Court File and Parties

COURT FILE NO.: CV-16-556129 DATE: 20170317

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SAM TSEKHMAN and ROMAN TSEKHMAN Plaintiffs – and – SHMUEL SPERO, BETH ISRAEL ANSHEI MINSK CONGREGATION also known as ANSHE MINSK CONGREGATION and as ANSCHE MINSK CONGREGATION and as ANSHAI MINSK CONGREGATION and STAN FEDERMAN Defendants

COUNSEL: H. Richard Bennett, for the Plaintiffs Marek Z. Tufman, C.S. and Gregory A.P. Tufman, for the Defendants

HEARD: March 9, 2017

Reasons for Decision

Mr. Justice P.J. Cavanagh

[1] In this action, the Plaintiffs, who are brothers, claim various relief in relation to the arrangements for the burial of their father’s remains in a plot beside the plot in which their mother’s remains are buried in a cemetery owned and operated by the Defendant Beth Israel Anshei Minsk Congregation also known as Anshe Minsk Congregation and as Ansche Minsk Congregation and as Anshai Minsk Congregation (“Minsk Congregation”).

[2] The action has been defended by the defendants with the exception of Stan Federman (“Federman”) who has not defended the action. No relief is sought against Federman on this motion, and he did not appear on the hearing of this motion.

[3] The Plaintiffs move for summary judgment and seek:

a. a mandatory order directing the defendants Shmuel Spero (“Rabbi Spero”) and the Minsk Congregation to issue to the Plaintiffs Interment Rights Certificates in prescribed form pursuant to the Funeral, Burial and Cremation Services Act, 2002 (Ontario) with respect to Lots 64 and 65, Row D of the lands described in paragraph 1 (h) of the Notice of Action and Statement of Claim herein (the “Lands”), and other ancillary relief relating to the Plaintiffs’ interment rights.

b. An order varying the temporary injunction orders of Justice E.M. Stewart dated August 30, 2016 to provide for a permanent injunction as against the Defendants restraining them from dealing with the Lands.

c. Damages for breach of contract.

[4] One of the issues on this motion was whether there was a settlement made through correspondence between counsel for the parties in January and February 2017. The Defendants Rabbi Spero and the Minsk Congregation submitted that there was a settlement by which the Minsk Congregation agreed to issue an Interment Rights Certificate in exchange for payment of a purchase price of $4,000, but that payment of the $4,000 purchase price had not been made by the Plaintiffs. The Plaintiffs denied that there was a settlement by which they had agreed to pay $4,000, or any amount, to the Minsk Congregation, although they were willing to have the Interment Rights Certificate show a purchase price of $4,000.

[5] At the beginning of the hearing of this motion, I was advised that on March 7, 2017, Federman had delivered to Rabbi Spero a cheque in the amount of $4,000 for the purchase price of the plot for Itshok (Isaac) Tzekhman, the Plaintiffs’ deceased father, and that an Interment Rights Certificate that was signed by Rabbi Spero on behalf of the Minsk Congregation had been delivered to counsel for the Plaintiffs. Counsel for the Plaintiffs and counsel for the Minsk Defendants agreed upon minor revisions to the Interment Rights Certificate and the Plaintiffs and the Minsk Defendants consented to an order for the issuance and delivery of the Interment Rights Certificate to the Plaintiffs in this revised form, forthwith. This resulted in the settlement of a significant portion of the motion (the relief claimed in paragraph [3] a. above) and action.

[6] The Plaintiffs proceeded to make submissions with respect to their motion for summary judgment for the relief described in subparagraphs [3] b. and c. of these Reasons.

Factual Background

[7] The Plaintiffs’ father died approximately 35 years ago in Winnipeg. He is buried at Rosh Pina Memorial Cemetery in Winnipeg (the “Winnipeg Cemetery”).

[8] The Plaintiffs’ mother died on November 23, 2014 in Toronto. Her wishes were for the Plaintiffs’ father to be buried next to her. To honour their mother’s wishes, the Plaintiffs decided to purchase a double burial plot, being two single plots side by side, somewhere in Toronto. Their intention was to first bury their mother and to later exhume their father from the Winnipeg Cemetery, transport their father’s remains to Toronto and inter their father next to their mother.

[9] On November 24, 2014 the Plaintiffs dealt with Federman in an effort to buy burial plots. Federman recommended that both the Plaintiffs’ mother and father be interred at the Bathurst Lawn Memorial Park Cemetery (“Bathurst Lawn”) in Toronto. He said that he had contacts at the Minsk Congregation and that he could arrange to purchase a double burial plot at the Minsk Congregation section at Bathurst Lawn. Federman asked for payment of $16,000 for the double plot. Federman advised that as part of the purchase of the double plot, the Plaintiffs also had to pay Minsk Congregation its annual dues and a separate fee to Rabbi Spero. The Plaintiffs paid Federman the sum of $16,000 on November 24, 2015 and they paid Minsk Congregation its annual dues of $200 plus a fee of $500 to Rabbi Spero on November 24, 2014.

[10] The Plaintiffs’ mother was interred in Plot 65, Row D of the Lands on November 24, 2014.

[11] The Plaintiffs contacted the Winnipeg Cemetery to inquire about the exhumation of their father and the transfer of his body and casket to Toronto. They were informed that before the Winnipeg Cemetery would exhume their father, it required formal written authorization from the Plaintiffs that they have the rights to inter their father in the particular burial plot next to their mother at Bathurst Lawn in Ontario. In particular, the Winnipeg Cemetery told them that it needed proof of precisely where their father is to be interred before the cemetery can begin the process of the exhumation of their father and proceed with his transportation to Toronto.

[12] The Plaintiffs proceeded to try to obtain the required paperwork. Rabbi Spero provided a letter dated July 9, 2015 addressed to Sam Tsekhman that was signed by Rabbi Spero on behalf of the Minsk Congregation that confirms that the plot at Row D Plot 64, beside the plot in which the Plaintiffs’ mother was interred, is reserved for their father. The letter contains the following statement:

The plot reservation is thru the year 2016. At the end of 201[illegible] if no burial has taken place the reservation ends and the synagogue is free to assign Row D plot 64 to whomever he chooses with no claims whatsoever to the synagogue.

This letter was signed and dated by Rabbi Spero and by Sam Tsekhman on September 18, 2015.

[13] The Plaintiffs understood that the letter did not comply with the requirements set out in the Funeral, Burial and Cremation Services Act, 2002 (the “FBCSA”) The Plaintiffs made further inquiries of Rabbi Spero and Federman and asked them to assist in issuing an Internment Rights Certificate in the prescribed form. Rabbi Spero told them to send him a formal written direction for him to issue the certificate. On August 28, 2015 and on September 3, 2015 Plaintiffs sent written directions to Rabbi Spero and to the Minsk Congregation authorizing and directing them to issue a Certificate of Interment for their father’s burial plot at Bathurst Lawn. Rabbi Spero and the Minsk Congregation did not respond.

[14] In April 2016, Rabbi Spero informed the son of Roman Tsekhman that the plots were not sold to the Plaintiffs but rather that the $16,000 was merely a “reservation” which could only be maintained provided that the Plaintiffs’ family abides by certain conditions set by the Minsk Congregation, including payment of maintenance fees on the plots into perpetuity. Rabbi Spero also disputed that the rights to the burial plots were “purchased”.

[15] The evidence of Rabbi Spero is that the Minsk Congregation has not obtained any monies from the Plaintiffs and that it does not have any business relationship with Federman to whom the Plaintiffs say they paid monies.

[16] A Notice of Action was issued July 6, 2016 and a Statement of Claim dated August 5, 2016 was later delivered. A Statement of Defence was delivered by Rabbi Spero and the Minsk Congregation dated October 27, 2016.

[17] A motion brought by the Plaintiffs was heard by the Honourable Justice E.M. Stewart on August 30, 2016 in which the Plaintiffs sought an order directing the issuance of a Certificate of Pending Litigation and other relief. That day, an order was made by Stewart J., on consent, adjourning the motion and ordering on a without prejudice basis that, pending the date of the return of the motion, Rabbi Spero and the Minsk Congregation shall not in any way deal with the Lands. This order was extended by order of Kristjanson J. dated October 27, 2016 until the return of the within motion.

Motion for Permanent Injunction

[18] Now that the Minsk Congregation has agreed to issue the Interment Rights Certificate, there should not be any obstacle to completion of the arrangements to exhume the Plaintiffs’ father from the Winnipeg Cemetery and transfer his body and casket to Toronto for burial at Bathurst Lawn in the plot next to their mother. In my view, the evidence does not support the issuance of a permanent injunction. The Plaintiffs’ motion for summary judgment for a permanent injunction is dismissed.

Motion for Judgment for Damages

[19] The second part of the Plaintiffs’ motion is for judgment for damages for breach of contract resulting from the failure of Rabbi Spero and the Minsk Congregation to issue and deliver the Certificate of Interment in a timely way.

[20] The Plaintiffs submit that:

a. They made an interment rights agreement with the Minsk Congregation by which it was agreed that they have the right to bury their father and mother in plots 64 and 65, Row D of the Lands.

b. Under this agreement, they acquired “interment rights” which, pursuant to the FBCSA, include “the right to require or direct interment of human remains in a lot”.

c. As such, the Plaintiffs became “interment rights holders” pursuant to the FBCSA.

d. Interment rights holders have the right to, once the interment rights have been paid in full, receive a certificate of interment rights from the operator. This right is fundamental to the interment rights agreement.

e. Minsk Congregation has admitted that it is an “owner” of the Lands and an “operator” pursuant to the provisions of the FBCSA. As such, as owner, it has an obligation to ensure that the cemetery operator complies with the requirements of the FBCSA and the regulations and, as operator, it shall ensure that the cemetery is operated in accordance with the FBCSA and the regulations.

f. In breach of their agreement, the Minsk Congregation failed to issue an Interment Rights Certificate in respect to the Plaintiffs’ father and its failure to do so has resulted in three losses suffered by the Plaintiffs:

i. An inability for the Plaintiffs to honour their mother’s wishes to have their father buried next to her.

ii. An inability for the Plaintiff to comply with the customs and laws of Judaism and direct and unveil a double monument gravestone to commemorate their parents.

iii. An aggravation of the Plaintiffs’ grief and loss in the death of their mother and an inability to achieve “peace of mind” or proper transition in the grieving process for their mother.

[21] The Defendants Rabbi Spero and the Minsk Congregation submit that:

a. The Statement of Claim does not adequately plead the claims that the Plaintiffs advance on this motion for damages for loss of peace of mind.

b. The Minsk Congregation as operator of the cemetery at Bathurst Lawn does not sell plots and it never issues certificates of interment which are required by legislation on the purchase of an interment plot.

c. All necessary documents required by the Winnipeg Cemetery for the exhumation of the body of the Plaintiffs’ father and the transfer of the body and casket to Toronto were provided, and an Interment Rights Certificate was neither necessary nor appropriate. Therefore, the failure to issue an Interment Rights Certificate did not cause any damages to the Plaintiffs.

d. The July 9, 2015 letter sent by Rabbi Spero on behalf of the Minsk Congregation to Sam Tsekhman confirming that Plot 64 in Row D at Bathurst Lawn is reserved for Isaac Tsekhman contains the information prescribed by the regulations under the FBCSA and, therefore, qualifies as an interment rights certificate.

e. The remedy for failure to issue an Interment Rights Certificate is statutorily limited by s. 40(2) of the FBCSA to recovery of amounts paid under a contract for the purchase of licensed supplies or services together with costs.

f. The Plaintiffs did not provide evidence that they suffered any damages as claimed.

g. If damages are awarded, they should not exceed a nominal amount.

h. No judgment should be made against Rabbi Spero because he acted only as agent of the Minsk Congregation, the party with which the Plaintiffs made their agreement, and there is no proper basis to pierce the corporate veil and hold him personally liable.

[22] The Plaintiffs plead, at paragraphs 7 to 16 of the Statement of Claim, the material facts upon which they rely in support of their pleading that they entered into a binding agreement with the Defendants whereby they purchased burial rights for Plots 64 and 65, Row D of the Lands to inter their father and mother. The Plaintiffs plead, at paragraphs 17 to 31 of the Statement of Claim, the material facts upon which they rely to assert that there was a breach of this agreement. The Plaintiffs also plead, at paragraph 33, as follows:

The Defendants’ failure to issue an Interment Rights Certificate has prejudiced the Plaintiffs’ ability to abide by the traditional laws and customs of Judaism which require an unveiling ceremony of the burial gravestone monument to take place within 11 months after a deceased person is buried. The Defendants’ failure to issue an Interment Rights Certificate has prejudiced the Plaintiffs’ ability to honour Mother’s wishes. Mother’s wishes are vitally important to the Tsekham family and were the basis for the Agreement entered into with the Defendants immediately upon Mother’s death.

In my view, the Plaintiffs’ pleading that the Defendants’ failure to issue an Interment Rights Certificate prejudiced the Plaintiffs’ ability to (i) abide by the traditional laws and customs of Judaism, and (ii) honour their mother’s wishes, is sufficient for them to claim the damages sought on this motion.

[23] There is no dispute that the Plaintiffs hold the interment rights with respect to the lot that was assigned for their father’s grave and that each is an “interment rights holder” within the meaning of that term in the FBCSA. There is no dispute that Minsk Congregation is an “operator” within the meaning of that term in the FBCSA.

[24] Under s. 48(1)(d) of the FBCSA, an interment rights holder has the right, once the interment rights have been paid in full, to receive a certificate of interment rights from the operator. Therefore, the Plaintiffs had a right to receive the Interment Rights Certificate from the Minsk Congregation.

[25] Rabbi Spero and the Minsk Congregation submit that, according to the Plaintiffs’ affidavit delivered for this motion, the letter dated July 9, 2015 sent by Rabbi Spero on behalf of the Minsk Congregation to the Plaintiff Sam Tsekhman contains the information that was required by the Winnipeg Cemetery in order for it to begin the process of exhumation of the Plaintiffs’ father and proceed with his transportation to Toronto. I do not accept this submission. If the letter was sufficient, the Plaintiffs would not have been pressing for issuance and delivery of the Interment Rights Certificate. The only reasonable inference from the evidence is that an Interment Rights Certificate was required by the Winnipeg Cemetery, and I draw this inference.

[26] Therefore, I do not accept the submission made on behalf of Rabbi Spero and the Minsk Congregation that the issuance and delivery of an Interment Rights Certificate was neither necessary nor appropriate. To the contrary, I find this certificate was required by the Winnipeg Cemetery in order for it to proceed with the process of the exhumation of the Plaintiffs’ father and with his transportation to Toronto.

[27] Subsection 163(1) of Ontario Regulation 30/11 under the FBCSA provides that a certificate of interment shall include certain specified information. The letter sent by Rabbi Spero does not contain the following information required by this Regulation: the name of the interment rights holder; the dimensions of the lot to which the interment rights relate; the date on which the interment rights are purchased; the amount paid by the purchaser for the interment rights; the amount deposited into the care and maintenance fund or account for the interment rights; and a statement that, if the interment rights holder resells or transfers the interment rights, the endorsed certificate must be returned to the operator before the operator is required to issue a new certificate. Because this information is required by regulation and is missing from the July 9, 2015 letter sent by Rabbi Spero on behalf of the Minsk Congregation to Sam Tsekham, I do not accept that the letter qualifies as an interment rights certificate under the FBCSA.

[28] I do not accept the submission made on behalf of Rabbi Spero and the Minsk Congregation that the remedy for failure to issue an Interment Rights Certificate is statutorily limited by s. 40(2) of the FBCSA to recovery of amounts paid under a contract for the purchase of licensed supplies or services together with costs. Subsection 40 (2) of the FBCSA provides:

A purchaser under a contract that does not meet the requirements of clauses (1) (a), (b) or (c) or in respect of which the operator has not complied with the requirements of clauses (1) (d), (e), (f), (g) or (h) may bring an action in a court of competent jurisdiction to recover any amounts paid under the contract together with costs if,

(a) the purchaser has given the operator notice of cancellation under subsection 41(1); and

(b) the operator has refused to pay the purchaser the amount payable under subsection 41(2).

In my view, s. 40(2) of the FBCSA simply gives the purchaser of rights under a contract for the provision of licensed supplies or services a statutory right to bring an action in certain circumstances. This provision does not limit the rights of a purchaser to seek remedies for breach of contract that are available as a matter of law.

[29] Rabbi Spero and the Minsk Congregation submit that the Plaintiffs’ motion should be dismissed because they failed to provide any evidence that they suffered loss of peace of mind as a result of the failure of the Minsk Congregation to issue and deliver the Interment Rights Certificate or, indeed, that that they have been injured in any way as a result of such failure. I disagree. In paragraph 38 of the Plaintiffs’ affidavit for this motion they say:

The Defendants’ failure to issue an Interment Rights Certificate has prejudiced our ability to abide by the traditional laws and customs of Judaism which requires an unveiling ceremony of the burial gravestone monument to take place within 11 months after a deceased person is buried. The Defendants’ failure to issue an Interment Rights Certificate has prejudiced our ability to honour Mother’s wishes which is vitally important to our family. Mother’s wishes were the whole basis for the Agreement we entered into with the Defendants immediately upon Mother’s death.

In my view, the evidence that the Plaintiffs suffered prejudice as a result of the failure of the Minsk Congregation to provide an Interment Rights Certificate is sufficient evidence to support the claims for damages for loss of peace of mind that are made on this motion. The word “prejudice”, in the context in which it was used in the Plaintiffs’ affidavit, means harm or injury.

[30] The Plaintiffs submit that contracts for funereal and interment services are contracts for “peace of mind” and therefore damages for mental suffering can flow in contract.

[31] In support of this submission, the Plaintiffs cite Kressin v. Memorial Gardens (BC) Ltd., 2004 CarswellBC 2664. In that case, the Plaintiff claimed damages arising from, among other things, the mishandling of a burial ceremony. In that case, the Court noted that the purpose of damages for breach of contract generally is to compensate the wronged party for the loss of benefits that were within the reasonable contemplation of the parties when the contract was made, and that damages of the mental distress variety are properly characterized as aggravated damages and should be recoverable when the subject matter of the contract is to provide peace of mind or freedom from distress. The Court concluded that, rather than relieving the claimant of some of the emotional distress commonly associated with burying a loved one and easing her burden, the defendant by its conduct significantly aggravated it. The Court awarded aggravated damages in the amount of $10,000 as well as punitive damages in the amount of $2,000.

[32] The Plaintiffs also cite McLoughlin v. Arbor Memorial Services Inc., [2004] O.J. No. 5003. In that case, an action was brought by members of the family of the deceased for the mishandling of his cremation and the interment of his remains. The trial judge held that the contract between the family and the operator of the crematorium was a contract for their “peace of mind”. The trial judge held that the very nature of the subject of the contract required great care in the handling of the deceased’s ashes. The trial judge found that the distress which the family suffered because of the mishandling of the ashes of the deceased was appreciable, and that the defendant knew that in the circumstances a breach of the contract would cause distress. The trial judge noted that the case law makes it clear that the measure of damages for mental distress in a contract case should be restrained and modest, and assessed the damages at amounts ranging from $1,000 to $5,000 for different family members.

[33] In this case, the Plaintiffs submit that the breach by the Minsk Congregation of its agreement with the Plaintiffs by its failure to provide the Interment Rights Certificate to which they were entitled has caused delay with respect to the exhumation, transportation and burial of their father’s remains and the fulfilment of ceremonies required by the Plaintiffs’ Jewish faith. The Plaintiffs submit that their mother is buried, without a monument, and they cannot properly visit her in these circumstances. The Plaintiffs submit that, as a result of the breach, they have been denied closure with respect to the passing of their mother and honouring her wishes.

[34] The Plaintiffs submits that it is appropriate for damages to be awarded in the range of $25,000 to $50,000 for each brother. The Minsk Congregation submits that if damages are awarded, they should be nominal.

[35] I am satisfied that the evidence establishes that the Minsk Congregation breached its agreement with the Plaintiffs by failing to deliver the Interment Rights Certificate that it was required to deliver under the agreement and under the FBCSA. I accept the submission made on behalf of the Plaintiffs that the jurisprudence is clear that the amount to be awarded for aggravated damages for loss of peace of mind in a contract case such as this one should be restrained and modest.

[36] I accept the Plaintiffs’ evidence that the failure of the Minsk Congregation to issue an Internment Rights Certificate has prejudiced their ability to abide by the traditional laws and customs of Judaism and their ability to honour their mother’s wishes which, I accept, is vitally important to the Plaintiffs’ family. This evidence was not challenged.

[37] I am satisfied that this is a proper case for summary judgment. The evidentiary record is such that I am able to make the necessary findings of fact, apply the law to the facts, and do so on this motion in a way that is a proportionate, more expeditious and less expensive means than a trial to achieve a just result: Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[38] I award damages to be paid by the Minsk Congregation to each of the Plaintiffs in the amount of $10,000.

[39] I agree with the submission of counsel for Rabbi Spero that there is no basis for a finding of liability against him because, in relation to the agreement with the Plaintiffs, Rabbi Spero was acting as a representative of the Minsk Congregation. The Plaintiffs have sued in contract, and Rabbi Spero was not a party to the contract. This motion, as against him, is dismissed.

[40] In the event that the parties are unable to resolve the matter of costs, the Plaintiffs shall provide written submissions with respect to costs, not to exceed four pages double spaced, excluding the costs outline, within 30 days. Rabbi Spero and the Minsk Congregation shall provide responding submissions, also not to exceed four pages, within 15 days thereafter. The Plaintiffs shall have a right to make reply submissions, if so advised, within 10 days thereafter, not to exceed two pages.

Mr. Justice P.J. Cavanagh

Released: March 17, 2017