Licence Appeal Tribunal
Appeal from a Decision of the Registrar under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002 c. 33 to Revoke a Licence and Immediately Suspend a Licence
Between:
Newcastle Funeral Home Ltd.
Appellant
and
Registrar, Bereavement Authority of Ontario
Respondent
DECISION & ORDER
Order Made By: Jeanie Theoharis, Vice Chair
Date of Order: July 12, 2018
Overview:
1The appellant requested a hearing to address the Registrar’s Notice of Proposal to revoke, and an Order to immediately suspend the appellant’s Crematorium Operator Licence pursuant to sections 17(2) and 19 of the Funeral, Burial and Cremation Services Act.
2The teleconference hearing commenced on July 10, 2018, and the attendees were: Nicholas Tibollo and Frances Tibollo, counsel for the appellant; as well as Elizabeth Maishlish and Bernie LeBlanc, counsel for the respondent, Carey Smith, Registrar for the Bereavement Authority of Ontario, and Peter Jordan, Manager of Compliance, Bereavement Authority of Ontario.
3The appellant’s counsel indicated that they consent to the extension of the immediate suspension order until the hearing is concluded. The appellant’s counsel requested that the merits of the case be presented after the parties were provided the opportunity to exchange documents. He requested the hearing continue as early as late July, if the respondent did not have any further documents to disclose, or by early September if further disclosure was going to be exchanged.
4As the appellant consented to extending the immediate suspension order, only procedural matters were discussed at the hearing, and the parties did not present any evidence. The hearing was adjourned.
Procedural Issue: Having chaired the first day of the hearing, am I seized of the matter such that I have to chair the remaining hearing dates?
5I find that I am not seized of the appeal.
6At the hearing, the respondent’s counsel submitted that since I chaired the first hearing date, then it may be an error of law if I do not continue as chair at the continuation of the hearing. Therefore, the respondent submits I am seized of this matter. In support of their submission, respondent’s counsel submitted that section 19 of the Act contemplates a single hearing of an appeal and if I was chair at the commencement of the hearing I ought to continue as chair at the resumption of the hearing.
7The appellant did not provide submissions on the issue, but did indicate that he did not object if I continue to chair the appeal when the hearing is resumed in September.
8The appellant received a Notice of Proposal to revoke a licence and an order to immediately suspend a licence under sections 17(2) and 19 of the Act. Under section 19 of the Act, the immediate suspension order takes effect immediately, but expires 15 days after the written request for a hearing is received by the Tribunal. However, pursuant to subsections 19(3) and 19(4) of the Act, the Tribunal may extend the time of expiration until the hearing is concluded if a hearing is commenced within 15 days from the date the appellant’s written request for a hearing is received by the Tribunal, or the Tribunal may extend the expiration for the immediate suspension order if it is satisfied that the conduct of the licensee has delayed the commencement of the hearing.
9The appellant’s request for a hearing was received by the Tribunal on June 28, 2018. The hearing commenced on July 10, 2018, within the 15-day period. At the July 10, 2018, hearing the parties consented to extend the immediate suspension order until the conclusion of the hearing; and thereafter procedural case management steps were arranged to ensure the parties would be prepared to address the merits of the appeal at the continuation of the hearing in September.
10A member is not automatically seized when a hearing is commenced. In making a determination of whether a member is seized, a member must consider what occurred during the initial hearing to determine whether a member is seized or not. A member is seized if the fairness and integrity of the hearing would be compromised if another member were to resume the hearing. Factors to consider in making that determination include whether substantive evidence related to the appeal was presented, the type of rulings made, and whether substantive issues related to the merits were decided.
11At the start of the hearing, appellant’s counsel took the position that the merits of the appeal could not be addressed on July 10, 2018 and indicated his client’s consent to extend the time of the expiration for the immediate suspension order until the hearing is concluded, and wanted to discuss a case management timetable, addressing such things as the hearing date, disclosure dates, witness list etc. The respondent’s counsel took the position that the disclosure obligation was a mutual ongoing obligation, and was not yet complete. The respondent’s counsel further indicated that she understood the initial hearing date was to address the extension of the immediate suspension order and procedural matters. The issue of the extension of the Registrar’s Order was settled on consent and the technical/procedural issues were non-contentious. The resolution of these issues did not require either party to present evidence or make submissions about the merits of the appeal.
12I am cognizant that the matter is proceeding as one hearing. The hearing was adjourned and will continue in September. Between now and then, the parties will exchange disclosure and witness lists, prepare an agreed statement of fact, and prepare books of authorities. These next steps are preparations to facilitate a fair and just hearing of the merits of the appeal.
13I find that the integrity of a fair and just hearing will not be jeopardized or compromised if another member chairs the hearing in September because I did not hear any substantive evidence on the merits of the appeal and I did not make any substantive rulings that would impact the issues under appeal. The issue of extension of the immediate suspension order was resolved on consent, and the other issues related to technical and procedural matters were non-contentious and will assist the parties to prepare for the hearing on the merits of the appeal, which the parties agreed will take place in September. I acknowledge that there is nothing barring me from sitting at the continuation of the hearing, but I am not obligated to do so since I am not seized of the matter.
The case management processes agreed upon and ordered is as follows:
Rules
14The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice & Procedure, Version 1 (October 2, 2017) apply to this appeal, except where varied by this Order (the “Rules”).
Case Conference Date
15The parties agree to attend a case conference on August 21, 2018, at 9:30 a.m. via teleconference. A Notice of Case Conference will be sent out with the teleconference details.
Hearing Dates
16Based on estimations made at the hearing, the parties agreed that six additional hearing days be scheduled.
17The hearing will continue on September 5, 6, 7, 13, 14, 17, 2018 at 20 Dundas Street West, 5th floor, Toronto, Ontario, commencing at 9:30 a.m.
18The parties agreed to keep September 18 and 21, 2018, as alternate hearing dates. These dates would be utilized if the hearing is not concluded on the dates noted above, or to address any unforeseen factors that may arise. The intent is to complete the hearing in an expeditious manner given that there is an immediate suspension order of the applicant’s licence.
Exchange of Documents
19The respondent has already given the appellant documents they intend to rely upon at the hearing. However, if the respondent has any further documents that they intend to rely upon, they agree to provide the appellants with the documents by July 13, 2018.
20The appellant agrees to provide to the respondent documents they intend to rely upon at the hearing by July 20, 2018.
21The parties agreed to exchange reply documents that each intends to rely upon at the hearing by July 27, 2018.
Witnesses
22The appellant intends to call the following individuals as witnesses:
a. T.C., licensee
b. S.S., representative of AH equipment manufacturing company
c. A representative of Durham Region of Public Health
d. A representative of Durham Region of Public Health and Water Safety
23The respondent intends to call the following individuals as witnesses:
a. C.S., Registrar
b. P.J., Head of Compliance
c. P.L., BAO Inspector
d. A.R., BAO Inspector
24Both parties agree that they may call an additional 1-2 witnesses, the names of whom were not yet known on July 10, 2018. The parties agree to disclose any further witnesses and exchange a complete witness list by August 3, 2018.
25Both parties agree that they will exchange with each other witness statements containing a brief outline of the intended evidence by August 3, 2018.
Expert Witnesses
26The parties intend to call expert witnesses. The parties agree that Rule 10 has been modified to accommodate the hearing schedule.
a. The respondent agreed to provide any expert reports they intend to rely upon to the appellant by August 20, 2018.
b. The appellant agreed to provide any expert reports they intend to rely upon to the respondent by August 27, 2018.
Case Management Particulars
27At the August 21, 2018, case conference:
a. The parties agreed to identify the issues in dispute that will be addressed at the hearing.
b. As required under Rule 14, the appellant shall attend at the case conference.
28The parties agree to work together to prepare and file an Agreed Statement of Fact. The parties shall file the Agreed Statement of Fact with the Tribunal by August 20, 2018.
29The parties shall exchange with each other the books of authorities they intend to rely upon at the hearing by August 31, 2018.
30In accordance with Rule 13.3 the parties may record the hearing. The parties will arrange for a certified court reporter to attend on the remaining hearing dates and agree that they will share the costs associated with having a certified court reporter attend for the remainder of the hearing.
31The parties shall number their documents consecutively, include the file name as a reference on each document (11449 FBCSA), and refer to the Tribunal’s website (www.lat.gov.on.ca) for further information, as needed. The parties shall file a Certificate of Service with the Tribunal to verify that a copy of all materials have been served to the other party in accordance with the Rules.
32The parties indicated that monitors/electronic equipment may be needed for the remainder of the hearing dates. They may make a detailed request of what is needed to the Tribunal, at which time the Tribunal will inform them if the equipment is available.
33The parties shall be prepared to present their evidence and submissions to the hearing member on the next scheduled hearing dates.
34If the parties reach an agreement on the issues in dispute prior to the next scheduled hearing date, they shall immediately advise the Tribunal. If the appellant decides to withdraw their appeal, they shall serve the respondent and file with the Tribunal a copy of the Notice of Withdrawal. The Tribunal will thereafter cancel the hearing. The Tribunal’s Notice of Withdrawal is available at www.lat.gov.on.ca.
35The case management process set out in this Order may be modified subject to the submissions from the parties as deemed fit.
Further to the hearing held on July 10, 2018, I order the following:
36On consent of the parties, the expiration of the Order to immediately suspend the appellant’s Crematorium Operator Licence is extended until the hearing is concluded.
37Nothing in this Order affects any requirement under the Act.
LICENCE APPEAL TRIBUNAL
Jeanie Theoharis, Vice-Chair
Released: July 12, 2018