Regulating Funeral Service Providers
Funeral services providers are heavily regulated in Ontario. They must follow the provisions of the Funeral, Burial and Cremation Services Act (“the Act”). Under the Act, a service provider’s licence may not be renewed if “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”.
The Act is administered by the Bereavement Authority of Ontario. The Registrar of the Bereavement Authority of Ontario can make the decision of whether to revoke a licence or not. A licencee who disagrees with the Registrar’s decision can request a hearing before the Licence Appeal Tribunal (“the LAT”). LAT decisions can be appealed to the Divisional Court. In considering an appeal, the standard of review applied by the Divisional Court on a question of law is “correctness”, and on a question of fact or mixed fact and law, is on a “palpable and overriding error” standard.
Registrar, Funeral Burial, and Cremation Services Act v. Thomas was an appeal by the Registrar to the Divisional Court. The licencee’s funeral preplanner licence was revoked by the Registrar. The Registrar’s decision was reversed by the LAT. The Registrar appealed to the Divisional Court.
The Registrar alleged that the past conduct of the licencee in question demonstrated that she would not carry on business in accordance with the law and with integrity and honesty. On an agreed statement of facts, it was agreed that the licencee misappropriated funds from consumers in two separate instances. In one instance, the licencee suggested that in order to facilitate a transaction, the consumer transfer payments to the licencee’s personal account, which she would later transfer to her employer. Unfortunately, not all of the funds were transferred by the licencee to the employer. $1,000 was not transferred, apparently by inadvertence: the licencee claimed that she was not aware that she had received the transfer. In a second instance, the consumer preplanned his interment space and a monument. However, he could not make full payment, and died before full payment was made. $1,652 remained outstanding on his contract before he died. The licencee made the payment from the trust account of another family, and billed the deceased’s family after the deceased died. The payment made by the deceased’s family went, unbeknownst to them, to the account of the other family.
The LAT considered the fact that the licencee did not misappropriate funds for her own benefit, and there was, ultimately, no harm to her consumer clients. While the licencee’s actions may have been “deficient and could have been more professional”, the transactions did not lead to a concern that she would act without integrity and honesty. The LAT stated “Given this experience, I expect that [the licencee] has learned that she must do a better job separating her personal relationships with her clients from her professional role.”
The Divisional Court upheld the licence reinstatement decision made by the LAT. It found that the LAT properly focused its analysis on the nature and severity of the misconduct in determining whether it gave rise to reason to believe that the licencee cannot perform her functions in accordance with the law and with honesty and integrity. The LAT made no error of law, and no palpable and overriding error in the application of the test.
Although the licencee in that case was allowed to keep her licence, it is comforting to know that the actions of funeral professionals are closely scrutinized, and that those who will not follow the law or carry on business with integrity and honesty will not be allowed to carry on business.
Thank you for reading. Have a great weekend.