Appeal from Notices of Proposal issued by the Registrar under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 to Revoke a Registration and to Refuse Registration
Between:
Paul Robert Scrannage and 10276855 Ontario Inc. o/a Greater Niagara Mortuary Services Ltd.
Appellants
and
Registrar, Funeral, Burial and Cremation Services Act, 2002
Respondent
DECISION and ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellants: H.A. Patrick Little, Counsel
For the Respondent: Elizabeth Maishlish, Counsel
Heard in Hamilton, Ontario: April 30, May 1, 2, 3 and 4, 2018
Introduction
1This is an appeal of a Notice of Proposal issued by the Registrar appointed under the Funeral, Burial and Cremation Services Act, 2002 (“Act”).
2The notice contains two distinct proposals. The first is a proposal to revoke the Funeral Director – Class 1 licence (“FD-1 licence”) held by Paul Scrannage.
3The second is a proposal to refuse the application of Greater Niagara Mortuary Services Ltd. (“GNMS”) for a Funeral Establishment Operator – Class 2 licence (“FEO-2 licence”). Mr. Scrannage is an officer, director and part owner of GNMS. The other officer, director, and part owner is S.M.
4Both Mr. Scrannage and GNMS are appellants in this proceeding and are represented by the same counsel, Mr. H. Patrick Little.
Decision
5Based on my findings below, I have decided to direct the Registrar to carry out his proposal to revoke Mr. Scrannage’s FD-1 licence as well as his proposal to deny GNMS’s application for an FEO-2 licence.
Preliminary Issues
(a) Exclusion of Witnesses
6At the outset of the hearing, counsel for the Registrar raised two preliminary matters.
7Counsel for the Registrar asked that I issue an order excluding witnesses. In particular, she asked that S.M. be excluded while Mr. Scrannage testified.
8Appellants’ counsel did not object generally to the exclusion of witnesses but asked that S.M. not be excluded. He pointed out that GNMS is an Appellant and S.M. is an officer, director and 50% owner of that company. He suggested that S.M., like Mr. Scrannage, is effectively a party to the hearing and should be present throughout in order to participate and instruct counsel.
9I issued an order excluding witnesses generally and ruled that S.M. should be excluded while Mr. Scrannage testified. The appellants in this case are Mr. Scrannage and GNMS. S.M. certainly has an interest in GNMS’s appeal but he is not a party. In my view, GNMS would not be significantly prejudiced by the exclusion of one of its two directors and officers while Mr. Scrannage testified, and his exclusion would protect the integrity of the evidence presented.
(b) Confidentiality Order
10Registrar’s counsel also requested an order under Rule 13.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”). That Rule provides that the Tribunal may limit public access to all or part of a document to protect confidentiality of personal or sensitive information.
11One of the issues in this case involves the transfer of the remains of an infant from a hospital morgue to a crematorium. Registrar’s counsel stated that some of the evidence contains personal and sensitive information in that it describes in detail the handling of the infant’s remains. She stated that a confidentiality order was appropriate to protect the family’s privacy and spare them any further distress. Counsel for the appellants did not object.
12The parties had agreed to the introduction into evidence of several bound volumes of documents. Counsel for the Registrar requested that only limited and specified portions of those exhibits be kept confidential and the requested order did not apply to the majority of the record.
13I concluded that having regard to the circumstances of this case and the nature of the evidence, the desirability of limiting public access to a discrete part of the evidentiary record outweighed the desirability of adhering to the principle that the documents be open to the public. I therefore issued the following Order:
14Pursuant to Rule 13.1 of the Tribunal’s Rules I order that the following documents and records be excluded from public access:
Exhibit 4, tab 23
Exhibit 4, tab 24
Exhibit 5, tab 28
Exhibit 5, tab 33
Exhibit 11
The Act and the Notice of Proposal
15The Registrar’s proposals were issued under s.17 of the Act which provides that the Registrar may revoke an existing licence or refuse an application if the licensee or applicant is not entitled to a licence under s.14 or is in breach of a condition of the licence.
16Section 18 requires that before revoking a licence or refusing an application, the Registrar must give the licensee or applicant written notice of the proposal setting out the reasons and the right to request a hearing by this Tribunal.
17If no hearing is requested, the Registrar may carry out the proposal. If, as in this case, a hearing is requested, the Tribunal shall hold a hearing. At a hearing, the onus is on the Registrar to establish the fact supporting revocation or refusal on a balance of probabilities.
18After holding a hearing, the Tribunal may, by order, direct the Registrar to carry out the proposal or substitute its opinion for that of the Registrar and may attach conditions to its order or to a licence.
19In this case, the incident that triggered the Registrar’s notice of proposal was Mr. Scrannage’s transfer of the remains of an infant on September 13, 2017. That incident was reported to the Registrar and an investigation revealed additional concerns. Those concerns, as well as the transfer incident, form the basis for the Registrar’s proposal to revoke Mr. Scrannage’s FD-1 licence.
20Before the transfer incident occurred, Mr. Scrannage and S.M. had been working together on an application on behalf of GNMS for a licence as a funeral establishment operator. They had taken steps to prepare that application including incorporating a company, securing premises and contacting the Bereavement Authority of Ontario (“BAO”)1 with respect to licensing requirements.
21The GNMS application was received by the BAO on October 19, 2017, a few weeks after the infant transfer incident and after the BAO had commenced its investigation.
22The Registrar proposes to refuse that application, in part because of Mr. Scrannage’s alleged conduct as set out in the notice of proposal to revoke his licence.
23Thus, the proposal to refuse the GNMS application depends significantly on my findings with respect to the proposal to revoke. Accordingly, I will deal first with the proposal to revoke Mr. Scrannage’s FD-1 licence and afterwards with the proposal to refuse GNMS’s application for a FEO-2 licence.
Part 1 – Notice of Proposal to Revoke Mr. Scrannage’s FD-1 Licence
24Section 14 of the Act contains several possible grounds for revocation. The Registrar’s proposal to revoke Mr. Scrannage’s FD-1 licence, as set out in the Notice of Proposal and refined during the course of the hearing, relies upon three of those grounds:
Mr. Scrannage is in contravention of the Act and the regulations (s. 14(1)(a)(i))
Mr. Scrannage’s past conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty (s. 14(1)(b)(ii))
Mr. Scrannage is in breach of a condition of his licence (s. 14(1)(h)).
25In support of those grounds for revocation, the Registrar makes the following factual allegations against Mr. Scrannage.
(a) Mr. Scrannage transferred the remains of a deceased infant from a hospital morgue to a crematorium in a manner that was undignified, disrespectful and failed to comply with professional standards.
(b) Mr. Scrannage handled human remains roughly.
(c) Mr. Scrannage removed pacemakers and defibrillators from decedents without carrying out the procedure in an appropriate holding room, without using the required equipment and techniques, and in a manner that was undignified and disrespectful.
(d) Mr. Scrannage participated in funerals as a representative of his employer, Niagara Funeral Alternatives (“NFA”) who, as a licensed transfer service operator and not a funeral establishment, was prohibited from arranging or attending funerals.
(e) Mr. Scrannage provided false or misleading information to the Registrar’s staff in response to inquiries about the infant transfer.
26My findings with respect to each of those allegations are set out below. They are followed by my conclusions as to whether those facts establish any of the three grounds for revocation under s. 14.
(a) Infant Transfer Incident
27As set out below, I have found that while working for a transfer service operator, Mr. Scrannage transferred the remains of an infant in a manner that was disrespectful, undignified and fell below the standards expected in the industry.
28Mr. Scrannage has been continuously licensed as funeral director since 1976. However, he has not been actively employed as a funeral director since 1981 and is employed full-time outside of the bereavement industry.
29In September 2017, Mr. Scrannage worked occasionally for NFA. NFA is licensed as a transfer service operator – Class 1, although that licence is currently under suspension and the Registrar has issued a notice of proposal to revoke it. NFA’s licensed activity was limited to casketing and transporting dead human bodies and filling out the necessary documentation. Typically, transfers take place from the place of death or hospital morgue to a funeral establishment or crematorium.
30Section 36 of the regulation requires that the day-to-day operations of a transfer operator be managed by a person holding a FD-1 licence. According to the evidence, NFA’s licensed funeral director was J.O. However, NFA’s day-to-day operations were managed by his son, P.O. who does not hold an FD-1 licence.
31On September 13, 2017, Mr. Scrannage was instructed by P.O. to pick up the remains of a deceased infant from a Hamilton area hospital morgue and transport them to the Bayview crematorium (“Bayview”) in Burlington, Ontario.
32P.O. provided Mr. Scrannage with a cardboard box in which funeral supplies, such as urns or stationery, had been shipped from a funeral supply company and told him to use that box to pick up the infant’s remains and deliver them to Bayview for cremation. The box still contained some bubble wrap apparently left over from its original purpose.
33According to three of the licensed funeral directors who testified, human remains are always transported in containers that are designed for that purpose. The box given to Mr. Scrannage was not intended or appropriate to transport human remains.
34Mr. Scrannage states that he questioned P.O. about the use of the box but was told that the infant’s family had limited funds and wanted to reduce costs to a minimum, and the use of the box had been endorsed by a licensed funeral director recently hired by NFA.
35Mr. Scrannage went to the hospital morgue with the box to pick up the remains. His arrival at the morgue and what happened there was captured on soundless CCTV security video which was entered as an exhibit and viewed at the hearing.
36The video shows Mr. Scrannage entering the morgue and communicating with a security officer while she checked the morgue records. A member of the morgue staff directed Mr. Scrannage to the infant’s remains which were inside a vinyl adult-sized body bag on a hospital gurney located in the hallway of the morgue.
37The infant had undergone an autopsy in which brain tissue had been removed for examination and then placed in a plastic pail. The plastic pail was also on the gurney.
38The video shows Mr. Scrannage opening the body bag and viewing the contents. The body bag contained the infant’s remains and a linen bag that held two knitted baby blankets. The video then shows Mr. Scrannage attempting to fit the body bag into the box. However, because the box was too small, the body bag and contents would not all fit within the box, and the lid could not be fully closed. Mr. Scrannage took the box containing the remains to his vehicle parked outside the morgue and returned a moment later to retrieve the pail.
39Mr. Scrannage testified that he was shaken by the fact that the infant was in an adult sized bag, there were two containers, and the remains were located in a morgue hallway. He wanted to place the remains in the box in a more private setting and claims that he asked the morgue technician for a more private space but was told that the morgue was busy and he was to take the remains from the hallway.
40According to Mr. Scrannage, when he got to his vehicle he tried again to fit the body bag and contents into the box. The lid could not be closed and he roughly wrapped black tape around the box to secure the lid. The box and the pail were then delivered to Bayview.
41Two crematorium staff who were working that day testified. They testified that they had never encountered human remains delivered for cremation in a re-purposed cardboard box or in two separate containers. They were shocked at the manner in which the remains were delivered which they characterised as undignified and disrespectful. They stated that in their experience, remains are delivered for cremation in one container, either cardboard or wood, that is intended and designed for human cremation. Smaller cremation containers are available for infants.
42Mr. Scrannage testified that he too was rattled by this experience and shaken by the reaction of the crematorium staff. He left Bayview, telephoned P.O. and suggested that he call Bayview to see what could be done to rectify the situation.
43One of the crematorium workers got in touch with Amy McCartney who was then acting as the crematorium manager. Ms. McCartney testified at the hearing. She has been a licensed funeral director for 18 years and works as a funeral director at a funeral home associated with Bayview. When she received the call she was in a manager’s meeting with Codi Shewin, a consultant to the bereavement industry and also a licensed funeral director.
44Ms. McCartney immediately went to the crematorium and viewed the containers. She testified that she was appalled and had never in her career encountered human remains being delivered in a re-purposed cardboard box or in two containers. She telephoned P.O. who said he did not have an infant container and asked if Ms. McCartney’s funeral home could supply one. Upon learning the cost of the container ($595), P.O. said that he would get in touch with Mr. Scrannage and have him deliver a more appropriate container.
45According to Mr. Scrannage, he was contacted by P.O., and after some discussion, went to Passfield Mortuary Service (“Passfield”) in St. Catharines, another licensed transfer service operator, picked up an adult-sized container, and delivered it to Bayview.
46Ms. McCartney and Mr. Shewin returned to Bayview that afternoon after the adult container had been delivered. Ms. McCartney opened the box and arranged the remains in a more appropriate manner. Mr. Shewin took photos, which were placed into evidence, of the box as it was delivered, after it was opened, and after Ms. McCartney arranged the infant remains in a more dignified way in the adult-sized container.
47As the evidence of an expert called by the Registrar and three licensed funeral directors who testified made clear, professional standards in the bereavement industry require that human remains be arranged, either for cremation or burial, so that the body appears to be peacefully and comfortably resting in repose. In this case, the evidence shows that the body of the infant was awkwardly positioned in the box which was clearly too small to hold it and the adult-sized body bag.
48Ms. McCartney wrapped the remains in the knitted blankets in a more appropriate way and placed them, together with the pail, in the adult-sized container, and the cremation was completed.
(a).1 Infant Transfer - Professional Standards
49I was not directed to any statutory or regulatory provisions that clearly and specifically prohibited Mr. Scrannage’s conduct. For example, although I was directed to the definition of “casket” in the Act, (“…a container intended to hold a dead human body for funeral, cremation or interment purposes …”), there appears to be no provision that specifically requires the use of a casket to transport a body from a morgue to a crematorium.
50Similarly, I was not directed to any provision that specifically prohibits the transfer of a body directly from a morgue to a crematorium or requires transfer to a holding room first before transfer to a crematorium.
51However, I was provided with compelling evidence, described below, that Mr. Scrannage’s conduct violated industry expectations and standards of practice, and failed to adhere to the values of the bereavement industry. I consider that evidence relevant to the issue of whether Mr. Scrannage’s past conduct affords reasonable grounds for the belief that he will not carry on business in accordance with the law and with integrity and honesty.
52Mr. Craig de Boissiere was qualified at the hearing as an expert and provided opinion evidence with respect to the professional standards that apply to decedent transfers, removal of pacemakers, defibrillators and other implants, and the appropriate techniques and equipment required to carry out those tasks.
53I also heard testimony about generally accepted professional standards from the following witnesses called by the BAO. Each holds a FD-1 licence and has worked as a funeral director for a significant period of time (“the professional witnesses”):
Amy McCartney – Managing Funeral Director, Bay Gardens Funeral Home, Burlington, has held a FD1 licence for 18 years.
Codi Shewin – President of Everlearn Associates, a consultant to cemeteries and funeral service businesses, held various positions in the bereavement industry for 15 years, has held a FD1 licence for 20 years.
Paul LeRoy – BAO inspector for 1.5 years, managed a funeral establishment for 19 years, has held a FD licence for 19 years.
54The evidence of Mr. de Boissiere and the professional witnesses lead me to the conclusion that Mr. Scrannage’s conduct in transferring the infant remains fell below the standards of the profession in the following ways:
(i) The re-purposed cardboard box was inappropriate for the transfer of human remains. It was a box left over from a shipment of funeral supplies that still contained bubble wrap from its original purpose. All of the witnesses testified that its use was inappropriate, disrespectful and undignified. For an infant, the industry standard is to use an infant transfer container to remove the remains from the morgue. If the remains are in separate containers both containers should be placed within the transfer container and removed to a holding room where the remains can be suitably and respectfully placed in a cremation container or casket which can then be closed and taken to a crematorium. Remains are never delivered to a crematorium in a container not specifically designed as a cremation container, or in separate containers.
(ii) The fact that the family was financially unable to afford an appropriate cremation container does not justify the use of an inappropriate container. That situation is encountered regularly in the bereavement industry. Funeral directors are aware that financing is readily available from social service agencies to pay for suitable arrangements and they commonly arrange or facilitate access to that funding.
(iii) The container used in this case was too small. An industry expectation is that human remains be treated in a dignified, respectful manner. Mr. de Boissiere stated that remains should be treated with a similar level of comfort and dignity as if the person were alive, a sentiment echoed by Ms. McCartney. That includes transporting the remains in a suitably sized container so that the body is not cramped or positioned awkwardly. In this case, there was an attempt to squeeze the infant’s body, together with the adult body bag, into an inadequately sized box. As a result, the body was cramped and awkwardly positioned in a way that conveyed indifference and lacked dignity.
(iv) The remains should not have been transported directly from the morgue to the crematorium. They should have been transported to NFA’s designated holding room where the remains could have been properly placed in a casket suitable for cremation. That was especially necessary in this case where the transport container was inadequate and the remains were in two separate containers. Each licenced transfer operator is required by s. 35(2) of the regulation to have access to a “holding room” that meets the requirements of the regulation - essentially a room used only for the purpose of preparing and casketing dead human bodies and containing the equipment necessary to clean, sanitize and disinfect safely. NFA’s holding room was at Passfield in St. Catharines. Mr. Scrannage should have arrived at the morgue with an appropriate infant transfer container, transported the remains to the Passfield holding room, suitably arranged the body along with the pail within an appropriate casket, sealed the casket and delivered it to Bayview for cremation.
(b) Rough Handling
55In my view, the evidence is insufficient to conclude that Mr. Scrannage roughly handled human remains.
56Factual evidence on this issue was provided by two workers at Bayview crematorium. Part of their duties involved driving the transport vehicle to pick up remains and occasionally assisting with transfers.
57They testified that Bayview frequently received remains from NFA for cremation and they occasionally went along with Mr. Scrannage to assist in the transfer. Both testified that they witnessed Mr. Scrannage roughly transfer bodies into containers. One recalled a specific occasion in 2017 when Mr. Scrannage’s rough handling was brought to his attention but was dismissed by him with a comment to the effect of “they don’t feel it”.
58Mr. Scrannage strongly denied handing any remains roughly. He described one or two occasions when he was required to transfer particularly heavy decedents located in awkward positions and which required significant exertion to transfer. However, he denies that he did so in an undignified manner.
59I cannot conclude on a balance of probabilities that this allegation has been proven. Mr. Scrannage provided his version of the incidents and I accept his point that the size, location, and position of the decedent may sometimes require the application of greater force than would be preferred in more ideal circumstances.
60It also appears that these incidents only came to the attention of the BAO during its inquiries regarding the infant transfer.
61Although the witnesses say they commented on the incidents to Mr. Scrannage at the time, they made no report or complaint to their employer or the BAO. It was only later, when the transfer incident was being investigated, that the allegations of rough handling were brought to the BAO’s attention. Although I do not doubt the witnesses’ sincerity, their present perspective of these previous events may well have been influenced by their expressed and obvious disapproval of Mr. Scrannage’s conduct in connection with the infant transfer.
(c) Removal of Pacemakers and Defibrillators
62The two crematorium witnesses also testified that they observed Mr. Scrannage remove pacemakers and defibrillators several times. Those devices are implanted into the body and are required to be removed before cremation. Removal requires an incision and separation of the tissue until the device is exposed and can be grasped and pulled out and suturing the incision afterwards. Mr. Scrannage could legally carry out that procedure since he held a valid (although inactive) FD-1 licence.
63According to both witnesses, they had seen Mr. Scrannage remove pacemakers both at Passfield’s holding room as well as in the garage of a funeral home. According to the witnesses, Mr. Scrannage never used personal protective equipment such as a surgical mask and gloves, or a scalpel when carrying out that procedure. Instead of a scalpel, Mr. Scrannage used what the witnesses described as either a folding pocket knife or a utility knife that he kept in his pocket and returned to his pocket after use without sanitization.
64According to both witnesses, in the spring of 2017, they observed Mr. Scrannage remove a device from the remains of an obese person using a knife which was apparently dull and which required several repeated cuts which one of the witnesses described as “hacking”.
65Although in that case the procedure was done in a holding room and a scalpel, mask and gloves were available, according to the witnesses Mr. Scrannage did not use that equipment and afterwards wiped his hands off on the cremation container.
66Mr. Scrannage stated that P.O. provided him with a kit that included a utility knife and that is what he used. He stated that the knife was sharp and clean and as one blade became dull it could readily be replaced. He admitted that he sometimes did not use a mask and gloves and acknowledges that was wrong but denies ever wiping his hands on a cremation container.
67Regarding the location where the procedure was carried out, Mr. Scrannage stated that he has done the procedure in hospital morgues with the permission of the security guard or person in charge, Passfield’s holding room, and occasionally in the garage of a funeral home which has a holding room to which NFA does not have access. Mr. Scrannage claims that he has never been told that device removals cannot be done in a morgue or are required to take place in a holding room.
(c).1 Device Removal - Professional Standards
68I was not directed to provisions of the Act or regulations that specifically prohibit Mr. Scrannage’s practice with respect to device removal, or require the use of personal protective equipment, or that device removal must take place in a holding or prep room.
69Those requirements appear to be matters of professional standards and Mr. de Boissiere also provided expert evidence about what those standards require.
70Comparing Mr. de Boissiere’s testimony concerning what the professional standards require to Mr. Scrannage’s own description of his practice, I conclude that Mr. Scrannage’s conduct in removing devices from decedents fell below the standards of the profession in the following ways:
(i) Mr. Scrannage failed to use personal protective equipment. According to Mr. de Boissiere and Mr. LeRoy, personal protective equipment must be used to protect the person carrying out the procedure, and those who comes into contact with him/her, from exposure to disease and infection, and to reduce the risk of tissue gas contamination – a gas bacteria that can infect human remains in funeral establishments and can cause rapid and unpleasant decomposition. Mr. Scrannage failed to use the required protective equipment - goggles, gloves, shoe and hair covers, mask and apron and thereby put himself, members of the public, and possibly the safe and sanitary operation of funeral establishments, at risk.
(ii) Mr. Scrannage failed to carry out the procedure using the appropriate equipment including forceps, suture needle, and a scalpel with a single use blade which is later disposed of in a medical waste container. Instead Mr. Scrannage used a utility knife, not designed for medical use and effective sterilization, and apparently re-used the blade until it became dull. According to Mr. de Boissiere, apart from being undignified, use of a utility knife increases the risk of spread of infectious disease and is never appropriate for device removal.
(iii) Mr. Scrannage carried out the procedure in hospital morgues and, on at least one occasion in a funeral home garage. According to Mr. de Boissiere and Mr. LeRoy, device removal must take place in a holding room, or funeral home prep room. A transfer operator is required to have access to a holding room. Holding rooms are designed to accommodate procedures such as device removal and are required by regulation to have a sufficient supply of personal protective equipment as well as the materials and equipment necessary to clean, sanitise and disinfect the room and any equipment used. According to Mr. de Boissiere, device removal should never be undertaken in an uncontrolled environment like a hospital morgue or garage. It is undignified and disrespectful to the deceased and family and increases the risk of spreading infectious disease.
(d) Participation in Funerals as a Representative of NFA
71The Registrar alleges that Mr. Scrannage breached the regulation by arranging or participating in funerals or graveside services as a representative or employee of NFA. NFA is licenced under the Act only as a Transfer Service Operator - Class 1 (“TSO-1”). The holder of a TSO-1 licence may not conduct, arrange or participate in a visitation or funeral. According to the regulation:
The transfer service operator shall not arrange, co-ordinate, conduct or participate in a visitation, funeral or other rite or ceremony at which human remains are present, except to transport the remains to or from a holding room or the location of a visitation, cremation, funeral or other rite or ceremony (s. 36(6)).
72A person who holds a personal licence under the Act and who is employed by the holder of an operator’s licence is prohibited from providing services that the operator is not authorised to provide. According to the regulation:
The licensee shall not … provide any licensed supplies or services that the operator by whom the licensee is employed is not authorized to … provide (s. 38(4))
73Thus, NFA was prohibited by regulation from arranging or participating in visitations and funerals and Mr. Scrannage was prohibited from arranging or participating in visitations and funerals as an employee or a representative of NFA.
74Based on the evidence presented, I am unable to conclude on a balance of probabilities that Mr. Scrannage contravened the regulation by attending funerals or graveside services as an employee or representative of NFA.
75Excerpts of Mr. Scrannage’s calendar for several previous years were placed into evidence. They contain many entries indicating that he attended funerals, interments or graveside services of named individuals on specific dates. The BAO inspector, Mr. LeRoy, was able to find the published obituaries for many of those individuals and they were placed into evidence. Each of those published obituaries stated, “Arrangements entrusted to Niagara Funeral Alternatives…”
76The obituaries leave the impression that the services entrusted to NFA were funeral services in contravention of the regulation. According to Mr. Scrannage however, NFA asked the families for whom it provided transfer services to include the reference to NFA in the obituary as a form of advertising. He stated that NFA provided transfer services only and did not provide services outside of those permitted by its licence. No evidence to the contrary was provided.
77Mr. LeRoy also reviewed a handwritten list of services that Mr. Scrannage provided to NFA and the dates the services were provided. NFA apparently used the information on the list to pay Mr. Scrannage. Most entries on the list describe transfers of named individual from hospital morgues or funeral homes to Bayview. However, some entries describe attendances at funeral masses or graveside services. According to the Registrar, this indicates that Mr. Scrannage invoiced NFA for his attendance at the services and therefore must have attended them as NFA’s employee or representative.
78According to Mr. Scrannage, he sometimes delivered ashes to funerals or graveside services and that is why there are references to attendances in both his calendar and the billing lists he provided to NFA. He stated that he would sometimes stay for the service if he knew the individual or had a connection with their families. At the hearing, he went through the obituaries and explained the family or social connection that caused him to stay for each of the services.
79I cannot conclude on a balance of probabilities that NFA provided arranged services or funerals in contravention its licence conditions. The only evidence in that regard - the reference to NFA in the obituaries - is suggestive but by itself is not strong enough to allow me to conclude that NFA arranged services.
80In addition, while the evidence establishes that Mr. Scrannage attended funeral and graveside services of individuals for whom he, as NFA’s employee, was providing a service, he explained that he attended the services for personal reasons and detailed his personal connection to the decedent in each case.
81Although he apparently billed NFA for his services, the billing lists are rudimentary and contain only names, dates, and a location. They do not contain detail about the actual service provided (transfer service vs arranging a funeral or graveside services) and contain no particulars about the amount billed or paid. The level of detail in the billing lists is insufficient for me to conclude that Mr. Scrannage was paid to attend services as an employee or representative of NFA.
(e) Providing False Information
82The Registrar alleges that Mr. Scrannage knowingly provided false information to the BAO inspector and compliance manager who were investigating the transfer incident. I have concluded that although part of Mr. Scrannage’s statement to them was demonstratively wrong, I cannot conclude that Mr. Scrannage knowingly provided false information.
83The infant transfer incident occurred on September 13, 2017 and soon after it was reported to the BAO. On September 28, 2017, Mr. Scrannage was interviewed by BAO Inspector Paul LeRoy and Compliance Manager P.J. Mr. Scrannage provided his description of what occurred, including his attendance at the hospital morgue and picking up the infant’s remains, and that description was noted by Mr. LeRoy in a written interview record.
84According to that interview record, Mr. Scrannage stated that when he arrived at Bayview with the infant’s remains he was met by a crematorium worker who was shocked by the containers. By way of explanation, he told the crematorium worker that he picked up the remains in the morgue using the box that had been supplied to him by P.O. After he left the morgue with the box and was in the parking lot, a morgue staff member ran after him with the pail and told him that it contained some of the infant’s remains and he was to take that container as well.
85After the interview, the BAO obtained CCTV video of the hospital morgue showing Mr. Scrannage attending at the morgue and picking up the remains. It shows Mr. Scrannage’s arrival at the morgue with a security officer. The infant’s remains were in a body bag on a gurney along with the pail. Mr. Scrannage attempted to fit the body bag into the box. He then left the morgue, returned a few moments later to retrieve the pail, and then left.
86The video makes it clear that Mr. Scrannage picked up both containers and no one ran out into the parking lot after him with the second container.
87The Registrar argued that upon arriving at the Bayview crematorium and encountering the shocked reaction of the crematorium staff, Mr. Scrannage fabricated a version of the events that partially explained his behaviour and placed him in a more favourable light. According to the Registrar, Mr. Scrannage’s version was intended to convey that he was placed in a difficult position – his employer gave him a box and told to use it and he was surprised to be provided in the parking lot with a second container.
88Mr. Scrannage acknowledged in his testimony that the video makes it clear he was wrong about the staff member following him with the pail into the parking lot. He stated that a morgue staff member who appears briefly in the video pointed to the pail in the morgue hallway and told him to take it. The staff member’s instruction to take the pail was conveyed inside the hospital morgue hallway and not outside in a parking lot.
89Mr. Scrannage denies attempting to knowingly mislead the BAO staff. He states that the whole incident was upsetting to him and in the tense atmosphere that ensued he simply got that part of it wrong.
90I do not conclude that Mr. Scrannage knowingly intended to mislead the BAO staff about this aspect of the event.
91A false statement may be made in order to deny, excuse, or minimize fault. The shocked reaction of the crematorium staff was due to the use of the inappropriate box and the fact that the remains were delivered in two containers. However, Mr. Scrannage’s version of the event only provided an alternative explanation of how he came into possession of the two containers. It does little to deny, minimize or excuse his failures regarding the use of the cardboard box and the delivery in two containers.
92Whether the second container was received outside the morgue or was picked up by Mr. Scrannage in the morgue, Mr. Scrannage was required to take the remains to a holding room where they could be properly placed in a single appropriate container. There appears to be no clear motive to lie about that one aspect of the event. It does not address, explain, or excuse the main deficiencies of his conduct.
93Also, although the CCTV video proved that this one aspect of Mr. Scrannage’s statement was wrong, the rest of his statement appears to be reasonably consistent with the video and the testimony of the other witnesses.
94In these circumstances, I cannot conclude that Mr. Scrannage knowingly intended to deceive the BAO staff. I think it more likely that Mr. Scrannage was, as he claims, flustered and rattled by the events at the hospital and especially the unexpectedly critical reaction from the crematorium staff. In that tense atmosphere, Mr. Scrannage related a version of what occurred without reflection, and once that version was given to the crematorium staff, he repeated it to the BAO staff investigating the incident.
Should the Registrar be Directed to Carry out his Proposal to Revoke?
95As mentioned, the Registrar’s proposal to revoke relies upon three grounds contained in s.14 of the Act:
(a) Mr. Scrannage is in contravention of the Act and the regulations (s. 14(1)(a)(i))
(b) Mr. Scrannage’s past conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty (s. 14(1)(b)(ii))
(c) Mr. Scrannage is in breach of a condition of his licence (s. 14(1)(h)).
(a) Contravention of the Act or the Regulations (s. 14(1)(a)(i))
96With respect to this ground I was not directed to, and could not find, any specific provision of the Act or regulation which Mr. Scrannage contravened in relation to the transfer incident or removal of devices. Although the evidence was clear that Mr. Scrannage’s conduct fell below industry expectations and standards, those standards are matters of professional obligation and were not codified into the Act or regulations at the time the incidents occurred. I therefore cannot conclude that Mr. Scrannage contravened the Act or the regulations.
97Section 62 of the Act provides that it is a condition of every licence issued under the Act that the licensee comply with such Code of Ethics as may be established by the Minister.
98On April 6, 2018, Regulation 218/18, came into force. That Regulation established a Code of Ethics that states, among many other things, that a funeral director shall not engage in conduct that would amount to “professional misconduct” or “incompetence”.
99Professional misconduct is defined in s. 8(u) of Ontario Regulation 32/11 to include, “acting in a manner relevant to the practice of funeral directing that, having regard to the circumstances would reasonably be regarded as unprofessional conduct”.
100Incompetence is defined by reference to s. 16(3) of the Board of Funeral Services Act. According to that section, a funeral director may be found to be incompetent if the funeral director
“...has displayed a lack of knowledge, skill or judgement of a nature or to an extent that demonstrates that the funeral director is unfit to continue as a funeral director.”
101As set out below, I conclude that Mr. Scrannage’s conduct in relation to the infant transfer incident and device removal would amount to both professional misconduct and incompetence as defined in the current Code of Ethics. If the Code of Ethics had been in force at the time the conduct in question occurred, Mr. Scrannage’s conduct would have been in contravention of the Code. By contravening the Code, Mr. Scrannage would have been in contravention of the Act and the regulation establishing the Code.
102However, the Code of Ethics came into force on April 6, 2018, several months after the conduct occurred. I therefore cannot conclude that Mr. Scrannage contravened the Act or Regulations and I must reject s. 14(1)(a)(i) as a ground for revocation of his licence.
(b) Past conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty (s. 14(1)(b)(ii))
103This ground for revocation requires me to consider whether Mr. Scrannage’s past conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty in the future. In my view, Mr. Scrannage’s past conduct in relation to the infant transfer incident and device removal does afford such grounds.
104The current law now includes the Code of Ethics which essentially states that a funeral director shall not engage in conduct that would amount to “professional misconduct” or “incompetence”. The evidence clearly establishes that Mr. Scrannage’s past conduct would meet both definitions.
105Professional misconduct includes, “acting in a manner relevant to the practice of funeral directing that, having regard to the circumstances would reasonably be regarded as unprofessional conduct”. Mr. de Boissierre’s testimony set out what the standards of the profession required in relation to the infant transfer and device removals and Mr. Scrannage’s conduct fell significantly below those standards.
106All three of the other licensed funeral directors who testified clearly regarded Mr. Scrannage’s conduct with respect to the infant transfer to be strikingly unprofessional.
107The definition of “incompetence” is “…a lack of knowledge, skill or judgement of a nature or to an extent that demonstrates that the funeral director is unfit to continue as a funeral director.”
108Mr. Scrannage’s past conduct also meets that definition. He especially displayed a lack of judgement in agreeing to use the inadequately sized, re-purposed cardboard box, still containing bubble wrap, as a casket. He displayed it again in attempting to roughly close the lid with black tape, not going first to NFA’s holding room, and delivering two containers to the crematorium. He displayed a lack of knowledge of basic technique and safety precautions in connection with device removals.
109Mr. Scrannage’s failings in this regard are not minor or technical. Some of the professional witnesses described their reaction as shocked or appalled. The industry’s requirements for professionalism and competence are based on a fundamental value - that human remains must be treated with a high level of dignity and respect. Mr. Scrannage’s past conduct reflected a lack of appreciation or indifference to that value.
110Mr. Scrannage acknowledged in his testimony that he made mistakes. For example, he stated that he told P.O. that he would no longer transfer remains from a morgue to a crematorium without using a holding room. He also acknowledges that it was a mistake to not use personal protective equipment in each case. However, his willingness to acknowledge obvious deficiencies that have now been glaringly exposed leaves with me with little confidence.
111I am required to consider whether Mr. Scrannage’s past conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty. Given that Mr. Scrannage’s past conduct would amount to both unprofessional conduct and incompetence under the current law, and given his apparent disregard for the industry’s fundamental requirement to treat human remains in a dignified, respectful way, I conclude that Mr. Scrannage’s past conduct does afford reasonable grounds for the belief that he will not carry on business in accordance with law and with integrity and honesty.
112I have considered whether some lesser sanction such as conditions including further education and training may be sufficient to protect the public. The parties were unable to assist me with any suggested conditions or training opportunities that may address Mr. Scrannage’s deficiencies. In these circumstances, and given the gravity of the conduct described above, it is my view that revocation is necessary in order to protect the public.
(c) Breach of Licence Condition (s. 14(1)(h)).
113This ground for revocation was not mentioned in the notice of proposal and was only briefly referenced in the Registrar’s final submissions.
114The Act (s. 62) states that it is a condition of every licence issued under the Act that the licensee comply with such Code of Ethics as may be established by the Minister. The Code of Ethics was not established until April 6, 2018, months after the conduct in question occurred.
115Since there was no Code of Ethics in place at the time the conduct occurred, I cannot conclude that Mr. Scrannage breached the condition imposed by s. 62 and I therefore reject s.14(1)(h) as a ground for revocation.
Part 2 - Proposal to Refuse GNMS Application
116The Registrar relies upon the following grounds for refusal set out in s. 14 of the Act:
(a) GNMS’s business plan and supporting documents indicate that GNMS contemplates carrying on activities that are prohibited under the class of licence for which it applied, (s. 14(1)(a)(ii)).
(b) The past conduct of Mr. Scrannage and S.M., (GNMS’s officers and directors and shareholders), affords reasonable grounds for belief that GNMS will not carry on business in accordance with the law and with integrity and honesty, (s. 14(1)(c)(i)).
(c) GNMS or its managing employees do not have the integrity, honesty, experience and competence required to manage the business in accordance with the law, (s. 14(1)(d)(i)).
(d) The Registrar has reasonable grounds to believe that the operation of the applicant’s business will create a risk to public health, safety and decency, (s. 14(1)(d)(iii)).
117My findings in respect of each of these grounds are as follows:
(a) GNMS contemplates activities prohibited under class of licence for which it applied.
118Under the Act and regulations, funeral establishments are licensed in one of two classes. A funeral establishment - Class 1 licence allows the holder to offer to the public a full range of funeral services including the care and preparation of dead human bodies, providing premises for visitation and ceremonial services, and the co-ordination of rites and ceremonies.
119A funeral establishment - Class 2 licence is much more limited. It only permits the holder to maintain premises for the purpose of temporarily placing human remains so that others may attend and pay their respects. A Class-2 licence holder may not transfer or prepare dead human bodies, do embalming, or co-ordinate and provide funeral rites and ceremonies.
120GNMS applied for a Funeral Establishment Class 2 licence. As required, it included in its application package many documents including a proposed price list, a proposed client contract, and a business plan. All of those documents make it clear that GNMS intends to offer services that a class 2 funeral establishment is prohibited from offering.
121For example, its proposed price list contained prices for services such as transfers, removal of pacemakers, preparation of remains, and graveside services. GNMS’s proposed client contract referenced the same services. Its business plan references selling crematorium services and arranging funeral services.
122According to Mr. Scrannage, GNMS originally intended to apply for a Class 1 transfer operator licence. He stated that in June 2017, he had a telephone conversation with a BAO licensing officer about the plumbing requirements for holding rooms and claims that she suggested that GNMS apply for a funeral establishment Class 2 licence.
123After discussing this with S.M., GNMS proceeded with a Class 2 application under the impression that a Class 2 establishment could provide a full range of services. Mr. Scrannage stated that he did not consult the Act or regulations and instead relied on the information given by the licensing officer.
124On November 3, 2017, a BAO licensing officer sent an email to Mr. Scrannage asking for clarification about the services that GNMS was intending to provide and asked for a response by November 10, 2017. The email was sent to Mr. Scrannage’s email address as provided on the application. Mr. Scrannage testified that he did not check his emails regularly, did not see the email from the licensing officer, and did not respond within the time limit.
125By that time, the infant transfer incident had occurred and was being investigated. On November 15, 2017, the Registrar issued his notice of proposal to revoke Mr. Scrannage’s FD1 licence and to deny GNMS’s application.
126Mr. Scrannage argued that clearly there was a misunderstanding about the class of licence for which GNMS should have applied. GNMS should have been allowed to withdraw its application, consult with the BAO, and re-submit its application for the correct class.
127In my view, whether to issue a notice of proposal to refuse, or work with the applicant to clarify and amend the application, is a matter for the Registrar’s discretion. The incongruity between the class of licence applied for and the contents of the application itself was one of several grounds for refusal. The infant transfer incident and concerns about Mr. Scrannage’s conduct also factored into the Registrar’s decision to issue the proposal to refuse GNMS’s application.
128The GNMS application for a Class 2 funeral establishment licence is not viable as it stands. If the application was granted and GNMS carried out the activities it described in its application, it would be in contravention of the Act and regulations.
(b) The past conduct of GNMS’s officers and directors afford reasonable grounds for belief that GNMS will not carry on business in accordance with the law and with integrity and honesty, (s. 14)(1)(c)(i)).
129The only officers and directors of GNMS are Mr. Scrannage and S.M. They would be the managers and directing mind of the company and the company’s policies and operational standards would be formulated and enforced by them.
130I was presented with no evidence that suggests that S.M.’s past conduct affords reasonable grounds for belief that GNMS will not carry on business in accordance with law and with integrity and honesty.
131However, as noted above I have found that the past conduct of Mr. Scrannage affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty.
132In therefore must conclude that as one of GNMS’s two officers and directors, Mr. Scrannage’s past conduct also affords reasonable grounds for belief that GNMS will not carry on business in accordance with law and with integrity and honesty.
(c) GNMS or its managing employees do not have the integrity, honesty, experience and competence required to manage the business in accordance with the law, (s.14(1)(d)(i)).
133Based on the evidence presented, I have concluded that GNMS does not have the experience or competence to manage either a class 1 or class 2 funeral establishment.
134The only individuals associated with the GNMS’s proposed business are Mr. Scrannage and S.M. Mr. Scrannage has no current experience as a funeral director. Although he holds a FD-1 licence, that licence has been inactive for 37 years and he has not worked in a funeral establishment since 1981.
135Mr. Scrannage has worked for several years on an occasional basis for NFA, a licensed transfer operator. However, I question the quality or value of that experience.
136NFA’s licence is currently under suspension and a Notice of Proposal has been issued to revoke it. NFA was being managed by P.O. who holds no licence under the Act - that itself is a violation of the regulation. According to Mr. Scrannage, it was P.O. who directed him to use a re-purposed cardboard box as a transfer and cremation container and provided a kit including a utility knife for device removal.
137With respect to Mr. Scrannage’s competence, I have found that he has demonstrated a lack of skill, knowledge and judgement in his conduct relating to the transfer of human remains and the removal of devices.
138In summary, the evidence indicates that Mr. Scrannage lacks the experience and competence required to manage a funeral establishment.
139S.M. also holds a FD-1 licence. He was granted that licence in 1983 and afterwards worked full time for a short period of time in funeral homes. According to the BAO’s records, S.M. has not been actively employed full time as a funeral director since 1984.
140However, according to S.M., he has worked in the bereavement industry on an occasional basis. He testified that he operated Passfield Mortuary Service for a two-week period in 2014. He also stated that he has worked on an occasional basis for NFA since 2010 and managed NFA’s operation for two weeks in 2015 and a week in 2016.
141In my view, S.M. also lacks the experience and training required to operate a funeral establishment. His formal training took place 35 years ago and he has not worked full time in the industry for almost as long. Although he has worked on an occasional basis for NFA, as indicated above, I view that experience with a great deal of scepticism.
142In summary, I find that GNMS does not have the experience and competence required to manage either a class 1 or class 2 funeral establishment in accordance with the law.
(d) Reasonable grounds to believe that the operation of the applicant’s business will create a risk to public health, safety and decency, (s. 14(1)(d)(iii)).
143In my view there are reasonable grounds to believe that if granted either a class 1 or class 2 funeral establishment licence, GNMS’ operation will create a risk to public health, safety and decency.
144The only officers and directors of GNMS are Mr. Scrannage and S.M. They would be responsible for the formulation and enforcement of company policies and operational standards.
145As noted, their formal training took place decades ago and standards and practices have evolved significantly since then. They have little practical current experience and much of what they do have was with NFA whose own track record is disquieting.
146Mr. Scrannage’s practices around the removal of devices, and particularly his tendency to avoid the use of personal protective equipment, are markedly out of touch with present standards in the industry. According to the expert evidence presented at this hearing, those outdated practices create a public health risk.
147In summary, there are reasonable grounds to believe that if GNMS is granted a funeral establishment licence, its operation will create a risk to public health and safety.
Order
148Pursuant to s. 18(5) of the Act I direct the Registrar to:
(a) carry out his proposal to revoke the Funeral Director Class 1 licence held by Paul Scrannage,
(b) carry out his proposal to refuse the application of Greater Niagara Mortuary Services Ltd. for a Funeral Establishment Operator – Class 2 licence.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: June 28, 2018
Footnotes
- The Bereavement Authority of Ontario (“BAO”), is the designated authority to administer provisions of the Act on behalf of the Ontario Ministry of Government and Consumer Services.