1994 Legislative Session: 3rd Session, 35th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


HONOURABLE JOAN SMALLWOOD
MINISTER OF HOUSING, RECREATION
AND CONSUMER SERVICES

BILL 11 -- 1994

CEMETERY AND FUNERAL SERVICES
AMENDMENT ACT, 1994

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 (1) of the Cemetery and Funeral Services Act, S.B.C. 1989, c. 21, is amended

(a) by repealing the definition of "advisory council",

(b) in the definition of "funeral provider" by adding "licensed under this Act" after "means a person", and

(c) by adding the following definitions:

"business premises" means premises where funeral services are offered or provided, but does not include that part of the premises occupied as a private residential dwelling;

"embalmer" means an individual licensed under this Act to engage in the disinfection, preservation, preparation or restoration of human remains;

"funeral director" means an individual licensed under this Act to arrange, conduct or direct funerals, burials or the disposition or transfer of human remains;

"licensee" means a funeral provider, funeral director or embalmer; .

2 Section 4 is amended by adding the following subsection:

(3) The registrar must maintain a current list of every person who, under this Act,

(a) is certified or licensed,

(b) has been refused a certificate of public interest, certificate of operation or licence,

(c) has had a certificate of public interest, certificate of operation or licence suspended or cancelled, or

(d) has surrendered a certificate of public interest, certificate of operation or licence.

3 Section 5 is amended

(a) in paragraph (c) by adding "funeral director, embalmer," after "funeral provider,", and

(b) by striking out "and" at the end of paragraph (c) and by adding the following paragraphs:

(e) issue, refuse to issue, suspend, cancel and impose conditions on licences for funeral providers, funeral directors or embalmers, and

(f) establish standards of operation for funeral homes.

4 Section 9 is amended by adding ", licence" after "A certificate".

5 Section 51 (1) (h), as enacted by the Cemetery and Funeral Services Act, S.B.C. 1989, c. 21, is repealed and the following substituted:

(h) an official administrator under the Estate Administration Act; .

6 The following Part is added:

Part 7.1

Licensing of Funeral Providers,
Funeral Directors and Embalmers

Licensing

69.1 (1) A person must not carry on business as a funeral provider, funeral director or embalmer unless the person is licensed under this Part and has paid the prescribed licence fee.

(2) An application for a licence or the renewal of a licence must be

(a) made to the registrar in a form approved by the registrar,

(b) accompanied by the prescribed licence fee, and

(c) accompanied by any information the registrar reasonably requires to determine whether to issue the licence or renew the licence.

(3) A funeral provider must be licensed for each location at which the funeral provider carries on business in British Columbia.

(4) Subject to this section, the registrar may issue or renew a licence for a term of one year commencing at the beginning of the day on the effective date specified in the licence and expiring at the end of the day on the date specified in the licence as the expiry date, and the licence is valid during that period unless it is suspended, cancelled or surrendered.

(5) Despite subsection (4), the registrar may issue or renew a licence for a term that is less than one year.

(6) A licence may be issued or renewed on conditions that the registrar considers necessary to ensure

(a) the financial responsibility of the applicant or licensee,

(b) the protection of the public interest having regard to matters of consumer protection, health or safety or the care and handling of human remains, and

(c) compliance by the applicant or licensee with this Act.

Refusal, suspension or cancellation of a licence

69.2 (1) The registrar may refuse to issue or renew a licence or may cancel a licence for any of the following reasons:

(a) it is not in the public interest for the applicant or licensee to be licensed having regard to the financial responsibility or conduct of

(i) the applicant or licensee, or

(ii) an officer or director of the applicant or licensee if the applicant or licensee is a corporation;

(b) it is not in the public interest for the applicant or licensee to be licensed having regard to consumer protection, health or safety or the care and handling of human remains;

(c) the applicant or licensee, or an officer or director of the applicant or licensee if the applicant or licensee is a corporation, has contravened this Act.

(2) The registrar may, for any of the reasons under subsection (1), suspend a licence for a period of time and subject to any conditions the registrar considers necessary.

Written reasons and written reply

69.3 (1) Following the registrar's decision to

(a) refuse to issue or renew a licence,

(b) suspend or cancel a licence, or

(c) impose conditions on a licence, the registrar must provide the applicant or licensee with written reasons for the decision and the applicant or licensee may file a written reply with the registrar within 21 days after the date of the decision.

(2) On receipt of a written reply under subsection (1), the registrar must confirm or vary the registrar's decision made under subsection (1).

Appeal to the Commercial Appeals Commission

69.4 (1) An applicant or licensee may appeal a decision of the registrar made under section 69.2 or 69.3 to the Commercial Appeals Commission established under the Commercial Appeals Commission Act.

(2) The appeal must be made in the manner and within the time allowed in the Commercial Appeals Commission Act.

Inquiries

69.5 (1) The registrar may make inquiries and require information from an applicant or licensee that the registrar considers necessary to decide whether or not to

(a) issue or renew a licence,

(b) suspend or cancel a licence, or

(c) impose conditions on a licence.

(2) It is a prerequisite to the issuing of a licence and a condition of the licence that an applicant or licensee comply with a request for information made under subsection (1).

Change of address

69.6 A licensee must notify the registrar, in writing, of any change of address of the licensee's place of business or employment within the 2 week period immediately following the change of address.

Licence not transferable

69.7 A licence issued under this Part is not transferable.

Identification of funeral provider

69.8 A funeral provider must not advertise, contract or otherwise carry on business at a location in British Columbia in a name other than the name which appears on the licence issued to the funeral provider in respect of that location.

7 The heading to Part 8 is repealed and "FUNERAL SERVICES" is substituted.

8 Section 70 is amended by striking out "funeral provider" and substituting "licensee".

9 Section 71 is amended by striking out "funeral provider" and substituting "licensee" and by striking out "the form of contract used is as prescribed by the regulations." and substituting "the contract contains the prescribed terms and conditions."

10 Section 72 is amended

(a) in subsection (1) by striking out "funeral provider" and substituting "licensee" and by striking out "it" and substituting "the licensee", and

(b) in subsection (2) by striking out "funeral provider" and substituting "licensee".

11 The following sections are added:

Premises where funeral services are provided

72.1 Every licensee must maintain premises where funeral services are provided that, in the opinion of the registrar, are sufficient for the purposes of

(a) storing, preparing or embalming human remains, and

(b) displaying caskets and containers.

Display of licences

72.2 Every licensee who carries on business, or who is employed at a location in British Columbia which offers funeral services to the public, must display, in a conspicuous place on the premises that is accessible to members of the public, each licence issued under Part 7.1.

Funeral directors and embalmers

72.3 (1) Subject to subsection (3), every funeral provider must employ or contract with a licensed funeral director for each location at which the funeral provider carries on business in British Columbia.

(2) Subject to subsection (3), every funeral provider must employ or contract with a licensed embalmer for each location at which the funeral provider carries on business in British Columbia.

(3) A funeral provider who is an individual may be the funeral director or embalmer, or both, for one location at which the individual funeral provider carries on business in British Columbia.

12 Section 73 is amended

(a) in subsection (1) by striking out "funeral provider" in both places and substituting "licensee" and by striking out "its" and substituting "the licensee's", and

(b) in subsection (2) by striking out "funeral provider" and substituting "the licensee" and by striking out "it" and substituting "the licensee".

13 The following section is added:

Price list

73.1 A licensee must

(a) keep a current price list of all goods and services offered for sale,

(b) display the current price list in a conspicuous place on the premises that is accessible to members of the public and provide a copy of it to a consumer on request, and

(c) file the current price list, and any amendment to that price list, with the registrar.

14 Section 74 is amended by striking out "funeral provider" in both places and substituting "licensee".

15 Section 75 is amended

(a) in subsection (1) by striking out "funeral provider" and substituting "licensee" and by striking out "it" and substituting "the licensee", and

(b) in subsection (2) by striking out "funeral provider" in both places and substituting "licensee".

16 The following section is added:

Complaints

75.1 (1) If the registrar receives a complaint about a licensee, the licensee, on receipt of a request from the registrar, must promptly provide to the regis trar, in writing, information requested by the registrar respecting the subject matter of the complaint.

(2) The registrar or a person designated in writing by the registrar may, during business hours, enter business premises to make inquiries and observations and to inspect and copy records with respect to a complaint.

(3) For the purposes of subsection (2), every person who offers funeral services must

(a) answer the inquiries and facilitate the inspection of the business premises and records, and

(b) facilitate the copying of records.

17 Section 81 is amended by adding "funeral director, embalmer," after "funeral provider,".

18 Section 83 (1) is amended by adding "funeral director, embalmer," after "funeral provider,".

19 Section 90 is amended

(a) in subsection (2) by striking out "20% of the contract price of the plan, excluding any finance charges," and substituting "20% of the money paid into the plan at the time of cancellation,", and

(b) in subsection (3) by striking out "and the balance remaining shall be deemed to be the contract price of the plan for the purposes of subsection (2)." and substituting "and the cost of those goods may first be retained out of any money paid into the plan for the purposes of subsection (2)."

20 Section 92 (1) is amended by striking out "within 60 days" and substituting "within 21 days".

21 Section 95 (2) is amended by striking out "section 90 (2)." and substituting "section 90 (2) and (3)."

22 Sections 99 and 100 are repealed.

23 Section 108 is amended by adding the following subsection:

(5) Every operator and funeral provider must, on the request of the registrar, promptly produce any records required to be kept by the operator or funeral provider under subsection (1).

24 The following sections are added:

Confidentiality

109.1 (1) Every person acting under the authority of this Act must keep confidential all facts, information and records obtained or furnished under this Act except so far as

(a) public duty requires making disclosure of them or reporting or taking official action on them, or

(b) this Act or the Freedom of Information and Protection of Privacy Act permit making disclosure of them or reporting or taking official action on them.

(2) Except in a proceeding under this Act, no person to whom subsection (1) applies may in any civil proceeding be compelled to give evidence respecting any facts, information or records obtained by the person in the course of that person's duties.

Notice

109.2 The registrar may give any notice required under this Act by registered mail or by delivery to the last known mailing address of the person to whom notice is given and, if sent by registered mail, the person is deemed to have received the notice 4 days after the date it is mailed.

Order to refrain from dealing with assets

112.1 (1) If the minister has under section 112 ordered an investigation of a person and believes that it is necessary to protect individuals dealing with that person, the registrar may, in writing or by telegram,

(a) order

(i) a person having on deposit, under control or for safekeeping, assets, trust funds or other property of the person being inves tigated, or

(ii) a debtor of the person being investigated, to hold the assets, trust funds or other property of, or money owing to, that person in trust for a receiver, receiver manager or trustee to be appointed under this Act or any other Act, or

(b) order the person being investigated to refrain from withdrawing assets, trust funds or other property that are on deposit with, or under the control of, or in the safekeeping of another person, unless the registrar consents in writing to the release of all or part of them.

(2) The registrar may, in writing, revoke an order made under this section.

(3) Instead of making an order under this section, the registrar may accept from the person being investigated

(a) a personal bond, together with collateral security,

(b) a bond of a guarantee company approved by the registrar, or

(c) a bond of a guarantor, other than a guarantee company, together with collateral security, in the form and with the terms that the registrar determines pursuant to the Bonding Act.

(4) A person who receives an order from the registrar under this section may,

(a) if in doubt as to the application of the order to assets, trust funds or other property, or

(b) if a person not named in the order claims a right, title or interest in the assets, trust funds or other property, pay or deliver those assets, trust funds or other property into a court and, on so doing, is discharged from liability to the extent of that payment or delivery.

Appointment of a receiver

112.2 (1) If the minister has under section 112 ordered an investigation of a person, the registrar may apply to the court for the appointment of a receiver, receiver manager or trustee of the property of that person.

(2) On an application under subsection (1), the court may appoint a receiver, receiver manager or trustee of the property of the person if the court is satisfied the appointment is in the best interest of

(a) the creditors of that person,

(b) persons whose property is in the possession of or under the control of that person, or

(c) consumers.

(3) A receiver, receiver manager or trustee appointed under this section is the receiver, receiver manager or trustee of all the property belonging to, held by or on behalf of or in trust for the person named in the investigation order, and the receiver, receiver manager or trustee has authority, if directed by the court, to wind up or manage the business and affairs of the person named and all necessary or incidental powers.

(4) An application under this section may be made either ex parte or on notice, but if the application is made ex parte, the receiver, receiver manager or trustee

(a) must be appointed for a period not exceeding 8 days, and

(b) must not be authorized to wind up the business or affairs of the person named in the investigation order.

(5) An order under this section may be enforced in the same manner as any order or judgment of the court and may be varied or discharged on application made by notice.

25 Section 115 is amended

(a) in subsection (1) (a) by striking out "70, 71, 72" and substituting "69.1 (1) and (3), 69.7, 70, 71, 72, 72.2, 73.1, 75.1 (3),", and

(b) in subsection (3) by striking out "$2 000" and substituting "$10 000".

26 Section 117 is amended

(a) in subsection (1) (c) by adding the following subparagraph:

(ii.1) an application by a funeral provider, funeral director or embalmer for the issue or renewal of a licence, ,

(b) in subsection (1) (o) by striking out "the form and content" and substituting "the terms and conditions",

(c) in subsection (1) by striking out "and" at the end of paragraph (v), by adding ", and" at the end of paragraph (w) and by adding the following paragraph:

(x) the standards of operation of, and facilities required by, a funeral provider. ,

(d) in subsection (2) by striking out "and" at the end of paragraph (b), by adding ", and" at the end of paragraph (c) and by adding the following paragraph:

(d) appeals from a refusal to issue or renew a licence, from a suspension or cancellation of a licence or from an imposition of conditions on a licence. , and

(e) by adding the following subsection:

(3) A regulation made under subsection (1) (c) (ii.1) may prescribe different fees for different classes of funeral providers, funeral directors or embalmers and may prescribe a fee for each place where a funeral provider carries on business.

 
Consequential Amendments

 
Freedom of Information and Protection of Privacy Act

27 Schedule 2 of the Freedom of Information and Protection of Privacy Act, S.B.C. 1992, c. 61, is amended under the column headed "Public Body" by striking out "Cemetery and Funeral Services Advisory Council" and under the column headed "Head" by striking out "Minister of Labour and Consumer Services and Minister Responsible for Constitutional Affairs".

 
Public Guardian and Trustee Act

28 Section 30 (1) (b) of the Public Guardian and Trustee Act, S.B.C. 1993, c. 64, is repealed.

Commencement

29 This Act comes into force by regulation of the Lieutenant Governor in Council.

 
Explanatory Notes

SECTION 1:

(a) is consequential to the repeal of the Cemetery and Funeral Services Advisory Council;

(b) and (c) amend a definition and add new definitions for the purposes of the new Part 7.1 of the Cemetery and Funeral Services Act.

SECTION 2: requires the registrar to maintain a current list of persons who have been issued or refused a certificate of public interest, a certificate of operation or a licence.

SECTION 3:

(a) extends to funeral directors and embalmers the registrar's power to make orders;

(b) expands the powers of the registrar under the Act to licence funeral providers, funeral directors and embalmers and to establish standards of operation for funeral homes.

SECTION 4: makes section 9 of the Cemetery and Funeral Services Act applicable to licences issued by the registrar.

SECTION 5: devolves a power to control the disposition of human remains on an official administrator under the Estate Administration Act.

SECTION 6: adds the new Part 7.1 to the Cemetery and Funeral Services Act:

SECTION 7: is consequential to amendments made to sections 70 to 75 of the Act.

SECTION 8: makes the section applicable to funeral providers, funeral directors and embalmers.

SECTION 9: makes the section applicable to funeral providers, funeral directors and embalmers and clarifies that contracts must contain prescribed terms and conditions.

SECTION 10: makes section 72 applicable to funeral providers, funeral directors and embalmers.

SECTION 11:

SECTION 12: makes section 73 applicable to funeral providers, funeral directors and embalmers.

SECTION 13: requires licensees to display and provide consumers with a current price list of goods and services offered and to file the price list with the registrar.

SECTIONS 14 and 15: make sections 74 and 75 applicable to funeral providers, funeral directors and embalmers.

SECTION 16: requires licensees to provide the registrar with information in answer to complaints received by the registrar, and allows the registrar to enter the business premises where funeral services are provided to make inquiries and inspect and copy records.

SECTION 17: makes section 81 of the Cemetery and Funeral Services Act applicable to funeral directors and embalmers.

SECTION 18: makes section 83 of the Cemetery and Funeral Services Act applicable to funeral directors and embalmers.

SECTION 19: provides a benefit to the consumer by changing the method of calculating the amount an operator or funeral provider may retain as selling expenses when a preneed cemetery services plan or a prearranged funeral services plan is cancelled.

SECTION 20: shortens the period that trust funds may be held in a general account by an operator or funeral provider before being placed in a trust account.

SECTION 21: allows operators and funeral providers to retain an amount for personalized goods that have been preordered by a consumer.

SECTION 22: repeals the establishment of the Cemetery and Funeral Services Advisory Council.

SECTION 23: requires operators and funeral providers to produce records in respect of preneed cemetery services plans and prearranged funeral services plans.

SECTION 24:

SECTION 25: adds offence provisions and increases from $2 000 to $10 000 the amount of penalty that may be imposed on directors and officers of a corporation.

SECTION 26: provides the Lieutenant Governor in Council with additional regulation making powers.

SECTION 27: is consequential to the repeal of the Cemetery and Funeral Services Advisory Council.

SECTION 28: is consequential to the amendment made to section 51 (1) of the Cemetery and Funeral Services Act.


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