Prabhjot Kaur Johal v. Board of Funeral Services, 2011 CanLII 88463

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2011-01-17

FILE:

6086/FDEA

CASE NAME:

6086 v. Board of Funeral Services

Appeal under section 18 of the Funeral Directors And Establishments Act, R.S.O. 1990, c. F.36 from a Decision of the Discipline Committee of the Board of Funeral Services

Prabhjot Kaur Johal

Applicant

-and-

Board of Funeral Services

Respondent

DECISION AND ORDER

ADJUDICATOR:

Laurie Sanford, Vice-Chair

APPEARANCES:

For the Applicant:

Leo Klug and Betsy Klug, Counsel

For the Respondent:

Julie Maciura, Counsel

Heard in Toronto:

November 1, 2, 3, 5 and December 14. 2010

DECISION AND ORDER

This is an appeal by Ms. Prabhjot Johal to the Licence Appeal Tribunal (the “Tribunal”) from a decision of the Discipline Committee of the Board of Funeral Services (the “Discipline Committee”) dated April 22, 2010 which imposes a suspension and restrictions on the licence of Ms. Johal as a funeral director under the Funeral Directors and Establishments Act, R.S.O. 1990, c. F.36 (the “Act”) and imposes terms and conditions for the re-instatement of Ms. Johal’s licence.

Facts

The factual issue in this case is deceptively simple. Two women who interned at the Benisasia Funeral Home (“Benisasia”) each claim to have performed the same six embalmings. They agree that they did not perform the embalmings together. There is no evidence that they are both lying in claiming credit for them. The logically obvious conclusion is that one of them must be lying.

The significance of the deception lies in the educational requirements to become licensed as a funeral director. After completion of a recognised course, each candidate must intern for a period which is usually twelve months but which may be extended to a maximum of twenty-four months. Interns must train under a preceptor who supervises them while they perform the practical part of their training. Key among the requirements of internship is that interns perform fifty embalmings. Ideally, the preceptor supervises the conduct of the embalmings but in a busy funeral home such as Benisasia it is common to permit an intern to perform embalmings on her own after a basic level of competence has been established. Preparation Reports are completed by the intern for each embalming performed and these Preparation Reports are reviewed by the preceptor. It is common practice for both the intern and the preceptor to sign the Preparation Report after it is reviewed. At the completion of the internship, the Preparation Reports are kept by the intern and used during the practical examination.

One of the two women who claim to have performed the contested embalmings is Ms. Cathy Cowley, a former Registered Practical Nurse. After completing her funeral director’s training, she began her internship at Benisasia in May, 2006. Ms. Cowley testified that Ms. Tracey Witzel, a licensed funeral director at Benisasia, was her preceptor. Ms. Witzel supervised her first embalming but then left her to perform the embalmings on her own. She did get assistance from other funeral directors as needed. Ms. Cowley would pick up ten Preparation Reports at a time. After Ms. Cowley had completed the ten embalmings and the associated Preparation Reports, her evidence was that she would return the completed reports to Ms. Witzel who reviewed and signed the reports. From time to time, Ms. Witzel would sit down with Ms. Cowley and review the reports before signing them. Ms. Cowley was able to recall details about several of the six contested embalmings, usually details about specific embalming challenges that she faced. Ms. Cowley left Benisasia on February 19, 2007, after an upsetting incident at work and after completing thirty embalmings, if one includes the six in contention.

Ms. Cowley’s preceptor, Ms. Witzel, testified that she supervised a couple of Ms. Cowley’s embalmings and found Ms. Cowley to be competent to proceed on her own. After that, she saw Ms. Cowley performing embalmings a number of times. Ms. Witzel would have liked to have been available to supervise Ms. Cowley during her embalmings but Ms. Witzel was assigned to the night shift, which she preferred, and so was rarely in the building when Ms. Cowley was performing the procedure. However, Ms. Witzel testified that she was satisfied that Ms. Cowley had in fact performed the embalmings because she reviewed the Preparation Reports with Ms. Cowley before signing them. She noted that Ms. Cowley’s reports were particularly detailed, which might be explained by her training and experience in nursing. Ms. Witzel testified that she would ask questions about the procedure and the type and concentration of embalming fluid used and was satisfied with the answers. She would not have signed the Preparation Reports if she had not been satisfied that Ms. Cowley had done the work, she said. She testified that she has no doubt that Ms. Cowley did the six embalmings in question.

The second woman claiming credit for performing the contested embalmings is Ms. Johal. Unusually, Ms. Johal was already licensed as a funeral director and was the owner of Benisasia at the same time that she was interning there. She had originally completed her formal education and had interned for twelve months but did not do the requisite fifty embalmings. Accordingly, she was granted a licence as a funeral director without embalming privileges. There are only seventeen such licences in Ontario, out of over 2,600 funeral directors. In addition to obvious reasons of marketability, the overwhelming majority of funeral directors become licensed to perform embalmings because only funeral directors who are so licensed may become the Managing Director of a funeral establishment that performs the procedure. The Managing Director runs the funeral establishment and supervises the staff for compliance with the Act. It is a clear advantage for an owner to also be the Managing Director.

Ms. Johal became the owner of Benisasia under unusual circumstances when she was still a student. She has ambitious plans for Benisasia and at the time in question, the fall and winter of 2006/07, she was busy opening a second location for the business.

Ms. Johal testified that her preceptor during the time in question was Ms. Deborah Walters, who was also the Managing Director of the business at the time. Ms. Johal testified that she performed twenty embalmings under the supervision of Ms. Walters and that Ms. Walters was present during her performance of five of the six embalmings in question although she was in and out of the room. Ms. Walters, Ms. Johal testified, gave her permission to print Ms. Walters’s name on the Preparation Reports as they had done the embalmings together. On two of the six contested embalmings, Ms. Johal testified that Ms. Walters came in on two separate Sundays, her day off, to supervise the procedure. Ms. Walters was in the habit of punching a time card but, according to Ms. Johal, on the two Sundays when Ms. Walters came in specifically to oversee the embalmings, she did not punch in. Instead, Ms. Johal made a handwritten note on the time cards. On one of the Sundays in question Ms. Johal paid Ms. Walters $85 in cash for her trouble.

Ms. Walters also gave evidence. She testified that Ms. Johal was willing to do embalmings the first couple of times but after that it was not easy to get her into the embalming room. Ms. Johal would not refuse but she would say she was too busy and Ms. Walters would end up doing the embalming herself. Ms. Walters testified that Ms. Johal did not like the smell of the embalming.

With one exception, an embalming not in issue here, Ms. Johal did not turn in her Preparation Reports to Ms. Walters. Ms. Walters was not aware that Ms. Johal was doing embalming with any other funeral directors and she was doing very few embalmings with Ms. Walters so Ms. Walters did follow up a couple of times to ask to see her Preparation Reports. When she approached Ms. Johal, she would be told things like, “Do you want to get paid this week?” and “I have more than one business to run.” She interpreted this to mean that Ms. Johal was too busy to be disturbed. Ms. Walters concluded that it was not her responsibility to chase Ms. Johal to do the requisite number of embalmings so she stopped asking for the Preparation Reports.

Ms. Walters directly contradicts Ms. Johal’s evidence that she supervised Ms. Johal doing five of the six contested embalmings or that she authorised Ms. Johal to print her name on the Preparation Reports. Ms. Walters also flatly denies Ms. Johal’s testimony that she paid Ms. Walters in cash to come in one Sunday to supervise one of the disputed embalmings or that Ms. Walters came in on a second Sunday to supervise another of the embalmings in issue.

Both preceptors, Ms. Witzel and Ms. Walters, gave evidence about the embalming of the intern they did not supervise. Ms. Walters testified that she saw Ms. Cowley many times in the embalming room alone. She helped Ms. Cowley from time to time and observed that “she was getting very good”. Ms. Witzel testified that she saw Ms. Johal in the embalming room a couple of times but that she was more an onlooker than a participant. She would leave the “nasty parts” for others to do. Ms. Witzel could tell that Ms. Johal did not like embalming and there was perfume in the embalming room which Ms. Johal frequently used to mask the smell.

Ms. Johal is unable to explain why Ms. Walters contradicts her testimony. Concerning the evidence of Ms. Walters and Ms. Witzel about her aversion to embalming, she explained that initially, she had found the smells very unpleasant but that she had overcome this to finish the required fifty embalmings.

Concerning the sixth embalming, Ms. Johal testified that she performed the embalming in the presence of Mr. Tim Kolotyliuk, who was at the time a funeral director and who since has become Managing Director of one of Benisasia’s two locations. Mr. Kolotyliuk became Ms. Johal’s preceptor when Ms. Walters left Benisasia in February, 2007 and oversaw the balance of the embalmings needed by Ms. Johal to complete her licensing requirement.

Mr. Kolotyliuk corroborates Ms. Johal’s testimony that he supervised her performing one of the contested embalmings, an embalming that Ms. Johal and Mr. Kolotyliuk testified occurred on November 28, 2006.

There is an inconsistency about the date of this embalming between the testimony of Ms. Cowley and the evidence of Ms. Johal and Mr. Kolotyliuk. Ms. Cowley testified that she performed this embalming on November 29, 2006, a day after the date Ms. Johal testified that she had done it. Mr. Kolotyliuk, Ms. Johal’s preceptor, testified that he was present and the embalming occurred on November 28, 2006. However, Ms. Witzel, Ms. Cowley’s preceptor, testified that she was collecting the body in Orangeville on November 28, 2006 at the approximate time that Ms. Johal says she was embalming it. Ms. Johal and Mr. Kolotyliuk suggested that Ms. Witzel must have been mistaken in her recollection of picking up the body.

There is another inconsistency in the two Preparation Reports of this embalming. In her Preparation Report, Ms. Cowley notes that she removed a pacemaker. The family of the deceased confirms that they had requested the pacemaker be removed. There is no mention of removing a pacemaker in Ms. Johal’s Preparation Report.

Also giving evidence were two representatives of the Board of Funeral Services (the “Funeral Board”). One representative testified to another set of discrepancies between the Preparation Reports of the two women, what might be called the “height and weight” discrepancies. The women differed in their assessments of height and weight of several of people they each claim to have embalmed. The most striking of these differences was in an embalming where Ms. Cowley reported in her Preparation Report that the deceased was 6 feet 2 inches and weighed 200 pounds. Ms. Johal, on the other hand, reported that the deceased was 5 feet 3 inches and weighed 105 pounds. The family of the deceased advised that the deceased was between 6 feet 1 inch and 6 feet 2 inches and weighed 160 pounds. There are no scales in the embalming room and tape measures are not used to assess height. Various witnesses testified that they either used the table, which is about 6 foot 5 inches long, as a reference point or they used their own height and weight as a comparison. Ms. Johal is herself 5 foot 3 inches tall and weighs over 105 pounds. She testified that she has difficulty assessing weights and heights and that in this case she made a mistake.

Another Funeral Board representative, Ms. McCoy, testified that she visited Benisasia on February 9, 2007 which was, by coincidence the same day that Ms. Walters left the firm. The Funeral Board had sent Ms. McCoy to Benisasia because it was concerned that Ms. Johal was falling behind in her embalmings. Ms. McCoy testified that she met with Ms. Johal on that day and that she recalls Ms. Walters being present during the meeting. Ms. McCoy asked Ms. Johal how many embalmings she had performed and she answered that she had done approximately ten. Ms. McCoy recalls Ms. Walters and Ms. Johal agreed on this number. Ms. McCoy was concerned that Ms. Johal was now left with forty embalmings to do in the four months remaining of her internship. An extension of time to complete the internship was not possible under the internship rules but a suspension of the internship was an option. Ms. McCoy felt that it was possible for Ms. Johal to complete the required number of embalmings in the four months remaining if Ms. Johal focussed on achieving this goal. Ms. McCoy was concerned that the time Ms. Johal was spending opening her second location was distracting her from successfully completing her internship. Therefore, Ms. McCoy “strongly” encouraged Ms. Johal to suspend her internship until her second location was established and she could focus her attention on completing the required embalmings. Ms. Johal refused.

Ms. Johal testified that she declined to suspend her internship because she was confident that she could finish the required number of embalmings by June, 2007 and that, under the preceptorship of Mr. Kolotyliuk, she did complete the requirement.

Ms. Johal does not recall meeting with Ms. McCoy on February 9, 2007 and Ms. Walters gave no evidence that she attended the meeting. Both Ms. Johal and Ms. Walters recall another meeting on that day. As Ms. Walters was leaving the employ of Benasisa, she was asked to sign a standard Funeral Board affidavit attesting to the number of embalmings Ms. Johal had performed under her preceptorship. Ms. Walters and Ms. Johal agreed that Ms. Johal had completed twenty embalmings and Ms. Walters swore her affidavit to that effect. Ms. Johal also swore an affidavit saying she had performed twenty embalmings as of that date. Ms. Walters testified that before signing the affidavit, she explained to Ms. Johal that, in calculating the number of embalmings performed, she was including approximately eleven that she believed Ms. Johal had done under her supervision and a further nine that the two women had previously agreed not to count. Ms. Johal, on the other hand, testified that she had a very brief conversation with Ms. Walters on this occasion and that they agreed that the correct number was twenty without any explanation.

In determining who is being truthful in claiming to have performed the six contested embalmings, the Tribunal considered a variety of factors, including the following.

Demeanour

Demeanour as a factor in determining credibility must be used with caution. People may respond differently to the stress and formality of giving evidence. In this case, demeanour was of little use in assessing the credibility of any of the witnesses. The two principal witnesses, Ms. Cowley and Ms. Johal, both gave their evidence with apparent candour and forthrightness and both gave consistent evidence during cross-examination. The other witnesses also gave their evidence forthrightly and with candour. Ms. Walters and Mr. Kolotyliuk both gave inconsistent evidence in cross-examination and the effect of that will be discussed below. It is important to note that all the witnesses had previously given testimony on this matter at a hearing conducted by the Discipline Committee.

As expected, there were minor inconsistencies within the evidence of each of Ms. Johal and Ms. Cowley. Mr. Klug, counsel for Ms. Johal, emphasised inaccuracies in a sworn statement of Ms. Cowley about the progress of her internship at the time she left Benisasia. She stated in her affidavit that she had arranged four funerals. In fact, Benisasia did not permit interns to arrange funerals and the four she did were “mock arrangements” she went through with her preceptor. Her preceptor, Ms. Witzel, confirmed Ms. Cowley’s testimony that these mock arrangements were completed by Ms. Cowley and that mock arrangements are accepted by the Funeral Board when there is no alternative available. The Tribunal does not consider that this inaccurate description on the affidavit affects Ms. Cowley’s credibility.

Corroboration

The Tribunal found Ms. Witzel, the preceptor of Ms. Cowley, to be a credible and convincing witness. Ms. Witzel has a habit of dating important events by reference to events in her life, which assisted her memory. The details she was able to recall about specific events were consistent with the circumstances about which she was testifying and were plausible and reasonable.

Beyond corroborating Ms. Cowley’s account, Ms. Witzel gave testimony about the discrepancy in the dates of the November, 2006 embalming noted above. She testified that she drove to Orangeville on November 28, 2006 to collect the body and was in fact picking up the body at the approximate time that Ms. Johal claims to have been embalming it. She remembers the occasion because it was a day before her birthday and because it was her first time out of town in the hearse and she was nervous about the trip. It was a sunny day and she regretted not having brought her sunglasses. The Tribunal accepts her evidence on this matter.

The Tribunal is satisfied that Mr. Kolotyliuk genuinely believes he supervised the embalming that Ms. Johal says she performed on November 28^th but the Tribunal does not accept his evidence.

Mr. Kolotyliuk suffers from two disabilities, one of hearing and one of speech. He was unable to complete grade 13 and has had great difficulty finding and keeping employment as a funeral director. On two occasions he was let go after his probation period and for six years he was unable to find employment in his chosen field.

Mr. Kolotyliuk appears to be a very trusting person and there is evidence that he is highly suggestible. For example, he testified that he had been “instructed” that Ms. Walters had sworn an affidavit on her last day of work about the number of embalmings Ms. Johal had done. He evidently internalised this instruction to the point that, at the Discipline Committee hearing, he testified that he had been present during this meeting and had witnessed the oath. He concedes this is incorrect. He also, on the suggestion of Mr. Klug at the Discipline Committee hearing, testified that the November embalming he claims to have witnessed occurred in December. The Tribunal concludes that if someone Mr. Kolotyliuk trusted had told him that he had supervised the November embalming, it is probable that Mr. Kolotyliuk would believe it.

There is another embalming for which there is an inconsistency in dates. This discrepancy between the accounts of Ms. Cowley and Ms. Johal also tends to support Ms. Cowley’s claim to have performed the embalming. However, Ms. Cowley’s evidence is confirmed but not fully corroborated by Ms. Walters and by the work records of Benisasia. Accordingly, the Tribunal did not give this discrepancy the same weight as the inconsistency about the November, 2006 dates.

Concerning the credibility of Ms. Walters, Mr. Klug, Counsel for Ms. Johal, during his cross-examination, focussed on the fact that when Ms. Walters left Benisasia on February 9, 2007, she signed an affidavit as Ms. Johal’s preceptor. In that affidavit, she swore that Ms. Johal had performed twenty embalmings under her supervision whereas Ms. Walters testified that the actual number was different. Ms. Walters testified that she was “sure” that Ms. Johal had completed eleven embalmings with her as preceptor and she understood that Ms. Johal had completed nine embalmings with a prior preceptor. In cross-examination, Ms. Walters stated that the figure of eleven embalmings under her supervision was an estimate.

It does seem that Ms. Walters was casual in calculating the number of embalmings Ms. Johal had performed as of February, 2007 under her supervision and that she swore an affidavit without being sure of accuracy of what she was attesting. On the other hand, under cross-examination by Mr. Klug, both Ms. Cowley and Ms. Witzel testified that they considered Ms. Walters to be an honest and forthright person, based on their work experience with her. Further, Ms. Walters’s account of the management and operation of Benisasia is corroborated by other witnesses. The Tribunal concludes that Ms. Walter’s credibility is affected but not irretrievably undermined by her evidence surrounding the affidavit she swore on leaving Benisasia. After cautious review, the Tribunal prefers her account of certain events to that of Ms. Johal for the following reasons.

The Tribunal prefers Ms. Walters’s evidence regarding the discrepancy in height and weight of one of the deceased in the contested embalmings. As noted above, in one case, Ms. Johal recorded in her Preparation Report that a body was 5 feet 3 inches and weighed 105 pounds whereas it was in fact about 6 feet 2 inches and weighed about 160 pounds. It is not plausible that Ms. Johal would have so substantially understated the weight of the deceased had she in fact done the embalming, especially given that she herself is 5 feet 3 inches and weighs more than 105 pounds. Both Ms. Witzel and Ms. Walters confirm that this is a mistake that not even a novice would make. When Ms. Walters was asked about the discrepancy, she chuckled. If she had supervised Ms. Johal doing the embalming, she testified, she would have corrected Ms. Johal’s estimate of the height and weight as this was an obvious error. The Tribunal found this evidence particularly convincing.

There was a stark difference in the testimony of Ms. Johal and Ms. Walters about whether Ms. Walters supervised Ms. Johal’s embalmings and permitted Ms. Johal to sign Preparation Reports on her behalf. The Tribunal prefers Ms. Walters’s account for the following reasons. The embalming noted above with the significant variation in height and weight was an embalming that Ms. Johal claims took place on a Sunday and for which Ms. Johal asserts she paid Ms. Walters in cash for attending. The evidence of Ms. Johal concerning both Sundays where she claims that Ms. Walters worked “off the clock”, lacks credibility. There was evidence that Ms. Walters routinely punched a time clock and no evidence that she was in the habit of not punching the time clock when she came in on her days off. There was no reason for Ms. Walters not to punch in if she in fact worked those days. It is not credible that Ms. Walters was at work on the two Sundays in question. It follows that, despite Ms. Johal’s evidence to the contrary, Ms. Walters could not have supervised Ms. Johal performing the two embalmings that Ms. Johal testified occurred on Sundays

Ms. Johal was not Ms. Walters’s first intern and Ms. Walters was familiar with the process of supervision. She testified that she routinely signed her interns’ Preparation Reports and has never permitted someone else to sign them on her behalf. Her testimony of following up with Ms. Johal to have her submit her Preparation Reports was convincing. It is also inconsistent with Ms. Johal’s testimony. If Ms. Walters had supervised the embalmings and given Ms. Johal permission to complete the Preparation Reports without further review, there would have been no need for Ms. Walters to follow up with Ms. Johal to request them. The fact that Benisasia was a busy funeral home and that Ms. Cowley was left on her own to do embalmings also makes it less probable that Ms. Johal was being as closely supervised as she has testified.

Ms. McCoy was also a convincing witness and she vividly recalls the day she went to Benisasia, as it was her first trip to a funeral home. The Tribunal accepts her evidence that she was at Benisasia on February 9, 2007 and that she met with Ms. Johal. However, her recollection of meeting both Ms. Walters and Ms. Johal to discuss the status of Ms. Johal’s embalming is implausible. It is unlikely that Ms. Johal would have invited Ms. Walters to what was a private meeting, especially since Ms. Walters had submitted her resignation earlier that day. It is also implausible that Ms. Walters would have agreed that Ms. Johal had completed ten embalmings and then, later on the same day, sworn an affidavit that Ms. Johal had in fact completed twice that number. The Tribunal does accept Ms. McCoy’s testimony that Ms. Johal advised her that Ms. Johal had completed approximately ten embalmings to that date. Ms. McCoy was at Benisasia specifically to address the Funeral Board’s concern about the number of embalmings Ms. Johal had performed. She based the strong recommendation she gave to Ms. Johal at that meeting on the low number of embalmings Ms. Johal had done. It is unlikely that she would have made such a fundamental mistake about the number she was given.

Prior Consistent Acts

In this case, not only is credit claimed for another’s work, the nature of the lie is such that, had it been believed, the innocent victim would have found herself facing sanctions for having misled the Funeral Board. Has either Ms. Cowley or Ms. Johal told a lie that calls someone’s professional reputation into question before this incident?

There is no evidence that Ms. Cowley has ever lied at the expense of another. By contrast, there was convincing evidence that Ms. Johal has lied in the past to further her own objectives at the cost of besmirching someone else’s good name. When Ms. Walters left Benisasia, Ms. Cowley testified that a staff meeting was called at which Ms. Johal said that Ms. Walters was “let go” because she exposed Benisasia to legal problems due to oversights. The staff was instructed not to contact her. Ms. Cowley learned of the lie when Ms. Walters telephoned her, sounding upbeat, and told her about Ms. Walters’s new job. Ms. Witzel corroborated this evidence, testifying that Ms. Johal said that Ms. Walters was not following proper Board procedures and they had to let her go. The Tribunal accepts Ms. Walters’s testimony that she left voluntarily on her doctor’s recommendation, because the stress of working at Benisasia was affecting her health. The Tribunal finds that Ms. Johal was lying when she said that Ms. Walters had done anything improper.

Motive

The Tribunal considered who profited from falsely claiming credit for the contested embalmings. Ms. Johal obviously did. She would be able to become the Managing Director of her business as a result. In addition, there was a more pressing motive. On February 9, 2007 Ms. Johal met with Ms. McCoy of the Funeral Board and, as noted above, the Tribunal finds that Ms. Johal told Ms. McCoy at that meeting that she had performed approximately ten embalmings. Within hours of this meeting, she permitted her preceptor to swear an affidavit stating that she had completed twenty embalmings, twice the number of embalmings that she had claimed in her meeting with Ms. McCoy. Ms. Johal also swore an affidavit saying she had completed twenty embalmings as of February 9, 2007. When the Funeral Board began its investigation, Ms. Johal had to account for approximately ten embalmings she had not done. These embalmings had to have been done during the time of Ms. Walters’ supervision. All six of the contested embalmings were done in that period.

By contrast, what we know about Ms. Cowley’s internship, based on the evidence of Ms. Witzel, Ms. Walters and Ms. McCoy, is that her embalmings were on track and no one was concerned about the number she was performing.

None of Ms. Cowley, Ms. Witzel or Ms. Walters had any reason to wish Ms. Johal well. They each gave evidence that they found Benisasia a stressful and harsh working environment. They each believed that working at Benisasia affected their health. However, there was no suggestion or evidence that Ms. Cowley, Ms. Witzel or Ms. Walters somehow colluded to cause trouble for Ms. Johal. Instead, it appears that each of them made the emotionally healthy decision to leave a stressful workplace. The fact that they all left in February, 2007 is notable but there was evidence that the turnover at Benisasia was high and the Tribunal accepts that the timing of their leaving was a coincidence.

Means

Some time was spent during the hearing considering whether Ms. Cowley would have had access to Ms. Johal’s Preparation Reports or vice versa. This is a red herring. Having access to Ms. Johal’s reports would not have greatly assisted Ms. Cowley as hers were significantly more detailed and contained information not available from Ms. Johal’s work. Parenthetically, the level of detail in Ms. Cowley’s Preparation Reports is one of the many small matters that add credence to Ms. Cowley’s evidence. Ms. Johal, as owner of the establishment and the person who most frequently met with customers, was in a different position than her intern. She did not need to see Ms. Cowley’s Preparation Reports in order to create ones of her own. Ms. Johal testified that she frequently assists in the bathing rituals performed by the South Asian community that Benisasia serves. During these rituals and in conversations with the family of the deceased, Ms. Johal could have gleaned the necessary information to fill in Preparation Reports. She had enough experience with the embalming procedure to plausibly fill in any required details of types and quantities of embalming fluid used.

The Tribunal concludes that there is very strong evidence that Ms. Johal did not perform at least two of the six embalmings for which she claims credit. As noted above, the Tribunal accepts Ms. Walters’s evidence that she did not supervise Ms. Johal in the embalming where Ms. Johal reported that a 6 foot two inch, 160 pound man was 5 foot 3 inches in height and weighed 105 pounds. The discrepancy in weight and height itself supports Ms. Cowley’s testimony and undermines Ms. Johal’s. Both Ms. Witzel and Ms. Walters testified that it was a mistake not even a novice would make. The Tribunal finds that Ms. Johal did not perform this embalming and that Ms. Cowley did.

The Tribunal accepts Ms. Witzel’s evidence that she was collecting the body on which another of the disputed embalmings was performed at the approximate time on November 28^th when Ms. Johal claims that she was embalming the body. The Tribunal does not accept Mr. Kolotyliuk’s evidence that he supervised this embalming. The Tribunal finds that Ms. Johal did not perform this embalming on November 28, 2006. Ms. Cowley did the embalming on November 29, 2006, as she has testified. The fact that Ms. Cowley correctly noted that a pacemaker had been removed on this occasion and that Ms. Johal overlooked this in her Preparation Report also supports Ms. Cowley’s account of this embalming.

The evidence regarding the other four embalmings is not as overwhelming but it is clear cut. There is a lesser discrepancy in height and weight measurements on one embalming that supports Ms. Cowley’s testimony and there is also one other instance of a difference in the date of embalming that supports Ms. Cowley’s evidence. There is the evidence of Ms. Witzel that she is satisfied that Ms. Cowley performed the embalmings based on her review of the Preparation Reports with Ms. Cowley. There is the evidence of Ms. Walters that she did not supervise five of the six contested embalmings as Ms. Johal asserts. Having concluded that Ms. Cowley was telling the truth about the two embalmings discussed above, it follows that there is a greater likelihood that she is telling the truth about the others. By contrast, there are the various factors noted above that call Ms. Johal’s credibility into question, including the fact that she has been found to be lying about two of the embalmings.

The Tribunal concludes that there is overwhelming evidence that Ms. Johal did not perform two of the contested embalmings. The Tribunal also finds that the Funeral Board has met the burden of proof, that of a balance of probabilities, regarding the other four embalmings. The Tribunal finds that Ms. Johal did not conduct any of the six contested embalmings for which she is claiming credit; Ms. Cowley performed them.

Decision

Ms. Johal is a bright, ambitious woman with palpable charm. She is also a woman who brazenly lied to the Tribunal. She attempted to take credit for the work of an intern she employed and she did so in circumstances where, had she been believed, the victim’s licence as a funeral director would have been in jeopardy for falsifying Preparation Reports. Before considering what the consequences of this deception should be, the Funeral Board submits that the Tribunal ought to consider the role of the Discipline Committee and the hearing it held.

To understand the respective roles of the Discipline Committee and the Tribunal, it is helpful to review the relevant provisions of the Act. Under the Act, there are three methods in which a funeral director may be sanctioned and three avenues of appeal to the Tribunal. There is a Registrar and subsection 20(2) of the Act provides that a person who has completed the educational requirements may apply to the Registrar for a licence as a funeral director. Subsection 20(3) provides that such a person in entitled to a licence unless:

(b) the past or present conduct of personal referred to in subsection (4) affords reasonable grounds for belief that the applicant will not operate in accordance with the law and with integrity and honesty;

(c) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for a licence

Licences may also be revoked by the Registrar for these reasons. Where the Registrar proposes to refuse or revoke a licence on these grounds, the applicant or licensee is entitled to a hearing by the Tribunal under section 22 of the Act and subsection 22(5) provides:

After holding a hearing, the Tribunal may by order direct the Registrar to carry out the proposal or refrain from carrying out the proposal and to take such action as the Tribunal considers the Registrar 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 Registrar.

In this respect, the Act is similar to over a dozen various acts which regulate certain industries and which provide for an appeal from registrars’ proposals to the Tribunal. The Divisional Court, in a series of cases, has spelled out the role of the Tribunal in appeals of this nature. In Zahariev v. Ontario (Registrar, Motor Vehicle Dealers Act)(2005), 2005 CanLII 44815 (ON SCDC), 205 O.A.C. 110, for example, the Court held:

The question that the Tribunal must ask itself is not whether the Registrar was wrong. Instead, the Tribunal is required to make an independent decision as to whether the criteria for depriving the Applicant of his license have been proven, showing no deference to the initial decision of the Registrar.

8This accords with the wording of s. 7(4) of the [Motor Vehicle Dealers] Act, which reads as follows:

Where an applicant or registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and, on the application of the Registrar at the hearing, may by order direct the Registrar to carry out the Registrar’s proposal or refrain from carrying it out and to take such action as the Tribunal considers the Registrar 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 Registrar.

9Counsel for the Tribunal concedes that this section requires a de novo hearing before the Tribunal. At that hearing, the Tribunal would be called upon to make a fresh determination of the factual issue set out in s. 5(1)(b) as to whether “the past conduct of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty”.

10This court, in Registrar, Motor Vehicle Dealers Act v. Shine Car Sales (2003), 2003 CanLII 11437 (ON SCDC), 40 M.V.R. (4^th) 86 (Ont. Div. Ct.), pointed out that Brenner “must be read carefully”. It went on to state the following, at para. 9:

It does not establish a rule that the Registrar must be shown to be wrong in having concluded that there was reason to doubt that the registrant would carry on business appropriately. [emphasis added]

11The court elaborated further on this point at para. 10:

It should be clearly understood that the Tribunal owes no deference to the Registar’s opinion. The Registrar is the investigator. The Registrar is not a trier of fact whose opinion is based upon a hearing and so entitled to deference.

The Act also provides for a Complaints Committee which, under subsection 14(1) of the Act is to “consider and investigate complaints regarding the conduct or action of any licensee” where a written complaint has been filed. The Complaints Committee is not required to hold a hearing or afford an opportunity for a hearing. However, it may take certain action as a result of its investigation. If either the person complained against or the complainant requires a hearing, then under subsection 14(8), it is the Tribunal which is to hold the hearing. Subsection 14(9) provides:

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.

It will be seen that this provision is identical to subsection 22(5) quoted above. Therefore, it follows that the decision in the Zahariev case would apply to appeals from a Complaints Committee decision.

The Act also provides for a Discipline Committee to be appointed by the Funeral Board. The Discipline Committee consists of four members of the Funeral Board, two of whom are not funeral directors. Under section 15 of the Act the Funeral Board or the Executive Committee of the Funeral Board may direct the Discipline Committee to hold a hearing and determine any allegation of professional misconduct on the part of a funeral director. Section 44 of Regulation 470 of the Act spells out a number of acts which would constitute professional misconduct. These include:

(o) signing or issuing a certificate, report or other document that contains a statement the licensee knows or ought to know is false, misleading or otherwise improper: . . .

(u) acting in a manner relevant to the practice of funeral directing that, having regard to the circumstances, would reasonably be regarded as unprofessional conduct.

The proceedings of the Discipline Committee are governed by, among other sections, Section 17 of the Act. This section provides that the Funeral Board and the funeral director whose conduct is being investigated are parties to the proceedings. The funeral director has the right to examine any written or documentary evidence to be adduced before the hearing. Discipline Committee Members are not to have taken part in the pre-hearing investigation. Discipline Committee Members are not to communicate with anyone, including any party, about the subject matter of the hearing without notifying the parties and giving them an opportunity to participate. The Discipline Committee may seek legal advice from independent counsel and the proceedings of the Discipline Committee at the hearing are recorded.

Ms. Maciura, counsel for the Funeral Board, in her submissions argued that Ms. Johal had received a full and fair hearing by the Discipline Committee. In fact, Ms. Maciura argued that the hearing before the Discipline Committee “looks more like a full hearing than this License(sic) Appeal process does.” She bases this argument on the fact that the Discipline Committee hearings are recorded by a court reporter, there is an independent counsel in attendance and the panel consists of three or four members. While this is not a compelling argument, it is important that neither party be left with the impression that they have received a “lesser” hearing before this Tribunal than before the Discipline Committee. When the Tribunal sits in Toronto, its proceedings are recorded digitally; when it is sitting out of town, there is a court reporter. In either case, the proceedings are recorded and a transcript is available to the parties. Vice-Chairs of the Tribunal are themselves lawyers, unlike the members of the Discipline Committee, so an independent counsel does not routinely attend Tribunal hearings. The presence or absence of independent counsel to advise the Tribunal during a hearing does not affect the legitimacy of the process. Finally, the panel size of the Tribunal in any hearing may vary from one to three, depending on the anticipated legal and evidentiary complexity of the case. The number of Tribunal adjudicators sitting on a hearing does not determine whether or not a valid hearing has occurred. This is not to take away from the legitimacy of the Discipline Committee process: Mr. Klug, counsel for Ms. Johal, while disagreeing with the findings of the Discipline Committee, did not argue that the hearing itself was inadequate or denied Ms. Johal a right to know the case she had to meet and to participate fully.

Section 18 of the Act provides for an appeal from the decision or order of the Discipline Committee to the Tribunal and subsection 18(2) provides, “Subsections 14(6) to (11) apply with necessary modifications to an appeal to the Tribunal from a decision or order of the Discipline Committee.” In other words, the Tribunal has the same responsibilities and authority on an appeal from the Discipline Committee as it does on a request for a hearing from the Complaints Committee, “with necessary modifications”.

Ms. Maciura submits that the Tribunal’s role, on an appeal from the Discipline Committee, is to review the decision of the Discipline Committee and in doing so, the Tribunal must defer to the decision of the Discipline Committee. She submits that the Act is of limited use in determining this matter because, unlike decisions of the Registrar or the Complaints Committee, the Discipline Committee holds a hearing. Therefore, she submits, the underlying reasoning of the Zahariev case does not apply here. The Discipline Committee is a trier of fact and therefore is entitled to deference. The role of the Tribunal, by this logic, is to review the decision of the Discipline Committee, applying the standard of reasonableness to that review in accordance with the decision in David Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

It is true that a principal reason given in the Shine case, which was cited with approval by the Court in Zahariev, was the fact that the Tribunal was dealing with an appeal from the decision of a Registrar who was not a trier of fact and therefore not entitled to deference. Does it follow, however, that the Tribunal ought to restrict itself to reviewing the decision of the Discipline Committee with a deferential standard of review because the Discipline Committee has conducted a hearing?

Ms. Maciura submits that it does and in support of her argument submitted a number of cases. The Tribunal is grateful for her assistance in this matter. One of the cases cited is Woodward v. Society of Notaries Public of British Columbia [1993] B.C.J. No. 332, 38 A.C.W.S. (3d) 1037, a decision of the British Columbia Supreme Court in Chambers. This was an application for directions in an appeal by a Notary Public from a decision of the discipline committee of the Society of Notaries Public of British Columbia. Clancy J. focuses on the wording of the statue involved because, in his words,

Statutory appeals take different forms. The jurisdiction of the tribunal and the powers of the court on appeal or review depend on the language employed by the legislature.

The specific wording of the statue in this case provided that the Court was to “hear and determine the matter in dispute de novo”. Clancy, J. concluded that the “matter in dispute” was whether the discipline committee had erred in its decision and therefore, despite the use of the wording “de novo” in the act, the Court owed deference to the earlier decision. However, this case can be distinguished from the present one because the wording of the statute differs from that of the present case. With one exception, which will be considered below, that is the difficulty with all the cases cited. They each must be regarded as specific to the legislation they consider.

It is to the Act before us that the Tribunal must turn for guidance. The question to be determined is whether, because the Discipline Committee conducted a hearing in this matter, the role of the Tribunal changes fundamentally from a full plenary jurisdiction to conduct a fresh hearing and arrive at an independent conclusion to an appellate jurisdiction to review the decision of the Discipline Committee. A consideration of subsection 18(2) yields the conclusion that it does not. It will be recalled that subsection 18(2) provides that the same provisions apply to appeals from the Discipline Committee to the Tribunal as apply to requests for a hearing from the Complaints Committee “with necessary modifications.” The use of the phrase “with necessary modifications” is not sufficient to convert the role of the Tribunal from holding a fresh hearing and forming its own conclusions, substituting its judgement for that of the initial decision maker if necessary, to the role of conducting a curial review with deference to the Discipline Committee. The phrase “with necessary modifications” must be read to mean minor modifications necessary to give sense to the provisions in their new context. It cannot be used as an excuse to re-write the appeal provisions. If the Legislature had intended a curial review of decisions of the Discipline Committee, it could easily have provided for it. For example, the Act could simply provide for an appeal to the Divisional Court bypassing the Tribunal. There is a reason the Tribunal was inserted into this process and despite the attendant expense and the obvious risks of conflicting findings of fact and contradictory decisions, the Legislature clearly intended there to be a second, independent, quasi-judicial proceeding if requested.

Ms. Maciura cites one decision of this Tribunal, Re: Colin Wartman, an appeal from the decision of the Discipline Committee of the Board of Funeral Services, released October 7, 2004. In that case, the panel was considering an appeal from a decision of the Disciplinary Committee and concluded that while the Act authorised the Tribunal to substitute its own opinion for that of the Discipline Committee, reference ought to be made to the case law, in particular to the decisions of the Divisional Court in College of Physicians and Surgeons of Ontario v Payne [2002] O.J. No. 3574 and Flowers v. Health Professions and Appeal Board [2004] O.J. No. 1252. The panel concluded that the Tribunal must act in an appellate role, reviewing decisions of the Discipline Committee with deference. However, the cases cited do not establish a general principle that where a full hearing has occurred, the function of a second quasi-judicial tribunal must necessarily be to review the decision of the initial trier of fact, regardless of the wording of the legislation in question. On the contrary, each of these decisions reviews and interprets the provisions of the respective statues to determine their framework and intent. The provisions of those statutes differ materially from the relevant provisions of the Act. It is important to note the Re: Colin Wartman decision was reached before the Zahariev case. Therefore the panel in Re: Colin Wartman did not have the benefit of that ruling and subsequent decisions of the Divisional Court commenting on the role of the Tribunal. This Tribunal is not bound by its own decisions and this panel declines to follow the case of Re: Colin Wartman. It is the Act which must dictate what role and authority the Tribunal has and, for all the factors considered above, the Tribunal concludes that the role of the Tribunal is to conduct a fresh hearing and arrive at an independent decision.

It is important to note that the decision of the Discipline Committee is, on consent of the parties, before this Tribunal as evidence. In determining the facts in this case, the Tribunal gave no weight to the findings of the Discipline Committee for the following reasons. This case turns on the issue of credibility. There is no special expertise involved in determining credibility that is exclusive to the Discipline Committee. The Tribunal heard the evidence and is as qualified as is the Discipline Committee to make a finding of credibility. In the result, the finding of the Discipline Committee is the same as that the Tribunal, although the Discipline Committee heard somewhat different evidence and conducted a different analysis of the evidence it heard. The Discipline Committee concluded that Ms. Johal did not perform the embalmings in question.

The Discipline Committee decided to suspend Ms. Johal’s licence for ten months, to fine her and to impose restrictions on her licence and conditions on her reinstatement, including the requirement that Ms. Johal successfully complete a prescribed professional development course and an approved ethics course. After considering the evidence, the Tribunal has decided instead to revoke Ms. Johal’s licence. There are several reasons for this different result.

The Tribunal has facts that the Discipline Committee could not have known. Ms. Johal, far from showing remorse or taking any remedial action after she was found to have misled the Funeral Board by the Discipline Committee, has instead repeated her attempted deception to the Tribunal.

The Discipline Committee deferred to the recommendation of the Funeral Board in establishing the penalty. The Committee wrote:

The Panel considered what period of suspension (in addition to the restrictions) would be minimally necessary given the facts of this case in order to meet the principles of general deterrence, to maintain public confidence in the disciplinary process and to ensure appropriate respect for the [Funeral] Board. In the Panel’s view, a lengthy suspension of Ms. Johal’s licence is necessary to achieve these general principles of sentencing. In fact, the Panel was concerned that the ten month period of suspension suggested by the [Funeral] Board was not adequate to address the seriousness of the conduct, however; it accepted this submission in deference to the [Funeral] Board’s position. The Panel wishes Ms. Johal to know that had it not been for the [Funeral] Board’s penalty submission, the Panel would have imposed a longer period of suspension.

Ms. Maciura advises that it is customary for the Discipline Committee to accept the recommendations of the Funeral Board concerning penalty. However, for the Tribunal to defer to the Funeral Board, which is a party to this proceeding, on the question of penalty would be improper.

The Discipline Committee seemed to regard this as principally an internal matter. As will be noted from the above excerpt, the Discipline Committee was concerned about deterrence of other funeral directors and maintaining respect for the Funeral Board and public confidence in the disciplinary process. It did not expressly consider the interests of the wider public in this matter.

Ms. Johal did far more than mislead the Funeral Board, an act of professional misconduct under paragraph 44(o) of Regulation 470 of the Act. In the spring of 2007, when the Funeral Board began its investigation, Ms. Johal created a calculated web of deception in which she attempted to implicate four of her employees and ex-employees. Most obviously, she took advantage of an intern in her employ. She was in a position, if not of trust, then certainly of responsibility for the instruction of Ms. Cowley. She betrayed this responsibility by claiming credit for the work of Ms. Cowley. If Ms. Johal had been believed, Ms. Cowley’s licence would have been in jeopardy for misleading the Funeral Board. Even the accusation may have cast a shadow on Ms. Cowley’s integrity. The Tribunal wishes to underscore the fact that two independent hearings have now established that Ms. Cowley was an innocent victim of the lies of her employer. She performed all of the six contested embalmings.

Ms. Johal also attempted to involve Ms. Walters in her deception. Ms. Johal prepared false Preparation Reports and put Ms. Walters’s name on them. She implied that Ms. Walters was lying when she denied having supervised most of the contested embalmings. Ms. Johal falsified two of Ms. Walters’s time cards in an attempt bolster her claims. On the day Ms. Walters left Benisasia, Ms. Johal permitted her to swear an affidavit that Ms. Johal knew to be false.

Someone persuaded Mr. Kolotyliuk that he had witnessed one of the contested embalmings. Ms. Johal permitted him to persist in this belief, and to testify to it, despite knowing it was wrong. Ms. Johal implicated the fourth employee, Ms. Witzel, by implying that she was lying in corroborating Ms. Cowley’s testimony.

At any time in the past three and a half years, Ms. Johal could have unwound this web of deception. She could have recanted her testimony; she could have expressed remorse, she might have made amends to those she had attempted to harm with her lies. She did not. Instead, she persists in these falsehoods.

The Act provides that funeral directors are entitled to be licensed unless their conduct provides reasonable grounds for the belief that the director will not operate in accordance with the law and with integrity and honesty. It is important to note that the Discipline Committee does not have to demonstrate that an act of professional misconduct meets this test to consider revocation of a licence. This is the test that the Registrar must meet but the Discipline Committee has a wider scope for its consideration. However, there is nothing preventing the Discipline Committee from applying this test.

Ms. Johal’s repeated deceptions, particularly given the extent and the damaging nature of her lies, constitute professional misconduct under both paragraphs 44(o) and 44(u) of Regulation 470 to the Act. These deceptions and her persistence in them raise legitimate concerns about her ability to conduct her business in accordance with the law and with integrity and honesty. Bereaved families are in a particularly vulnerable situation and they need to be assured that they are dealing with a person of probity at this time. Given that Ms. Johal has attempted to implicate her own employees and former employees in her lies, has lied to her regulating body and to this Tribunal, there are reasonable grounds to believe that she would deceive her customers if it were self-serving for her to do so.

Mr. Klug has submitted that Ms. Johal ought to be permitted to continue her business because Benisasia is the only funeral establishment serving the South Asian community in the Greater Toronto Area. However, this argument is not persuasive. The community served by Ms. Johal is entitled to the same standard of integrity as any other.

To suspend Ms. Johal, as the Discipline Committee proposed, even with the other terms it imposed, will not turn her into an honest person. One of these terms was that Ms. Johal was to complete an approved ethics course prior to her reinstatement. This might be appropriate if there were some question as to whether Ms. Johal was confused or unaware of the proper course of conduct. The deceptions practiced by Ms. Johal are too fundamental for confusion or misunderstanding. An ethics course will not turn Ms. Johal into a person who will conduct her business lawfully, honestly or with integrity. Nor will the longer period of suspension that the Discipline Committee considered have that effect. Ms. Johal cannot have honesty and integrity imposed on her; she must find it within herself. Until she does, there are reasonable grounds to believe that she will not meet the regulated standard of conduct. For the protection of the public she serves, Ms. Johal’s licence must be revoked.

Order

Under subsections 14(9) and 18(2) of the Funeral Directors and Establishments Act, the Licence Appeal Tribunal directs the Discipline Committee of the Board of Funeral Services to revoke the licence of Ms. Prabhjot Johal as a funeral director.