Tribunals Ontario

Licence Appeal Tribunal

Citation: Toronto Muslim Cemetery Corporation v. Registrar, Funeral Burial and Cremation Services Act, 2022 ONLAT 13118 FBCSA Date: 05/10/2022 Appeal File Number: 13118/FBSA

Appeal from a Proposal of the Registrar under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 to Revoke the Cemetery Operator’s Licence of Toronto Muslim Cemetery Corporation

Between:

Toronto Muslim Cemetery Corporation Applicant

And

Registrar, Funeral Burial and Cremation Services Act, 2002 Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Appellant: Robert Cohen, Counsel

For the Respondent: Anne Marshall, Counsel

For the Intervenor:

HEARD by Videoconference on:

REASONS FOR ORDER

BACKGROUND

1Toronto Muslim Cemetery Corporation (“appellant”) appeals a Notice of Proposal dated January 7, 2021 issued by the Registrar, Funeral Burial and Cremation Services Act, 2002 to revoke its cemetery operator licence pursuant to of the Funeral Burial and Cremation Services Act, 2002, S.O. 2002, c.33 (the “Act”) and the Notice of Further and Other Particulars issued by the Registrar October 22, 2021 (the Notice of Proposal and Notice of Further and Other Particulars are collectively referred to as the “NOP”). The Bereavement Authority of Ontario is a delegated administrative authority under legislation¹ that regulates the funeral, burial, cremation and alternative disposition professions in Ontario and administers the Act with the Registrar (the Bereavement Authority of Ontario and the Registrar are collectively referred to as the “respondent”). The respondent administers the Act and its regulations in the public interest.

2The respondent alleges that the appellant’s past conduct is inconsistent with the intention and objective of the Act which is to protect the public interest and as a result warrants disentitlement to licensure under ss. 17(2) and 14(1)(c)(i) of the Act.

3The appellant denies the allegations in the NOP.

4The Tribunals May 12, 2021 order granted intervenor status to Muslim Green Cemeteries Corporation (“MGCC”), limited to providing final submissions at the hearing concerning the Tribunals disposition and the impact that any potential Tribunal disposition may have on MGCC. MGCC’s counsel did not attend but Mr. Yakub Patel, a representative of MGCC, was present throughout the hearing and was called as a witness by the respondent.

ISSUES

5The issues in this appeal are firstly, whether the past conduct of the appellant’s officers and directors in respect of the appellant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, and secondly, if the appellant is entitled to continuing licensure, whether it is appropriate to attach any terms and conditions on its licence.

RESULT

6The respondent has established that the past conduct of the appellant’s officers and directors in respect of the appellant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty. I direct the respondent to carry out the NOP. No costs are awarded to the appellant.

LAW

7Section 14 of the Act provides that an applicant is entitled to a licence, or renewal of licence, unless it is a corporation and, under s. 14(1)(c)(i) of the Act, the past conduct of the applicant’s officers and directors or interested person in respect of the applicant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty.

8Section 17(2) of the Act provides that, subject to the notice provisions in s. 18, the respondent may refuse to renew, suspend or revoke a licence if it is of the opinion that the licensee is not entitled to a licence under s. 14 or the licensee is in breach of a condition of the licence.

9The onus is on the respondent to show that there are grounds for revocation of a licence.

10After a hearing of an appeal, under s. 18(5) of the Act, the Tribunal may direct the respondent to carry out the NOP or may substitute its opinion for that of the respondent and attach conditions to its order or to a licence.

EVIDENCE AND ANALYSIS

Does the past conduct of the appellant’s officers and directors in respect of the appellant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty?

Positions of the Parties

11In summary, the respondent submits that the past conduct of the appellant’s officers and directors in respect of the appellant affords reasonable grounds for belief that the appellant will not carry on business in accordance with the law and with integrity and honesty and disentitles it to a licence under the Act. The past conduct to which the respondent refers is that the appellant sold undeveloped interment rights in violation of the Act, failed to comply with a court order directing it to issue interment rights certificates to MGCC, failed to comply with the respondent’s directives, failed to promptly respond to and rectify deficiencies in inspection letters, and displays a callous disregard for consumers.

12The appellant submits that there is no basis for the revocation of the appellant’s licence. The appellant denies it has failed to comply with a court order, it was justified in refusing to comply with the respondent’s directives because the respondent is incorrect that there are court orders requiring it to issue the interment certificates, MGCC has not paid for the interment certificates because it has not paid the care and maintenance fund amount and HST, that MGCC is the party violating the law because MGCC was selling the lots prematurely and before the municipality approved the sale of the lots, and the pricing practices of MGCC were not consistent with the court order of Justice Copeland. The appellant submits that I should direct the respondent not to carry out the NOP and award costs to the appellant.

Position of MGCC

13MGCC submits that, as a non-profit organization set up to help its members, it has been victimized by the conduct of the appellant because it already owns the interment rights but cannot sell them, the appellant is not trustworthy, will not comply with the Orders the court has made, will not co-operate with the respondent, and has been critical of its membership fees which is MGCC’s internal matter. MGCC submits that it has an interest in the outcome of this hearing because it has to protect the members of its religious community from having to buy other graves elsewhere. MCGG asks that the appellant’s licence be revoked, that the Tribunal to grant it a financial remedy for the money it has lost in its dealings with the appellant, and that one of the respondent’s witnesses be sanctioned because he was untruthful in his affidavit filed at the hearing.

Undisputed Facts

14The appellant was licenced as a cemetery operator in February, 2012.

15The appellant operates a 36 acre cemetery at 13076 Leslie Street, Richmond Hill, Ontario (the “cemetery”) that serves the Muslim community. The President of the appellant is Sabi Ahsan.

16In 2014 the appellant entered into a written contractual agreement (the “agreement”) with MGCC, regarding the development of the lands and the purchase of interment rights (“IR”) for a maximum of 6,000 undeveloped cemetery lots to be located in phase VI of the cemetery.

17MGCC also serves the Muslim community, albeit generally a different sect than the appellant.

18The appellant has rights and obligations under the Act and its regulations.

19After considering the totality of the evidence, and considering the submissions and cases put forward by the parties, and the submissions of the intervenor, I find that the respondent has met its burden of proof to establish that the past conduct of the appellant’s officers and directors in respect of the appellant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty. The following are my reasons.

The Appellant sold undeveloped IR in violation of the Act

20I find that the appellant sold undeveloped IR in violation of the Act and that this past conduct affords reasonable grounds for belief that the appellant’s business will not be carried on in accordance with the law and with integrity and honesty.

21Michael D’Mello, Deputy Registrar of the Bereavement Authority of Ontario (the “BAO”), and his colleagues Karie Draper and Kate Dafoe all testified about the legislative scheme for regulation of cemetery operators and about how the appellant’s past conduct demonstrates its violation of the Act and Ontario Regulation 30/11 (the “regulation”).

22Mr. D’Mello testified that the sale of IR in Ontario is a regulated activity and explained the relevant provisions of the Act and regulations. Mr. D’Mello’s testimony, which I accept given his knowledge and experience in this regulated industry, made it clear that the legislative requirements cannot be overruled by a private contract.² Mr. D’Mello testified that the legislation³ requires that a purchaser be given the description of the IR being purchased at the time of sale, including the precise location and dimension of the lot, the number and type of interment(s) permitted in the lot. He explained that IR cannot be sold by a cemetery operator until they have been properly developed. Plans showing the location and dimensions of every lot must be filed with the respondent prior to the sale of IR.⁴ Mr. D’Mello testified that the sale of IR is prohibited until ready for use for the protection of those who need to be able to use the grave when they purchase it. Mr. D’Mello testified that the surveys including the number, location and dimensions of the lots were filed with the respondent in 2018, four years after the appellant sold the IR to MGCC. Mr. D’Mello testified that although he was in regular contact with Mr. Ahsan starting in 2012 and provided the appellant with information about its obligations as a licenced cemetery operator, Mr. Ahsan did not ask him about the agreement before it was signed. Mr. D’Mello only found out about the agreement in 2016 by which time the appellant and MGCC were in a dispute about the agreement.

23Mr. Ahsan does not deny he knew undeveloped IR cannot be sold. Mr. Ahsan testified that the appellant had sold undeveloped IR to MGCC and acknowledged that IR cannot be sold before they are developed, before the lots are surveyed. Despite this, Mr. Ahsan, President of the appellant together with the Vice President of the appellant signed the agreement to sell the undeveloped IR, with apparent disregard for the governing legislation, the appellant’s obligations as a licensee, and the consumer protection purpose of the legislation.

24The legislation requires that when IR are sold, the cemetery operator must issue the IR certificate to the purchaser, which describes what the consumer has purchased.⁵ In the event that the IR certificate is not provided at the time of the contract with the purchaser, the cemetery operator must specify in the contract when the IR certificate will be provided.⁶

25I find that the appellant sold the undeveloped IR in May, 2014. The express terms of the agreement make it clear that it is an agreement for the sale of undeveloped IR by the appellant to MGCC. The agreement is titled “Agreement of Purchase and Sale of Interment Rights”. The appellant is described as the vendor and MGCC as the buyer. Article 1.0 titled “Sales of Interment Rights” provides that the appellant agrees to “sell” to MGCC a maximum number of 6,000 IR in phase VI. The cost of each “un-developed interment right” is stated to be $425.00. The “maximum cost for un-developed graves” is stated to be $2,550,000.00. Article 2 titled “Operational Payments” acknowledges that the buyer is to be responsible for “additional payments” to the care and maintenance fund (“CMF”) a minimum of $250.00, or the applicable percentage, per IR plus HST and development costs estimated at $100.00 per gravesite. Article 11 provides that the appellant shall handle all regulatory and corporate matters, excluding any terms specifically listed in the agreement. Article 8 appoints Sabi Ahsan as agent for the “seller”.

26Both Mr. Ahsan and Yakub Patel, who signed the agreement as President of MGCC, testified that the $425.00 per IR has been paid for some 5,793 lots. Both also testified that not one of the IR certificates has been issued by the appellant to MGCC to date. At no time prior to, or during this hearing, which was years after the surveys had been filed with the respondent, municipal approval given and the appellant had accepted payment of some $2.4 million, did the appellant issue any IR certificates.

27This violates the requirement in the Act and the regulation that when IR are sold, the cemetery operator must issue the IR certificate to the purchaser. This also violates the requirement in the Act and regulation that if the IR certificate is not provided at the time of the contract with the purchaser, the cemetery operator must specify in the contract when the IR certificate will be provided. The agreement is silent on this. IR certificates are not mentioned in the agreement.

28This also violates the requirement in the Act and regulation for a contribution to the CMF to be made on the sale of the IR⁷ out of the purchase price. As Mr. D’Mello explained in his evidence, the CMF is a legislative requirement with which a cemetery operator must comply to ensure that the cemetery can be kept in good repair in perpetuity and, the CMF protects municipalities, and their taxpayers financially should the cemetery be abandoned and have to be taken over by the municipality. Both Mr. D’Mello and Kate Dafoe testified that the CMF contribution is due on the initial sale of the IR. Based on their experience in this regulated industry, I accept their evidence.

29I find unpersuasive the appellant’s submission that it is not obligated to issue the IR certificates or contribute to the CMF until MGCC pays the additional payments for the CMF and HST. The appellant has already been paid some $2.4 million for the IR. The agreement sets the purchase price at $425.00. Even if the additional payments for CMF and HST can be said to be part of an additional purchase price, this does not relieve the appellant from its obligation to make the contribution to the CMF out of the purchase price it received. Mr. Ahsan testified that the appellant was paid the $425.00 for 5,793 IR for a total of some $2.4 million but that he had not placed any monies in the appellant’s CMF for this cemetery. If additional monies are owing for the CMF and HST, then this is a contractual issue between the appellant and MGCC which can be put forward in another forum, but which does not relieve the appellant of its obligations as a licensee to pay into the CMF and issue IR certificates following the sale in 2014. If the appellant wished to charge more for the purchase price of the IR then it could have done so. Here, attempting to add on an additional price to be paid later under the guise of a legislatively required deduction is not in keeping with the legislation which requires the consumer to know the total amount owed to the cemetery operator on purchase and the CMF contribution to be made within 60 days of sale.⁸

30I also find unpersuasive the appellant’s submission that the agreement was drawn without the benefit of legal advice, the agreement shifts responsibility for compliance with the law to MGCC and it is MGCC who has acted without regard to law in attempting to “sell” its IR to its members without having received IR certificates and without transparent pricing. The appellant chose to sign the agreement and, even if it did so without legal advice, it is responsible for the consequence that doing so would put it in violation of the legislation and its obligations as a licenced cemetery operator. As the only licensed party to the agreement, the appellant signed the agreement without taking the care to seek advice about any violation of the Act or regulations, unintended or otherwise. Mr. D'Mello testified that Mr. Ahsan did not seek any input from the respondent and did not inform the respondent about the agreement until some two years later.

31The appellant has failed in the years since 2014, even up to the date of this hearing, to make any significant effort to correct or mitigate its violations of the legislation by issuing the IR certificates or making payment into the CMF.

The Appellant failed to comply with a Court Order

32I find that the appellant failed to comply with a court order and that this past conduct affords reasonable grounds for belief that the appellant’s business will not be carried on in accordance with the law and with integrity and honesty.

33The Divisional Court has stated that “respect for the judicial process is fundamental to the question of whether an individual will carry on business in accordance with law and with integrity and honesty.”⁹

34On January 9, 2019, Justice Copeland of the Ontario Superior Court issued an Order in litigation brought by MGCC against the appellant which provided for IR certificates to be issued on the payment terms set out in the Order. Justice Copeland in paragraph 53 of her reasons confirmed that a previous Order of Justice Dow requiring specific performance by the appellant to do all things reasonably necessary to delegate full operational management of phase VI to MGCC is still binding.

35The relevant portion of this court order in this proceeding is that the court required IR certificates to be issued so that MGCC could issue IR certificates to the final user. Mr. Ahsan confirmed in his testimony that no IR certificates have ever been issued even though he could cause them to be issued and, in his view, only the appellant has the power to issue IR certificates. Mr. Ahsan views the Justice Copeland Order as incorrect even though the appellant’s attempt to appeal was unsuccessful.

36I find unpersuasive the appellant’s submission that the Justice Copeland Order is unclear and does not require it to do anything because the Order grants declaratory relief. I do not find the Order unclear and the refusal to comply with it indicates to me that Mr. Ahsan is not willing to carry on the appellant’s business in accordance with law and with integrity and honesty.

The Appellant failed to comply with directives from the respondent

37I find that the appellant failed to comply with directives from the respondent and that this past conduct affords reasonable grounds for belief that the appellant’s business will not be carried on in accordance with the law and with integrity and honesty.

38Following a complaint by MGCC to the respondent that the appellant had not issued the IR certificates, by letter dated October 2, 2020 the respondent directed the appellant to “assist MGCC by issuing the required certificates of interment rights when requested by MGCC”. Mr. Ahsan testified that he received this directive, but the appellant did not comply with it.

39By letter dated November 23, 2020 the respondent again directed the appellant to issue the IR certificates to MGCC “…within 30 days from the date of this letter” as this issue “…needs to be addressed immediately.” This letter reminded the appellant that a failure to comply may lead to enforcement measures being taken against it. Mr. Ahsan confirmed in his evidence that the appellant did not comply. Mr. Ahsan admitted in his cross-examination that this directive does not take any position on the financial dispute between the appellant and MGCC.

40The respondent has broad authority under s. 66(4)(6) of the Act to take action to resolve complaints. The appellant did not comply with these directives. As a result, it is clear from the past conduct of Mr. Ahsan that there are reasonable grounds for belief that the appellant’s business will not be carried on in accordance with the law and with integrity and honesty.

The Appellant failed to promptly respond to and rectify deficiencies in inspection letters

41I find that the appellant failed to promptly respond to and rectify deficiencies in inspection letters and that this past conduct affords reasonable grounds for belief that the appellant’s business will not be carried on in accordance with the law and with integrity and honesty.

42Kate Dafoe, a BAO inspector, testified that she conducts inspections of licensees to ensure compliance with the Act. In late 2020 Ms. Dafoe inspected the appellant’s premises and records during which she found deficiencies. One of the deficiencies was that the appellant buried individuals without burial permits from the municipality which constitutes a violation of the Vital Statistics Act. Ms. Dafoe testified that she is not aware of any other cemetery operator allowing burials without burial permits even during the COVID-19 pandemic.

43Ms. Dafoe sent a letter to the appellant asking for a response on all issues raised in the letter within 15 days.The appellant did not respond within 15 days. Ms. Dafoe testified that typically she has to follow up with licensees two or three times before the deficiencies identified in an inspection are corrected. With the appellant, Ms. Dafoe had to follow-up a total of nine times over the course of a year. Some of Ms. Dafoe’s letters were not responded to and some letters were met with a request for extension of time to respond. Once, Mr. Ahsan indicated he had health issues. June 6, 2021 Mr. Ahsan apologized for not having read Ms. Dafoe’s letter earlier. Ms. Dafoe testified that the amount of follow up required with the appellant is outside the realm of normal with other licensees.

44While some deficiencies from the inspection were rectified, the request for burial certificates has never been fulfilled up to the date of this hearing which means that the appellant continues to operate in violation of the Act. Mr. Ahsan testified that he knows burying someone without a burial permit is a violation of the law but said there were extraordinary circumstances because in March, 2020 cemeteries were directed by the BAO to open for interments and the municipality refused to issue burial permits and he misunderstood what was needed at that time.

45There is no significant evidence before me that the municipality refused to provide the burial certificates but, even assuming this is true, it is the obligation of the appellant to take whatever steps are necessary to comply with the law. A burial of a deceased person without a burial permit is a significant violation of the law.

46By failing to provide the required burial permits it is clear from the past conduct of Mr. Ahsan that there are reasonable grounds for belief that the appellant’s business will not be carried on in accordance with the law and with integrity and honesty.

The Appellant displays a callous disregard for consumers

47I find that the appellant displays a callous disregard for consumers and that this past conduct affords reasonable grounds for belief that the appellant’s business will not be carried on in accordance with the law and with integrity and honesty.

48Mr. Ahsan testified that he has post secondary education and is an experienced business person who runs the appellant and some 25 companies. Mr. Ahsan testified that he has developed over 6,000 home building lots. There are two other directors of the appellant who have experience in cemetery operation. Mr. Ahsan testified that he is aware of the Act, understands its content, knows it is his obligation to comply with it, understands the respondent administers the Act and can require him to do things under the Act, and that the focus of the Act is consumer protection.

49Despite this, it is clear from the evidence that Mr. Ahsan has caused the appellant to act in violation of the Act as a licensee. The result has been harm to consumers who could not use graves they believed they had purchased when their family members died.

50Two consumers, Altaf Hussain and Shakil Mughal, both testified that when their respective loved ones passed away, the graves they had purchased from MGCC were not available to them for burial. Mr. Hussain testified that he bought five graves from MGCC. He asked Mr. Ahsan about the dispute between the appellant and MGCC when his mother-in-law passed away, but Mr. Ahsan would not discuss it with him. Because of his age and the refusal of Mr. Ahsan to provide information, Mr. Hussain feared the dispute would not be resolved in his lifetime and wanted two graves that he was sure could be used for he and his wife. Mr. Ahsan arranged for the appellant to sell him two more graves in addition to the five graves he could not use.

51Mr. Mughal testified that he had purchased 12 graves from MGCC so that his family could be buried together in the appellant’s cemetery. When his father died in 2018, Mr. Mughal found out the graves he had purchased from MGCC could not be used because the appellant refused to issue the IR certificates. Mr. Mughal purchased a grave at a much higher cost in another cemetery in haste so that his father could be buried within one day in accordance with his religious beliefs. Mr. Mughal testified that this was very difficult emotionally and financially and he worries about affording graves for his large family.

52Mr. Ahsan testified that he felt no obligations to these two consumers, described them as “foolish”, that the rule of caveat emptor should apply, and even though the appellant has collected payment from MGCC for these graves and only the appellant can issue the IR certificates, failed to acknowledge any obligations to these consumers or to the pubic regarding the activities of the appellant. Mr. Ahsan testified in cross-examination that, despite the agreement with MGCC, he could sell the IR in phase VI to another buyer even though MGCC has paid some $2.4 million to the appellant because the whole price has not been paid. Mr. Ahsan testified he has not issued the IR certificates to MGCC because of this financial dispute.

53The appellant could have issued the IR certificates to these consumers and continued its financial claim against MGCC in another forum which would have made these consumers whole while not affecting the appellant’s ability to recover funds it believes are owing to it. This conduct of Mr. Ahsan on behalf of the appellant demonstrates a callous disregard for consumers who are now unable to use graves. This has resulted because consumers purchased from MGCC following the appellant’s sale to MGCC of undeveloped IR in violation of the legislation. This conduct clearly demonstrates that Mr. Ahsan, in respect of the appellant, has acted with disregard for the law and with a lack of integrity and honesty.

Is Revocation of the Licence Appropriate?

54There can be cases when the imposition of conditions can adequately protect the public interest even if the respondent has proven a ground of refusal. I have considered whether revocation of the licence is appropriate here or whether conditions might be an appropriate alternative to revocation.

55Here I find that continued licensure with conditions is not an appropriate alternative to revocation of the appellant’s licence because the appellant’s business activities in this regulated industry appear to have been undertaken with callous disregard to the possible harm to members of the public. This tends to indicate that it is more likely than not that the appellant will act in a way that brings possible harm to members of the public in the future.

56I have considered the submissions of both parties with respect to proposed conditions on the appellant’s licence and have found that the proposed conditions are not an appropriate alternative to revocation of its licence.

57The respondent submits that the appellant’s past conduct necessitates a revocation of its licence. However, if the Tribunal does not so find, then the respondent suggests the appellant comply with the following conditions:

i. Appellant to issue to MGCC all 5,793 interment rights certificates for the lots it sold to MGCC within 30 days of this decision;

ii. Appellant to comply with all future directions from the respondent to transfer or re-issue interment rights certificates to consumers who purchased interment rights from unlicensed organizations that the appellant so to within 30 days of this decision;

iii. Appellant to inform in writing all unlicensed organizations that purchase more than 20 interment rights from the appellant at one time, of their obligations upon resale of the interment rights to a third party; and

iv. Appellant to respond to all communications from the respondent within 10 business days.

58The appellant disputes that the respondent has met its burden of proof. However, if the Tribunal does not so find, then the appellant suggests that I should exercise my discretion to put conditions in place to balance the rights, interests, and obligations of the parties consistent with the development agreement, the Copeland court order and the applicable legislation as follows.

59The appellant proposes that MGCC first pay the balance of the CMF and HST and sufficient funds to cover the payment discrepancy in trust to await the outcome of binding arbitration or other efficient process to resolve the parties’ respective entitlements to these funds. The appellant proposes that I should consider it’s proposal, to have MGCC pay funds in trust, as a condition to the conditions suggested by the respondent so that the appellant’s licence will not be revoked unless it fails to transfer the interment rights certificates to MGCC, upon MGCC first paying the balance of the CMF and HST and funds to cover the payment discrepancy in trust to await the outcome of binding arbitration or other efficient process to resolve the parties’ respective entitlements to this fund. The appellant submits that it is prepared to comply with reasonable conditions rather than suffer the disproportionate penalty of the loss of its cemetery operator’s licence and that this is in the best interests of all parties concerned including the members of the Muslim community.

60I do not find the appellant’s proposal regarding conditions to be fair or reasonable in these circumstances. Firstly, MGCC is not a party to this proceeding, except as an intervenor granted limited rights to make closing submissions. I am not prepared to make an order requiring MGCC to do anything, let alone pay monies into a trust account. Monetary issues between the appellant and MGCC are properly dealt with in another forum and not by the Tribunal. Secondly, the appellant’s proposed condition would effectively turn this proceeding into a monetary collection mechanism for the appellant. There is no basis in the Act for the Tribunal to act in this capacity. Thirdly the appellant’s proposed condition effectively sets a financial pre-condition for its co-operation with the respondent.

61I agree with the respondent’s submission that the appellant’s past conduct necessitates a revocation of its licence. The conditions put forward by the respondent, as an alternative, would not in my view, be in the public interest as these conditions are all things that the respondent has asked the appellant to do in the past with limited success, or might be reasonably expected to be done by a licensee. The past conduct of the appellant demonstrates that it has been unwilling to promptly abide by requests made by the respondent before. Nothing in this hearing has persuaded me that the appellant is willing to be more co-operative with the respondent than in the past and, to the contrary, I am persuaded that the appellant wishes to continue to be licenced with little regard for the respondent’s requests and callous disregard for the consequences to affected members of the public. In these circumstances, revocation of the appellants licence is proportional and just.

Costs

62The appellant requests costs of this proceeding. I decline to exercise my discretion to award costs to the appellant.

63I am not satisfied that there is any basis to find that respondent’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended February 7, 2019, (the “Rules”) during the conduct of the proceeding This is a high bar to meet and the appellant has not met it.

Relief Requested by MGCC

64Although both the oral and written submissions of MGCC have been considered, the Tribunal cannot grant MGCC a financial remedy for the money it has lost in its dealings with the applicant as requested by it, and cannot sanction one of the respondent’s witnesses because MGCC believes he was untruthful in his affidavit filed at the hearing as requested by it because MGCC is not a party to this proceeding and has been given limited rights as an intervenor to express its view in submissions at the conclusion of the hearing only. This does not entitle MGCC to any relief. The powers of the Tribunal are limited to those provided under the Act in this proceeding between the applicant and the respondent.

65The written submissions of MGCC attach numerous documents which, because of MGCC’s limited rights as an intervenor, MGCC is not entitled to tender as evidence, have not been admitted by me as evidence or considered by me as evidence at this hearing.

ORDER

66For the reasons above, the respondent has established that the past conduct of the appellant’s officers and directors in respect of the appellant affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty. I direct the respondent to carry out the NOP. No costs are awarded to the appellant.

Footnotes

1. 1Safety and Consumer Statutes Administration Act, 1996, S.O. 1996, c.19.
2. 2Ontario Regulation 30/11, s. 130(a) made under the Funeral Burial and Cremation Services Act, 2002, S.O. 2022, c.33.
3. 3Ontario Regulation 30/11, s. 126(b).
4. 4Ontario Regulation 30/11, s. 147.
5. 5Funeral Burial and Cremation Services Act, 2002, S.O. 2022, c.33, s. 48(d) and O.Reg 30/11 s. 126(c).
6. 6Ontario Regulation 30/11, s. 126(c).
7. 7Ontario Regulation 30/11, ss. 91(2), 95(4) and 168; Funeral Burial and Cremation Services Act, 2002, S.O. 2022, c.33, s. 5(3)(b).
8. 8Ontario Regulation 30/11, ss. 87(1-6) and 87(2).
9. 9Ontario v. Mander, 2018 ONSC 1795, para 25 and 29. (Div. Ct.)