First

Session, 46th General Assembly

Elizabeth II, 2008

BILL 11

AN ACT RESPECTING

EMBALMERS AND

FUNERAL DIRECTORS

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

KEVIN O'BRIEN

Minister

of Government Services

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 BILL

AN ACT RESPECTING EMBALMERS AND

FUNERAL DIRECTORS

Analysis

Short title

Definitions

Board continued

Appointment by minister

Meetings

Submission by board

Fees

By-laws

Duties of registrar

Regulations

Inspection

Limitations in practice

Conditions of licence

Appeal to judge of Trial Division

Definitions

Complaints and disciplinary panel

Allegation

Effect of filing allegation

Complaints authorization committee

Adjudication

Hearing

Copies of books, etc. as evidence

Guilty plea by respondent

Powers of adjudication tribunal

Filing and publication of decisions

De-registration and suspension

Failure to comply

Reinstatement and readmission

Costs of board

Collection of fine

Appeal to Trial Division

Action prohibited

Permits

Employer of non-licensed holder

Penalties

Licence to be displayed

Offence

RSNL1990 cE-7 Rep.

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

(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

(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

(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

(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

(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

(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

(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;

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

(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,

(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

(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

(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

(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

(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

(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

(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

(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;

(

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

(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

(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

(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

(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

(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

(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

(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

(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 ;

(

b) discharge the original decision or order, with

or without conditions.

Costs of board

(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

(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 III of the Judgment Enforcement Act and be enforced

in accordance with that Act.

Appeal to Trial

Division

(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

(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

(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.

Earl G. Tucker, Queen's Printer