Resources for the Bereavement Sector - Plain Language Guide
for the Funeral, Burial and Cremation Services Act, 2002

Executive Summary

Introduction

The Funeral, Burial and Cremation Services Act, 2002 (FBCSA)received Royal Assent in the Ontario Legislature on December 13, 2002. In February 2011, the FBCSA was proclaimed in force to take effect July 1, 2012.  The new Act consolidates and modernizes two statutes, the Cemeteries Act (Revised) and the Funeral Directors and Establishments Act.  The FBCSA provides the framework for the regulation of the bereavement sector including cemeteries, funeral establishments and funeral directors, transfer services, crematoriums and staff employed by these businesses. 

The FBCSA defines key terms, specifies what businesses are covered and spells out consumer rights and entitlements, generally at a high level.  The regulations provide more details on matters dealt with in the Act.  Therefore, the Act and regulations should always be read together.

Who should be reading this Guide?

Cemetery operators, funeral establishment operators, funeral directors, transfer service operators, and other licensees under the FBCSAshould be reading this Guide.  This Guide is intended to be a tool for operators and licensees to assist them in implementing the rules contained in the FBCSA and its regulation.  Consumers and consumer groups dealing with the bereavement sector will also find this Guide helpful.

Content

This Guide provides an overview of the rules contained in the FBCSA.  Rules relating to licensing, consumer protection, trust accounts and the Compensation Fund are discussed.  The process regarding complaints, inspections and investigations is laid out.  Special provisions regarding cemeteries, crematoriums and burial sites, such as rules relating to the establishment of a cemetery or crematorium, the closing of a cemetery, burial sites, war graves and abandoned cemeteries are reviewed. 

The Guide also reviews the parts of the FBCSA that have not been proclaimed in force, such as the provisions that would regulate marker and casket retailers and the selling of future interment rights. 

The provisions of the Board of Funeral Services Act are also discussed.

Links are provided in the text of the Guide that will allow you to view the section in the Act or regulation that is being discussed.  Simply click on the link to be directed to the corresponding text in the Act or regulation.

What is the FBCSA?

The FBCSA (also referred to as “the Act”) is new legislation regulating the bereavement sector. It has been proclaimed in force and is scheduled to take effect July 1, 2012. It replaces the >Cemeteries Act (Revised) that regulated cemeteries and crematoriums. It also replaces the provisions of the Funeral Directors and Establishments Act that regulated funeral establishments, funeral directors and transfer service operators.  Parts of the Funeral Directors and Establishments Act that establish the Board of Funeral Services and set out the objects and administration of the Board are continued under the new name of the Board of Funeral Services Act.  The FBCSA sets out the broad parameters for regulating the bereavement sector and should be read in conjunction with the regulations made under the Act, which provide additional detail.

Part I and Part II - Definitions and Administrative Framework established by the FBCSA

Definitions

Key terms such as “funeral services”, “cemetery services” and “licensed services” are defined in Part I of the FBCSA.  Part II of the FBCSA provides for the appointment of one or more registrars and directors for the purposes of administering the Act. It is anticipated that there will be one registrar appointed to exercise the powers and duties under the FBCSA with respect to cemeteries, crematoriums and persons acting on their behalf, and that the registrar appointed by the Board of Funeral Services will be appointed as registrar to exercise the powers and duties under the FBCSA with respect to funeral directors, funeral establishment operators, transfer service operators, funeral preplanners and sales representatives for transfer service operators.  

Who must be licensed under the FBCSA?

Anyone selling or offering to sell licensed supplies or services must be licensed under the Act. This includes:

  1. Cemetery operators and their sales representatives.
  2. Crematorium operators and their sales representatives.
  3. Funeral establishment operators.
  4. Funeral directors.
  5. Funeral preplanners
  6. Transfer service operators and their sales representatives.

Part III - Prohibitions and General Duties under the FBCSA

General

Cemetery owners are responsible for ensuring that cemeteries are operated by licensed operators. If a cemetery operator suddenly ceases to operate the cemetery, the owner is deemed to be the operator and has all of the duties and powers of an operator under the Act.

Cemeteries, funeral establishments, crematoriums and transfer services must be operated by a licensed operator and it is the licensed operator who has the obligation of ensuring that the business is operated in accordance with the Act. 

All licensed operators are required to ensure that the salespersons they employ (funeral preplanners for funeral establishments) carry out their duties in compliance with the Act. For more information, see Sections 5 -9 of the Act.

When is a licence not required?

A licence is not required to perform rites or ceremonies traditionally provided in a place of worship.

Part IV – Licensing

General

The FBCSA provides that an applicant is entitled to a licence unless certain conditions are not met. For example, a licence would not be issued if the granting of the licence would result in the applicant being in contravention of a municipal by-law, or if the past conduct of the applicant gives rise to concerns that the applicant will not carry on business in accordance with the law and with integrity and honesty.  Certain obligations are placed on persons who are associated with the licensee as well as corporate applicants, for example, requiring corporations to disclose information on who may have a beneficial interest in the corporation. Licences are made subject to conditions that are set out in the regulations, that may be imposed by the Licence Appeal Tribunal or that may be agreed to by a licensee and the registrar. A licence may be revoked on notice to the licensee that the registrar is proposing to revoke the licence and a licensee has a right to a hearing before the Licence Appeal Tribunal. In pressing circumstances, the registrar may temporarily suspend a licence where it is in the public interest to do so. For a cemetery, the director may appoint a manager to operate a cemetery in place of the licensed operator where there is a risk to public health or of financial loss. A person refused licensing may reapply in a one year period set by O. Reg. 30/11 if there is new or other evidence available or there has been a material change in circumstances. For more information, see Section 14 of the Act.

Part V – Consumer Protection

False Advertising

The FBCSA contains provisions relating to consumer protection. Falsifying information, false advertising and the furnishing of false information are all prohibited. The registrar may make orders in respect of false advertising and may require that advertising be pre-approved before publication if an order in respect of false advertising has been made. For more information, see Sections 27 – 28 of the Act.

Soliciting

The FBCSA sets strict standards regarding soliciting the sale of bereavement related supplies and services. No person is permitted to contact, by telephone or in person, a person for the purpose of soliciting the making of, or negotiating, a contract for the sale or provision of a licensed supply or service. In particular, no person shall contact, by any means, a person in a hospital, long-term care home, hospice or such other institution as may be prescribed for the purpose of soliciting the making of, or negotiating, a contract for the sale or provision of a licensed supply or service.  A long-term care home is defined in the Long-Term Care Homes Act, 2007. For more information, see Section 29 of the Act.

Disclosure

The FBCSA contains broad regulation-making powers in relation to disclosure requirements imposed on licensees and provides a consumer with remedies where the necessary disclosures have not been made. For more information, see Section 32 of the Act.

Price Lists

Operators are required to maintain price lists in relation to the supplies and services they sell and are prohibited from selling at a price that is more than the price indicated on the price list. Any surplus funds held by a licensed operator, beyond the price list amount, is to be reimbursed to the purchaser within 30 days. For more information, see  Sections 33 - 34 of the Act.

Compensation Fund

For licensees who are required to contribute to the compensation fund, it is a condition of entering into contracts that their contributions to the fund be current. For more information, see Section 35 of the Act.

Contract Requirements & Cancellation Rights

The FBCSA specifies contract requirements and cancellation rights relating to sales of supplies and services by licensees. Such contracts must be in writing, a copy of the contract delivered to the purchaser and other specified requirements must be met, if the contract is to be enforceable by the operator.

A purchaser is entitled to cancel a contract at any time if the specified requirements are not met. In addition, the purchaser of licensed supplies and services is entitled to a 30-day cooling-off period within which the contract may be cancelled and any money paid under the contract fully refunded. Further, the person who purchases licensed supplies and services, other than interment rights and scattering rights, from a licensee may cancel the contract at any time until the supplies and services are provided and any money paid will be fully refunded less a prescribed amount.

The person who purchases or holds interment rights or scattering rights may resell the rights to a third party unless the cemetery by-laws prohibit the resale. If the resale is prohibited by by-law, the cemetery owner is required to repurchase the rights from the rights holder in accordance with the Act. If resale is prohibited in the by-laws, the rights are repurchased at fair market value as determined on the price list, less the contribution that was made to the care and maintenance fund. An operator may choose to reimburse the full amount.

The FBCSA sets out other rights specific to interment and scattering rights holders, including rights arising out of the registrar's declaration that the rights have been abandoned. Special rules apply where contracts have been partially performed. Obligations to take reasonable care of licensed supplies and services where a contract has been cancelled, to return supplies and obligations on operators to take possession of supplies are set out in the Act. Special rules apply with respect to customized goods. The unenforceable contract provisions, 30 day cooling off period and cancellation of contracts that are not fully performed apply to contracts made after the Act comes into force. For more information, see Sections 40 – 50 of the Act.

Part VI – Trust Accounts

General

Licensed operators are to maintain trust accounts. Any money received by an operator in respect of the sale of licensed supplies and services, in advance of the provision of those supplies and services, must be held in trust and paid out in accordance with the regulations. Division F of O.Reg.30/11 sets out detailed obligations with respect to holding money in trust and the circumstances under which the funds can be paid out of trust. For contracts entered into prior to the day the FBCSA comes into force, funds paid under the contracts are dealt with in accordance with the Cemeteries Act (Revised) or the Funeral Directors and Establishments Act, as applicable. Trust funds are to be held and invested consistent with the standard for investments required under subsection 27(2) of the Trustee Act. Section 27 (1) "In investing trust property, a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments.”  For more information, see Sections 51 – 52 of the Act.

Care and Maintenance Fund

Cemetery operators who sell interment rights or scattering rights are required to establish and maintain a care and maintenance fund (or account where permitted by the regulations) to ensure the proper care and maintenance of cemetery land, markers and structures. The fund is to be held by a trustee. In some cases, a municipality may act as its own trustee and, where a cemetery has no practical alternative, the Public Guardian and Trustee may act as trustee.  Contributions to the care and maintenance fund or account are required when interment or scattering rights are sold or where markers are installed or private structures constructed. Only the income from the fund or account may be used and not the original principal contributions which form the capital. Note that under the Act, realized capital gains are treated as income. The uses are strictly prescribed in the regulations and relate to the ongoing care and maintenance of the cemetery and its monuments. For more information, see Sections 53 – 55 of the Act.

Part VII – Compensation Funds

General

The FBCSA gives broad regulation-making powers to provide for a compensation fund scheme. The Board of Funeral Services established under the Funeral Directors and Establishments Act will continue to administer the Prepaid Funeral Services Compensation Fund established under that Act as it applies to funeral directors, funeral establishment operators and transfer service operators. For more information, see Section 61 of the Act.

Part VIII – Code of Ethics and Discipline

General

The FBCSA makes provision for the Minister to establish a code of ethics. It also provides for the establishment of a discipline committee and an appeals committee. Licensees who are found to have breached the code of ethics by the discipline committee may be fined up to $25,000. The discipline committee of the Board of Funeral Services established under the Funeral Directors and Establishments Act is continued and will continue to deal with and hear matters in accordance with the rules established under that Act with respect to funeral directors. For more information, see Sections 62 - 65 of the Act and Board of Funeral Services Act.

Part IX – Complaints, Inspections and Investigations

General

There are provisions in the FBCSA that permit the Registrar of Funeral Establishments and the Registrar of Cemeteries to deal with complaints made about licensees. The registrar may require a licensee to provide information in response to a request and may, as appropriate, attempt to mediate or resolve the complaint; give the licensee a written warning; require the licensee to attend specified education; refer the matter in whole or in part to the discipline committee; revoke or refuse to renew a licence; and take such further action as is appropriate.

There are powers to inspect licensees and to appoint inspectors. Inspectors may require production of documents and other information necessary to the inspection and no person shall obstruct the inspector in carrying out their inspection.
The director may appoint investigators.  Investigators conducting investigations may apply for a warrant to enter into a building and to obtain data relevant to the investigation. There may be a search of a premise, other than a premise used as a dwelling, without a warrant in exigent circumstances. For more information, see Sections 66, 67 and 69 – 71 of the Act.

Part X – Enforcement

General

The director may freeze the assets of licensees and former licensees where it is advisable for the protection of the customers of the licensee or former licensee. The director may apply to the courts for the appointment of a receiver and manager to take control of the business of a licensee in certain circumstances. The director may apply for a restraining order if a person is not complying with the Act.

The FBCSA contains an offence section. A person who contravenes the Act is guilty of an offence and, on conviction, is liable to a fine of up to $50,000 and up to two years imprisonment if the person is an individual and a fine of up to $250,000 if the person is a corporation. If there is a conviction, there may also be an order for restitution or compensation. If a fine is not paid, a lien may be registered against the person's property. For more information, see Sections 72 and 79 of the Act.

Part XI – Special Provisions RE: Cemeteries, Crematoriums and Burial Sites

General

This section of the FBCSA deals with the establishment and closing of cemeteries, the procedures relating to discovery and investigation of burial sites, abandoned cemeteries, maintenance of war graves and related matters of disinterment and municipal authority.

Establishing a cemetery

The FBCSA requires that municipal approval be obtained before asking the registrar for consent to establish the cemetery. Where the land on which the cemetery is to be established is in an area without municipal organization, it is the Minister of Natural Resources who provides consent. The municipality may hold public hearings and objections to municipal decisions can be made to the Ontario Municipal Board. Where the registrar consents to the establishment of a cemetery, a certificate of consent is issued, which is then registered in the land registry office. A refusal to consent to the establishment of the cemetery can be appealed to the Licence Appeal Tribunal.

Encumbrances on cemetery land are limited to encumbrances incurred in order to improve or acquire the cemetery land, or other cemetery related purposes that have been approved by the registrar. For more information, see Sections 83 – 87 of the Act.

Establishing a Crematorium

The FBCSA removes the prohibition on establishing a crematorium off cemetery property.  The process for establishing a crematorium on or off cemetery property is the same.  An application for a licence to establish a crematorium must be accompanied by evidence of municipal approval confirming that applicable zoning and building requirements have been met, and evidence of environmental approval, in the form of an environmental compliance approval required under section 9 of the Environmental Protection Act.  The environmental compliance approval process considers any possible adverse impacts on the surrounding environment.  Where the crematorium is to be located on Crown land in an area without municipal organization, the approval of the Minister of Natural Resources must be obtained.

Evidence of municipal and environmental approval must be provided to the registrar before an application for a licence to establish a crematorium will be considered.  For more information, see Sections 83 – 87 of the Act.

Closing of all or part of a cemetery

The FBCSA provides a process to be followed when a cemetery owner is seeking to close all or part of a cemetery. Notice must be published in the local newspaper and specific notice given to persons prescribed in the regulations. O.Reg.30/11 requires notice be given to interment and scattering rights holders, the local municipality, the municipal heritage committee if any, the Minister responsible for the administration of the Ontario Heritage Act, and others. The test that must be applied in determining whether to grant a request to close all or part of a cemetery is whether the registrar believes that the closing is in the public interest. It should be noted that since 1992, the few applications processed involved the closure of only part of a cemetery and involved land in which there were no interments. Any person with an interest can appeal an order to close all or part of a cemetery to the Licence Appeal Tribunal. If a closure order is upheld, a certificate of closing is issued by the registrar and registered against the title to the land at which point that portion of land ceases to be a cemetery. For more information, see Sections 88 – 93 of the Act.

Burial sites

A burial site is defined as land containing human remains that is not a cemetery. The FBCSA prohibits the disturbance of a burial site except on instructions of the coroner, if authorized in the regulations, or pursuant to an agreement between the landowner and the representatives of the persons whose remains have been discovered. Anyone discovering or having knowledge of a burial site must immediately notify the police or coroner.

The registrar may cause an investigation, which must be completed by a licensed archaeologist, to be undertaken by the landowner in order to determine the origin of the site. The investigation will assist the registrar in determining whether the burial site is an “aboriginal peoples burial ground”.  “Aboriginal peoples burial ground” is defined as “land set aside with the apparent intention of interring in it, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were one of the aboriginal peoples of Canada”.  “Burial ground” is defined as “land set aside with the apparent intention of interring in it, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were not one of the aboriginal peoples of Canada”.  An “irregular burial site” is defined as “a burial site that was not set aside with the apparent intention of interring human remains in it”.

The FBCSA regulations provide different obligations and processes to follow depending on the registrar’s determination of whether the site is an aboriginal peoples burial ground, a burial ground, or an irregular burial site. With an irregular burial site, the landowner’s obligation in the regulations is to ensure that the remains are buried in a cemetery. This may involve establishing the site as a cemetery. The same obligation applies with respect to an aboriginal peoples burial ground and a burial ground but requires that notice be given to potential representatives of the persons whose remains have been discovered and that the land owner and the representatives enter into negotiations with a view to concluding a site disposition agreement that will address how the site is to be dealt with. Where agreement is not reached, the FBCSA makes provision for the matter to be resolved by arbitration. For more information, see Sections 94 -100 of the Act.

War Graves

Specific provisions apply to war graves, for example, prohibiting persons from altering or moving the remains or marker of a Canadian or Allied veteran or a Commonwealth War Burial without the agreement of the Department of Veterans Affairs (Federal), the Commonwealth War Graves Commission or such other persons and associations as may be set out in the regulations. For more information, see Section 101 of the Act.

Abandoned Cemeteries

Ontario has over 5,000 registered cemeteries. In some cases, the cemetery has not been operational for many years and may be seen as abandoned. The FBCSA sets out a process by which the owner, the registrar, the local municipality or the Crown can apply to the court for a declaration that a cemetery has been abandoned on the basis that the owner cannot be found or is unknown, is unable to maintain it, or is not a licensed operator and there is no licensed operator for the cemetery. Pending the outcome of the abandonment application, it is the responsibility of the municipality or the Crown, as applicable, to maintain the cemetery. The owner bears the costs of the application for abandonment if the application is unsuccessful and otherwise the costs are borne by the municipality or the Crown as the case may be. If successful, ownership of the cemetery moves to the municipality or the Crown. Abandonment proceedings ensure that cemeteries continue to be maintained. For more information, see Section 101.1 of the Act.

Cemeteries – General

The Act specifically prohibits anyone from causing or committing a nuisance in a cemetery or wilfully and unlawfully disturbing persons assembled for the purpose of interring human remains in a cemetery.

As well, the Act regulates when and under what circumstances human remains can be disinterred, for example, when directed by the Court or for purposes of an inquiry into the cause of the death. The regulations under the Act provide additional direction regarding the specifics of who must consent to a disinterment and the process to be followed.

There is an expropriation power given to a municipality, which use may be authorized by municipal by-law, with respect to an existing cemetery and with respect to land on which to establish or enlarge a cemetery.

A provision that states that this Act prevails over Part VI of the Ontario Heritage Act avoids duplication in jurisdiction. For more information, see Sections 102 – 105 of the Act.

Part XII – Miscellaneous

General

The FBCSA contains general provisions dealing with such matters as the preservation of secrecy, service of documents and the setting of fees by the Minister. For example, where notice is required to be given, it may be delivered personally, sent by registered mail or sent by another manner if the sender can prove receipt of the notice. When sent by registered mail, it is deemed to be received on the third day after the day of mailing unless the person can establish that it was not received for legitimate reasons such as illness. Where the Act requires publication in a newspaper, the registrar may authorize another mode of publication that would be equivalent to the newspaper publication. For more information, see Sections 106 – 107.1 of the Act.

Fees under the Act, for example licence application fees and renewal fees, are set by Minister’s Order. For more information, see Section 108 of the Act.

The Act contains a provision that, if the regulations require it, the registrar shall make available to the public the names of licensees and former licensees under this Act and the predecessor Acts, the Cemeteries Act (Revised) and the Funeral Directors and Establishments Act along with the information that is required by the regulations. A public register and the information it is to contain is provided for under O.Reg.30/11. For more information, see Section 110 of the Act.
Licensees are required to provide the registrar with the information that the registrar may request and must do so within the time frame specified by the registrar. For more information, see Section 111 of the Act.

Part XIII - Regulations

Under the Act, regulations may be made by the Minister or by the Lieutenant Governor in Council. When the Ontario Premier and the provincial Cabinet make a decision and it has been approved by the Lieutenant Governor, it is said to have been made by the Lieutenant Governor in Council. The latter requires Cabinet approval. In both cases, the regulations are published in the Ontario Gazette and made available publicly on the government’s e-Laws website (http://www.e-laws.gov.on.ca/index.html)
The Minister may make regulations establishing a code of ethics, governing the jurisdiction of committees established under the Act and in matters delegated to the Minister by the Lieutenant Governor in Council. The Lieutenant Governor in Council may make regulations dealing with a broad range of matters to regulate the industry including for example: classes of licences, standards of conduct, information that must be disclosed to consumers, and the operations of cemeteries, crematoriums, funeral establishments and transfer services.

What parts of the FBCSA have not been proclaimed in force?

Scattering outside a cemetery

Information on scattering cremated remains on land that is not cemetery is dealt with by government policy.

Licensing of Marker and Casket Retailers

Provisions of the FBCSA that would regulate casket retailers and marker retailers are not proclaimed in force. Casket and marker retailing businesses remain subject to the provisions of the Consumer Protection Act, 2002.

Sale of Future Interment Rights

A section of the FBCSA that would permit the sale and regulation of future interment and scattering rights in a cemetery where the land has not yet been made ready for burial or scattering is not proclaimed in force.

The Board of Funeral Services Act

The Funeral Directors and Establishments Act is amended by repealing all of its provisions except for those relating to the establishment of the Board of Funeral Services and its committees and their administration. The Board of Funeral Services is to continue to exercise jurisdiction in relation to funeral directors, funeral establishment operators and transfer service operators and its jurisdiction is extended to funeral preplanners acting on behalf of a funeral establishment and sales representatives acting for transfer service operators.  The short title of the Act is changed to the Board of Funeral Services Act.

Contacts

For more information, contact:

The Board of Funeral Services
Tel: (416) 979-5450
Toll Free: 1-800-387-4458
mailto:info@funeralboard.com
Registrar: Joseph Richer
mailto:josephr@funeralboard.com
Tel: (416) 979-5450 ex.29

Ministry of Government and Consumer Services, Cemeteries Regulation Unit
Tel: (416) 326-8393
Registrar: Michael D’Mello
Michael.D’Mello@ontario.ca
Tel: (416) 326-8404

Ministry of Government and Consumer Services, Consumer Protection Branch
Tel: (416) 326-8800
Toll Free: 1-800-889-9768

Ministry of Government and Consumer Services, Consumer Policy & Liaison Branch
Consumer and Business Policy Unit
Jordana Berke
Jordana.berke@ontario.ca
Tel: (416) 325-6025

Resources for the Bereavement Sector