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11 |
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First
Session, 46th General Assembly 57
Elizabeth II, 2008 |
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AN ACT RESPECTING
EMBALMERS |
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Received and Read the First Time................................................................................................... |
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Second |
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Committee............................................................................................................................................ |
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Third |
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Royal Assent...................................................................................................................................... |
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HONOURABLE
KEVIN O'BRIEN Minister
of Government Services |
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Ordered
to be printed by the Honourable House of Assembly |
EXPLANATORY NOTE This Bill would revise the law respecting the regulation of embalmers and funeral directors. |
A AN ACT RESPECTING EMBALMERS Analysis 1. Short title 2. Definitions 3. Board continued 4. Appointment by minister 5. Meetings 6. Submission by board 7. Fees 8. By-laws 9. Duties of registrar 10. Regulations 11. Inspection 12. Limitations in practice 13. Conditions of licence 14. Appeal to judge of Trial Division 15. Definitions 16. Complaints and disciplinary panel 17. Allegation 18. Effect of filing allegation 19. Complaints authorization committee 20. Adjudication 21. Hearing 22. Copies of books, etc. as evidence 23. Guilty plea by respondent 24. Powers of adjudication tribunal 25. Filing and publication of decisions 26. De-registration and suspension 27. Failure to comply 28. Reinstatement and readmission 29. Costs of board 30. Collection of fine 31. Appeal to Trial Division 32. Action prohibited 33. Permits 34. Employer of non-licensed holder 35. Penalties 36. Licence to be displayed 37. Offence 38. RSNL1990 cE-7 Rep. 39. Commencement Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows: Short title 1. This
Act may be cited as the Embalmers and
Funeral Directors Act, 2008. Definitions 2. In
this Act (a) "board" means the board continued
under section 3; (b) "embalmer" means a person who
engages in the practice of embalming whether as a self-employed person or as an
employee; (c) "embalming" means the preservation
of a dead human body, entire or in part, by the use of chemical substances,
fluids or gases ordinarily used, prepared or intended for those purposes,
either by outward application of those chemical substances, fluids or gases on
the body, or by the introduction of them into the body by vascular or hypodermic
injection or by direct application into the organs or cavities; (d) "funeral director" means a person
who operates for himself or herself, or under his or her own or another name
for another person, an establishment for the purpose of furnishing to the
public funeral supplies and services and includes a person employed by such an
establishment; (e) "licence" means a licence issued
under this Act and includes a permit issued under section 33; (f) "member" means a member of the
board; (g) "minister" means the minister
appointed under the Executive Council Act
to administer this Act; and (h) "registrar" means the registrar of
the board. Board continued 3. (1) The
Embalmers and Funeral Directors Board is continued as a corporation without
share capital to which Part XXI of the Corporations
Act applies. (2) The board consists of (a) 2 embalmers, elected in accordance with the
by-laws; (b) 2 funeral directors, elected in accordance
with the by-laws; and (c) 3 persons, neither of whom is an embalmer or
funeral director, appointed under section 4. (3) The board shall elect from among its elected
members a chairperson and a vice chairperson. (4) An embalmer or funeral director may be elected
for a term set by the by-laws which shall not exceed 3 years and is eligible to
be re-elected, but shall not hold the office for more than 9 consecutive years. (5) An embalmer or funeral director may resign his
or her office by written notice to the board. (6) Where an embalmer or funeral director resigns,
dies or becomes incapable of performing his or her duties on the board, the remaining
members shall appoint a replacement embalmer or funeral director, depending on
which of them has created the vacancy, to serve until the next annual general
meeting. (7) An embalmer or a funeral director who is a
member of the governing body of an organization that has as one of its objects
the advancement of the interests of embalmers or funeral directors is not eligible
to be a member of the board during his or her term of office as a member of the
governing body. (8) Where the term of office of a member of the
board expires and a successor has not been elected or appointed, the member may
continue to hold office until a successor is elected or appointed but time
served by that member under this subsection shall not be counted for the purpose
of subsection (4) or subsection 4(3). (9) Elected members shall serve without payment
for their services, but their travel and other expenses associated with their
duties as members may be paid by the board, in accordance with the by-laws. (10) The board shall appoint a registrar who may or
may not be a member of the board and may pay him or her for performing his or
her duties under this Act, in accordance with the by-laws. Appointment by
minister 4. (1) The
minister shall appoint as members of the board 3 persons who are not embalmers
or funeral directors who are suitable to represent the public interest. (2) A person appointed under subsection (1) holds
office for a term of 3 years and is eligible to be re-appointed. (3) Where a person appointed under subsection (1)
holds office for a period of 9 consecutive years the person is not eligible for
appointment as a member of the board until the expiration of 12 months from the
end of the year in which he or she was last a member. (4) Where the term of an appointed member of the
board expires, he or she continues to be a member until re-appointed or replaced. (5) The board shall pay the expenses of an
appointed member in accordance with guidelines established by the Lieutenant-Governor
in Council. (6) A person appointed under subsection (1) may
resign his or her office by written notice to the minister and shall provide a
copy to the chairperson of the board. Meetings 5. (1) The
board shall hold an annual general meeting once in each year at a time and
place that may be set out in the by-laws, and may hold other general meetings
during each year as provided for in the by-laws. (2) At the annual general meeting the board shall
deal with the business required by the by-laws to be dealt with at that meeting. (3) Three members of the board, one of whom shall
be a person appointed under subsection 4(1),
constitute a quorum for a meeting of the board. (4) At a meeting of the board each member has one
vote, and in the case of a tie, the chairperson has a deciding vote. (5) Except where prohibited in the by-laws, a
member may, where all the members consent, participate in a meeting of the
board by means of the telephone or other telecommunication device that permits
all persons participating in the meeting to communicate with each other. (6) The board, at its annual general meeting,
shall appoint an auditor to audit the accounts of the board and report on the
financial statements prepared by the board. (7) The board may in its by-laws provide for
voting at its meetings or in an election of its members by mail or electronic
means. Submission by
board 6. (1) The
board shall prepare and submit to the minister not later than 6 months after
the end of its financial year (a) a report on the activities of the board in the
previous year; and (b) the board's audited financial statements for
the pervious financial year. (2) The minister shall table a copy of the annual report and the audited financial statement in the House of Assembly within 15 days of receiving it if the house is sitting and if the house is not sitting within 15 days after it next begins to sit. (3) Where the board fails to comply with
subsection (1), the board is guilty of an offence and on summary conviction may
be fined $1,000. Fees 7. (1) In
prescribing the fees payable under this Act, the board shall, so far as it is
practicable, ensure that the amount of fees is sufficient to enable it to
discharge its duties under this Act. (2) All money received by the board shall be
applied by it to its duties under this Act. By-laws 8. (1) The
board may make by-laws not inconsistent with this Act respecting (a) the holding and procedure of its meetings; (b) the appointment of committees and the duties
and responsibilities of those committees; (c) the election of members of the board under
subsection 3(2) and setting the terms of
office; (d) the payment of travel and other expenses of
elected members of the board; (e) the employment and remuneration of staff and
consultants; (f) a code of ethics which may include (i) a definition of "professional
misconduct" and "conduct unbecoming" for the purposes of
sections 15 to 32, (ii) provisions respecting conflict of interest,
and (iii) rules respecting methods of advertising; (g) the remuneration and payment of travel
expenses of members of adjudication tribunals; (h) the participation of members at a meeting of
the board by telephone or other telecommunications device under section 5; and (i) voting by members by mail or electronic means. (2) A by-law may be made, amended or repealed at a
meeting of the board provided that 30 days notice, in writing, of the making,
amendment or repeal of the by-law and of the meeting are given to members of
the board. (3) The board shall have its by-laws available for
inspection by the public on reasonable notice and at reasonable hours. Duties of
registrar 9. (1) The
registrar shall (a) keep a register in which he or she shall
maintain a list of the names and addresses of all persons and funeral homes to
which licences and permits have been issued under this Act; and (b) have responsibility for controlling all
matters relating to the finances of the board including receipt of all money
paid to the board, or a member on behalf of the board, and for making
disbursements on behalf of the board. (2) The register shall be open to inspection by a
member of the public during normal business hours. Regulations 10. (1) The
board may, subject to the approval of the minister, make regulations, (a) prescribing courses of training and
educational requirements for the licensing of funeral directors and of persons
to practise embalming in the province including the establishment of a system
of apprenticeship in the practice of embalming; (b) respecting the granting of licences to
embalmers, funeral homes and funeral directors and renewals of licenses; (c) providing for and holding examinations of
persons seeking to be licensed as embalmers or funeral directors and prescribing
the content and nature of those examinations; (d) defining what constitutes incompetence and
conduct deserving of sanction of embalmers and funeral directors, or either,
with power to make different definitions for each category of licence holder; (e) respecting alternative dispute resolution for
the purposes of sections 15 to 32 and the procedure for that resolution; (f) prescribing time limits for events in the
disciplinary process in sections 15 to 32, including time limits for (i) the filing of an allegation, (ii) the conduct of an investigation under section 19, (iii) consideration of an allegation by the
complaints authorization committee following completion of an investigation, (iv) responding to a complainant and respondent at
each stage of the process, (v) the conduct of a practice investigation under
paragraph 19(3)(d), (vi) the appointment of an adjudication tribunal
under section 20, and (vii) the conduct of a hearing and the filing of a
decision or order by an adjudication tribunal following completion of the
hearing; (g) prescribing the terms and conditions of
permits issued under section 33; (h) prescribing minimum standards for the
premises, accommodation and equipment of funeral directors and providing for
the inspection and approval of those premises, accommodation or equipment; (i) governing the methods, equipment and materials
that may be used to embalm dead human bodies; and (j) generally, to give effect to the purpose of this Act. (2) Notwithstanding subsection (1), the minister
may make regulations to prescribe time limits for events in the disciplinary
process under sections 15 to 32 where the board does not do so in a time period
the minister considers reasonable. Inspection 11. (1) The
board may appoint representatives whom it considers advisable to inspect the
premises of an embalmer or a funeral director. (2) For the purpose of this section,
representatives of the board may include the board or member of the board. (3) The representatives of the board may enter,
without notice, the premises of an embalmer or a funeral director at all
reasonable times to make all necessary inspections. (4) The representatives of the board shall have
access to all records, documents and other necessary information required to
carry out the inspection under subsection (3). (5) An embalmer or funeral director whose premises
are the subject of an inspection under this section shall cooperate with the
representatives of the board and supply all requested information required in
connection with the inspection. (6) The representatives of the board shall report
to the board the results of their inspection together with their
recommendations for the remedying of an unethical, insanitary, illegal or
improper conduct, condition, practice or procedure that is found. (7) After considering the recommendations of the
representatives of the board , the board may make a written demand on the embalmer
or funeral director concerned to adopt and carry out the recommendations,
subject to those terms and conditions which the board may impose. (8) Failure on the part of an embalmer or funeral
director to comply promptly and completely with a written demand of the board
constitutes conduct deserving of sanction as defined in paragraph 15(c) on the
part of the embalmer or funeral director. (9) An embalmer or funeral director who is
aggrieved by a report, recommendation or demand of the board made under this
section may appeal to a judge of the Trial Division. Limitations in
practice 12. (1) A
person shall not practise as an embalmer in the province unless that person
holds a licence to practise embalming. (2) A person shall not practise as a funeral director in the province unless that person holds a licence to practise as a funeral director. (3) A person shall not operate a funeral home
unless the home is licensed under this Act. (4) A crematorium where human remains are disposed
of shall not be operated except by a person who holds a licence to practise as
a funeral director. (5) Subsection (1) does not apply to a person practising
embalming who is (a) an apprentice working under the direct supervision
of an embalmer who is licensed under this Act; and (b) a student of medicine or a person employed in
a recognized school of medicine or a hospital where the embalming is carried
out in the course of the training of the student or the duties of the person
employed. (6) A person who contravenes this section is
guilty of an offence and every day that an offence is committed under this
section constitutes a separate offence. (7) In a prosecution under this section, the
failure of a person accused to produce a valid licence constitutes proof that
that person does not possess a valid licence. Conditions of
licence 13. (1) A
person who has complied with the requirements of this Act and the regulations
for the grant of a licence to practise as a funeral director, may apply to the
board for and has the right to obtain from the board a licence to practise as a
funeral director in the province if the application is accompanied by the prescribed
licence fee. (2) A person who has complied with the
requirements of this Act and the regulations for the grant of a licence to
practise as an embalmer, may apply to the board for and has the right to obtain
from the board a licence to practise as an embalmer in the province if the application
is accompanied by the prescribed licence fee. (3) An embalmer and a funeral director shall
complete and maintain those records that the board may require. (4) As a condition of receiving a licence to practise
as a funeral director or embalmer, a person shall provide proof that he or she
has obtained professional liability insurance coverage in a form and amount
satisfactory to the board. Appeal to judge
of Trial Division 14. (1) A
person aggrieved by a refusal of the board to license a funeral home or to
issue a licence to practise as an embalmer or funeral director may, within 30
days after receipt of notice of that refusal, appeal against the refusal to a
judge of the Trial Division by filing in the office of the Registrar of the
Supreme Court a notice of appeal, and by serving a copy of the notice on the
chairperson. (2) Notwithstanding a rule or practice to the
contrary, the notice of appeal shall (a) set out in detail the allegations of the
appellant and the grounds upon which the refusal is appealed against; and (b) be signed by the appellant or his or her
solicitor. (3) The appellant shall, within 14 days after
service of the notice of appeal under this section, apply to the judge for a
day for the hearing of the appeal and shall not less than 14 days before the
hearing serve upon the board a written notice of the day of the hearing. (4) The registrar shall produce to the judge
hearing the appeal all papers and documents in the possession of the board
affecting the subject matter of the appeal. (5) The judge shall hear the appeal and the
evidence adduced by the appellant and the board, and shall decide the matter of
the appeal by (a) upholding or overturning the refusal to issue
the licence; or (b) making a decision or order which the judge
considers to be proper in the interest of justice and equity, with power to
make an order as to costs for or against the appellant or the board and to fix
the amount of the costs. (6) An appeal may be taken from an order or
decision of the judge to the Court of Appeal upon a point of law raised at the
hearing of the appeal, and the rules governing appeals to that court from an
order or decision of a judge of the Trial Division shall apply to appeals under
this subsection. Definitions 15. In
this section and sections 16 to 32, (a) "allegation" means a written
document alleging that a person has engaged in conduct deserving of sanction; (b) "complainant" means a person making
an allegation described in section 17; (c) "conduct deserving of sanction"
includes (i) professional misconduct, (ii) professional incompetence, (iii) conduct unbecoming a licensed funeral director
or an embalmer, and (iv) acting in breach of this Act, the regulations
or the code of ethics established under section 8;
(d) "costs incurred by the board"
includes (i) out of pocket expenses incurred by or on
behalf of the board, (ii) amounts paid by the board to adjudication tribunal
members as remuneration and for expenses, and (iii) the actual cost of legal counsel for the board
and the adjudication tribunal; (e) "disciplinary panel" means the panel
of persons appointed under section 16 from
which the members of an adjudication tribunal are chosen; and (f) "respondent" means a licensed
funeral director or embalmer or former licensed funeral director or embalmer
against whom an allegation is made and includes a person who operates a funeral
home licensed under this Act. Complaints and
disciplinary panel 16. (1) The
board shall appoint 2 of its elected members and one of its appointments
members to constitute the complaints authorization committee for the proposed
sections 15 to 32.
(2) The registrar is not eligible to be appointed
as a member of the complaints authorization committee. (3) The board shall appoint at least 5 licensed
funeral directors and 5 licensed embalmers who are not members of the board,
one of whom shall be appointed to serve as chairperson, and the minister shall
appoint at least 3 persons who are not licensed funeral directors or licensed
embalmers to represent the public interest, who shall together constitute a
disciplinary panel. (4) Of the members first appointed to the
disciplinary panel, one half shall be appointed for a term of 2 years and the
remainder for a term of 3 years and all subsequent appointments of members to
the disciplinary panel shall be for a term of 3 years. (5) Notwithstanding the expiry of his or her term,
a member of the disciplinary panel continues to be a member until he or she is reappointed
or his or her replacement is appointed. (6) Persons appointed to the disciplinary panel
may be reappointed. (7) The complaints authorization committee and an
adjudication tribunal appointed under section 20
and a person appointed by either of them may summon witnesses and require those
witnesses to give evidence, orally or in writing, upon oath or affirmation, and
produce the documents and things that either of them considers necessary to the
full investigation and hearing of an allegation or complaint, and have the
powers, privileges and immunities that are conferred on a commissioner
appointed under the Public Inquiries Act,
2006. (8) Members of the disciplinary panel shall serve
on the panel without payment for their services, but may be remunerated for
service as a member of an adjudication tribunal and paid their travel and other
expenses associated with the work of that tribunal by the board, in accordance
with and at the rates set by the by-laws. Allegation 17. (1) An
allegation shall be in writing and signed by the complainant or his or her
solicitor, and filed with the registrar. (2) The board may designate a person to act in the
place of the registrar for the purposes of this section and sections 16 and 18
to 32. (3) The registrar may on his or her own motion
make an allegation and file it, and the allegation has the same effect as an
allegation referred to in subsection (1). (4) Where the registrar has been informed that a
respondent has been convicted of an offence under the provisions of the Criminal Code or a similar penal statute
of another country or has been suspended by a governing body of licensed
funeral directors or embalmers in another province or territory of Canada or
another territory or country for reason of professional misconduct, conduct
unbecoming a funeral director or an embalmer, or professional incompetence, the
information shall be dealt with by the registrar as an allegation. (5) For the purpose of subsection (4), a certified
copy of the record of a conviction or findings made or the action taken by an
external regulatory body constitutes proof, in the absence of evidence to the
contrary, of the conviction or findings made or the action taken by that body,
without proof of the signature of the convicting justice or person purporting
to have signed on behalf of that body. Effect of filing
allegation 18. (1) Where
it appears to the registrar that the allegation may be resolved satisfactorily
and where the complainant and the respondent consent, the registrar may attempt
to resolve the matter. (2) Where the allegation is not satisfactorily
resolved by the registrar under subsection (1), the chairperson shall refer the
allegation and all other allegations to the complaints authorization committee. (3) The registrar shall inform a complainant and a
respondent of the referral of the allegation to the complaints authorization
committee. Complaints authorization
committee 19. (1) Where
an allegation has been submitted to the complaints authorization committee, the
committee may exercise one or more of the following powers: (a) refer the allegation back to the registrar for
an investigation or alternative dispute resolution in accordance with the regulations; (b) conduct an investigation itself or appoint a
person to conduct an investigation on its behalf; and (c) require the respondent to appear before it. (2) Where the complaints authorization committee
is of the opinion there are no reasonable grounds to believe the respondent has
engaged in conduct deserving of sanction, the committee shall dismiss the
allegation and give notice in writing of the dismissal to the complainant. (3) Where the complaints authorization committee
is of the opinion that there are reasonable grounds to believe that a
respondent has engaged in conduct deserving of sanction, the allegation is
considered to constitute a complaint, and the committee may (a) counsel or caution the respondent; or (b) instruct the registrar to file the complaint
against the respondent and refer it to the disciplinary panel; and (c) suspend or restrict the respondent's practice;
or (d) direct the registrar to conduct an
investigation of the respondent's practice, and where the committee directs an
investigation take place the registrar shall conduct it, at any time before a final determination
by the adjudication tribunal. (4) The registrar or another person conducting an
investigation under paragraph (1)(a) or (b) or paragraph (3)(d) may (a) require a respondent to (i) undergo practical and other examinations he or
she considers necessary, and (ii) permit the registrar or other person to
inspect and copy the records of the respondent and other documents relating to
the subject matter of the investigation; and (b) require a person other than the respondent to
permit the registrar or other person to inspect and copy records and other
documents relating to the subject matter of the investigation held by that
person, and the respondent or other person shall
comply. (5) Where the registrar or a person appointed by
the complaints authorization committee requests that a respondent or another
person provide information under subsection (4), the information shall be provided
within 7 days of receipt of the request or a different period as specified in
the request. (6) An action for damages does not lie against a
licensed funeral director or an embalmer or another person to whom a request is
made solely because he or she provides information requested of him or her
under subsection (4). (7) A complainant whose allegation is dismissed by
the complaints authorization committee under subsection (2) may, within 30 days
after receiving notice of the dismissal, appeal the dismissal to the Trial
Division by filing a notice of appeal with the Registrar of the Supreme Court. Adjudication 20. (1) For
the purpose of dealing with complaints referred to the disciplinary panel, the
chairperson of the disciplinary panel shall appoint from it an adjudication
tribunal consisting of 3 persons, one of whom shall be a licensed funeral
director, one shall be a licensed embalmer and one shall be a representative of
the public interest. (2) The chairperson of the disciplinary panel
shall appoint either the licensed funeral director or embalmer on an
adjudication tribunal to be the chairperson. Hearing 21. (1) Where
a complaint has been referred under paragraph 19(3)(b),
an adjudication tribunal shall hear the complaint. (2) The parties to a hearing are the board and the
respondent and a party may be represented by his or her counsel at a hearing. (3) A hearing shall be conducted in public but an
adjudication tribunal may exclude the public from a hearing, or from part of
it, where it considers the desirability of protecting a party to the complaint
or a witness against the consequences of possible disclosure of personal
matters outweigh the desirability of holding the hearing in public. Copies of books,
etc. as evidence 22. A
copy or extract of a book, record, document or thing certified by (a) a member of the complaints authorization
committee; or (b) a person authorized under subsection 19(4) to conduct an inspection, who made the copy or extract under
subsection 19(4) is admissible in evidence in
an action, proceeding or prosecution, in the absence of evidence to the
contrary, as evidence of the original book, record, document or thing and its
contents. Guilty plea by
respondent 23. (1) Where
a respondent pleads guilty to one or more of the charges set out in a
complaint, the adjudication tribunal shall, without calling evidence or hearing
witnesses, unless the tribunal believes it is appropriate to do so, hear
submissions from the parties. (2) Where a respondent pleads guilty, and
following submissions under subsection (1), the adjudication tribunal may (a) reprimand the respondent; (b) order that the respondent be suspended for a
fixed period that it considers appropriate, until conditions which it may
impose are fulfilled, or until further order of the adjudication tribunal; (c) allow or direct the respondent to surrender
his or her licence to the board upon those conditions that may be considered
appropriate and strike the respondent's name from the register; (d) impose a fine not to exceed $10,000; (e) order that the respondent pay the costs or a
part of the costs incurred by the board in the investigation and hearing of the
complaint; (f) order that the registrar publish a summary of
the decision including the information set out in subsection 25(4) and other information that the tribunal may
specify; and (g) order that the respondent comply with one or
more of the following: (i) make restitution to the complainant or other
person affected by the conduct of the respondent, (ii) obtain medical treatment, (iii) obtain counselling, (iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been overcome, (v) engage in continuing education programs, (vi) complete a course of studies satisfactory to
the board or another body or person designated by the adjudication tribunal, (vii) report on his or her compliance with an order
made under this section and authorize others involved with his or her treatment
or supervision to report on it, (viii) restrict his or her practice or continue his
or her practice under specified conditions, (ix) permit periodic inspection of his or her
practice or records relating to his or her practice, or (x) impose other requirements that are just and
reasonable in the circumstances. (3) The costs incurred by the board to ensure the
compliance of a respondent with an order or direction of an adjudication
tribunal under this section shall be borne by the respondent. Powers of adjudication
tribunal 24. (1) Upon
the hearing of a complaint, an adjudication tribunal shall decide whether or
not a respondent is guilty of conduct deserving of sanction. (2) Where an adjudication tribunal decides that a
respondent is not guilty, it shall dismiss the complaint and may, where it
believes that the submission of the complaint to the tribunal for a hearing was
unreasonable, (a) order that those costs that the tribunal
considers appropriate be paid by the board to the respondent; and (b) make another order that it considers
appropriate. (3) Where an adjudication tribunal decides that a
respondent is guilty, it may (a) reprimand the respondent; (b) order that the respondent be suspended for a
fixed period that it considers appropriate, until conditions which it may
impose are fulfilled, or until further order of the adjudication tribunal; (c) allow or direct the respondent to surrender
his or her licence to the board upon those conditions that may be considered
appropriate and strike the respondent's name from the register; (d) impose a fine not to exceed $10,000; (e) order that the respondent pay the costs or a
part of the costs incurred by the board in the investigation and hearing of the
complaint; (f) order that the registrar publish a summary of
the decision including the information set out in subsection 25(4) and other information that the tribunal may
specify; and (g) order that the respondent comply with one or
more of the following: (i) make restitution to the complainant or other
person affected by the conduct of the respondent, (ii) obtain medical treatment, (iii) obtain counselling, (iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been overcome, (v) engage in continuing education programs, (vi) complete a course of studies to the
satisfaction of the board or other body or person designated by the adjudication
tribunal, (vii) report on his or her compliance with an order
made under this section and authorize others involved with his or her treatment
or supervision to report on it, (viii) restrict his or her practice or continue his
or her practice under specified conditions, (ix) permit periodic inspection of his or her
practice or records relating to his or her practice, or (x) impose other requirements that are just and
reasonable in the circumstances. (4) The costs incurred by the board to ensure the
compliance of a respondent with an order or direction of an adjudication
tribunal under this section shall be borne by the respondent. Filing and publication
of decisions 25. (1) An
adjudication tribunal shall file a decision or order made under subsection 23(2) or 24 with the
registrar and provide a copy to the complainant and the respondent and the
respondent's employer. (2) The registrar shall maintain a copy of a
decision or order filed under subsection (1) for a minimum of 5 years after the
day the decision is filed and shall upon receiving a request to view the
disciplinary records in relation to a licensed funeral director or embalmer permit
a person to view a summary of a decision where that licensed funeral director
or embalmer was the respondent, prepared in accordance with subsection (4). (3) The registrar shall publish a summary of a
decision or order of an adjudication tribunal in a newspaper of general
circulation in or nearest to the community in which the respondent practises
within 14 days of the expiry of the appeal period provided under section 31, where the decision or order (a) suspends the respondent; (b) allows or directs the respondent to surrender
his or her licence; (c) restricts the respondent's practice; (d) specifies conditions for the continuing
practice of the respondent; or (e) requires that a summary of the decision or
order be published. (4) The summary of the decision published under
subsection (3) shall include (a) the name of the respondent and the address
where he or she practises; (b) the date, location and a brief description of
the conduct of the respondent that was found to be deserving of sanction; (c) the name of the complainant, where the
complainant requests that his or her name be published; (d) the contents of the order in relation to the
actions referenced in paragraphs (3)(a) to (d); and (e) other information specified for publication in
the decision or order. (5) Where a decision published under this section
is confirmed, varied or set aside, the registrar shall within 14 days of the
filing of the subsequent decision or order publish a summary of the decision or
order and subsections (2) and (3) apply, with the necessary changes. De-registration
and suspension 26. (1) Where
a funeral director or embalmer is struck off the register, his or her rights
and privileges as a funeral director or embalmer cease. (2) Where a funeral director or embalmer is suspended,
his or her rights and privileges as a funeral director or embalmer cease for
the period of suspension. (3) Where conditions or restrictions have been
imposed upon a respondent's ability to carry on his or her practice, his or her
rights and privileges as a licensed funeral director or embalmer shall be
limited to the extent specified by the conditions or restrictions. Failure to comply 27. (1) On
application by the board to the disciplinary panel, an adjudication tribunal
may make an order suspending the rights and privileges of a respondent where it
determines that the respondent has failed to comply with a decision or an order
under section 23 or 24.
(2) The parties to the application are the board
and the respondent. (3) An order of an adjudication tribunal under
this section may suspend the rights and privileges of the respondent for a
fixed period that the adjudication tribunal may consider appropriate, or until
conditions which it may impose are fulfilled, or until further order of the
adjudication tribunal. Reinstatement and
readmission 28. (1) Where
a decision or order of the adjudication tribunal (a) suspends the respondent; (b) allows or directs the respondent to surrender
his or her licence; (c) restricts the respondent's practice; or (d) specifies conditions for the continuing
practice of the respondent, and where the respondent alleges that new
evidence has become available or a material change in circumstances has
occurred since the making of the decision or order, the respondent may apply to
the complaints authorization committee for a supplementary hearing to discharge
or vary the decision or order based on the new evidence or material change in
circumstances. (2) An application under subsection (1) shall be
made not more than 90 days after the new evidence becomes available or the
material change in circumstances has occurred. (3) Where an application is made to the complaints
authorization committee under subsection (1), and the committee is of the opinion
that new evidence has become available or that a material change in
circumstances has occurred, as alleged by a respondent, the matter shall be
referred to an adjudication tribunal as if it were a matter referred under paragraph
19(3)(b) and sections 21
to 27 apply, with the necessary changes, to the
referred matter. (4) The parties to a supplementary hearing under
this section are the respondent and the board. (5) For the purpose of this section, in addition
to an order that an adjudication tribunal may make under section 23 or 24, a tribunal
may (a) vary the original decision or order made under
section 23 or 24;
or (b) discharge the original decision or order, with
or without conditions. Costs of board 29. (1) Where
a person who was ordered to pay the costs of the board under paragraph 23(2)(e) or 24(3)(e)
fails to pay in the time required, the board may suspend the licence of that
person until the costs are paid. (2) Costs ordered by the board under paragraph 23(2)(e) or 17.7(3)(e) are a debt due the board and
may be recovered by a civil action. Collection of
fine 30. (1) Where
an order is made under section 23 or 24 imposing a fine on a respondent, the board may
issue a certificate stating the amount of the fine due and remaining unpaid and
the name of the person by whom it is payable, and file the certificate with the
Registrar of the Supreme Court. (2) Where a certificate is filed with the
Registrar of the Supreme Court under subsection (1), it has the same effect and
all proceedings may be taken on the certificate as if it were a judgment of the
Trial Division for the recovery of the amount stated in the certificate against
the person named in the certificate. (3) A person named in a certificate filed under
this section may, within 30 days after the certificate is filed, apply to a
judge of the Trial Division for a review, on a question of law or jurisdiction,
of the certificate. (4) On application under subsection (3), the judge
may make any amendment to the certificate that is necessary to make the certificate
accord with the judge's decision. (5) There is no appeal from a decision of a judge
made under this section. (6) A certificate filed under this section may
also be filed in the judgment enforcement registry on the expiration of the 30
day period referred to in subsection (3) in accordance with Part Appeal to Trial
Division 31. (1) The
board or the respondent may, within 30 days after receiving notice of the
decision or order of an adjudication tribunal under this Act, appeal the
decision or order to the Trial Division by filing a notice of appeal with the
Registrar of the Supreme Court. (2) An appeal under this section does not stay the
decision or order being appealed unless the Trial Division orders otherwise. Action prohibited 32. An
action for damages shall not lie against the board, disciplinary panel, an adjudication
tribunal or the individual members of those bodies, the registrar, a person
appointed to conduct an inspection under section 11 or an investigation under
subsection 19(4) or an officer or employee of
the board for (a) an act or failure to act, or a proceeding
initiated or carried out in good faith under this Act, or carrying out their
duties or obligations as an investigator, officer, employee or member under
this Act; or (b) for a decision or order made or enforced in
good faith under this Act. Permits 33. (1) Notwithstanding
anything contained in this Act, for the purpose of serving the public in sparsely
settled areas of the province where the services of a licensed funeral director
are not available, the board may, subject to the regulations, issue permits to
perform the services of a funeral director to persons who are not licensed as
funeral directors under this Act but who, in the opinion of the board, hold
qualifications similar to those required by this Act and regulations for the
licensing of persons as funeral directors. (2) Permits issued by the board under subsection
(1) are subject to the terms, conditions and limitations that may be prescribed
by the regulations. Employer of non-licensed
holder 34. A
person who (a) employs a person to control and operate an
establishment for the purpose of furnishing to the public funeral supplies and
services where the person employed is not the holder of a licence or permit to
act as a funeral director; or (b) employs a person to engage in the practice of
embalming where the person employed is not licensed as an embalmer is guilty of an offence under this Act. Penalties 35. A
funeral director or embalmer who knowingly disregards the terms of a consent
made or given under Part II of the Human
Tissue Act is guilty of an offence under this Act. Licence to be
displayed 36. (1) A
licence holder or permit holder under this Act who fails to keep the licence or
permit displayed in a prominent position at all times where business is carried
on or affected by the licence holder or permit holder is guilty of an offence. (2) A person who is not entitled to practise as a
funeral director or embalmer shall not hold out to the public by advertisement,
sign or otherwise that he or she has that right. Offence 37. A person who commits an offence under this Act is liable on summary conviction to a fine of not more than $5,000 or to a term of imprisonment for a period not exceeding one month, or to both a fine and imprisonment. RSNL1990 cE-7
Rep. 38. The Embalmers
and Funeral Directors Act is repealed. Commencement 39. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. ŠEarl G. Tucker, Queen's Printer |