities Accounting Act
should apply nor that the Public
    Trustee should have a role Had [the
Charities Accounting Act
] 
    been intended to give the Public Trustee, for the first time, power to
    supervise the financial affairs of public hospitals, quite independently of and
    possibly in a manner that would conflict with the powers of the Lieutenant
    Governor in Council and the Minister under the
Public Hospitals Act
, it
    would have been plainly so stated in the legislation: at
pp. 463-464.

[167]

As discussed, MPGC is already heavily regulated under the
    Bereavement Authority of Ontario, the
FBCSA
, and its regulations, and
    before these enactments, by a different comprehensive regulatory regime. The
    Legislature could not have intended that the
CAA
also apply to MPGC.

[168]

MPGC
    is a statutory trust. If the Legislature had wished to make MPGC a charitable
    purpose trust, it could have done so. Indeed, presumably it still could.

Moreover, when invited to change the
    legislation, albeit for a different purpose, in 2010, the Ontario Government
    declined to take any action.  And, when the issue of charitable status was taken
    up with the PGT in 1991 and then again in later years, the PGT took no further
    action in the face of MPGCs stated rejection of such a characterization.

[169]

For
    these reasons, I conclude that it was not open to the application judge to
    treat the statutory trust as a charitable purpose trust under the
CAA
.

[170]

Having
    said that, in light of the other arguments made by the parties, I will also
    address why I would not consider this to be a charitable purpose trust in any
    event.


(B) Charitable
    Purpose Trust

[171]

Although
    in the context of the
ITA

rather
    than the
CAA
, in
A.Y.S.A.
,
    Rothstein J. traced the evolution of the law on charitable purpose trusts and
    noted, at para. 25, that the cases often start by citing the preamble to the
Charitable Uses Act
, 1601 (Eng.), 43 Eliz. 1, c.4
    (commonly referred to as the
Statute of Elizabeth or the
    Statute of Charitable Uses
), which provided a list of examples of
    charitable purposes. (I would observe in passing that a cemetery is not one of
    them.) The list was then refined into four categories in
Commissioners
    for Special Purposes of the Income Tax v. Pemsel
, [1891] A.C. 531
    (H.L.). The
Pemsel
approach was subsequently
    adopted by the Supreme Court of Canada in three tax cases:
Dames du Bon Pasteur v. R.
, [1952] 2 S.C.R. 76;
Towle Estate v. Minister of National Revenue
(1966),
    [1967] S.C.R. 133; and
Vancouver Society
.

[172]

The
CAA
incorporated the same scheme to determine
    a charitable purpose. Section 7 of the
CAA
provides that 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).

[173]

Only category (d), the
    basket clause, is relevant to the analysis in this case.
In
A.Y.S.A.
,
    Rothstein J. explained, at para. 27:

In
Vancouver Society
, the majority held that under the fourth head, the purposes of the
    organization must be of (a) public benefit or beneficial to the community
    and (b) in a way the law regards as charitable (para. 176).  Recognizing
    that this reasoning was circular and that the law was not clear, Iacobucci J.,
    at para. 177, adopted the following test from

DAguiar v. Guyana
    Commissioner of Inland Revenue
, [1970] T.R. 31, at
    p. 33:

[The Court] must
    first consider the trend of those decisions which have established certain
    objects as charitable under this heading, and ask whether, by reasonable
    extension or analogy, the instant case may be considered to be in line with
    these. Secondly, it must examine certain accepted anomalies to see whether they
    fairly cover the objects under consideration. Thirdly  and this is really a
    cross‑check upon the others  it must ask whether, consistently with the
    objects declared, the income and property in question can be applied for
    purposes clearly falling outside the scope of charity; if so, the argument for
    charity must fail.

Iacobucci J. then added to the test:

To this I would
    add the general requirementthat the purpose must also be for the benefit of
    the community or of an appreciably important class of the community rather
    than for private advantage.

[174]

In
A.Y.S.A.
, Rothstein J. then
    highlighted that [i]n a case involving the meaning of charity for purposes of
    the
ITA
, we are not applying the common law in
    a vacuum. It will be necessary to consider not only the common law, but the
    common law in relation to the scheme of the
ITA
:
A.Y.S.A.
, at para. 30.  Rothstein J.
    summarized the proper approach, at para. 31:

To summarize, in determining if an organization is charitable
    under the fourth head of
Pemsel
for purposes
    of registration under the [
Income Tax Act
], it
    will be necessary to consider the trend of cases to decide if the purposes are
    for a public benefit which the law regards as charitable. It will also be
    necessary to consider the scheme of the [
Income Tax Act
].
    Finally, it is necessary to determine whether what is sought is an incremental
    change or a reform best left to Parliament.

[175]

As in
A.Y.S.A.
, we are not applying the common law in a
    vacuum, but in relation to the scheme of the
CAA
. Based on
A.Y.S.A.
,
    to determine whether an organization is charitable under the fourth category of
Pemsel
, for the purposes of the
CAA
, it is necessary to first
    examine the trend of cases to decide if the purposes are for a public benefit
    which the law regards as charitable.
[12]
Second, it is necessary to consider the scheme of the statute in
    question (in

A.Y.S.A.
, the
ITA
, and in this case, the
CAA
).
    Finally, it is necessary to consider whether the proposed charitable
    designation is in the nature of a reform demanding legislative action.

[176]

Before
    applying this test, I must also emphasize that
the law of charity is a
    moving subject that should evolve as new social needs arise or as old needs
    become obsolete or satisfied:
Vancouver
    Society
,
at paras. 146, 150;
A.Y.S.A.
,
    at para. 28. To quote from Iacobucci J. in
Vancouver
    Society
, at para. 146:

[T]he court has always had the jurisdiction to decide what is
    charitable and was never bound by the preamble. Nonetheless, the preamble
    proved to be a rich source of examples and the law of charities has proceeded
    by way of analogy to the purposes enumerated in the preamble. Indeed, as Lord
    Wilberforce observed in
Scottish Burial Reform and
    Cremation Society v. Glasgow Corporation
, [1968] A.C. 138 (H.L.),
    at p. 154:

it is now accepted that what must be
    regarded is not the wording of the preamble itself, but the effect of decisions
    given by the courts as to its scope, decisions which have endeavoured to keep
    the law as to charities moving as new social needs arise or old ones become
    obsolete or satisfied.

1.
No Compelling Jurisprudential Trend

[177]

Dealing firstly with the issue of whether there is a jurisprudential
    trend, disposal of the dead used to be regarded as a religious activity in the
    advancement of religion (the third charitable purpose category) because burials
    traditionally took place in a churchyard. However, as the application judge
    noted, some cases support the proposition that non-denominational cemeteries
    may also have a charitable purpose. None of the cases cited by the application
    judge post-date 1949 in Canada and 1968 in the United Kingdom.

[178]

The
    1949 decision of the Manitoba Court of Kings Bench in
Re
    Oldfield
involved a gift for the maintenance of a communal cemetery
    unconnected with any church or religious denomination. The court decided that
    the bequest had a charitable purpose. Similarly, in
Re Quinns Wills Trusts
(1953), 88,
    I.L.T.R. 161 (H. C.), the High Court in Ireland found that a gift for the
    annual improvement of a non-denominational cemetery was a charitable bequest
    within the fourth category.
The PGT also referred this court
    to the 1976 decision in
Re Robinson

(1976), 75 D.L.R. (3d) 532
    (Ont. S.C.), which found that a bequest of $5,000 for the general upkeep of a
    cemetery was charitable in nature: at p. 533.
Importantly, these cases involved
    bequests, a very different factual context than a statutory trust established
    by the Legislature.

[179]

Scottish
    Burial

involved a limited company
    that had been incorporated to promote inexpensive and sanitary methods of
    burial in Scotland, particularly through cremation, and to publish information
    in that regard. The company charged fees, but these fees were not intended to
    yield a profit. As its name implies, the focus of the company was burial reform
    and cremation. The House of Lords accepted that this was a charity under the
    basket clause. Arguably,
Scottish
    Burial
simply stands for the proposition that the promotion of
    reform in methods of disposal of the dead may constitute a charitable purpose.

[180]

Even if these cases could be given a
    broader interpretation, it is fair to conclude that the jurisprudence on the
    charitable nature of cemeteries is extremely limited. It certainly cannot be
    characterized as a trend as described in
A.Y.S.A.
In the circumstances of such limited jurisprudence,
    this court was not referred to any separate anomalous cases:
Vancouver
    Society
, at para. 177. Moreover, as mentioned,
    MPGC is a statutory trust. I do not view the above cases as authority for the
    proposition that a statutory trust created for the operation of a
    non-denominational cemetery has a charitable purpose under the common law. This
    is a circumstance where, [consistent] with the objects declared, the income
    and property in question can be applied for purposes clearly falling outside
    the scope of charity:
Vancouver Society
, at para. 177.

[181]

In
    addition to having a purpose that the law regards as charitable, under the basket
    clause, the charitable purpose of an organization must also be for the benefit
    of the community or an appreciably important class of the community:
Vancouver
    Society
, at paras. 175-177;
A.Y.S.A.
, at para. 27. As Iacobucci
    J. explained in
Vancouver Society
, charitable activity is not concerned
    with the conferment of private advantage: at para. 147.

[182]

The application judge
    noted that MPGC did not dispute that its activities are intended to benefit the
    public: at para. 139. MPGC nevertheless emphasizes to this court that, even if
    its activities are beneficial to the public, providing a public benefit is not
    MPGCs primary purpose. As I have found that MPGC does not have a charitable
    purpose for other reasons, it is unnecessary to further consider this part of
    the test. I would note, however, that as MPGC is a statutory trust, one would
    expect there to be a public benefit.

2.
Scheme of Statute

[183]

In
    examining the scheme of the statute, I have already addressed this issue.
    However, I would also observe that
the circumstances surrounding
    MPGCs establishment had a business component. The Legislatures initial focus
    was to create a vehicle for multiple individuals to hold land together for a
    non-denominational cemetery. And, as mandated in s. 6 of the
1871 Act
,
    the said corporation may sell, convey or otherwise dispose of the said lots to
    any person or persons on such terms and conditions and subject to such by laws
    of the corporation, and at such prices as shall be agreed on. Consistent with
    such a mandate, MPGC provides services and receives payment for doing so. It
    charges market and above market rates, and is not limited to cost recovery. Although
    fees do not preclude charitable status, this is another factor suggesting that
    MPGCs purpose is not charitable.

[184]

Even if one were to
    accept that MPGCs purpose was charitable in nature, that purpose has become
    obsolete today. The law of charities is a moving subject:
Vancouver
    Society
, at para. 146.
As the record amply
    illustrates, there are numerous cemeteries, denominational and
    non-denominational alike, some charitable and some not. Any charitable purpose
    that potentially could have animated MPGC is spent.

[185]

MPGC operates as a non-profit organization and has
    done so for decades, if not centuries. I see no basis to alter this
    characterization.

[186]

Lastly,
    I recognize that the
ITA
differs from the
CAA
and that
    Revenue Canadas determination that MPGC is not a charity is not determinative.
    Nonetheless, it is not unfortunate that MPGCs characterization remains stable
    and consistent with Revenue Canadas position on the issue.

[187]

In
    conclusion, I am unable to conclude that MPGC falls within the scheme and
    parameters of s. 7 of the
CAA
.

3.
Nature of Proposed Change

[188]

Finally,
    the last consideration identified in
A.Y.S.A.
is readily addressed. 
    Justice Rothstein stated that it is necessary to determine whether what is
    sought is an incremental change or a reform best left to Parliament, or in this
    case, the Legislature. This factor is subsumed by the analysis on statutory
    trusts and clearly favours the appellants position.

[189]

I would allow the appellants third ground of appeal. In these
    circumstances, it is unnecessary to address the arguments relating to
    exclusivity.

ISSUE 4:
    CROSS-APPEAL

[190]

As I have determined that the application judge was incorrect in
    concluding that MPGC is a charitable trust, the cross-appeal is moot. That
    said, I would not have allowed the cross-appeal in any event. The PGT is and
    was opposed to any such investigation. The application judge saw no basis on
    which to order an investigation. I see no reason to interfere with the exercise
    of his discretion.

DISPOSITION

[191]

For these reasons, I would allow the appeal and dismiss the
    cross-appeal. If the parties are unable to agree on costs, they may make brief
    written submissions to this court within 30 days of receiving these reasons.

Released:
    May 5, 2020 (S.E.P.)

S.E. Pepall J.A.

I agree. M. Tulloch
    J.A.

I agree. M.L. Benotto
    J.A.





[1]

Ms. Wong-Tam is a Toronto City Councilor, but her
    participation in these proceedings is in her personal capacity and not as a
    representative of the City of Toronto or City Council.



[2]

The City of Toronto was incorporated in 1834 and replaced
    the Town of York.



[3]
In 1853, Yorkville was incorporated as a village. In 1871, the City
    of Toronto, the Township of York and the village of Yorkville were all separate,
    distinct entities.



[4]
See Affidavit of Glenn McClary (MPGCs President), at para. 38.



[5]

The record does not disclose when MPGCs by-laws were first
    enacted.



[6]

The
    solicitors also noted that under the
Cemeteries Act
, R.S.O., 1980 c. 59, all incorporated
    cemeteries had to provide graves for strangers and indigents free of charge and
    that, under the proposed new
Cemeteries Act
, if space to do so, with the exception
    of cemeteries run by a religious denomination, all cemeteries and crematoria
    had to provide for welfare funerals upon payment of the prescribed amount.



[7]

The respondents assert that MPGCs
    directors began to deny that MPGC was a statutory trust in 1991 and persisted
    in this position until April 2018 when MPGC filed its responding factum on the
    application. This issue is now fully resolved.  That said, the appellants
    previous position may have an impact on any costs award.



[8]

The rule of implied repeal also has been held to have no
    application to constitutional statutes:
Bennion
, at p.
    207.



[9]

In Intertemporal Statutory Interpretation and the Evolution
    of Legislative Drafting (2014) 11:4 Col. L. Rev. 807, Jarrod Shobe advocates
    an interpretative methodology in the U.S. based on the evolving quality of the
    drafting process and the resulting need to interpret older statutes differently
    from modern ones.



[10]
Its
    argument was that the public interest did not favour an investigation because:
    (i) the provision of funeral services by MPGC was made in the best interest of
    MPGC; (ii) changes to legislation in 2012 now permitted cemeteries to own and
    operate funeral homes; (iii) an investigation would not deal with the updating
    of MPGCs corporate governance and objects; (iv) MPGCs visitation centres are
    connected to the provision of its cemetery services; (v) the funeral services
    generated revenue to cover expenses of the cemetery operations; (vi) there was
    no evidence that the trustees of MPGC had personally benefitted from the
    improper expenditures; and (vii) it would be unrealistic and impracticable to require
    the removal of the visitation centres from MPGCs lands.



[11]
Income tax was not introduced into Canada until 1917.  This
    provision would apply to any provincial
taxes and assessments.



[12]
At
    paras. 37-38, Rothstein J. briefly drew attention, in obiter, to the 1984
    decision of the Ontario Divisional Court in
Re Laidlaw Foundation

(1984), 13
    D.L.R. (4th) 491 (Ont. Div. Ct.).
Re
    Laidlaw
suggested that the definition of charity under the
CAA

might be broader than under
    the common law because the basket clause did not include the limitation that
    the purpose must be recognized by the common law as charitable. The test for
    the basket clause clearly cannot be limited to public benefit only as the
    ambit for inclusion would be almost limitless. Justice Rothstein described the
    decision as anomalous and inconsistent with the Supreme Courts decision in
Vancouver Society
that public benefit is
    not enough. In adopting the
Pemsel
categories, the
CAA

presumably
    also adopted the tests for the
Pemsel
categories. In any event, neither the FTPC nor the PGT relied on
Re Laidlaw
.


