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 The licencee’s funeral preplanner licence was revoked by the Registrar.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.
It is that time of the year when media outlets release their “top” or “most popular” lists, like the Time 100.
I came across a rather interesting and topical list the other day called “The Most Obnoxious Celebrity Wills” by Ranker. This particular list features 24 celebrity Wills and I will excerpt some of the notable mentions here:
- Napoleon Bonaparte’s Will was first on the list. Apparently, his Will included a direction for his head to be shaved and for his hair to be divided amongst his friends.
- Harry Houdini asked his wife to hold an annual séance to contact his spirit.
- Philip Seymour Hoffman wanted his son to be raised in three different cities: New York, Chicago, and San Francisco.
- Charles Dickens gave directions for a particular dress code at his funeral.
- Fred Baur, the person who designed the Pringles can, wanted to buried in a Pringles can.
Turns out testamentary freedom is whatever you want to make of it but the enforceability of provisions like these are another matter.
Thanks for reading and Happy Holidays!
You advise and document estate plans for clients. You’re meticulous about detail and always do a thorough job. Is there anything you’ve overlooked?
Likely not when it comes to estate assets – but what about the softer, quality of life advice related to the family and estate of your clients? A few actions can not only smooth out the estate settlement process but also enhance the life of your clients today.
Here are five actions that all of us should consider before we die.
Tell your family your estate intentions
We’ve said it before: people can’t read minds and they don’t know what they don’t know. There can be many good reasons for the unequal treatment of family members under a will (such as a disability) but unequal can equate to “unloved” unless it’s explained. Before you put the final touches to your estate documents, let your family members know what you intend to do, and work out any issues now, because you won’t be around to work them out after you’re gone.
Pay for an extended family trip
Travel brings people out of their comfort zone and creates interaction that would otherwise never occur. It may not be all love and honey – family dynamics are what they are – but you may be pleasantly surprised at what happens when your adult children and their families interact outside of their day-to-day lives. The challenge of bringing people together can seem overwhelming, but it’s a challenge worth tackling. It doesn’t have to be an African safari (although those are great if you can afford it). Just make it two nights or longer at a place that’s away from anyone’s family home, cottage or chalet. If they can drop all plans and attend your funeral (they surely will), they can create time for a family trip that mom or dad wants.
Give some gifts during your lifetime
We all know the saying “you can’t take it with you.” As much as we believe it, it can be hard to act on it because we all (secretly) think we’ll live forever. But we won’t, and there’s joy in sharing now. So as the song says, “let it go”, or at least let some of it go. If you have surplus wealth, or surplus assets of value – such as artwork that will never fit in a newly downsized space – you can bring and experience great happiness in sharing things now, rather than after you’re gone.
Record some early memories
You’ve likely experienced this at a family gathering. You tell a simple fact about your early life and someone says: “I never knew you spent a summer in New York City.” It shouldn’t surprise any of us – our adult children can’t possibly know about the 30 or 40 years of our lives before they were born, unless we tell them.
So, record some memories – you’re bound to surprise both them and yourself with what you come up with. You can find some good tips on prompting those memories here: http://www.instructables.com/id/Record-Your-Familys-Oral-History-before-it-dies-/.
Make your funeral intentions known
It’s a hotly debated question: is a funeral for the living or for the dead? In most cases, it’s for both, which is why it makes sense to put some thought into what you envision for your funeral and then talk to your family to work towards a plan that everyone can agree on. There are different levels of pre-planning, both formal and informal, but having the wishes of you and your family documented can go a long way toward a smooth process at a difficult time. For those in Ontario, the provincial government provides a good overview of your rights related to pre-planning with a funeral service provider: https://www.ontario.ca/page/pre-plan-and-pre-pay-final-arrangements.
Thank you for reading!