Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7852/FBSCA
CASE NAME: 7852 v. Registrar of the Board of Funeral Services
Appeal from the Notice of Proposal of the Registrar of the Board of Funeral Services under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 – to Refuse a Licence
Stephen Lee Applicant
-and-
Registrar of the Board of Funeral Services Respondent
DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicants: self-represented
For the Respondent: Rebecca Zaretsky, Counsel
Heard in Toronto: February 05, 2013
DECISION AND ORDER
APPLICANT’S MOTION TO EXTEND TIME
The Applicant brings a motion for an extension of time to file his appeal from the proposal of the Registrar to refuse him registration under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 (the “Act”). Pursuant to s.7 of the Licence Appeal Tribunal Act, S.O. 1999 c. 12 Sched G, the Tribunal may extend the time for filing an appeal, as follows:
Extension of time
- Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
The facts are these: On December 21, 2012 the Registrar sent a proposal to the Applicant by regular mail and by email refusing to grant the Applicant registration under the Act. The Applicant states he received both the letter and the email on December 28, 2012. He filed his appeal from the order of the Registrar on January 10, 2013, that is, within 15 days of December 28, 2012.If the effective date for service of the Registrar’s proposal is December 21, the date the email was sent, then the Applicant is three days late in filing his appeal. If December 28 is the date of service, then he has filed his appeal in a timely manner.
The only reference to service in the Act is singularly unhelpful. It states:
- (1) A request for a hearing under section 18 is sufficiently served if delivered personally or if sent by registered mail or by such other manner as may be prescribed to the registrar and to the Tribunal. 2002, c. 33, s. 20 (1).
(2) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing
The use of the wording “prescribed to the registrar and to the Tribunal” is peculiar in that it suggests that service methods and times may be set by some outside agency or regulatory body. The Tribunal is unaware of any service methods prescribed to the Registrar or to it. Subsection (2) addresses only service by registered mail. In this case, service was by email and regular mail. The Tribunal must seek a solution outside of the statutory scheme.
At the heart of all service rules are two considerations: when did a party get actual notice of an event or step in a proceeding; and, if the time of actual notice is in issue, as here, are there rules to deem notice on some date other than the date when actual notice was received. In the current case there are no rules setting a date when notice is deemed to have been received. Thus, the Tribunal must look at the date when actual notice was received.
The Applicant advised the Tribunal that he received actual notice on December 28. He stated that when he received the Registrar’s letter he called the Registrar. He was advised during the conversation that the Registrar had also sent him an email on December 21, 2012. The Applicant opened his email account and found the email attaching the letter. He immediately emailed the Registrar that he had received the December 21 email to which the Registrar replied “Acknowledged.” Thus the only evidence before the Tribunal concerning the date of actual notice on the part of the Applicant was that it was received on December 28. It would have been a simple matter for the Registrar to append a confirmation receipt acknowledgment to his December 21 email. Apparently he did not do so and the Registrar did not put an acknowledgement before the Tribunal. Accordingly, the Tribunal concludes that actual notice to the Applicant occurred on December 28, 2012 and that the appeal was filed within the time limit.
If the Tribunal is incorrect in this analysis, it would still permit an extension of time. In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002 2012 ONSC 1492, the court affirmed the application of a four part test to assist the Tribunal in determining if the justice of the case required the granting of an extension:
A bona fide intention to appeal within the appeal period,
The length of the delay,
Prejudice to the other party, and
The merits of the appeal.
The four factors do not represent a series of pass/fail steps but must be considered as a whole. Weaker arguments under one head may be compensated for by stronger arguments under another. They must be balanced with the ultimate goal of the decision maker being to determine if the interests of justice favour the grant or denial of an extension of time.
Applying the test to these facts, the Tribunal notes that the delay is short and no prejudice has been alleged by the Registrar. The Applicant spent the time between December 28, 2012 and January 10, 2013, the date he filed his appeal, researching appeal proceedings before the Tribunal and contacting potential witnesses. He clearly evinced an intention to appeal. He filed within what he thought was the proper time limit. In Manuel, the court pointed out that the intention to appeal must be formed at some point during the appeal period. It does not have to be constant from the beginning to the end. While the specific merits of the case were not argued, the matter is of substantial importance to the Applicant`s future. The Tribunal finds that the interests of justice favour the granting of an extension of time.
The Tribunal shall process the Applicant`s appeal in the ordinary course.
LICENCE APPEAL TRIBUNAL
_________________________
D. Gregory Flude, Vice-Chair
Released: February 12, 2013