Acts and Regulations

C-1 - Cemetery Companies Act

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Current to 16 June 2023
CHAPTER C-1
Cemetery Companies Act
Definitions
1In this Act
“cemetery” means land that is set apart for the burial of human remains;(cimetière)
“columbarium” means any structure used for the storage of the ashes of human remains;(columbarium)
“crematorium” means a building fitted with the proper appliances for the cremation of human remains;(crématorium)
“crypt” means an underground chamber located under the main floor of a church or other building;(crypte)
“family cemetery” means a cemetery used for the burial of the remains of persons related by blood, marriage or adoption to the person responsible for the cemetery;(cimetière de famille)
“inspector” means an inspector appointed under section 40.1;(inspecteur)
“mausoleum” means a structure wholly or partially above ground used for the burial of human remains, but does not include a vault;(mausolée)
“Minister” means the Minister of Health;(Ministre)
“person responsible for a family cemetery” means the owner of the land that is a family cemetery;(personne responsable d’un cimetière de famille)
“vault” means a structure wholly or partially above ground used for the temporary storage of human remains pending burial or other lawful disposition.(caveau)
R.S., c.26, s.1; 1956, c.22, s.1; 1966, c.37, s.1; 1984, c.18, s.1; 1986, c.8, s.19, 20; 1991, c.27, s.7; 2000, c.26, s.32; 2006, c.16, s.18
Incorporation of cemetery company
2Every company hereafter organized for the purpose of establishing or of acquiring and holding a public cemetery shall be incorporated under the Companies Act or the Business Corporations Act, and shall be subject to the provisions thereof in so far as the same are not inconsistent with this Act.
R.S., c.26, s.2; 1984, c.18, s.2; 2023, c.2, s.162
Fee for incorporation
3No fee is payable on the incorporation of any cemetery company, and it is not necessary to publish a notice of the issue of letters patent.
R.S., c.26, s.3
Capital stock of cemetery company
4(1)Where a company is organized for the purpose of establishing a public cemetery, the company shall not be incorporated until
(a) stock has been subscribed to an amount deemed sufficient by the Minister of Finance and Treasury Board for the purchase of the ground for the cemetery, and
(b) twenty-five per cent of the proposed capital has been paid in.
4(2)Where a company is organized for the purpose of acquiring and holding one or more existing cemeteries, subsection (1) does not apply.
R.S., c.26, s.1; 1956, c.22, s.2; 1966, c.37, s.2; 1968, c.27, s.1; 2019, c.29, s.23
Establishment, alteration or extension of cemetery
5(1)No person shall establish, alter or extend a cemetery, either public or private, without the approval of the following:
(a) the Minister;
(b) the Lieutenant-Governor in Council; and
(c) if the cemetery is or will be situated
(i) in a local government, the council of the local government, or
(ii) Repealed: 2017, c.20, s.14
(iii) in an unincorporated area, the Minister of Local Government and Local Governance Reform.
5(2)If the Minister incurs any expense in connection with a cemetery, the company or, in the case of a family cemetery, the person responsible for the cemetery shall pay that expense.
R.S., c.26, s.6; 1956, c.22, s.3; 1960, c.20, s.2, 3; 1966, c.37, s.3; 1984, c.18, s.3; 1986, c.8, s.19, 20; 1989, c.55, s.24; 1992, c.2, s.10; 1998, c.41, s.16; 2000, c.26, s.32; 2005, c.7, s.9; 2006, c.16, s.18; 2012, c.39, s.23; 2017, c.20, s.14; 2020, c.25, s.18
Consideration for issue of share capital
6The owner from whom the applicants for incorporation or a company purchase land for the purposes of the company, may subscribe for stock in the company to an amount equal to the purchase price of the land, or a portion thereof, and may take and hold that stock in payment for the land, or part payment therefor; and such stock shall be deemed paid up stock in the company.
R.S., c.26, s.7
Compliance with local by-laws
7(1)If a cemetery is situated in a local government, the local government may make by-laws with respect to the enclosure of cemeteries by walls or fences.
7(2)If a cemetery is situated outside a local government, the Minister may make regulations respecting the enclosure of cemeteries by walls or fences.
R.S., c.26, s.8; 1966, c.37, s.4; 2005, c.7, s.9; 2017, c.20, s.14
Duty to repair
8The company shall keep the cemetery, and the buildings and fences thereon, in good order and repair.
R.S., c.26, s.9
Construction of sewers and drains
9The company shall make proper and necessary sewers and drains in and about the cemetery, and may cause any such sewer or drain to open into an existing sewer with the consent in writing of the persons having the management of the road, and with the like consent of the owner or occupier of the land through which or part of which a drain or sewer is to be made, doing as little damage as possible to such road or land, and restoring the same in as good condition as it was in before being disturbed.
R.S., c.26, s.10
Offences respecting pollution
10Where the company suffers to flow into a river, spring, well, stream, canal, reservoir, aqueduct, pond or watering place, any offensive matter from the cemetery, the company commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
R.S., c.26, s.11; 1990, c.61, s.19
Repealed
11Repealed: 1990, c.61, s.19
R.S., c.26, s.12; 1990, c.61, s.19
Civil action for pollution
12In addition to the penalty provided for under section 10, and whether the same has been recovered or not, any person having a right to use the water, may sue the company for any damage specially sustained by him, by reason of the water being fouled; or if no special damage is alleged, then, for the sum of ten dollars for every day during which the offensive matter has continued to be brought or to flow after the expiration of twenty-four hours from the time when notice of the offence was by such person served upon the company.
R.S., c.26, s.13
Place of burial
13(1)No person shall bury human remains
(a) in a vault, crypt or otherwise under a church or other building, or
(b) within five metres of the outer wall of a church or other building,
except in accordance with such regulations as may be made by the Lieutenant-Governor in Council.
13(2)Every person assisting in a burial in contravention of subsection (1) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
R.S., c.26, s.14; 1977, c.M-11.1, s.3; 1984, c.18, s.4; 1990, c.61, s.19
Burial regulations
14The company shall make regulations to ensure all burials within the cemetery being conducted in a decent and solemn manner.
R.S., c.26, s.15
Re-opening grave or casket
15No person shall
(a) re-open a grave in a cemetery or a casket that has been placed in a cemetery vault awaiting burial without the written consent of a medical officer of health or an order of a judge of The Court of King’s Bench of New Brunswick in that behalf, or
(b) remove a monument or other improvement placed in a lot without the consent of the directors of the company,
but nothing in this section affects the right of the Crown to order the removal of a body for the purpose of legal enquiry.
R.S., c.26, s.16; 1979, c.41, s.13; 1982, c.3, s.5; 1990, c.61, s.19; 2017, c.42, s.71; 2023, c.17, s.19
Graves for poor
16A company shall furnish graves for strangers, and for the poor of all denominations, free of charge, on the certificate in the latter case, of a minister or clergyman of the denomination to which the deceased belonged, that the relatives of the deceased are poor and cannot afford to purchase a grave in the cemetery, or the company may exercise the option of free cremation of the bodies of such persons and interment of the ashes in the cemetery.
R.S., c.26, s.17
Execution exemption for burial lots
17That part of the real estate of the company used for the interment of the dead and the lots when conveyed by the company to individual proprietors for burial sites, are not liable to be seized and sold on execution.
R.S., c.26, s.18; 1966, c.37, s.5
Burial lot conveyances
18When a lot has been sold by the company for a burial site, the conveyance is not required to be registered for any purpose whatever, and shall not be affected by any registry Act, nor shall any judgment, mortgage or encumbrance subsist on any lot so conveyed.
R.S., c.26, s.19
Deed from company
19A deed from the company may be in the following form:
“Know all men by these presents, that the Cemetery Company, Limited, in consideration of ..............dollars paid to it by.............., of .............., the receipt whereof is hereby acknowledged, does grant unto the said .............., his heirs and assigns, .............., lot of land in the cemetery of the said company called the ............................ Cemetery, and situate in the county of .............., which lot is delineated and laid down on the map of the said cemetery, and is designated therein by the name of .............., containing by admeasurement ..............; to have and to hold the above named lot unto the above named ............................, his heirs and assigns forever.”
R.S., c.26, s.20; 1977, c.M-11.1, s.3
Subdivision and joint ownership of burial lot
20All lots or plots of ground in the cemetery when numbered and conveyed by the company as burial sites or lots, shall be indivisible, but may afterwards be held and owned in undivided shares.
R.S., c.26, s.21
Repurchase of burial lot
21The company may, out of any money received by virtue of this Act, re-purchase any lot or lots previously sold or conveyed by the company, and take conveyances of the same from the owners thereof; and may also, from time to time, resell the same in the manner and form provided respecting other lands in the cemetery held by the company.
R.S., c.26, s.22
Rights of shareholders
22(1)From the proceeds of the sales of burial sites made by the company, the company may pay to its shareholders, who may not desire to take land in the cemetery to the full extent of the stock subscribed and paid for by them, interest on their paid up stock, not represented by land in the cemetery, at such rate as may be agreed on not exceeding six per cent per annum, and may also repay to such shareholders the amount of paid up stock held by them not represented by land in the cemetery.
22(2)Every shareholder of the company is entitled to all the rights of a shareholder in respect of the shares of the capital stock of the company held by him and fully paid up, and that are not represented by land in the cemetery, until the value of the shares is repaid to him by the company; and upon the re-payment to him of any share, he shall cease to be a shareholder in respect of such share.
22(3)Except as aforesaid no dividend or profit of any kind shall be paid by the company to any member thereof.
R.S., c.26, s.23
Proceeds of sale of burial lots
23Subject to the provisions in section 22, one-half of the proceeds of all sales of burial sites made by the company shall be first applied to the payment of the purchase money of the land acquired by the company, and the residue to preserving, improving and embellishing the land as a cemetery or burial ground, and to the incidental expenses of the company; and after payment of the purchase money, the proceeds of all further sales shall be applied to the preservation, improvement and embellishment of the cemetery, and to the incidental expenses thereof, and to no other purpose whatever.
R.S., c.26, s.24
Gifts and bequests to cemetery company
24(1)A company may take and hold by gift, assignment, devise, bequest or otherwise, any money or securities, and apply the same in the same manner as any other money of the company, in preserving, improving and embellishing the cemetery of such company, upon the conditions and in consideration of the company’s assuming and undertaking the duty and obligation of preserving and maintaining in a proper manner, any particular lot, tomb, monument or enclosure in such cemetery or in any other cemetery or burying ground in the same or in any other local government in the same county, and any person or persons may make such gift, assignment, devise or bequest to such company, upon such conditions and for such consideration.
24(2)A company may take and hold by gift, assignment or devise from owners thereof any lot in the cemetery of the company, for the purpose of maintaining the same in perpetuity or otherwise, in the manner and subject to the provisions mentioned in the instrument of such gift, assignment or devise.
24(3)A company is hereby empowered to enter into the agreement binding the company to preserve and maintain in a proper manner the particular lot, tomb, monument or enclosure, designated in such gift, assignment, devise, bequest or agreement.
24(4)Executors or trustees may pay over and transfer to a company money or securities in their hands, which they are, by the will of their testator, or other instrument, directed to apply for or toward the purposes in this section specified.
24(5)All money, lots and securities received by any company under subsections (1) to (4) constitute and are trust property and shall not be used for any purposes other than those specified in those subsections, but the interest or income only of the money or securities shall be used unless otherwise provided by the terms of the gift or agreement under which such money or securities have been received, or by special permission of the Minister.
24(6)Where no interment has been made for forty years in a lot in the cemetery, sold and conveyed by the company and which is not under perpetual care, or at the time under annual care, and not more than one-half of the grave sites therein have been used for interments or monuments, the Board of Directors may sell and convey the unused grave sites therein severally or otherwise at such price as may be fixed by the Board, freed and discharged from any beneficial interest of any owner or owners of such unused grave sites, if,
(a) one month’s notice of such intended sale is given by prepaid registered post to the last known proprietor or proprietors thereof, as shown by the records of the Company, at his or their latest known address,
(b) when no such address is known, such notice, together with the number and location of such lot and the name of the last known proprietor thereof, is advertised once in The Royal Gazette and at least once a week for four weeks in a newspaper published in the county where such lot is, and where no newspaper is published in such county then in a newspaper published in the Province and having general circulation in such county,
(c) no person having a divided or undivided interest in the ownership thereof has filed with the Company in writing his objection to such sale twenty-four hours before the notified time thereof,
(d) such sale is subject to the purchaser entering into an agreement with the Company at the current rates for the perpetual care of the grave site or sites so purchased, and
(e) the net proceeds of such sale and such other money as may be necessary, appropriated by the Board of Directors from the current money of the Company, is added to the Perpetual Care Fund and applied to the perpetual care of the unsold portion of such lot, and any monument and enclosures on such unsold portion.
24(7)Where land is held under an express or implied trust to be used as a cemetery, or property, real or personal, is held under an express or implied trust for the purpose of preserving, improving or maintaining a cemetery or any particular part thereof, an application may be made to a judge of The Court of King’s Bench of New Brunswick to vest any or all such property in a cemetery company incorporated under this Act, and upon such application the judge may make an order vesting all or any such property in the cemetery company subject to the trusts and for the uses and purposes for which the property is held.
R.S., c.26, s.25; 1979, c.41, s.13; 1983, c.7, s.3; 2005, c.7, s.9; 2017, c.20, s.14; 2023, c.17, s.19
Assessment of burial lots
25(1)Every proprietor of a lot in the cemetery containing not less than 96.8748 superficial feet or nine square metres, who has paid twenty-five per cent or more of the price of the lot, shall be deemed a shareholder in the company, and every such lot shall be deemed a share in the company.
25(2)A cemetery company subject to the provisions of this Act may, if authorized so to do, by resolution passed by a two-thirds vote of those present at its annual meeting or at a special meeting called for that purpose, make an assessment, to be paid annually, on each lot holder of a sum equal to one cent per square foot or 11.1111 cents per square metre of each lot.
25(3)Any assessment, or any part thereof, remaining unpaid for thirty days after notice of such assessment, may be sued for and recovered from the party liable, in any court of competent jurisdiction.
25(4)The fund provided by such assessment shall be used by the directors, or other governing body, in the general up-keep and care of the cemetery so assessed, and a detailed account of the receipts and expenditures of the money raised by such assessment, shall be laid before the company at each annual meeting.
R.S., c.26, s.26; 1977, c.M-11.1, s.3
Size of burial lots
26The company may sell a lot of any size, but no proprietor of a lot containing less than 96.8748 superficial feet or nine square metres shall thereby become a member of the company, or have any vote in the management of the affairs thereof.
R.S., c.26, s.27; 1977, c.M-11.1, s.3
Borrowing power of cemetery company
27The company may borrow money for the purpose of making roads over the land, and for improving and laying out the same, and may repay the amount so borrowed, with interest thereon, at any lawful rate not to exceed six per cent per annum, out of the first proceeds of the sale of lots in the cemetery, and as security for such loan the company may mortgage all their estate, right and interest in the premises, and in such mortgage may insert all necessary and usual powers of sale, covenants and conditions, but nothing herein contained shall authorize such mortgagee or anyone claiming under him to use or deal with the premises so mortgaged in a manner inconsistent with the continued use of the premises as a cemetery, or inconsistent with any provision in this Act for the preservation and protection of the same for cemetery purposes.
R.S., c.26, s.28
By-laws of cemetery company
28The directors may pass by-laws for the laying out, selling and managing of the ground, for the regulating of burials to be made therein, the removal of bodies therefrom, the erection or removal of tombs, monuments, gravestones, vaults, copings, fences, hedges or other permanent improvements therein, the planting, placing and removal of trees, shrubs and plants in the grounds, and otherwise generally respecting the use of the grounds by the shareholders and the public, and for empowering the president and secretary to execute conveyances of plots in the cemetery.
R.S., c.26, s.29
Books and records of cemetery company
29The directors shall record in a book kept for the purpose all their by-laws and proceedings, and every person shall have access to the book for the purpose of searching and making extracts therefrom without payment of any fee.
R.S., c.26, s.30
Offences and civil liability
30(1)A person who
(a) wilfully destroys, cuts, breaks or injures any tree, shrub, or plant in a cemetery,
(b) plays at any game or sport in a cemetery,
(c) discharges a firearm, save at a military funeral, in a cemetery, or
(d) commits a nuisance in a cemetery,
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence.
30(1.1)A person who
(a) wilfully destroys, mutilates, defaces, injures or removes
(i) any tomb, monument, gravestone or other structure placed in a cemetery,
(ii) any fence, railing or other work for the protection of a cemetery, tomb, monument, gravestone or other structure,
(iii) any cemetery lot within a cemetery, or
(b) wilfully and unlawfully disturbs persons assembled in a cemetery for the purposes of burying a body,
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
30(2)Such person is also liable in an action in the name of the company to pay all damages occasioned by his unlawful act; and the money when recovered shall be applied under the direction of the directors to the reparation and reconstruction of the property destroyed.
30(3)If a cemetery company
(a) passes a by-law prohibiting any person except a person authorized by the company, to be in the cemetery during certain hours at night, and
(b) posts a notice of the prohibition at each and every entrance to the cemetery,
any person violating the by-law is guilty of an offence and liable to the same penalty as is provided under subsection (1).
R.S., c.26, s.31; 1965, c.8, s.1; 1984, c.18, s.5; 1990, c.61, s.19
Approval to operate cemetery
31No cemetery, either public or private, shall be established unless by a company incorporated under the provisions of this Act.
R.S., c.26, s.32
Family cemetery
31.1Notwithstanding section 31, a family cemetery may be established by a person other than a company.
1984, c.18, s.6
Application of sections 9 to 16
32(1)Subject to subsection (2) the provisions of sections 9 to 16 shall apply to all cemeteries or burial grounds heretofore or hereafter established, whether public or private, and whether owned by an incorporated company or otherwise.
32(2)The person responsible for a family cemetery is not required to furnish free graves under section 16.
R.S., c.26, s.33; 1984, c.18, s.7
Crematoria
33The powers of a cemetery company shall be deemed to extend to and include the provision and maintenance of crematoria and columbaria and the disposal of the bodies of deceased persons by cremation or incineration and the provision of such fixtures, appliances and facilities as may be deemed necessary in order that such cremation or incineration may be carried on in accordance with accepted scientific principles.
R.S., c.26, s.34
By-laws respecting cremation
34A cemetery company, subject to the approval of the Lieutenant-Governor in Council, has power to make by-laws, rules and regulations for the reception, cremation or incineration of the bodies of deceased persons, for the deposit of ashes remaining therefrom in a suitable columbarium or for otherwise disposing of the same, and for the fees and rates to be charged.
R.S., c.26, s.35
Permit for cremation
35No person shall cremate a body until a permit has been issued by the Registrar General in accordance with section 30 of the Vital Statistics Act or, where the death has occurred elsewhere than in the Province, until a like permit for cremation has been issued by a competent authority of the province wherein the death occurred.
R.S., c.26, s.36; 1960, c.20, s.4; 1984, c.18, s.8; 1996, c.24, s.32
Time when cremation prohibited
36No body shall be cremated within 48 hours after decease unless death has been occasioned by a notifiable disease or notifiable event under the Public Health Act or the regulations passed under the authority of that Act and so certified by a duly qualified medical practitioner, in which case, despite section 35, a medical officer of health may order that the body of the deceased be cremated immediately.
R.S., c.26, s.37; 2017, c.42, s.71
Certificate of death for cremation
37Unless a coroner certifies that the cause of death has been ascertained and that there exists no reason for further examination, a cemetery company shall not cremate a body.
R.S., c.26, s.38; 1966, c.37, s.6
Coroner’s fee
38The party applying for a certificate referred to in section 37 shall pay to the coroner such fee as is prescribed under the Coroners Act.
R.S., c.26, s.39; 1966, c.37, s.6
Refusal to cremate
39In any case the cemetery company has the right to refuse to cremate without assigning reasons.
R.S., c.26, s.40
Approval to operate crematorium
40No cemetery company shall establish or operate a crematorium or columbarium until the approval of the Minister has been obtained and the Minister may require such cemetery company to submit such plans and specifications as he may deem necessary, and any expenses incurred by the Department of Health in connection with such application shall be paid by the cemetery company.
R.S., c.26, s.41; 1986, c.8, s.19; 2000, c.26, s.32; 2006, c.16, s.18
Inspectors
40.1(1)The Minister may appoint such number of persons as he considers necessary as inspectors for the purposes of this Act and the regulations.
40.1(2)An inspector may at any reasonable time enter a cemetery, columbarium, crematorium, crypt, mausoleum or vault and offices of a company to make an inspection to determine whether the provisions of this Act and the regulations are being complied with.
40.1(3)Upon an inspection under this section, the directors, officers, employees and agents of the company or, in the case of a family cemetery, the person responsible for the cemetery shall make available to the inspector all books, accounts, records and plans required to be maintained in accordance with the Act or the regulations.
40.1(4)No person shall obstruct or hinder an inspector in the carrying out of his duties or the exercising of his powers under this Act or the regulations.
1984, c.18, s.9
Regulations, offences and penalties
41(1)The Lieutenant-Governor in Council may make regulations
(a) respecting standards of sanitation and security in relation to graves, columbaria, crematoria, crypts, mausolea and vaults;
(b) respecting the establishment, alteration or extension of a cemetery, columbarium, crematorium, crypt, mausoleum or vault;
(c) requiring a company or a person responsible for a family cemetery to furnish to the Minister information, plans, accounts, books and records;
(d) respecting the construction, organization, location, maintenance or repair of cemeteries, columbaria, crematoria, crypts, mausolea and vaults;
(e) respecting the information, plans, accounts, books and records to be maintained by companies or persons responsible for a family cemetery;
(f) respecting the management and operation of a cemetery, columbarium, crematorium, crypt, mausoleum or vault;
(g) respecting the duties of an inspector;
(h) respecting the burial or other disposal of human remains in a cemetery;
(i) respecting the removal of human remains from a cemetery and the reburial of those human remains;
(j) providing for the establishment and maintenance of a register of burials by the Minister.
41(2)A person who violates or fails to comply with any rule or regulation made under subsection (1) or any by-law or regulation made under section 7 commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category B offence.
41(3)A person who violates or fails to comply with section 5 commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence.
41(4)A person who violates or fails to comply with section 40 commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
41(5)A person who violates or fails to comply with subsection 15(1) or 15(2) or section 35, 36 or 37 commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
R.S., c.26, s.42; 1966, c.37, s.7; 1977, c.7, s.2; 1984, c.18, s.10; 1990, c.61, s.19; 1991, c.27, s.7
N.B. This Act is consolidated to June 16, 2023.