Administrative Law – Decisions of administrative tribunals – Funeral Services – License Appeal Tribunal – Funeral directors – Professional misconduct / conduct unbecoming – Disciplinary proceedings – Penalties – Judicial review – Bias – Jurisdiction – Standard of review – Reasonableness simpliciter
Johal v. Ontario (Board of Funeral Services),  O.J. No. 6226, 2011 ONSC 7525, Ontario Superior Court of Justice, December 16, 2011, J.R.R. Jennings, M.R. Dambrot and A.L. Harvison Young JJ.
The Appellant (“Ms. Johal”) owned her own funeral home and was a funeral director, licensed by the Respondent Board of Funeral Services (the “Board”). There are two classes of licenses for funeral directors. One license authorizes a funeral director to embalm human bodies and the other license does not. Ms. Johal was not authorized to embalm human bodies but she was attempting to obtain that second type of license. In order to do so, she had to participate in an “internship” where she embalms 50 bodies under the supervision of a preceptor. Ms. Johal interned at her own funeral home.
With four months left in her internship, a representative of the Board went to speak with Ms. Johal about the number of embalmings she had completed. She advised the representative that she had completed 10 embalmings. The representative expressed concern that Ms. Johal may not be able to complete 40 more embalmings in four months. Later that day, Ms. Johal swore an affidavit indicating she had performed 20 embalmings, rather than 10. One of the other interns had documentation indicating she had performed 6 of the embalmings that were included in Ms. Johal’s list. Ms. Johal allegedly committed professional misconduct by signing false embalming reports, knowing them to be false.
After an investigation, the executive committee of the Board referred the allegations to the discipline committee. The discipline committee held a hearing and found Ms. Johal guilty of professional misconduct. The discipline committee imposed the following sanctions: a 10-month suspension, a fine, a reprimand, and certain conditions on her license. Ms. Johal appealed the decision to the License Appeal Tribunal (“LAT”).
The LAT heard the appeal and agreed with the discipline committee’s decision. The LAT imposed a more significant penalty in deciding to revoke Ms. Johal’s license. The LAT considered Ms. Johal’s evidence before the discipline committee in rendering its decision to revoke her license.
Ms. Johal sought judicial review of the LAT decision. She alleged a reasonable apprehension of bias on the part of the Vice Chair of the LAT. She alleged the LAT erred in not giving sufficient weight to one of the witnesses at the hearing. She alleged the LAT exceeded its jurisdiction when it considered her evidence before the discipline committee in respect of penalty. She further alleged the LAT should not have addressed the issue of penalty, noting that there was no cross appeal by the Board. Finally, Ms. Johal alleged the revocation was an unreasonable penalty in the circumstances.
The Court first concluded the standard of review was reasonableness for the finding of misconduct and the penalty relating thereto. The Court quickly dismissed Ms. Johal’s arguments about bias and the weighing of the evidence of the witnesses. The Court then considered the arguments relating to the increased penalty.
The Court first noted that counsel agreed the hearing before the LAT was a hearing “de novo”. The LAT heard evidence that was not before the discipline committee and was required to impose a penalty it considered appropriate. The LAT did not have to treat the discipline committee’s penalty as the maximum penalty available to it. The Court concluded the LAT did not exceed its jurisdiction when it took into account further evidence and increased the penalty beyond the suspension ordered by the discipline committee. Finally, the Court concluded that revocation was not unreasonable in the circumstances.
The Court dismissed Ms. Johal’s appeal and awarded costs to the Board.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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