Date: 2022-10-04

Appeal from a Notice of Proposal of the Registrar, Funeral, Burial and Cremation Act, 2002, to refuse to renew a licence under the Funeral, Burial and Cremation Act, 2002, S.O. 2002, c. 33

Between:

Jennifer Anderson

Appellant

and

Registrar, Funeral, Burial and Cremation Act, 2002

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Jennifer Anderson, Self-represented

For the Respondent: Jay Blair, Counsel Cheryl Wald, Paralegal

Heard by Videoconference: September 16, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1Pursuant to a Notice of Proposal dated March 16, 2021 (the “NOP”), the Registrar, Funeral, Burial and Cremation Services Act, 2002 (“Registrar”) proposed to refuse to renew the licence of Jennifer Anderson (the “appellant”) as a Funeral Director Class 1 (“Licence”) under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 (the “Act”) and regulations.

2The Registrar proposes to refuse to renew the Licence on the grounds that:

a. under s. 14(1)(b)(ii) of the Act, the past conduct of the appellant affords reasonable grounds for belief that she will not carry on business in accordance with the law and with integrity and honesty; and

b. under s. 14(1)(a)(i) of the Act, the appellant is in contravention of the Act or the regulations.

3Under s. 14(1) of the Act the appellant is entitled to a renewal of her licence unless the Registrar can prove, on a balance of probabilities, that one of the above grounds for refusal applies.

4In 2020, the appellant was charged with eight criminal offenses including fraud, theft and breach of trust related to the misappropriation of funds from a youth soccer association. She admits the facts leading up to those charges and has since pled guilty to one of the charges. The Registrar argues that the appellant’s conduct leading to the charges and conviction provides sufficient basis to deny licensure under s. 14(1)(b)(ii) of the Act.

5In addition, the Registrar alleges that the appellant’s licence expired in January 2021 and that the appellant has since acted as a funeral director, contrary to the Act and that this provides sufficient basis to deny licensure under s. 14(1)(a)(i) of the Act.

6The appellant argues that she has been licensed as a funeral director for more than 25 years without incident and that the conduct leading to the criminal charges in 2020 were unrelated to the business activities that are regulated by the Act. The appellant says her criminal activity was an isolated incident and that she has been punished for that and should not be punished further by the loss of her licence. She is in counselling and says her criminal conduct will not be repeated in the future. The appellant says that her position as a funeral director does not involve the handling of money and that her conduct leading to the criminal charges does not provide reasonable grounds for belief that she will not carry on business in accordance with the law and with integrity and honesty.

7Under s. 18(5) of the Act, after a hearing the Tribunal may direct the Registrar to carry out the NOP or substitute its opinion for that of the Registrar and may attach conditions to its order or to a licence.

8For the reasons which follow, I find that the Registrar has satisfied the onus on it to show 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. I find that that there are no terms and conditions that would sufficiently protect the public and I direct the Registrar to carry out the NOP.

B. ISSUES

9The first issue to be decided is whether the past conduct of the appellant affords reasonable grounds for belief that she will not carry on business in accordance with the law and with integrity and honesty.

10The second issue to be determined is whether the appellant is in contravention of the Act or the regulations.

11If the answer to either of these questions is in the affirmative, then the third issue to be decided is whether refusal to renew is the only outcome or whether the public interest can be adequately protected through the issuing of a licence with conditions.

C. EVIDENCE AND ANALYSIS

Issue I: Past conduct of Anderson

12The Registrar argues that the past conduct of the appellant affords reasonable grounds for belief that she will not carry on business in accordance with the law and with integrity and honesty. With respect to the standard of proof, in interpreting similar wording in another regulatory statute, the Ontario Court of Appeal stated as follows:

The standard of proof provided by s. 6(2)(d) of the Act is that of “reasonable grounds for belief”… As applied to this case, s. 6(2)(d) of the Act required the Registrar simply to show that Mr. Barletta’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with law and integrity and honour. The Registrar does not have to go so far as to show that Mr. Barletta’s past or present conduct make it more likely than not that he will not carry on business as required.¹

13The standard of proof must be more than “mere suspicion” and will be found to exist “where there is an objective basis for the belief which is based on compelling and credible information.”²

14The facts in the present appeal are not in dispute.

15The appellant was licensed as a funeral director since 1997. The Registrar does not allege that the appellant’s conduct as a licensed funeral director provides grounds for belief that she will not act in accordance with the law or with integrity and honesty. Rather, the Registrar is concerned with the appellant’s conduct outside of her duties as a funeral director.

16In 2017 and 2018, the appellant was the treasurer on the Board of Directors of a local youth soccer club. Through multiple acts of fraud, the appellant misappropriated a large portion of players’ registration fees for her own use. She deposited registration fees given to her by soccer registrants into her own bank account rather than that of the soccer club and wrote a number of cheques from the soccer club’s account to herself, at times forging the signature of another member of the Board on the cheques. The total amount of money misappropriated by the appellant was about $14,000.

17As the result of the appellant’s conduct, the soccer club was in serious financial trouble and was only able to continue operating in 2018 with the help of local businesses.

18Eventually, the appellant was caught and charged with crimes including fraud, theft, forgery, and breach of trust. She pled guilty to one count of fraud over $5,000 as part of a deal with the prosecutor.

19At the sentencing hearing with respect to the criminal conviction, it was noted that the appellant pled guilty at an early stage and made restitution of the monies taken from the soccer club. The appellant received an 18-month conditional sentence which expires early in 2024. The sentence carries with it conditions including that she undergo counselling as directed by her court-appointed supervisor.

Analysis

20The Tribunal has previously held that the Act is consumer protection legislation and that criminal convictions are highly relevant in determining whether a person is more likely than not to conduct their business in accordance with law and honesty and integrity.³

21The evidence at the hearing is that, as a funeral director, the appellant is in a position where she would normally be expected to have access to money belonging to her clients. She is required to negotiate contracts, accept monies from clients to be used to fund goods and services associated with funeral services and receive money from third party sources such as insurance companies who might be required to contribute to the cost of services. The funeral director is responsible for the care of the deceased person with whom they have been entrusted and to ensure that the goods and services contracted for are delivered.

22The Registrar noted that a funeral director’s clients are often under significant stress and are especially vulnerable when contracting for funeral services. It argues that the consumer protection purpose of the Act is particularly significant in such circumstances. Clients rely on the funeral director to act in accordance with the law, and with honesty and integrity.

23The Registrar argues that the appellant’s criminal conduct, in misappropriating the soccer club’s funds as she did, provides grounds for belief that she might act contrary to law, dishonestly and without integrity as a funeral director in the future. Moreover, the Registrar argues that, in the future, the appellant’s clients will likely include persons who were impacted by her fraud involving the soccer club or who are aware of that conduct, since the community in which the appellant does business is small and her crime was well publicized. The Registrar argues that public confidence is an important consideration and that allowing the appellant to maintain her licence in the circumstances will diminish the public’s confidence significantly.

24The appellant notes that she has been a licensed funeral director for more than 25 years without incident and that she is currently complying with the terms of her conditional sentence including repaying the money she stole and attending counseling. Her conduct was not connected with the funeral services business, and she has accepted responsibility for her conduct. She argues that her conduct is not sufficient to show reason for belief that she will not carry on business in accordance with the law, with honesty and integrity in the future.

25Based on the evidence presented at the hearing, I find that the Registrar has satisfied its onus.

26The appellant’s conduct involves crimes of dishonesty. She was entrusted with money required to fund the soccer club for which she was the treasurer. A funeral director’s duties typically include handling a client’s money. The fact that the appellant has recently misappropriated money she was entrusted with provides reason to believe that she might do so again. At the hearing, she provided no explanation for her past conduct which might mitigate the concern that she might conduct herself similarly in the future as a funeral director.

27While the appellant gave evidence that the funeral operator that employs her has a manager and that she does not have access to clients’ money as part of her activities as a funeral director, I do not find that this is sufficient to alleviate the concern with respect to her conduct. The manager referred to by the appellant works out of Ottawa, which is more than 1500 km away. Clients dealing with the appellant would have no way of knowing that she is prohibited from handling their money unless she specifically tells them that.

28Moreover, the appellant did not present evidence that demonstrates that she would not have the ability to access money belonging to others as a funeral director. That her employer has established an internal procedure which places the handling of money in the hands of someone else does not mitigate my concern in this case since its effectiveness depends on the appellant following that procedure. The soccer club from whom she stole required that there be two signatures on its cheques and the appellant simply forged the second signature when she needed to.

29The Act requires a belief in the honesty and integrity of licensed funeral directors because they are in a position which allows them the opportunity to act contrary to law, dishonestly and without integrity. If the appellant chooses to be dishonest or to act unlawfully with respect to her clients, the manager to whom she reports being 1500 kms away, is not likely to prevent her from doing so.

30I also find it concerning that, at the hearing, the appellant provided no explanation for her past criminal conduct. While she asserts that she will not commit criminal or dishonest acts in the future, no adequate evidence was presented that would provide a reason to believe that assertion.

31In my view, the appellant’s conduct in misappropriating money belonging to the youth soccer club for which she was the treasurer, affords reason for belief that she will not carry on business in accordance with the law, with honesty and integrity.

Conclusion Regarding Issue I

32Based on the above, I find that the Registrar has satisfied its onus and has proved that the past conduct of the appellant affords reasonable grounds for belief that she will not carry on business in accordance with the law and with honesty and integrity.

Issue II: Is Anderson in contravention of the Act or regulations?

33The Registrar says that the appellant continued to work as a funeral director after her licence expired in December 2020 and her licence was not renewed. Although this may have been the case based on statements she made at her sentencing hearing, it also appears that the Registrar was aware that she continued to do so and did not tell her that she should stop working until the appeal was determined. There was little evidence or argument presented on this issue at the hearing and I am not satisfied that the Registrar has proven this ground for refusing to renew the appellant’s licence.

Issue III: Appropriate Outcome

34Having found that there are reasonable grounds to believe that the appellant will not carry on business in accordance with the law, and with integrity and honesty, I must now consider the appropriate remedy. The Registrar and the Tribunal have the statutory discretion to consider the appellant’s circumstances and determine whether the public interest requires outright refusal to licence or whether the public interest can be adequately protected through granting a licence with conditions.

35I do not find that this is an appropriate case for conditions. The appellant has presented insufficient evidence to satisfy me that she has changed and that the concerns noted above are no longer an issue. Also, the effectiveness of conditions on the appellant’s licence is dependant, at least in part, on the appellant adhering to those conditions which, in turn, requires that the appellant act in accordance with the law and with honesty and integrity. The evidence presented at the hearing does not support a finding that the appellant can be relied on to comply with conditions.

36I find that there is insufficient evidence before the Tribunal to suggest that conditions would be appropriate. I decline to impose conditions on the ground that I am not satisfied conditions would sufficiently protect the public.

D. Conclusion

37I find that the Registrar has satisfied its onus to show 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.

38I find that that there are no terms and conditions that would sufficiently protect the public.

E. ORDER

39The Tribunal directs the Registrar to carry out its proposal to refuse to renew the appellant’s licence as a Funeral Director Class 1.

Footnotes

1. 1Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 at 18-19.
2. 2Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114.
3. 3Jervis v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 CanLii 8247 (ON LAT); Kenneth Hudson v. Registrar, Baliffs Act, 2018 CanLII 105354 (ON LAT)