Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-11-28
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
(Responding Parties on Motion)
-and-
Registrar of the Board of Funeral Services
Respondent
(Moving Party on Motion)
ORDER ON MOTION
ADJUDICATOR:
Richard Macklin, Vice-Chair
APPEARANCES:
For the Appellants:
Anthony S. Kassam, Paralegal
For the Respondent:
Bernard C. LeBlanc, Counsel
Heard in Toronto:
October 10, 2014
ORDER
The Registrar of the Board of Funeral Services filed a Notice of Motion, dated September 4, 2014, seeking to strike the notices of appeal in Tribunal files 8542/FBCSA and 8543/FBCSA. At the return date of the motion, October 10, 2104, the Appellants withdrew these appeals. As a result, there are three issues that the Tribunal needs to address:
A monitor was ordered in a Tribunal Order dated January 16, 2014. As security for the monitor's services, $2,500.00 was deposited into the trust account of Fogler, Rubinoff LLP. Now that the appeals are withdrawn, and the monitor has been fully paid, Fogler, Rubinoff LLP seeks direction from the Tribunal as to how it should pay out the funds;
The parties cannot agree on the effect of the withdrawals. The Registrar submits that the appeals should be marked as dismissed. The Appellants submit that the appeals should be marked as withdrawn. In either event, the effect of the withdrawals will be that the Registrar is empowered to carry out the Notices of Proposal to revoke, dated January 6, 2014;
The Registrar submits that the Board is entitled to costs in the amount of $2,500.00. The Registrar proposes that the cost order be satisfied through payment by Fogler, Rubinoff LLP, from the above-noted trust account. Thus, issues 1 and 3 are to be determined as one issue.
Having heard submissions from the parties on these issues, the Tribunal finds as follows:
In respect to issue number 2, the pertinent legislation is section 18(5) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 (the "Act"), which states:
Hearing and order
- (5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar’s proposal or substitute its opinion for that of the registrar and may attach conditions to its order or to a licence.
Thus, as is apparent, there is no express jurisdiction to mark appeals as withdrawn or dismissed. As a matter of practice, the Tribunal provides a form for notices of withdrawal, and may order that appeals are dismissed after a contested hearing. In this case, it is the Tribunal's view that nothing turns on the distinction between a withdrawal and a dismissal and thus, the Tribunal proposes to continue to follow the above-described practice (see Order below).
In terms of issues 1 and 3 (the costs issue), the pertinent provision is Rule 14 of the Tribunal's Rules of Practice, which states:
- COSTS
14.1 Where a party believes that another party in the proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs, which shall be made with notice to the other parties.
14.2 A request for costs may be made orally at a motion, pre-hearing or hearing, or in a written submission to the Tribunal at any time before the decision or order is released.
14.3 The Tribunal will not award costs, whether requested by a party or on its own initiative, without giving the parties an opportunity to make submissions.
14.4 A representative’s conduct on behalf of a party may be deemed to be the conduct of a party for the purposes of this Rule.
14.5 A request for costs shall set out the reasons for the request and the particulars of the other party’s conduct that is alleged to be unreasonable, frivolous, vexatious or in bad faith, such as:
(a) failing to attend a hearing, pre-hearing or motion, or to send a representative without notifying the Tribunal and other parties;
(b) failing to comply in a timely manner with the Tribunal’s direction or order, or with the party’s or representative’s undertaking, that results in prejudice or delay to another party;
(c) failing to comply in a timely manner with the disclosure requirements in the Rules; or
(d) knowingly presenting false or misleading evidence.
14.6 The amount of costs shall not exceed $500 for each half-day of attendance at a motion, pre-hearing or hearing, and shall not exceed $1000 for each full day of attendance at a motion, pre-hearing or hearing.
The Registrar asserts that the Appellants flagrantly breached an Order of the Tribunal, dated July 25, 2014 (the "Order"). The Order set out various deadlines for delivery of materials. The Registrar fully complied with the Order. The Appellants complied with none of it.
The Registrar also relies on the findings of Vice-Chair Sproule in a separate hearing, regarding new allegations, but related to one of the Appellants, Benisasia Funeral Home Inc. [see 9004 v. Registrar of the Board of Funeral Services, 2014 CanLII 61060 (ON LAT)]. Vice-Chair Sproule made numerous findings against one of the Appellants' principals, Jyoti Johal. Finally, the Registrar submits that the whole of these proceedings has been a sham. He asserts that the Appellants simply strung the Registrar and the Tribunal along, while they attempted to sell the funeral home properties. According to the Registrar, there was never a bona fide intent to appeal.
On the heels of these assertions, the Registrar then submitted that the Appellants' conduct falls within the ambit of Rule 14, and should be sanctioned by an order that the Appellants pay $2,500.00 in costs.
The Appellants submit that compliance with the Order was overtaken by events that occurred this summer, including an interim suspension of the licence of Benisasia Funeral Home Inc. and a withdrawal of services by the Appellants' previous counsel. They further assert that any findings of Vice-Chair Sproule could give rise to, at most, costs in those proceedings but not these1. Finally, the Appellants deny that these proceedings have been a sham.
A review of the wording of Rule 14 indicates that it is, in the main, meant to capture compensation for lost time, at a proceeding. Costs are not ordered at large and cost orders are sparingly granted. The Rule refers to specific half-days or full days of a "motion, pre-hearing or hearing" (see Rule 14.6) that have been lost or wasted as a result of conduct of the nature described in Rule 14.5. If specific half-days or full days of a proceeding have been lost or wasted, owing to the conduct of one of the parties, the other party can obtain $500 for a half-day and/or $1,000 for a full day of attendance. In this case, without passing an opinion on the conduct of the Appellants, viz-a-viz the failure to comply with the Order, no hearing time was lost. The proceedings have been terminated. Similarly, any concern regarding what occurred before Vice-Chair Sproule, should be taken up in those proceedings. Finally, there is no evidence that the appeals in proceedings 8542/FBCSA and 8543/FBCSA were launched as a sham.
Thus, in the circumstances, Rule 14 does not capture the conduct in question and the request for costs is denied.
Based on the foregoing, the Tribunal orders that:
The Registrar is directed to carry out the Notices of Proposal dated January 6, 2014; and
Fogler, Rubinoff LLP are directed to release the $2,500.00 currently held in trust, to the Appellants.
The proceedings before this Tribunal are now concluded.
LICENCE APPEAL TRIBUNAL
Richard Macklin, Vice-Chair
Released: November 28, 2014