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C.C.S.M. c. C30
The Cemeteries Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"authorized trustee" means the trust company designated in the regulations as the authorized trustee under Part III; (« fiduciaire autorisé »)
"board" means the Funeral Board of Manitoba established under The Funeral Directors and Embalmers Act; (« conseil »)
"cemetery" means land that is set apart or used as a place for the burial of dead human bodies or other human remains or in which dead human bodies or other human remains have been buried; (« cimetière »)
"columbarium" means a structure designed for storing the ashes of dead human bodies or other human remains that have been cremated; (« columbarium »)
"crematory" means a building fitted with proper appliances for the purpose of the incineration or cremation of dead human bodies, and includes everything incidental or ancillary thereto; (« crématoire »)
"mausoleum" means a structure, wholly or partly above the level of the ground and designed for the burial or storage of dead human bodies; (« mausolée »)
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"owner" means a person who owns, controls, or manages a cemetery, columbarium or mausoleum; (« propriétaire »)
"perpetual care" means the preservation, improvement, embellishment, and maintenance, in perpetuity and in a proper manner of lots, plots, tombs, monuments, or enclosure, in a cemetery or of compartments in a columbarium or mausoleum; (« entretien perpétuel »)
"perpetual care funds" means funds and property received by an owner for the purpose of providing perpetual care generally of a cemetery, columbarium, or mausoleum, or of any particular part thereof, whether received
(a) under this Act or otherwise;
(b) under the terms of a contract, trust, or gift or otherwise;
and includes moneys deducted and set aside under section 28; (« fonds d'entretien perpétuel »)
"religious auxiliary" means a corporation, society, committee, or other organization, that is sponsored, organized, established or set up by a religious denomination and controlled or supervised by, and operated as an instrument or auxiliary of, and in close connection with, that religious denomination; (« auxiliaire religieux »)
"religious denomination" means an organized society, association, or body, of religious believers or worshippers professing to believe in the same religious doctrines, dogmas, or creed and closely associated or organized for religious worship or discipline, or both. (« congrégation religieuse »)
Except as specifically herein otherwise provided, this Act applies to every cemetery, columbarium, or mausoleum, in the province whenever established, laid out, or constructed.
The board has, in respect of any matter coming before it under this Act, all the powers given to the board under The Funeral Directors and Embalmers Act in respect of matters coming before it under that Act.
The owner of a cemetery shall enclose every part thereof by walls or fences of the height of four feet six inches at least, and shall prevent all animals from trespassing within the enclosure.
The owner of a cemetery shall, out of the moneys received in respect thereto, keep the cemetery and the buildings and walls or fences thereof in good order and repair.
The owner of a cemetery shall construct and maintain all proper and necessary sewers and drains in and about the cemetery for the purpose of draining it and keeping it dry.
The owner may, as occasion requires, cause any sewer or drain to open into an existing sewer of the highway, street, road or land through which or part of which the opening is intended to be made; and he shall do as little damage as possible to the highway, street, road or land and shall restore it to the same condition or as good a condition as it was before being disturbed.
If the owner of a cemetery makes default in carrying out any of the provisions of sections 3, 4, and 5, he is guilty of an offence and liable, on summary conviction, to a fine of not more than $50. for every such default.
If the owner of a cemetery at any time causes or suffers to be brought to, or to flow into, any river, spring, well, stream, canal, reservoir, aqueduct, lake, pond, or watering place, any offensive matter from the cemetery whereby the same is fouled, he is guilty of an offence and liable, on summary conviction, in addition to any other remedy existing by law, to a fine of not more than $50. for every such offence.
In addition to the penalty provided by section 7, any person having a right to use the water may sue the owner of the cemetery for any damage specially sustained by him by reason of the water being fouled.
If in the action no special damage is alleged or proved, the court shall award a sum not exceeding $10. for every day during which the fouling has continued after the expiration of 24 hours from the time when notice of the fouling was served, by the person mentioned in subsection (1), upon the owner of the cemetery.
The owner of a cemetery may erect, within the bounds of the cemetery, a chapel and vault or a vault alone for use as a repository for the dead during the winter months.
The chapel and vault or the vault alone shall be of stone or brick or part stone and brick, and all vault doors shall be of iron and wood encased in iron sheeting, and all vault windows or other openings in the vault shall be protected by iron sheeted shutters; and there shall be no open connections between the vault and the chapel except underneath the floor for the reception of the coffin.
A mausoleum may be erected in any cemetery.
Except as provided in sections 9 and 10, no person shall be buried in a vault or otherwise, in or under any chapel or other building in a cemetery, or within 15 feet of the outer wall of any chapel or building therein.
The owner of a cemetery shall make regulations to ensure that all burials within the cemetery are conducted in a decent manner.
In the case of a public cemetery, the owner shall permit the religious denomination to which the deceased belonged to perform the usual religious rites on the deceased's interment.
The owner of a public cemetery shall furnish graves for strangers and for the poor of all denominations on the certificate of a clergyman that the deceased was a stranger or that the deceased and his relatives are poor.
The certificate shall state the municipality in which the person died, and that municipality shall pay the owner of the cemetery, if other than the municipality, his customary charges on the presentation of the certificate to the clerk of the municipality.
The real property of the owner of a cemetery that is used as such, and the lots or plots when conveyed by the owner to individual proprietors for burial sites shall not be liable to be seized or sold in execution or under judgment or attached or applied to the payment of debt or passed to the assignee under any bankruptcy or insolvency law.
Where a lot or plot has been sold by the owner of a cemetery for burial site, the conveyance or transfer need not be registered for any purpose whatever, and shall not be affected by The Registry Act or The Real Property Act; nor shall any judgment, mortgage or encumbrance subsist on any lot so conveyed or transferred.
The conveyance of a burial lot or plot may be in the following form:
Take notice that the (giving name of owner), in consideration of dollars, paid to it by , of , the receipt whereof is hereby acknowledged, doth grant unto the said his heirs and assigns lot of land in the cemetery of the said owner, called and situate in the of , which lot is delineated and laid down on the map of the said cemetery, and is therein designated by the name of , containing by admeasurement superficial feet; to have and to hold the herein above named premises, etc.
All lots or plots of ground in a cemetery, when numbered and conveyed or transferred by the owner of the cemetery as burial sites shall be indivisible, but may afterwards be held and owned in undivided shares.
The owner of a cemetery in which is situated a mausoleum may sell or otherwise dispose of crypts or compartments in the mausoleum for the entombment of bodies therein.
Where a crypt or compartment is sold or disposed of for the purpose of entombment, the conveyance or transfer need not be registered for any purpose whatever, and shall not be affected by The Registry Act or The Real Property Act; nor shall any judgment, mortgage or encumbrance subsist on any crypt or compartment so conveyed or transferred.
No person shall construct a crematory in the province unless
(a) an engineer designated for the purpose by the member of the Executive Council charged with the administration of the Public Works Act has certified to the board under this Act that the plans therefor provide for the installation of the proper equipment for the disposal of human bodies by cremation and are satisfactory in all respects; and
(b) the plans therefor, and the site thereof, have been approved in writing by the minister.
No crematory shall be constructed nearer to any dwelling house than 200 yards, except with the consent in writing of the owner of the dwelling house, if he is the occupier thereof, and also with the consent of the tenant or occupier, if the owner is not the tenant or occupier thereof.
Subject as herein provided, and subject
(a) to a zoning by-law under The Planning Act;
(b) to all validly enacted municipal by-laws; and
(c) to all municipal and other building restrictions in force in the municipality;
applicable thereto, a crematory may be constructed, maintained, and operated, in any municipality and at any place therein, either in a cemetery or elsewhere.
No human bodies shall be cremated in any crematory and no crematory shall be maintained or operated unless the operator thereof holds a valid and subsisting licence for the purpose issued under this Part.
Subject as herein provided, on payment of the required fee, the board may issue to the operator of a crematory a licence authorizing the maintenance and operation of the crematory.
The board shall not approve the plans for, or the site of, a proposed crematory unless
(a) it has received the certificate to which clause (1)(a) refers; and
(b) it is satisfied that the crematory will be constructed in accordance with
(i) a zoning by-law under The Planning Act;
(ii) all validly enacted municipal by-laws; and
(iii) all municipal and other building restrictions;
applicable thereto, and in accordance with this section.
The board shall not issue a licence for the maintenance and operation of a crematory unless
(a) it has approved the plans therefor and the site thereof as herein provided;
(b) it is satisfied that it is likely that the crematory will be maintained and operated as herein required; and
(c) an engineer designated by the minister charged with the administration of the Public Works Act has certified that the construction of the crematory has been completed and that it is built on the site approved and in accordance with the plans approved.
Every crematory shall be maintained and operated in accordance with any regulations applicable thereto made under this Act, The Public Health Act, or any other Act of Legislature, and in accordance with all validly enacted municipal by-laws applicable thereto.
Every licence issued under section 19, unless sooner suspended or cancelled, shall expire on March 31 following the date of the issue thereof.
Subject to subsection (3), the board,
(a) if it is satisfied that a crematory is not being maintained and operated as required herein or in the regulations or in any other regulations applicable thereto; or
(b) for any other just and reasonable cause;
may suspend for such period as it deems desirable, or may cancel, a licence issued under section 19; or, for like cause, it may refuse to issue a subsequent licence for a further period in place of a licence that has expired.
Before suspending or cancelling a licence, and before refusing to issue a subsequent licence for a further period in place of a licence that has expired, the board shall, by written notice, notify the licensee named in the licence or expired licence of its intention so to suspend or to cancel the licence or to refuse to issue a licence, and of a time when, and a place where, it will hear representations by or on behalf of the licensee respecting the proposed suspension, cancellation, or refusal.
At the time and place fixed in the notice given under subsection (3), or at any adjournment thereof respecting which the licensee has had notice, the board shall hear the licensee or counsel on its behalf respecting the matter.
At a hearing held under subsection (4) the board may receive the testimony of witnesses either on oath or otherwise, and in person or by affidavit; and the licensee or counsel on his behalf may examine witnesses on behalf of the licensee and cross-examine any witness whose testimony supports the proposed suspension, cancellation, or refusal.
Any person who maintains or operates a crematory and who is not the licensee named in a valid and subsisting licence issued for the purpose under this Act, or who otherwise contravenes, or omits, neglects, or fails, to observe, any provision of section 19 or of the regulations, is guilty of an offence and liable, on summary conviction,
(a) if a corporation, to a fine not exceeding $2,000.; and
(b) if an individual, to a fine not exceeding $500.
Every person who
(a) with a view to obtaining
(i) the approval of the minister to the plans for a crematory or the site thereof; or
(ii) the issue of a licence authorizing the maintenance and operation of a crematory; or
(b) with a view to procuring the cremation of any human remains;
wilfully makes any false representation or issues or signs any false certificate, is guilty of an offence and liable, on summary conviction, in addition to any penalty or liability that he may otherwise incur, to imprisonment for a term not exceeding 15 months.
A person licensed under section 19 is entitled to demand and receive payment of charges or fees for the cremation of human bodies in the crematory for the maintenance and operation of which it holds a licence; but, if a table of charges or fees is established by regulation under section 39, the charges or fees shall be in accordance with that table.
Any charges or fees, and any expenses, properly incurred in or in connection with the cremation of the body of a deceased person shall be deemed to be part of the funeral expenses of the deceased.
All statutory provisions relating to the registration of deaths and certificates of registration and all other provisions required to be observed before a burial is permitted shall, with such modifications as the circumstances require, be observed in all cases where human bodies are cremated, and all provisions relating to registers of death, and the admissibility of extracts therefrom as evidence in courts or otherwise, shall likewise apply to registers of cremations directed by the regulations to be kept.
PERPETUAL CARE FUNDS
This Part, other than subsection 29(4), does not apply to
(a) a cemetery, columbarium, or mausoleum, owned and operated by a religious denomination or a religious auxiliary, or by a municipality; or
(b) a cemetery owned and operated by a non-profit organization
(i) that is organized and operated exclusively for the purpose of owning and operating the cemetery,
(ii) no part of the income of which is payable to, or otherwise available for the personal benefit of, any proprietor, member or shareholder of the organization, and
(iii) that has not in any year sold more than 15 cemetery plots;
(c) to any sale, lease or rental, or agreement to sell, lease, or rent, a lot, plot, compartment, or other space in a cemetery, columbarium, or mausoleum if the sale, lease, rental, or agreement was made before November 1, 1959; or
(d) to moneys paid or payable under any sale, lease, rental, or agreement to which clause (c) applies.
No person shall maintain or operate a cemetery, columbarium, or mausoleum unless he holds a valid and subsisting licence for the purpose issued to him under this Part.
No person, and no corporation by its officer, employee, or agent, shall sell or offer for sale, or lease or rent or offer to lease or rent, a lot, plot, compartment, or other space, in a cemetery, columbarium, or mausoleum owned by him or it, unless he or it holds a valid and subsisting licence for the purpose issued to him or it under this Part.
No person shall, as agent for or on behalf of the owner of a cemetery, columbarium, or mausoleum, sell or offer for sale, or lease or rent or offer to lease or rent, a lot, plot, compartment, or other space, in the cemetery, columbarium, or mausoleum unless he holds a valid and subsisting licence for the purpose issued to him under this Part.
The board may issue, in a form approved by the board, a licence for the maintenance and operation of a cemetery, columbarium, or mausoleum.
The board may issue, in a form approved by the board, a licence to the owner of a cemetery, columbarium, or mausoleum and to any person as agent for such an owner, authorizing the licensee to sell, lease, or rent or, on behalf of the owner, to offer for sale, lease, or rent, lots, plots, compartments, or other space in the cemetery, columbarium, or mausoleum.
A licence may be made subject to prescribed terms and conditions.
The board shall charge and collect for each licence issued by it such fee as is prescribed by the regulations.
Every licence issued under this section expires on March 31 following the date of the issue thereof.
No owner of a cemetery, columbarium, or mausoleum shall sell, lease, or rent any lot, plot, compartment, or other space therein unless the form of the contract of sale, lease, or rental has been approved by the board.
From all moneys received on the sale, lease, or rental of a lot, plot, compartment, or other space in a cemetery, columbarium, or mausoleum, the owner thereof shall deduct and set aside for perpetual care such portion of those moneys as may be prescribed in the regulations.
Every owner shall, not less frequently than once in each year, pay over to the authorized trustee all moneys that he has deducted and set aside under subsection (1) since the coming into force of this section, or since the last previous occasion on which he has paid over such moneys to the authorized trustee, as the case may be.
An authorized trustee receiving perpetual care funds from an owner of a cemetery, columbarium or mausoleum shall hold the funds in trust for the purpose of funding the owner's perpetual care obligation in respect of the cemetery, columbarium or mausoleum and shall pay the funds and any income from the funds to the owner only as required or permitted under this Part or by the board.
An authorized trustee receiving perpetual care funds from an owner shall establish a separate account for the funds received in respect of each cemetery and each columbarium or mausoleum that is not part of a cemetery.
Sections 68 to 75 of The Trustee Act apply in respect of the perpetual care funds held by an authorized trustee.
Where the other provisions of this Part cease to apply to a cemetery, columbarium or mausoleum, the board may direct the authorized trustee holding perpetual care funds in respect of the cemetery, columbarium or mausoleum to pay the funds to the owner or to another person approved by the board and may impose conditions or restrictions on the use of the funds and any income earned on the funds.
An authorized trustee may in each year deduct and retain, as remuneration for its services as trustee of a fund established in respect of a cemetery, columbarium or mausoleum, a portion of the income of the fund not exceeding the portion prescribed by regulation and, subject to a direction of the board under subsection (2), shall pay the balance of the income for the year to the owner for the perpetual care of the cemetery, columbarium or mausoleum.
The board may direct an authorized trustee to pay the income of a fund established for the perpetual care of a cemetery, columbarium or mausoleum to the owner only to the extent required to pay, or to reimburse the owner for, expenses reasonably incurred for that purpose, and the trustee shall pay the income to the owner as directed by the board.
All amounts paid to an owner under this section for the perpetual care of a cemetery, columbarium or mausoleum shall be used by the owner only for that purpose.
In this section, "perpetual care funds" includes funds payable to the authorized trustee under section 28 and income from those funds paid by the trustee to the owner for perpetual care.
Every owner shall submit to the board, within five years after becoming an owner and thereafter at intervals not exceeding the lesser of five years and any shorter interval specified by the board, an account of the owner's dealings with perpetual care funds that have come into the owner's possession after becoming an owner or after the end of the last period for which the owner's accounts were passed, to be examined, audited and passed by the board.
In addition to any passing of accounts required by subsection (2), the board may at any time direct an owner to submit to the board an account of the perpetual care funds that have come into the owner's possession after the end of the last period for which the accounts were passed, to be examined, audited and passed by the board.
Before passing the accounts of an owner, the board may require
(a) the authorized trustee to submit an account or information with respect to funds received by it for the perpetual care of the owner's cemetery, columbarium or mausoleum;
(b) the owner
(i) to submit additional accounts or information with respect to perpetual care funds received by the owner or any other matter relevant to the passing of the accounts, and
(ii) to make a full disclosure and accounting of all perpetual care funds that have come into the possession of the owner at any time.
Where in the board's opinion the accounts submitted to the board are complicated and require expert investigation, the board may appoint an accountant or other skilled person to assist the board in examining and auditing the accounts, and the cost of obtaining the assistance shall be borne as the board determines.
The board may, on application by an owner, notice of which has been served on the authorized trustee, extend the time for the passing of accounts required by subsection (2) or by a direction given under subsection (3).
The board may pass accounts under this section without a hearing unless the board determines that a hearing is necessary or advisable for the accounts to be examined or passed.
If, on the passing of accounts, the board believes on reasonable grounds that an owner has committed a breach of a trust or contract for perpetual care or has contravened this Act, the regulations or an order or direction of the board made under this Act, the board
(a) may direct the owner to pay to the authorized trustee an amount equal to all or any part of the perpetual care funds received by the owner;
(b) may revoke, cancel, suspend or impose conditions or restrictions on any licence issued to the owner under section 26; and
(c) may report its findings to the Attorney-General.
An owner shall from time to time furnish to the authorized trustee such information with respect to perpetual care funds as the authorized trustee may require.
In addition to the powers, rights, and obligations, created by this Act, the provisions of the general law, either statutory or otherwise, apply to an owner or trust company with respect to any perpetual care funds in his or its hands to the same extent as they are applicable to any trustee having funds or property in his hands for charitable purposes.
A person who contravenes any provision of this Part or an order or direction of the board made under this Part is guilty of an offence and is liable on summary conviction,
(a) in the case of an individual, to a fine of not more than $5,000. or imprisonment for a term of not more than two months, or both; and
(b) in the case of a corporation, to a fine of not more than $25,000.
If a corporation commits an offence referred to in subsection (1), a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence and is liable on summary conviction to a fine of not more than $5,000., whether or not the corporation has been prosecuted.
When a contravention referred to in subsection (1) by a person continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.
Any person who
(a) wilfully destroys, mutilates, defaces, injures or removes any tomb, monument, gravestone, or other structure placed in a cemetery, or any fence, railing, or other work for protection or ornament of a cemetery, or of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within a cemetery; or
(b) wilfully destroys, cuts, breaks, or injures any tree, shrub, or plant in a cemetery; or
(c) plays at any game or sport in a cemetery; or
(d) discharges firearms (save at a military funeral) in a cemetery; or
(e) wilfully and unlawfully disturbs persons assembled for the purpose of burying a body therein; or
(f) commits a nuisance in a cemetery;
is guilty of an offence.
A person who is guilty of an offence under subsection (1) is liable on summary conviction to
(a) a fine of not less than $1,000 and not more than $10,000;
(b) imprisonment for a term of not more than one year; or
[Repealed] S.M. 2013, c. 47, Sch. A, s. 120.
If a person is convicted of an offence under section 35, the convicting justice must, on the application of the Minister of Justice and Attorney General or of a person affected by the offence or their representative,
(a) consider whether the defendant should pay restitution to an affected person for loss of or damage to property suffered as a result of the commission of the offence; and
(b) if the justice considers an order to be just in the circumstances, order the defendant to pay an amount as restitution if the amount is readily ascertainable.
If an amount is ordered to be paid as restitution, the order may be filed in the Court of Queen's Bench, and on being filed it may be enforced in the same manner as a judgment of the court.
Every person who is ordered to pay restitution must make the payment in accordance with the order.
Any person who commits any of the acts specified in section 35 is liable to an action for damages or trespass in the name of the owner of the cemetery and is liable to pay all damages occasioned by his unlawful act.
Any damages, when collected, shall be applied by the owner of the cemetery for the reparation and the reconstruction of the property destroyed.
Where any of the inhabitants of a municipality or locality in Manitoba, to the number of 10 or more, desire to take a conveyance of land for a public cemetery they may appoint trustees, to whom and their successors, to be appointed in such manner as may be specified in the transfer or deed of conveyance, or in default of provision therein or on failure of the provision therein, as provided in The Trustee Act, the land may be transferred or conveyed; and the trustees and their successors in perpetual succession, by the name expressed in the transfer or deed, may take, hold, and possess the land in trust for the uses and purposes limited in the transfer or deed; and may maintain and defend suits or actions for the protection thereof and of their property therein; but there shall not be held in trust under any such transfer or conveyance for the purpose aforesaid more than 10 acres of land for the inhabitants of any one municipality or locality.
Any board of trustees organized under section 37 may convey the lands held by it for cemetery purposes to any municipality for the purpose of continuing the same as a public cemetery.
For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and are not inconsistent therewith; and every regulation made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations
(a) respecting the maintenance and operation of cemeteries;
(b) respecting the construction, maintenance, and operation of crematories;
(c) respecting the fees payable for licences issued under this Act;
(d) establishing a table of charges or fees payable to owners of crematories for services performed;
(e) respecting the interment or other disposition of the ashes of the human bodies cremated in a crematory;
(f) prescribing the notices, certificates, declarations, statements, or other documents, that must be completed before any human bodies are cremated;
(g) [repealed] S.M. 2019, c. 11, s. 1;
(h) respecting the registers and other records of the burial or interment of human bodies or other human remains that must be kept by the owner of a cemetery, columbarium, or mausoleum;
(i) respecting the registers and other records of the cremation of human bodies that must be kept by the owner of a crematory;
(j) respecting the licensing of owners for the maintenance and operation of cemeteries, columbaria, and mausolea; and fixing the terms and conditions that must be observed by the licensees;
(k) respecting the licensing of owners and agents for the sale, lease, or rental of lots, plots, compartments, and other space, in cemeteries, columbaria, and mausolea; and fixing the terms and conditions that must be observed by the licensees;
(l) respecting licences issued under this Act;
(m) respecting the fees payable for licences issued under this Act;
(n) appointing a trust company as authorized trustee under Part III;
(o) prescribing the portion of the moneys received on the sale, lease, or rental of a lot, plot, compartment, or other space, in a cemetery, columbarium, or mausoleum, that an owner must deduct and set aside under subsection 28(1); and
(p) prescribing the portion of the income on invested perpetual care funds that, under subsection 30(1), the authorized trustee may deduct and retain as remuneration.
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