FLORENCE CHAFFEY Applicant And: HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2020 NLSC 56

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Chaffey v. Her Majesty the Queen in Right of Newfoundland and Labrador , 2020 NLSC 56 Date : May 1, 2020 Docket : 201901G4078 Between: FLORENCE CHAFFEY Applicant And: HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND AND LABRADOR First Respondent And: BEULAH IVANY, RON IVANY, MICHAEL IVANY, and LORETTA RANDELL Second Respondent Before: Justice Glen L.C. Noel Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 5, 2020

Summary: Florence Chaffey applied to the Minister of Justice for a licence under the Exhumation Act , R.S.N.L. 1990, c. E-18 to exhume and reposition remains placed in a cemetery plot she claims belongs to her. She asserts that she purchased the right to the double plot from the Cemetery Committee to be next to her late husband on her passing. The family of the man whose remains were resting in the disputed plot rejected Mrs. Chaffey’s claim of entitlement to the plot and to any removal of the remains of their family member.

The Minister refused to issue the licence, taking the position that the consent of the next of kin of the deceased whose removal was sought was a necessary precondition. Mrs. Chaffey applied for judicial review of the decision. The Court held the Minister’s decision was unreasonable and remitted the matter for reconsideration with the benefit of the Court’s

ruling. The Minister had improperly fettered his discretion by establishing the consent of the next of kin as a necessary condition to the issuance of a licence. While the presence or absence of consent may be an appropriate factor for consideration, given the wide discretion afforded by the Act , a lack of consent could not be used as an automatic ground for refusal. The Minister’s reasons also failed to address the factual context of whether there is a compelling reason to exhume. In the unusual circumstances, the Court made no order as to costs. Appearances: Stephen E.

Barnes Appearing on behalf of the Applicant Mark P. Sheppard Appearing on behalf of the First Respondent Amanda Buis Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Mason v. Mason , 2018 NBCA 20 ; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Delta Air Lines Inc. v. Lukács , 2018 SCC 2 ; Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 ; Stemijon Investments Ltd. v. Canada (Attorney General) , 2011 FCA; Baker v. Canada (Minister of Citizenship & Immigration, 1999 SCC 699. STATUTES CONSIDERED: Exhumation Act , R.S.N.L. 1990, c.

E-18 ; Judicature Act , R.S.N.L. 1990, c. J-4 . RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . TEXTS CONSIDERED: Heather Conway, The Law and the Dead (New York: Routledge, 2016). REASONS FOR JUDGMENT Noel, J. : OVERVIEW [ 1 ] This request for judicial review concerns a sensitive and unusual dispute over one’s final resting place. [ 2 ] The Applicant, Florence Chaffey (“Mrs. Chaffey”), made plans to rest next to her late husband who died in October 2016. Two months later, the family of the late Samuel Ivany (“Mr.

Ivany”) laid their loved one to rest with the expectation he would forever rest in peace. Mrs. Chaffey claims Mr. Ivany’s remains are in the cemetery plot where she wants her final remains to rest. She made application under the Exhumation Act , R.S.N.L. 1990, c. E-18 (“the Act ”) to have the Minister of Justice (“the Minister”) issue a licence to remove Mr. Ivany’s remains from the plot. Mr. Ivany’s family vehemently objected. [ 3 ] On 20 March 2019, the Minister issued a decision denying Mrs. Chaffey’s application (“the Decision”). [ 4 ] Mrs.

Chaffey seeks an order quashing the Decision and requiring the Minister to sign a licence to exhume the remains of Mr. Ivany, and to have his remains repositioned in the adjacent plot. Alternatively, she requests an order directing the Minister to reconsider his decision without the consent of Mr. Ivany’s next of kin being a pre-requisite for issuing the licence.

[ 5 ] On 18 June 2019, Mrs. Chaffey filed her application for judicial review. Just four days before, she also filed a Statement of Claim against, among others, the Estate of Samuel Ivany and the next of kin - but did not name the Crown. [1] She sought damages and other relief, including a declaratory order that she is the rightful and exclusive owner of the license to make interments in Plot 186, and an order requiring the defendants to take the appropriate steps to remove the remains of the late Samuel Ivany from Plot 186.

No Statement of Defence has been filed in that action, and there is no record of any further steps having been taken in the proceeding. [ 6 ] I have not been provided with any precedent from our Court arising from a Ministerial decision to deny a licence for exhumation. Canadian authorities offer little by way of guidance on the principles governing exhumation licensure. [ 7 ] For the reasons set out below, I am quashing the Decision and returning the matter to the Minister for reconsideration in accordance with this ruling.

However, I will explain at the end of these reasons whether and how any reconsideration proceeds may be affected by the conduct of the civil proceeding. ISSUES [ 8 ] The issues for determination are: 1. The appropriate standard of review; 2. An assessment of the Decision applying the appropriate standard of review; and 3. If required, consideration of the appropriate remedy. background The Disputed Plot [ 9 ] The dispute underlying this application and Mrs. Chaffey's civil claim is over who is entitled to possession of the plot in which Mr. Ivany is buried. [ 10 ] Mr. Maurice Chaffey (“Mr.

Chaffey”) died on 26 October 2016. Fewer’s Funeral Home buried his remains on 29 October 2016 at Milton George’s Brook Interdenominational Cemetery in the Town of George’s Brook-Milton (“the Cemetery”). [ 11 ] Mr. Ivany died on 16 December 2016.

Five days later Blundon’s Funeral Home buried his remains in the Cemetery. [ 12 ] The Milton–George’s Brook Interdominational [ sic ] Cemetery, Inc. (operating as “the Cemetery Committee”) [2] is responsible for plotting and marking where burial plots are dug by funeral homes within the Cemetery. [ 13 ] The record before the Minister included evidence from the Cemetery Committee to the effect that: 1. Mrs. Chaffey purchased double Plot #186 for her and Mr. Chaffey on 30 September 2015; and 2.

The Ivany family, through Blundon’s Funeral Home, purchased double Plot #187 on 17 December 2016. [3] [ 14 ] The Cemetery Committee predetermined the location of both Mr. Chaffey and Mr. Ivany’s burial plots and indicated the location using marked stakes. The graves were prepared by the funeral homes based on these predetermined locations. [ 15 ] The record before the Minister, as confirmed by the Cemetery Committee, indicates that Mr. Ivany “was mistakenly placed in Plot 186”. The Ivany family does not accept this and takes the position that Mr. Ivany is indeed buried in the correct plot. [4] [ 16 ] Mrs.

Chaffey, firm in her view that Mr. Ivany is buried in the wrong plot – Plot 186, the double plot intended for her and her husband – sought a licence from the Minister to allow for the exhumation of Mr. Ivany’s remains. The Decision [ 17 ] The Deputy Minister signed the Decision on behalf of the Minister. Addressed to counsel for Mrs. Chaffey, it reads, in its entirety: We refer to S. 2 of the Exhumation Act which, for ease of reference, states as follows: 2.

A person shall not remove a body, or the remains of a body interred in a place of burial, except under a license signed by the Minister of Justice or Chief Medical Examiner in accordance with the duties of the Chief Medical Examiner, and with precautions which may be prescribed by the Minister of Health. Disinterment is not a matter of right and there is public policy favouring the sanctity of the place of burial. On previous occasions, the Minister of Justice and Public Safety has granted exhumations to address requests which would, for example, enable people who lived

together to be buried together (e.g. a spouse or a child) and to allow for perpetual care. In the normal course, the decision to grant an Exhumation License is a two-step process. The first step is to ensure that the consent of the executor/administrator or next of kin is obtained and the second is to determine whether there is a compelling reason to exhume. In the present case, we are faced with an unusual situation. Your client is a third party and the next of kin vehemently oppose the exhumation.

Given that exhumation by its nature is extremely intrusive, and because there is no consent from the next of kin of the deceased your client seeks to exhume, the Minister will not issue a license in this case. We are very sorry for the distress caused by this situation and wish that we could remedy the problem caused by an error on the part of someone other than those most deeply affected by the situation.

We would like to take this opportunity to express our condolences to your client. analysis Legal Context [ 18 ] Before turning to the issues that must be determined, I will set out the legal context or framework in which exhumation decisions are made in this province. [ 19 ] The Act provides in

section 2 , reproduced in the Decision, that “a body interred in a place of burial” shall not be removed in the absence of a licence issued by the Minister of Justice or the Chief Medical Examiner. Contravention of this requirement is a

summary conviction offence. The Act provides no guidance or criteria governing the Minister’s decision to grant or refuse a licence. [ 20 ] Since the provincial legislation - like other such legislation in Canada – has ‘occupied the field’, there is no need for a comprehensive discussion of the principles of ecclesiastical (non-statutory) law applicable to disinterment.

However, a brief reference will illustrate the similarity between the two approaches. [ 21 ] Professor Heather Conway’s scholarly and comprehensive textbook, The Law and the Dead (New York: Routledge, 2016) c. 7 , on “Exhuming the Dead” analyses the complex laws, policy debates and conflicting values around disinterment. She writes (at pages 180-181): Most societies and cultures that embrace burial as a means of bodily disposal exhibit an entrenched reluctance to disturb the dead’s earthly repose for two reasons.

The first is public health concerns around the potential transmission of disease from decaying corpses. Secondly, and most fundamentally, exhumation offends the basic moral premise of allowing the dead to ‘rest in peace’ and is generally regarded as a forbidden or sacrilegious act. [5] [ 22 ] Professor Conway’s focus is on England and Wales, and she notes exhumation there is subject to strict legal controls. She distinguishes between two categories: an ecclesiastical faculty or a Ministry of Justice licence.

She notes (at page 185) the ecclesiastical faculty occurs: Where human remains were originally buried in ground consecrated by Church of England, any subsequent displacement requires the grant of a faculty in accordance with ecclesiastical law.

Thus exhumation of the corpse or ashes from a Church of England churchyard or the consecrated part of the municipal cemetery is dependent on permission from the Chancellor of the consistory court for the diocese in which the grave is located. [ 23 ] She goes on to note (at pages 199-200) that, while in the ecclesiastical jurisdiction there is a presumption against disinterment, there is no such presumption in the secular (statutory) jurisdiction.

However, as will be seen, the applicable common law principles reflect a corresponding reluctance to disinter. [ 24 ] The common law informing the exercise of statutory authority to license an exhumation was set out by the New Brunswick Court of Appeal in Mason v. Mason , 2018 NBCA 20 . The court said (at paragraph 29): ... the common law does not establish a priority or ranking system empowering any particular individual to disinter human remains once the obligation to properly dispose of these has been fulfilled.

Rather, the common law, like s. 15 of the [NB] Cemetery Companies Act, recognizes a broad judicial discretion to consider all the circumstances and determine whether there are compelling reasons to allow human remains to be disinterred in accordance with the wishes of a particular person or group of persons. [ 25 ] Richard, J.A. further added (at paragraph 40): These questions do not arise in a regime where, once the obligation to properly dispose of one's remains has been discharged, disinterment of the remains will only be allowed for compelling reasons.

In my view, this is the regime recognized at common law. [ 26 ] I take from Mason the common law principle that, in exercising an unqualified statutory authority to allow human remains to be disinterred, that authority should be exercised in favour of the request only when there are “compelling reasons” to do so.

[ 27 ] The common law then reflects, without requiring unquestioning adherence to, the ecclesiastical premise of allowing the dead to ‘rest in peace’. It also is not out of step with Professor Conway’s view that, in the ecclesiastical setting, there is a presumption against disinterment. [ 28 ] I accept the Minister should only exercise discretion to issue a licence for exhumation if, in the Minister’s view, there are compelling reasons to do so. [ 29 ] There is a second principle.

Section 2 of the Act does not set out any constraints on the exercise of the Minister's discretion to grant or not grant a licence. The law is clear that a statutory decision maker entrusted with such wide discretionary authority cannot 'fetter' that discretion by prescribing one or more conditions that must be met before that authority will be exercised.

Any such conditions must be found in the governing statute. [ 30 ] Recently, the Supreme Court of Canada reaffirmed in Canada (Minister of Citizenship and Immigration v Vavilov , 2019 SCC 65 (at paragraph 108 ), relying on its earlier decision in Delta Air Lines Inc. v. Lukács , 2018 SCC 2 , “where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion.” [ 31 ] Administrators, such as the Minister, who treat administrative policies as the law and consider themselves bound to it, are fettering discretion, and making an unreasonable decision.

See, for example: Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 at paragraph 32 ; and Stemijon Investments Ltd. v. Canada (Attorney General) , 2011 FCA at paragraph 43. [ 32 ] The Minister’s exercise of discretion should not therefore be constrained by one or more non-statutory mandatory conditions or requirements, whether established by policy or otherwise. [ 33 ] I turn now to an assessment of the Minister’s decision in the context of this legal framework and the issues identified for determination. 1.

What is the Standard of Review? [ 34 ] The parties submitted that the standard of review is reasonableness, in light of Vavilov . [ 35 ] In Vavilov the Court held that there is a presumption that the legislature intended the standard of review to be reasonableness. The court noted (at paragraph 24): Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it.

Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. [ 36 ] The court also indicated (at paragraph 25) that “a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes.” [ 37 ] It held (at paragraph 33) the presumption of reasonableness will be rebutted where: (1) the legislature explicitly prescribes what standard courts should apply when reviewing decisions; and (2) where a statutory appeal mechanism has been provided, which would signal that appellate standards of review should apply.

Neither of these situations applies in this case. [ 38 ] As this matter involves a statutory administrative decision maker who is administering the licensing regime of the Act , I conclude the standard of review of the Decision is reasonableness. 2. Was the Decision to refuse the licence reasonable? [ 39 ] Reasonableness review is concerned with the decision-making process and its outcomes. The starting point for a reasonableness review is the reasons provided by the decision maker.

Vavilov stated (at paragraph 81 ), “Reasons facilitate meaningful judicial review by shedding light on the rationale for a decision.” [ 40 ] Vavilov stipulated (at paragraph 85 ) that a reasonable decision is (1) based on an internally coherent reasoning, and (2) justified in relation to the facts and law that constrain the decision maker. The court stated (at paragraph 86): In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies.

While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. [ 41 ] In my role as the reviewing court, I cannot fill in gaps in reasoning or otherwise fashion my own reasons to justify the Decision - (at paragraph 96): To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. [ 42 ] It is not necessary to decide whether reasons are required for a ministerial decision to grant or refuse a licence. Reasons were given and now form the foundation of the reasonableness assessment. [ 43 ] The Decision outlines “the normal course” for consideration of a request to grant an Exhumation Licence is a “two-step

process”. The first step is to “ensure” the consent of the legal representative of the deceased; the second – apparently, when such consent is obtained – is to assess whether there is a “compelling reason” to exhume. [ 44 ] The Decision concludes in short order that since there is no consent, the Minister will not issue a licence. The Decision goes on to refer to the problem being caused by an “error”, but does not explain the error, and does not refer to any consideration of or conclusion by the Minister that Mr.

Ivany is in fact in the Chaffey plot. [ 45 ] I am satisfied that the Decision is unreasonable for two reasons. [ 46 ] Firstly, and primarily, the Minister improperly fettered his discretion by requiring the consent of the deceased’s next of kin as a necessary precondition to the grant of a licence. The Minister cannot fetter his discretion by applying a policy that requires the consent of the next of kin. [ 47 ] The application for an Exhumation License sets out: Consent should be provided by the Executor or Administrator of the Deceased’s estate.

If the estate is not probated, or if the Executor or Administrator is deceased or otherwise lacks the capacity to provide consent, consent should be provided by the deceased’s next of kin, including the deceased’s parents, spouse, and children who are capable of providing informed consent. Consent of siblings is only requested if all of the above are unable due to incapacity or death. [ 48 ] As noted previously,

section 2 of the Act does not contain any direction as to how the Minister’s discretion should be exercised. [ 49 ] A policy that requires the Minister to take into consideration the presence or absence of consent is readily justifiable. However, to say - in effect - that no consideration will be given to a request in the absence of consent is an abdication of the statutory responsibility to consider all circumstances.

Any absence of consent is but one factor in the consideration of all the circumstances for or against the grant of a licence. [ 50 ] Secondly, the reasons do not address the critical factual dispute that lies at the heart of the request. There is no discussion of whether the Minister was satisfied that Mr. Ivany is in the wrong plot, as asserted by Mrs.

Chaffey. [ 51 ] The determination of whether there is a compelling reason to exhume – the ‘second step’ in the process described by the Minister – properly reflects the common law requirement that exhumation be permitted only where there is compelling reason to do so. An assessment of whether compelling reasons exist should include consideration of all the relevant circumstances. The circumstances inform the ‘factual context’ of the Decision. [ 52 ] In this case, a significant, if not the primary element of the factual context is the identification of the plot in which Mr.

Ivany is buried, and the ‘ownership’ of or ‘contractual right’ to that plot. [6] Perhaps, given that the licence was refused because of the lack of consent, it was not considered necessary to address the factual context and the factual dispute. [ 53 ] It may be suggested that the determination of a ‘property or contract issue’ does not come within the authority contemplated by the Act .

Nevertheless, the statute allows – and the law requires - the Minister to fairly consider all the circumstances relevant to a request, no matter how unexpected such circumstances may be. [ 54 ] I recognize that an assessment of conflicting factual positions does not fit comfortably in a process intended to provide a decision based primarily on social and policy considerations. [ 55 ] Nevertheless, where facts relevant to the factual context are disputed, the Minister is required to carefully assess all such material as is presented before making a determination of whether there are compelling reasons to permit an exhumation. [ 56 ] As mentioned above, and perhaps because of reliance on the absence of consent, the Decision did not attempt to address or consider the plot dispute.

As a result, there are no reasons providing any linkage between the factual context and a compelling reason to exhume. 3. What is the appropriate Remedy? [ 57 ] The legislature has entrusted the granting of exhumation licences to the Minister, and not to the Court: Vavilov , at paragraph 140 . The circumstances here do not support an order, as sought by Mrs. Chaffey, directing the Minister to sign an Exhumation License to disinter the remains of Mr. Ivany and have his remains repositioned in the adjacent plot. [ 58 ] Alternatively, counsel for Mrs.

Chaffey seeks an order remitting the matter to the Minister and directing him to disregard the consent of the Ivany next of kin as a pre-requisite for issuing the Exhumation License. I am not prepared to do that. Consent, or the lack of it, is an aspect of factual context and cannot be disregarded. [ 59 ] I am remitting the matter to the Minister for reconsideration. [ 60 ] In view of the unusual circumstances, including the plot dispute and the parallel civil litigation, the Minister is obliged to reconsider the matter only after Mrs.

Chaffey has advised the Minister of her desire to have the reconsideration proceed. It may be that Mrs. Chaffey may choose to first pursue the plot dispute in the context of the civil litigation and have that issue determined before reconsideration of the exhumation application. [ 61 ] Should Mrs.

Chaffey choose to proceed with ministerial reconsideration in the absence of prior resolution of the plot issue, the conduct of such reconsideration is a matter for the Minister, not the Court. [ 62 ] The licence application process is administrative rather than adjudicative and there is no ready procedure for the admission and challenging of evidence. The Minister may want, at a minimum, to provide Mrs. Chaffey and the Ivany Estate with an opportunity to

provide their positions on the factual context. However, I hasten to add the parties made no submissions before me on the specific nature of any duty of procedural fairness owed by the Minister, and it would not be appropriate to comment further. [7] [ 63 ] I express no view on whether the Minister could require prior resolution of the plot issue before coming to a final decision on the reconsideration. costs [ 64 ] Mrs. Chaffey’s application to the Minister and the review by the Court presented novel and unusual circumstances. I am exercising the discretion permitted under

section 53 of the Judicature Act , R.S.N.L. 1990, c. J-4 , and Rules 55.02(1) and 55.04(2) of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D , to make no order as to costs. Although Mrs. Chaffey succeeded in having the Decision quashed, I denied the main relief she sought in requiring the Minister to issue the licence, or directing the Minister to reconsider without the consent of Mr. Ivany’s next of kin. [ 65 ] Counsel for the Ivany family seeks costs. Since the disputed plot issue remains to be determined, I am not prepared to make an award of costs as against the Minister or Mrs.

Chaffey to the Ivany next of kin. conclusion [ 66 ] I conclude: 1. The standard of review is reasonableness in accordance with Vavilov ; 2. The Decision to refuse the Exhumation Licence fails to meet the reasonableness standard; and 3. The appropriate remedy is to have the Minister reconsider Mrs. Chaffey’s application for an Exhumation Licence with the benefit of these reasons. Disposition [ 67 ] I order the Decision quashed and the matter remitted to the Minister for reconsideration in accordance with the Reasons for Judgment; and there is no order as to costs. ______________________________ GLEN. L.C.

NOEL Justice