CITATION: Registrar, Funeral, Burial and Cremation Services Act, 2002 v. Lilley, 2022 ONSC 5757
DIVISIONAL COURT FILE NO.: 963/21
DATE: 2022-10-14
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Registrar, Funeral, Burial and Cremation Services Act, 2002, Appellant
AND
Jason C. Lilley and Northridge Funeral Home Ltd., Respondents
BEFORE: McWatt A.C.J.S.C., Swinton and J. McCarthy JJ.
COUNSEL: Bernard C. LeBlanc and Anastasia-Maria Hountalas, for the Appellant
Robert Sinding, for the Respondents
HEARD at Toronto (by videoconference): October 11, 2022
ENDORSEMENT
Swinton J.:
Overview
[1] The Registrar, Funeral, Burial and Cremation Services Act, 2002 appeals a decision of the License Appeal Tribunal dated November 22, 2021, which ordered him not to carry out a Notice of Proposal that would have revoked the funeral director licence of the respondent Jason Lilley and the funeral establishment operator licence of the respondent Northridge Funeral Home Ltd. The decision instead imposed two conditions on the funeral director licence: that Mr. Lilley advise the Registrar within five business days of any charges under federal and provincial law, including breach of any terms of his conditional sentence, and that he fully and promptly co-operate in any inquiry made by the Registrar regarding such charges or convictions.
[2] Mr. Lilley had admitted to the theft of approximately $86,000 from the Emo Lion’s Club over the course of four years, when he had been charter president and/or treasurer. He admitted that he took the funds to pay Northridge’s debts. In criminal proceedings in May 2021, he pleaded guilty to theft over $5,000, and in August 2021 he was sentenced to a conditional sentence of 18 months, including six months of house arrest. He repaid the money he had taken from the Lion’s Club.
Jurisdiction and Standard of Review
[3] The Divisional Court has jurisdiction to hear this appeal under s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G.
[4] The standard of review is correctness for errors of law and palpable and overriding error for questions of fact (unless there is an extricable error of law, when the standard is correctness) (Housen v. Nikolaisen, 2022 SCC 33 at paras. 8, 10 and 33).
Issues
[5] The Registrar argues that the Tribunal made three errors: it failed to consider two of three statutory grounds relied upon in the Notice of Proposal; it erred by determining that the lack of misappropriation of trust funds was a mitigating factor; and it erred in its treatment of inaccuracies in the Agreed Statement of Facts from the criminal proceedings.
[6] For the reasons that follow, I would dismiss the appeal.
Analysis
[7] The Notice of Proposal set out several grounds for seeking the cancellation of the respondents’ licences. At the hearing, the Registrar stated that he relied on s. 14(1)(b)(i) and (ii) and 14(1)(c)(i) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 in his written submissions. Those provisions state:
14 (1) An applicant is entitled to a licence or to a renewal of the licence unless,
(b) the applicant is not a corporation and,
(i) having regard to the applicant’s financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business,
(ii) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty, 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 …
[8] The Registrar argues that the Tribunal dealt only with s. 14(1)(b)(ii) – that is, whether the past conduct of Mr. Lilley afforded reasonable grounds for belief that he would not carry on business in accordance with the law and with integrity and honesty. There was no discussion of the other two grounds, he submits, and this is a reason to overturn the decision.
[9] I see no basis for appellate intervention on this ground. The allegation against the funeral home in s. 14(1)(c)(i) rests on a consideration of the past conduct of the corporation’s officers or directors. Mr. Lilley is the sole officer and director of Northridge Funeral Home Limited. Given the Tribunal’s findings with respect to his past conduct and his ability to carry on business in accordance with the law and with integrity and honesty, it follows that the Tribunal would reach the same conclusion about the application of s. 14(1)(c)(i) respecting the corporation. There is no need to send this issue back to the Tribunal, given the determination that revocation of Mr. Lilley’s licence was not appropriate pursuant to s. 14(1)(b)(ii).
[10] With respect to s. 14(1)(b)(i), it is true that there is no clear analysis of this section. However, again, there is no purpose is sending this issue back to the Tribunal. At para. 17 of its reasons, the Tribunal stated,
… despite there being no evidence that trust funds were interfered with, nor any evidence that the business itself was not financially viable, the Registrar is of the belief that Mr. Lilley cannot be trusted with those funds, especially as he is entrusted with funds by persons who are in a vulnerable position dealing with the loss of a loved one. (emphasis added)
Thus, the Tribunal found that there was no evidence that the business was not financially viable, and there was no evidence of misappropriation of trust funds. I see no error respecting s. 14(1)(b)(i).
[11] Moreover, the oral submissions by the Registrar’s counsel found in the transcript of the hearing before the Tribunal suggest that the focus of the argument before the Tribunal was the impact of the theft on Mr. Lilley’s future trustworthiness, not his financial position.
[12] That brings me to the second issue: whether the Tribunal erred in its assessment of the fact that there was no misappropriation of trust funds. The Registrar argues that the Tribunal erred in treating this as a mitigating factor.
[13] I disagree. It is true that the Tribunal gave a great deal of weight to the fact that Mr. Lilley did not appropriate trust funds. However, I do not understand the Tribunal to say that the failure to take trust funds was a mitigating factor. Rather, I read the reasons to say that appropriation of trust funds would have been an aggravating factor.
[14] When one reads the reasons as a whole, it is clear that the Tribunal carefully considered the serious nature of the theft. However, it also found that Mr. Lilley’s criminal conduct was out of character, and that he appreciated the seriousness of his misconduct and had insight into it. The Tribunal considered his unblemished record from 1992 and commendations from customers, concluding that he deserved a second chance, and public protection and consumer protection did not require revocation in the unique set of facts before the Tribunal. I see no error in the Tribunal’s treatment of the evidence, nor its application of s. 14(1)(b)(ii).
[15] The third argument of the Registrar turns on an allegation that there were inaccuracies in the Agreed Statement of Fact in the criminal proceeding that damaged Mr. Lilley’s credibility. One of those errors was described as a palpable and overriding error – the statement that the theft was off duty and did not involve Mr. Lilley’s business.
[16] The Tribunal agreed with the submission that the conduct did involve the business, because the stolen funds were diverted to the funeral home (see para. 12 of the reasons). However, the Tribunal did not accept that this inaccuracy in the Agreed Statement of Facts was an attempt to mislead the criminal court or damaging to Mr. Lilley’s credibility as a whole.
[17] The Tribunal, having heard all the evidence, including Mr. Lilley’s testimony, was in a much better position than this Court to assess his credibility. I do not accept the argument that the Tribunal made any palpable and overriding error of fact justifying appellate intervention.
Conclusion
[18] The appeal is dismissed.
[19] Costs are payable to the respondents in the agreed upon amount of $15,000 all inclusive.
Swinton J.
I agree _______________________________
McWatt A.C.J.S.C.
I agree _______________________________
J. McCarthy J.
Date: October 14, 2022