What Funeral Professionals Need To Know About Bill 46: Proposed Amendments To The Funeral, Burial And Cremation Services Act

Bill 46 is a proposed Act of the Ontario Legislature that amends 22 current Acts, ostensibly to "cut red tape". Schedule 11 of the Bill outlines amendments to the Funeral, Burial and Cremation Services Act, 2002 (the "Act"). Bill 46 has received first reading and second reading will not take place until after the Legislature resumes sitting in October, 2025.

1. There are a number of changes relating to the administration of the Act which may make sense to legislative lawyers who drafted the provisions, but I suspect are difficult to understand by most literate people. I therefore suggest you can ignore these provisions.
2. A new section is added to Part III of the Act which deals with the General Duties regarding Operation of Businesses. It provides that "No operator shall provide a licensed supply or service in respect of human remains unless the operator has received authorization to do so from the person or entity who has such authority in respect of the human remains as determined in accordance with the regulations". It goes on to say that the foregoing ". . . operates to prohibit an operator from providing a licensed supply or service without an authorization . . . even if an interment rights holder has directed or consented to the interment of the human remains or a scattering rights holder has directed or consented to the scattering of the cremated human remains". In other words, you are now required to satisfy yourself that the person you are contracting with has the legal authority to contract with you to provide the licensed supply or services.You should therefore review with legal counsel your standard form contract to ensure that it contains a clause whereby the contracting party represents and warrants to you that they have the necessary authority. This new requirement for authorization also provides operators with protection from liability if they obtain the necessary authorization, unless the operator knew or ought to have known that:
   1. the facts stated in the authorization were not true; or
   2. the person or entity giving the authorization to the operator did not have the authority to do so.
3. Section 66 of the Act relating to Complaints (including the registrar's powers), s. 67 re: Inspections (including an inspector's powers) and s. 68 re: the Appointment of Investigators have all been changed and, as you might imagine, those powers have not been reduced. Similarly, there have been changes to the sections dealing with Search Warrants (S. 70) and the seizure of things (s. 70.1) that will afford evidence of a contravention of any requirement under the Act or to a person's fitness to be licensed.
4. A new Part XI.1 is being added dealing with Administrative Penalties. It is extensive. An assessor appointed under this Part ". . . may, by order, impose an administrative penalty against a person if the assessor is satisfied that the person has contravened or is contravening,
   1. a prescribed provision of this Act or the regulations; or
   2. a condition of a license, if the person is a licensee."

   The purpose of such a penalty is (1) to promote compliance with the Act and the regulations and, (2) to prevent a person, directly or indirectly, from deriving any economic benefit as a result of contravening the Act or the regulations. The amount of the penalty "shall reflect the purpose of the penalty and shall be determined in accordance with the regulations, but the amount of the penalty shall not exceed $25,000."

   Subsection (9), entitled "absolute liability" provides that an order imposing an administrative penalty ". . . applies even if

   1. the person took all reasonable steps to prevent the contravention on which the order is based; or
   2. at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts that, if true, would have rendered the contravention innocent."

   Subsection (10) goes on to provide that "nothing in subsection (9) affects the prosecution of an offence." Further, Subsection (11) provides that ". . . an administrative penalty may be imposed alone or in conjunction with the exercise of any measure against a person provided by this Act or the regulations, including but not limited to the application of conditions to a license, the suspension, immediate suspension or revocation of a license or the refusal to renew a license." No hearing is required before an order is issued but there is a right of appeal. All the foregoing seems to be quite draconian, and one hopes the regulator will work with a licensee to correct a problem before simply proceeding with the foregoing.

5. Cemetery closings and Burial Sites: there are minor amendments dealing with cemetery closings and burial sites.
6. There are a number of miscellaneous changes in Parts XII and XIII of the Act which deal with such things as the documentation operators are required to provide to the registrar and with the making of regulations under the Act.
7. A number of the foregoing sections do NOT come into force immediately, presumably because the regulations referred to in those sections have not yet been drafted. These include, most importantly, the sections in point 2 above dealing with authorization, and point 4 dealing with administrative penalties.

Because the Bill has only received First Reading, and because the most important sections will not come into effect until sometime after the Bill has passed, there is time for the industry to react to the Bill, and perhaps lobby for changes to some of the potentially troublesome sections.

The Funeral Law team at Linmac LLP is available to help operators understand these proposed changes and review their existing contracts and compliance practices.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.