Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8542/FBCSA and 8543/FBCSA
CASE NAME: 8542 and 8543 v. Registrar of the Board of Funeral Services
Appeals from the Notices 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 Licences
Benisasia Funeral Home Inc. and Benisasia Funeral Home Inc. - Queen Street Chapel Appellants
-and-
Registrar of the Board of Funeral Services Respondent
ORDER ON MOTION
ADJUDICATOR: Richard Macklin, Vice-Chair
APPEARANCES:
For the Appellants: Harris M. Rosen, Counsel
For the Respondent: Bernard C. LeBlanc, Counsel Rebecca Zaretsky, Counsel
Heard in Toronto: May 28, 2014
REASONS AND ORDER
BACKGROUND
Under a Consent Order issued by the Tribunal on January 16, 2014, the Tribunal ordered, amongst other things:
That Rick Benisasia and Jyoti Johal not have direct or indirect involvement in the management of the Establishment;
That Rick Benisasia and/or Jyoti Johal, shall be entitled to attend the premises at 3263 Derry Road or the premises at 1357 Queen Street a total of three times per month, in the presence of the Monitor and such other times as may be agreed, in writing, by the parties; and
In a subsequent Order, issued March 18, 2014, the Tribunal varied paragraph 10 such that it now states:
- That Rick Benisasia and/or Jyoti Johal, shall be entitled to attend the premises at 3263 Derry Road or the premises at 1357 Queen Street, in the presence of the Monitor and such other times as may be agreed, in writing, by the parties;
In light of the increased attendance rights obtained on March 18, 2014, and what the Appellants submit have been four and one-half months of “good behaviour”, they have brought a motion, heard on May 28, 2014, that seeks to vary paragraph 8 of the Order issued on January 16, 2014. Specifically, the motion seeks relief that would increase the managerial involvement of its principals, Jyoti Johal and Rick Benisasia, in the enterprise.
During the course of the hearing, the Appellants itemized the relief sought as follows:
- That Jyoti Johal and/or Rick Benisasia, on days where the Monitor is present, be allowed to:
i) perform clerical work in terms of sending orders to Dodge Chemical, Northern Caskets and Heartlake Florist; and
ii) print after-care package documents and deliver those documents to the Managing Funeral Director for his or her signature;
That Jyoti Johal and/or Rick Benisasia be allowed to participate in management decision-making in respect of human resources and advertising, so long as that participation is conducted in the presence of the Monitor;
That Jyoti Johal and/or Rick Benisasia be allowed to take part in funeral services, cemetery and crematorium services as Funeral Director Assistant to the licensed Funeral Director, including assisting in cultural and translation matters that arise in respect of clients from South Asian communities; and
That Jyoti Johal and Rick Benisasia be allowed to assist families with washing and dressing of bodies of deceased persons.
ADJOURNMENT ISSUE
At the outset of the hearing of the motion, the Appellants moved for an adjournment. The grounds for the adjournment were concerns expressed regarding the contents of an affidavit of Peter Jordan, filed by the Registrar of the Board Funeral Services (the “Respondent” or “Board”), sworn May 16, 2014. During the course of arguing the adjournment request, the Appellants withdrew their motion and the parties agreed that the motion could proceed as scheduled, on all of the materials filed, and that the parties would be free to make submissions regarding the weight to be attached to those documents in submissions.
RULING ON MOTION
The Consent Order dated January 16, 2014, was obtained in the context of an Immediate Suspension Order, in respect of the Appellants’ licences, that had been issued by the Board on January 6, 2014. Thus, in exchange for foregoing a full hearing on the immediate suspension issue, the Appellants were able, via Consent Order, to stay in business pending the hearing of the underlying appeal. A drastic reduction in the managerial involvement of Jyoti Johal and Rick Benisasia was part of the quid-pro-quo of that Consent Order (as evidenced by the Orders at paragraphs 8 and 10 of the Consent Order, as specified above).
Although there has been improvement in the Appellants’ affairs over the last four and one-half months (the Respondent submits that this improvement is a result of the absence of Ms. Johal and Mr. Benisasia), the relief sought by the Appellants seeks to effectively, restore their managerial roles to very near what they were prior to the Immediate Suspension Order and the Consent Order that lifted it. The Tribunal is of the view that there is insufficient evidence at this time to warrant a return to that state of affairs.
During the course of the hearing of this motion, it became apparent that the Board is most concerned with ensuring that Ms. Johal and Mr. Benisasia, who are not licensed under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 (the “Act”), not engage in service for which a licence is required. In large measure, the relief sought by the Appellants wherein they would be in contact with the public (paragraphs 3 and 4 of the relief sought as noted above) will in all likelihood push up against that valid concern. Thus, the Tribunal dismisses the Appellants’ motion in respect of paragraphs 3 and 4 of the above-noted relief sought.
It further became apparent, during the course of the hearing of the motion, that an absolute prohibition on the principals’ involvement in management is not necessary. Indeed, the Board, through counsel, consented to an Order in the form set out in paragraph 2 of the relief sought, as noted above.
This leaves the matter of paragraph 1 of the relief sought, which relates largely to clerical work. The Board expressed concern that there had been issues with forgery of documents in previous proceedings that involved Ms. Johal. However, the relief sought, as structured, would have the Monitor present at all times that Ms. Johal was attending to the clerical work for which she now seeks approval. Although the Monitor is not omniscient and cannot watch every move of Ms. Johal or Mr. Benisasia, his presence in the premises has had a positive effect. Thus, there is no reason to suspect that the limited tasks identified in paragraph 1 of the relief sought, cannot be done by Ms. Johal and Mr. Benisasia, without incident, pending the hearing of the underlying appeal.
Accordingly, the Tribunal is prepared to grant the Appellants’ motion in respect of paragraph 1 of the relief sought.
In addition, there are outstanding costs orders against Ms. Johal in court proceedings that preceded this matter. The amount outstanding is $25,000.00. The Appellants have now consented to pay that amount to the Board, in satisfaction of those outstanding costs orders, on or before the commencement of the underlying appeal, or as otherwise resolved by the parties.
CONCLUSION
Ms. Johal and Mr. Benisasia are the Appellants’ principals and have been removed from management of the Appellants for over four and one-half months. During that time, they have gained some increased access to the business and, by this Order, they will gain some increase in their managerial role. They may not be happy with what they have obtained. The best means, by which they can arrive at a measure of certainty regarding their current role, is to bring this matter to a final adjudication or otherwise resolve the dispute.
Based on the above, the Tribunal orders as follows:
The Appellants’ motion is granted in part;
That during the times that the Monitor is present, Jyoti Johal and Rick Benisasia, be allowed to perform clerical work in terms of sending orders to Dodge Chemical, Northern Caskets and Heartlake Florist and, during such times, they can print after-care package documents and deliver them to the Managing Funeral Director for his or her signature;
That Jyoti Johal and Rick Benisasia be allowed to participate in management decision-making in respect of human resources and advertising, so long as that participation is conducted in the presence of the Monitor; and
That the Appellants will pay the Board $25,000.00, in satisfaction of the outstanding costs in Divisional Court File No.: 75/11 and Ontario Court of Appeal Court File No.: C55358, on or before the commencement of the hearing of the underlying appeal, or as otherwise resolved by the parties;
That the parties shall attend a further pre-hearing in this matter on Tuesday, July 8, 2014, commencing at 9:30 a.m. at the Tribunal’s Chambers, 20 Dundas Street West, Suite 530, Toronto, Ontario.
LICENCE APPEAL TRIBUNAL
Richard Macklin, Vice-Chair
Released: June 20, 2014