DECISION AND ORDER
Between:
The Appellant
and
Registrar, Funeral, Burial and Cremation Services Act, 2002
Respondent
Adjudicator: D. Gregory Flude
APPEARANCES:
Counsel for the Appellant: George F. Walker, Q.C. and Christopher A. Raimondo
Counsel for the Registrar: Elizabeth S. Maishlish and Bernard C. LeBlanc
Heard in Toronto: November 30, December 6, 7, 8, 11 and 14, 2017
REASONS FOR DECISION AND ORDER
Overview
1The Registrar issued a Notice of Proposal to Revoke the appellant’s registration as a Class 1 Transfer Service under the Funeral, Burial and Cremation Services Act, 2002 (the “Act”).1 The Registrar alleges that the appellant conducted itself in an unethical manner with respect to the handling of an infant cremation; has misled the Registrar over a number of years with respect to its day-to-day management; and has and continues to break the provisions of the Act in its dealings with the public. The appellant has appealed that decision to the Tribunal.
2With respect to the cremation in question, the details are of such a private and personal nature to the bereaved family, that I have taken steps to ensure privacy. I will keep the details of events surrounding the cremation deliberately vague. I will refer to the appellant as the appellant in the style of cause and throughout this decision, and to its officers, directors and employees by their initials. I will not identify where it carries on business, where the cremation was scheduled to occur or the dates in question. I have ordered that access to the exhibits and submissions filed by the parties in this matter is restricted and only available for review by the parties.
3In structuring this decision, before analysing the facts and law, I have set out the personnel involved in the operation of the appellant and an outline of their roles. I have also identified the limits on the services the appellant may offer to the public and how those services differ from the services offered by a full service funeral home.
The Allegations
4The allegations are set out in a Notice of Proposal to Revoke Registration dated September 29, 2017, a Notice of Further and Other Particulars dated October 10, 2017 and a second Notice of Further and Other Particulars dated October 13, 2017 (referred to collectively as the “Notice of Proposal”).
5The allegations fall into three broad categories:
(i) acting in an unethical manner with respect to one particular cremation (September 29 and October 13 allegations);
(ii) breaches of the Act and regulations with respect to non-compliant consumer contracts and a deficient and non-compliant operator price list (October 10 and 13 allegations); and
(iii) deliberately misleading the Registrar with respect to its day to day management (September 29 allegations).
6The Registrar asserts that the appellant is disentitled to a licence because:
(i) it is in contravention of the Act and regulations;2
(ii) the past conduct of its officers, directors or interested persons affords reasonable grounds for belief that the business will not be carried on in accordance with law and with integrity and honesty;3
(iii) that the appellant or its managing employees do not have the integrity, honesty, experience and competence required to manage the business in accordance with law;4 and
(iv) continued operation of the business creates a risk to public health, safety and decency.5
7It is the position of the Registrar that the appellant’s behaviour in any one of the categories noted above is enough to support a revocation of its licence.
8The appellant takes the position that the alleged breaches of the Act and regulations are easily cured. It denies that it misled the Registrar with respect to its management. With respect to the particular cremation, it acknowledges that its actions were unacceptable but argues that it was a one-off occurrence in 17 years of complaint-free business. It also argues that the impugned acts were solely the responsibility of an independent contractor, and should not be laid at its door because it provided the contractor with all of the resources necessary to deal with the situation. The appellant argues that revocation is too severe a penalty and suggests that I impose terms instead. When I asked what those terms should be, it declined to make submissions.
RESULT:
9I find that the Registrar has proven the bulk of the allegations made against the appellant on a balance of probabilities. Having considered the breadth of allegations against the appellant; the appellant’s attempts to deflect blame and the unacceptable behaviour that pervaded the whole operation when dealing with the infant cremation, I find that the appropriate penalty is revocation.
10I have considered the imposition of terms and conditions on the appellant’s licence, but I am of the view that there are no meaningful enforceable terms that would be appropriate. In arriving at this conclusion, I note one of the appellant’s witness’ statement that he would welcome more frequent inspections but I balance that evidence against the Registrar’s evidence that it has limited resources to police terms and conditions. In the absence of any additional submissions from the appellant about suggested terms, their enforceability and the ability of the Registrar to police such terms, I do not think this is an appropriate case for terms and conditions on the licence.
11I will address the categories of allegations starting with the cremation as it was the starting point for the Registrar’s investigation. I will then consider the regulatory breaches and then review the evidence regarding the management of the company. After that, I will address why the appellant’s handling of the cremation and its regulatory breaches in my view disentitle it to a licence.
12Before doing all of that, I need to identify the personnel, define the nature of the appellant’s business and show how it differs from a full-service funeral establishment.
ANALYSIS:
13The Act is consumer protection legislation. The funeral industry deals with the public when it is most emotionally vulnerable and therefore it is important that the services that it provides and the cost of those services be clearly defined. There can be no surprises. To achieve that end, the industry is heavily regulated. There are regulations addressing what information must be available to consumers; how caskets are displayed or sold; and how services may be advertised. There are essential differences between a Class 1 Transfer Service such as the appellant and a full service funeral home. There is also a separate licence for crematorium operators together with a prohibition on anyone selling crematorium services unless they hold such a licence or are an agent for the licence holder.
The Personnel
14J.O. is the majority shareholder of the appellant. He has been registered as a funeral director in Ontario since 1954. Over the years he has been employed in or owned a number of businesses unrelated to the funeral business. He has also owned and operated one funeral business prior to founding the appellant. He founded the appellant in 2000 to respond to what he saw as a need for funeral services that were less expensive than a full traditional funeral offered by full service funeral homes. Under J.O’s guidance, the appellant applied for and was granted a transfer service licence. In the first few years, J.O. was the sole employee.
15P.O. is the son of J.O. and a minority shareholder of the appellant. He is not a funeral director. In 2010 he started working for the appellant to handle the administration of the business. The scope of P.O.’s involvement in the day-to-day operation of the appellant is of concern to the Registrar. The Registrar alleges that he, not J.O., is the manager of the business on a day-to-day basis and that his involvement has been deliberately hidden from the Registrar in the annual renewal process. The Registrar also alleges that P.O. has been dealing with clients with respect to the purchase of funeral services in breach of the Act.
16P.S. is a funeral director who was retained by the appellant from time to time to provide services. It was he who was called to deal with the cremation that is in issue. The appellant placed a great deal of focus on the relationship between it and P.S. arguing that he was an independent contractor.
17B.Y. is a funeral director. He was employed by the appellant, initially part-time but more recently on a full-time basis. The appellant intended to make him the managing funeral director to take over the functions carried out by J.O., a process that was put on hold when the appellant had its licence to operate immediately suspended by the Registrar on September 29, 2017.
Nature of a Transfer Service
18The appellant is licensed as a Class 1 Transfer Service under s. 12 of the Act. The Act defines a transfer service as: “a service to the public with respect to the disposition of dead human bodies, including the transportation of dead human bodies and the filling out of the necessary documentation with respect to the disposition of dead human bodies.” A transfer service is distinguished from a funeral establishment in the definition section of the Act. A funeral establishment may offer facilities for people to pay their respects to the deceased and may coordinate and provide funeral or memorial services, or rites. Section 8 of the Act prohibits anyone without a licence from operating a funeral establishment or offering funeral services.
19In essence, a transfer service may pick up a deceased person from the place of death and transfer the remains. I heard evidence that the normal practice involves taking the deceased to a holding room to be placed in a casket, and delivering the deceased to the crematorium or to the graveside for interment.6 The appellant cannot arrange for visitations, funeral or memorial services or rites, or receptions after the funeral but may deliver the remains to the location where the service is taking place. In the case of a cremation, it may also hold the ashes until they are picked up by the deceased’s family.7
20The appellant had developed a practice of cutting out one step in the normal practice. In what it considered appropriate circumstances, if the place of death was a hospital or other location with a morgue, the appellant’s staff would use the privacy of the morgue to place the deceased in a casket and have the crematorium pick the casket up at the morgue directly, eliminating the holding room step. I was not directed to any specific regulatory provision that prohibited this practice.
The Cremation
21The cremation in question involved the death of an infant. The manner in which the child’s body was handled showed such a measure of disrespect for the remains that two of the Registrar’s witnesses, A.M. and C.S., both veterans of the funeral industry, had tears in their eyes as they testified to what they saw. J.O., in his testimony, described the handling of the remains as immoral and admitted it was unethical. While the appellant tried to pin the blame for the events on P.S., it is clear that the lack of sensitivity began with P.O., was endorsed by B.Y. and was carried into effect by P.S.
22At the core of the mishandling of the infant was the use of a cardboard box as a casket. The word casket is defined under the Act to mean “a container intended to hold human remains.” While the wording of the definition is broad, taking into account that the purpose of the legislation is to ensure that human remains are handled in a sensitive and dignified manner by properly qualified personnel, I interpret the definition to refer to a custom built container where the use of the word “intended” implies an objective industry standard not the subjective intent of any particular individual.
23The normal casket used for cremation is either a purpose built cardboard or pressboard casket, depending on the size and weight of the deceased. There are purpose built infant cremation caskets readily available to the industry. The appellant’s casket supplier has a number of infant caskets on its product list and I heard evidence that these can generally be delivered within two days. The appellant did not initially use a purpose built casket and never did use an infant casket. It placed the infant in a cardboard box that had been used for shipping funerary urns. In the normal course, this box would have been discarded in the garbage or put out for recycling. I find that this box does not meet the definition of casket in the Act.
24The events leading to the infant cremation began over a weekend. The infant’s grandfather found the appellant through its website and called the contact number. On weekends, P.O. carries the phone and it was he who first spoke with the infant’s grandfather. P.O. stated that, in an initial screening call, he advised the grandfather of the range of services that the appellant offered; how it did not provide full funeral services; and he gave a rough idea of the price. The infant’s grandfather agreed that the appellant’s services were what he was looking for. P.O. set up an appointment for a meeting between the grandfather and B.Y., the appellant’s full-time licensed funeral director, for Monday morning.
25When the infant’s grandfather arrived on Monday morning, he met P.O. who introduced him to B.Y. As he entered the building, J.O. was just leaving and held the door open. This was the sole interaction between the infant’s grandfather and J.O. During a meeting of approximately 45 minutes, B.Y. stated that he covered the terms of the contract, potential cost and a reduction in cost because the infant was so small. He did not give the infant’s grandfather a copy of the contract or any other documentation to take away with him. It is the appellant’s company policy not to give a copy of the signed contract until after the funeral when the final cost adjustments can be calculated.
26There was a deadline for the completion of the funeral arrangements. The family had arranged a memorial service for Saturday of that week and wished to have the remains present. One problem was the fact that the infant was subjected to an autopsy and it was not clear when the body would be released. The body was released until Wednesday and the appellant registered the death on Thursday. Contingency plans were agreed to in advance in case the remains were not ready for the memorial service.
27Between Monday and Wednesday the appellant did nothing to obtain an infant casket suitable for this cremation. On Wednesday, P.O. asked P.S. to attend at the hospital morgue and transfer the remains to the crematorium. When P.S. arrived at the appellant’s premises to pick up the funeral van, P.O. gave him the cardboard shipping box. He advised P.O. that the parents were not well off and were trying to save money. B.Y. confirmed that the box would be suitable for such a small infant and P.S. took it and drove to the hospital.
28In his evidence regarding the funeral arrangements, the infant’s grandfather denied that money was ever a concern in making the funeral arrangements. He stated that the child’s parents were both young and starting out in life but confirmed that he was paying for the funeral arrangements and that he raised no financial concerns with the appellant. This evidence was confirmed by B.Y. during his testimony and I accept it over P.O.’s evidence as P.O. was not in the meeting with the grandfather when the funeral contract was negotiated.
29When P.S. arrived at the hospital, he found conditions that were less than ideal and he testified that he became flustered. The child was on a gurney in the corridor in a full adult-sized body bag. Viscera removed as part of the autopsy were in a closed pail beside the gurney. There was no privacy. He asked for access to a private room where he could remove the infant from the body bag and place her in the box in a decent manner, but was denied. In the circumstances he opened the body bag to confirm identity and then proceeded to place the infant and body bag inside the repurposed shipping box. The body bag contained a separate bag with baby blankets. It was a tight fit to get the adult body bag, blankets and child into the repurposed shipping container and the child was squeezed in an awkward posture. P.S. then taped the box closed with masking tape.
30As a result of being flustered, P.S. decided to seek some assistance with arranging the remains in proper repose, albeit in the repurposed cardboard box. He was some distance from the appellant’s premises and from the holding room used by the appellant. The holding room had both privacy and a supply of adult cremation caskets. The crematorium was about 10 minutes away so he chose to drive there to see if he could get help rearranging the infant. When he arrived, the crematorium operator became very angry at the manner in which the infant had been treated. He argued with P.S. and P.S. left. The crematorium operator then phoned his acting manager, A.M., his full-time manager being on vacation at the time. The crematorium operator explained the situation to her.
31A.M. was the managing funeral director of a funeral home associated with the crematorium and located across the road from it. She was in a meeting at the time of the operator’s call with C.S., a consultant and a man of many years’ experience as a funeral director. During a break in the meeting A.M. called P.O. who undertook to get an appropriate cremation casket. P.O. asked her if she had a suitable casket, to which she replied that she only had adult caskets and quoted him the retail price. Following the call, P.O. called P.S. and told him to pick up a full-sized adult casket from the appellant’s supplies and take it to the crematorium.
32P.S. delivered the full-sized casket and left. A.M. and C.S. arrived from the funeral home to the crematorium to view the situation. They asked for privacy. They then removed the infant from the cardboard box and laid her out in repose wrapped in her blankets in the adult casket. The infant was then cremated in the adult container. As stated above, both of these witnesses cried during their testimony about the manner in which this infant had been treated before their involvement which I take to be a clear indication of how far below acceptable standards the previous treatment had been.
33A.M. testified as to why an adult casket was inappropriate for an infant burial. There were technical aspects of infant cremation spoken to by the crematorium operator, K.R., which also addressed the inappropriateness of an adult casket for an infant cremation. In the moving of the casket, an infant in an adult casket may slip around. It may be difficult to collect the remains for delivery to the bereaved family.
34A.M. was so upset about the treatment of this infant that she decided to report the matter to the Registrar’s office, the Bereavement Authority of Ontario. She was prepared to hold off on that report to give the appellant the opportunity to self-report. Through the crematorium manager, she set up a meeting with P.O. The meeting did not go well and A.M. left it after P.O. made comments about her actions in seeking to charge him full retail price for an adult cremation container.8
35After A.M. left the meeting, P.O. testified that he continued to meet with the crematorium manager for some time before the meeting broke up. A.M. testified that on the drive back to their office, the crematorium manager then asked her if she was serious about reporting the appellant as it was a good customer who brought a lot of business to the crematorium. A.M. was insistent and she subsequently reported the appellant to the Registrar.
36In defending its actions in not self-reporting the incident to the Registrar before A.M. reported it, both P.O. and J.O. said they wanted to complete their own investigation of what had happened by talking to the crematorium operator on duty when P.S. arrived with the cardboard box. Despite this, the appellant led no evidence that any investigation had been initiated. There was no contemporaneous statement from P.S., for instance, detailing the events and there was no evidence that the appellant had made any attempt to schedule a meeting with K.R., the crematorium operator on duty. I do not accept that the appellant had any intention to conduct its own internal investigation and then to report the facts to the Registrar.
Deflecting Blame
37The thrust of P.O.’s evidence regarding this issue was that it was the fault of P.S., not of the appellant. In his evidence P.O. testified that P.S. was an independent contractor and therefore the appellant was not responsible for his actions. He stated that P.S. had 24-hour, 7-day-a-week access to a holding room to transport the infant remains for casketing. He stated that P.S. had the funeral van which was equipped with a stretcher with moveable straps and body bag, both of which could have been adjusted to accommodate the small size of the deceased. In his evidence he stated the opinion that P.S. should have placed the infant in the body bag on the stretcher, taken her to the holding room and properly casketed her and returned her to the crematorium.
38P.O. fails to address the fact that he misled P.S. regarding the pecuniary circumstances of the bereaved family. P.O. justified the use of the cardboard shipping container to P.S. by telling him that the family was financially strapped and wanted to save money. The infant’s grandfather testified that he did not raise financial issues in his dealings with the appellant. The evidence also ignores the appellant’s practice of not taking remains to a holding room but casketing them in the morgue and taking them directly to the crematorium. Finally, the evidence ignores the fact that in the two days between the formation of the contract for the disposal of the infant remains and the date when P.S. attended the hospital, P.O had made no attempt to purchase a suitable infant cremation casket, and therefore no such casket was available even if P.S. had gone to a holding room.
39P.O.’s position also ignores the appellant’s legal responsibility for P.S’s actions. The term “employ” in the definition section of the Act, specifically includes independent contractors.9 Section 12(4) of the Act makes the appellant responsible to ensure that P.S. carries out his duties in compliance with the Act and regulations.10 It is not sufficient for the appellant to attempt to evade its responsibilities by pointing the finger of blame at P.S..
40This refusal to accept responsibility and the manner in which the appellant has attempted to deflect blame solely onto the shoulders of another is troubling. In considering the possibility of imposing terms, I find the failure to accept responsibility and the failure to recognize that the course of action that led to the shameful handling of the infant’s remains began with P.O. goes a long way to convincing me that licensing on terms is not a viable solution.
Regulatory Breaches
41As a result of A.M.’s complaint, the Registrar sent two investigators, Paul LeRoy and Karie Draper, to conduct an inspection of the appellant’s operation. They found a number of regulatory breaches. Before I proceed to delineate those regulatory breaches, a review of the Act and regulations is in order.
42There are two essential types of funeral contract, both of which are subject to regulations: prepaid contracts and at-need contracts. As the name implies, the former contract involves consumers purchasing a contract for a funeral at some indefinite time in the future. There are rules governing the management of the prepaid funds. The appellant had a number of prepaid contracts. To its credit, these funds were segregated in accordance with the applicable regulations and there were no irregularities.
43Where no funeral plans have been made in advance, a bereaved family must make speedy and appropriate arrangements to enter into a funeral contract. This type of contract is referred to as an “at need” contract. The contract for dealing with the infant cremation was an “at need” contract. The Registrar takes the position that the appellant’s handling of these contracts failed to comply with the regulations.
44In all dealings with the public, but perhaps more so in dealing with “at need” contracts, it is important that licensees under the Act ensure that the full range and cost of their services are clearly set out. There must be no surprises. The applicable regulations are designed to ensure that there are no surprises.
45The two investigators found a number of concerns. They can be summarized as follows:
(i) Consumer at-need contracts either not signed or signed after the funeral services have been provided;
(ii) Failure to have a price list that complies with of s. 55(6) of O. Reg. 30/11;
(iii) Failure to comply with the full disclosure requirements of s. 113 of O. Reg. 30/11 by failing to ensure that consumers have received a number of documents prior to entering into the contract, including:
(a) a copy of the consumer information guide where made available by the registrar;
(b) a copy of the operator’s price list;
(c) an explanation of cancellation rights and refund entitlements that the operator proposes to include in the contract and an explanation of the cancellation rights and refund entitlements under the Act.11
(iv) Issues with the appellant’s website and other advertising purporting to offer services beyond the scope of the appellant’s registration; and
(v) Actually providing services beyond the scope of the appellant’s registration.
46Having reviewed the Notice of Proposal, I note that the Registrar has not raised items (iv) and (v) in the allegations. Accordingly, in fairness to the appellant, I will not address them. That leaves items (i) through (iii). I will deal with item (ii) then (iii) before addressing the Registrar’s position with respect to the need to provide a signed contract prior to providing the funeral services.
Item (ii) – Price List
47Section 55 of O/Reg. 30/11 defines the requirements of a price list. The appellant’s price list does not comply with these requirements. The appellant’s price list lacks the specificity require for full disclosure. It also lacks a date when it is valid. Some of the shortcomings are as follows:
(i) Section 55(2) requires the appellant to identify each supply and service it offers in sufficient detail to identify with certainty. The appellant has failed to identify the administrative services it provides, setting out only a generic heading and price.
(ii) Where the item is a supply, the price list must set out the size, colour, brand name and any make or model number. In dealing with caskets, the appellant’s price list simply states that it is particle board with no further description. In fact, for the most part it is cardboard. I heard evidence that particle board is a more robust material than cardboard and is generally used when the deceased exceeds the weight range for cardboard.
(iii) There is a charge for $225 for “Facilities – Shelter Remains.” P.O.’s evidence that this charge related to keeping ashes until picked up by the bereaved family runs counter to the scheme of the legislation dealing with keeping ashes for pick-up. The Registrar’s expert witness, Allan Cole, identified this charge as a charge for the use of a holding room. I think it is more likely than not that is its purpose. It was charged to the infant’s family despite the fact that the remains were not transported to a holding room.
(iv) Section 55(6) requires that the price list shall always be up-to-date and shall indicate its effective date. The appellant’s price list is undated.
Item (iii) – Minimum Statutory Disclosure
48Item (iii) in the above list addresses the appellant’s obligation to provide a certain minimum level of documentary disclosure before entering into a contract with a consumer. These provisions are set out in s. 113 of O/Reg. 30/11. Despite evidence from P.O. that the appellant was in compliance with the regulation, the evidence of B.Y. with regard to his dealings with the infant’s grandfather indicates that the regulations were not followed.
49P.O.’s evidence was that the appellant provided a folder to each client that contained a copy of the consumer information guide and price list. The regulations require these two documents to be disclosed before a contract is agreed. The evidence of both the baby’s grandfather and B.Y. was that the grandfather was given no documentation when he met with B.Y.. B.Y. explained that when dealing with bereaved families he does not want to load them up with documentation. The failure to provide the baby’s grandfather with the required documentation is a clear breach of the regulations.
Item (1) - Obligation to provide a copy of the contract before providing services
50The Registrar argues that in addition to the documents described in s. 113, the appellant was under an obligation to provide a copy of a signed contract before it provided services to the infant’s family. It is the Registrar’s submission that without a signed contract before services are provided a consumer is denied meaningful cancellation rights and this constitutes the furnishing of false and misleading information. I disagree. I can find nothing in the Act or regulations that mandates delivery of a signed contract prior to the provision of services. In fact, a reading of the disclosure and contract provisions indicates that the legislation contemplates the delivery of a contract after services have been provided.
51Starting with s. 113 of the regulation, the disclosure provisions do not include a requirement for delivery of a copy of the contract setting out the cancellation provisions. Section 113 provides only that a licensee is to explain the cancellation rights and refund entitlements that the operator proposes to include in the contract and an explanation of the cancellation rights and refund entitlements under the Act.
52I find the Registrar’s position reaches too far for the wording of the legislative scheme. The obligation the appellant had to meet was to provide an explanation of cancellation rights. No evidence has been led to suggest that B.Y. did not explain the cancellation rights. I can only assume that the legislature made the distinction between the obligation to provide a copy of the price list and the consumer guide, and the obligation to provide an explanation of cancellation rights deliberately.
53Section 127 of O/Reg 30/11 is the only provision that addresses delivery. That section requires that a consumer receive an unaltered copy of the agreement as it was signed, but it contemplates delivery of the signed document at a later date.
Day to Day Management
54It is the Registrar’s position that the day-to-day manager of the appellant is P.O. I find that the evidence supports this position. There are two consequences to my finding. The first is that the appellant is in breach of the legislation. P.O. is not a licensed funeral director. Section 36(2) of O/Reg 30/11 requires that the day-to-day manager of a Class 1 Transfer Service shall be a licensed funeral director. The second consequence is dire. It is that the appellant has been misleading the Registrar about its management for a number of years by identifying J.O. as the day-to-day manager in renewal applications.
55The evidence in support of the role of P.O. as day to day manager is extensive. He worked from the appellant’s premises on a full-time basis, he is featured on the appellant’s website; he was referred to as the manager by B.Y. when first dealing with the inspectors; it was he who directed P.S. to use the cardboard shipping box in the infant cremation matter; according to the inspectors, it was he who answered most of the questions during the audit; and it was he who dealt with A.M. with respect to the infant cremation, both to resolve the immediate problem on the day and to meet with her about her concerns. It was P.O. who contacted the baby’s grandfather to discuss the Registrar’s investigation.
56Both J.O. and P.O. testified that J.O. was the day-to-day manager. Both pointed out that P.O. is not a licensed funeral director and that all decisions relating to funeral matters fell within the expertise of J.O.. P.O. and J.O. called each other morning and evening to discuss events of the day and address any issues that might arise from time to time. J.O. lived close by the appellant’s premises and attended every morning before going out to meet people in the community and develop the goodwill necessary to make the appellant a successful business.
57Section 36(2) specifically addresses the day-to-day operation of a funeral business. By doing so, it does not require me to look at the corporate structure of the appellant or, indeed, whether J.O. as the majority shareholder and licensed funeral director had a veto over decisions made by P.O. While I acknowledge that J.O. had input into the daily operation of the appellant, what is of note is his conspicuous absence from the events surrounding the baby’s cremation and its fall-out. His evidence, that A.M. asked specifically to deal with P.O. and that he was across the road at a restaurant ready to attend if needed, highlights the degree to which he had abdicated the duties of management of the appellant to P.O.
58The meeting between P.O., A.M. and the manager of the crematorium threatened the continued operation of the appellant. Its importance cannot be minimized. If J.O. were, in fact, in day-to-day control of the appellant, it is a meeting that he would not absent himself from, notwithstanding his evidence that A.M. only wanted P.O. to attend.
59P.O. is featured on the website. There is no reference to J.O. and no photograph of him. P.O. stated that the website was a work in process and J.O. does not like having his photo taken. As stated above, the website has been operating for several years and no efforts have been made to include J.O. on its pages in that time. It is fair to say from his evidence the concept of a website as a source of business is totally foreign to J.O. When asked he stated that business does not come through a website, it comes from personal contact. He gave this answer despite the fact that the baby’s grandfather first contacted the appellant as a result of viewing their website. It appears that the appellant’s business was moving in directions beyond J.O. and it was P.O. who was managing that change.
Findings and Application of the Statutory Tests
60Based on my review of the evidence, I find that the Registrar has proven, on a balance of probabilities, that the appellant:
(i) Acted in unethical and improper manner with respect to the infant cremation. It failed to make any efforts to obtain a suitable infant casket and treated the remains with a shocking lack of dignity and respect,
(ii) Failed to comply with its regulatory obligations to provide its customer, the baby’s grandfather with the required documentation, including a price list that detailed its services and indicated its effective date;
(iii) Failed to maintain an up-to-date price list with an effective date detailing in an identifiable manner to services and supplies it provided;
(iv) Purported to charge for a service it did not provide;
(v) Operated with a unlicensed day-to-day manager; and
(vi) Made false statements in its annual renewal forms for at least the last two years about the identity of the day to day manager.
61Having made the above findings, I must apply those findings to the statutory tests set out in the Act. Section 14 of the Act begins with a right to a licence or renewal of a licence subject to certain exceptions. I have set out the specific sections of the Act above that the Registrar alleges operate to disentitle the appellant to a licence. I will go through each one now.
S. 14(a)(i)
62Section 14(1)(a) of the Act disentitles the appellant to registration if it is in contravention of the Act or regulations. I have detailed above a number of regulatory breaches ranging from being managed on a day-to-day basis by an unlicensed person to failing to maintain a compliant price list and to provide that price list and a copy of the consumer information guide to at least one consumer before entering into a contract with the consumer.
S. 14(c)(i)
63Section 14(c)(i) asks me to look at the past conduct of the officers and directors or other interested persons with respect to the appellant and determine if that conduct gives reasonable grounds for belief that the appellant will not operate in accordance with the law and with integrity and honesty. This enquiry does not ask me to focus solely on wrongful conduct, but asks me to consider the whole of the past conduct of the appellant. In looking at the appellant’s past conduct I note the positive aspects but, in the end, I am of the view that the negative aspects support revocation.
64In weighing the positive aspects of the appellant’s past conduct, the appellant points out that it has been in business for 17 years without complaint or disciplinary record. I do not discount 17 years of successful and ever increasing business, but the absence of complaint does not equate to an absence of issues, especially when dealing with a consumer base lacking in detailed knowledge of the appellant’s statutory obligations. I note that the BAO inspection team found shortcomings in the appellant’s regulatory compliance that it is unlikely consumers would have been aware of.
65The appellant also points to its inherent integrity and honesty in properly managing its pre-paid trust funds. It is, of course, the appellant’s obligation to manage its pre-paid funds in accordance with the statutory regime. I am not sure how much credit I can assign because the appellant properly fulfilled its obligations in this particular area.
66I have discussed the negative aspects of the appellant’s behaviour in making my findings above. In particular, I have addressed the shocking manner in which the infant cremation was handled and the appellant’s attempt to deflect blame. The whole of the circumstances of this cremation underscore for me the extent to which P.O. was in charge of the day-to-day running of the appellant. Both of the licensed funeral directors, B.Y. and P.S. fell in with his suggestion of using the repurposed box, albeit based on false information about the family’s impecuniosity from P.O. Neither B.Y. or P.S. carried out their duty, as licensees, to question the suitability of the box and ensure the infant was dealt with with dignity and respect. This strongly indicates it was P.O. who was in charge.
67Having weighed the positive and negative aspects of the appellant’s history and behaviour, I find that there are reasonable grounds for belief that the appellant will not carry on business in accordance with law and with integrity and honesty.
ORDER
68In accordance with the provisions of s. 18(5) of the Act, I order the Registrar to carry out the proposal to revoke the licence of the appellant as a Class 1 Transfer Service.
LICENCE APPEAL TRIBUNAL
__________________________
Flude, D. Gregory
Released: June 27, 2018
Footnotes
- Funeral, Burial and Cremation Services Act, 2002, S.O 2002 Chap. 33
- S. 14(a)(i) of the Act
- S. 14(c)(i)
- S. 14(d)(i)
- S. 14(d)(iii)
- S. 47 of O/Reg 30/11 defines the criteria for an area to be designated a holding room. In this case, the appellant had made an arrangement to use the holding room of another licensee to which the appellant had 24/7 access.
- S. 36 of O/Reg 30/11 sets strict limits on the services a Class 1 transfer service may offer.
- A.M. and P.O. gave slightly different versions of this meeting but the important fact is that it did not result in a resolution of A.M.’s concerns and nothing turns on the differences.
- Section 1 of the Act states: “employ” means to employ, appoint, authorize or otherwise arrange to have another person act on one’s behalf, including as an independent contractor; (“employer”)
- 12(4) The operator of a transfer service shall comply with this Act and the regulations and shall ensure that, (a) every licensee that the operator employs carries out his or her duties in compliance with this Act and the regulations; and (b) every other person to whom the operator delegates responsibility carries out that responsibility in compliance with this Act and the regulations.
- S. 113 has a much longer list of requirements but it is these specific requirements that the Registrar has focused on.