Who should be reading this Guide?

Cemetery operators, funeral establishment operators, funeral directors, transfer service operators, and other licensees under the Funeral, Burial and Cremation Services Act, 2002 (FBCSA) should 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 the Guide helpful.

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.

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.

The Act

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 FBCSA should 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.

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 took 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. 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.

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.

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:

  • Cemetery operators and their sales representatives
  • Crematorium operators and their sales representatives
  • Funeral establishment operators.
  • Funeral directors
  • Funeral preplanners
  • Transfer service operators and their sales representatives

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.

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.

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 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 For more information, see Section 35 of the Act.

Price Lists

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

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.

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 & 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, seeSections 53 – 55 of the Act.

General

The FBCSA gives broad regulation-making powers to provide for a compensation fund scheme. The Bereavement Authority of Ontario administers the Funeral Services Compensation Fund established under this Act as it applies to funeral directors, funeral establishment operators and transfer service operators. For more information, see Section 61 of the Act.

General

The FBCSA makes provision for the Bereavement Authority of Ontario 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. For more information, see Sections 62 – 65 of the Act.

General

There are provisions in the FBCSA that permit the Registrar 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.

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.

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 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
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
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
Irregular Burial Site
A burial site that was not set aside with the apparent intention of interring human remains in it
Burial Site
Land containing human remains that is not a cemetery

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.

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, may be 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.

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.

Scattering Outside A Cemetery

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

Licensing Of Marker & 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.

Contacts

For more information, contact:

Bereavement Authority of Ontario
Tel: 647-483-2645
Toll Free: 1-844-493-6356
info@thebao.ca

Registrar: Carey Smith
carey.smith@thebao.ca

Ministry of Government and Consumer Services
Licensing, Inspections and Investigations Branch
416-326-8800
(800) 889-9768

The Regulations

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 into force and took 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 regulation 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 FBCSA should 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 the Guide helpful.

Content

This Guide provides an overview of the rules contained in the General Regulation made under the FBCSA. Rules relating to the operation of a business, consumer protection and the compensation fund are highlighted. In addition, the rules regarding the establishment, alteration or increase in capacity of a cemetery and for dealing with neglected and abandoned cemeteries are reviewed. Rules relating to burial sites and the establishment of crematoria are discussed.

An overview of the content of the Insurance Act regulation is also provided. The content of a Minister’s regulation under the FBCSA dealing with exemptions from the Care and Maintenance Fund requirements and other miscellaneous charges and the Minister’s Fee Order, which sets out fees to be charged for a variety of purposes, are 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.

This section deals with administrative type matters primarily of interest to an operator of a business regulated by the FBCSA, and individuals holding a personal licence under the Act.

Definitions

This section contains definitions for key words and phrases used in Part I. For example, it defines "business day", "operator licence" and "personal licence".

Additional Prohibited Activities

This section sets out bereavement related activities that are specifically prohibited or limited. Prohibited activities include, for example, prohibiting the scattering of cremated remains for money by someone who is not an operator licensed under the FBCSA. This section also requires that a person be licensed under the FBCSA or the Insurance Act if they are selling an insurance product that is to be used for bereavement related supplies or services, and where the insurance product names an operator under FBCSA as the beneficiary. This requirement ensures that there is no misunderstanding in terms of what is being purchased when an insurance product is purchased and makes it clear that a separate contract is required with respect to the bereavement related supplies and services the funds are meant to provide for. For more information, see Sections 2 and 3 of the regulation and Section 40 of the Insurance Act..

Licensing

This section contains details on licensing. It is to be read in conjunction with Part IV of the Funeral, Burial and Cremation Services Act, 2002 dealing with licensing. The Act sets out general requirements for licensing as well as a process for appealing decisions made with respect to licences. This section also adds further detail regarding applications for licences and individual licences and what activity each licence authorizes. It identifies the different classes of licence, for example, funeral directors and cemetery operators, and addresses the reporting requirements for each licence class.

A cemetery operator must have a cemetery operator’s licence, with reporting and financial requirements varying, depending on whether the operator holds money in trust and on the volume of interment and scattering activity at the cemetery. There is one crematorium operator licence. A funeral establishment operator must have either a Class 1 or Class 2 licence. A Class 1 licence covers all existing funeral establishments licensed under the former Funeral Directors and Establishments Act and requires the operator to have an on-site holding room. This class is also permitted to offer embalming services provided they have immediate access to an embalming room. A Class 2 licence allows one to operate a facility that is used for the purpose of temporarily placing human remains so that persons may attend and pay their respects, often referred to as a "visitation centre". There are two classes of transfer service operator licence, Class 1 and Class 2. The Class 2 licence is restricted to the direct movement of a dead human body from the place of removal to a cemetery or crematorium, or to a holding room then directly to a cemetery or crematorium. The Class 1 licence allows minimal setting of features as well as additional stops from original place of picking up the body to ultimate destination, for example, a stop for a church service.

There are personal licences for funeral directors, funeral preplanners and sales representatives. There are two classes of funeral director licence, Class 1 and Class 2, with a Class 1 permitting arterial embalming and restoration of dead human bodies. Funeral preplanners are employed by funeral establishment operators. Funeral preplanners must meet the education requirements established by the Registrar. Sales representatives are employed by cemeteries, crematoriums and transfer service operators and will be required to meet the educational requirements established by the Registrar for each class of licence. For more information, see Sections 4 – 40 of the regulation and Part IV of the Act.

Education requirements are those set by the Registrar and may apply to applicants for a licence, current licensees and other persons employed in the bereavement sector such as the person managing an operator’s business. For more information, see see Sections 41 – 42 of the regulation.

An operator who provides scattering of ashes for a fee will be required to meet certain obligations, such as maintaining a record of the service provided, including the name of the person whose remains were scattered and the location of the scattering. For more information, see Section 28 of the regulation.

Standards Of Operation

This section identifies standards of operation applicable to the various operators, for example, a requirement for a funeral establishment operator to offer inexpensive casket alternatives. Standards for vehicles, holding rooms and embalming rooms are also identified. Removal of pacemakers and treatment of unclaimed cremated remains are also addressed. For more information, see Sections 43 – 53 of the regulation..

Price Lists and Pricing

This section deals with the requirement for and content of price lists, including what information is to be included on a price list and how a price list is to be made available to the public. For example, provisions require that a price list be written in plain language and list the price for each licensed supply or service that an operator generally provides, indicating whether the price includes tax. The operator’s name must be shown on the price list. Details of "packages" must be provided including, for example, what the price would be if items were sold separately. The price list must also include information regarding discounts, funding, payment and financing options as well as identify affiliated locations. For more information, see Sections 54 – 70 of the regulation.

This section also contains rules regarding pricing for cemetery operators. For example, the regulation requires that supplies and services must be provided at cost if a cemetery’s by-laws require that they be purchased from the cemetery. An example would be supplies and services related to constructing a foundation for a marker. For more information, see Section 71 of the regulation.

The Registrar may disallow a price. There is a process to appeal the Registrar’s decision to disallow a price. If the Registrar’s decision to disallow a price stands, an operator may be required to make a reimbursement to a purchaser. For more information, see  Sections 72 – 75 of the regulation..

Trust Accounts and Trust Funds

This section deals with trust accounts and trust funds and is to be read in conjunction with Part VI of the Act. The section details what money is to be held in trust, what type of fund or account can be used for holding money in trust, time limits for placing money in an account or fund and when money can be removed from trust. For example, when money is paid to an operator in advance of a supply or service being provided, it may be held in a trust account with an eligible depositary such as a credit union or bank. In some cases, an operator may hold trust money in a pooled trust fund with a third party trustee so long as funds paid under individual contracts can be tracked.

The trust rules allow funds to be placed in a business account for the operator and subsequently moved into an individual trust account or a pooled trust fund, with restrictions on the use of those funds. There is provision for a municipality to act as its own trustee as well as authority for the municipality to hold care and maintenance trust funds on behalf of other cemetery operators within the municipality. The Public Guardian and Trustee may act as trustee in those limited circumstances where an operator has no practical alternative. For more information, see Sections 76 – 81 of the regulation and Part VI of the Act.

Unclaimed trust money will be paid to the Minister of Finance with the possibility of it being paid to the Compensation Fund at a future date, subject to the person entitled to the money being able to make a claim for the money at some future date. For more information, see Section 82 of the regulation.

Care and Maintenance Funds and Accounts

This section deals with care and maintenance funds and accounts for cemeteries, identifying when (and with whom) a care and maintenance fund is to be established. It also sets out the rules for when a contribution is to be made to the fund or account and what the income of the fund or account can be used for. This section also deals with the payment in lieu of property tax that may be required if certain bereavement-related activity occurs on a religious or municipal cemetery. The payment in lieu amount is equivalent to the property tax that would have been paid had the religious or municipal cemetery been subject to payment of property tax. Note, the portion of a cemetery used for interment or scattering continues to be exempt from payment of property tax. For more information, see Sections 83 – 95 of the regulation.

Record Keeping

This section sets out record keeping requirements. It details the type of records that are to be kept and the manner of keeping the records, including the location at which they are to be kept. It will generally be required that records, including price lists and a coroner’s certificate authorizing a cremation, be kept for 6 years. Rules address what has to be done with records when a business is sold or ceases to operate. For more information, see Sections 96 – 102 of the regulation.

Reporting to the Registrar

This section addresses an operator’s obligation to report to the Registrar. An operator is required to report to the Registrar when, for example, there is a change in an operator’s address or a change to the depositary at which trust money is being held. A personal licensee must give notice of a change in employment. Copies of trust agreements between trustees and an operator are to be provided to the Registrar. Reporting requirements may include a requirement to file a statement of account, a trust fund statement, a review engagement report, an audit report or a licensure report, depending on the type of business, the volume of business and the amount of money held in trust. This section also identifies what information is required for each document and the time within which the document must be filed with the Registrar. For more information, see Sections 103 – 105 of the regulation.

Public Information

This section includes a requirement for public information to be available by way of cemetery and crematorium registers and for information regarding licensees (including applicants and former licensees) to be made available to the public by the Registrar. For more information, see Sections 110 – 111 of the regulation.

Disclosure Requirements

This section deals with disclosure requirements: before a contract is made, when there has been a change in circumstances, and when interment rights are resold or transferred. The regulation provisions include definitions for key words and phrases used in this section. It also makes provision for a consumer information guide, prepared by the Registrar, to be made available to prospective purchasers. The provisions also require that the operator provide prospective purchasers with a description of cancellation rights and refund entitlements. For more information, see Sections 112 – 113 of the regulation.

For cemetery operators, additional disclosure requirements apply prior to a contract for the sale of interment or scattering rights, including, for example, that the prospective purchaser be provided with information on resale rights and that a copy of the cemetery’s by-laws are available for inspection upon request. For more information, see Sections 115 and 118 of the regulation.

Additional disclosure requirements may apply, for example, if an operator sells the business. As well, a holder of interment or scattering rights will have disclosure obligations to a third party purchaser on a resale or transfer of those rights to the third party. For more information, see Sections 114 and 116 of the regulation.

Disclosure rules include an obligation to display a licence and to have the licence available for production on request. For more information, see SectionSection 117 of the regulation..

The regulation provisions also identify key information that must be displayed in any promotional material, including for example, the operator’s business name if different from the operator’s name, as well as information on bereavement businesses the operator controls and that are within a 100-kilometre range. For more information, see Section 119 of the regulation.

Contract Requirements

This section details contract requirements. This includes for example, a requirement that every contract be written in plain language and include: the name of the individual who negotiated the contract and his or her licence number; a description of the supplies and services purchased and the date of and location where they are to be provided; the terms of any warranties; the name of any person other than the purchaser who may cancel the contract and the name of any person, other than the purchaser, who is to be entitled to a refund. This section also addresses obligations when supplies or services are to be subcontracted or provided by another supplier as well as obligations if supplies are to be placed in storage. For more information, see Section 121 of the regulation.

Specific rules deal with “cash and carry contracts” (under $250); contracts where payment precedes the provision of the supplies and services; contracts funded by insurance or annuity; contracts for cremation services; and contracts for interment or scattering rights. For more information, see Sections 122 – 126 of the regulation..

A general provision in this section builds on subsection 40(1) of the Act, which deals with contract requirements. It identifies additional requirements that must be met if a contract is to be enforceable, for example, when a contract is made over the Internet. For more information, see Section 128 of the regulation and subsection 40 (1) of the Act..

This section details prohibited practices. For example, an operator is prohibited from taking action to repossess a licensed supply or interment or scattering right if at least two-thirds of the purchase price has been paid unless leave is granted by the court. For more information, see see Section 129 of the regulation.

With respect to insurance or annuity contracts related to the sale of licensed supplies or services, this section prohibits an operator from lending the operator’s name to a person soliciting the making of an insurance or annuity contract with a vulnerable person, such as a person in a nursing home. As well, operators are prohibited from being named as beneficiary under an insurance policy or annuity contract where the funds are intended to be used to purchase licensed supplies or services, unless there is a contract in place for the provision of licensed supplies or services. For more information, see Section 132 of the regulation.

Miscellaneous Consumer Protection Matters

This section deals with miscellaneous consumer protection matters. For example, it expands the soliciting prohibitions in the Act to include a home for the aged or a rest home. As well, it contains requirements to be met where supplies are to be stored in advance of use, including, for example, a limitation on the supplies that can be stored (i.e., casket, urn, marker) and only where certain conditions are met (i.e., item is substantially completed and full payment has been made for the supply). For more information, see Sections 135 – 136 of the regulation and Subsection 29(2) of the Act.

If an unenforceable contract is cancelled (i.e., should have been signed by a funeral director but was not), this section imposes certain obligations on the operator (such as refund including income earned within set time limits) and on the purchaser (such as making supplies available for repossession or returning them as applicable). For more information, see Sections 137 – 138 of the regulation..

In some circumstances, delivery of supplies or services within 30 days of the date the contract is made may be authorized, for example, if they are required for the disposition of human remains. In those cases, usual cancellation rights will still apply but an operator will be entitled to retain certain expenses for costs incurred to the date of cancellation of the contract. For more information, see Section 139 of the regulation..

Provisions of this section also set out how a refund is calculated when a contract is cancelled after the 30-day cooling-off period provided for in the Act. The Act sets out the refund if a contract is cancelled within the 30-day cooling-off period. For more information, see Section 140 of the regulation..

To bring closure to some contracts, where it can be assumed that the recipient under a contract would be 120 years old or the operator has been unable to locate a purchaser or recipient under a contract after making reasonable efforts to locate them, a contract may be deemed cancelled. For more information, see Section 141 of the regulation..

For a purchaser to cancel a contract involving interment or scattering rights, in situations where the cemetery prohibits resale of those rights, the cemetery operator is required to repurchase the interment rights at the price list amount or at fair market value if there is no applicable price list amount. For more information, see Section 142 of the regulation..

General

This section contains definitions for key words and phrases used in this section.

Cemeteries

This section deals with the establishment, alteration or increase in capacity of a cemetery, providing for example, for an initial deposit into a care and maintenance fund and for when the Registrar’s consent is required to the establishment, alteration or increase in capacity. Where Registrar’s consent is required, the regulation provisions set out a process for the application, including the giving of public notice. This section should be read in conjunction with Part XI of the Act. For more information, see Sections 146 – 148 of the regulation and Part XI of the Act.

By-laws

This section also deals with cemetery by-laws and requires that a cemetery be operated in accordance with the by-laws. It sets out what documentation is needed in order to carry out an interment, scattering or to install a marker in a cemetery. By-laws and amendments to the by-laws require Registrar approval and the regulation provisions set out the process for seeking approval, including any necessary public notice. There is a process for appealing a Registrar’s decision to not approve a by-law or to revoke a by-law. For more information, see Sections 150 – 153 of the regulation.

Physical Standards

Physical standards for a cemetery are also addressed in this section, which contains requirements for in-ground graves, location of buildings, access to lots and scattering grounds, drainage and marker installation and repairs. For more information, see Sections 154 – 160 of the regulation.

Limitations on interments and scatterings are also addressed. For example, there is a prohibition on selling interment rights for a limited term. For more information, see Section 161 of the regulation.

Disinterment/Removals

Disinterment and removal of human remains are dealt with, including the necessary consents and when the consent of the Registrar may be substituted for that of an interment rights holder. The provisions of the regulation dealing with disinterment should be read in conjunction with section 102.1 of the Act. For more information, see Section 162 of the regulation and Section 102.1 of the Act.

Certificate Requirements

This section sets out the required content of an interment or scattering rights certificate, such as the name and location of the cemetery and the name of the interment or scattering rights holder. It also addresses assisted burials, where, at the request of municipal authorities, a cemetery operator may be required to provide a lot for a person in need, and fixing the compensation payable to the cemetery. For more information, see Sections 163 – 164 of the regulation.

Care and Maintenance Fund

This section also addresses the amount to be paid into a care and maintenance fund or account. The percentage is fixed in the regulation and is based on the purchase price for the interment and scattering rights and markers installed. For more information, see Sections 163 – 164 of the regulation and Section 87 of the regulation.

Capital Gains

This section also deals with the treatment of c-apital gains that have been earned on money held in trust under the Cemeteries Act (Revised) and predecessor legislation, but not yet paid out. The operator will be required to apply to the Registrar for consent to the payment out of the capital gains. On a go forward basis under FBCSA, capital gains on contracts made under FBCSA will be treated as income. For more information, see Section 169 of the regulation.

Neglected Cemeteries

Neglected cemeteries are addressed with provisions requiring that an owner maintain a neglected cemetery and provisions permitting a local municipality to order that the required work be done and the costs recovered from the cemetery operator. For more information, see Section 170 of the regulation.

Abandoned Cemeteries

For abandoned cemeteries, a process is established for an application to court to have the cemetery declared abandoned, setting out when such an application can be brought, who can bring it, who gets notice, who maintains the cemetery pending a decision, as well as who is responsible for the costs of the application and the effect of registering the order against title. For example, if the owner of a cemetery cannot be found, the local municipality can apply to a judge of the Superior Court for a declaration that a cemetery is abandoned. The local municipality would maintain the cemetery pending a decision and would bear the costs of the application. Once the order was registered in the appropriate land registry office, the local municipality would become the owner of the cemetery. For more information, see Section 171 of the regulation.

Closing Cemetery

This section also makes provision for a cemetery to be closed. It sets out detailed notice requirements and should be read in conjunction with section 88 of the Act. The closing of a cemetery should not be confused with an inactive cemetery. An inactive cemetery is one that is no longer accepting new interments or scattering but is still being maintained by an operator. On the other hand, the closing of a cemetery involves obtaining an order from the Registrar, which contains information regarding the manner in which remains are to be disinterred and scattered cremated remains are to be dealt with. For more information, see Section 172 of the regulation and Section 88 of the Act.

Burial Sites

This section is focused on burial sites and should be read in conjunction with the burial site sections of Part XI of the Act. This section makes provision for investigations to be conducted in order to determine the origin of a burial site and sets out requirements to preserve the site until a decision is made regarding the human remains. A burial site will be declared to be an irregular burial site (not intended as a “cemetery”), a burial ground (intended as a “cemetery”) or an aboriginal peoples’ burial ground. For more information, see Sections 174 – 179 of the regulation and Part XI of the Act.

Depending on the declaration, different notice requirements are specified. For burial grounds and aboriginal peoples’ burial grounds, treatment of the human remains is to be addressed by way of a site disposition agreement. This section identifies those matters that are to be addressed in the site disposition agreement. If the parties cannot reach an agreement, the Act requires that the matter be referred to arbitration. For more information, see Sections 181 – 184 of the regulation.

Crematoriums

This section deals with crematoriums, including what constitutes municipal approval for the establishment of the crematorium and what standards apply to the operation of the crematorium – for example, that human remains cannot be co-mingled without the written and signed consent of the purchaser of the cremation service. This section also sets out the obligation to provide assistance to a municipality for the cremation of the remains of a person in need and the compensation payable to the crematorium operator as a result. There is a requirement for crematorium by-laws, and for Registrar’s approval of the by-laws. Crematoriums will be permitted off cemetery land, a change from the previous legislation regulating crematoriums. For more information, see Sections 185 – 191 of the regulation.

General

The compensation fund under the Funeral Directors and Establishments Act (FDEA) will be continued as a compensation fund under the Funeral, Burial and Cremation Services Act, 2002. It continues to apply to funeral directors and transfer service operators. Contributions to and management of the fund are addressed in the regulation and mirror the provisions currently in place under the FDEA and its regulations. For more information, see Sections 192 – 211 of the regulation.

General

The Funeral, Burial and Cremation Services Act, 2002 includes broad authority to make regulations under the Act. Certain regulations are Minister’s Regulations and others are Lieutenant Governor-in-Council (LGC) Regulations. The latter are regulations that have been approved by Cabinet and signed by the LGC. The Minister may make regulations, for example respecting a code of conduct but also respecting matters to which authority has been delegated to the Minister from the LGC.

This section also includes a delegation of authority to make regulations from the LGC to the Minister in regards to a number of items, including fixing the amounts that can be charged for receiving cremated remains in the event that the remains are not retrieved by the family and need to be buried. It also delegates authority to the Minister to exempt named cemeteries from the care and maintenance fund or account requirements of the Act. For more information, see For more information, see Section 212 of the regulation..

General

The bereavement sector was regulated under the Cemeteries Act (Revised) and the Funeral Directors and Establishments Act. The Funeral, Burial and Cremation Services Act, 2002 (the Act) applies to the bereavement sector as of the day it is proclaimed in force. In order to ensure a smooth transition from the old regime to the new regime, the Act contains authority to make the regulation necessary to ensure continuity and to deal with any transition related issues.

For example, it addresses matters such as deeming licences under predecessor legislation to be licences under FBCSA; time limits for when an application for a licence renewal must be made for persons holding a licence issued under predecessor legislation; and the coordination of filing and reporting requirements under the old and new regime in order to avoid duplication and any gaps; and the treatment of investigations and appeals initiated under predecessor legislation. For more information, see Sections 213 – 230 of the regulation..

General

This section deals with a number of technical issues, including the commencement date for the regulation to take effect and a number of consequential amendments to some of the words and expressions used in the regulation. For more information, see Sections 231 – 232 of the regulation.

Insurance Act (Sale Of Bereavement Insurance) Regulation (LGC)

Insurance products may be used to fund the purchase of bereavement related products and services. The insurance may be sold in a manner that ties it directly to a contract for the purchase of products or services, such as when a purchaser enrolls in an insurance product at the time of entering into a contract with a licensed funeral establishment. Alternatively, the insurance may be sold based on an estimate of what might be required to fund a funeral, and be available for the costs of a funeral, but not necessarily tied to a specific contract for funeral services or supplies.

In the case of enrolment into an insurance plan, if enrolment occurs on behalf of an operator licensed under the Funeral, Burial or Cremation Services Act, 2002, the regulation state that enrolment can only be done by a person holding a licence under that Act or a person licensed under the Insurance Act in order to ensure the necessary consumer protection.

The sale of insurance on the other hand, that is not tied to a specific contract for funeral services or supplies (or other bereavement related supplies and services) would not be subject to the conditions and restrictions in the Funeral, Burial or Cremation Services Act, 2002, such as the section prohibiting soliciting of business from vulnerable persons. As a result, the amendments to the Insurance Act regulation ensure that the sale of insurance would be subject to the same limitations and conditions as apply to the sale of supplies and services under the Funeral, Burial and Cremation Services Act, 2002, in particular in requiring disclosure that the purchase of insurance does not constitute the purchase of funeral supplies and services, and in placing limitations on marketing insurance products to vulnerable persons.

Part 1: Exemptions from Care and Maintenance Fund Requirements

With limited exceptions, every cemetery operator must have a care and maintenance fund. Contributions are based on the purchase price for interment and scattering rights and markers installed and on the percentage specified in regulation.

This Minister’s Regulation identifies a small number of cemeteries that have been exempt from the requirement to have a care and maintenance fund or account.

Part II: Other Miscellaneous Charges

The Minister’s Regulation sets out the maximum amount an operator can request when taking possession of cremated remains. This refundable deposit is to ensure that the operator has sufficient funds to inter the cremated remains after a period of time, if the remains are not claimed.

The Regulation also deals with burials made at the request of a municipal authority, (assisted burial), and sets the maximum amount a cemetery operator is to be paid in respect of the interment of human remains or scattering of cremated remains. Similarly, it sets the maximum amount that is to be paid to a crematorium operator for providing a cremation at the request of the municipal authorities (assisted cremation).

Fees

The Act permits the setting of fees. A Minister’s fee sets out the fees to be charged for a variety of purposes, including for example, when an application for a licence is made or an application to establish a cemetery is submitted to the Registrar. Fees are set for renewals of licence and for late applications for renewal.

Contacts

For more information, contact:

Bereavement Authority of Ontario
Tel: 647-483-2645
Toll Free: 1-844-493-6356
info@thebao.ca

Registrar: Carey Smith
carey.smith@thebao.ca

Ministry of Government and Consumer Services
Licensing, Inspections and Investigations Branch
416-326-8800
(800) 889-9768


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