Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-01-17
FILE:
8543/FBCSA
CASE NAME:
8543 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 Immediately Suspend and Revoke a Licence
Benisasia Funeral Home Inc. - Queen Street Chapel
Applicant
-and-
Registrar of the Board of Funeral Services
Respondent
ORDER ON MOTION
ADJUDICATOR:
Richard Macklin, Vice-Chair
APPEARANCES:
For the Applicant:
Harris M. Rosen, Counsel
For the Respondent:
Bernard C. LeBlanc, Counsel
Rebecca Zaretsky, Counsel
Heard in Toronto:
January 15, 2014
ORDER
Overview
A pre-hearing was held in this matter on January 15, 2014, before this Tribunal in the presence of Harris M. Rosen, Counsel for Benisasia Funeral Home Inc. - Queen Street Chapel (the “Applicant” or “Establishment”) and Bernard C. LeBlanc and Rebecca Zaretsky, Counsel for the Registrar of the Board of Funeral Services (the “Respondent” or “Board”).
At the outset of the pre-hearing, two journalists employed by the Toronto Star – Jesse MacLean and Joel Eastwood (“the journalists”), were in attendance and asked to make submissions on behalf of the Toronto Star. On the consent of the parties, the Tribunal granted the journalists standing to make submissions on what became a motion, without notice or any supporting documentation, for the Toronto Star to attend the pre-hearing in this matter.
The Tribunal granted certain relief on the motion, on consent, with reasons to follow. These are those reasons.
The Submissions of the Parties
The journalists submitted that Rule 9.9 of the Tribunal’s Rules of Practice allow for a discretion on the part of the Chair or the presiding member to open a pre-hearing to the public, except for that part of the pre-hearing in which settlement discussions occur. The journalists further submitted that in light of the public interest and public safety imperatives that arise in this case, it was an appropriate one for the Tribunal to exercise that discretion.
On further submissions, it became apparent that the Toronto Star had sought and been unable to obtain copies of the pleadings in this matter. The journalists thus submitted that, under Rule 7.1(2) of the Tribunal’s Rules, the Toronto Star ought to be entitled to documents that have been “filed in respect of [this] proceeding”.
The Applicant and Respondent submitted that in order to foster frank settlement discussions and, in light of the tight time frames that operate in an interim suspension case like this one, it was in the interests of justice that the entire pre-hearing be closed to the public. Indeed, the usual practice of the Tribunal and most adjudicative bodies, is that its hearings are fully accessible to the public, but not pre-hearings.
The Applicant and Respondent did agree that the Toronto Star ought to have access to the pleadings. Accordingly, on consent, the Tribunal ordered that the Toronto Star could obtain copies of the Notices of Appeal, Notices of Motion and the Board’s Proposal to Revoke and Order to Suspend in this matter and the companion case 8542/FBCSA, Benisasia Funeral Home Inc. v. Registrar of the Board of Funeral Services.
Copies of those documents were delivered to the journalists during the course of submissions. In addition, the Tribunal provided a generic description of other documents that had been filed in respect of the proceedings.
On further submissions, the Applicant indicated that its current instructions, not having been provided with notice or supporting materials by the Toronto Star, were to oppose the request for the release of any further materials. On that basis, the Tribunal advised the journalists that, as no consent from the Applicant was forthcoming, the Tribunal was not in a position to release any further materials from the Tribunal’s files, absent notice and a formal motion.
Ruling on Rule 9.9
In terms of opening the pre-hearing to the public, the journalists acknowledged that their primary reason for seeking to attend the pre-hearing was to obtain information regarding the grounds upon which an interim suspension was ordered in this case and to learn what arguments might be raised against such an order. They further acknowledged that, in light of the documents that were disclosed to them on consent, they had now obtained a considerable amount of the information they sought and their interest in attending the pre-hearing had been attenuated.
Rule 9.9 creates a presumption that a pre-hearing will be closed to the public and establishes that any part of a pre-hearing where settlement discussions will occur shall be closed to the public. The non-settlement discussion portions of this pre-hearing will focus on mundane matters of scheduling and exchange of documents. However, as in any “fluid” process, discussion may move to and from discussions of settlement. Opening the pre-hearing to the public, in this case, will likely inhibit the flow of the process. The concern about inhibiting the flow of the process is elevated in an interim suspension case like this one, in that the timelines the parties are operating under are compressed. All parts of these proceedings must move as expeditiously as possible, including the pre-hearing. Opening the pre-hearing to the public runs the risk of extending the amount of time that the pre-hearing will take.
Moreover, the Tribunal finds that the journalists, in light of the materials released to them on consent, have no interest in those parts of the pre-hearing that can be opened to the public, so as to displace the presumption in Rule 9.9 that the public be excluded from even the non-settlement portions of the pre-hearing. Accordingly, the Tribunal accepts the submissions of the Applicant and the Respondent and dismisses the motion brought by the Toronto Star, to open the pre-hearing to the public.
LICENCE APPEAL TRIBUNAL
Richard Macklin, Vice-Chair
Released: January 17, 2014