Date: 2020-11-24

IN THE MATTER OF the Funeral Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 and Regulations

Between

SIMONE THOMAS

Appellant

and

REGISTRAR, Funeral Burial and Cremation Services Act, 2002 (the “Act”)

Respondent

DECISION AND ORDER

Adjudicator: Luisa Ritacca, Member

Appearances:

For the Appellant: Hayley Smith

For the Respondent: John Park

Also present Peter Jordan – Manager of Compliance with the Bereavement Authority of Ontario

Heard via Video Conference: October 13 and 16, 2020

I. Overview

1Simone Thomas was issued a funeral pre-planner licence on April 5, 2019, however she has been involved in the funeral industry since approximately 2016.

2Between June 2017 and October 2019, Ms. Thomas was employed at the Glendale Funeral Home & Cemetery, an operating arm of Arbor Memorial Inc. (“Arbor”). During the period in which she held her pre-planner licence, Ms. Thomas was responsible for accepting monies from consumers on Arbor’s behalf.

3The Registrar alleges that between April and October 2019, Ms. Thomas accepted monies from consumers intended to be held in trust for Arbor, that she diverted monies received from consumers and did not arrange for them to be deposited to Arbor’s account as intended or in a timely fashion.

4Ms. Thomas was ultimately terminated by Arbor for cause on October 11, 2019.

5On November 22, 2019, the Registrar issued a Notice of Proposal to Revoke Ms. Thomas’ funeral pre-planner licence (the “Notice”). The Registrar asserts that Ms. Thomas’ past conduct is inconsistent with the intention and objective of the Act and therefore warranted disentitlement to her license under the Act.

6Ms. Thomas appeals from the Notice on the basis that (a) she did not divert funds from consumers for her own benefit and (b) she has and can continue to carry on business in accordance with the law and with integrity and honesty, as required under the Act.

7For the reasons that follow, the Tribunal finds that Ms. Thomas’ past conduct does not afford reasonable grounds for belief that she will not carry on her obligations as a licensee in accordance with the law or with integrity or honesty.

8Accordingly, the Tribunal substitutes its opinion for that of the Registrar and directs the Registrar not to carry out its proposal to revoke Ms. Thomas’ funeral pre-planner licence.

II. THE FACTS

A. Agreed Statement of Facts

9At the outset of the hearing, the parties advised that they had entered into a partial agreed statement of facts, which was filed with the Tribunal. In addition, the Registrar advised that it would not be relying on allegations relating to Ms. Thomas’ dealings with two families, as initially identified in its materials. Instead, the Registrar confirmed that it was relying on the evidence relating to Ms. Thomas’ interactions with MW and with the DF family only. To that end, the facts agreed upon relating to these matters are as follows:

Licensee’s (Ms. Thomas) conduct involving consumer MW

a. MW is the sister of the late TWH who passed away on February 14, 2019. On February 15, 2019, MW met with Ms. Thomas to discuss the plans for her late brother’s burial. On the same day, and as a result of discussions between the parties, MW signed an At-Need Cemetery Purchase Agreement in the presence of the Licensee. The Licensee also signed the agreement as a representative of the Glenview Memorial Gardens (Arbor Memorial). Total fees payable to the cemetery were $9,320.00, less $500.00 (down payment) plus taxes, which amounts to $10,031.60 outstanding balance. The Licensee advised MW that payments towards this account can also be made via email transfer to the Licensee at ****@msn.com. The email address is the Licensee’s personal email account.

MW paid the Licensee all payments towards the agreement, totalling $10,031.60.

Table 1.0

Date	Amount	Method
February 19, 2019	$4,700.00	Cash payment to the Licensee
April 23, 2019	$2,500.00	e-transfer to the Licensee’s personal email account
April 23, 2019	$500.00	Cash payment to the Licensee
August 6, 2019	$1,331.60	e-transfer to the Licensee’s personal email account
August 15, 2019	$1,000.00	e-transfer to the Licensee’s personal email account

The table below describes how the payments were handled by the Licensee:

Table 2.0

Amount received from MW	How the Licensee handled it	Date
$4,700.00 (Cash)	Delivered to accounting	February 19, 2019 (same day as received from MW)
$2,500.00 (e-transfer)	Paid to accounting from Licensee’s debit card	April 24, 2019 (1 day after receiving it from MW)
$500.00 (Cash)	Delivered to accounting	April 24, 2019 (1 day after receiving it from MW)
$1,331.60 (e-transfer)	Paid to accounting from Licensee’s debit card	August 6, 2019 (same day as received from MW)
$1,000.00 (e-transfer)	Not Delivered to accounting.

b. On August 17, 2019, the Licensee sent an email to MW to advise that the monies received from her will be forwarded to accounting and that a receipt would be sent via email. However, the receipt documenting this last e-transfer was not sent to MW.

c. In October 2019, MW learned that her account was delinquent.

Licensee’s conduct involving the consumer ACF (DF Family)

d. ACF is the widow of the late DF, who made burial arrangements with the assistance of the Licensee. ACF made arrangements to pay towards the Cemetery Purchase Agreement using her personal credit card, following the death of her late husband. On July 18, 2019, the Licensee processed two credit card payments in the amounts of $1,226.05 and $1,652.95, respectively, from ACF’s credit card. It was later discovered that $1,652.95 was applied to pay towards another consumer unrelated to ACF. The Licensee had no authorization to use ACF’s credit card to pay $1,652.05 towards an unrelated account. ACF has not been reimbursed for the unauthorized payment made from her credit card.

B. Evidence of the Appellant

Simone Thomas

10Ms. Thomas was born in Jamaica, and moved to Canada in November 2004 with her two young children. Since arriving, Ms. Thomas has been employed in a number of different community and service-driven industries. She explained that she developed an interest in funeral services based on her family’s experiences in Jamaica.

11Ms. Thomas operated a driving service back in Jamaica for a funeral home and in Canada she worked as a director’s assistant at Covenant Funeral Homes prior to joining Arbor.

12Ms. Thomas described her work in funeral services as a “calling from God”. She confirmed that prior to her termination from Arbor, she maintained a good work history with no discipline matters.

13Ms. Thomas explained that while she was employed by Arbor, she completed her course work for licensure through Humber College and then internally through Arbor. She was licensed as a funeral pre-planner in April 2019.

14At Arbor, she was assigned to Glendale Funeral Home and Cemetery as her home branch, but she would also work out of the Glenview Memorial Gardens. She reported to a senior administrator or manager at Glenview.

15Ms. Thomas stated that many of her clients were referred to her through her community and church connections. She described her relationship with her clients as good.

16Ms. Thomas described the process she undertook when dealing with consumer contracts. Clients could either contact her for pre-planning arrangements or for at need arrangements (at the time of a loved one’s death). She explained that it was common for someone to pay a small amount on the contract and then make payments over time. Further, she confirmed that payments could be made via credit card, debit, PASP (direct deposit from bank) or cash. When payments were received, the client would receive a signed receipt confirming payment.

17Ms. Thomas acknowledged that she accepted e-transfers into her personal account from time to time. She would do so when a family had no other way of processing a payment over the phone and were too far away to attend Glenview in person. Ms. Thomas believed that Arbor was aware of her practice, because she would always tell her manager that she would be making a payment on a client’s account from her personal debit card. Ms. Thomas indicated that a manager told her that “it was not customary” but did not prohibit her from accepting e-transfers.

18Ms. Thomas stated that she never accepted money or diverted funds from her clients for her own benefit.

Ms. Thomas’ Evidence with respect to the MW Matter

19Ms. Thomas acknowledged the facts as set out in the Agreed Statement of Facts.

20Ms. Thomas explained that she accepted e-transfers from MW because at the time MW was living in Ottawa, did not have a credit card and could not use her debit card to make payments over the phone or online. Ms. Thomas suggested the e-transfer payment method to make things more convenient for MW. Ms. Thomas said that she could not use her Arbor email for the transfers and so she provided MW with her personal email address.

21Ms. Thomas reviewed the various payments made by MW via e-transfer. She conceded that the final $1000.00 transfer made in August 2019 was not immediately transferred to Arbor. She explained that unbeknownst to her, the $1000.00 transfer was automatically deposited into her account. On all other occasions, Ms. Thomas was prompted via email to accept the transfer prior to it being deposited. As such, she did not notice that MW’s $1000.00 transfer was deposited until several weeks later.

22On cross-examination, Ms. Thomas conceded that she received an email from MW on or about August 6th wherein she advised Ms. Thomas that she would be sending the last payment on August 15th. She also conceded that MW sent a follow up email on August 17th to confirm that the money had been transferred. While Ms. Thomas had no reason to believe that MW was lying, she maintained that she did not notice that the transfer had been made until weeks later.

23Ms. Thomas explained that by the time she was aware of the deposit, she had no access to her company email, and she had been instructed by Arbor not to communicate with any consumers, as they were in the process of conducting their own investigation. As such, Ms. Thomas said she was not in a position to respond to MW or to return the deposit. On cross-examination, Ms. Thomas explained that she could not transfer the funds to the company account unless she was physically present in the Glenview branch. By the time she became aware of the deposit in her account, she was no longer attending the branch, as a result of the ongoing investigation.

24Ms. Thomas did indicate however, that the funds were eventually returned to MW sometime after the end of September 2019. Ms. Thomas stressed that while there was delay in returning the funds, they were not used for her own personal benefit.

25Ms. Thomas acknowledged that in hindsight she could see why this transaction looked problematic, but she stressed that she did not engage in any conduct that was meant to deceive or deprive MW or Arbor of the funds. She said she did not act dishonestly or without integrity in handling this matter.

Ms. Thomas’ Evidence with respect to the DF Family

26Ms. Thomas testified that she met DF in April or May 2018 through her church and domino club at her community centre. He told her that he wanted to buy four internment spaces and an accompanying monument for his family. DF did not want his wife to know about the arrangements and so asked that the contract be made out in his children’s names. The contract was for almost $50,000.00. Ms. Thomas confirmed that DF made some initial payments under the contract.

27DF’s contract was supposed to be paid off within 3-months (September 2018), however DF ran into some difficulty keeping up with the payments. Ultimately, Ms. Thomas explained that DF passed away before he was able to complete his payments.

28Ms. Thomas explained that prior to his death, she visited DF in the hospital. He advised her then that his wife was aware of the arrangements he had made for his family’s internment plots and monument. He also advised her that he was having difficulty with money and so she conceded that she gave DF cash, which belonged to other clients, the T family. Ms. Thomas conceded that the money was not hers, but she believed that DF would be able to pay her back within a few days.

29DF died before he could pay Ms. Thomas back the money she provided him at the hospital.

30Following DF’s death, Ms. Thomas spoke with ACF and DF’s children regarding DF’s funeral and his existing contract. Ms. Thomas said that ACF granted her permission to use her credit card to make payments as necessary for the funeral arrangements. Ms. Thomas said that she already had the credit card number available to her because DF had given it to her previously. She did not understand that the credit card belonged to ACF in her sole capacity. Ms. Thomas said she believed it to be a joint credit card and she believed that she was authorized to charge the credit card. In any event, Ms. Thomas acknowledged that she processed two payments on ACF’s credit card as described in the Agreed Statement of Facts and that one of the payments was re-directed into the T family’s account with Arbor to pay the money back that she had given to DF.

31Under cross examination, Ms. Thomas acknowledged that she did not specifically advise ACF as to how the funds charged to her credit card would be used, but she maintained that she was authorized to make the payments. She also maintained that she already had ACF’s credit card number prior to DF’s death.

32Ms. Thomas maintained that at the time, she did not think she was doing anything wrong in her dealings with ACF. She did not think she needed to tell ACF specifically how the money would be used. Ms. Thomas believed she was honouring DF by not revealing too much about the state of his account.

33Moving forward, Ms. Thomas emphasized that she would make sure that the issues that arose with respect to MW and DF’s family would not happen again. She recognized that she had let her empathy for her consumers get the better of her and that going forward she would not do so.

Character Witnesses

34Ms. Thomas provided the Tribunal with several character letters from former clients and other acquaintances from within her church and social community. It is clear from the letters that Ms. Thomas is an active and highly regarded community leader. She has been involved in charitable initiatives for her high school in Jamaica, as well as for organizations in the Greater Toronto Area, which advance the interests of the Jamaican-Canadian community.

35In addition to providing letters, the appellant called three character witnesses to provide their evidence orally. Two of the women called, GR and DD were former clients of Ms. Thomas. Both spoke very highly of her professionalism and the manner in which she handled their families’ needs on the occasion of a love one’s death. They felt Ms. Thomas went above and beyond in ensuring that their wishes were met.

36The third witness, CCS, worked with Ms. Thomas in a charity for their high school in Jamaica. CCS confirmed Ms. Thomas was professional and always above-board, particularly when it came to handling donations and the finances of the organization.

37On cross-examination, the witnesses conceded that they were not entirely familiar with the allegations against Ms. Thomas, but they each insisted that they had no reason not to trust Ms. Thomas as an acquaintance and professional.

C. Evidence of the Registrar

Peter Jordan

38The Registrar called Peter Jordan, the Manager of Compliance for the Bereavement Authority of Ontario. Mr. Jordan has held this role since 2016.

39Mr. Jordan explained that in his role he has oversight over compliance-related matters and licensure issues brought before the regulator. In addition, he confirmed that he was familiar with Ms. Thomas and with this proceeding.

40Mr. Jordan described the various licence classes available under the Act, including the funeral pre-planner licence, held by Ms. Thomas. He explained that this licence is available to an individual as an entry level licence. The individual is employed by a funeral home and may sell funeral products on behalf of the home and the directors/owners of the home.

41The funeral pre-planner licensee typically has direct contact with consumers and acts as the conduit between the consumer and the funeral home. They effectively act as a trustee when transferring money from the consumer to the funeral home.

42Mr. Jordan explained that as the regulator, the Bereavement Authority of Ontario needs to ensure that its licensees will operate honestly and with integrity, as they are dealing with families during emotionally vulnerable times. The funeral pre-planner licensee, in particular, works on behalf of their employer and should do so in an honest manner.

43With respect to Ms. Thomas, Mr. Jordan explained that the Registrar’s biggest concern is that ordinary method of operations were not followed – she is a trustee of client funds and she did not handle those funds appropriately. It was not appropriate for her to use ACF’s credit card payment to pay back an amount on another client’s account. Similarly, Mr. Jordan testified that Ms. Thomas should not have held onto MW’s funds, which were transferred to her personal bank account. She was obliged to turn those funds over to her employer immediately.

44In the case of MW, the consumer’s wishes were not followed, in that she did not immediately transfer the final e-transfer made by MW to the Arbor account. Mr. Jordan stated that Ms. Thomas did not act with integrity in her handling of this matter.

45Mr. Jordan indicated that in his view, the conduct suggested a pattern of behaviour where the appellant put her needs ahead of those of her clients and employer.

46Mr. Jordan explained that it does not matter whether Ms. Thomas benefited from the conduct. The money she held in the MW case and the money she allowed DF to borrow was not her money.

47In cross-examination, Mr. Jordan acknowledged that he had not spoken to Ms. Thomas and that he had not heard or seen direct evidence from her.

48Finally, Mr. Jordan acknowledged that the Registrar had considered whether conditions, terms or limitations could be imposed on Ms. Thomas’ licence instead of revocation. Mr. Jordan said that in his view there were no reasonable alternatives available to revocation. There is no practical way for Ms. Thomas to continue to be licenced with conditions requiring additional oversight or monitoring, given the independent nature of the role of the funeral pre-planner.

Reply Evidence - ACF

49In response to Ms. Thomas’ evidence, the Registrar sought to call ACF in reply to address what appeared to be an inconsistency in the evidence provided by Ms. Thomas and what was agreed to in the Agreed Statement of Facts.

50After hearing from the parties on the issue, I agreed to allow the Registrar to call ACF for the limited purpose of addressing the question of whether she “authorized” the payments Ms. Thomas made on her credit card.

51ACF confirmed that she is the wife of the late DF. DF passed away on July 3rd, 2019. His funeral service was held on July 20th, 2019. ACF confirmed that she met Ms. Thomas sometime in the week before DF’s funeral.

52ACF explained that she met with Ms. Thomas because she had limited information about DF’s funeral plans, but that she had no idea whether he paid for anything prior to his death.

53ACF confirmed that Ms. Thomas told her that DF had ordered two plots and that she had been having trouble getting payment from him.

54ACF instructed Ms. Thomas to make the payments necessary so that DF could be buried on the 20th as planned. ACF asked Ms. Thomas if she could pay by credit card. She was advised that she could and so she gave Ms. Thomas her credit card number to process the payments.

55ACF confirmed that she did not authorize Ms. Thomas to make payments other than payments toward her husband’s funeral and burial plot. She indicated that she did not authorize her to use her credit card to make a payment on another consumer’s account.

56On cross-examination, ACF maintained that she provided Ms. Thomas with her credit card number and that it was not possible that Ms. Thomas already had it.

III. ISSUES

57The issues in this proceeding are as follows:

i. Does the past conduct of Simone Thomas afford reasonable grounds for the belief that she will not carry on her obligations as a licensee in accordance with the law or with integrity or honesty?

ii. If the answer to (i) is yes, should Ms. Thomas’ licence be revoked?

IV. Standard of Review

58If a licensee wishes to challenge a Notice of Proposal, they can request a hearing before the Tribunal within 15 days of service of the Notice (see s. 18(2) of the Act). A hearing before the Tribunal is a matter of first instance. No deference is owed to the decision made by the Registrar, who bears the onus of establishing the grounds for the proposal (Ontario (Registrar, Motor Vehicle Dealers Act) v. Shine Car Sales, 2003 CanLII 11437 (Div.Ct.), at paras. 9-10).

59If a hearing is requested, as it was in this case, the Tribunal may, following the hearing, 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 (see s. 18(5) of the Act)

V. ANALYSIS

Issue #1 - Does the past conduct of Simone Thomas afford reasonable grounds for belief that she will not carry on her obligations as a licensee in accordance with the law or with integrity or honesty?

60Section 14 of the Act states:

14 (1) An applicant is entitled to a licence or to a renewal of the licence unless…

(b) the applicant is not a corporation and,

(ii) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty…

61If there are reasonable grounds for belief that a licensee will not carry on business in accordance with the law, and with integrity and honesty, the Registrar can seek suspension or revocation of a licence (section 17(2) of the Act).

62The standard of proof for establishing reasonable grounds for a belief is lower than a ‘balance of probabilities’. However, it still requires, “something more than mere suspicion”, and will be satisfied where there is an “objective basis for the belief which is based on compelling and credible information” (see: Ontario (Alcohol and Gaming Commission, Registrar) v. 751809 Ontario Inc. (c.o.b. Famous Flesh Gordon’s), 2013 ONCA 157 at paragraph 18).

63The Registrar submits that the basis for his belief that the licensee will not carry on business in accordance with law, and with integrity and honesty is that on at least two occasions she mismanaged client funds in a manner that was inconsistent with her employer’s practices and which had the effect of depriving both the client and employer of the benefit of the funds. The Registrar relies on the evidence presented with respect to MW and the DF family.

64With respect to MW, it is clear that Ms. Thomas failed to act in a timely manner to ensure that MW’s final e-transfer was ultimately received by Arbor. That said, it appears that all other e-transfers Ms. Thomas received from MW were immediately paid to Arbor the same day or the day after they were received. There was no evidence of a pattern of delay or of attempts by Ms. Thomas to misappropriate MW’s funds for her own benefit.

65Ms. Thomas should have acted in a more timely manner and when it became clear that she had a client’s funds in her personal account, she should have been more proactive with both the client and Arbor, even if it was difficult to do so because of Arbor’s ongoing investigation. That said, I am not satisfied that this one instance of delay gives rise to a credible concern about Ms. Thomas’ ability to operate honestly and with integrity.

66With respect the DF Family, Ms. Thomas should have been clearer in her communications with ACF. Ms. Thomas should have explained to ACF that she intended to charge her credit card to make a payment on DF’s funeral expenses and to take the money DF had borrowed so that Ms. Thomas could put it back into the T Family’s account with Arbor. While Ms. Thomas’ communication with ACF was deficient and could have been more professional, I do not find that it gives rise to concern about her trustworthiness or integrity.

67There was no evidence before me to suggest that Ms. Thomas used the T Family money for her personal benefit. She explained that she handed the money to DF in the hospital, honestly believing that he would pay it back quickly. Ms. Thomas should not have given the T Family money to DF. However, her actions do not call into question her honesty or integrity. Ms. Thomas’ decision to loan DF money she received from the T Family was naïve and ill-advised. I am not satisfied however that it is evidence that she will not act honestly and with integrity moving forward.

68In summary, I conclude that the evidence presented simply does not support the Registrar’s proposal to revoke Ms. Thomas’ licence. There is no pattern of suspicious conduct; no evidence that Ms. Thomas used any of her clients’ funds for her own benefit; and ultimately no evidence of harm to her clients. While I have found that Ms. Thomas’ actions were deficient in her dealings with both families, I have also found that she did not act in a deceitful or untrustworthy manner. I find that the Registrar has not established that there are reasonable grounds for belief that the appellant will not carry on business in accordance with the law and with integrity and honesty.

69Given this experience, I expect that Ms. Thomas has learned that she must do a better job separating her personal relationships with her clients from her professional role. No matter how convenient, she should not have accepted e-transfers into her personal account, even though it was not prohibited by her employer.

VI. CONCLUSION AND ORDER

70Based on the above, the Tribunal substitutes its opinion for that of the Registrar and directs the Registrar not to carry out its proposal dated November 22, 2019, to revoke Ms. Thomas’ funeral pre-planner licence.

LICENCE APPEAL TRIBUNAL

___________________________

Luisa Ritacca, Member