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SNL2008 CHAPTER E-7.1

EMBALMERS AND FUNERAL
DIRECTORS ACT, 2008

Amended:

2012 c38 s8; 2013 c16 s25

CHAPTER E-7.1

AN ACT RESPECTING EMBALMERS AND
FUNERAL DIRECTORS

(Assented to June 4, 2008 )

Analysis



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.

2008 cE-7.1 s1

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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.

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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.

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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.

             (7)  Notwithstanding subsection (2), at least one half of the members next appointed or reappointed following the commencement of this subsection 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 board shall be for a term of 3 years.

2008 cE-7.1 s4; 2012 c38 s8

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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.

2008 cE-7.1 s5

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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 previous 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.

2008 cE-7.1 s6

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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.

2008 cE-7.1 s7

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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.

2008 cE-7.1 s8

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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.

2008 cE-7.1 s9

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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.

2008 cE-7.1 s10

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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.

2008 cE-7.1 s11

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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.

2008 cE-7.1 s12

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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.

2008 cE-7.1 s13

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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 with the 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.

2008 cE-7.1 s14; 2013 c16 s25

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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.

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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.

2008 cE-7.1 s16

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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.

2008 cE-7.1 s17

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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.

2008 cE-7.1 s18

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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 court.

2008 cE-7.1 s19; 2013 c16 s25

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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.

2008 cE-7.1 s20

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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.

2008 cE-7.1 s21

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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.

2008 cE-7.1 s22

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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.

2008 cE-7.1 s23

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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.

2008 cE-7.1 s24

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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.

2008 cE-7.1 s25

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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.

2008 cE-7.1 s26

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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.

2008 cE-7.1 s27

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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.

2008 cE-7.1 s28

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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.

2008 cE-7.1 s29

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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 Trial Division.

             (2)  Where a certificate is filed with the Trial Division 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 III of the Judgment Enforcement Act and be enforced in accordance with that Act.

2008 cE-7.1 s30; 2013 c16 s25

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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 court.

             (2)  An appeal under this section does not stay the decision or order being appealed unless the Trial Division orders otherwise.

2008 cE-7.1 s31; 2013 c16 s25

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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.

2008 cE-7.1 s32

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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.

2008 cE-7.1 s33

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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.

2008 cE-7.1 s34

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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.

2008 cE-7.1 s35

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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.

2008 cE-7.1 s36

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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.

2008 cE-7.1 s37

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RSNL1990 cE-7 Rep.

      38. The Embalmers and Funeral Directors Act is repealed.

2008 cE-7.1 s38

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Commencement

      39. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. (In force - Jan. 1/10)

2008 cE-7.1 s39