CITATION: September 21 Inc. v. Registrar, Bereavement Authority of Ontario, 2023 ONSC 2700
DIVISIONAL COURT FILE NO.: 104/22
DATE: 20230505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Lococo and O’Brien JJ.
BETWEEN:
September 21 Inc.
Applicant
– and –
Registrar, Funeral, Burial and Cremation Services Act, 2002 and Lisa Tsotsos as Estate Trustee of the Estate of Louis Tsotsos, deceased
Respondents
Jordan Glick and Lisa Feinberg, for the Applicant
Bernard C. LeBlanc and Anastasia-Maria Hountalas, for the Respondent Registrar
HEARD at Toronto (virtually): March 29, 2023
Aston J.
REASONS FOR DECISION
[1] September 21 Inc. brings this judicial review application to quash the January 26, 2022 Order of the Registrar of the Bereavement Authority of Ontario (“BAO”) that “the owners of the Headford Cemetery not interfere with, or make any further attempts to delay, the interment of Louis Tsotsos” and “provide any assistance needed to ensure the family and Funeral Home have access to the Cemetery on the day of the interment”. The Applicant also challenges the predicate determinations by the BAO on December 23, 2021, confirmed January 20, 2022, on a reconsideration, that Louis Tsotsos and his family have interment rights for certain cemetery plots.
[2] The Applicant submits that the Order and antecedent determinations of interment rights were made without authority or jurisdiction or alternatively that the Applicant was denied procedural fairness. The Respondent submits that only the Order of January 26 is reviewable; that neither the BAO Investigator nor the Deputy Registrar were exercising any statutory decision-making power in their e-mail communications of December 23 or January 20.
The Parties
[3] The Applicant is not a licensed cemetery operator, but it owns the land upon which the cemetery is located. The Applicant’s tenant, a church (the “Church”), has applied for a cemetery operator’s licence but has not yet been licensed. Because there is no current licensee, the Applicant, as owner, is subject to the duties of a “cemetery operator” under s. 5(2) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33 (the FBCSA). Under s. 5(3), those duties include ensuring that “any interment of human remains be carried out in a decent and orderly manner” and that “every person has reasonable access” to the cemetery lots.
[4] The BAO is statutorily designated as the sole administrative authority for the FBCSA and regulations made under that Act. The Registrar’s duties under the FBCSA include responding to complaints and overseeing compliance with that Act and its regulations.
[5] The Estate of Louis Tsotsos did not participate in this judicial review application. Nor did the Church.
Background
[6] On January 18, 2022, the BAO received a call from Mary Tsotsos about difficulties being encountered over the interment of her recently deceased brother, Louis Tsotsos. The BAO characterized the call as a “complaint” under s. 66 of the FBCSA and purported to make its January 26, 2022, Order under s. 66(4)6, which empowers the Registrar to “take further action as is appropriate in accordance with this Act”.
[7] The BAO had already been engaged in an investigation of the interment rights at the cemetery. In June 2021, the Church gave notification that the 2019 burial of a Tsotsos family member may have been “illegal”. The BAO investigated the history of interment rights for the cemetery plots questioned by the Church. It concluded that the “Tsotsos family purchased four lots, two of them double lots, from the Barker family in 2014”.
[8] The BAO communicated that conclusion to the Church in its December 23, 2021 e-mail, referenced above. The Church then asked for copies of all documents or information that the BAO relied on. The BAO responded that its investigative records could only be released to a licensee under the FBCSA or with the consent of the family. Mary Tsotsos later did give permission for the release of documents and information to the Church and to the Applicant after her unsuccessful attempt to bury her brother.
[9] Before the interment of Louis Tsotsos took place, September 21 initiated this judicial review application and requested a stay of the January 26 Order.
[10] On August 17, 2022, an Order was granted on consent permitting the interment of Louis Tsotsos on various terms and conditions, including a provision that if this judicial review application is successful the remains will be disinterred and removed at the expense of the Tsotsos Estate.
Standard of Review
[11] If the Order was made without jurisdiction, or if the Applicant was denied procedural fairness, the Order must be quashed.
[12] If the Registrar had the authority to make the Order, and did not deny the applicant procedural fairness, the standard of review for the January 26 Order and the underlying factual findings is reasonableness.
[13] The Respondent submits that the standard of review on the issue of the Registrar’s jurisdiction is correctness, citing Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 29. Though not referred to in its factum, the Applicant also has brought to our attention the recent Supreme Court of Canada decision in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at paras. 26-42. This case recognizes a new category of correctness review: when a court and an administrative body both have first instance jurisdiction over a legal issue in a statute and “reasonableness would undermine legislative intent or the rule of law in a manner analogous to the five correctness categories discussed in Vavilov at paras. 23 and 70”. We are skeptical that the jurisdictional issue in this case is a true question of vires as defined in para. 59 of Dunsmuir or that it is one of the “rare and exceptional circumstances” described in Society of Composers. However, we will assume, without deciding, that we need not afford deference to the Registrar’s assertion of authority on this judicial review.
[14] With respect to procedural fairness, a process is fair or not depending on the degree of procedural protections required and whether they were adequately protected in the circumstances of the case having regard to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. See also Niagara Funeral Alternatives Inc. v Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966 (Div. Ct.).
Is the Order of January 26, 2022 beyond the jurisdiction or authority of the Registrar?
[15] The Registrar expressly cited s. 66(4)6 of the FBCSA as the authority for the January 26 Order. The applicant submits that the Registrar had no authority to make the impugned Order under s. 66 of the FBCSA because that section only comes into play “if the Registrar receives a complaint about a licensee …” (emphasis added).
[16] The phone call from Mary Tsotsos on January 18, 2022 can be characterized as a consumer complaint, but it was not a complaint about a licensee. Neither the Applicant nor its tenant, the Church, are licensees. We agree with the Applicant’s submission. The Registrar’s authority to make the Order cannot be shoehorned into s. 66 of the FBCSA.
[17] However, the explicit reference to s. 66 of the FBCSA in the Registrar’s order is not fatal to the validity of the Order if there is other authority for the Registrar to make that order. In fact, the Order does also generically cite “my delegated authority, powers and obligations under the Act”. The consumer protection and public interest mandates of the BAO were engaged by the January 18, 2022 call from Mary Tsotsos, properly characterized as a complaint about compliance with the FBCSA.
[18] September 21 submits that the Registrar does not have any adjudicative function under its enabling legislation, and only the Superior Court has jurisdiction to determine interment rights. The Superior Court has been a forum for the determination of interment rights in the past, but that does not mean it is the exclusive forum. The Registrar’s investigation of interment rights in this case was incidental to the obligation to oversee the administration of the FBCSA. The Registrar’s investigation was not an investigation of land ownership. It was a response to a complaint from a member of the public about a breach of the FBCSA. It was an investigation of incidental interment rights within the context of an obligation to ensure an orderly burial. We agree with the Respondent that the BAO e-mail communications to the Church on December 23, 2021 and January 20, 2022 were merely ancillary determinations, not statutory orders.
[19] The FBCSA defines “interment rights” and “interment rights holder”. The proper regulation of cemeteries, central to the purpose of the FBCSA, sometimes necessarily includes the determination of interment rights. In this case, for example, the Registrar had to make a preliminary determination that the Tsotsos family had interment rights before initiating any action on their behalf. Coincidentally, the BAO had already investigated that threshold factual issue at the behest of the Church. The Church did not provide any evidence of a competing claim. It simply asked the BAO to delve into whether the Tsotsos family had interment rights. The BAO did what it was asked to do. As set forth below, its finding of fact regarding those interment rights (conducted in the context of determining the legality of the 2019 burial) is supported by evidence and is reasonable. In these circumstances, the delegation of authority to the Registrar for the interpretation, administration and enforcement of obligations under its home statute, the FBCSA, included the authority to determine whether the Tsotsos family holds interment rights.
[20] The Registrar’s statutory duty to ensure that any interment of human remains be carried out in a decent and orderly manner surely includes the authority to order a cemetery owner or cemetery operator “not to interfere with or make any further attempts to delay” an interment.
[21] Cemetery operators have specific duties under the FBCSA. The Applicant in this case is subject to those duties set out in s. 5(3). A cemetery operator “shall ensure that any interment of human remains [is] carried out in a decent and orderly manner and that quiet and good order are maintained in the cemetery at all times”. The Registrar’s Order in this case simply requires the Applicant to meet that obligation.
[22] When the cemetery owner was apparently threatening to interfere with the orderly interment of the only person claiming an interment right in January 2022, the Registrar correctly asserted authority to make the refraining Order of January 26. Having determined that the Registrar correctly assumed jurisdiction to make the Order (and to incidentally address the complainant’s evidence of interment rights) the Registrar’s interpretation of the BAO’s authority is also a reasonable interpretation of its home statute.
Was there sufficient evidence to support the finding that the Tsotsos family has interment rights?
[23] The BAO conducted an inquiry at the request of the Church and found that the Tsotsos family purchased four lots from the Barker family in 2014.
[24] One of the family members, Mary Tsotsos, provided the BAO with a copy of a letter of purchase of interment rights whereby the family received the rights to “4 of the former George Barker plots. These plots are located at the north end of the recorded Barker family row of plots.” The original owner (Barker) and the cemetery trustee at the time both signed the letter.
[25] On May 14, 2021, a BAO inspector went to the cemetery and took photos of the monument at the plots. The monument had the names of six Tsotsos family members.
[26] The BAO also obtained four undated maps of the Cemetery. Three of the maps show the Barker family’s plots. One of those three maps includes a notation that four of the Barker plots belong to the Tsotsos family.
[27] The BAO also obtained a copy of a handwritten direction from Louis Tsotsos indicating that he sold his plot at the cemetery to Mary and another person and that he will instead be buried in the double plot with his father, Nick Tsotsos.
[28] Based on this information, the BAO concluded that the Tsotsos family purchased the rights to four plots (to handle six interments; two were “double” plots) from the Barker family. Two of the four plots already had remains of Tsotsos family members in 2019 when the Applicant purchased the property.
[29] The Applicant has not tendered any evidence to refute this evidence or to identify any other person who might have claimed interment rights. As it turned out, Louis Tsotsos was not buried until eight months after the January 26 Order, in August 2022. The Applicant had ample opportunity to find evidence that would contradict the Registrar’s determination of the Tsotsos family interment rights but has not done so, even now.
[30] The Applicant alleges that the material the Registrar relied on might be the product of fraud or forgery, but it has not provided any evidence whatsoever to support that allegation.
[31] The Applicant submits that the Tsotsos family purchase of interment rights was improperly documented, accounted for, and formalized under the provisions of the FBCSA. The Respondent concedes that the documentation does not formally meet the current requirements of the FBCSA. However, the FBCSA only came into force July 1, 2012, and in this particular case, the Headford Cemetery has never been licensed under that Act. The Registrar’s conclusion that the Tsotsos family purchased the lots in question and that the transfer of those rights was acknowledged by the then-operator of the cemetery was a reasonable finding of fact.
[32] Under s. 163 of the FBCSA, cemetery operators can issue certificates of interment, evidence of the person holding the interment right for any particular plot. There is no evidence that the Applicant or any prior cemetery owner ever issued such a certificate. However, there is clear evidence that the prior cemetery operator recognized the interment rights of the Tsotsos family.
[33] On January 24, 2022, the BAO was informed by a board member of the former operator of Headford Cemetery that the interment rights for the lots in question had been transferred from Charles Barker to the Tsotsos family before September 21 purchased the property in 2019. This was consistent with what BAO investigators had already determined from a number of other source documents and from the fact that the Tsotsos family monument was already in place, marking burials of two of its family members in 2014 and 2019.
[34] The BAO finding that the Tsotsos family had interment rights for the plots in issue is supported by ample evidence and is reasonable.
Was the Applicant denied procedural fairness?
[35] The Church is not a party to this application.
[36] September 21 challenges the Order, but the interests of the Church and the Applicant should not be conflated. This is important in the context of the Registrar’s obligation to provide notice, and an opportunity to be heard. The nature and extent of the duty of fairness owed in this particular case reflects the impact on the Applicant, not the Church.
[37] As a regulator, the Registrar’s primary obligation is to regulate licensees under the FBCSA but it also has supervisory authority over cemetery operators and those who stand in the shoes of operators such as the Applicant. Under s. 5(2) of the FBCSA, the Applicant is subject to the duties of a cemetery operator. However, s. 5(2) does not afford the Applicant the rights of a cemetery operator.
[38] Even if the Applicant had standing to assert a competing interment right on its own behalf, or on behalf of some unknown unidentified person, the Registrar’s overarching duty to oversee compliance with the FBCSA and its regulations affords justification for the Order, particularly in somewhat urgent circumstances.
[39] September 21 was minimally affected by the Order given that the land in question is a cemetery which serves the single purpose of providing a place for the interment of human remains. When it purchased the property in 2019, the Applicant knew the land was subject to pre-existing interment rights. There is no evidence the lots in question are owned by any other person(s) asserting any competing interment right. Even if there was, September 21 has no right to assert such a competing claim. The Applicant had no right to interfere with or delay the interment of Louis Tsotsos.
[40] The investigative record of the Registrar was ultimately produced to the Applicant on January 25, 2022. Though this was only the day before the Order, it constitutes the communication of the evidence relied upon for the single reason recited in the Order – that the Tsotsos family had provided sufficient evidence of its interment rights. No other reason needed to be cited.
Conclusion
[41] The Registrar’s factual finding that the Tsotsos family had interment rights was incidental to its refraining Order. It was based on strong prima facie evidence and the Applicant had no contrary evidence to offer. There was no denial of procedural fairness.
[42] The application is dismissed. Counsel have agreed that the successful party is entitled to costs fixed in the amount of $30,000 all inclusive. So ordered.
Aston J.
I agree _______________________________
Lococo J.
I agree _______________________________
O’Brien J.
Released: May 5, 2023
CITATION: September 21 Inc. v. Registrar, Bereavement Authority of Ontario, 2023 ONSC 2700
DIVISIONAL COURT FILE NO.: 104/22
DATE: 20230505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Lococo and O’Brien JJ.
BETWEEN:
September 21 Inc.
Applicant
– and –
Registrar, Funeral, Burial and Cremation Services Act, 2002 and Lisa Tsotsos as Estate Trustee of the Estate of Louis Tsotsos, deceased
Respondent
REASONS FOR decision
Aston J
Released: May 5, 2023