Court File and Parties
CITATION: Niagara Funeral Alternatives Inc. v Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966
DIVISIONAL COURT FILE NO.: DC-18-583
DATE: 20190826
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, D.L. CORBETT, and MYERS JJ.
B E T W E E N:
NIAGARA FUNERAL ALTERNATIVES INC. Appellant
- and -
REGISTRAR, FUNERAL, BURIAL AND CREMATION SERVICES ACT, 2002 Respondent
COUNSEL: Margaret A. Hoy, for the Appellant Bernard C. LeBlanc and Anastassia-Maria Hountalas, for the Respondent
Heard at Toronto: August 21, 2019
REASONS FOR DECISION
F.L. MYERS J.:
Background
[1] Niagara Funeral Alternatives Inc. appeals from the decision of the Licence Appeal Tribunal dated June 27, 2018. The tribunal ordered the Registrar under the Funeral, Burial and Cremation Services Act, 2002, SO 2002, c 33, to carry out its proposal to revoke the licence of Niagara Funeral to operate a Class 1 Transfer Service under the statute.
[2] For the reasons that follow, I would dismiss the appeal.
[3] I note that, on consent, the court has ordered that the court file be redacted to protect the privacy of a customer of Niagara Funeral and the customer’s family. In these reasons, I will not mention any names or circumstances that might reveal the family’s identity. In addition, some of the facts will be stated in a very general way so as to omit unpleasant details in light of the sensitivity of the subject matter.
[4] As a Class 1 Transfer Service, Niagara Funeral can be retained to pick up a deceased person’s remains from the place of death and transfer the remains to a funeral home or other appropriate location for burial or other disposition. The Transfer Service is responsible to transport the remains in an appropriate and dignified manner. Part of the service provided by Transfer Services, including Niagara Funeral, involves placing the remains into an appropriate receptacle for transport and burial or cremation as the case may be. Arranging the body and transferring it to a proper receptacle is typically performed in the privacy of a room called a “holding room”. Niagara Funeral’s policy is not to use holding rooms for these steps.
[5] Subsection 36(2) of the General Regulation, O Reg 30/11, under the Funeral, Burial and Cremation Services Act, 2002 provides:
(2) The transfer service operator shall ensure that the day-to-day operations of the transfer service are managed by a person licensed as a Funeral Director – Class 1.
[6] Jerome O’Charchin is a licenced funeral director and is the majority owner of Niagara Funeral. In its application for a licence renewal for 2015 and 2016, Niagara Funeral identified Jerome O’Charchin as its majority shareholder and manager.
[7] Patrick O’Charchin is the son of Jerome O’Charchin. Patrick O’Charchin is not a licenced funeral director. In its regulatory filings Niagara Funeral identified Patrick O’Charchin as its president and treasurer.
[8] In 2017, Niagara Funeral was retained to transport a deceased person’s remains from a hospital to a crematorium. Patrick O’Charchin instructed a contractor to pick up the remains and to transport them in an inappropriate manner. The contractor encountered difficulties in carrying out Patrick O’Charchin’s instructions. The contractor’s solutions multiplied the indignities inflicted upon the human remains. Before the tribunal, when confronted with the description of the events, Jerome O’Charchin described the handling of the remains as immoral and admitted that it was unethical. Two witnesses, each with lengthy experience in the industry, had tears in their eyes as they described the disrespectful handling of the remains.
[9] Following a complaint by a licenced funeral director who was one of the witnesses before the tribunal, the Registrar investigated the improper transport incident. The investigation revealed several additional other regulatory concerns. On September 29, 2017, the Registrar delivered a Notice of Proposal to revoke the registration of Niagara Funeral as a Class 1 Transfer Service due to: (a) the unethical transport incident; (b) numerous breaches of the Act and regulations concerning consumer contract and price list requirements; and (c) an allegation that Niagara Transport misled the Registrar by claiming in its regulatory filings that Jerome O’Charchin was the manager of operations when, in fact, unlicensed Patrick O’Charchin was actually the manager of the business.
[10] In the Notice of Proposal, the Registrar relied upon ss.14(1)(a)(i), (c)(i), and(d)(iii) of the statute as the basis of the proposal to revoke Niagara Funeral’s Class 1 Transfer licence. Those subsections provide:
14 (1) An applicant is entitled to a licence or to a renewal of the licence unless,
(a) the applicant or an interested person in respect of the applicant,
(i) is in contravention of this Act or the regulations, or…
(c) the applicant is a corporation and,
(i) the past conduct of officers or directors of the applicant or of an 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, or…
(d) in the case of an applicant for a licence to operate a cemetery, crematorium, funeral establishment, casket or marker retailing business, transfer service or other bereavement activity for which a licence is required under the regulations, or a renewal of such a licence,…
(iii) the registrar has reasonable grounds to believe that the operation of the business by the applicant creates a risk to public health, safety or decency;
[11] Niagara Funeral invoked its right to a hearing of the Notice of Proposal before the Licence Appeal Tribunal. Under s.18(5) of the Act, upon hearing the parties, the tribunal may “by order direct the registrar to carry out the registrar’s proposal or substitute its opinion for that of the registrar and may attach conditions to its order or to a licence”.
The Tribunal’s Decision
[12] In its decision, the tribunal recited substantial evidence that led it to find as a fact that Patrick O’Charchin was the manager of the business. He worked there full-time. He is featured on its website. The business email goes to him. He was referred to as the “manager” by the employee who first dealt with the Registrar’s inspector. Patrick O’Charchin answered most of the inspector’s inquiries. He directed the use of the improper transport. He dealt with questions raised by the two other funeral directors about the improper transport and he then met with those funeral directors when they requested follow-up.
[13] Jerome O’Charchin, by contrast, did not have the involvement in these matters which he should have had if he had been the actual manager of the business.
[14] The tribunal conducted a thorough review of the evidence and held that virtually all of the allegations were made out on a balance of probabilities. It considered expressly the appropriateness of the Registrar’s proposal to revoke Niagara Funeral’s licence.
[15] The tribunal noted the importance of weighing both positives and negatives in assessing the question of whether there are reasonable grounds for belief that the business will not be carried on in accordance with the law and with integrity and honesty under s.14(1)(c). It recited and weighed both the positive evidence relied upon by Niagara Funeral against the many breaches of the Act and regulation that it found. It ultimately concluded that there were reasonable grounds for belief that Niagara Funeral’s business will not be carried on in accordance with the law and with integrity and honesty. This was especially so because Patrick O’Charchin was the unlicenced manager of the business and even employees who were licenced funeral directors did not have the wherewithal to question his instructions that resulted in a client’s remains being treated with neither dignity nor respect.
The Appeal
[16] Niagara Funeral raises many grounds of appeal. Some overlap. It alleges that the tribunal made errors of law, fact, mixed fact and law, that it fettered its discretion, was biased, violated natural justice or procedural fairness, and assessed an unfit “penalty”.
[17] Before the tribunal, Niagara Funeral sought principally to blame its contractor for the inappropriate transfer incident in 2017. In this court, it seeks to blame the hospital.
[18] Niagara Funeral argues that the tribunal erred in finding that Niagara Funeral did not have a current price list, did not provide customers with required documents, and charged a customer for the use of a holding room when it did not use one. It also argues that these are minor regulatory failings which are readily remedied by an order short of the revocation of its licence.
[19] Niagara Funeral argues that the tribunal erred in finding as a fact that Patrick O’Charchin was the manager of the business.
[20] It argues that the tribunal erred in finding reasonable grounds to believe that the business will not be carried on in accordance with the law and with integrity and honesty.
[21] It also made arguments invoking the doctrines of “fettering discretion”, “reasonable apprehension of bias”, and “procedural fairness” which all resolved to a submission that the “penalty” of revocation imposed by the tribunal was unreasonable.
Jurisdiction
[22] This appeal is available under s.11(1) of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12. The Registrar incorrectly submits that the appeal is limited by s.11(3) of that statute to questions of law only. However, the limitation in s.11(3) is applicable only for appeals under a small number of statutes that are specifically listed in s.11(2). The Funeral, Burial and Cremation Services Act, 2002 is not among the statutes listed in s.11(2) and therefore the limitation of appeals to questions of law alone in s.11(3) is not applicable to this appeal. CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652, at para. 27.
Standard of Review
[23] The parties agree that the standard of review by which the court will assess the tribunal’s decision in this case is reasonableness: Registrar of Alcohol, Gaming and Racing v. MacLaren, 2018 ONSC 6576, at para. 24. The reasonableness standard applies even to questions of law on this appeal. The Court may intervene only if it finds that the Tribunal’s decision on a question of law was not among the range of possible outcomes that was reasonably open to it. Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, at paras. 27 – 31.
[24] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, the Supreme Court described the reasonableness standard of review of an administrative decision as follows:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[25] The court does not re-weigh the evidence in place of the tribunal. Nor does it dissect the reasons looking for microscopic inconsistencies. Rather, the court will consider whether the facts found and the legal conclusions drawn were within the range of what was reasonably available to the tribunal on the evidence before it.
[26] Questions of procedural fairness are assessed without regard to a standard of review. A process is fair or not depending on the degree of procedural protections required and whether they were provided in the circumstances of the case before the court. Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC).
Analysis
[27] All of the grounds advanced by Niagara Funeral challenge findings of fact or, at most, findings of mixed fact and law. There was ample evidence before the tribunal to make the findings it made. Its reasons are detailed and intelligible. Regardless of how the hospital presented the human remains, Niagara Funeral chose the disgraceful manner of transporting them from the hospital. Niagara Funeral does not have the required consumer documentation despite its arguments as to why it chooses to operate as it does. There was substantial evidence that Patrick O’Charchin is the manager of day-to-day operations of the business and Niagara Funeral has misled the Registrar in its regulatory filings by claiming that Jerome O’Charchin is the manager. All of these findings were open to the tribunal on the evidence before it.
[28] Niagara Funeral argues that the “penalty” was too severe. This mis-characterizes the issue before the tribunal. This was not a disciplinary hearing per se. Niagara Funeral refers to the Code of Ethics and Discipline set out in Part VIII of the Act. Breaches of the Code may be subject to enforcement procedures and penalties under Part X of the Act. That is not what was before the tribunal in this case. This may be more a matter of nomenclature than substance as the issues are similar. However, conceptually, in this case the tribunal is not imposing a fit penalty or sentence to punish proven historical acts of misconduct. Rather, the tribunal’s role is to determine if the Registrar has proven the grounds for the relief it proposes to take under s.14 of the Act. Section 14 is predictive or forward looking in its consideration of a licencee’s likely future conduct. There is ample authority as to the interpretation of licensure provisions like s.14 in many similar statutes.
[29] However, as set out above, the tribunal does have the authority to make other orders and to impose terms in place of the outcome proposed by the Registrar. So, while it is making a determination based on the Registrar’s proposal, it is also engaged in an assessment of the appropriateness of the outcome. Loose use of the term “penalty” by counsel and the tribunal does not signify an error of law therefore, as the processes are similar and the tribunal applied the correct principles to the task that was before it.
[30] Niagara Funeral argues that the tribunal could have ordered it to hire a licenced manager and to fix its other, more minor documentation issues. It submits that revoking its licence for a single error in judgment in 17 years of operation was too drastic. However, before the tribunal Niagara Funeral did not propose to hire a licenced funeral director. Its whole case turned on its factual argument that 88 year old, semi-retired Jerome O’Charchin was the manager of day-to-day operations of the business. Niagara Funeral was proposing that it continue to operate with unlicenced Patrick O’Charchin in control of operations as his father’s “helper”.
[31] Niagara Funeral does not accept the need for its business to be managed by a licenced funeral director as required by the regulation and the results are sadly all too clear. This led the tribunal to note at para. 40 of its decision:
I find the failure to accept responsibility and the failure to recognize that the course of action that led to the shameful handling of the…remains began with [Patrick O’Charchin] goes a long way to convince me that licensing on terms is not a viable solution.
[32] Even if characterized as a “penalty”, the court will defer to a regulatory body’s assessments of remedies provided that the regulator or tribunal makes no error in principle and that the remedy ordered is not manifestly unfit. Neither ground for appellate intervention is made out in this case.
Order
[33] In all, in my view, the decision of the tribunal to order the Registrar to carry out its proposal fell within the range of outcomes that was reasonably available on the evidence before it.
[34] The appeal is therefore dismissed.
[35] Counsel agreed that costs fixed in the amount of $10,000 will be ordered in favour of the successful party. Niagara Funeral is therefore ordered to pay the Registrar costs of $10,000 all-inclusive.
F.L. Myers J.
I agree _______________________________
Kiteley J.
I agree _______________________________
D.L. Corbett J.
Dated: August 26, 2019
CITATION: Niagara Funeral Alternatives Inc. v Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966
DIVISIONAL COURT FILE NO.: DC-18-583
DATE: 20190826
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
NIAGARA FUNERAL ALTERNATIVES INC. Appellant
- and -
REGISTRAR, FUNERAL, BURIAL AND CREMATION SERVICES ACT, 2002 Respondent
REASONS FOR DECISION
F.L. Myers J.
Released: August 26, 2019