Looking for Supreme Court protection for 10 public cemeteries

In the early, fearful weeks of the pandemic, Toronto-area residents seeking the relief of a walk in their treasured green spaces suddenly found the gates to all10 Mount Pleasant Group of Cemeteries (MPGC) locked. They were told that because visitors failed to observe proper physical distancing, they could no longer use the space until further notice.

Many were shocked, believing the land is public, and upset because the decision was not made by a mayor or city council or by a parks official or even the province. In fact, it was not made by anyone with any public accountability at all.

The incident highlights how one of the GTA’s most essential and magnificent assets sits in an odd limbo — created as a public trust, but now controversially, and I believe wrongly operated by its board and management as a private company. It is time for the cemetery’s status to be legally clarified, and rightfully returned to the citizens who paid for it.

Since the end of the1980s the cemetery trust somehow became muddled.

The original public burying ground “Potter’s Field,” formerly located at Yonge and Bloor streets, dates from 1826. Residents of the Town of York raised $300 to create a public cemetery that was available to everyone, no matter their religion or economic status. The Legislative Assembly of Upper Canada then passed a statute creating “Upper Canada’s First Public Ownership Trust.”

But the ownership of the cemetery trust is now at risk of slipping away from the public.

The flagship cemetery, Mount Pleasant, is a national historic site, the final resting place for such notables as William Lyon Mackenzie King, Frederick Banting, premiers, mayors, sport stars and war heroes.

For most of their history, the cemeteries were run by the Trustees of the Toronto General Burying Grounds. But in the 1990s, a now self-declared “board of directors” decided to change the name to the Mount Pleasant Group of Cemeteries, as though their organization had magically evolved from a trust into a private company, without anyone beyond that small group authorizing the change.

From its modest roots, the cemetery trust had grown to 10 cemeteries across the GTA, comprising 1,222 acres of prime land worth an estimated $2 billion, and hundreds of millions in cash reserves.

Even the folks at the controversial WE Charity would be impressed with these incredible numbers. Although exempted by their statute from paying millions of dollars in income and property tax payments, MPGC claims to be unaccountable to and unsubsidized by any level of government. A giant wealthy landowner with an unusually sweet deal.

The now self-selected MPGC board could, if it wishes, sell off large chunks of the lands, redevelop portions of them or lock the gates, as it did earlier this year, and the public would have no say. That’s just not right.

With the Public Guardian and Trustee sharing their position, what has now turned into a long legal battle has been waged by a civic minded group of residents, the Friends of Toronto Public Cemeteries. I legally joined their cause in 2012, not as a councillor, but as a private citizen who cares deeply about GTA public space and its future.

In 2018 a judge ruled that MPGC was in fact a charitable trust and should act accordingly, with public oversight. MPGC appealed and last May the Ontario Court of Appeal unfortunately overturned a large part of the prior decision.

But the fight is not over. We are encouraged that a major law firm is taking on the case pro bono and asking the Supreme Court of Canada to hear an appeal. The implications are profound: is it right that a charitable, publicly funded, cemetery trust can unilaterally declare itself to be a private enterprise? Should the basic right to safe and affordable burial of our dead, now become only for those who can afford it?

In these challenging times of pandemic, the public purse is being stretched to minimize the economic damage. We should not allow a multibillion-dollar asset to slip away into private hands. Especially as it was the public who paid for it in the first place.