Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-07-23

FILE: 7852/FBCSA

CASE NAME: 7852 v. Registrar, Board of Funeral Services

Appeal from a Proposal of the Registrar, Board of Funeral Services under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 to Refuse Registration

Stephen Andrew Lee Applicant

-and-

Registrar, Board of Funeral Services Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Laurie Sanford, Vice-Chair

APPEARANCES:

For the Applicant: self-represented

For the Respondent: Julie A. Maciura, Counsel Rebecca Zaretsky, Counsel

Heard at Toronto: June 5, 6, 7, 10, 11 and July 4, 2013

REASONS FOR DECISION AND ORDER

This was a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Proposal issued by the Registrar (the “Registrar”), Board of Funeral Services under the Funeral, Burial and Cremation Services Act, 2002 (the “Act”). The Notice of Proposal dated December 21, 2012 proposes to refuse to license Mr. Andrew Lee as a Funeral Director under the Act. Mr. Lee appeals this Notice of Proposal to the Tribunal.

The Registrar has concerns about the conduct of Mr. Lee that stem from his time as a student in the Funeral Service Education program at Humber College Institute of Advanced Learning and Technology (“Humber”) and from his work at MacKinnon and Bowes Limited (“MacKinnon and Bowes”), a non-retail funeral establishment, before and while he was a student. The Registrar alleges that Mr. Lee’s attitude and conduct towards women render him unsuitable for work as a funeral director. The Registrar also alleges that Mr. Lee took pictures of dead bodies while at work, knowing this was unethical. The Registrar alleges that Mr. Lee showed these, and other graphic pictures of dead bodies, including pictures of dead Canadian soldiers that he had allegedly taken at work, to at least one fellow student at Humber. In his closing submission, the Registrar raised a new ground for refusing Mr. Lee registration, “his refusal to govern himself or to be governed”. This is based on alleged inconsistent statements and inappropriate actions taken by Mr. Lee during the investigation by Humber of allegations made against him and by the fact that “Mr. Lee did not tender any evidence to rebut any of the evidence from Humber authorities about his conduct in respect of the investigation.”

FACTS

Six witnesses gave evidence that was directly relevant to the allegations about Mr. Lee’s conduct while at Humber. The Registrar’s key witness was a woman who will be referred to as “EC”. Corroborating her evidence were two other people who were at Humber at the same time as Mr. Lee. These were a woman, “KW”, who describes herself as EC’s best friend and a man, “KB”, who also worked with Mr. Lee at MacKinnon and Bowes. Testifying for Mr. Lee and in contradiction to these witnesses were three women who will be referred to as “KL” “MS” and “SS”.

Central to the Registrar’s allegations about both Mr. Lee’s conduct towards women and the allegations that he showed graphic pictures of dead soldiers and civilians to fellow students is the evidence of EC. EC attended the Funeral Service Education program from September, 2010 to approximately June, 2011, the same time as Mr. Lee was a student there. She is now living outside the province. The Registrar introduced two affidavits sworn by EC as well as e-mail correspondence from EC to the Board of Funeral Service (“BOFS”) and an internal BOFS report of an interview with EC. EC was cross-examined by Mr. Lee via SKYPE.

On March 2, 2011, EC wrote an e-mail to the BOFS making several serious allegations against Mr. Lee. She alleged that she had seen pictures of dead people on Mr. Lee’s laptop, including pictures of dead Canadian soldiers. Some of these pictures were graphic in nature. EC alleges that Mr. Lee also showed her photos “from house calls”. He appeared secretive about the pictures, refusing to show them to a fellow student. EC reported that:

This, combined with the markedly predatory social interactions and possession of pictures of dead bodies with no due cause, leads me to believe that Mr. Lee may be suffering from necrophilia.

She continued in the same e-mail:

Andrew has also behaved very lewdly towards me on several occasions, bordering on sexual harassment. These behaviours were unwanted and often occurred within a classroom setting, and once (very mildly) in an embalming lab. Behaviours included unnecessary invasion of bodily space, inappropriate flirting/sexual comments and lewd innuendos relating to many bizarre sexual practices, such as pedophilia and necrophilia. He has a marked, obvious and predatory interest in young (as young as 14 year old) girls, as stated by him on several occasions. Mr. Lee is 44 years old.

Portions of this e-mail were used by the Registrar in his Notice of Proposal. During her cross-examination, EC was asked about these allegations. At various times, she said: that she was just “venting”; that she understood Mr. Lee would never know about the e-mail; that she expected Mr. Lee would get his knuckles rapped by the BOFS; that she never anticipated this would end up “in court”, and that some of what she said in the e-mail was “lost in translation”. She testified that she did not regard Mr. Lee as a necrophile, although she was prepared to speculate that he was, and any reference to him and pedophilia related to a statement he had made, perhaps as the punch line to a joke, about retiring to a beach with his 14 year old mistress. She said she did not know what the reference to “lewd behaviour” and conduct in the embalming lab referred to and that some of what she reported to the BOFS was overstated and based on rumour and speculations. She testified, “let’s pretend I never said these speculations” [about Mr. Lee’s alleged sexual proclivities]. She testified that she had advised counsel for the Registrar a few days prior to her cross-examination that her e-mail comments about Mr. Lee’s alleged sexual proclivities should not be in the hearing as they were just opinion.

In her affidavits, EC testified to several specific incidents of inappropriate sexual conduct on the part of Mr. Lee. The first relates to a student who was not called to testify. EC alleged that Mr. Lee touched this student inappropriately outside a large lecture hall. She testified that Mr. Lee was “always” touching her. The second alleged incident occurred in a pub when Mr. Lee made a sexual comment to EC directly. The third was a comment she overheard Mr. Lee making about retiring to Hawaii with his 14 year old mistress. The fourth specific allegation refers to a comment about “birthday sex” allegedly made to a fellow student, who was identified as KW. In cross-examination, EC testified that Mr. Lee did not make “a lot of these comments” and she was unable to recall the details of many of them. She testified that she would have asked “them”, presumably the BOFS, not to mention the pub incident and only raised it because the BOFS asked for an example of “lewd” comments made by Mr. Lee. She testified that Mr. Lee made some comments to her in front of others in a pub. She stated that Mr. Lee may not have been “hitting” on her and might only have been joking but that she found the comments obnoxious. She did not remember what the comments were. In cross-examination, she acknowledged that the comment about the 14 year old mistress might have been a punch line to a joke that she overheard. The comment about birthday sex was something she heard from KW, not something she witnessed.

EC testified that her principal complaint about Mr. Lee was that he showed her photographs of dead people, including dead Canadian soldiers that were on his laptop. Her testimony was that he showed her about 15 pictures of dead people. Her testimony was that three or four of those pictures were of dead Canadian soldiers, taken both before and after their deaths. According to EC, Mr. Lee referred to this as his “personal photograph collection” and she formed the impression that he had taken some of these pictures, including pictures of dead Canadian soldiers, while working at MacKinnon and Bowes. In her April, 2013 affidavit, EC testified that Mr. Lee spoke of the scene of one of these pictures in the first person and that she understood from the way he described the scene that Mr. Lee was physically present when the photograph was taken.

On cross-examination, EC testified that she had heard that Mr. Lee had some photos on his laptop and that she approached him and asked if she could see them. She acknowledged that the phrase his “personal photograph collection” was her phrase and not Mr. Lee’s. She conceded that it was possible that Mr. Lee, a 19 year veteran of the Canadian armed forces, had downloaded “head shots” of Canadian soldiers from the Department of National Defence web site. She acknowledged that it was possible, even “entirely possible”, that Mr. Lee had downloaded the photos of dead bodies and body parts from the internet. She testified that it was possible but not probable that the pictures of dead soldiers might be from the internet and that the pictures may not have been “before and after” pictures of the same soldiers. She believed that the photos of the dead soldiers were before and after pictures because of the sequence in which they were arranged. She acknowledged that some students did download pictures of dead people and body parts from the internet for use at school. EC testified that she believed that Mr. Lee had an unnatural fascination with death. She contrasted this with her own experience.She testified that she never downloaded pictures of dead people, even for class projects. She had never taken pictures of deceased people, she testified. On being pressed, EC conceded that she had taken pictures of deceased people during her internship and that a group project she did together with Mr. Lee did include pictures of dead bodies. She acknowledged that she had accessed a pornographic site involving anime depictions of dead bodies for her personal use and told at least one other student about the site.

She testified that she had heard that Mr. Lee had removed the objectionable pictures that he had shown her and replaced them with pictures he had downloaded from the internet. She testified that the person who originated this hearsay was a woman named KL. However, KL testified in these proceedings and did not confirm this hearsay. She testified that Mr. Lee would not have taken pictures of dead people at work, that this was not consistent with his character and that, if he had, she would have reported him to the authorities. As noted below, the Tribunal found KL to be a credible witness.

EC testified that she told a number of fellow students about the photos Mr. Lee showed her, including “eventually” her friend KW. She testified that she and others reported Mr. Lee to the Dean at Humber, resulting in him being suspended. The Registrar introduced evidence showing that Mr. Lee had successfully appealed this suspension. EC confessed to lying both to Mr. Lee and to another student about her role in reporting Mr. Lee to the Dean. At one point in her testimony, she ruminated about why a former friend of hers was so angry with her, whether it was because she was a liar or because she was a rat.

Ms. Maciura, counsel for the Registrar, argued in closing that EC’s lies while she was a student should not reflect on her credibility now as she was “young and nervous” at the time of those falsehoods. This is not a persuasive argument. However, it is relevant to note that EC told those lies while not under oath. The Tribunal is not prepared to draw conclusions about EC’s credibility based solely on falsehoods she told while a student.

Of greater concern are the sweeping and serious allegations about Mr. Lee’s sexual and psychological proclivities that EC made in her March, 2011 e-mail complaint to the BOFS. This e-mail begins with the sentence, “Here is the information that you requested.” This suggests that this was not EC’s first communication with the BOFS on this matter. Although these statements were not made under oath, they were contained in an e-mail she sent voluntarily to the BOFS, the regulator of her industry. She knew or ought to have known that her allegations would be taken seriously by the BOFS. EC testified that when she first reported the pictures, she was “pretty upset” but now she is older. She swore two affidavits in this matter, one in April and one in May, 2013, more than 2 years after her initial complaint. She had ample opportunity to explain to the Registrar that she had just been “venting” earlier and that she wished not to proceed with her sensational sexual accusations against Mr. Lee. Instead, she waited until counsel for the Registrar advised her that she would have to confront Mr. Lee in cross-examination before she resiled from these earlier accusations.

In closing argument, Ms. Maciura, counsel for the Registrar, submitted that EC had not resiled from her allegations about Mr. Lee’s sexual proclivities and conduct towards women because at various times during her cross-examination, she repeated parts of the allegations. However, at no time did EC testified that she was once again making these accusations as part of her complaint against Mr. Lee. The reasonable interpretation of EC’s testimony is that she did abandon key parts of her allegations and subsequently attempted to justify her original position. The statement, “let’s pretend I never said these speculations “is a clear attempt by EC to distance herself from her previous assertions. These accusations are scandalous in nature. They were made to the regulator of her industry in circumstances where she knew they would be taken seriously. She persisted in them until she learned she would be cross-examined. Given these facts, her resiling from them does materially undermine EC’s credibility.

During her cross-examination, EC repeatedly reversed herself or qualified her previous testimony. She testified that “the only thing that hasn’t changed in my statement is the photos.” However, she did change her testimony about these photographs in her cross-examination. She changed her sworn affidavit testimony that Mr.Lee had referred to the pictures he showed her as “his personal photograph collection” by acknowledging that this was her phrase and not his. She did not testify that Mr. Lee told her he had taken any photographs of any deceased people. She testified only that she had heard rumours of this or had formed the impression that they were his photographs.

In a memo to file reporting an interview that EC had with an BOFS investigator, EC is reported to have said that the pictures of the soldiers were “before and after” pictures with the live pictures showing a soldier in uniform and medals and then the next picture showing the soldier on an embalming table, with some of the bodies in pieces. On cross- examination, she testified that she did not recall anything about medals in the pictures and did not know where that reference came from. She conceded it was possible that the photos of live soldiers had been downloaded from the National Defence web site. She maintained that it was possible but not probable that the pictures of dead Canadian soldiers were not the same as the living soldiers photographed. However, she also testified that some of what she saw were body parts and that Mr. Lee did not explicitly tell her that these were pictures of dead Canadian soldiers. EC testified that it was possible, even entirely possible, that the other photos, those of civilian dead bodies, had been downloaded from the web.

EC’s testimony about her own conduct also changed. First she denied ever taking pictures of dead people, then she acknowledged that she had taken these pictures at work. She denied ever using pictures of dead people for class assignments, then, when confronted with a report she and Mr. Lee had co-authored at school, she acknowledged that it did contain these pictures. She acknowledged that she had accessed a pornography site with anime depictions of dead people and had told at least one other student about this site.

EC has admitted to telling lies to her fellow students. She made serious allegations against Mr. Lee in the belief that these accusations would be anonymous. She only resiled from these accusations on learning that she would be cross-examined by Mr. Lee. She reversed herself and qualified her evidence repeatedly during her cross examination. The entirety of her conduct and evidence leads the Tribunal to the conclusion that EC was not a credible witness. The Tribunal gives her testimony no weight.

In the Notice of Proposal, the Registrar refers to an allegation apparently made by EC that Mr. Lee committed a criminal offence, sexual in nature, in his conduct towards a fellow student and that this matter had been reported to the police. In his Notice of Appeal, Mr. Lee denied knowing of this incident or being contacted by the police. At the hearing, EC testified about Mr. Lee’s conduct towards a woman who was not called to give evidence. This alleged conduct did not appear to be criminal in nature and there was no evidence of a complaint to the police. Given EC’s lack of credibility, the Tribunal finds the evidence to be without foundation. The Registrar led no other evidence supporting the claim of a criminal sexual offence and offered no explanation for not pursuing this serious allegation.

The Registrar introduced two other witnesses who testified to Mr. Lee’s conduct while he was a student at Humber. One of these was the woman, KW, referred to in EC’s testimony. KW said that EC was her best friend. She testified that Mr. Lee approached her sometime after her birthday in the cafeteria and offered her the “best birthday sex ever” a comment which she found “creepy”, “degrading” and “perverted”. She also testified that Mr. Lee engaged in “pedophilish” behaviour by having sex with a 19 year old woman at a party that KW attended. According to her testimony, she did not witness much at the party itself as she spent the evening downstairs in the bathroom crying. She heard what had happened from the young woman at school. She also testified that she had heard that the young woman was drunk and that Mr. Lee took advantage of that. She characterised the relationship between Mr. Lee and the 19 year old woman as “disgusting” as Mr. Lee was in his mid-forties at the time.

KW testified that EC had come to her immediately after seeing the photos that Mr. Lee showed her of dead people and that EC was crying and slurring and not making sense. When EC told KW about the photos, KW said she would do what she could to make sure that Mr. Lee never became a funeral director “because that’s not what the industry needs”. KW testified that KL and MS saw these pictures and that she was “pretty sure” several other people did. She named several of these students. During cross-examination, she testified that she had not talked with KL, MS or the other women whom she had testified had seen the pictures. Her testimony was that even if these women denied seeing them, it was “not possible” that EC made up the story about seeing the photographs because she was “freaked out” about them.

Other witnesses contradicted KW’s testimony in material ways. The two women whom KW testified had seen the objectionable photographs gave evidence. KL confirmed that Mr. Lee had shown her pictures of dead bodies that he had on his personal computer. However, she denied that the bodies were of dead soldiers or of bodies that Mr. Lee had photographed at work. MS testified that Mr. Lee had shown her pictures of dead soldiers on his computer, saying that this was the sort of thing he had seen when he served overseas. Both these witnesses testified that they also had pictures of dead people on their computers and that they used these pictures for study and to include in class presentations. These pictures were obtained on the internet. No professor had ever told them it was wrong to download and use these pictures. Neither of these witnesses found anything objectionable in the pictures that Mr. Lee showed them or in any comments that he made while showing them. Both these women, who testified that they were friends with Mr. Lee, stated that if Mr. Lee had been showing pictures taken at work, they would have reported him for improper, and possibly illegal, conduct. The Tribunal found both these witnesses to be credible and their testimony was not convincingly challenged in cross-examination. The Tribunal accepts their testimony. Another witness who contradicted KW’s version of events was EC. EC testified that she “eventually” told KW about the pictures Mr. Lee showed her whereas KW had testified that EC came to her immediately after seeing the photos.

MS also testified that KW was not present at the party she claimed to have attended and that, even if she had been there, she could not have spent the evening downstairs in the bathroom as she testified. According to MS, the place where the party was held was on one floor and had no downstairs bathroom or indeed any downstairs at all. KL also testified that the layout of the party location did not include a lower floor and that she did not recall seeing KW at the party.

Mr. Lee called a further witness, SS, who testified that there had been a comment about “birthday sex” as part of a private conversation between herself and Mr. Lee in the student cafeteria. According to this account, SS made a joking comment saying that what she wanted for her upcoming birthday was “birthday sex”. KW overheard part of the conversation and interjected herself into the conversation, saying she wished she were getting birthday sex too. When Mr. Lee told her she would have to wait until her birthday, she became upset at the remark. The Tribunal found SS to be a credible witness whose testimony was not convincingly challenged in cross-examination.

The Tribunal prefers the testimony of these three women to that of KW. Specifically, the Tribunal accepts the evidence of KL and MS about the incident in which it is alleged that Mr. Lee showed objectionable pictures to EC. The Tribunal accepts that KW was not at the party she testified to attending and that the ‘birthday sex” comment in fact occurred during a private conversation into which KW inserted herself.

KW is a woman who suffers from severe childhood trauma, a fact she testified to in answering an unrelated question. She appeared to have difficulty distinguishing between rumour and fact in her retelling the incident of the apparent sexual liaison between Mr. Lee and a 19 year old woman. She confused the hysteria she testified witnessing in EC when EC reported the photos to her with the truth of EC’s allegations. She testified that she began taking “anti-psychotic” medication in March, 2011 and that she has been unable to graduate from Humber due to her emotional health. She is now working at two part time jobs and is looking for an internship to complete her studies. Much of what she testified to was hearsay. Her direct testimony was about attending a party, having EC come to her in hysterics after seeing the pictures of deceased people and the comment that Mr. Lee allegedly made to her about birthday sex. In each case, her testimony is contradicted by other witnesses. The Tribunal finds that KW was not a reliable witness and places no weight on either her hearsay or her direct evidence.

Three people gave evidence for the Registrar concerning Mr. Lee’s conduct while at MacKinnon and Bowes. These were KB, who also gave evidence about Mr. Lee’s conduct while at Humber, and a second man who will be referred to as “RC” who worked with Mr. Lee and who also took one class with him at Humber. The third person was the General Manager of MacKinnon and Bowes.

KB testified to Mr. Lee’s conduct both at Humber and at MacKinnon and Bowes. KB had been working at MacKinnon and Bowes as an assistant when Mr. Lee joined the firm in the same capacity. Shortly after Mr. Lee joined the firm, KB testified, he and Mr. Lee were called out in the evening on back-to-back coroners’ calls. These are calls to collect bodies where the coroner finds the cause of death is either unknown or needs further investigation. Usually the police are involved and the coroner needs to issue a coroner’s warrant authorising MacKinnon and Bowes to collect the body and transfer it, usually to the Coroner’s office. Both these calls were in the Annex area of Toronto and both involved the same coroner, KB testified. There was a family member present at the first call but not at the second. The calls occurred after dark. KB testified that the first call was uneventful except that the police advised that the coroner’s warrant was not available. KB was told that the coroner would be at the second site and would give them both coroners’ warrants there. The two sites were about ten streets apart and the second call was to a rooming house.

At the second house, KB and Mr. Lee collected the two coroners’ warrants and the police directed them to the decedent. KB described the room, saying that Mr. Lee was about two and a half feet from the body and about two feet in front of KB. There was a single overhead light bulb. While KB was unfolding a stretcher, he testified, Mr. Lee pulled a silver camera from his right hand pocket and held it up to his face. KB assumed Mr. Lee was taking pictures of the deceased and told him that was inappropriate. There was no work related reason to take pictures at the scene of the call, according to KB. Mr. Lee said nothing, either while the camera was out of his pocket or after he put it away. KB testified that it was possible that in an earlier recounting of this incident, he had the dates on which it occurred wrong but he had a clear recollection of what happened. He said he made a note of it in a journal he was keeping at the time “in case something came back about this.” He did not have the journal with him at the hearing.

KB testified that he told one person, a man who will be referred to as “RC”, about Mr. Lee’s behaviour and that RC was not surprised. RC told him that “He does it all the time”, referring to Mr. Lee. KB said that he might have gotten RC’s name wrong in his original statements but that the conversation took place in the parking lot of MacKinnon and Bowes. He testified that he didn’t know RC well, that he had “about as much backbone as a wet dishtowel” so that doing calls with him was difficult and he tried to avoid working with RC. He testified that he did not go to MacKinnon and Bowes’ management about what he had seen because “management can’t keep their mouths shut if told something”. He also testified that Mr. Lee was just starting and that he would have been fired, probably, if KB had reported the incident. He does not recall going on a call with Mr. Lee again although he acknowledged it was possible that he had. Mr. Lee never took pictures of dead bodies in his presence again.

KB testified that while in class at Humber, where he was a class mate of Mr. Lee’s, he glanced over and saw Mr. Lee showing pictures to several girls, some of whom he identified, including EC, KW and KL. KB testified that he saw the photo of a dead Canadian soldier in a dress uniform in a casket. He believes the soldier was with the Princess Patricia regiment because he identified the patch. KB testified that he could not say that Mr. Lee took the picture. He initially testified that the only way Mr. Lee would have such a picture was if it was taken at MacKinnon and Bowes as they had the exclusive contract to provide mortuary services to the Canadian armed forces. In cross-examination, KB acknowledged that he had seen family members take pictures of their deceased so it was possible that the picture had another origin. KB testified that it was possible that Mr. Lee got the other photographs that he was showing from the internet.

KB testified that he reported this incident to a professor in the course who in turn reported it to the co-ordinator of the funeral services program at Humber. There was documentary evidence introduced by the Registrar that corroborated KB’s account. Humber investigated the claims made by KB and other students. Initially, Humber suspended Mr. Lee for a year. Mr. Lee successfully appealed this suspension. It is of interest to note that the Academic Appeal Panel at Humber which finally decided the issue wrote “there was insufficient evidence to prove that the photos of deceased persons that you had on your laptop and that you shared with a colleague in the Funeral Services Education program were acquired unethically.” The Academic Appeal Panel did find that Mr. Lee had inappropriate and tasteless labels on his personal computer and as a result they placed a note in his file. The Tribunal gives this decision little weight as there were conflicting submissions from Mr. Lee and Ms Maciura about the process Humber used and the evidence the Academic Appeal Panel had before it in reaching its conclusion.

During his cross-examination, KB was referred to Exhibit 4, a memo to file prepared by Ms. Zaretsky, counsel to the Registrar, in February 2013, reporting on a conversation she had with KB. The memo reports that Mr. Lee made a number of comments while he had his camera out on the night KB saw him take pictures of the deceased they were collecting. KB acknowledged that he made this statement. However, he stated in cross-examination that he stood by his testimony at the hearing that Mr. Lee had said nothing during the incident. The memo also refers to another colleague being present who would have seen Mr. Lee take the pictures. The memo reports that KB describes this man. The description appears to match that of RC, a witness at the hearing, whose evidence will be summarised below. According to this account, RC spoke to KB after the incident saying “Oh, it’s Andrew [Lee], he does it all the time when he’s with me.” This remark refers to Mr. Lee taking pictures of the dead bodies. In this account, KB tells RC to be careful – that he would not be asked to intern if he allowed Mr. Lee to do this. During his cross-examination, KB denied saying that RC was in the room at the time of the call and had also witnessed the incident. He explained that this was “counsel typing” and that he had never said there was a third person in the room.

When challenged on his identification of the dead soldier, KB said that if it was not a soldier from the Princess Patricia regiment, then it was still a dead soldier. KB acknowledged that he had made prior inconsistent statements about where at Humber the objectionable photographs were allegedly shown. KW, one of the women whom KB testified was present when Mr. Lee was showing the photographs, gave a different account of the incident. According to her testimony, as noted above, she heard of the photos from EC but did not see them. One of the other women whom KB identified as being present when the photos were shown was also identified by KW as being present. This woman, KL, was one of those who gave evidence that Mr. Lee did show her photos but they were not photos of dead soldiers or photos he had taken at work. She further testified that she and many other students had pictures of dead bodies on their computers for school purposes. As noted above, the Tribunal found her evidence credible.

Mr. Lee introduced a list from MacKinnon and Bowes signed by the owner and purporting to show calls that Mr. Lee had made with KB. Ms. Maciura submitted that the document should be given little weight as she had not been given an opportunity to cross-examine the person who prepared the document and that it had not been put to KB. She also submitted that the document corroborated KB’s evidence with the exception of a “minor” discrepancy. In his cross-examination, Mr. Lee presented KB with the possibility that his account of that night would be contradicted by evidence from MacKinnon and Bowes. Given that and the fact that the Registrar used this document to corroborate the evidence of KB, the Tribunal accepts it for the purpose of corroborating or contradicting KB’s testimony. The document does corroborate KB’s testimony in showing that he and Mr. Lee did go on a back-to-back coroner’s calls. The calls took place on June 27, 2009, which would have been shortly after Mr. Lee joined MacKinnon and Bowes, as KB testified. However, the record shows that the calls did not take place in the evening or after dark as KB testified. The first call was at 5:45 p.m. and the second was at 8:15 pm. The Tribunal takes notice of the fact that on June 27^th, it would not have been dark either at the start of the first call or the second. The document shows that two different coroners were involved, in contradiction to KB’s testimony. The second call is shown as taking place in the basement not the second floor as KB testified. Finally, the document shows that a third attendant attended the scene of the second call to deliver a body bag. According to the memo of an interview prepared by Ms. Zaretsky, KB told her that there had been a third attendant there, a man named RC. However, KB expressly denied this during his cross-examination. The document contradicts KB’s account of the call in material ways.

Concerning his prior inconsistent statements, KB testified that things had now changed and he is not concerned with small details. KB testified that he is suffering from a long term chronic illness and does not expect to live more than six months. He testified that he would never get to graduate or to practice. While he is on medication, he testified that the medicine was not affecting his memory. He acknowledged that the stress of his illness was affecting his memory but insisted that “you [Mr. Lee] and I both know what happened”. He stated that the stress of his illness was causing him confusion about dates but not about the event of Mr. Lee taking pictures at work.

KB was frequently argumentative on cross-examination and, although he testified that he did not bear Mr. Lee any ill will, he did testify that Mr. Lee would be able to finish his education and become a funeral director while KB would not, given his life threatening illness. His prior inconsistent statements raise concerns about the reliability of his memory as does his statement that the stress of his illness is creating memory problems. The Tribunal is also concerned that KB placed KW at the scene at the time that the objectionable pictures were being shown when her testimony was that she was not there. KB also placed another woman, KL, at the scene at the time and her testimony, which was credible, was that none of the pictures she had seen on Mr. Lee’s computer were of dead soldiers, or were photos he had taken at work, or were objectionable. His testimony that the only way Mr. Lee would have pictures of dead soldiers would be from work at MacKinnon and Bowes was undermined when he acknowledged that family members are permitted to take pictures of their deceased relatives.

Based on his memory lapses, his prior inconsistent statements, the contradictory evidence of other students and the contradictions in the MacKinnon and Bowes’ records of the back-to-back calls he made with Mr. Lee, the Tribunal concludes that K.B.’s recollection of the incidents at work and at Humber is not reliable.

One of Mr. Lee’s witnesses testified that KB and EC frequently went outside school together to smoke and EC testified that she may have consulted KB about what to do about the pictures she said she saw. While this does offer some evidence that EC and KB may have discussed EC’s accusations against Mr. Lee, it is not convincing evidence of any collusion between them.

The Registrar also called as a witness RC, the man whom KB had identified as saying that Mr. Lee took pictures of dead bodies at work “all the time”. RC testified that he worked with Mr. Lee at MacKinnon and Bowes and also attended an embalming class with him at Humber. He testified that he went on a coroner’s call with Mr. Lee one night and the deceased was a large man whose body was very decayed. He and Mr. Lee had to drape the body in a tarp to move it because of its size. RC testified that he saw Mr. Lee take two photographs of the body with his cell phone. RC was a metre away from Mr. Lee, who told him, “Don’t tell anybody” when he took the pictures. RC can’t recall if the body was clothed or not, male or female, or the exact state of body’s decay. He testified during his examination-in-chief that he never saw the photographs. During his cross-examination, he testified that he believed that he had seen the photos on the screen of Mr. Lee’s cell phone. He was unable to explain why he had changed his evidence. He gave several explanations for why he did not tell anyone in the management of MacKinnon and Bowes about the incident. He testified that he considered that he and Mr. Lee were close acquaintances and he did not want to be involved in any trouble. He also testified that he did not consider it to be that serious. Finally, he testified that Mr. Lee had been “expelled” from Humber shortly after the incident so it did not matter. He testified that he, RC, was asked to withdraw from Humber in April, 2011 so he never completed the course.

During cross-examination, it was suggested that Mr. Lee had not owned a cell phone at the time of the incident, a fact subsequently credibly established by the evidence of several of Mr. Lee’s witnesses. RC testified that if it was not a cell phone that was used, then it was a camera. RC also conceded that he might have been wrong about using a tarp to move the body. RC testified that he was depressed in late 2010/2011 but was not on medication and his memory was not affected. He declined to talk about the circumstances surrounding his leaving MacKinnon and Bowes in late May, 2011. However, the General Manager of MacKinnon and Bowes, who gave evidence for the Registrar, testified that RC was not asked to intern at the firm. Over a weekend in May, RC posted a note saying he was going to commit suicide. The firm called his father and his roommate and RC was hospitalised over the incident. He subsequently told the firm that he made the suicide threat to get attention after the firm declined to offer him an internship. The firm told him that he was welcome to return as a funeral assistant but he did not.

RC did not report the photograph taking incident to the BOFS voluntarily. Counsel for the Registrar called him about the incident and RC “decided to tell the truth”. Even with that, he did not want to testify and had to be summoned. RC was very uncomfortable giving evidence. He was unable to look at any of his questioners.

RC was not aligned with any of the other students who testified against Mr. Lee and he appeared to sincerely believe that he witnessed Mr. Lee taking pictures on his cell phone of a body while on a collection call. The question, which the Tribunal gave a great deal of consideration to, is whether RC’s evidence is reliable. There are significant discrepancies in his evidence. In his evidence-in-chief, he testified that he did not see the photos that he says Mr. Lee took. During his cross-examination, he testified that he believed he did see them; he was unable to explain why he changed his testimony. He testified that Mr. Lee had used a cell phone to take the pictures. On being confronted with the possibility of conflicting evidence, he stated that if it was not a cell phone, then it was a camera. Given the widespread prevalence of cell phones, it is unlikely that RC would have mistaken a camera for a cell phone, especially if he were close enough to glimpse the pictures on the screen. In his evidence-in-chief, he seemed quite sure that a tarp had been used to move the body and yet he seemed to abandon that position very quickly on cross-examination. His memories of the events of that night are scanty.

RC cannot remember when the incident occurred. Originally, he placed it in late 2010/2011. Later he narrowed that time when he testified that one of the factors in his not telling MacKinnon and Bowes management about the incident was that Mr. Lee was “expelled” from Humber shortly after. That would appear to place the incident sometime in early 2011. It is relevant to consider what was going on in R.C.’s life at that time. He testified that he was depressed but not on medication at the time of the incident. In April, 2011 he was asked to leave Humber. At some point in the spring of 2011 he was told he was not being asked to intern at MacKinnon and Bowes and in late May, probably on or around May 22, 2011, he posted a suicide threat so serious as to require his hospitalisation.

Considering the matters which R.C. does not recall, the discrepancies in his evidence and the emotional turmoil in his life in the spring of 2011, the Tribunal concludes that it more probable that RC did not witness Mr. Lee taking photographs of the body than it is that he did.

Both RC and KB testified to a conversation they had about Mr. Lee’s taking pictures at work. In the memo report of a conversation that Ms. Zaretsky had with KB, KB stated that the conversation occurred after RC and KB saw Mr. Lee take pictures of a dead body on a collection call. However, KB denied this account during his cross-examination. In his testimony, KB stated that the conversation occurred in the parking lot at MacKinnon and Bowes but he did not say when. During the conversation, according to KB, RC said “He does it all the time”, referring to Mr. Lee’s taking photos of dead bodies at work. RC’s recollection of this conversation is slightly different. He testified that he talked to KB about the specific incident he witnessed but he does not know why. According to RC’s testimony, KB urged RC to talk to someone about this incident. When RC said he didn’t want to, KB said it was his duty.

It seems probable that the two men did discuss Mr. Lee at some point. It is logical to assume that this conversation occurred after RC believes he witnessed the photograph taking. Given that Mr. Lee was suspended both from Humber and MacKinnon and Bowes in March, 2011, the most probable explanation for the timing of the conversation was that it occurred sometime during or after March, 2011 when two of Mr. Lee’s Humber school mates might reasonably have been expected to discuss him and the circumstances of his suspension. The Tribunal does not consider the evidence of this conversation to be corroborative of the testimony of either KB or RC about the alleged incidents of photograph taking by Mr. Lee. It is self-corroborative and there is no evidence that either gentleman took ascertainable action as a result of their talk.

In the Registrar’s closing submissions, Ms. Maciura submitted, “. . . there is no reasonable way that the Tribunal could find that both [RC] and [KB] were lying.” Further, Ms. Maciura submitted that, given that Mr. Lee did not testify, “. . . . it would be unreasonable to completely reject the evidence of both [KB] and [RC] in order to find that Mr. Lee did not take the photos. It is not their words against his. It is just their words.” This submission is not correct. KB testified that both KW and KL were present at the incident at Humber where it was alleged that Mr. Lee showed objectionable pictures of dead bodies to fellow students. KW testified that she was not there and KL testified that the pictures were not objectionable, were not of dead soldiers and were not taken by Mr. Lee at work.

The Tribunal does not find that either KB or RC was lying. The issue is not their truthfulness but the reliability of their memories of the events they testified to. For the reasons given above, the Tribunal concludes that KB’s memory of the events he testified to is unreliable. The Tribunal gave a great deal of consideration to the evidence of RC in part because it is possible that RC did see what he claims to have seen. However, the test the Tribunal must apply is not whether it is possible or even reasonably possible that a witness’ memory and testimony are reliable. The standard of proof is a balance of probabilities. In other words, is it more likely than not that the events being testified to actually occurred. For the reasons noted above, the Tribunal concludes that RC’s evidence does not meet this standard of proof.

The Registrar called the General Manager of MacKinnon and Bowes to testify. She gave evidence of an incident, which was reported in Mr. Lee’s personnel file, in which a female co-worker left her computer open to her Facebook page at MacKinnon and Bowes over the weekend. Mr. Lee showed another employee pictures that the woman had posted of herself on her Facebook page. The photos were either nude or semi-nude. Mr. Lee acknowledged his role in the affair and acknowledged that it was an immature thing to do. It was apparent that the General Manager and Mr. Lee had had a stormy relationship at work. On one occasion, she felt he had been condescending to her and on several occasions he had questioned her authority. She acknowledged that on one occasion she had commented on his personal appearance in a way that he characterised as condescending. She had seen him using his camera to take pictures of fellow employees in the garage of MacKinnon and Bowes and told him to put the camera away, which he did.

The General Manager was a credible witness as to the facts of Mr. Lee’s employment. However, her marked hostility towards Mr. Lee undermines her opinion evidence and the Tribunal chooses not to rely on it. It is, in any event, offset by the opinion evidence of other women who testified on Mr. Lee’s behalf that he has no difficulty dealing with them in a workplace setting.

Mr. Lee called an impressive array of character witnesses, some of whom had more relevant experience of Mr. Lee than others but all of whom were credible witnesses. Some of these witnesses gave specific testimony about the events testified to by EC, KW and KB and, as noted above, the Tribunal prefers the testimony of Mr. Lee’s witnesses. Three of these witnesses particularly impressed the Tribunal. The first was Mr. Lee’s preceptor when he interned at a funeral home. This gentleman, who has been a licenced funeral director for almost 40 years, spoke in detail about and with unqualified praise of Mr. Lee’s professionalism, his integrity and the way he treated the families of the deceased with whom he worked. This witness testified that the funeral home had received no complaints of lewd or otherwise inappropriate behaviour and no reports of issues with female co-workers. Regarding the suggestion that Mr. Lee would take pictures of deceased people at his place of work, this witness said that he would be surprised to hear it because Mr. Lee was not the sort of person to do that.

Another character witness was KL. She testified that she and Mr. Lee attended Humber together in the funeral services program. As students, they were involved in a romantic relationship briefly but concluded that they were “better as friends” and they have remained friends since. Despite their friendship, KL testified that if she believed that Mr. Lee had taken pictures of deceased people at work, she would have reported him to Humber authorities due to the seriousness of the offence. She testified that the circle of friends that she and Mr. Lee are in is mostly female and there has never been an incident of lewd or inappropriate sexual comments. She testified that “you wouldn’t take pictures of a dead person at work – that isn’t you.” She laughed at the suggestions that Mr. Lee was either a pedophile or a necrophile. She characterised Mr. Lee as “sweet”, “kind” and “compassionate”. It was KL who testified in contradiction to the evidence of KW and KB about the events at Humber. Her evidence was credible and was not convincingly challenged on cross-examination.

The third character witness is a mother of five children who was a student in the funeral services program with Mr. Lee. She was for a time also notionally his supervisor at the funeral home where he works, although she testified that his greater experience meant that he often showed her the ropes. She testified that Mr. Lee had always treated her with the upmost respect and that she had never seen him made lewd or inappropriate remarks to any woman. She testified that her children “adored” Mr. Lee and that if she thought there was any truth to the sexual allegations made against him, she would never have let him near them. She testified that Mr. Lee had shown her pictures of deceased people that he had on his personal computer. She had similar pictures as did many other students in the program. They were used for study and presentation purposes. She testified that he had never shown her pictures that he had taken at work and that she “absolutely” did not believe the allegations against him. She characterised Mr. Lee as a man who acts with honesty and integrity “every day”. She testified, “you are a good man”.

Ms. Maciura submitted in closing argument that the evidence of both KL and this third character witness ought to be viewed with caution because they testified that they thought Mr. Lee was being unfairly treated by the BOFS. However, this view is not so unreasonable as to render their evidence unreliable.

DECISION

The sensational allegations about Mr. Lee’s sexual proclivities and preferences and allegations about his lewd behaviour towards specific women at Humber should never have come before this Tribunal. Had the Registrar subjected the allegations of EC and her self-described best friend, KW, to rigorous review, the holes in their version of events would have become clear. The fact that EC resiled from her allegations about Mr. Lee’s alleged sexual proclivities and preferences when she was told that Mr. Lee would be cross-examining her demonstrates how flimsy that fabrication was. The allegations of EC and KW about Mr. Lee’s lewd or inappropriate behaviour to specific women, including themselves, was also rendered unbelievable both during cross-examination and by contradictory evidence by Mr. Lee’s witnesses.

The other evidence as to Mr. Lee’s alleged inappropriate attitude towards women came from the testimony of the General Manager at McKinnon and Bowes. It is clear that Mr. Lee and the General Manager had a difficult relationship. There is credible evidence that both he and the General Manager made inappropriate remarks to each other during his time there. The incident involving his showing pictures from a facebook page of a fellow employee to others does show a lack of maturity and a lapse of judgment. Of itself, however, this incident is not of a nature to disqualify him from being licenced under the Act.

A second set of allegations concerning Mr. Lee’s time at Humber is the allegation that Mr. Lee showed pictures of dead people, including dead Canadian soldiers and pictures that he had taken at MacKinnon and Bowes of dead bodies, to at least one of his fellow students, EC. The Registrar introduced three witnesses to this incident. The testimony of the main witness, EC, was rendered unbelievable by the contradictions in her own testimony. The evidence of KW was primarily hearsay and was, in any event, contradicted in material respects by the evidence of Mr. Lee’s witnesses. The evidence of KB was undermined by prior inconsistent statements, and by contradictory evidence of other witnesses whom he alleged were present during the incident. KB acknowledged that the stress of his illness is affecting his memory. The Tribunal concludes that there is no convincing evidence that Mr. Lee showed pictures of bodies he had taken at work, including pictures of dead Canadian soldiers, to one or more fellow students at Humber. The Tribunal also concludes that the pictures of dead bodies which he did show to fellow students were no more graphic or objectionable than the pictures which a number of students had on their computers for study purposes. The Tribunal finds that there is no credible evidence that the pictures which Mr. Lee did show other students demonstrate a twisted obsession with death.

There were also allegations that Mr. Lee on two occasions took unsanctioned pictures of dead bodies while working at MacKinnon and Bowes. The evidence of KB on this matter was undermined by his prior inconsistent statements and by the documentary evidence of the call produced by Mr. Lee. The Tribunal considered the evidence of RC at length. Based on the material matters that he reversed himself on during cross-examination and on his emotional state both at the time and after the alleged incident, the Tribunal concluded that his version of events was probably incorrect. The Tribunal is confirmed in this view by the evidence of credible character witnesses that such conduct was inconsistent with the character of Mr. Lee as they understand him.

The Registrar raised the issue of Mr. Lee’s governability in closing submissions. While the Registrar is not bound by the four corners of his Notice of Proposal, it is a fundamental requirement of natural justice that Mr. Lee know the case he has to meet. Mr. Lee did not object to this new ground being raised so the Tribunal will consider it. However, the Tribunal does not accept the Registrar’s contention that the fact that Mr. Lee did not tender evidence to rebut this ground should tell against him. It would be unreasonable to expect Mr. Lee to defend himself against allegations that he did not understand formed part of the Registrar’s case until after his evidence was presented. The Registrar submits that Mr.Lee will not govern himself or permit himself to be governed because of his actions during the investigation of his conduct by authorities at Humber. This conduct related to the accusations by EC, KB and, possibly others, that Mr. Lee had pictures of dead people on his computer, including pictures he had taken at work and had shown them to EC. The Registrar submits that Mr. Lee did not comply with an order of the Humber authorities that he stay off campus until their investigation was complete and that he made inconsistent comments to authorities at Humber during their investigation. Mr. Lee submits that the only evidence of this is documentary evidence of the investigation prepared by the Humber authorities. Mr. Lee submits that this is a one-sided account of what occurred. Indeed, there was evidence from a number of Mr. Lee’s witnesses that they wrote letters of support for him at the time of the investigation but were never approached by Humber authorities to tell their side of the story. On reviewing the documents prepared by Humber, the Tribunal finds them to be insufficient to reach any conclusion about Mr. Lee’s conduct during the investigation. In reaching this conclusion, the Tribunal is mindful of the fact that Mr. Lee had no opportunity to cross-examine anyone who prepared any of this documentary evidence. The Tribunal also notes that the investigation ultimately resulted in a successful appeal by Mr. Lee of the sanction imposed by the Humber authorities.

There is another incident that is relevant to consider in determining whether or nor Mr. Lee is governable. In her opening statement, Ms. Maciura referred to the fact that Mr. Lee had unilaterally approached the BOFS in March, 2011 to explain his side of the events which Humber was investigating; that is, the allegations of EC and KB. Ms. Maciura invited the Tribunal to learn from this action what sort of person Mr. Lee was, given that the BOFS did not yet have jurisdiction over him. The Tribunal understood from this statement that Ms. Maciura intended to lead evidence showing that Mr. Lee was a calculating individual who attempted to take pre-emptive action against the charges he was facing. However, it developed during the hearing that the Registrar had in his possession documentary evidence that presented this incident in a very different light. From the documentary evidence of the Humber investigation which the Registrar submitted, it appears that the Dean of the Humber funeral services program obliged Mr. Lee to report the accusations against him to MacKinnon and Bowes before Humber had completed its investigation and before Mr. Lee had any opportunity to appeal the results of this investigation. Although he protested this course of action, Mr. Lee did report the allegations against him to the owner of MacKinnon and Bowes. According to documentary evidence which Mr. Lee submitted, it was the MacKinnon and Bowes’ owner who advised him to make an appointment with the BOFS to advise them of the accusations and to present his side of the story. In the notes of the BOFS person who interviewed Mr. Lee, it is noted that Mr. Lee says he is there on the advice of his employer. This interview took place on March 4, 2011, two days after EC e-mailed the BOFS with her charges against Mr. Lee. This suggests that the action of Mr. Lee was not pre-emptive but was justified under the circumstances. It also suggests that Mr. Lee is governable and will take the advice of those in authority over him. The evidence of both his preceptor in his current place of work and of the owner of the funeral home where he currently works suggest that they had received no complaints that would raise issues of governability. The Tribunal finds this ground for refusing Mr. Lee a licence to be without foundation.

There is no convincing evidence of the incidents which cause the Registrar concern. There is evidence of an occasional lack of maturity on the part of Mr. Lee and evidence of lapses of judgment and taste in parts of his conduct both at Humber and at MacKinnon and Bowes. However, these failings are not of a nature to disqualify him from being licenced under the Act as a funeral director. Under subparagraph 14(1)(b)(ii) of the Act, Mr. Lee is entitled to a licence unless his past conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty. There is no persuasive evidence that Mr. Lee’s past conduct gives rise to these concerns. There is ample evidence from Mr. Lee’s character witnesses that Mr. Lee will be a professional, effective and compassionate funeral director. He should be given the opportunity to practice his chosen trade.

Mr. Lee moved for costs in this matter. Under Rule 14 of the Tribunal’s Rules of Practice, the Tribunal has the discretion to award costs where, considering all the circumstances, the Tribunal determines that a party has acted unreasonably, frivolously, vexatiously or in bad faith. One of the circumstances that the Tribunal should consider when determining whether a regulator has acted in a way to attract an award of costs is the broader public interest in having a regulator pursue investigations fearlessly and without the prospect of being penalised in costs if the regulator is wrong in the conclusion of his or her investigation. Of course, one hopes that in pursuing an investigation, the regulator will always be mindful of fundamental principles of fairness and natural justice. In this case, the Registrar showed a startling credulity about the sensational accusations of EC, repeating some of them almost verbatim in his Notice of Proposal. The sensational nature alone of these accusations warranted close scrutiny. That these accusations collapsed under the threat of cross-examination suggests that the Registrar might have discovered how implausible they were without too much difficulty. The Registrar also showed a disturbingly cavalier attitude towards Mr. Lee’s reputation in repeating the accusations in the Notice of Proposal. However, this conduct falls short of bad faith. Nor is there sufficient evidence of unreasonable, vexatious or frivolous conduct on the part of the Registrar’s representatives at the hearing to justify an award of costs. The Tribunal understands the frustration of Mr. Lee, who has had his career put on hold for a year. However, in all the circumstances, the Tribunal concludes that costs are not appropriate in this case.

ORDER

Acting under section 18 of the Act, The Tribunal directs the Registrar not to carry out the proposal contained in the Notice of Proposal dated December 21, 2012.

LICENCE APPEAL TRIBUNAL

Laurie Sanford, Vice-Chair

Released: July 23, 2013