After an inspection found that funeral contracts offered by Strong did not contain a detailed listing of the goods and services to be provided, and following on a complaint to the Board that Strong and his assistant were personally signing cremation authorizations forms rather than having a personal representative of the deceased do so, Strong’s licence was suspended by the Alberta Funeral Services Regulatory Board (the “Board”). Strong appealed, and the Appeal Board substituted a six-month license suspension and a reprimand. The Board appealed to the Court of Queen’s Bench which dismissed the appeal.

Administrative law – Decisions of administrative tribunals – Funeral Services – Permits and licences – Suspensions – Judicial review – Procedural requirements and fairness – Test – Standard of review – Reasonableness simpliciter

Alberta (Funeral Services Regulatory Board) v. Strong, [2006] A.J. No 558, Alberta Court of Queen’s Bench, December 5, 2006, Ross J.

The first question on appeal was whether the Board complied with the duty of fairness. The Court held that evaluating whether the duty of fairness has been met is left to the court’s discretion, and does not require consideration of a standard of review. The Court held that the duty of fairness is flexible and its content depends on the circumstances of the case. Relevant factors to consider include:

(1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the term of the statute; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.

In this case, the question of the importance of the decision to Strong and his assistant was held to be striking because the decision directly affected their ability to continue in their profession, and a high standard of justice was therefore warranted. In addition, there was evidence that Strong and his assistant did not understand the gravity of the situation they faced when they attended at the Regulatory Board. Their expectation that a serious sanction was unlikely to be imposed was legitimate, given the manner in which notice was provided and how the meeting was conducted.

The duty of fairness was found to have been violated, in that the procedure before the Board did not meet a generous interpretation of the right to be heard.

The notice referred to a “meeting”, which was in fact a hearing at which sanctions would be addressed. There was also insufficient disclosure of the case in that no copies of the investigator’s report were provided to Strong or his assistant. In addition, the Board should not have heard from the investigator in the absence of Strong and his assistant.

The Court then turned to whether the Appeal Board should have deferred to the Board’s decision on penalty rather than substituting the 6-month suspension. The Court held that the Appeal Board remedied the lack of fairness at the Board by the de novo rehearing and resultant adjustment of penalty.

The Appeal Board’s decision as to penalty was reviewed on a standard of reasonableness. The Appeal Board penalty decision was held to withstand a “somewhat probing examination”.

In the result, the Board’s appeal was dismissed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.