Court File and Parties
CITATION: Johal v. Board of Funeral Services, 2011 ONSC 7525
DIVISIONAL COURT FILE NO.: 75/11
DATE: 20111216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND HARVISON YOUNG JJ.
BETWEEN:
KAUR JOHAL Applicant (Appellant)
– and –
BOARD OF FUNERAL SERVICES Respondent (Respondent in Appeal)
Counsel: Leo Klug, for the Applicant (Appellant) Julie A. Maciura, for the Respondent (Respondent in Appeal)
HEARD at Toronto: December 16, 2011
Oral Reasons for Judgment
DAMBROT J. (orally)
[1] Prabhjot Johal appeals pursuant to s.11 of the Licence Appeal Tribunal Act, 1999 from the decision of the Vice Chair of the Licence Appeal Tribunal (“LAT”) directing that the Discipline Committee of the Board of Funeral Services revoke her licence as a funeral director.
[2] In Ontario, there are two classes of funeral director licences – one that authorizes embalming and one that does not. The appellant is a licenced funeral director and the owner of Benisasia Funeral Home. Her licence does not authorize embalming. In order to obtain a licence authorizing embalming, an applicant must participate in a period of in-service training, commonly referred to as an internship, at a funeral home. During the internship, an applicant must embalm fifty human bodies under the supervision of a preceptor. Ms. Johal interned at her own funeral home.
[3] During Ms. Johal’s internship, the Board of Funeral Services (the “Funeral Board”) became concerned that Ms. Johal was falling behind in her embalmings and sent a representative to speak to her. Ms. Johal told the representative that she had only done ten embalmings. The representative expressed a concern to Ms. Johal that she might be unable to do the remaining forty embalmings in the four months left of her internship. Later that day Ms. Johal signed an affidavit swearing that she had performed twenty embalmings as of that date, rather than ten.
[4] Cathy Cowley was interning at the Benisasia Funeral Home at the same time as Ms. Johal. She had completed well-document embalming reports for six of the embalmings in the group of twenty that Ms. Johal claimed to have done. After reviewing these reports, the Executive Committee of the Funeral Board referred allegations of professional misconduct against the appellant to the Discipline Committee pursuant to s.15 of the Funeral Directors and Establishments Act (“FDEA”).
[5] After a lengthy hearing the Discipline Committee found that the appellant had engaged in the alleged conduct and found her guilty of professional misconduct in signing six false embalming reports. Specifically the Discipline Committee found that Ms. Johal had committed professional misconduct within the meaning of paras. 44(o) and 44(u) of R.R.O. 1990 Reg. 470 to the FDEA.
[6] Paragraph 44(o) provides that it is professional misconduct to sign or issue a document that contains a statement that a licensee knows is false. Paragraph 44(u) provides that it is professional misconduct to act in a manner relevant to the practice of funeral directing that would reasonably be regarded as unprofessional conduct having regard to the circumstances.
[7] The Committee ordered a ten month suspension, a reprimand, a fine and certain restrictions on the appellant’s licence.
[8] The appellant appealed to the LAT pursuant to s.18 of the FDEA. After a full hearing the LAT also found the appellant guilty of professional misconduct and ordered revocation of the appellant’s funeral director’s licence. In imposing this penalty, the LAT noted that:
The Discipline Committee seemed to regard this as principally an internal matter. As will be noted from the above excerpt, the Discipline Committee was concerned about deterrence of other funeral directors and maintaining respect for the funeral Board and public confidence in the disciplinary process. It did not expressly consider the interest of the wider public in this matter.
[9] The LAT pointed out that when the investigation began, the appellant,
… created a calculated web of deception in which she attempted to implicate four of her employees and ex-employees. Most obviously she took advantage of an intern in her employ. She was in a position, if not of trust then certainly of responsibility for the instruction of Ms. Cowley. She betrayed the responsibility by claiming credit for the work of Ms. Crowley. If Ms. Johal had been believed, Ms. Crowley’s licence would have been in jeopardy for misleading the Funeral Board. Even the accusation may have cast a shadow on Ms. Cowley’s integrity.
[10] After recounting the ways Ms. Johal had manipulated other employees, the Board continued:
At any time in the past three and a half years, Ms. Johal could have unwound this web of deception. She could have recanted her testimony; she could have expressed remorse; she might have made amends for those she had attempted to harm with her lies. Instead she persists in these falsehoods.
[11] The LAT concluded:
These deceptions and her persistence in them raise legitimate concerns about her ability to conduct her business in accordance with the law and with integrity and honesty. Bereaved families are in a particularly vulnerable situation and they need to be assured that they are dealing with a person of probity at this time. Given that Ms. Johal has attempted to implicate her own employees and former employees in her lies, has lied to a regulating body and to this Tribunal, there are reasonable grounds to believe that she would deceive her customers if it were self- serving for her to do so.
[12] Taking all of this into consideration, for the protection of the public, the LAT concluded that licence revocation was necessary.
[13] On this appeal, the appellant takes the position that:
- there was a reasonable apprehension of bias on the part of the Vice Chair of the LAT;
- the Tribunal erred in failing to give sufficient weight to the evidence of a witness that favoured the appellant;
- the Tribunal exceeded its jurisdiction in taking the appellant’s dishonesty before the Discipline Committee and the LAT into consideration in imposing penalty since these matters were not listed in the Notice of Hearing;
- the Tribunal erred in failing to defer to the penalty imposed by the Discipline Committee;
- the Tribunal erred in increasing the penalty in the absence of a cross-appeal; and
- revocation was not a reasonable disposition.
[14] We conclude that the standard of review on this appeal with respect to the finding of misconduct and the penalty imposed is reasonableness. (See Venneri v. College of Chiropractors of Ontario, 2008 27824 (ON SCDC), [2008] O.J. No. 2278 (Div. Ct.); Kai v. College of Chiropractors of Ontario, 2010 2792 (Div. Ct.); Yar v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 1017 (Div. Ct.) and Rassouli-Rashti v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 4762 (Div. Ct.)).
[15] With respect to the first issue, the appellant relies on unfavourable comments made about the appellant in the Tribunal’s reasons for disposition as a basis for her argument that there was a reasonable apprehension of bias. These comments were nothing more than the legitimate conclusions of the LAT about the conduct and character of the appellant based on the evidence led in the hearing. They raise absolutely no suggestion of an apprehension of bias.
[16] With regard to the second issue, the LAT gave careful balanced, detailed and rational reasons for accepting and rejecting the evidence of the witnesses. Those reasons were entirely reasonable. It is not our task to retry this matter. We would not give effect to this argument.
[17] We will deal with the remaining issues concerning penalty together.
[18] Counsel agree that the appeal before the LAT was a hearing de novo. We concur. Section 14(9) of the FDEA, which applies with the modifications necessary to an appeal to the Tribunal by virtue of s.18(2) of the FDEA, empowers the Tribunal, after conducting a hearing, to order the Discipline Committee to take such action as the Tribunal considers the Discipline Committee ought to take and may “substitute its opinion for that of” the Discipline Committee.
[19] In this case the LAT heard evidence that was not heard by the Discipline Committee and made its own findings of fact. As a result it was free and indeed was required to impose the penalty that it considered appropriate. While no doubt it was entitled to take into consideration the penalty imposed by the Discipline Committee, it was not obliged to treat it as the maximum penalty that it could impose, particularly where it heard evidence that was not before the Committee or where, as here, it concluded that the Committee had made an error in principle in imposing penalty. Given the LAT’s authority to impose the penalty it determines to be appropriate, a cross-appeal is not required to permit the LAT to impose an appropriate penalty in excess of the penalty imposed by the Discipline Committee. Finally on this point, we note that the appellant was put on notice in the course of the hearing before the Tribunal that it was open to the Tribunal to impose revocation as a penalty.
[20] We are also of the view that in imposing a penalty, the LAT was entitled to take into consideration the circumstances of the appellant and of the appellant’s misconduct revealed in the admissible evidence, whether or not those circumstances fall within the strict confines of the allegations in the Notice of Hearing. In this case the allegations related to the signing of six false reports. But, the appellant’s continued dishonesty in involving others in her employ in the effort to conceal her misconduct from the Funeral Board, the Discipline Committee and the LAT and her fabricated testimony before the Discipline Committee and the LAT, were all matters inextricably interwoven with the misconduct alleged and properly taken into consideration when the LAT imposed penalty. Additionally, it is beyond doubt that the potential consequences to others flowing from the making of the false reports, and the risk posed to the public as a result of the dishonesty disclosed by these acts were proper considerations in determining the appropriate penalty. Finally, it was open to the Tribunal to take the appellant’s continued dishonesty into account in determining the extent to which the appellant had achieved or could achieve professional rehabilitation. This is not a case of simply treating an appellant’s denial of alleged misconduct as an aggravating factor in imposing penalty, which is not permissible.
[21] Finally, we turn to the question whether the revocation of the appellant’s licence was a reasonable penalty.
[22] No doubt, revocation is the capital punishment of licensing discipline. It may cause the person involved to lose their livelihood. It must be imposed sparingly and only in serious cases. The Tribunal understood this and gave transparent and intelligible reasons for its decision that revocation was appropriate. It concluded that as a result of her continued dishonesty, which it aptly described as a web of deception, they could not be satisfied that the appellant would meet the regulated standard of conduct required of her, and her licence must be revoked for the protection of the public.
[23] We cannot say that it was unreasonable for the Tribunal to reach this conclusion and to impose the penalty that it did. Indeed, as the Tribunal considered, s.20(3) of the FEDA provides that an applicant is not entitled to a licence or the renewal of a licence as a funeral director if their “past or present conduct…affords reasonable grounds for belief that the applicant will not operate in accordance with the law and with integrity and honesty.”
[24] The appeal is dismissed.
[25] Costs fixed at $10,000.00 inclusive, payable to the Board forthwith.
DAMBROT J.
JENNINGS J.
HARVISON YOUNG J.
Date of Reasons for Judgment: December 16, 2011
Date of Release: January 30, 2012
CITATION: Johal v. Board of Funeral Services, 2011 ONSC 7525
DIVISIONAL COURT FILE NO.: 75/11
DATE: 20111216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND HARVISON YOUNG JJ.
BETWEEN:
PRABHJOT KAUR JOHAL Applicant (Appellant)
– and –
BOARD OF FUNERAL SERVICES Respondent (Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: December 16, 2011
Date of Release: January 30, 2012