Licence Appeal Tribunal File Number: 14593/FBCSA
In the matter of an Appeal from a Proposal of the Registrar under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 to Refuse to Renew the licences of Luann M.H. Jones and Covenant Funeral Homes Inc.
Between:
Luann M.H. Jones and Covenant Funeral Homes Inc.
Appellants
and
Registrar, Funeral, Burial and Cremation Services Act, 2002
Respondent
DECISION AND ORDER
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Appellants:
Luann M.H. Jones
For the Respondent:
Jay Blair, Counsel
Cheryl Wald, Paralegal
Held by videoconference:
April 22, 23, 24, 25, 29 and May 28, 2024
OVERVEW
1Luann M.H. Jones and Covenant Funeral Homes Inc. (the "appellants") appeal the Notice of Proposal, dated January 26, 2023, and the Notice of Further and Other Particulars, dated July 31, 2023, and the Notice of Second Furthers and Other Particulars, dated October 24, 2023 (collectively referred to as the "NOP"), to refuse to renew their licences as a Funeral Director – Class 1 (embalming), and as a Funeral Establishment Operator – Class 1, respectively, issued by the Registrar under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 (the "Act"), and the Regulations.
2At all material times, Ms. Luann M.H. Jones ("Ms. Jones") was the sole owner, officer and the person in charge of the day-to-day operations of Covenant Funeral Homes Inc. ("Covenant").
3The grounds for the NOP in regard to the appellant Ms. Jones are that:
i. she cannot reasonably be expected to be financially responsible in the conduct of business under section 14(1)(b)(i) of the Act;
ii. her past conduct affords reasonable grounds for the belief that she will not carry on business in accordance with law and with honesty and integrity under section 14(1)(b)(ii) of the Act;
iii. she provided false statements in an application for renewal of licence in contravention of section 14(1)(b)(iii) of the Act;
iv. she failed to comply with a Registrar's Order for Information under section 111 of the Act, in contravention of section 14(1)(a)(i) of the Act;
v. she acted in a manner relevant to the practice of funeral directing that, having regard to circumstances, would reasonably be regarded as unprofessional conduct, pursuant to O. Reg. 32/111, particularly subsections 8(s) and 8(u); and
vi. she provided an inaccurate response when asked if she was in possession of human remains related to the business of Covenant contrary to the requirements of s. 111 of the Act and O. Reg. 32/11 subsection 8(u).
4The grounds for the NOP in regard to the appellant Covenant are that:
i. the past conduct of Ms. Jones, an officer, director and at all relevant times the directing mind of Covenant, affords reasonable grounds for the belief that Covenant will not carry on business in accordance with the law and with honesty and integrity under section 14(1)(c)(i) of the Act;
ii. Ms. Jones made false statements on behalf of Covenant in applications for renewal of licensure contrary to section 14(1)(c)(ii) of the Act;
iii. having regard to the financial position of Ms. Jones, Covenant's sole officer, director and directing mind, Ms. Jones cannot be reasonably expected to be financially responsible for the conduct of the business under section 14(1)(d)(i) of the Act;
iv. Covenant is unable to provide the resources and facilities, namely a business premises for the operation of a funeral home, under section 14(1)(d)(ii) of the Act;
v. having regard to the financial mismanagement and improper methods to collect outstanding accounts, there are reasonable grounds to believe that the operation of the business by Covenant creates a risk to public health, safety or decency under section 14(1)(d)(iii) of the Act, and
vi. Covenant has failed to comply with a request made by the Registrar under section 111 in contravention of section 14(1)(a)(i) of the Act.
5The Registrar submits that the appellants' behaviour in any one of the categories noted above is enough to support disentitlement to a licence.
6Ms. Jones acknowledges that there were a few inconsistencies in her following the Act, in documentation, and in obtaining signed formal contracts with consumers. However, she had no intention to mislead, misrepresent or falsify any documents, and integrity is important to her.
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.
ISSUES
8The issues to be decided in this hearing are:
i. Whether the NOP should be confirmed or set aside against one or both of the appellants, or whether the Registrar should be directed to take such action as the Tribunal considers appropriate.
RESULT
9Having considered all the evidence, I find that the Registrar has proven the bulk of the allegations made against the appellants with regards to the past conduct of Ms. Jones affording reasonable grounds for the belief that the appellants will not carry on business in accordance with the law and with honesty and integrity.
10I further find that the Registrar has established that Ms. Jones made false statements in applications for renewal of licensure, and that Covenant is unable to provide the resources and facilities for the operation of a funeral home.
11I have considered the imposition of terms and conditions on the appellants licences, but I am of the view that there are no meaningful enforceable terms that would be appropriate.
12I direct the Registrar to carry out the NOP.
PRELIMINARY ISSUE
13The Registrar requested a confidentiality order to anonymize the names of deceased persons and to limit public access to part of the record before the Tribunal to protect the confidentiality of personal or sensitive information. The Registrar submits that a confidentiality order is necessary in order to protect sensitive and intimate information including the embalming of persons and cremation/burial details. The appellants agreed with the Registrar's position that a confidentiality order is required to protect the identities of the deceased, and to limit the availability of personal and sensitive information contained in the record.
14I note that the Tribunal's adjudicative records are generally open to the public, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586 ("Toronto Star"). The Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 ("TARA") requires that the Tribunal make its adjudicative records available to the public. Adjudicative records include the notice of appeal, the evidence that is admitted in the proceeding, parties' submissions, and the Tribunal's decisions, along with the other documents listed in s. 1(2) of TARA.
15As public access to adjudicative records is protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, restrictions on access are exceptional. Pursuant to s. 2(2) of TARA, the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the tribunal determines that:
i. matters involving public security may be disclosed; or
ii. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.
16The Licence Appeal Tribunal Rules are consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.
17The test established by the Supreme Court of Canada for making a confidentiality order provides further guidance when considering whether to override the principle that tribunal proceedings should be open to the public: Toronto Star at paras. 89-93; R. v. Mentuck, 2001 SCC 76 at para. 32. The test was recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 ("Sherman Estate") which states that the following three prerequisites must be met in order to properly impose a discretionary limit on openness:
i. court openness poses a serious risk to an important public interest;
ii. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
iii. as a matter of proportionality, the benefits of the order outweigh its negative effects.
18The person seeking to restrict access to adjudicative records has the onus of displacing the general rule of openness. Upholding the presumption of openness generally involves a recognition that neither individual sensibilities nor mere personal discomfort associated with participating in judicial or quasi-judicial proceedings are likely to justify a restriction on the open court principle.
19I note that the Supreme Court in Sherman Estate recognised that preservation of an individual's dignity is a matter of public interest. I find that there is an important public interest to protecting the particulars of the embalming, cremation and burial of the deceased individuals. I note that some of the details regarding the state of the decomposing bodies of the deceased is intimate and sensitive information that could cause harm to the loved ones of the deceased persons. A confidentiality order is appropriate to protect a family's privacy and spare them any further distress. I further find that the order is necessary to prevent the serious risk to the identified interest because there are no practical alternatives that will address the identified risk. Lastly, I find that as a matter of proportionality, the benefits of the order outweigh its negative effects as I will limit the scope of the confidentiality order to anonymizing the names of the deceased persons and specific and limited portions of the record.
20I conclude that having regard to the circumstances of this case and the sensitive evidence, the desirability of limiting public access to a discrete part of the evidentiary record outweighs the desirability of adhering to the principle that the documents be open to the public.
21Based on the above, I order that:
i. The names of the deceased persons will be reduced to initials in this decision.
ii. The following documents and records be excluded from public access:
i. Registrar's Book of Documents, Volume 1:
a. Tabs 5, 6, 7, 8, 11 and 12
ii. Registrar's Book of Documents, Volume 2:
a. Tabs 3 and 4
iii. Covenant Funeral Homes Inc.'s Book of Documents, Volume 1:
a. Tabs 5, 6, 7, 8, 11, 12 and 17
iii. This order shall be noted in the Tribunal's physical and electronic filing system.
The Law
22The Act is essentially consumer protection legislation. The funeral industry deals with the public when it is most emotionally vulnerable, and therefore, it is important that the services provided and the cost of those services be clearly defined. To achieve that end, the industry is heavily regulated. The Bereavement Authority of Ontario (the "BAO") is delegated administrative authority under legislation and administers the Act with the Registrar.
23Section 17(2) of the Act provides that, subject to the notice provisions in s. 18, the Registrar 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.
24The onus is on the Registrar to show that there are grounds for refusal to renew the licences.
25The Court of Appeal in Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon's), 2013 ONCA 157 at paras. 18-19, held that the standard of proof with respect to reasonable grounds for belief does not require the Registrar to go so far as to show that the past or present conduct makes it more likely than not that the appellant will not carry on business as required.
26According to the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para.114, the reasonable grounds for belief 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. Further, as per CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 (Div. Ct.) at para. 32, there must be a nexus between the appellants' conduct and their ability to conduct business as licensees under the Act, serving the interests of the public.
ANALYSIS
Has the Registrar established Ms. Jones' past conduct, and as the sole officer of Covenant, affords reasonable grounds for the belief that the appellants will not carry on business in accordance with law and with integrity and honesty in accordance with s. 14(1)(b)(ii) and s. 14(1)(c)(i)?
27For the following reasons, I find that the past conduct of Ms. Jones affords reasonable grounds for belief that the appellants will not carry on business in accordance with law and with integrity and honesty. In my view, the Registrar has established the bulk of its allegations with regards to the past conduct of Ms. Jones.
28The parties agree, and I find that, at all material times, Ms. Jones was the sole owner of the Covenant as well as the person in charge of the day-to-day activities of the Covenant. She was first licensed under the Act as a Funeral Director – Class 1 on or about January 18, 2000. At all material times, she was employed by Covenant, a funeral establishment. Covenant was first licensed under the Act as a Funeral Establishment Operator – Class 1 on or about February 4, 2016.
29The Registrar submits that Ms. Jones has a history of consumer complaints, including but not limited to, transferring and embalming the bodies of deceased persons without authorization and providing false information. The Registrar alleges that the NOP was issued after receiving multiple consumer complaints. I will review and make determination on each of the complaints.
A.A.M. Complaint
30Ms. A.A.M. died on October 9, 2018, and her body was transferred to Covenant by the authority of her son, Gary Miller. The evidence before the Tribunal is that a family dispute arose among Mr. Miller and his siblings and the Ontario Superior Court of Justice issued an Order on November 2, 2018 (the "Order") prohibiting the deceased from being buried in Toronto or any other place in Canada until the hearing of an Application to determine how A.A.M. was to be laid to rest. The deceased body remained with Covenant for several years until the BAO took possession of the deceased's body after determining that Covenant no longer had a place of business from which to operate.
31The Registrar submits that the appellants failed to register the death of A.A.M. pursuant to the Vital Statistics Act, R.S.O. 1990, c. V. 4 ("Vital Statistics Act"), even though the appellants charged the Miller family for doing so. The Registrar asserts that the Order did not prevent the appellants from registering the death. Ms. Paula Davidson, an inspector with the BAO, testified that it is a requirement that the death be registered so the Province of Ontario has proper records of deaths that have occurred. Ms. Jones testified that she understood that she could not register the death given the Order, and she had discussions with Mr. Miller who understood and agreed. Under cross-examination, she acknowledged that the language of the Order does not specifically prohibit the registration of death, only the burial of the deceased.
32In my view, there was no prohibition in the Order preventing the appellants from registering the death pursuant to the Vital Statistics Act, and they should have registered it. However, I do accept Ms. Jones' testimony that this was an entirely unique situation with a family dispute over the burial of the deceased that continued for years, and her reason for not registering the death was her mistaken reliance on the Order.
33There are multiple allegations as to the alleged excessive fees/charges that the appellants charged that were inconsistent with Covenant's price list and for services that were not provided which is contrary to s. 34(1) of the Act and O. Reg 216/18. There are allegations that the appellants did not enter into a new contract with Mr. Miller each time there were changes, including a change in the casket, and that the appellants improperly sought payment prior to allowing a third party funeral director to inspect the deceased's body.
34Ms. Davidson testified that fees were excessive and were not consistent with the price list at the time, particularly with regards to the holding fees and additional preparation fees. Ms. Davidson further testified that Covenant should not have charged fees to allow a third party funeral director to inspect the body of the deceased as usually there would not be such a charge.
35Ms. Jones testified that the body of the deceased was stored at Covenant on an embalming table which could not be used for anyone else, and that this factored into the fees charged. She testified that the deceased's body was kept on the embalming table as this was the best place to store, manoeuvre, and treat her.
36Mr. Miller testified that he did not believe the fees charged were excessive, that the appellants took good care of his mother, and he was aware that her death had not been registered given the pending court proceeding. He further testified that he was aware of what was happening while his mother was in the care of Covenant, and aware of the products and services being provided.
37I find that the Registrar did not lead persuasive evidence demonstrating the excessive fees and what the correct amounts should have been.
38Further, in my view, while it may not be common practice for a funeral home to charge fees when a third-party funeral director attends to inspect a deceased's body as the Registrar alleges, I cannot find that this is improper or contrary to the Act, or regulations. I accept Ms. Jones' testimony that the appellants would have to pay a staff member to attend on the selected day which was normally a day that Covenant would be closed, and that there are costs associated with preparing the body for viewing. Ms. Jones testified that she reduced the amounts sought after discussions with Ms. Michelle Crognale, a Manager with BAO, and that she would not have prevented the inspection if the family did not pay the amount.
39I find that Ms. Jones' past conduct with regards to this complaint does not afford reasonable grounds for the belief that the appellants will not carry on business in accordance with law and with honesty and integrity in accordance with section 14(1)(b)(ii) and 14(1)(c)(i) of the Act.
Barrett and Offor Complaint
40In August 2019, sisters Pamela Barrett and Sheila Offor contacted the BAO to make a complaint against the appellants regarding their deceased mother, S.R.L. The sisters alleged that their mother's body was embalmed without authorization by the appellants who were now refusing to release the body to another funeral home operator where they wanted the funeral to occur until Covenant's account was paid in full.
41Ms. Barrett testified that when her mother's body was picked up from Mackenzie Health Centre by Covenant there was no signed contract with Covenant. She testified that she did give permission by email, dated August 16, 2019 (the "August 16th Email"), to transfer her mother's body but had not agreed to any other services, including embalming of the body. She testified that she was not told the cost of transferring the body until after the transfer had occurred, and was not provided a price list until after the transfer.
42Ms. Barrett testified that she had not authorized the embalming of her mother's body. She testified that when Ms. Jones told her the body had been embalmed, she did not know what embalming was. She testified that she and her family wanted to transfer her mother's remains to another funeral home but the appellants refused to release the body as an outstanding account had not been paid. The account was rendered despite the lack of a signed contract for services. She felt that her mother's body and her family had been treated with disrespect and in an unprofessional manner.
43Ms. Offor similarly testified that she also did not provide permission to embalm her mother's body.
44Ms. Crognale testified that the deceased body was embalmed without authorization and, during a telephone call with Ms. Jones, Ms. Jones stated that she felt she had verbal permission to transfer and embalm the deceased. Ms. Crognale testified that these sorts of complaints regarding embalming without authorization are rare, and maybe there is one such complaint in a funeral director's entire career, and Ms. Jones had now received several such complaints.
45The appellants submit that the incidents were largely rectified and were isolated events reflecting administrative lapses. Ms. Jones testified that she had permission from Ms. Barrett in the August 16th Email and verbally to make the funeral arrangements, and was actively working to make arrangements with the family. However, she also acknowledged that the family still needed to finalize the funeral arrangements, and there was no signed contract for services as social services may have covered the costs. She testified she felt she had permission to embalm and there were time constraints. Ms. Jones offered further testimony that she did not hold the body of the deceased hostage until payment was received, and that it was the other funeral home that refused to pick up the body until payment was made to Covenant. I found Ms. Jones' testimony to be confusing and not forthright with regards to this consumer complaint.
46I note Ms. Jones acknowledges that no contract for services was signed, and that the August 16th Email is not a contract and did not list any specifics about funeral arrangements. She testified that there is a requirement to have a contract in place before providing any services.
47I find that the August 16th Email is not permission to embalm and makes no mention of embalming or any particular funeral services or details. I find that the deceased's family did not provide authorization to embalm.
48I further do not find the testimony of Mr. Royson James, who referred the family to the appellants, to be persuasive in establishing that authorization to embalm was given. Mr. James testified that he was present at the initial meeting between Ms. Barrett and Ms. Jones but he could not recall whether Ms. Barrett provided specific instructions to Ms. Jones other than that she had authorization to pick up the body of her mother. He testified that no documents were signed in his presence.
49In my view, there was no permission or authorization to embalm the body of the deceased. I find that Ms. Jones' past conduct with regards to this complaint and embalming without permission affords reasonable grounds for the belief that the appellants will not carry on business in accordance with law and with honesty and integrity in accordance with section 14(1)(b)(ii) and 14(1)(c)(i) of the Act.
M.A.K. Complaint
50Following the death of M.A.K. on December 13, 2021, the deceased's daughter Tamika King-Lim contacted Ms. Jones to inquire about funeral services. Ms. Jones shared information with Ms. King-Lim, including Covenant's price list for services, and a transfer authorization form. Ms. King-Lim testified that she authorized the appellants to transfer her father's body from the coroner's office to the funeral home, but had not discussed, or agreed to, any other services. She testified that the appellants embalmed her father's body without her knowledge, authorization or permission.
51Ms. King-Lim testified that, at the time, no contract for services had been signed by her and that she was still trying to finalize the arrangements. She testified that the necessary preparations for embalming was never discussed with her. She testified that she and her family were upset when they found out her father's body had been embalmed as they had wanted to use a different funeral home. She testified that, after the embalming, she felt she had no other choice but to proceed with Covenant and they did. There were also subsequent concerns regarding the state of the body on the day of the funeral.
52Ms. Jones testified there was a discussion with Ms. King-Lim regarding preparations of the deceased's body and embalming, and that Ms. King-Lim had provided verbal authorization. Ms. Jones testified that thereafter the deceased's mother learned that the funeral was to take place in Scarborough and was upset, and they had a conversation on the telephone wherein Ms. Jones believed that they had agreed to continue with the funeral arrangements.
53Ms. Davidson testified that she was assigned to investigate, and she determined that there was no authorization for the embalming, no contract was signed prior to the transfer of the deceased's body to Covenant, and Ms. King-Lim was required to pay for the funeral services in full without being provided with a contract. Ms. Davidson testified that embalming without permission is professional misconduct on the part of Ms. Jones. Ms. Davidson testified that embalming cannot be reversed and it is essential to have authorization to avoid professional misconduct.
54Ms. Jones testified that there were confused instructions and miscommunications regarding embalming and prices and no dishonesty was involved. I considered the evidence before the Tribunal, including the text messages and emails exchanged between the parties, and weighed the testimonies of Ms. King-Lim and Ms. Jones. I find that permission to transfer her father's body was given by Ms. King-Lim, however, at the time of the embalming there was no permission to embalm. Ms. King-Lim did not sign any document authorizing the embalming, and gave no verbal permission, and this was done without her knowledge or permission creating an upsetting situation for the consumer and her family.
55The Registrar further takes the position that Ms. Jones falsified the funeral service contract when she backdated the contract to December 18, 2021, which is contrary to section 30(a) of the Act. The evidence presented establishes that Ms. Jones provided the contract for funeral services to Ms. King-Lim after the funeral services had already been provided. Ms. Jones testified that she did make attempts to have the contract executed prior to the funeral but this had not occurred. Ms. Jones provided Ms. King-Lim with the contract by email dated January 14, 2022, and she states "I will fill the dates in." Ms. King-Lim signed and returned the contract. Ms. Jones acknowledges that the contract was signed after the funeral had occurred and that she later filled in the date of December 18, 2021. Ms. Jones testified that December 18, 2021 was the date she believed Ms. King-Lim had given Covenant permission and authorization for services. I find that Ms. Jones backdated the contract for services and falsified a document in contravention of s. 30(a) of the Act.
56In my view, Ms. Jones did not have permission or authorization to embalm the body of M.A.K., and she acted in a manner that harmed a bereaved consumer. She further falsified a contract for services and acted contrary to section 30(a) of the Act.
57I find that Ms. Jones' past conduct with regards to this complaint affords reasonable grounds for the belief that the appellants will not carry on business in accordance with law and with honesty and integrity in accordance with section 14(1)(b)(ii) and 14(1)(c)(i) of the Act.
Jessica Blake Complaint
58The Registrar alleges that on or about October 23, 2022, following the death of M.D.G., his family sent a text message to Ms. Jones giving permission to transfer the deceased's body from Southlake Hospital to Covenant. The Registrar alleges that the family waited for forty-eight (48) hours and not having received a response from Ms. Jones, they decided to use the services of Chapel Ridge Funeral Home ("Chapel"). When Chapel contacted Covenant to confirm that it would be handing the arrangement, they were told that the body of the deceased has already been transferred and embalmed, and there would be a fee for these services including an "oversize fee" that was not disclosed on the price list published on Covenant's website which is contrary to section 34(1) of the Act.
59There is no dispute between the parties that the embalming had, in fact, not occurred and that this may have been communicated in error.
60Ms. Davidson testified that during a telephone call between her, Ms. Blake and Ms. Jones, she raised the family's concerns regarding the oversize fee being charged, and she reminded Ms. Jones that a fee could not be charged unless it is listed on Covenant's price list. Ms. Jones acknowledge this and followed up with a revised invoice.
61The Registrar asserts that, at the time the invoice was rendered, the parties had not entered into a contract which is professional misconduct. Ms. Jones acknowledges that there was no written contract for funeral services at the time the invoice was rendered to the parties. Ms. Jones testified that she did not want to be in a position that Covenant would not get paid for services that were rendered, and Chapel had not honoured payments in the past.
62There is no dispute between the parties that the appellants had permission to transfer the body, although I note that permission appeared to have later been withdrawn when Chapel was hired to attend to the funeral arrangements. Nonetheless, I find that, at the time the body of the deceased was transferred by Covenant, it had authorization to do so. There is some initial confusion between the appellants and the consumer as to whether embalming services had occurred, but this was resolved. The concern of the Registrar stems from the fact that it would appear that Ms. Jones was holding the body of the deceased pending payment, and was charging an oversize fee when one was not listed in Covenant's price list, and there was no contract between the parties for funeral services.
63I am persuaded by the Registrar's evidence and find that an oversize fee was being charged when it was not listed in a price list, and the amount was reduced and brought into compliance only after the BAO became involved in the matter.
64I have taken into consideration the testimony of Ms. Davidson and Ms. Jones with regards to the allegation that Ms. Jones was asking for payment of the outstanding invoice prior to releasing the body of the deceased despite the lack of an executed contract. I weighed Ms. Jones' testimony that she did not want to be in a position that Covenant would not be paid for services rendered and that Chapel had not honoured payment in the past. I also took into consideration Ms. Jones' testimony that she would not hold a body hostage, but I found that only after the BAO became involved did Ms. Jones release the body of the deceased. At all times, there was no written contract in place even when she provided an invoice for services. I find that Ms. Jones' conduct was unprofessional and that she did appear to be holding the body of the deceased pending payment.
65I find that Ms. Jones' past conduct with regards to this complaint affords reasonable grounds for the belief that the appellants will not carry on business in accordance with law and with honesty and integrity in accordance with section 14(1)(b)(ii) and 14(1)(c)(i) of the Act.
Nadine Malcolm Complaint
66The Registrar submits that on March 7, 2020, Mr. D.S. passed away and on March 10, 2020, Ms. Jones met with the deceased's family to discuss prices for funeral services and arrangements. The Registrar alleges that the following day, the deceased family reached out to New Haven Funeral Centre Inc. ("New Haven") to discuss potential funeral services and entered into a contract for funeral services and gave New Haven written authorization to transfer and embalm the deceased. However, Mr. D.S. had already been transferred and embalmed by Covenant.
67On or about March 18, 2020, Nadine Malcolm, the sister of the deceased, filed a formal complaint with the BAO regarding the unauthorized transferring and embalming of her brother's body. She submitted that no contract was signed and no consent, either verbal or written, was given to transfer or embalm the deceased.
68Ms. Crognale testified that Ms. Jones informed her that she had received verbal authorization from the family to transfer and embalm the deceased, however, the family denied this.
69Ms. Jones testified that after meeting with the deceased's family, the appellants were given verbal permission to handle the transfer, embalming and to make funeral arrangements. She further testified that, at the conclusion of the meeting, she spoke with the deceased's partner Krista Harrington and told her to attend Covenant so they could finalize arrangements in private, including floral arrangements. She also had continued discussions with Ms. Malcolm.
70The appellants' witness, Mr. Clifford Gomes, testified that he was present during the initial meeting between the appellant and the deceased family and his understanding was that the appellants were authorized to handle all the arrangements for the deceased including transfer, embalming and the funeral. However, under cross-examination, he acknowledged that no documents were signed in his presence. He further testified that the signing of any documents was to occur in a more private location the next day when the finalization of funeral particulars was to occur.
71The appellants also relied upon the testimony of Mr. Dave Harriot who testified that it was his understanding that the appellants had permission to arrange the funeral of the deceased. I did not find his testimony compelling as he acknowledged that he was not present during the meeting between the family and Ms. Jones, and thus, had no personal knowledge.
72I weighed the testimonies of Ms. Jones, Ms. Crognale, Mr. Gomes and Mr. Harriot and the evidence before me, and in my view, the appellants did not have permission to transfer or embalm the deceased's body. The family did not sign any contract or provide permission for any action to be taken. The appellants' own witness, Mr. Gomes, testified that no documents were signed in his presence and that signing was to occur in a more private location the next day when the particulars were to be finalized. It does not appear that anything was finalized at the meeting with the family. I find that the transfer and embalming were done without permission. I note that the appellants were well aware that permission to transfer and embalm should be clear and not subject to any misunderstanding.
73I find that the transfer and embalming was done without any permission, authorization or knowledge of the family causing great distress. I find that Ms. Jones did not act with honesty and integrity.
74I find that Ms. Jones' past conduct with regards to this complaint affords reasonable grounds for the belief that the appellants will not carry on business in accordance with law and with honesty and integrity in accordance with section 14(1)(b)(ii) and 14(1)(c)(i) of the Act.
Allegations of Withholding Human Remains in Lieu of Payment and False Information to Registrar
75On or about February 3, 2023, the Registrar served Covenant with a letter to cease operations following the discovery of Covenant's failure to maintain a place of business pursuant to subsection 21(1) of O. Reg. 30/11. The letter included the Registrar's demands under section 111 of the Act for items that would need to be addressed, including, information as to whether there were any cremated remains in the appellants' possession and their location.
76On February 7, 2023, Ms. Jones' legal representative at the time responded to the inquiry indicating that there were no remains in Ms. Jones' possession. This information was false.
77Under cross-examination, Ms. Jones testified and acknowledged that there were six cremated remains in her possession and that two had been given back to the respective families and four continue to remain with her.
78On or about September 29, 2023, a consumer contacted the BAO inquiring how to obtain the cremated remains of his mother, J.B., that were in possession and care of the appellants. Given this, on October 10, 2023, Ms. Davidson emailed Ms. Jones' legal representative again to inquire as to the number of cremated human remains that Ms. Jones was in possession of, and specific information was requested to determine the whereabouts of J.B.'s cremated remains. Per s. 111 of the Act, a response was requested by October 11, 2023, and was not received in a timely manner.
79On or about October 19, 2023, the appellants advised by email that the families to whom the cremated remains belonged had outstanding payments owing. The email but did not disclose the number of cremated remains, and the location of the remains.
80The BAO continued to follow up with the appellants and finally was told the number of remains in the possession of the appellants. Ms. Davidson testified that this was not the first time the appellants had withheld the remains of a deceased.
81Ms. Jones testified that she has never held a body hostage or held a body or cremated remains hostage. She testified that not providing a body or cremated remains upon request would take away from her integrity. She submits that the consumer that has contacted the BAO regarding the remains of his mother had her contact information all along and now has possession of his mother's remains. She testified that he promised to pick up the remains on several occasions but did not. She testified he owed the appellants money but she did not pressure him to pay, and he still has an outstanding account. I accept Ms. Jones' testimony and I found it convincing.
82I find Ms. Jones' testimony was persuasive in establishing that she was not withholding the remains of the deceased at issue, or any other remains, in lieu of payment. I find that the Registrar did not present sufficient or persuasive evidence to support the allegation.
83However, I find that false information was provided to the Registrar when the appellants advised that they were not in possession of any cremated remains. At the time, the appellants were in possession of remains. I find that Ms. Jones failed to inform the Registrar of the location and number of cremated remains in her possession as requested, and this harms bereaved Ontario consumers.
84For the reasons above and when considering the totality of the evidence presented with respect to the consumer complaints and false information grounds, I find that the Registrar has satisfied its burden in establishing that Ms. Jones' past conduct affords reasonable grounds for the belief that the appellants will not carry on business in accordance with the law and with integrity and honesty. I find that the Registrar provided ample and persuasive evidence with regards to the bulk of the allegations. I found particularly persuasive the testimonies of the consumers, Ms. Barrett, Ms. Offor, and Ms. King-Lim, who each testified in a forthright manner.
85In making a determination, I also considered the testimonies of the appellants' witnesses, including Dorothy Reid, Royson James, Gary Miller, Clifford Gomes, Dave Harriot, who all testified on their positive dealings and interactions with the appellants. While Ms. Reid did not provide testimony with regards to any of the specific consumer complaints, she did testified that she had utilized the appellants' services and recommended them to others. I also considered the testimony of Ms. Jones in making a determination that the Registrar has met its burden.
86I find that the Registrar has established that Ms. Jones' past conduct affords reasonable grounds for belief that the appellants will not carry on business in accordance with the law and with integrity and honesty, thereby disentitling the appellant to registration pursuant to section 14(1)(b)(ii) and 14(1)(c)(i) of the Act.
Has the Registrar established that Ms. Jones submitted false Information on Applications?
87I find that Ms. Jones repeatedly submitted annual licensure reports which contained false information in contravention of s. 14(1)(b)(iii) and 14(1)(c)(ii) of the Act.
88The Registrar presented evidence that Ms. Jones submitted an Annual Licensure Report of Funeral Establishment Operator – Class 1 (the "ALR"), dated December 31, 2019, on behalf of Covenant and under the portion entitled "Licensee Information", and in response to the question of identification entitled "Ownership type (e.g., corp., partnership etc.)", she reported the Licensee was a corporation. This information was false.
89There is no dispute between that parties that, on December 22, 2019, Covenant had been dissolved and issued a Certificate of Dissolution, and therefore was no longer a corporation. The dissolution was based upon non-compliance under the Business Corporations Act, R.S.O. 1990, c. B. 16.
90The next year Ms. Jones submitted an ALR, dated December 31, 2020, and under the portion of "Licensee Information", she again falsely reported the Licensee was a corporation.
91Ms. Jones submitted further ALRs, dated December 30, 2021 and December 31, 2022, and again listing the Licensee as a corporation. This was false information.
92The parties agree that Ms. Jones submitted a total of four ALRs containing false information over an approximate four year period.
93At the hearing, Ms. Jones acknowledged that she submitted false information on four separate ALRs, but testified that it was not her intention to submit false information and it was a mistake on her part. She did not know that there is an annual fee to keep a corporation's status current and that any possible email notifications regarding fees owed likely went to another email account or possibly a junk account. She submits that she has limited experience with corporate reporting obligations and related fees. She testified that she was unaware that Covenant had been dissolved as a corporation and she had no intent to mislead the BAO or the general public.
94There is no dispute that Ms. Jones continued to operate and hold Covenant out as a corporation in its letterhead, promotional materials, statement of accounts, contracts, and price lists. The Registrar alleges that this was false advertising and was misleading and deceptive on the part of the appellants. I would agree.
95I find that the Registrar has met its burden in establishing this ground. I took into consideration Ms. Jones' explanation when I weighed the evidence. However, I note that Ms. Jones continued to list Covenant as a corporation in the ALRs over quite a lengthy period of time. As acknowledged by her, this information was false.
96I find that Ms. Jones, as the owner and the person in charge of the day-to-day operations of Covenant, was under an obligation to maintain the Covenant's corporate status, and her lack of awareness of the dissolution of the corporation is concerning. Although, the corporation was later revived on February 23, 2023, I find that Ms. Jones made false statements over several years and in four separate ALRs.
97I find that Ms. Jones provided false statements on an application for renewal of a licence in contravention of s. 14(1)(b)(iii) of the Act, and made false statements on behalf of Covenant in applications for renewal of licensure contrary to section 14(1)(c)(ii) of the Act.
Has the Registrar established that Ms. Jones cannot reasonably be expected to be financially responsible in the conduct of business under section 14(1)(b)(i) and 14(1)(d)(i) of the Act?
98I find that the Registrar has not established that Ms. Jones cannot reasonably be expected to be financially responsible in the conduct of business under section 14(1)(b)(i) and 14(1)(d)(i) of the Act.
99There is no allegation of any misappropriation of funds.
100The Registrar alleges that Covenant is in arrears to three funeral service suppliers, namely Batesville, Toronto Funeral Coach Inc. and MacKinnon & Bowes Ltd., as well as the City of Toronto for a total of $27,228.05. The total amount reflects obligations incurred from November 2018 and continuing to the present.
101The Registrar provided invoices that showed that Covenant owes MacKinnon & Bowes Limited for the following outstanding invoices: October 31, 2022 for $960.95, November 30, 2022 for $5,805.94, and December 31, 2022 for $2,883.76. The total outstanding obligation is $9,650.65. Ms. Jones testified that MacKinnon and Bowes Limited has access to her American Express credit card and, on occasion, she would receive notifications that a payment was charged to her credit card.
102Covenant owes Batesville the amount of $7,058.10 for invoices from October 11, 2018 to March 31, 2023. Ms. Jones testified that this amount remains outstanding. There is also convincing evidence presented that the appellants did not update their corporate information with Batesville.
103Covenant owes Toronto Funeral Coach Inc., which provides funeral coaches and hurst rentals, for the following two outstanding invoices: December 31, 2022 in the amount of $1,186.50, and January 31, 2023 in the amount of $5,152.80. Ms. Jones testified that payments were usually made in a lump sum by her. The evidence before the Tribunal is that this amount continues to remain outstanding.
104There is also an allegation that the City of Toronto is owed for four outstanding invoices for death registration fees for the period January 2023 to June 29, 2023, and that there are outstanding registrations. Ms. Jones testified that these payments are made on a quarterly basis on her credit card. She did acknowledge that the outstanding account was not paid in full.
105Ms. Jones testified that, prior to closing Covenant's physical location, all her accounts were in good standing, except Batesville.
106I find that while there are amounts that continue to remain outstanding to various vendors and the City of Toronto, Ms. Jones provided some explanations including that vendor has access to her credit card and would at times process payments in lump sums, and that she would make lump sum payments. There is also evidence before the Tribunal that several amounts were paid to the City of Toronto. I note that the Registrar has the burden of establishing that Ms. Jones cannot reasonably be expected to be financially responsible in the conduct of business, and I do not believe it has lead persuasive evidence in this regard. Although, there are outstanding amounts owed, I am not entirely persuaded that Ms. Jones cannot reasonably be expected to be financially responsible in the conduct of business.
107I find that the Registrar has not met its burden, on a balance of probabilities, that Ms. Jones cannot be reasonably expected to be financially responsible in the conduct of business under section 14(1)(b)(i) and 14(1)(d)(i) of the Act.
Has the Registrar Established that Covenant failed to maintain a place of business pursuant to s. 14(1)(d)(ii)?
108I find the Registrar has established that Covenant failed to maintain a place of business or business premises for the operation of a funeral home in contravention of section 14(1)(d)(ii) of the Act.
109It is undisputed that Covenant's location as identified in its licence is 2505 Eglinton Avenue East, Toronto (the "Premises"). Ms. Jones testified and acknowledged that Covenant vacated the Premises in January 2023.
110Ms. Crognale testified that she spoke with Ms. Jones after she vacated the Premises and was told that Covenant was moving locations. Ms. Jones provided a one-page Schedule A to an Agreement to Lease, dated May 17, 2022, for the new location located at 633419 Highway 10 Road, Mono, ON. In my view, Schedule A does not represent a lease agreement and instead states "provided a formal lease has been executed by both the Landlord and the Tenant . . .."
111Ms. Jones testified that she entered into a 5-year lease agreement which was signed on May 17, 2022. This was not provided to the Tribunal for consideration. She testified that the new location was available to the appellants, but she had agreed with the landlord that they could sublet the location. Her understanding is that it is not currently being sublet.
112The evidence before the Tribunal establishes that Covenant failed to maintain a place of business. I find that Schedule A is not a lease agreement and no lease agreement was produced by the appellants. I further note that under s. 21(1) of O. Reg. 30/11 the appellants are required to conduct business from the location identified on the licence, and to maintain those premises in accordance with the Act, and regulations, which they did not do. Ms. Jones testified and acknowledged that as of January 2023, she has not submitted an application for a new location.
113I find that the Registrar has met its burden and established that Covenant is unable to provide the resources and facilities required to manage a business under subparagraph 14(d)(ii) of the Act.
Outcome
114There can be cases when the imposition of conditions can adequately protect the public interest if the Registrar has proven a ground of refusal. I note that the Tribunal has the discretion to consider the appellants' circumstances and determine whether the public interest requires outright refusal of registration or whether the public interest can be adequately protected through granting registration with conditions. I have considered whether conditions imposed on the appellants might be an appropriate alternative.
115The Registrar submits that there is continued risk to the public and that conditions would not be sufficient to govern the appellants. The Registrar submits that Ms. Jones lacks insight into her actions and notes the pain that she has caused consumers. Mr. Peter Jordan, the manager of inspections, testified that over the years the BAO has worked with the appellants to assist and coach in adhering to the Act and regulations to no avail. He testified that consumers in this industry are in the most vulnerable state after the loss of loved ones and they must be treated with care and be protected.
116Ms. Crognale testified that, over the years, she continually worked with Ms. Jones to assist her in improving her ability to comply with the Act, but Ms. Jones continues to demonstrate a lack of integrity and honesty. She testified that the number of complaints received with regards to unauthorized embalming is unheard of and quite high.
117Ms. Jones submits that she is willing to operate with conditions and is governable. She proposes that she will hire a manager and professionals to guide her in the business moving forward. She submits that she committed errors in good faith and wants to learn from her mistakes.
118I have considered the submissions of all parties with respect to imposing conditions on the appellants' respective licenses, and I find that this is not an appropriate case for licensure with conditions. The past conduct of Ms. Jones is serious, and she has repeatedly embalmed deceased persons without authorization and permission. In my view, the BAO has continually worked with the appellants in the past with limited success. The past conduct of the appellants demonstrate that they have been unwilling to promptly abide by requests made by the BAO, or to adhere to the Act and regulations.
119I find there is no basis in the evidence for the Tribunal to conclude that licensure with conditions would be appropriate or would adequately protect the public.
CONCLUSION
120I find that the Registrar has established that the past conduct of Ms. Jones affords reasonable grounds for the belief that the appellants will not carry on business in accordance with the law and with integrity and honesty in accordance with section 14(1)(b)(ii) and 14(1)(c)(i) of the Act.
121I find that Ms. Jones provided false statements in applications for renewal of licensures in contravention of s. 14(1)(b)(iii) and 14(1)(c)(ii) of the Act.
122I further find that Covenant does not have a business premises and is unable to provide the resources and facilities required to manage a business under section 14(1)(d)(ii) of the Act.
ORDER
123The Tribunal directs the Register to carry out its proposal to revoke the registrations of Ms. Jones as a funeral director and Covenant as a Funeral Establishment Operator.
Released: September 19, 2024
___________________________
Rupinder Hans
Adjudicator
Footnotes
- The Registrar notes that O. Reg. 32/11 is repealed but it is being relied upon for the definitions contained in section 8. I note that section 3 of the current regulation, O. Reg. 216/18 (Code of Ethic), relies upon section 8 of O. Reg. 32/11.