Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7431/FDEA
CASE NAME: 7431 v. Registrar, Funeral Directors and Establishments Act
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 to Refuse to Register
Yehiel Benayon Applicant
-and-
Registrar, Funeral Directors and Establishments Act Respondent
DECISION AND ORDER
ADJUDICATOR: Simon Dann
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Julie Maciura, Counsel
Heard in Toronto: October 18, 2012
DECISION AND ORDER
This is an appeal by Yehiel Benayon to the Licence Appeal Tribunal (the "Tribunal") from a decision of the Registrar of the Board of Funeral Services (the "Discipline Committee/Board") dated May 17, 2010 which proposes to refuse to register Mr. Benayon as a funeral director under the Funeral Directors and Establishments Act, R.S.O. 1990, c. F.36 (the "Act").
As a preliminary matter, the Tribunal made an order for the exclusion of witnesses.
Opening Statements
Counsel for the Registrar, Julie Maciura, stated that the refusal is based on the Applicant's past conduct towards co-workers and clients, all of whom are seen as being members of the public.
Mr. Benayon was not licensed prior to the application. He is on probation with respect to findings of guilt for two criminal offences until the end of 2012.
Ms. Maciura said Mr. Benayon used to be a recognized and respected person in the profession and while the Board recognizes his past standing, it also expects proper conduct of a funeral director. Witnesses would be called to confirm the Board's position that Mr. Benayon should not be registered as his conduct does not meet the requirements of honesty, integrity and acting in accordance with law.
Ms. Maciura asked that the Tribunal confirm the proposal to refuse to register.
The Applicant, Yehiel Benayon, speaking on his own behalf, said he had been with the same funeral home for 23 years.
He stated that he experienced a personal crisis which led him to uncharacteristic conduct. He had no intention to deny or defend his conduct His intention was to take responsibility and the appropriate steps to resolve his situation.
He acknowledged resorting to drugs to solve his problems and he is continuing to receive rehabilitation help.
Registrar's Evidence
Ms. Maciura presented three witnesses who were co-workers (one of whom is now employed elsewhere) and described their experiences with the Applicant.
The first witness ("TF") said she worked with the Applicant for approximately five years and initially enjoyed a friendly relationship with him. They often spoke of other matters on a personal basis.
TF said this began to change when she noticed a change in the Applicant's personal appearance and how he spoke with others. On one occasion, she complained about being tired and he replied, "I have something that could wake you up".
TF testified that she replied "I don't want to use your meth". On another occasion, she had asked him for a drug called 'GHB' (gamma hydroxybutyrate). She said the Applicant got it for her and she accepted it. This was about a year before she left her employment at the funeral home.
She explained that she related the Applicant's behavior change to drug use and admitted her only knowledge of how people change from drug use came from the popular media.
TF described an incident when the Applicant came into an office where she was working and wanted a chair she was sitting on. When she said 'no', TF claimed the Applicant "flipped" the chair with her in it. This resulted in a bruise to her leg and she described it as being a traumatic experience (Exhibit 3, Tabs 5 and 7).
The police were called and when they arrived, the Applicant was said to have left a meeting with a family who were making funeral arrangements. TF and her manager then had to finish the funeral arrangements with that family.
TF gave a witness impact statement to the police and said she was disappointed to later learn the Applicant had received an absolute discharge. TF said that because she was uncomfortable working with the Applicant, she decided to leave her employment there.
During cross-examination, TF confirmed her extreme discomfort in the Applicant's presence and also confirmed the Applicant had never tried to contact her. She knew he had pled guilty to the assault charge.
DH is an unlicensed staff member of the funeral home who drives the hearse and has responsibility for various other support duties. He has worked there for 22 years and typically works 6 days on different shifts, depending on the schedule.
DH said he had received a summons to appear and would have preferred not to be a witness at the hearing. He has known the Applicant for about 25 years and previously had a good working relationship with him.
DH said their relationship began to change as he noticed the Applicant's appearance and behavior changing. He stopped talking to his co-workers and became "different to me". DH also felt that "how he treats me he should not meet with families".
DH thinks "he got involved with drugs" and described the Applicant's current routine by saying "he comes in the evening and does not see families (to arrange funerals)". DH said he does not know what work the Applicant does.
When asked to describe the microwave incident, DH said it was about 9-10pm when he detected an unusual smell and then found a mug with a burnt glass pipe inside the microwave (Exhibit 3, Tab5). He said the Applicant had been in the building, but had left with the microwave still running. He had seen the Applicant with that glass pipe on previous occasions.
In March, the Applicant called DH to help him with a man sleeping in the office. DH described the man as covered by a jacket but then the jacket fell off when the man rose from the couch. The man was seen to be completely naked except for socks. The Applicant walked the man to his (the Applicant's) car.
Cross-examination focused on a dispute between the Applicant and DH about who should have emptied an over-flowing garbage can as well as a 2009 petition (Exhibit 3, Tab 9) asking the funeral home's Board of Directors to remove the Applicant from his position at the funeral home "due to his daily ridicule, belligerent verbal abuse of fellow staff members".
When asked what effect such a petition would have on the relationships between the Applicant and other staff members, DH said he did not know.
DH acknowledged that while the man on the couch was incoherent and seemed unclear about his surroundings, there was no smell of alcohol and he (DH) did not know anything about the man's condition.
CS is the funeral home's managing director. She has been a licensed funeral director for 25 years and has worked with the Applicant for about 16-18 years. She confirmed that 2010 was the last time the Applicant worked as a funeral director. She does not know his current capacity as he reports to the funeral home's President and Board of Directors.
CS said she has fired the Applicant in the past and placed him on notice several times but she was over-ruled by the president. She referred to the contents of Exhibit 3, Tabs 3, 4, 5 as accurate accounts of her observations and actions, including the incident with the Applicant's co-worker, TF.
The witness confirmed that after the "chair" incident, the Applicant suddenly left when the police arrived to investigate TF's complaint. She found that after four hours, the Applicant had only produced a "scribbled eulogy" and she had to finish the funeral arrangements.
CS described another incident between the Applicant and an 80 year old male co-worker "MB) at the funeral home (Exhibit 3, Tab 9). The Applicant was alleged to have assaulted MB, but this was disputed by the Applicant who replied in writing in 2000 that he was "the recipient of another unprovoked assault" by MB.
She also described the incidents with the naked man on the couch and the glass pipe in the microwave as they had been told to her by other staff members. She did not directly witness these events.
CS said that 10-15 years earlier, the Applicant was very good in his work but over the years "there was a great decline" in him as a person, a funeral director and in his clergy role. She has no knowledge of what happened to the Applicant to change his conduct but believes he should not be licensed as a funeral director.
During cross-examination, CS agreed she believed the Applicant's problems were due to substance abuse and while she only had evidence of drug use in 2010, her suspicions started in 2006 when his "performance became more erratic".
When asked whether she had given the Applicant any help, she replied that "I do not have the expertise" to deal with this type of problem. The Applicant pointed to Exhibit 3, Tab 3, which was a memo notation by CS stating the Applicant "has a drug problem and the company has been trying to get him into rehabilitation without success".
Rene Brakel is manager of regulatory compliance and responsible for all investigations of funeral directors, complaints and discipline matters with the Board of Funeral Services. He held that position for a ten year period until retiring, but has recently returned to the position. Prior to joining the Board, he had been with Toronto Police Services for 35 years.
The Applicant was first licensed in 1994 (Exhibit 3, Tab 1.) In 2010, there was a change in his employment status. This was followed by a failure to renew in 2011 and led to a cancellation of the Applicant's licence. When the Applicant applied for a reinstatement of his licence in May 2012, he replied "yes" to the question of whether he had ever been found guilty or convicted of an offence under any laws or if there were any charges pending against him (Exhibit 3, Tab 2).
The Registrar received memos, including the petition, regarding the Applicant from the witness CS and he then also interviewed TF about the Applicant's assault on her (Exhibit 3, Tab 7). This was seen as a "big issue of trust".
The issue of the pipe left in the microwave and the potential hazard to the building and persons in it is seen as showing complete disregard for others.
Mr. Brakel reviewed the police and court information relating to the 2010 assault, the resulting absolute discharge (Exhibit 3, Tab 11-A), and three additional charges for possession of a controlled substance and breach of conditions (Exhibit 3, Tabs 11-B, C, D). He noted the Applicant had "not provided any proof that he had stopped using drugs".
Through cross-examination, Mr. Brakel acknowledged he was not aware of any disciplinary actions taken against the Applicant for the complaints from MB and TF.
In response to a question about the Applicant having taken what the Applicant referred to as a leave of absence, Mr. Brakel said that it was not unusual for individuals to take a leave, but those who wanted to retain their licenses continued to pay their annual fees.
Applicant's Evidence
Dr. AO is a medical professional in private practice. He is also a teaching member of a university and has known the Applicant since 1990. He occasionally assists in religious services with the Applicant.
Dr. AO is in contact with the Applicant on a weekly basis and considers him a close family friend with an "impeccable" character. He has never seen any display of dishonesty or carelessness. Dr. AO considers the Applicant to be rehabilitated.
In cross-examination, the witness acknowledged it would be unprofessional to be involved with drugs or to assault another person.
Dr. AO said he knew of the Applicant's criminal record, that he is on probation and under-going treatment. He sees an improvement in the Applicant's condition but agrees that being found with drugs two days after a court appearance during which the Applicant stated he was rehabilitated is dishonest and shows a lack of integrity.
JA is the owner of a financial services firm with 20 employees. He is also the founder of a charitable organization which operates activities for children and the elderly. He has known the Applicant for about 30 years and lives on the same street as the Applicant.
They are in contact once a week and JA said he knows about the Applicant's drug use and criminal charges. JA believes the Applicant has gone through difficult times and his past behaviour was "not characteristic". He sees signs of rehabilitation in the Applicant and wishes that he could have done more for the Applicant during his difficult time.
In cross-examination, JA agrees, as did Dr. AO, that drug use and being found with drugs two days after a court appearance indicate unprofessional and dishonest conduct.
WR is a retired airline pilot who now works with community organizations involved with children and youth. He has known the Applicant for about 3½ years. They see each other at least once a week and WR knows about the substance abuse and criminal charges.
WR describes the Applicant as an "incredible person" and admires his morals and ethics. He believes the Applicant is like a new person and more aware of what is going on around him.
In cross-examination, WR says he does not recall how they met, but it could have been at a baseball game or social event. He is not of the same faith as the Applicant and therefore does not see the Applicant through the Applicant's religious community.
WR was unable to comment on whether it is professional or unprofessional to bring drugs into the workplace as he has taken drugs for pain management due to a past injury.
Th Applicant began his testimony by describing his encounter with MB, saying he did not hit him but tried to stop MB from "flailing" at him by sitting on the man, only in order to hold him down.
The incident of the naked man in his office was explained in a letter which outlined what happened. He added that "rumours do have a way of getting away".
The Applicant said the naked man ("B") was a neighbour and someone he occasionally meets. B had asked him for a ride home that night and he (the Applicant) acknowledged he made an error in judgement by letting B into the office, where he fell asleep. When he tried to wake B and could not, he went to DH for help. It was when the Applicant and DH were in the office that B jumped up with two pillows to cover himself. The Applicant then took B to his own car and acknowledged he left B sleeping in the car in a plaza parking lot. The next morning he discovered the car had been towed away during the night. He did not know what happened to B.
The Applicant acknowledged he was absent-minded when he left the pipe in the microwave and said the absent-mindedness was due to the substance abuse.
Regarding the assault on TF, he said he had an excellent relationship with her though a not romantic one. The Applicant then referred to a "power struggle" between himself and CS. He claims that CS believes that he is after her job. In his view, this belief was reaffirmed when the Applicant was supported by the funeral home's president. She saw this as a threat.
The Applicant believes that his arrangements were always "undermined" and that he does not do clerical work in his role but that "I spend time with families". He said there were three previous complaints against him but none held and that "I don't have any duties at [the funeral home]" because CS will not give him any.
Regarding the family who he allegedly abandoned, he claimed everything had been arranged except for the casket choice, which he had DH handle. He also said that when he saw the police, he left and then called his wife and lawyer.
The Applicant recounted being with another young man and having been arrested on the highway from Newmarket to Toronto when the young man was found with a "supermarket" of drugs and paraphernalia. The young man was subsequently sentenced to nine months and on release wanted to meet with the Applicant. It was after that meeting, that the Applicant was found with .05 grams of crystal meth and again charged.
The efforts at rehabilitation included testing at Bellwoods, St. Michaels Outreach and Toronto East General Hospital. He acknowledged he relapsed twice, though not to a large extent.
The Applicant named professionals he was in contact with for personal and family counselling. In addition to being referred to CAMH by his parole officer, he said he is starting with a new community group, meeting for 1½ hours a week.
In cross-examination, it was noted the Applicant had not submitted any disclosure on any treatment programs he had been involved with for rehabilitation purposes. The Applicant did not dispute of this lack of disclosure.
The Applicant agreed he has a criminal record and that he is on probation until "some time in December". He acknowledged that drug use causes erratic behaviour and the longer a drug is used, the longer it takes to regain "balance".
Closing Submissions
The Registrar's counsel submitted the Applicant has presented no evidence to confirm his condition has changed. The disregard of Court orders indicates the Applicant will not obey the law.
Ms Maciura submitted that the Applicant's witnesses were not clear on the extent of the Applicant's troubles with the law, and noted that it has been a year since the Applicant's last difficulty with the law and he still remains on probation.
Ms Maciura referenced the following cases and cited the principles which she wished the Tribunal to draw from them.
Re: Gourlat, [2008] O.L.A.T.D. No. 112 ("Gourlat") and specifically at paragraph 19: "… the Tribunal … must consider the conduct of the Applicant and not look at what might be good intentions for the future".
In Re: Briden, [2008] O.L.A.T.D. No. 497 ("Briden"),the Applicant was still on probation. The Tribunal noted in para 51 "that the Applicant is still on probation" and in para 57 that "To permit the Applicant to be registered would send an incorrect message to the public at large. The Applicant should be required to redeem himself before being registered…" In para 62 that the "Tribunal has sympathy for the Applicant, but he should have to undergo a period of unsupervised time, a period of reformation, after his period of probation is over, to establish his reliability".
In Re: Washenfelder, [2008] O.L.A.T.D. (Washenfelder"), the Tribunal heard that while "the Applicant's criminal history does not involve dishonesty … the concern … has to do with governability" and that the Tribunal found "the application for registration is premature".
In Re: Lorenzi [2007] O.L.A.T.D. No. 149, ("Lorenzi") para 59 refers to the fact that the purpose of the Act is to protect the public and that the Tribunal accepted the interpretation that the public interest included employers and co-workers.
In sum, the Registrar's counsel submitted the Applicant never explained what caused him to use drugs and that for a ten year period he was a burden to his colleagues. There was no evidence put forward other than the Applicant's own comments. His entire pattern of behaviour confirmed he would not act in accordance with integrity and law.
Counsel asked that the Proposal be confirmed.
The Applicant's closing submission included references to his news columns, events at which he officiated, and the fact that he has submitted himself to testing.
The Applicant said that fines have been paid as has his debt to society. He does not deny the background saying that "we are all human and all make mistakes". He acknowledged he had a crisis and initially responded the "wrong way" but he is now back to himself.
The Applicant submitted that a probationary licence with review in six months would be appropriate as it would enable him to again provide for his family and to the community.
In reply, the Registrar's counsel said there is no evidence of rehabilitation and there should be no licence on either conditions or for a probation period at this time.
Analysis and Reasons
The issue in this matter is quite simple. While the Act clearly places the onus of establishing that the Applicant is not entitled to a licence pursuant to the provisions of s. 20(3) of the Act on the Registrar, the Tribunal must review all of the evidence before it can come to its own conclusion without deference to the Registrar.
The purpose of the Act, as emphasized by the Registrar's counsel, is to protect the public and based on the interpretation noted in Lorenzi, it is accepted by this Tribunal that the public interest includes employers and co-workers.
There is no evidence to suggest that there is a problem with the Applicant's conduct in the matter of honesty and integrity in financial matters, specifically.
However, there is sufficient evidence about how the Applicant conducted himself towards co-workers, in response to court orders and in regard to his use of drugs, to find that he will not conduct himself with honesty, integrity and in accordance with law.
The Tribunal has heard the Applicant's own testimony that he does not dispute the allegations or, as he stated in his opening submission, he had no intention to deny or defend his conduct.
To the Applicant's credit, the Tribunal notes that his intention was to clearly take responsibility and the appropriate steps to resolve his situation.
Considering the Applicant's personal statements regarding his participation in treatment programs, it would have been more helpful if he had presented evidence and or witnesses to confirm that he was undergoing the claimed professional counselling treatment. But he failed to present any such evidence. He also did not present any material or certified test results to show he had in fact stopped using drugs, as he claimed. The witnesses called by the Applicant were indeed personally supportive of him, but had no specific information to offer the Tribunal regarding the success of rehabilitation efforts that he has undertaken
In the absence of any such evidence, the Tribunal agrees with the finding in Briden and the concern expressed about the issue of governability in Washenfelder.
"The Applicant should be required to redeem himself before being registered [and while the] Tribunal has sympathy for the Applicant … he should have to undergo a period of unsupervised time, a period of reformation, after his period of probation is over, to establish his reliability". (Briden)
[while] "the Applicant's criminal history does not involve dishonesty … the concern … has to do with governability [and] the application for registration is premature". (Washenfelder)
The fact that the Applicant's probation period has not yet ended is also important to note.
Until the Applicant can show that he has fully rehabilitated himself, and support that claim, there are reasonable grounds to believe that he will not meet the regulated standard of conduct towards the public he serves and therefore the licence application must be refused.
Order
Pursuant to subsections 21(1) and (2) of the Funeral Directors and Establishments Act, the Licence Appeal Tribunal directs the Discipline Committee of the Board of Funeral Services to refuse the funeral director's licence application of Yehiel Benayon as a funeral director.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: November 26, 2012