Read the Fine Print

Courts are increasingly interpreting regulatory legislation with its public interest purpose and intent in mind. However, the language of the provisions still matters, as was demonstrated in Nova Scotia (Embalmers and Funeral Directors) v. Curry, 2024 NSCA 93 (CanLII).

In that case, an establishment cremated the wrong body based on a mistaken identification by a morgue. The regulator disciplined the responsible funeral director for failing to adequately ensure the identification of the body. A lower court set aside the finding on the basis that the funeral director had acted reasonably by relying on the morgue’s identification of the body in a sealed container. The Nova Scotia Court of Appeal upheld the lower court’s decision. In doing so, the following points of interest were made:

  • The provision relied upon by the regulator did not explicitly impose a duty to verify the identity of the body if it was clearly identified at the point of pick up.
  • In any event, if there was a duty to confirm the identity of the body, the provision placed that obligation on the funeral home, not the funeral director. Funeral homes are regulated separately from funeral directors. The Court said:

The Board’s reliance on s. 32C(1) as a means of anchoring a finding that Mr. Curry had breached his statutory obligations as a funeral director, was misplaced. The intent of that section is to articulate the obligations of funeral homes. It has no application to holders of funeral director licences. The Board erred in law in finding Mr. Curry breached a provision that did not apply to him.

This analysis of the Court is particularly relevant for regulators who regulate both facilities and individuals.

  • The published guideline by the regulator was consistent with the distinction between facilities and individuals. In any event, the guideline does not “serve as an independent source of such a duty”.

Regulators need to review the actual language of the provisions they rely upon when determining their application.

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