Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-11-06
FILE: 7954/FDEA
CASE NAME: 7954 v. Registrar, Funeral Directors and Establishments Act and Nathan McKinlay
Appeal from a decision of the Board of Funeral Services’ Complaints Committee under the Funeral Directors and Establishments Act, R.S.O. 1990, c. F. 36 declining to refer a matter to the Discipline Committee
The Applicant Applicant
-and-
Registrar, Board of Funeral Services Respondent
-and-
Nathan McKinlay Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Laurie Sanford, Vice-Chair
APPEARANCES:
For the Applicant: self-represented
For the Respondent: Rebecca Zaretsky, Counsel
For the Added Party: Christina Wallis, Counsel Nedko Petkov, Student-at-law
Heard at Hamilton: October 17 and 18, 2013
REASONS FOR DECISION AND ORDER
This was a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising from an appeal by the Applicant, who will be referred to as “Ms. RW” to preserve her privacy. Ms. RW is appealing the decision of the Board of Funeral Services’ Complaints Committee made on December 10, 2012 under the Funeral Directors and Establishments Act, R.S.O. 1990, c. F. 36 (the”Act”) declining to refer a matter to the Discipline Committee. Mr. Nathan McKinlay is the Funeral Director against whom Ms. RW lodged her complaint.
Her complaint was that she was improperly excluded from the funeral arrangements for her mother’s funeral and that she was unable to have private time with her mother’s body prior to the funeral. Because of this, she was unable to place certain personal belongings in the casket with her mother’s body. The Board of Funeral Services’ Complaints Committee made three recommendations, which Mr. McKinlay has complied with, but declined to refer the matter to the Discipline Committee of the Board of Funeral Services.
FACTS
Ms. RW is the youngest child in a large and fractious family. She is estranged from all but one of her five surviving siblings. Ms. RW lives in Hamilton, where her mother spent her final years, while most of the rest of the family lives in a small town outside Hamilton. Other members of the family were buried from a local funeral home in their town. However, when Ms. RW’s mother learned that she was terminally ill, she told Ms. RW that she wanted to make other funeral arrangements. Sometime in the fall of 2010 or spring of 2011, Ms. RW and her mother went to an alternate funeral home in Hamilton to investigate the services provided. No contracts were signed but Ms. RW’s mother seemed satisfied with the services offered. During her final illness, Ms. RW’s mother also made a new will naming four of her children, including Ms. RW and her brother, “Mr. TB”, as executors. A copy of the will was given to Ms. RW but Mr. TB did not get a copy. His mother told him he was an executor. Mr. TB testified that he understood from conversations with her that his mother wanted to be buried from the local funeral home, as her husband had been.
Ms RW’s mother died on September 20, 2011. Ms. RW advised the one sibling she had contact with about the death and asked him to contact the rest of the family. On September 21, 2011, Ms. RW, acting in accordance with her mother’s wishes as she understood them, went to the funeral home in Hamilton to make the burial arrangements. She then advised her brother of the arrangements she had made and the time of the burial in the small town the family came from.
On learning of her mother’s death, one of Ms. RW’s sisters, acting, as she later conceded, on emotion rather than fact, wanted the coroner to perform an autopsy to confirm whether or not Ms. RW had poisoned her mother. Mr. TB, on behalf of the accusing sister, phoned the hospital to request the autopsy. Because of the autopsy request, when the Hamilton funeral home went to collect the body of Ms. RW’s mother, the hospital would not release it.
Mr. TB became aware of the death of his mother from a phone call from one of his brothers. He also learned that Ms. RW was making funeral arrangements with a Hamilton funeral home. The Hamilton funeral home has both the words “cremation” and “burial” in its title. Based on this information, Mr. TB assumed that Ms. RW was intending to have their mother cremated, which was against her religious beliefs. Mr. TB did not contact Ms. RW to verify his assumption. Instead, he contacted the Hamilton funeral home and advised them that he would be making burial arrangements with a local funeral home. In fact, Ms. RW had arranged a burial in the cemetery in the small town where most of her family lived.
On September 22, 2011, Mr. TB and one of his brothers went to their local funeral home where they met with Mr. Nathan McKinlay, the added party in these proceedings. Mr. McKinlay is a licenced funeral director. Mr. TB understood that his mother wanted to be buried by the local funeral home that employs Mr. McKinlay. He advised Mr. McKinlay that he would be making the funeral arrangements. According to Mr. TB’s testimony, he also told Mr. McKinlay that Ms. RW had made alternate arrangements with a Hamilton funeral home but that, while she would be upset that he was making local arrangements, this was about doing what his mother wanted.
Meanwhile, Ms. RW was advised by the Hamilton funeral home that they were unable to collect her mother’s body. They were unsure why and advised Ms. RW to contact the hospital. The hospital in turn advised her to contact the police. The police told her to wait for them to get back to her. At no time did during this period immediately after her mother’s death did Ms. RW know what had happened to her mother’s body. Nor did she know that she was under investigation for suspicion of having poisoned her mother until the police visited her at her home.
Ms. RW’s mother’s body was collected from the hospital by the local funeral home on September 25, 2011 without an autopsy being conducted. The funeral was set for September 26 at 11:00 am with a family viewing at 10:00 am. Ms. RW concedes that the stress of the confusion of the events after her mother’s death makes her memory of specific events fuzzy. Her initial recollection was that she only learned of the funeral arrangements on the morning of the funeral when an uncle called her. However, she did acknowledge having heard from the local minister and having spoken to Mr. McKinlay at some point.
Ms. RW was late arriving at the local funeral home and when she entered, her family was beginning to seat themselves in preparation for the service. She had brought with her several personal items she believed her mother wanted placed in the casket. However, she did not feel comfortable doing this in front of her family. The casket was shut and the funeral service began. During the funeral, Ms. RW became overwhelmed and left the service. She spoke with an employee of the funeral home about her feelings of estrangement from her family. Ms. RW also at this time complained that her mother did not look natural, her clothes were wrong and she was wearing make-up. This was the first time that Ms. RW had complained about any aspect of the funeral arrangements. As the service was underway, the funeral home employee attempted to console Ms. RW but took no action to address her concerns.
At the cemetery, Ms. RW requested some time alone with her mother’s body. She was free to stay after her family had left but one nephew lingered and, again, Ms. RW did not feel comfortable grieving her mother in his presence, so she left.
According to the testimony of Mr. McKinlay, Mr. TB came to the local funeral home with one of his brothers to make the funeral arrangements. Several other siblings were involved in executing the funeral arrangements together with Mr. TB and none of them questioned Mr. TB’s authority. In fact, the family was upset with what they felt was Ms. RW’s attempt to have their mother cremated and in that context specifically confirmed that Mr. TB should be arranging the funeral. Mr. McKinlay knew that Mr. TB had been involved with the funeral arrangements for his father. Mr. McKinlay was also aware that the four siblings he was dealing with had said they would pay for the funeral. These facts confirmed him in his belief that Mr. TB had the authority to act.
According to Mr. McKinlay, it is the ordinary practice for the person arranging the funeral to contact other family members. However, in this case, Mr. McKinlay testified, Mr. TB did not wish to speak with certain members of his family and asked Mr. McKinley to contact them on his behalf. Mr. TB does not recall telling Mr. McKinlay to call his family but the Tribunal accepts Mr. McKinlay’s testimony. Mr. McKinlay was able to recall in some detail the telephone calls he made. Mr. McKinlay was aware of tensions within the family and he appears to have known about the autopsy request. When he called Ms. RW he told her the time and place of the funeral and, in answer to her questions, told her that Mr. TB had made the arrangements. She did not tell him that she was an executor under the will or that she wanted to be included in the arrangements. She did not say that she wanted private time with her mother separate from the rest of the family. According to Mr. McKinlay, had she asserted her authority as an executor at the time of his phone call, he would have halted the funeral until the question of authority could have been worked out. Also, according to Mr. McKinlay, had Ms. RW told him on the day of the funeral that she was uncomfortable having private time with her mother’s body in front of her family, he would have arranged for a privacy curtain to be placed around the casket. As it was, Ms. RW did not complain; the first time he became aware that Ms. RW was unhappy with the funeral arrangements was when she lodged a complaint with the Board of Funeral Services on June 8, 2012, seven months after the funeral.
Mr. McKinlay did not testify that Mr. TB alerted him to the fact that alternate funeral arrangements had been made but he was not asked that question. Mr. McKinlay conceded that the result of the events was that he dealt with three of the four executors under the will and excluded the fourth, Ms. RW. He also concedes that he did not follow the Board of Funeral Services guidelines on determining authority. Those guidelines provide that “ . . . if the licensee has had no warning that there is any conflict among the next-of-kin, the licensee is entitled to rely on the signed declaration given by the person making the arrangements that he or she has the legal authority to make them . . . . .In cases where the licensee is aware that there is a conflict between the next-of-kin, the licensee needs to investigate further.” Mr. McKinlay advised that the funeral home he works for has changed its policy and will now confirm authority in situations where they are aware of a conflict within the family. However, Mr. McKinlay also testified that he had informed each of the siblings that Mr. TB had made the arrangements and he took their silence as assent.
Mr. McKinlay was genuinely concerned that Ms. RW did not get the opportunity to say her farewells to her mother in the way she would have wished and did not place in her mother’s casket the things Ms. RW wanted to leave with her.
DECISION
Mr. McKinlay appears to be a sincere professional who attempted to do the best he could in a difficult family situation. While he should, in hindsight, have been more proactive in investigating Mr. TB’s authority, the Tribunal is satisfied that he has learned the lessons of this sad confusion and that he will not make the same mistake again.
The Tribunal is also satisfied that had Ms. RW complained to Mr. McKinlay about her brother’s authority to make the funeral arrangements or had she advised Mr. McKinlay that she had a copy of the will naming four of the siblings, including her, as executors, then Mr. McKinlay would have stopped the funeral arrangements until the question of authority had been determined. By the same token, if Ms. RW had protested the arrangements on the day of the funeral to Mr. McKinlay, the Tribunal is satisfied that her wishes would have been accommodated.
Of course, Ms. RW was profoundly upset during this period. Not only had she lost her mother, to whom she was very close, but she could not understand what had happened to her mother’s body. It was only slowly, and over a course of days, that she had to confront the fact that one of her sisters had requested an autopsy on suspicion of poisoning.
It is too easy to say that Ms. RW should have spoken out. Within the dynamics of the family, she clearly felt constrained to silence. However, it would be equally unfair to hold Mr. McKinlay responsible for her silence. As he testified, he could not read her mind.
The Discipline Committee of the Board of Funeral Services hears, among other matters, allegations of professional misconduct or incompetence made against a funeral director. This is not an appropriate matter to refer to the Discipline Committee. The Complaints Committee made several recommendations that should avoid a recurrence and these recommendations have been carried out by Mr. McKinlay. This should conclude the matter.
ORDER
Acting under section 14 of the Act, The Tribunal directs the Complaints Committee to carry out the proposal and recommendations contained in its decision of December 10, 2012.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: November 6, 2013