Appeal from a Notice of Proposal and Order of the Registrar, Funeral, Burial and Cremation Services Act, 2002 - to Revoke Licence and to Immediately Suspend Licence
Between:
Derek Dwayne Maschke Appellant
-and-
Registrar, Funeral, Burial and Cremation Services Act, 2002 Respondent
INTERIM DECISION AND ORDER
ADJUDICATOR:
Stephen Scharbach, Member
APPEARANCES:
For the Appellant:
Michael Burokas, Counsel
For the Respondent:
Anne Marshall, Counsel
November 4, 2021
A. Overview
1Derek Dwayne Maschke (appellant”) holds a Funeral Director – Class 1 licence issued under the Funeral, Burial and Cremation Services Act, 2002 (“Act”). He owns and operates two licenced funeral establishments.
2On October 17, 2021, the Registrar appointed under the Act (“Registrar”) issued a Notice of Proposal (“NoP”) to revoke the appellant’s licence. The Registrar alleges that the appellant’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.
3That past conduct includes the appellant’s alleged failure to require that face masks be worn at his establishments or comply with a directive issued by the Registrar to implement a COVID-19 vaccine policy for staff.
4Under the Act, if the Registrar issues a NoP, he may also temporarily suspend a licence if the Registrar “considers it in the public interest to do so”. In this case, along with the NOP to revoke, the Registrar also issued an order suspending the appellant’s licence effective October 17, 2021 (“suspension order”).
5According to the Act, the suspension order expires 15 days after the appellant requests a Tribunal hearing regarding the NoP - unless a hearing is commenced - in which case the Tribunal may extend the expiration of the order until the hearing is concluded.
6In this case the hearing was commenced on November 4, 2021 and the Registrar requested that the Tribunal extend the suspension order until the hearing is concluded. The appellant opposed that request and both parties called evidence and made submissions on that issue.
7The hearing was adjourned at the end of the first day and I extended the suspension order until my deliberations on this issue were concluded. At this point I am only deciding whether continuation of the suspension until the conclusion of the hearing is in the public interest.
8My deliberations are now complete and for the reasons set out below, I have decided to extend the suspension order until the conclusion of the hearing.
9The hearing will resume at a date to be set to consider the appellant’s appeal of the Registrar’s NoP. The parties expressed an interest in participating in a case conference to discuss the possibility of resolution and schedule a hearing. They provided mutually agreeable dates and, as set out below, this hearing is adjourned to a case conference on one of those dates as selected by the Tribunal’s scheduling office.
B. Position of Registrar
10According to the Registrar, extension of the suspension order is in the public interest because there is a significant risk that if the suspension is lifted the appellant will not carry on business in accordance with public health requirements and directives issued by the Registrar requiring licensees to take measures intended to reduce the spread of COVID-19.
11According to the Registrar, the Bereavement Authority of Ontario (“BAO”) has received two recent public complaints that the face mask requirements mandated by both the Provincial government and a Registrar’s directive were not followed at the appellant’s establishments.
12In addition, the Registrar required funeral establishments to implement a COVID-19 vaccine policy by September 10, 2021 which essentially would require staff at the appellants’ establishments to either confirm vaccination or submit to testing every 7 days or less. According to the Registrar, despite requests and warnings, the appellant failed to implement the required vaccine policy. He apparently has strong opinions regarding the safety and necessity of COVID -19 vaccines and feels that requiring staff to either accept a vaccine or submit to regular testing violates the Canadian Charter of Rights and Freedoms (“Charter”).
13The appellant eventually produced a vaccine policy, but it was only received by the Registrar after the NoP and suspension order were issued. Even then, the policy was deficient, primarily because it contained no provision for mandatory regular COVID testing for those who are unvaccinated.
14According to the Registrar, these facts demonstrate that there is a significant risk that the appellant will not comply with COVID-19 requirements while operating his funeral establishments and it is therefore in the public interest to extend the suspension order until the conclusion of the hearing.
C. Position of the Appellant
15The appellant’s position is that the public interest - specifically compliance with COVID-19 public safety requirements - will not be placed at risk if the suspension is lifted now. According to the appellant, all COVID-19 public health requirements have been and will continue to be followed at his establishments. The appellant disputes the two complaints regarding face masks and notes that they are just allegations that have not yet been investigated or confirmed.
16With respect to the Registrar’s directive to implement a vaccine policy, the appellant states that the Register’s authority to require implementation of such a policy is questionable and the appellant should not be faulted for being cautious about following it.
17The appellant states that although he was hesitant to implement a vaccine policy, he did eventually adopt one and sent it to the Registrar. It was received by the Registrar after the NoP and suspension order were issued, but it was mailed the day before they were issued. In other words, the appellant eventually complied with the Registrar’s requests to implement a policy and did not merely implement a policy because his licence was suspended.
D. Decision
18I conclude that extension of the suspension order is in the public interest and I have ordered that it be extended until the conclusion of the hearing on the NoP.
E. Reasons
19The Registrar relies on essentially the same facts to support both its NoP and the suspension order. At this point I am only deciding whether the suspension order should be extended and my decision is based on the limited information that was presented on that issue. The hearing will continue later to consider the Registrar’s NOP and presumably additional, and possibly more detailed, information will be presented by the parties at that point.
20However, without deciding the issues raised in the NOP, I note that there is credible information suggesting that the appellant has not complied with the face mask requirement at his establishments on two occasions and has not put into place a mandatory vaccine policy required by the Registrar.
21The information also suggests that the appellant’s failure to implement a vaccine policy is related to his firmly held opinions concerning the COVID-19 vaccine and his disagreement with the mandated policy. Considering all of those circumstances in their totality, I conclude that extension of the suspension order until the hearing is concluded is in the public interest.
(i) Alleged Non-Compliance with COVID-19 Face Mask Requirement
22The BAO received two on-line complaints from members of the public – one on August 27, 2021 and another on September 2, 2021 that suggest that the appellant was not requiring that his staff or the public wear face masks at his establishments.
23The August complaint was from a person who stated that she attended one of the appellant’s establishments to arrange for a cremation service. The complainant stated that none of the staff wore face masks inside which, if true, would likely be a breach of public health requirements imposed by the Province as well as a breach of a directive issued by the Registrar.
24The September complainant stated that based on her personal experience and word of mouth, the appellant’s establishments do not follow any COVID protocols except contact tracing. She stated that she attended a 60-person visitation at one of the appellant’s establishments with only one person wearing a mask.
25The appellant responded to those complaints shortly after they were brought to his attention as requested by the BAO. He disagrees with the factual accuracy of the complaints, questions the complainants’ true motivation for making them, and takes issue with a 60-person visitation having occurred without masks. The appellant argues that the complaints have not yet been investigated or confirmed and they should be given little weight.
26I take the appellant’s point that the complaints have not been substantiated through an investigation. However, for the purposes of determining whether extension of the suspension order is in in the public interest, I note that the BAO has received two separate complaints regarding the appellant’s alleged non-compliance with COVID-19 related public health requirements. Although the complaints have not yet been investigated, they appear to be credible at least on their face.
27In my view, when considered along with the information below, they support my overall conclusion that extension of the suspension order is in the public interest.
(ii) Alleged Non-Compliance with Registrar’s Directive to Implement a Vaccine Policy
28The Registrar alleges that the appellant failed to comply with a Registrar’s directive requiring licensees to implement, by September 10, 2021, a mandatory COVID vaccination policy that essentially requires funeral establishment employees, staff, contractors, volunteers, students and interns (“staff”) to either provide proof of vaccination or submit to rapid COVID testing at a minimum of once every 7 days.
29The available information indicates that:
(i) The Registrar issued the Directive to all licensees on September 2, 2021 and it went into effect on September 10, 2021.
(ii) In early September 2021, the BAO became a aware of a statement made on social media by the appellant’s spouse which suggested that she and the appellant were owners of funeral homes and they were against the proof of vaccine or “health pass” requirement that was then being introduced by the Province and would not comply with it.
(iii) As a result, Mr. Paul LeRoy, a BAO compliance manager, contacted the appellant by email on September 17, 2021 and asked for the appellant’s vaccination policy.
(iv) The appellant and Mr. LeRoy spoke on September 29, 2021. According to Mr. LeRoy, the appellant expressed his disagreement with the requirement that staff be vaccinated and felt it was a violation of the Charter. Mr. LeRoy pointed out that the vaccination policy contained an option for unvaccinated staff to provide negative test results instead, the appellant indicated that he would not test his staff. He felt the policy put him at risk of being sued. He did not agree to implement a vaccination policy but asked for an email setting out the BAO’s position on how the vaccination policy relates to the Charter.
(v) Mr. LeRoy followed up on September 30, 2021 with another email pointing out that the directive required the appellant to implement the policy by September 10, 2021 and requesting that he confirm compliance with the directive and include a copy of the implemented policy by October 1, 2021.
(vi) No response was received and on October 12, 2021, the Registrar made a written request under s. 111 of the Act that the appellant provide the Registrar with a copy of his implemented vaccination policy by October 13, 2021.
(vii) No response was received to that request either, and on October 17, 2021 the Registrar issued the NoP and suspension order.
(viii) Shorty afterward, the Registrar received a copy of the appellant’s vaccination policy which was apparently mailed on October 16, 2021. According to the Registrar, the policy is deficient - it contains no provision for regular testing of staff members.
(ix) Along with its vaccination policy, the appellant sent to the Registrar a document entitled “Vaccine Notice of Liability”. It purports to notify the Registrar of “your official and personal notice of liability” and contains 6 pages of analysis and reasons concluding (among other things) that the use of COVID-19 vaccine is not recommend or required, that treatments being marketed as COVID -19 vaccines are actually “an experimental gene therapy”, and that “numerous doctors, scientists, and medical experts are issuing dire warnings” about COVID-19 injections “including but not limited to death, blood clots, infertility, miscarriages, Bells Palsy, cancer…”
30The appellant argues that the Registrar’s statutory power to issue a binding directive to implement a mandatory vaccine policy is arguable and the appellant should not be faulted for questioning it or being hesitant to comply with it.
31He also argues that although he may have been hesitant to implement the policy, once he received the s. 111 request he complied and sent a copy of the written policy to the Registrar by mail on October 16, 2021, a day before the NoP and suspension order were issued. It was implemented to comply with the Registrar’s s. 111 request and not as a reaction to the suspension.
32In my view that matters little for the purpose of determining whether extension of the suspension order is in the public interest.
33What is significant at this point is that there is credible information to support the conclusion that appellant failed to comply with a Registrar’s directive intended to protect public health by ensuring that funeral establishment staff are either vaccinated or provide negative test results on a regular basis.
34The evidence presented so far suggests that the appellant did not comply with the Registrar’s directive to implement the vaccine policy by September 10, 2021 as required, nor did he implement one after an email request September 17, a telephone conversation with Mr. LeRoy on September 29, and another email request on September 30, 2021. The Registrar finally received a vaccination policy after the Registrar made a s. 111 request. Even then, the policy left out the crucial component of requiring regular testing of unvaccinated staff.
F. The Public Interest
35A consideration of whether to extend the suspension order involves balancing the public interest with that of the licencee to maintain his licence.
36In my view there is an important public interest at stake in this case – specifically the public interest in ensuring that funeral directors and funeral establishments adhere to public health measures imposed by the Province of Ontario and the Registrar to stop the spread of COVID-19.
37The COVID-19 pandemic has challenged the government, the public and regulated industries such as the bereavement sector to take unpreceded steps to reduce the transmission of COVID-19 and the Registrar’s directive appears to be one of them.
38Funeral establishments are high risk environments. Staff deal directly with high risk institutions such as hospitals and long-term care facilities. Funerals and visitations are often attended by older, more vulnerable members of the public, and may involve close personal interaction (hugging, touching, consoling) of many people in confined spaces.
39Balanced against that public interest, I must consider the impact of continued suspension on the appellant. The evidence indicates that while the appellant’s licence is under suspension, his funeral establishments have been able to continue to operate under the direction of other licensed employees. Thus, while the suspension likely involves additional cost, inconvenience and, according to the appellant, some reputational damage, his funeral establishments continue to operate.
40In my view, the potential risk to the public in the present circumstances outweighs the negative impact that the suspension will likely have on the appellant and his businesses. Ultimately, I am satisfied that extension of the suspension order until the conclusion of the hearing is in the public interest.
G. Order
41The expiration of the Registrar’s October 17, 2021 immediate suspension order is extended until the hearing is concluded.
42This hearing is adjourned to a case conference scheduled for November 23, 2021 at 9:30am.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: November 18, 2021