Tribunal File Number: 12548/FBCSA
Motion for an Order to extend the Time to File an Appeal under section 18(2) of the Funeral, Burial and Cremation Services Act, 2002, Chapter 33 and Regulations from a Notice of Proposal to Refuse Licensing.
Between:
David MacLeod Appellant (Moving Party)
And
Registrar, Funeral, Burial and Cremation Services Act, 2002 Respondent (Respondent on Motion)
DECISION AND ORDER ON MOTION
Adjudicator: Jacqueline Castel
Appearances:
For the Appellant: David MacLeod, Self-represented
For the Respondent: John J.S. Park, Counsel
Place and Date of Motion: Teleconference February 5, 2020
REASONS FOR DECISION ON MOTION AND ORDER
A. OVERVIEW:
1This is a motion to extend the time to appeal a Notice of Proposal to Refuse Licensing to the Licence Appeal Tribunal (the "Tribunal").
2The respondent issued a Notice of Proposal ("NOP") to Refuse licensure to the appellant, as a Funeral Director, under the Funeral, Burial and Cremation Services Act, 2002 (the "Act"), on July 31, 2019. The deadline for filing a Notice of Appeal ("NOA") was August 15, 2019.
3The Tribunal received a handwritten note from the appellant indicating he wished to appeal on August 20, 2019. The note was dated August 10, 2019. The Tribunal's NOA form was not included, nor was the document being appealed or the filing fee. As such, the NOA was incomplete as well as five days late.
4The Tribunal wrote to the appellant on August 28 and again on September 20, 2019 advising that the NOA filed was incomplete, outlining the missing information, and informing that the appellant would need to bring a motion to extend the time for appealing the NOP. The Tribunal's letter of August 28, 2019 gave him a deadline of September 13, 2019 to file the outstanding information and bring the motion; the Tribunal's letter of September 20, 2019 extended this deadline until October 3, 2019. When the appellant did not file the outstanding information by the second deadline, the Tribunal wrote to him on October 11, 2019, informing that the file was being closed pursuant to Rule 3.3 of the Common Rules of Practice.
5The appellant filed a complete NOA and a motion requesting an extension of the 15 day time line for appealing the NOP on January 13, 2020 (documents are dated January 6, 2020).
6For the reasons that follow, the motion is denied.
B. THE ISSUE TO BE DECIDED:
C. The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time to appeal the NOP.
D. THE LAW:
7Pursuant to subsection 18(2) of the Act an appellant is entitled to a hearing before the Tribunal, in respect of a proposal to refuse licensing, if the appellant files a Notice of Appeal, together with the fee established by the Tribunal, within 15 days after being served with the proposal.
8The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, which reads:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal . . . under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
b) give the directions that it considers proper as a result of extending the time.
9In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:
a. The existence of a bona fide intention to appeal within the appeal period;
b. The length of the delay;
c. Prejudice to the other party; and
d. The merits of the appeal.
10The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.
E. DISCUSSION AND ANALYSIS:
Did the appellant have a bona fide intention to appeal?
11Mr. Park, counsel for the respondent, submitted that his client is prepared to concede that the appellant had a limited or minimal intention of appealing within the 15 day time period and referenced the note the appellant submitted to the Tribunal dated August 10, 2019. Although the note was received by the Tribunal on August 20, 2019 (5 days after the 15 day deadline), given that Mr. Park has conceded the point, I will accept that the appellant had a bona fide, yet limited, intention of appealing within the 15 day time line.
12I agree with Mr. Park that the appellant's intention to appeal was minimal because, despite at least two letters from the Tribunal between August and October, 2019, outlining what was required to appeal the NOP, he did not file the required information until January 13, 2020.
13The appellant stated that he did not file the required information before January 13, 2020 because he was dealing with his elderly father's health and housing issues. He explained that his 85 year old father, who suffers from Alzheimer's disease, was hospitalized and subsequently needed to be moved into a secure nursing home. His existing nursing home did not have adequate security, and, on more than one occasion, his father left the home in the middle of the night, got lost and the police needed to get involved in finding him. In response to a question, the appellant stated that the problems relating to his father's health and accommodations took place between late September and December 28, 2019. He stated that on December 28, 2019 he was finally able to move his father into a secure nursing home and turn his attention to the appeal.
14Based on the dates provided by the appellant at the motion hearing, his father's health and housing issues do not explain why he failed to file the required documentation to initiate the appeal within the 15 day time line or shortly thereafter. The deadline for filing the appeal was August 15, 2019, and the issues relating to the appellant's father began in late September 2019.
The length of the delay
15On the second factor, the length of the delay, it is my finding that a delay of approximately five months, in filing a NOA, is significant.
Prejudice to the Registrar
16The third factor is prejudice to the opposing party. Mr. Park submitted that there would be prejudice to the respondent, if the appeal proceeded. Specifically, he indicated that the delay would prejudice the ability of the respondent to secure witnesses who remember the allegations outlined in the NOP. He emphasized that the allegations about misappropriation of consumer funds go back about 13 years and every additional month of delay has an impact on the recollections of witnesses.
17I agree that the respondent may encounter some prejudice by the five month delay in filing of the NOA, but I do not place much emphasis on this factor since the respondent may have had difficulty securing witnesses who remember the facts going back to 2007 and 2008, even if the appeal was filed within the 15 day time period.
Merits of the appeal
18The final factor is a consideration is the merits of the appeal. It is up to the appellant to demonstrate that he has a reasonable chance of success by offering some clear and specific evidence he would put forward at a hearing to support his position. Based on the appellant's NOA, he admits to misappropriating consumer funds for personal use. However, he alleges that his accountant and former business partner were aware of what he was doing. He also makes numerous other allegations of criminal and regulatory wrongdoing pertaining to his former business partner. The appellant did not express any remorse for misappropriating consumer funds for personal use, nor did he introduce any evidence to suggest that he has been rehabilitated.
19The test for refusing licensure under the Act is whether the Registrar has reasonable grounds to believe the appellant will not be financially responsible and, based on the appellant's past conduct, will not act in accordance with law and with integrity and honesty. Given the appellant's admission that he misappropriated consumer funds for personal use, notwithstanding any other wrongdoing or complicity by his former business partner and accountant, he does not have a reasonable chance of success, particularly in the absence of remorse and evidence of rehabilitation.
Justice of the Case
20In this case, I find that the appellant is the author of his own misfortune. The Tribunal wrote to him on a number of occasions after they received his handwritten note on August 20, 2019, informing him of the information he would need to file if he wished to appeal the NOP. He acknowledged at the motion hearing that the health and housing issues with his father took place between late September and December 28, 2019. As such, these issues do not explain why he failed to file the required information within the 15 day deadline or even before late September 2019. The delay of approximately five months, particularly when the appellant does not have a reasonable chance of success based on the merits of the appeal, is excessive. In these circumstances, the justice of the case would not be served by allowing him to appeal the NOP.
ORDER ON MOTION
21Accordingly, the motion is denied.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
RELEASED: February 7, 2020