Wander into any pawnshop at Church and Queen and almost anything you might need someone else no longer wants. How much money do they get for it? If they're lucky, half of its resale value. No questions asked here - possession is the law. It seems the notion is contagious, because just down the street at Church and King an attempt is being made to sell privately something that rightly belongs to the people of Toronto: the historic St. James Cathedral.
The people of the Town of York (now Toronto) were given the land. The Anglican Church got the right to build the cathedral there. Unquestionably, the buildings of St. James belong to the Church. But the land that they occupy and the entire surrounding plot are and have always been the property of the citizens of York (or Toronto).
In 1817, the Crown granted, under letters patent, a tract of land to the inhabitants of the Town of York, for their "sole use and benefit forever as a Churchyard and a Burying Ground." And that's the way it has remained until quite recently, when the dean of the cathedral, the Very Reverend Dean Stoute, entered into an agreement in principle (a letter of intent) to sell some of the land for the development of a condominium. The trouble is that bodies are buried there - lots of them.
No problem. The dean brought an application to exhume and relocate these bodies to make way for the development. Soon after, that application was quickly withdrawn and a new one proffered, claiming that the application was being made to restore dignity to those buried there.
When it was pointed out to the Ministry of Consumer and Corporate Relations that the person bringing the application didn't even own the land, and further, that he was asking to remove bodies from land specifically designated as a burial ground, the second application was also withdrawn.
But it didn't end there. Most recently, the dean has gone to the city of Toronto to obtain rezoning for the land upon which the cathedral and its buildings sit - our land. This proposal, if approved, would allow him to sell "air rights" to allow the building of a condo tower (much higher than might otherwise be allowed) at an adjacent property on the northwest corner of Adelaide and Church, kitty-corner from St. James. A reasonable person might think, "But the air rights are not the church's to sell."
Still, the city has approved the proposal anyway, and the matter is now before the Ontario Municipal Board.
How can they ignore the title? A subtlety of the land registry system, a thing called the 40-year rule. It says that when searching the title of a property, you need only go back 40 years to satisfy yourself you're getting clear title. The original Crown patent (dated 1817) was the only ownership registration on title until January 17, 2000. On this date, The rector and churchwardens of St. James' Cathedral, Toronto, a corporation incorporated by provincial statute, registered a deed from itself to itself. This deed makes no reference to the public interest under the Crown patent that was on title for the preceding 183 years.
This new deed is a curious instrument. It states that the lands were vested in the rector and churchwardens of St. James Cathedral, Toronto. Close examination of section 2 of this act, 3 Edward VII, chapter 125 (Ontario), however, reveals that this property was vested in trust. Further examination reveals that this land is prohibited from being sold.
The 2000 deed's most puzzling statement is "The Transferor is transferring the property to itself for the purposes of clarifying title." This deed clarifies nothing. What it does do is obscure the beneficiaries' - our - interest in the land.
The city has sided with the church, passing the bylaws and zoning amendments needed to facilitate the transfer. Why is City Hall permitting this hijacking of public property?
Somewhere along the line, the city received a legal "opinion" saying the sale is legal. The St. James Preservation Society has been trying to obtain a copy of that opinion through Freedom of Information. The city is now claiming privilege to keep the opinion from seeing the light of day.
So any day now, it would appear that the good dean will get his wish and be able to sell off the air rights - apparently for 50 condominium parking spots, some renovations to the existing parish hall, new offices for the trustees' employer, the Anglican diocese, and residential suites for the clergy in a renovated parish hall.
Hope I can use one of the parking spots next time I need to visit the pawnbrokers just up the street.
Peter Currie is a title searcher, and Dougall Grange a paralegal. They are co-founders of the St. James Preservation Society.