Board of Funeral Services (Registrar) v. Schmolinski
88 O.R. (3d) 119
Ontario Superior Court of Justice, Divisional Court,
Carnwath, Kitely and Murray JJ.
November 9, 2007
Administrative law -- Boards and tribunals -- Jurisdiction -- Neither Complaints Committee of Board of Funeral Services nor Licence Appeal Tribunal having jurisdiction to award monetary compensation to complainant pursuant to s. 14(2)(c) of Funeral Directors and Establishments Act -- Funeral Directors and Establishments Act, R.S.O. 1990, c. F.36, s. 14(2)(c).
S made a formal complaint to the Complaints Committee of the Board of Funeral Services pursuant to s. 14 of the Funeral Directors and Establishments Act after a pair of diamond earrings worn by his late wife during the visitation period at a funeral home went missing. The Complaints Committee decided not to refer the complaint to the Discipline Committee. S appealed to the Licence Appeal Tribunal. The Tribunal found that the funeral home was at fault, and held that the Complaints Committee had jurisdiction to award monetary compensation to S. The Tribunal ordered the funeral home to pay compensation in the amount of $4,800. The Registrar of the Board appealed.
Held, the appeal should be allowed.
Under s. 14(2)(c) of the Act, where the Complaints Committee decides not to refer a matter to the Discipline Committee, it is empowered to "take or recommend such action that it considers appropriate in the circumstances and that is not inconsistent with this Act, the regulations or the by-laws". The Complaints Committee is not required to afford any person a hearing. It would be inconsistent with fairness and natural justice that compensation would be awarded against any individual without that individual having a right to a hearing or a right to make submissions. The statutory authority of the Committee should not be interpreted in a manner that is inconsistent with generally accepted concepts of fairness. The power to award compensation is also inconsistent with the specific grant in the Act to the Board of Funeral Services of the much more limited power to mediate disputes between complainants and licensees. There is no specific statutory authority authorizing the Board or its Committees to award compensation to an individual complainant. In the absence of specific statutory authority, the Complaints Committee had no jurisdiction to award compensation. The Tribunal's jurisdiction was the same as that of the Complaints Committee.
APPEAL from the decision of the Licence Appeal Tribunal allowing an appeal from the decision of the Complaints Committee of the Board of Funeral Services.
Cases referred to Birnbaum v. Institute of Chartered Accountants of Ontario, [1991] O.J. No. 330, 47 O.A.C. 232, 25 A.C.W.S. (3d) 772 (Div. Ct.); Persaud v. Society of Management Accountants of Ontario, [1997] O.J. No. 884, 144 D.L.R. (4th) 375, 98 O.A.C. 216 (Div. Ct.) Statutes referred to Funeral Directors and Establishments Act, R.S.O. 1990, c. F.36, ss. 3 [as am.], 14 Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G
Julie A. Maciura, for appellant. No one appearing for respondent. [page120]
The judgment of the court was delivered by
[1] MURRAY J.: -- This is an appeal by the Registrar, Board of Funeral Services, from an order dated June 12, 2007 of the Licence Appeal Tribunal. The Licence Appeal Tribunal held that the Complaints Committee of the Board of Funeral Services and the Licence Appeal Tribunal had jurisdiction to award monetary compensation to a complainant pursuant to s. 14(2)(c) of the Funeral Directors and Establishments Act, R.S.O. 1990, c. F.36 (the "Act").
The Facts
[2] Rose Mary Schmolinski died on November 28, 2005. The Windsor Chapel Funeral Home Limited was responsible for funeral arrangements. Carl Schmolinski complained about the disappearance of a pair of one-half carat diamond earrings worn by his late wife during the visitation period at the Windsor Chapel. Mr. Schmolinski asserted that the funeral home was responsible for the disappearance of the earrings. The funeral home took the position that all jewellery had been returned to the family of the deceased.
The Complaints Committee of the Board of Funeral Services
[3] On October 6, 2006, Mr. Schmolinski made a formal written complaint about the disappearance of the earrings to the Complaints Committee of the Board of Funeral Services. Mr. Schmolinski's complaint was made pursuant to s. 14 of the Act.
[4] Section 14(1) of the Act requires the Complaints Committee to consider and investigate complaints regarding the conduct or actions of any licensee. The jurisdiction of the Complaints Committee is set out in s. 14(2) as follows:
14(2) The Complaints Committee in accordance with the information it receives may,
(a) consider all or part of the matter;
(b) direct that all or part of the matter be referred to the Discipline Committee; and
(c) subject to subsection (9), take or recommend such action that it considers appropriate in the circumstances and that is not inconsistent with this Act, the regulations or the by-laws.
[5] On December 13, 2006, the Complaints Committee decided not to refer Mr. Schmolinski's complaint to the Discipline Committee and recommended the funeral home put in place a thorough written policy and procedure for handling personal effects. The Complaints Committee also stated that: [page121]
The Committee is not in a position to order or recommend that the funeral home make any payments to the complainant for the earrings. Only a judge in a court of law could make such an order. The Committee believes the complainant's only remedy to secure reimbursement for the earrings would be through the civil courts.
The Licence Appeal Tribunal
[6] Mr. Schmolinski appealed to the Licence Appeal Tribunal (the "Tribunal") pursuant to subsection 14(6) of the Act. Section 14(6) states:
14(6) The Registrar shall send to the complainant and to the person complained against by prepaid first class mail a copy of the proposal of the Complaints Committee and its reasons therefor, if any, together with notice that informs the person to whom it is sent that the person is entitled to a hearing by the Tribunal if the person mails or delivers to the Registrar and to the Tribunal, within fifteen days after the notice is served on the person, notice in writing requiring a hearing and the person may so require such a hearing.
[7] On the appeal the Tribunal considered two issues: (1) whether the earrings were lost through any fault of the Windsor Chapel Funeral Home; and, if so, (2) what remedy was available to Mr. Schmolinski.
[8] The Tribunal concluded that the funeral home was at fault. In addition, the Tribunal held that the Complaints Committee did have the jurisdiction to award compensation to the complainant. Based on a review of subsections 14(2), (9) and (10) of the Act, the Tribunal concluded:
A reading of the Act makes it clear that the main purpose of this legislation is to protect the interests of members of the public dealing with funeral Directors and establishments by, among other things, "establishing standards of practice for persons who operate funeral establishments" (clause 3 (3) 2) and mediating complaints between consumers and licensees (clause 3 (3) 6). Any recommendation resolving a complaint, which serves to protect the public interest or foster confidence of the public in the services they will receive from funeral directors or homes falls, in the Tribunal's opinion, well within the scope of the powers the legislature intended to be exercised by the Complaints Committee. In the Tribunal's opinion, awarding the complainant compensation for the value of the personal effects lost through the negligence of the operators of the funeral home is fair and reasonable to the complainant and will have the beneficial effect of encouraging funeral homes to adopt reasonable standards regarding the safekeeping of property entrusted to their care. It is an action which the complaints committee might have considered "appropriate in the circumstances" and within its jurisdiction, being "not inconsistent with the act, the regulations or the bylaws." In this respect the Tribunal substitutes its opinion for that of the committee.
[9] The Tribunal ordered the Complaints Committee to carry out its proposal of December 13, 2006, and further ordered the funeral home to pay compensation to the estate of Mr. Schmolinski's late wife in the amount of $4,800, covering the value of the earrings entrusted into its possession. [page122]
Appeal to the Divisional Court
[10] The Registrar, Board of Funeral Services, appeals to the Divisional Court from the decision of the Tribunal pursuant to the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. The Registrar argues that the Tribunal erred in deciding that the Complaints Committee or the Tribunal had jurisdiction to award compensation to the complainant.
[11] Mr. Schmolinski has resolved his complaint with the Funeral Home and did not participate in the appeal.
Analysis
[12] The starting point in this analysis is the wording of the statute. The Complaints Committee may exercise only those powers conferred on it by the legislature.
[13] The principal object of the Board of Funeral Services set out in s. 3(2) of the Act is to regulate the practice of funeral Directors and persons who operate funeral establishments in accordance with the governing legislation in order that the public interest may be served. Additional objects (s. 3(3)) include maintaining standards of skill, qualification and professional ethics as well as to mediate complaints between consumers and licensees. The Complaints Committee is a committee of the Board of Funeral Services established under the Act.
[14] I agree with the appellant that the purpose of the Complaints and Discipline process of the Board of Funeral Services is to deal with allegations of professional misconduct or conduct that is relevant to suitability to practice as a funeral director. The Complaints Committee is an investigative and screening committee whose principal role is to determine whether a complaint is serious enough to refer to the Discipline Committee. After holding a hearing and making a finding of professional misconduct, the Discipline Committee of the Board of Funeral Services may order one or more of the penalties set out in the Act.
[15] In circumstances where the Complaints Committee decides not to refer a matter to the Discipline Committee, it may "take or recommend such action that it considers appropriate in the circumstances that is not inconsistent with this Act, the regulations or the by-laws". The Complaints Committee is not required to afford any person a hearing. Section 14(5) of the Act states as follows:
14(5) The Complaints Committee is not required to hold a hearing or to afford any person an opportunity for a hearing or to make oral submissions before it prior to it taking action or making a recommendation under this section. [page123]
[16] The power to award compensation or damages to a complainant is inconsistent with the proviso that the Complaints Committee is not required to hold a hearing before taking action or making a recommendation. It is inconsistent with fairness and natural justice that compensation would be awarded against an individual without that individual having any right to a hearing or without any right to make submissions to the decision-maker. It would be unreasonable to interpret the statutory authority of the Complaints Committee in a manner that is inconsistent with generally accepted concepts of fairness.
[17] The power to recommend or take action must not be inconsistent with the Act, the regulations or the by-laws. The power to award compensation is inconsistent with the specific language of s. 3(3)6 of the Act which provides that: "For the purpose of carrying out its principal object, the Board has the following additional objects: to mediate complaints between consumers and licensees." Therefore, the power to award compensation or damages is also inconsistent with the specific grant in the Act to the Board of Funeral Services of a much more limited power to mediate disputes between complainants and licensees.
[18] A review of the Act makes it clear that, except through the Prepaid Funeral Services Compensation Fund, there is no specific statutory authority authorizing the Board or its Committees to award compensation to an individual complainant. The Complaints Committee of the Board does not have statutory authority under the Act to award monetary compensation to a complainant. In the absence of a specific statutory authority, the Complaints Committee has no jurisdiction to award compensation. See Birnbaum v. Institute of Chartered Accountants of Ontario, [1991] O.J. No. 330, 47 O.A.C. 232 (Div. Ct.) and Persaud v. Society of Management Accountants of Ontario, [1997] O.J. No. 884, 144 D.L.R. (4th) 375 (Div. Ct.).
[19] As noted above, the only authority to award monetary compensation contained in the Act is through the Prepaid Funeral Services Compensation Fund which is administered by the Compensation Fund Committee of the Board established pursuant to the Act and the regulations. Claims against this fund may be paid out only for losses sustained by persons as a result of prepaid contracts, that is, where money is held in trust by a licensee on behalf of a consumer and where contracts are not fulfilled or moneys owing under prepaid contracts are not paid in accordance with the Act. The Prepaid Funeral Services Compensation Fund has no application to Mr. Schmolinski's case. His loss was not sustained in relation to a prepaid contract. [page124]
[20] The jurisdiction of the Tribunal is set out in subsections 14(9) and (10) of the Act as follows:
14(9) After holding a hearing, the Tribunal may by order direct the Complaints Committee to carry out the proposal or refrain from carrying out the proposal and to take such action as the Tribunal considers the Complaints Committee ought to take in accordance with this Act and the regulations and, for such purposes, the Tribunal may substitute its opinion for that of the Complaints Committee.
(10) The Tribunal may attach such conditions to its order as it considers proper to give effect to the purposes of this Act.
[21] The Tribunal's jurisdiction is the same as that of the Complaints Committee. I have held that the Complaints Committee does not have statutory authority to award monetary compensation to a complainant. Likewise, the Tribunal has no authority to award compensation. I agree with the statement of the Complaints Committee that: " . . . the complainant's only remedy to secure reimbursement for the earrings would be through the civil courts".
Conclusion
[22] The appeal is allowed and the order of the Tribunal, dated June 12, 2007, is set aside and the decision of the Complaints Committee, dated December 13, 2006, is restored.
[23] The appellant did not seek costs and none are ordered.
Appeal allowed.