Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-09-15
FILE:
9004/FBCSA
CASE NAME:
9004 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.
Appellant
-and-
Registrar of the Board of Funeral Services
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Elizabeth Sproule, Vice-Chair
APPEARANCES:
For the Appellant:
Anthony S. Kassam, Paralegal
For the Respondent:
Bernard C. LeBlanc, Counsel
Heard in Toronto:
August 12, 13 and 22, 2014
REASONS FOR DECISION
BACKGROUND
This is an appeal of a Notice of Proposal to Revoke and an Order to Suspend the Licence (the “Proposal”) issued to Benisasia Funeral Home Inc. (the “Appellant”) on July 24, 2014. The Appellant operates a funeral home located at 3263 Derry Road East, Mississauga, Ontario (“Derry Road”). The Proposal to Revoke and Order to Suspend was effective immediately.
The Appellant is one of two affiliated companies that are the subject of previous Notices of Proposal to Revoke and Suspend issued by the Respondent on January 6, 2014. The other affiliated company is Benisasia Funeral Home Inc. – Queen Street Chapel (“Queen Street Chapel”), and it operated a funeral home at 1357 Queen Street West, Toronto, Ontario (“1357 Queen Street”). A pre-hearing was held on January 15, 2014, in the appeals of the Notices of Proposal issued on January 6, 2014. Following the pre-hearing, the Tribunal issued two identical Interim Orders on January 16, 2014, setting out the terms upon which the Immediate Suspension Order of both the Appellant and Queen Street Chapel would be lifted. The Interim Order states:
The Tribunal orders, on the consent of the parties, that the immediate suspension order dated January 6, 2014 be lifted on the following terms, which shall continue in effect until the Tribunal releases its decision following the full hearing, or subject to further order of the Tribunal:
That Alex Munro be appointed Monitor (“the Monitor”) of the Establishment, and be provided with access to the premises at 3263 Derry Rd. East, Mississauga, Ontario (“3263 Derry Road”), 3295 Derry Rd. East, Mississauga, Ontario (“3295 Derry Road”), and 1357 Queen Street West, Toronto, Ontario (“1357 Queen Street”) (collectively “the Premises”) and the books and records of the Establishment;
That the Monitor attend the Premises a total of two days per week, at a rate of $600.00 per diem (including expenses), or such other frequency as may be agreed, in writing, by the parties;
That the Monitor shall report, with reasonable frequency, to the Board and the Establishment’s director – Jyoti Johal;
That, as a term of his appointment, the Monitor’s invoices for services rendered are to be paid within 10 days of delivery. As security, the Applicant shall, forthwith, pay $2,500.00 to the trust account of Fogler, Rubinoff LLP;
That Sahib Sran will serve as acting Chief Executive Officer of the Establishment;
The Board may obtain access, in the presence of the Monitor, to the 2nd Floor of the building located at 3295 Derry Road;
That the locks of the premises located at 3263 Derry Road be changed and that Rick Benisasia and Jyoti Johal will not have access to those keys or the premises at 3263 Derry Road or 1357 Queen Street, subject to paragraph 10;
That Rick Benisasia and Jyoti Johal not have direct or indirect involvement in the management of the Establishment;
That the existing undertaking regarding the holding of the Establishment’s computers be transferred to Harris M. Rosen of Fogler, Rubinoff LLP;
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
That the parties shall attend a further pre-hearing in this matter on Friday, January 24, 2014, commencing at 9:30 a.m. at the Tribunal’s Chambers, 20 Dundas Street West, 5th Floor, Toronto, Ontario.
There was a subsequent motion heard May 28, 2014, to have the terms of the above order(s) amended. In his Order issued June 20, 2014, Vice-Chair Macklin stated the following:
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.
The hearing of the appeals of the two January 6, 2014, Notices of Proposal, is scheduled for approximately twenty days starting in the month of November, 2014.
The Proposal that is the subject of this appeal, proposes to revoke and suspend the licence of the Appellant, which as noted above, operates the Derry Road funeral home. Although there is some disagreement between the parties’ representatives as to whether there was a second Proposal served relating to Benisasia Funeral Home Inc. – Queen Street Chapel, there is no confusion that only one appeal was filed with the Tribunal and it relates to the Proposal to Revoke and Suspend the licence of Benisasia Funeral Home Inc. operating out of 3263 Derry Road East, Mississauga, Ontario.
In any event, in a letter from the Appellant to the Respondent, dated the same date as the Proposal, the Appellant advised that the owners of Benisasia Funeral Home Inc. – Queen Street Chapel, had decided to cease operations and voluntarily return the licence effective July 23, 2014.
In the Proposal, it is alleged that the terms of the Interim Orders of January 16, 2014, as amended and set out above, have been breached and Ontario consumers have been put at risk. Further, it is alleged that the Appellant has acted in a financially irresponsible manner by not paying its accounts payable in a timely manner and as evidenced by significant outstanding debts. And lastly, that the past conduct of its officers, directors or interested persons affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty. As a consequence, the Respondent issued an immediate suspension of the Appellant’s licence on the basis that it is in the public interest to do so.
LAW
Relevant sections of the Funeral, Burial and Cremation Services Act, 2002 (the “Act”):
- (1) An applicant is entitled to a licence or to a renewal of the licence unless, …
(c) the applicant is a corporation and,
(i) the past conduct of officers or directors of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty,
(2) Subject to section 18, the registrar may refuse to renew a licence or may suspend or revoke a licence if of the opinion that the licensee is not entitled to a licence under section 14 or the licensee is in breach of a condition of the licence.
(1) If the registrar proposes to suspend or revoke a licence under section 17 and if the registrar considers it in the public interest to do so, the registrar may by order temporarily suspend the licence.
ISSUE
Is it in the public interest that the Appellant’s licence remain suspended until such time as the appeal of the Notices of Proposal to revoke its licence has been heard?
EVIDENCE
The evidence of the Respondent consisted of documentation and the testimony of
Peter Jordan, Manager, Regulatory Compliance, Board of Funeral Services (the “BOFS”), Michael Diaz-Eduris, former Managing Funeral Director, Benisasia Funeral Home Inc., Kenrick Singh, Inspector, BOFS, and Alex Munroe, retired Funeral Director and appointed Monitor of Benisasia Funeral Home Inc. and Benisasia Funeral Home Inc. - Queen Street Chapel.
The evidence of the Appellant consisted of documentation and the testimony of Khemrha Goberdhan, Office Manager, Navdeep Dosangh, Office Administrator,
Sahib Sran, CEO, all of whom are employees of the Appellant, and Prabhjot (Jyoti) Johal, a principal of the Appellant.
The following is a summary of the relevant evidence.
Mr. Munroe is a retired Funeral Director with 48 years of experience. He was engaged as the Monitor of the operations of the Appellant at both its Derry Road and 1357 Queen Street locations. This involved him attending the premises twice a week. He did so continuously up until June 26, 2014, at which time he fell ill and was unable to physically attend either location. He returned to his monitoring duties on July 21, 2014.
Mr. Munroe testified that during his involvement with the Appellant, non-compliance issues with respect to its contracts were successfully addressed. He also testified as to other various operational issues that he identified and the suggestions he made. Some, although not all, of the suggestions were followed. During his period of oversight, Mr. Munroe noted a “habitual slackness” in the attention being given to accounts payable. This observation was set out in his Monitoring Report dated February 5, 2014,1 which was provided both to the BOFS and Ms. Johal. Mr. Munroe’s evidence was that in several instances, accounts were received which indicated that they were overdue for payment. Mr. Munroe made copies of these accounts and forwarded them to Ms. Johal to be addressed as she was the “accounting department” and the individual with signing authority. Although Mr. Munroe suggested that it would be appropriate for the Managing Funeral Director to have signing authority, this authority was not granted.
There were two instances where Mr. Munroe noted that completed files required refunds to be made. Both files involved deaths which occurred approximately four and five years earlier, and were in the amounts of $239.46 and $103.30.2 Mr. Munroe indicated that he had brought these files to the attention of the management staff, although he commented on the challenges of refunding money at such a late stage. It was not clear what the status was of these two files as of the time of his testimony.
Mr. Munroe testified that he had raised a concern in June of 2014 to the CEO and Managing Funeral Director that mail was being delivered to the funeral home which was forwarded to Ms. Johal and bypassing his examination. He testified that he had only been privy to one bank statement that had arrived via mail since January 20, 2014. As a result of the lack of financial records, despite his involvement in the Appellant’s business for a number of months, he was unable to get clarity as to its financial situation.
It was Mr. Munroe’s evidence that on July 21, 2014, the day of his return to his monitoring duties, Mr. Sran, the CEO, advised him that there was an issue that he and the Managing Funeral Director, Mr. Diaz-Eduris, wished to discuss with him. The issue related to the fact that as of July 14, 2014, the Managing Funeral Director no longer had keys to 1357 Queen Street. He had relinquished his keys at the request of Ms. Johal (directly or indirectly through Mr. Sran), so that they could be given to contractors. The managing staff had been led to believe that some renovations were being undertaken at 1357 Queen Street. Mr. Munroe advised Mr. Sran and Mr. Diaz-Eduris that the BOFS should have been notified that the Managing Funeral Director did not have access to 1357 Queen Street and that for all intents and purposes the Queen Street location appeared to be closed.
On Mr. Munroe’s advice, Mr. Diaz-Eduris immediately called Mr. Jordan at the BOFS and as the latter was not available it was arranged that Mr. Jordan would call back in about an hour for a conference call with Mr. Diaz-Eduris, Mr. Munroe and Mr. Sran. Notwithstanding that Mr. Sran was aware that there was to be a conference call with the BOFS and the approximate time of the call, when it took place Mr. Sran was not in attendance; he had left the premises to do a bank deposit and did not return in time to participate.
Mr. Diaz-Eduris testified that he had been the Managing Funeral Director of 1357 Queen Street since January 29, 2013. He also became the Managing Funeral Director of the Derry Road Funeral Home at the end of March 2014. He testified that at the request of Mr. Benisasia, he moved some files out of 1357 Queen Street on July 10 or 11, 2014. The rest of the files and cremated remains were moved from 1357 Queen Street on July 15, 2014, by himself and Mr. Sran on the instruction of Ms. Johal and Mr. Benisasia.
According to Mr. Diaz-Eduris, Mr. Sran asked him for his key to 1357 Queen Street on July 14, 2014. The reason given was that contractors would need access to the building for the purpose of renovations which would take 4 to 8 weeks. Mr. Diaz-Eduris understood this decision to do renovations to have been made by Ms. Johal. When asked if there was any discussion about notifying the BOFS and clients at this time, it was Mr. Diaz-Eduris’ evidence that he was told by Ms. Johal that “the lawyers” would prepare a statement and that he was instructed not to say anything.
Mr. Jordan attended the Derry Road premises on or about July 17,2014. He spoke with Mr. Diaz-Eduris at that time and inquired how things were going and was advised that all was fine. No mention was made of the closure of 1357 Queen Street.
It was clear from Mr. Diaz-Eduris’ evidence that he did not feel that the division of authority between himself, the CEO and the Office Manager was clear and that he had doubts as to the independence of some decisions being made. His evidence suggested that the owners were still very much involved.
It was Mr. Sran’s evidence that Ms. Johal advised him that 1357 Queen Street was going to close for 4-5 weeks for renovations. He indicated that there was no start date nor was a contractor hired. According to Mr. Sran, on July 9 or 10, 2014, he and Mr. Diaz-Eduris transferred files from 1357 Queen Street to Derry Road. He confirmed that there were no services at 1357 Queen Street after July 12, 2014. He testified that he told Mr. Diaz-Eduris that he (Mr. Diaz-Eduris) needed to tell the BOFS. Mr. Sran explained that he himself did not know “legal stuff” and that Mr. Diaz-Eduris was the only one “with communication to the Board.” Mr. Sran testified, amongst other things, that on July 21, 2014, when he and Mr. Diaz-Eduris met with Mr. Munroe, there had been no decision as of yet about permanently closing 1357 Queen Street.
Mr. Sran testified that he did not have any issues working with Mr. Diaz-Eduris or any of the staff, as they were “like a team.” On July 23, 2014, Mr. Sran, Mr. Diaz-Eduris and Ms. Johal met and according to Mr. Sran that is when Ms. Johal advised that there was a decision to close 1357 Queen Street because the contractor had told them that there would be “lots of costs” to correct the building. Ms. Johal further indicated at that time that Mr. Diaz-Eduris could write a letter to the BOFS advising them of the closure.
In cross-examination, Mr. Sran acknowledged that he was aware that Ms. Johal was allowed to participate in management decisions relating to human resources, advertising and clerical tasks only in the presence of the Monitor. Mr. Sran acknowledged that he asked for the keys to 1357 Queen Street from Mr. Diaz-Eduris but denied that this was on the instructions of Ms. Johal. He indicated that he got a message that the contractor called and was waiting for a key. When asked who had the keys to the Queen Street Chapel on July 14, 2014, Mr. Sran indicated that he did not know. It was his evidence that on July 15,2014, he urged Mr. Diaz-Eduris to call the BOFS but that Mr. Diaz-Eduris refused. He could not suggest a reason as to why Mr. Diaz-Eduris would refuse to do this.
In answer to the question whether he himself could have called the BOFS, he stated he never had communication with or called the BOFS.
In her testimony, Ms. Johal denied instructing the Managing Funeral Director to delay advising the BOFS of the closure of 1357 Queen Street. She testified that when she spoke to Mr. Diaz-Eduris on July 14 or 15, 2014, she indicated that he could advise the BOFS if he wanted to but noted that they didn’t know when the renovations would be starting, or he could wait to speak to Alex when he returned on July 21, 2014. She also testified that she had mentioned another alternative to Mr. Diaz-Eduris and that was that she could have her lawyer send a letter.
Ms. Johal maintained that she had discussions in mid-June with the Managing Funeral Director about the possibility of doing renovations, but had indicated she would keep him posted as to when this would occur because she had to refinance.
Ms. Johal also testified that developers had approached her in early July 2014 about purchasing 1357 Queen Street. Ms. Johal was the owner of that property which also contained her residence. Ms. Johal testified that around the 3rd or 4th of July, 2014, she spoke to Mr. Diaz-Eduris indicating she thought the renovations would start the next week. On July 7, 2014, Mr. Diaz-Eduris told her that there had been a call to 1357 Queen Street regarding a funeral need. Ms. Johal testified that she advised Mr. Diaz-Eduris to go ahead with the service as the exact start date of the renovations had not been set. This funeral service was scheduled for July 12, 2014.
Ms. Johal confirmed that on her instructions, files were removed from 1357 Queen Street and taken to Derry Road on or about July 9, 2014, and that the rest of the files were removed by Mr. Sran and Mr. Diaz-Eduris on July 16, 2014.
It was Ms. Johal’s evidence that on or about July 17, 2014, the developers advised that they would like to go ahead with the purchase of the Queen Street property and at that point it was “all in the lawyer’s hands,” and “that there was no choice but to close.” She stated that she did not know who she should discuss this with - Michael or Alex, “as it happened quickly.”
Ms. Johal also testified that she had previously discussed with Mr. Sran the possibility of shutting down 1357 Queen Street because business had declined. She also testified that with respect to the renovations, as no contract had been signed, and no date set, she just decided to sell.
According to further testimony of Ms. Johal, her final decision to sell 1357 Queen Street was made by her on July 21 or 22, 2014, although she indicated she did have an option to lease the premises back if she wanted but because business was not doing well, there was no reason to keep it. Ms. Johal then advised Mr. Sran and Mr. Diaz-Eduris on July 23, 2014, of the permanent closure of 1357 Queen Street. Ms. Johal also testified that she asked Mr. Diaz-Eduris, or told him, to write a letter to the BOFS at that time. When he asked what he should say, she told him to indicate that the licence was being voluntarily surrendered.
Ms. Johal indicated that she did not believe she did anything wrong. She thought as the owner of the property she could sell it. She stated that if the BOFS feels she made a management decision regarding the Queen Street Funeral Home that it should not affect the Derry Road operation. She stated that it was not her intention to deceive.
According to the evidence of the Respondent, which was not contradicted, title to 1357 Queen Street was transferred on July 23, 2014, for approximately four million dollars. Although Ms. Johal testified that the property had been mortgaged, she declined to provide any details.
On the instructions of Ms. Johal, Mr. Diaz-Eduris prepared a letter which was provided to the BOFS on July 24, 2014. Mr. Jordan attended Derry Road on that date to hand deliver the Proposal. He refused to accept the letter prepared by Mr. Diaz-Eduris until after serving the Proposal and reviewing it with Mr. Diaz-Eduris and Mr. Sran. A notice of the suspension was then posted on the front and side door of the Derry Road funeral home.
Mr. Jordan produced a photograph of the Appellant’s place of business taken on August 12, 2014, which showed that the notice posted on the front door by the BOFS had been removed. Mr. Jordan testified that the notice on the side door was also removed.
Based on the evidence of the Appellant’s witnesses, the suspension notice which had been posted by the Respondent on July 24, 2014, was torn down by Mr. Goberdhan, the Office Manager, on the same day. The Appellant’s Chief Executive Officer, Mr. Sran, testified that he taped the suspension notice back together, photocopied it and posted it in a large window at the front of the building to the right of the front doors. He indicated that this was in a place where families would park and see it. Mr. Sran’s reason for not returning the notice to the place where the Respondent had posted it, namely on the front main doors, was to the effect that the staff would see it there and that would be upsetting.
It is apparent from the photographs of the front of the Derry Road Funeral Home, provided by the Appellant3 and the Respondent4, that the parking spaces in front of the window, on which the notice was re-posted by Mr. Sran, are designated handicapped parking spaces. It is also apparent that the distance between the front doors and this window is at least the width of a handicapped parking space plus an area containing a small tree. Finally, the photograph provided by the Appellant shows that there is a solid short hedge or shrubbery running between the handicapped parking spaces and the window on which the notice is posted, which would be a potential barrier to close examination of the notice.
ANALYSIS and CONCLUSION
It was suggested by Counsel for the Respondent that the Proposal under appeal was for the revocation of the Appellant’s licence and that this would be one of the possible outcomes of this hearing. As the background set out above and the evidence led indicates, the primary basis for the Proposal for revocation and suspension at this time was the breach of the Interim Order(s) in an on-going appeal. Although the Appellant can reasonably expect that any findings of this Tribunal as to the breach of the Interim Orders, or findings regarding the conduct of those persons connected with the Appellant in this regard, may be later argued to be further grounds for the revocation of the Appellant’s licence, it is the Tribunal’s opinion that it is appropriate, and fair, to restrict the issue to be determined at this time to whether the Appellant’s licence should remain suspended pending the full hearing of the appeal of the January 6, 2014, Proposal.
The Act allows for an immediate suspension of the licence of a registrant if it is in the public interest to do so. The evidence before the Tribunal is that the Appellant was allowed to continue operating on the basis that its principals’ involvement would be restricted to decisions of human resources, advertising and clerical matters, and their participation in making decisions in these areas would only be in the presence of the Monitor.
The Tribunal found Mr. Munroe, the monitor appointed with the consent of the Appellant, to be a credible witness. His detailed evidence of his experience and observations at the Appellant’s place of business was provided without embellishment or characterization of the individuals involved or their conduct. He noted a habitual slackness to pay accounts on behalf of the Appellant and the Tribunal accepts that this was the case. It also accepts Mr. Munroe’s evidence that he was unable to assess the financial position of the Appellant given the records he had access to. Without further evidence, or clarity as to the Appellant’s financial position, the Tribunal is not prepared to conclude that the Appellant had not, or would not, act in a finically responsible manner.
However, the Interim Order of January 16, 2014, which was on consent, clearly indicates that Mr. Munroe was to have access to both the premises and the books and records of the Appellant. There are no exceptions indicated. Based on the evidence of Mr. Munroe, the Tribunal finds that he in fact did not have access to all the books and records, and therefore, he was prevented from properly carrying out one of his important functions. In this way, the Interim Orders were not complied with and this is obviously a cause of concern.
There are also provisions in the Interim Orders of January 16, 2014, as amended, that Ms. Johal and Mr. Benisasia could only participate in the business of the Appellant and Queen Street Chapel in a limited way.
Specifically, they were to be allowed to complete specific clerical tasks and to participate in management decision-making in respect of human resources and advertising, so long as the Monitor was present (emphasis added). Mr. Munroe’s presence was to ensure that the business of the Appellant, and its affiliated company, was operated in accordance with the law and with honesty and integrity and to ensure that the public was protected from any harm pending the full hearing on the merits of the Proposals.
Ms. Johal testified that she was a little confused as to what her role, as owner of the business and property at 1357 Queen Street, allowed her to do versus what the Interim Order of the Tribunal had prescribed. The Tribunal does not accept this suggestion that what transpired was simply the result of an innocent misunderstanding. In the Tribunal’s opinion, the events that occurred during the weeks while Mr. Munroe was not present at the two operational locations indicate that Ms. Johal deliberately misled the CEO and the Managing Funeral Director as to the true state of affairs, which was that she intended to sell 1357 Queen Street and permanently cease the operations of the funeral home at that location.
The Tribunal considered carefully all of the evidence provided by Ms. Johal and came to the conclusion that she was not a credible witness. Her evidence was inconsistent. She provided various timelines as to when she decided the property was to be sold and the business closed. At one point, she indicated that the sale of 1357 Queen Street was settled on July 17, 2014, when she was advised that the developer wanted to go ahead. She even stated that she was unsure who she should tell at that point – Mr. Munroe or Mr. Diaz-Eduris – “as it all happened so quickly.” This statement suggests that she knew she should tell someone, but in fact she told neither. She later testified that she made her final decision on July 21 or 22, 2014, and that she told the managing staff as soon as possible. Given her earlier testimony, and the fact that title was transferred on July 23, 2014, this assertion is simply unbelievable. She suggested that she could have kept the business operating after the sale of the premises, however, she provided no particulars to support this assertion, and without such, the Tribunal did not accept this as a fact.
Notwithstanding there was much testimony about contractors and renovations, none of the witnesses, including Ms. Johal, could provide any particulars. Had contractors actually been given a key to the premises, one would assume that someone would be able to identify who they were. Given what ultimately transpired, the Tribunal finds that the basis upon which the Managing Director was asked to surrender his key was simply a ruse created by Ms. Johal to conceal her actual plan to sell the property. The evidence of Mr. Diaz-Eduris, and Mr. Sran, was that Ms. Johal did not advise them of the true state of affairs, that 1357 Queen Street was being sold and the funeral home permanently closed, until the day the title of the premises was transferred, July 23, 2014.
The decision to cease the operations of 1357 Queen Street was a decision made by Ms. Johal that was beyond what was permitted by the Interim Order of January 16, 2014.
Rather than this decision, which clearly was significant and affected every aspect of the operation of the business, being made with the involvement of the monitor, which is what was required, it was intentionally kept from all involved. In making this decision and acting as she did, Ms. Johal was acting purely in her own self-interests. The Tribunal finds it amazing and disconcerting that 1357 Queen Street was permanently closed to the public without notice to the public or the BOFS, and without the knowledge of the CEO or the Managing Funeral Director, during a period where its operations were supposedly under the oversight of a Tribunal appointed monitor. This could only be accomplished by deliberate and calculated efforts.
The Appellant has argued that notwithstanding what occurred since the Interim Order was issued, there has been no actual harm to the public, and there is no evidence of complaints from either consumers or from suppliers. The Tribunal accepts that there was no evidence of actual harm to any consumer as a result of what occurred. However, there was no legal argument before the Tribunal that suggests that actual harm is necessary to justify administrative action. The Act is consumer protection legislation and it is only reasonable, and in the public interest, that administrative action be taken when there is a risk of harm so that actual harm may be avoided.
In the funeral industry registrants hold funds in trust for consumers who have pre-paid for services, consumers may have contracted for services to be provided in a particular location, and registrants may be in possession of cremated remains. Ceasing to operate a funeral home abruptly, as did happen in this case, is just one way that the public may be put at risk of harm. What occurred with 1357 Queen Street was unanticipated by the monitor, the senior staff and the regulator. This appears to have been the goal of the efforts of at least one of the principals of the Appellant. Efforts which the Tribunal would suggest could reasonably be characterized as lacking in honesty and integrity and for this reason the Tribunal lacks confidence that the continued operation of the Appellant in the interim will not put the public at risk.
The Tribunal has considered whether additional conditions on the licence of the Appellant would be appropriate but has concluded that there are no conditions that could be put in place to ensure that the Appellant would be operated in such a manner as to not put the public at risk. The existence of a Tribunal Order proved to be an ineffective means of controlling the conduct of the same officers, directors and interested persons of the Appellant in the past.
For these reasons, the Tribunal finds that it is in the best interest of the public that the Appellant’s licence remain suspended until the full hearing of all the Proposals issued against the Appellant to date.
LICENCE APPEAL TRIBUNAL
Elizabeth Sproule, Vice-Chair
Released: September 15, 2014