Trillium Funeral Services et al v. McGarry 2010 ONSC 2062

COURT FILE NOS.: 09-DV-1514 and 09-DV-1516

DATE: 2010-04-09

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Registrar, Board of Funeral Services, Trillium Funeral Services Corporation et al v. Brian McGarry

BEFORE: Kent, Heeney and Wilton-Siegel JJ.

COUNSEL: J. Martin, for the Appellant Registrar, Board of Funeral Services L. Harmer, for Appellant Trillium Funeral Services Corporation S. Cavanagh, for the Respondent Brian McGarry

HEARD: April 7, 2010

ENDORSEMENT

[1] These appeals, which were heard together, call for the interpretation of s. 28(1) of Regulation 470 to the Funeral Directors and Establishments Act, R.S.O. 1990, c. F.36, which reads as follows:

28(1) If the operator of a funeral establishment or transfer service carries on business under a name or style other than its corporate name,

(a) The corporate name shall be clearly disclosed to the public on the licensee’s letterhead, contracts, price lists, brochures and business signs;

[2] Interpretation of a statute is a question of law, and all counsel agree that the appropriate standard of review is correctness. The question to be determined here is what is meant by the words “clearly disclosed to the public” as it relates to six particular business signs of Trillium Funeral Services Corporation.

[3] The Complaints Committee found that the Appellant Trillium was not in violation of that regulation in the manner in which it disclosed the corporate name on its signs. The Committee appears to have applied the test that the Board says was employed by the inspector, Mr. Balon, which is to ask whether the corporate name is capable of being read from the location where the sign itself is intended to be read by a consumer. We are advised by Ms. Martin, for the Board, that the vantage point used by their inspectors is the walkway one would follow as one enters the premises. However, the reasons of the Committee do not disclose the test applied, nor is there a transcript from which we can determine the basis for their decision that no violation had occurred.

[4] On appeal to the Licence Appeal Tribunal, Vice-Chair Proulx misstated the test used by Mr. Balon, and characterized it as being whether the corporate name “appeared on the sign”. She then dismissed that approach, holding that for a name to be “clearly disclosed”, more was required than simply disclosing the name somewhere on the sign.

[5] She focussed on the large discrepancy in the font used for the name “Kelly Funeral Homes”, which on the photographs was in very large font, as compared to the size of the font used for the corporate name, which was in comparatively small font. On some of the signs seen in the photographs filed, one might describe the corporate name as being in fine print, relative to the main part of the sign.

[6] The Vice-Chair therefore concluded that due to the discrepancy in font size, the corporate name had not been clearly disclosed. She stated:

There is such a discrepancy in the size of the font used for the name “Kelly” and the corporate name that it is not reasonable to conclude that it is easily visible. Unless the public was aware of the requirement to disclose the corporate name on the business sign and was asked to identify it, the Tribunal finds that the corporate name could not be easily visible to the public.

[7] We see no necessary connection between the relative size of the font and compliance or non-compliance with the requirement of disclosure. As a matter of logic, if the corporate name is of a sufficient size to be easily readable by the public, that will not be affected by the relative size of the font bearing the business name of the funeral home situated above it. We are satisfied that the Vice-Chair committed an error of law in interpreting the regulation in the manner that she did.

[8] The appeal will, therefore, be allowed and the decision of the Vice-Chair set aside. What remains to be addressed is the interpretation of the section in question.

[9] We agree with the Vice-Chair that the purpose of this section is the protection of the public, to ensure that they know with whom they are dealing when they choose a funeral home. The object of s. 28(1)(a) is to ensure that consumers are made aware that the name under which the funeral home carries on business is not the true owner, and that the corporate name of the true owner is disclosed to those consumers. To comply with this section, the corporate name must be clearly readable to a prospective consumer from the vantage point from which the particular sign is intended to be read. That vantage point is determined by the physical features of the sign, including its size, layout, font size, orientation to the street, and positioning on the property, among other things. Clearly, the test is a contextual one.

[10] For example, if a sign says “Kelly Funeral Homes” in font large enough to be seen from several hundred meters away, and the sign is in a position to be seen up and down the street, one may conclude that the sign is targeting, and is intended to be read by, potential consumers who may be some distance away from the premises, or perhaps merely driving by in a car. Section 28(1)(a), in our view, requires that the name of the corporate owner be readable from that same vantage point.

[11] The final issue is the appropriate means of addressing the Respondent’s complaint. In the absence of a record of the hearing of the Complaints Committee, but taking into consideration the more specialized expertise of the Board in respect of the enforcement of the Act and the Regulation, we conclude that the matter should be referred to the Complaints Committee for reconsideration as to whether Trillium’s six signs comply with the Regulation, in the manner articulated above.

[12] Costs are awarded to the Appellant Trillium, payable by the Respondent McGarry, in the agreed-upon amount of $7,500 plus GST. The Board does not seek costs.

Mr. Justice J. Kent

Mr. Justice T. Heeney

Mr. Justice H. Wilton-Siegel

Date: April 9, 2010