Funeral Professionals Lawyer

 The Bereavement Authority of Ontario (“BAO”) regulates funerals homes, cemeteries, crematoriums, transfer services, and many of each their employees (directors, planners, salespeople, and operators) in Ontario by administering the Funeral, Burial and Cremation Services Act, 2002 (“FBCSA”). Their mandate is to enhance consumer protection and professionalism in the bereavement industry. They do so by requiring these bereavement individuals and businesses to be licensed by meeting and maintaining certain levels of honesty, integrity, and financial responsibility. The BAO has broad administrative powers, through their “Registrar”, to commence discipline proceedings against registrants or refuse, limit, suspend, or revoke a licence. The BAO also has the power to lay charges in Provincial Offences Court. 

Services 

Burokas Law acts as a BAO lawyer in representing all regulated bereavement businesses and individuals in Ontario with all their legal needs from advice and advocacy when applying for registration to conducting hearings in appealing various administrative actions. Services include:

• providing legal advice and advocacy while applying for a licence;
• responding to proposals to refuse, limit, suspend, or revoke a licence;
• conducting hearings at the Licence Appeal Tribunal;
• appealing Licence Appeal Tribunal decisions to Divisional Court;
• defending charges laid under the FBCSA, and;
• appealing convictions and sentences under the FBCSA
• conducting hearings at the BAO Discipline Committee.

Generally, the BAO actions fall into three categories- Registration, Discipline, and Prosecution.

Registration

Cemeteries, crematoriums, transfer service operators, funeral establishments, funeral directors, funeral pre planners, and their sales representatives must obtain a licence from the BAO in order to operate. An applicant for a licence must meet both prescribed requirements and a general test for a licence. The prescribed requirements can be found in Ontario Regulation 30/11. Once these requirements are met, the general test for a licence entitles an applicant to a licence unless:

• the applicant or interested person in respect of the applicant is in contravention of the FBCSA or a municipal by-law, or would be if licensed;
• the applicant cannot reasonably be expected to be financially responsible in the conduct of business considering their financial position or the financial position of an interested person;
• the past conduct of an applicant, officer or director (for corporations), or interested person affords reasonable grounds to believe they will not carry on business in accordance with law and with integrity and honesty;
• the applicant or their agent, or an officer or director (for corporations) makes a false statement on an application for a licence;
• the applicant is in breach of a condition of a licence, or;
• the applicant fails to comply with a Registrar’s request.

There are additional considerations for operators of funeral establishments, cemeteries, crematoriums, casket makers, and transfer services:

• the applicant does not have the integrity, honesty, experience and competence required to manage their business in accordance with the law or cannot be reasonably expected to be financially responsible in business;
• the applicant is unable to provide the resources and facilities required to manage a business, or;
• there are reasonable grounds to believe the operation of the business creates a risk to public health, safety, or decency.

Interested Persons

The FBCSA employs a concept called an “interested person” to the registration criteria above. An interested person is someone who is either in at least one of many types of legal relationships with the applicant or officer/directors (ex. partners in the same partnership) or, in the opinion of the Registrar:

• the person has, or may have a beneficial interest in the other person’s business;
• the person exercises, or may exercise control either directly or indirectly over the other person, or;
• the person has provided, or may have provided financing either directly or indirectly to the other person’s business.

The BAO uses the concept of interested persons to look beyond the face of a business to determine who is really in control. They are wary of people who appear good on paper being used as fronts for other individuals who would otherwise not be eligible for registration under the forgoing criteria.

Proposals 

If the Registrar is of the opinion that the applicant does not pass the general test for a licence, he/she must issue a Notice of Proposal to:

• refuse to issue a licence;
• refuse to renew a licence;
• apply conditions to a licence or renewal of a licence without consent;
• suspend a licence, or;
• revoke a licence.

A proposal will set out what action the Registrar is taking and why.

Appealing Proposals

Once an applicant or registrant receives service of a notice of proposal, they have 15 days to file a Notice of Appeal with the Licence Appeal Tribunal (“LAT”). LAT will schedule a “case conference” to:

• facilitate settlement;
• agree on facts prior to a hearing;
• identify parties to a hearing;
• set obligations and timelines for disclosure of evidence;
• schedule hearing dates, or;
• determine whether there are any pre-hearing motions.

Hearings at LAT

Hearings at LAT are heard by an impartial member, vice-chair, or chair of the Licence Appeal Tribunal. They are structured similar to a trial in court, although slightly less formal. In most cases, the member will make determinations on contentious factual issues and then determine whether or not the Registrar’s Notice of Proposal should be carried out, not carried out, or not carried out subject to certain conditions on a registration/certificate. LAT’s rules and procedures for case conferences and hearings are outlined in their own Rules of Practice and the Statutory Powers and Procedure Act, 1990.

Conditions of Registration

An individual or business may have conditions on their class of registration that creates additional obligations or limits their ability to practice. Conditions arise either when the applicant or registrant (as the case may be) consents to conditions (often as an alternative to a proposal) or the Registrar issues a Notice of Proposal to impose conditions on a registration. The latter can be appealed to LAT in the same manner as a refusal, suspension, refuse to renew, or a revocation.

Discipline

The BAO has the power under the FBCSA to establish a discipline committee and an appeal committee to determine whether licensees have failed to comply with a Code of Ethics. If so, the Discipline Committee may order any of the following:

• require the licensee to take educational programs;
• require an operators to fund educational programs for any employee, or;
• impose fines up to $25,000.

Its unclear the BAO's discipline and appeal committee has been established.

Complaints

The BAO is also empowered by their legislation to receive complaints from the public and compel a registered individual or business to provide information regarding the complaints as “soon as practicable”. The BAO has compliant handlers empowered to mediate complaints that can also refer the matter to the Registrar who may then issue a Notice of Proposal to revoke, suspend, impose conditions, or refuse to renew a registration, or may pursue discipline.

Hearing complaints is a primary way the BAO receives information that initiates one or multiple of their powers- proposals, discipline, prosecution. It’s important for registrants to work with complaint handlers and adhere to their requests for information to avoid administrative action.

Inspections

Inspections is the other primary way the BAO obtains information that may lead to administrative action. Registered individuals and business in the bereavement industry can be subject to inspections without warning for the purpose of ensuring compliance with their rules and regulations, dealing with a complaint, or ensuring the individual or corporation remains entitled to registration.

These inspectors are entitled to search and seize access to all money, valuables, documents, data storage devices, and records relevant to the inspection, and may temporarily seize such items. During the course of an inspection, the BAO inspector may require a person to produce documents, records, data storage devices. Registrants are prohibited from obstructing the inspector. 

Prosecutions

The BAO also employ investigators to investigate offences under the FBCSA and Consumer Protection Act. They have Police-like powers in executing search warrants and gathering evidence. Such investigations can lead to a prosecution, discipline, proposals, or any combination thereof.

A person (not just a registrant) is guilty of an offence if they fail to comply with any section of the FBCSA  or regulation, except their Code of Ethics. Individuals convicted under the FBCSA are liable to a fine up to $50,000 ($250,000 for corporations) and two years less a day in prison. The most common offences laid are acting while unregistered, falsifying documents, and furnishing documents. Individuals or corporations may also be charged under the Consumer Protection Act, 2002, often for unfair business practices related to unconscionable, false, misleading, or deceptive representations.

The charges laid are considered “quasi-criminal” offences under the Provincial Offences Act, 1990. The individual or business will likely be served a summons to appear in court by an investigator of the BAO. They or their lawyer will need to appear. The charges progress through the courts with a series of court dates where the defendant will be provided all relevant evidence about the charges against them. If the matter is not resolved, there will be a trial at the Ontario Court of Justice similar to a criminal trial. 

Being found guilty of an offences under the FBCSA or Consumer Protection Act will not give an individual or corporation a criminal record but will likely bring administrate consequences in the form of discipline, or a proposal to refuse/revoke registration.