BILL 62

 

Embalmers, Funeral Directors and Funeral Providers Act

 

WHEREAS the Board for Registration of Embalmers, Funeral Directors and Funeral Providers is a body corporate duly incorporated under the laws of the Province of New Brunswick, having its head office at Grand Falls, New Brunswick;

 

AND WHEREAS the Board for Registration of Embalmers, Funeral Directors and Funeral Providers prays that it be enacted as hereinafter set forth;

 

THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

 

Title

1                  This Act may be cited as the Embalmers, Funeral Directors and Funeral Providers Act.

 

Definitions

2                  The following definitions apply in this Act, unless the context otherwise requires.

 

"Board" means the Board for Registration of Embalmers, Funeral Directors and Funeral Providers as specified in subsection 3(1) and is hereby continued under this Act. (commission)

 

"by-laws" means by-laws made under the authority of this Act. (règlements administratifs)

 

"chapel" means a building or premises owned or rented by the Funeral Director or Funeral Provider for the purpose of conducting any aspect of a funeral service but not a place where embalming is permitted. (chapelle)

 

"client" means any person engaging the services of a Funeral Director or a Funeral Provider. (client)

 

"Committee" means

 

(a)               Complaints Committee; or

 

(b)               Discipline and Fitness to Practice Committee. (comité)

 

"Court" means The Court of Queen's Bench of New Brunswick. (Cour)

 

"Embalmer" means an individual who practices embalming. (embaumeur)

 

"embalming" means the preservation of the dead human body, entire or in part, by the use of chemical substance, fluids or gases, ordinarily used, prepared or intended for such purpose, either by outward application of such chemical substances, fluids or gases on the body by vascular or hypodermic injection or by direct application to the organs or cavities. (embaumement)

 

"funeral" means a rite or ceremony in connection with the death of a person where the body is present. (funérailles)

 

"Funeral Director" means an individual who provides or directs the providing of funeral services and who operates under that person's name or any other name for another person, partnership, firm, association or company, a business for the purpose of furnishing to the public funeral arrangements, funeral services and supplies, memorial arrangements, memorial services and supplies, as well as burial and mortuary services. (entrepreneur de pompes funèbres)

 

"Funeral Home" means a facility where funeral services are provided. (salon funéraire)

 

"Funeral Provider" means a person or a corporation licensed under this Act who owns, controls or has a beneficial interest in or manages a Funeral Home or holds themselves out as a provider of funeral services. (fournisseur de services funèbres)

 

"funeral services" means the care and preparation of dead human bodies and the co-ordination of rites and ceremonies with respect to dead human bodies, but does not include services provided by a cemetery or crematorium owner under the Cemetery Companies Act. (services funèbres)

 

"funeral supplies" means goods that are used in connection with the care and preparation of dead human bodies or the disposition of dead human bodies. (fournitures funéraires)

 

"incapacitated" means, in relation to an Embalmer, Funeral Director or Funeral Provider, that the Embalmer, Funeral Director or Funeral Provider is suffering from a physical or mental condition or disorder, emotional disturbance, or alcohol or drug abuse, that makes it desirable in the interest of the public that the Embalmer, Funeral Director or Funeral Provider no longer be permitted to practice or that the Embalmer's, Funeral Director's or Funeral Provider's practice be restricted, and "incapacity" has a corresponding meaning. (inapte) and (inaptitude)

 

"incompetence" means, in relation to an Embalmer, Funeral Director or Funeral Provider, that the Embalmer, Funeral Director or Funeral Provider care of a client displays a lack of knowledge, skill or judgment or disregard for the welfare of the client of a nature or to an extent that demonstrates that the Embalmer, Funeral Director or Funeral Provider is unfit to continue to practice or that the Embalmer's, Funeral Director's or Funeral Provider's practice should be restricted. (incompétence)

 

"license" means a license to act as an Embalmer, Funeral Director or Funeral Provider. (permis)

 

"licensee" means, unless otherwise indicated, a person who is a licensed Embalmer, licensed Funeral Director or a licensed Funeral Provider and any person whose name is entered in the Board's register or in any list of licensees established and maintained pursuant to this Act or the regulations and may include a corporation. (titulaire de permis)

 

"member" means unless otherwise indicated, a person appointed as a member of the Complaints Committee, Discipline Committee or the Board. (membre)

 

"Minister" means the Minister of Health and Wellness. (ministre)

 

"patient" means a deceased human body. (patient)

 

"person" means an individual, male or female as well as a corporation. (personne)

 

"prescribed" means prescribed by regulation. (prescrit)

 

"Registrar" means the Registrar designated under section 5. (registraire)

 

"valid" with respect to a license means a license issued under this Act for which the prescribed fee has been paid and which has not otherwise been suspended, canceled or revoked by the Board. (valide)

 

The Board

3(1)             There is hereby created a Board to be known as the Board for Registration of Embalmers, Funeral Directors and Funeral Providers.

 

3(2)             The principal mandate of the Board is to regulate the practices of Embalmers, Funeral Directors and Funeral Providers in accordance with this Act, the regulations and any by-laws in order that the public interest may be served and protected with powers to make additional by-laws and regulations, as well as amend any by-law or regulation.

 

3(3)             For the purpose of carrying out its principal mandate, the Board has the following additional duties and responsibilities:

 

(a)          to establish, develop, maintain, and enforce standards of practice, knowledge and skill among Embalmers, Funeral Directors and Funeral Providers;

 

(b)          to establish, develop, maintain, and enforce standards of entry qualifications and standards of practice for Embalmers, Funeral Directors and Funeral Providers;

 

(c)          to govern, and issue licenses to licensees in accordance with this Act and any regulations and by-laws;

 

(d)          to establish, develop, maintain and enforce standards of professional ethics among Funeral Directors, Funeral Providers and Embalmers;

 

(e)          to provide for the continuing competence of licensees;

 

(f)           to administer the affairs of the Board and licensees;

 

(g)          to establish all licensing fees for Embalmers, Funeral Directors and Funeral Providers and the licensing fee for the operation of a Funeral Home or chapel;

 

(h)          to establish fees for the inspection of all facilities; and

 

(i)           to establish fees for the examination of Embalmers.

 

3(4)             The Board shall consist of

 

(a)          the Deputy Minister of Health and Wellness or his or her designate, who shall be an ex officio member and entitled to vote on all matters; and

 

(b)          five members to be appointed by the Minister of Health and Wellness or his or her designate, consisting of

 

(i)      three members who shall be licensed Embalmers, Funeral Directors or Funeral Providers;

 

(ii)     one member who shall be a licensed Embalmer, Funeral Director or Funeral Provider who operates an independent funeral home; and

 

(iii)   one member who has never been an Embalmer, Funeral Director or Funeral Provider to be appointed and chosen by the Minister of Health and Wellness from a list of names of nominees submitted by the Board.

 

3(5)             The Board under this Act shall be appointed on a staggered basis in order that as Board members are replaced there will not be a complete change of Board members in any one year.

 

3(6)                    Subject to subsection (5), a Board member shall be appointed for a term of four years, to commence on the first day of July of the year of the appointment.

 

3(7)             Any vacancy in the appointed membership of the Board shall be filled by the Board by appointing a person from a panel of not less than three persons nominated by the Board to serve the unexpired term of office of the individual being replaced.

 

3(8)             The Board may by regulation fix the remuneration and allowances of each member of the Board, which shall be paid by the Secretary-Treasurer out of the fees collected under this Act.

 

3(9)             The Board shall have the power to purchase or lease real and personal property as well as draw, make, accept, endorse, execute and issue promissory notes, bills of exchange and other negotiable and transferable instruments and the Board may maintain an office, borrow, mortgage its property, hire employees, invest and deal with money and fees.

 

3(10)          The appointed members of the Board shall elect one of the appointees to be chairperson of the Board.

 

3(11)          The chairperson shall convene and preside at all meetings of the Board.

 

3(12)          In the event of the absence of the chairperson from any meeting or in the event of his or her inability or refusal to act, the appointed licensees may elect an acting chairperson who shall in all respects assume the duties and powers of the chairperson.

 

3(13)          Three appointed Board members present or in communication shall constitute a quorum for the transaction of business by the Board.

 

3(14)          All matters for decision by the Board shall be decided by majority vote and in the event of a tie, the chairperson shall have a casting vote.

 

3(15)                    Notice of each meeting of the Board shall be mailed or transmitted by a telephone facsimile machine to each member of the Board.

 

3(16)                    Meetings of the Board may be conducted by telephone conference call or by other similar medium, which ensures full communication and participation of members of the Board.

 

General Powers of The Board

4(1)                    Unless this Act otherwise provides, the Board may make regulations, subject to ministerial approval, regulating the business of the Board and without restricting the generality of the foregoing:

 

(a)               prescribing the course of training and education required of persons engaged in the business of embalming, and the qualifications of persons to be issued licenses as Embalmers;

 

(b)               otherwise providing for the establishment of a system of apprenticeship for the practice of embalming in the Province and the terms and conditions thereof;

 

(c)               establishing conditions under which an apprenticed Embalmer may practice embalming;

 

(d)          fixing the fees payable by Embalmer, Funeral Director or Funeral Provider candidates for examination, upon application for a license and for renewals thereof;

 

(e)               providing for the issuing of licenses under this Act and the annual renewal thereof and the revoking or suspending of such licenses for the non-payment of annual fees or other causes and for the re-granting of such revoked licenses;

 

(f)               providing for the calling of meetings of the Board as well as the procedure of the Board to be used at such meetings;

 

(g)               prescribing minimum standards for the premises, accommodation and equipment of Embalmers and licensees and providing for the inspection and approval thereof including chapels operated by licensees;

 

(h)               prescribing the duties of and the remuneration payable to the Registrar, inspectors, Board members, and employees or staff of the Board;

 

(i)               providing for the employment by the Board of such persons or services as may be required and for the payment of expenses;

 

(j)           to approve, establish or maintain any school or college that has for its purpose instruction in funeral service education, including embalming and funeral directing and general preparation for and burial of the dead human body and prescribe the admission requirements and administration, the equipment and facilities that may be used in the course of training and instruction;

 

(k)          to pay out of its funds such sums as it deems proper to assist in the establishment of a maintenance fund for any such school established in accordance with paragraph (j);

 

(l)               governing the premises where dead human bodies may be embalmed and the methods and materials which may be used;

 

(m)         fixing the annual fees or other fees to be paid by Embalmers, Funeral Directors and Funeral Providers;

 

(n)               providing for the use of forms and time limits for the application processes referred to in this Act; and

 

(o)               respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.

 

4(2)             Upon notice to the Minister of Health and Wellness, the Board may revoke or amend any regulation or regulations made under this section.

 

Registrar

5(1)             The Board shall appoint a Registrar of the Board from among its members and that person shall serve for a term of four years or until his or her successor is appointed.

 

5(2)             The Registrar may designate a person who, in the absence of the Registrar, exercises the powers and performs the duties of the Registrar.

 

5(3)             The Registrar under the direction and approval of the Board, is responsible for the administration and enforcement of this Act and, in addition to other powers and duties under this Act, the Registrar may

 

(a)          set the amount of cash reserve required under this Act;

 

(b)               receive complaints from any person and investigate those complaints in the manner and to the extent the Registrar considers necessary;

 

(c)          order an Embalmer, Funeral Provider or Funeral Director, to comply with any provision of this Act or make any other order that is reasonable in the circumstances;

 

(d)               extend the time limit to file or comply with a requirement of this Act, and may grant the extension even though the time limit to be extended has expired;

 

(e)               subject to written approval of the Board, issue, refuse to issue, suspend, cancel and impose conditions on licenses for Embalmers, Funeral Providers and Funeral Directors; and

 

(f)               establish standards of operation for Funeral Homes.

 

5(4)             The Registrar shall keep a register in which shall be entered

 

(a)          the names and addresses of all members of the Board, including all licensees, together with the date of issuance and expiry thereof;

 

(b)          any conditions, terms and limitations imposed on a license by the Board or a Committee under this Act;

 

(c)          the fact and date of each revocation, suspension, cancellation or termination of license;

 

(d)          the fact and amount of each fine imposed by the Board or a Committee, except if the Board or Committee directs that no entry with respect to a fine be made;

 

(e)          the fact of each reprimand made by the Board or a Committee, except if the Board or Committee directs that no entry with respect to the reprimand be made; and

 

(f)           such other information as may be prescribed.

 

5(5)             Any designate of the Minister has the right, during normal business hours, to inspect the register maintained by the Registrar and may receive, upon request in writing a copy of any part of the register.

 

5(6)             The Registrar shall, on a yearly basis, forward to the Minister a copy of the entries made in the register pursuant to subsection (4).

 

5(7)             The Registrar shall keep proper books of account showing all fees collected and disbursements made, and shall, not later than the first day of July in each year, file with the Minister a statement showing all money collected and disbursements made, during the preceding calendar year.

 

5(8)             The Registrar shall collect all fees provided for under this Act and they shall be used for carrying out the purposes of this Act.

 

6                  The Board shall have a common seal which shall be in the custody of the Registrar.

 

Inspectors

7(1)             The Board may from time to time appoint inspectors who may act to ensure compliance with this Act and regulations. 

 

7(2)             An inspector may, upon order of the Board at any reasonable time and upon presentation of identification issued by the Registrar enter into the premises, place of business or vehicle of any Embalmer, Funeral Director or Funeral Provider and may examine, or for purposes of his or her investigation extract information from, and may remove and make copies of books, accounts and records pertaining to his or her operation as an Embalmer, Funeral Director or Funeral Provider and may inspect the vehicles, supplies, equipment and place of business, as well as any human body or remains in the possession or control of any Embalmer, Funeral Director or Funeral Provider for the purposes of determining whether this Act and the regulations are being complied with, notwithstanding any provision in any Act relating to the confidentiality of health records.

 

7(3)             No person shall, without reasonable excuse, obstruct or cause to be obstructed an inspector while the inspector is performing his or her duties under this Act.

 

7(4)             Upon the ex parte application of an inspector, a judge of The Court of Queen's Bench of New Brunswick who is satisfied on information by oath or solemn affirmation that the inspector has been properly appointed and that there are reasonable grounds for believing that

 

(a)          the licensee being investigated has committed an act of professional misconduct, is incompetent or incapacitated, and

 

(b)          there is in a building, receptacle or place, anything that will provide evidence in respect of the matter being investigated,

 

may issue a warrant authorizing the inspector to enter the building, receptacle or place and search for and examine or remove anything described in the warrant.

 

7(5)             An inspector entering and searching a place under the authority of a warrant issued under subsection (4) may be assisted by other persons and may enter a place by force.

 

7(6)             An inspector entering and searching a place under the authority of a warrant issued under subsection (4) shall produce his or her identification and a copy of the warrant, upon request, to any person at that place.

 

7(7)             A person conducting an entry or search under the authority of a warrant issued under subsection (4) who finds anything not described in the warrant that the person believes on reasonable grounds will provide evidence in respect of the matter being investigated, may seize and remove that thing.

 

7(8)             An inspector may remove a document referred to in subsection (7) if it is not practicable to copy it in the place where it is examined or if a copy is not sufficient for the purposes of the investigation then the inspector may remove any object relevant to the investigation and shall provide the person in whose possession it was with a receipt for the document or object.

 

7(9)             An inspector, removing a document from a place where a copy cannot be made, shall return a document removed under subsection(8) as soon as possible after the copy has been made.

 

7(10)          No person shall withhold, conceal or destroy, or cause to be withheld, concealed or destroyed, anything that is relevant to an investigation under this Act.

 

7(11)          A copy of a document certified by an inspector to be a true copy shall be received in evidence in any proceeding to the same extent and shall have the same evidentiary value as the document itself.

 

7(12)          In this section, "document" means a record of information in any form and includes any part of it.

 

7(13)          An inspector shall report the results of an investigation to the Registrar in writing.

 

7(14)          The Registrar shall report the results of an investigation to the Committee.

 

Licensing Requirement

8                  A person shall not carry on business as an Embalmer, Funeral Provider or Funeral Director or an attempt to act in such capacity unless the person is licensed under this Act and has paid the prescribed license fee.

 

Application for License

9(1)             An application for a license or the renewal of a license shall be

 

(a)          made to the Registrar in a form approved by the Board;

 

(b)               accompanied by the prescribed license fee; and

 

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

 

9(2)             A Funeral Provider shall be licensed for each location at which the Funeral Provider carries on a funeral business in New Brunswick.

 

9(3)                    Subject to this section, the Registrar may issue or renew a license to an Embalmer, Funeral Provider and Funeral Director for a term of one year beginning at the start of the day on the effective date specified in the license and expiring at the end of the day on the expiry date specified in the license, and the license is valid during that period unless it is suspended, canceled, surrendered or revoked.

 

9(4)                    Notwithstanding subsection (3), the Registrar may issue or renew a license for a term that is less than one year.

 

9(5)             A license may be issued or renewed to an applicant on such conditions that the Board may direct to the Registrar due to previous infractions or breaches of the Act or regulations by a licensee or for such reasons for the protection of the public as the Board deems fit.

 

9(6)             Every license issued under this Act shall expire on June 30 of each year.

 

9(7)             Every person holding a license may apply on or before July 1 of each year to the Registrar for a renewal thereof.

 

9(8)             Upon any applicant paying the prescribed annual fee, and unless otherwise directed by the Board, the Registrar shall issue a renewal for a license, as the case may be.

 

9(9)             No license shall be valid unless the prescribed annual licensing fee has been paid in accordance with the regulations under this Act.

 

9(10)          Any application for transfer of a license shall be made to the Board and shall be dealt with as an original application.

 

Powers of the Registrar

10(1)          Every person who, at the coming into force of this Act and licensed under the previous Act, hereby has his or her license continued and is entitled to be registered by the Registrar.

 

10(2)          A person may be refused a license by the Registrar if

 

(a)          at the time of application the person making the application is subject to discipline, investigation, review or other proceedings by any equivalent registrational or licensing body in any jurisdiction in Canada or elsewhere, including appeals, judicial review or otherwise that may result in the revocation, cancellation or suspension of registration or license of a person to practice as an Embalmer, Funeral Director or Funeral Provider;

 

(b)          the person making the application is subject to the revocation, cancellation or suspension of registration or license to practice as an Embalmer, Funeral Director or Funeral Provider;

 

(c)          the applicant is bankrupt;

 

(d)          the applicant or licensee has contravened the Act or regulations; or

 

(e)          the applicant is a corporation applying to be licensed as a Funeral Provider and the officer or the director of the corporation has either:

 

(i)      a criminal record or is under criminal investigation,

 

(ii)     filed for bankruptcy, been petitioned into bankruptcy, or is still in a state of bankruptcy, or

 

(iii)          contravened the Act or regulations.

 

11                The Registrar may, for any of the reasons under section 10, suspend a license for a period of time or subject it to any conditions the Registrar considers necessary having taken direction from the Board.

 

12(1)                    Following the Registrar's decision to

 

(a)               refuse to issue or renew a license;

 

(b)               suspend or cancel a license; or

 

(c)               impose conditions on a license,

 

the Registrar shall provide the applicant or licensee with written reasons for the decision and the applicant or licensee may file a written reply with the Registrar within thirty days after the date of the decision.

 

12(2)          On receiving a written reply under subsection (1), the Registrar shall confirm or vary the decision referred to in subsection (1).

 

Appeal of Decision

13(1)          An applicant or licensee may appeal a decision of the Registrar made under section 10 or 11 to the Discipline and Fitness to Practice Committee.

 

13(2)          The appeal shall be made in the manner and within the time allowed pursuant to section 64 of this Act.

 

General Requirements

14(1)          The Registrar may make inquiries and require information from an applicant or licensee that the Registrar considers necessary to decide whether or not to

 

(a)          issue or renew a license;

 

(b)               suspend or cancel a license; or

 

(c)               impose conditions on a license.

 

14(2)          It is a prerequisite to the issuing of a license and a condition of the license that an applicant or licensee comply with a request for information made under subsection (1).

 

15                A licensee shall notify the Registrar, in writing, of any change of address of the licensee's place of business or employment within the two week period immediately following the change of address.

 

16                A license issued under this Act is not transferable from one funeral home to another and when a licensee relocates to another funeral home, they shall reapply for a new license before commencing work at the new location.

 

17                A Funeral Provider or Funeral Director shall not advertise, contract or otherwise carry on business at a location in New Brunswick under a name other than the name that appears on the license issued to the Funeral Provider or Funeral Director in respect of that location.

 

18                A licensee shall not enter into a contract for funeral services unless the contract is in accordance with this Act and regulations.

 

19(1)          A licensee shall, on receiving a telephone inquiry respecting the supply of funeral services, give accurate information respecting the nature and price of the various forms of funeral services the licensee offers.

 

19(2)          If quoting a price under subsection (1) for funeral services, the licensee shall state specifically what goods and services are included in that price.

 

20                Every licensee shall maintain premises where funeral services are provided that, in the opinion of the Registrar, are sufficient for the purposes of

 

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

 

(b)               displaying caskets and containers.

 

21                Every licensee who carries on business, or who is employed at a location in New Brunswick that offers funeral services to the public, shall display, in a conspicuous place on the premises that is accessible to members of the public any license issued by the Registrar.

 

22(1)                    Subject to subsection (2), every Funeral Provider shall employ or contract with a licensed Funeral Director for each location at which the Funeral Provider carries on business in New Brunswick.

 

22(2)          A Funeral Provider who is an individual may be the Embalmer or Funeral Director, or both, for one location at which the Funeral Provider carries on business in New Brunswick.

 

23(1)          A licensed Funeral Provider or Funeral Director carrying on a business in New Brunswick shall, at each location of business, have a room or area for the display of caskets and containers for examination by the public and shall include in the display the licensee's lowest priced casket and container.

 

23(2)          The licensee shall have available for examination by the public a book, brochure or other advertisement or literature illustrative of the entire product line of caskets the licensee offers for sale.

 

24                A licensee shall

 

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

 

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

 

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

 

25                If a licensee offers a casket under a rental arrangement, the licensee shall explain to the purchaser of funeral services who rents the casket the nature of the arrangement, and the contract for those funeral services shall contain a specific reference to the arrangement prescribed.

 

Insurance

26                All licensees shall carry professional liability insurance coverage.

 

Records

27(1)          A licensee shall keep a record of all funeral services that the licensee provides, including

 

(a)          the name of the deceased;

 

(b)          the date and place of interment or the date and place of cremation and the disposition of the cremated remains; and

 

(c)          the name and address of the person who authorized the funeral services.

 

27(2)          If a licensee discontinues operation of a Funeral Home, the licensee shall, as directed by the Registrar, make adequate provision for the safekeeping of records required to be kept under subsection (1).

 

28(1)          If the Registrar receives a complaint about a licensee, the licensee, on receiving a request from the Registrar, shall promptly provide to the Registrar, in writing, information requested by the Registrar respecting the subject matter of the complaint.

 

28(2)          The Registrar or a person designated in writing by the Registrar may, during business hours, enter business premises to make inquiries and observations and to inspect and copy records with respect to a complaint or investigation.

 

28(3)          For the purposes of subsection (2), every person who offers funeral services shall

 

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

 

(b)               facilitate the copying of records.

 

Funeral Provider

29(1)          Every Funeral Provider and every person applying to be licensed as a Funeral Provider shall

 

(a)          make application for licensure or renewal in the form required by the Registrar and submit the required fees;

 

(b)          be a Funeral Director licensed under this Act, or employ or contract with a Funeral Director licensed under this Act to act on their behalf, and provide to the Registrar the name of the Funeral Director who represents the Funeral Provider at the licensed location;

 

(c)          have public liability insurance for all premises and vehicles used by the Funeral Provider;

 

(d)          if the Funeral Provider is a corporation, submit to the Registrar the name and address of each officer and director of the corporation as well as each person who holds more than ten per cent of the equity shares of the corporation;

 

(e)               comply with all requests for information made by the Registrar, including requests regarding the financial responsibility of the applicant or Funeral Provider, which is for the protection of consumers, the health and safety of clients and the care and handling of patients;

 

(f)               maintain, at the Funeral Provider's licensed premises or head office in New Brunswick, a copy of every contract for funeral services, together with the books, records and accounts which record all money received and disbursed under the contract for funeral services; and

 

(g)               comply with the Act and the regulations.

 

29(2)          No person shall act as a Funeral Provider unless he or she has a valid license.

 

Embalmer

30(1)          Any applicant for licensing as an Embalmer who

 

(a)          is the age of legal majority;

 

(b)          is a graduate in embalming sciences of an accredited university or other academic or technical institution recognized by the Board;

 

(c)          has fulfilled the requirements of approved embalming experience and apprenticeship prescribed by the regulations and satisfactory to the Board;

 

(d)               provides satisfactory evidence of good character; and

 

(e)               submits to the Registrar

 

(i)      a completed application form and the license fee, together with a copy of the license or certificate evidencing graduation from a program in embalming; and

 

(ii)     three letters of reference, one of which shall be from an employer or former employer who is a Funeral Provider or Funeral Director and who can attest to the competency of the applicant;

 

upon approval of the Board, shall be entitled to receive a license as an Embalmer.

 

30(2)          Every person who is licensed as an Embalmer shall, if applying to renew a license, make an application in the form required by the Registrar and submit the license fee.

 

30(3)          Every person who applies to be licensed as an Embalmer, or who is licensed as an Embalmer, shall

 

(a)               comply with all requests for information made by the Registrar, including requests for information respecting the qualifications and conduct of the applicant or Embalmer which is for the protection of consumers, the health and safety of clients, and the care and handling of patients; and

 

(b)               comply with the Act and regulations.

 

30(4)          No person shall engage in embalming or the business or profession of embalming unless he or she has a valid license, or as may be authorized by regulation, and has paid the prescribed licensing fee.

 

Funeral Director

31(1)          A Funeral Director's license may only be issued to a licensed Embalmer registered with the Board who

 

(a)          is in good standing;

 

(b)          has an approved place of employment, with proper facilities and equipment having been approved by the Board pursuant to the regulations;

 

(c)               provides a letter from the local service district if located in a rural community or municipal governing body or authority, approving the location of the premises to be used in connection with the applicant's place of business; and

 

(d)          has paid the prescribed fee.

 

31(2)          Every person who applies to be licensed as a Funeral Director shall

 

(a)          be a graduate of

 

(i)      a program on funeral education that includes practical experience providing funeral services under the supervision of a licensed funeral director; or

 

(ii)     a program in funeral education in another jurisdiction that is equivalent to the program under subparagraph (i) and is acceptable to the Registrar; and

 

(b)               submit to the Registrar

 

(i)      a completed application form and the license fee, together with a copy of the license or certificate evidencing graduation from a program in funeral education; and

 

(ii)     three letters of reference, one of which shall be from an employer or former employer who is a Funeral Provider or Funeral Director and who can attest to the competency of the applicant.

 

31(3)          Every person who operates a Funeral Home shall

 

(a)               employ a Funeral Director; and

 

(b)          if applying to renew a license, make application in the form required by the Registrar and submit the license fee.

 

32(1)          Every license issued to a Funeral Director shall specify

 

(a)          the name of the person to whom it is issued;

 

(b)          the civic address of the premises at which the business shall be carried on; and

 

(c)          the name under which the business shall be carried on.

 

32(2)          A Funeral Director shall conduct business

 

(a)          only at the premises specified in his or her license; and

 

(b)          only under the business name specified in his or her license.

 

32(3)                    Notwithstanding subsection (2), a Funeral Director may engage, on a part-time basis, in embalming or funeral directing at a place or premise other than that specified in his or her license if

 

(a)          that place or premises has been approved by the Board; and

 

(b)               another licensed Funeral Director works on a full time basis at that place or premises.

 

32(4)          Only one Funeral Director's license shall be granted to or held by any person in any calendar year.

 

32(5)          In the event that a Funeral Director desires to change his or her place of business from that for which his or her license has been granted, he or she shall

 

(a)               notify the Registrar before changing his or her place of business;

 

(b)               provide to the Registrar a full description of the new premises and equipment;

 

(c)               return his or her Funeral Director's license to the Registrar for cancellation; and

 

(d)          make an application to the Board in the regular manner for a Funeral Director's license to enable him or her to operate and conduct business from the new premises.

 

General Provisions for Licensees

33(1)          The Board in causing a license to be issued may attach terms and conditions thereto.

 

33(2)          The Board shall advise the Minister of Justice forthwith in the event the Board attaches terms and conditions to a licensee's license which seek to restrict the licensee's ability to deal with money or funds received from the public.

 

34(1)          Only persons licensed as Funeral Directors and entered in the register shall

 

(a)               publicly or privately, whether or not for hire, gain or hope of reward, engage or offer to engage in funeral directing;

 

(b)          hold himself or herself out in any manner as being entitled to engage in funeral directing; or

 

(c)               assume any title or description, including those referred to in this Act, that does or could lead the public to believe that person is entitled to engage in funeral directing.

 

34(2)          Only persons licensed as Embalmers and entered in the register shall

 

(a)               publicly or privately, whether or not for hire, gain or hope of reward, engage or offer to engage in embalming;

 

(b)          hold himself or herself out in any manner as being entitled to engage in embalming; or

 

(c)               assume any title or description, including those referred to in this Act, that does or could lead the public to believe that person is entitled to engage in embalming.

 

34(3)          Only persons or corporations licensed as Funeral Providers and entered in the register shall

 

(a)               publicly or privately, whether or not for hire, gain or hope of reward, engage or offer to engage in funeral providing;

 

(b)          hold himself or herself or itself out in any manner as being entitled to engage in funeral providing; or

 

(c)               assume any title or description, including those referred to in this Act, that does or could lead the public to believe that they are entitled to engage in funeral providing.

 

34(4)          Any person who assists in providing or directing a funeral when a licensed Funeral Director is not present and on the premises, commits an offence under this Act and regulations.

 

35                    Where a licensee does or attempts to do anything contrary to the provisions of this Act or any regulation or by-law passed under the authority of this Act, the doing of such thing may be restrained by an injunction of The Court of Queen's Bench of New Brunswick at the instance of the Board.

 

Examinations and Apprenticeship

36(1)          The Board may cause to hold at least one examination in each year in embalming and funeral directing for the purpose of examining applicants for a license.

 

36(2)          Prior to being examined, an applicant shall have completed a program recognized by the Board in funeral services education.

 

36(3)          Any examination under this section shall be conducted by an approved training and testing institution recognized by the Board.

 

36(4)                    Notice of the time and place of examination shall be given to each apprentice or applicant eligible to undergo an examination no later than four weeks prior to the date scheduled for the examination.

 

37(1)          The Board may prescribe by regulation a system of apprenticeship for the practice of embalming and funeral directing.

 

37(2)          Upon bringing into effect a system of apprenticeship, no applicant seeking a license shall be considered for examination unless the applicant has completed his or her apprenticeship or its equivalent.

 

37(3)          The equivalent of apprenticeship may be established by proof of registration as an Embalmer or Funeral Director in any province or country having requirements and standards which, in the opinion of the Board, are equal to those demanded by the Board.

 

Continuing Education

38(1)          All licensed Funeral Directors and Embalmers shall attend such upgrading courses as designated and approved by the Board and which may be designated as educational units. 

 

38(2)          Each licensee is required to attend three credit units as approved by the Board every six years pending compliance.

 

38(3)          In the event that the Funeral Director or Embalmer fails to comply with this section of the Act, his or her license may be suspended.

 

Transportation

39(1)          An Embalmer, Funeral Provider or Funeral Director is responsible and accountable under this Act for the due compliance with this Act and the regulations associated therewith and further is responsible for the actions of their employees, servants, agents or volunteers engaging in any activity on their behalf related to the handling, removal and transportation of any dead human body.

 

39(2)          A person referred to in subsection (1) shall only transfer dead human bodies in a vehicle specifically set aside for that purpose and that vehicle shall

 

(a)          be kept in a sanitary condition, be enclosed and be of an adequate size to accommodate the full length of the dead human body;

 

(b)          have no advertising displayed on its exterior other than the name, address and telephone number of the person or company transferring the dead human body; and

 

(c)          be capable of transferring dead human bodies so that they are out of public view.

 

39(3)          A person transferring a dead human body under subsection (1) shall proceed to the intended destination as quickly as is practicable and the dead human body shall not be left in a stationary transfer vehicle for more than two hours unless the vehicle is parked in a clean, secure building so that the dead human body is out of public view.

 

Offences

40                Any person not registered as a licensee as required under this Act, or whose license has been revoked or suspended, and who

 

(a)               practices as an Embalmer;

 

(b)               practices as a Funeral Director;

 

(c)               continues to act as a Funeral Provider, or makes use of any abbreviation of such title, or any name, title or designation which may lead to the belief that the person is an Embalmer, Funeral Director or a Funeral Provider; or

 

(d)               advertise or in any way or by any means represents to be a Embalmer, Funeral Director or Funeral Provider

 

commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

 

41                Any person who procures or attempts to procure a license as an Embalmer, Funeral Director or Funeral Provider for that person or another by making, or causing to be made, any false or fraudulent representation or declaration, either oral or written, or who makes any false statement in any application, declaration or other document under this Act or the by-laws, commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

 

42                    Where an offence under his Act is committed by a corporation, including a professional corporation, every director, manager, secretary or other officer of that corporation who has assented to the commission of the offence is a party to the offence.

 

43                In any prosecution under this Act, it shall be sufficient proof of an offence if it is proved that the accused has done or committed a single act of unlawful conduct, or has committed on one occasion any of the acts prohibited by this Act.

 

44                Any information alleging an offence under this Act may be laid in accordance with the Provincial Offences Procedure Act in the name of the Board on oath or solemn affirmation of the Registrar or of a person authorized by the Board.

 

45(1)                    Where an offence under this Act continues for more than one day,

 

(a)          the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

 

(b)          the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

 

45(2)          All fines recoverable under this Act shall be paid to the Registrar and shall be used for the purpose of carrying out the purpose of this Act.

 

46(1)          The Court may, on application by the Board and on being satisfied that there is reason to believe that a person has violated or will violate this Act or a by-law, or has been charged with or convicted of an offence, and it is probable that the person will in future commit or continue to commit the offence, grant an injunction restraining the person from committing or continuing to commit such acts and, pending disposition of the application seeking the injunction, the Court may grant an interim injunction.

 

46(2)          An injunction granted under this section may be enforced in the same manner as an injunction granted to enjoin a civil wrong.

 

Limitation Period

47                No action against a licensee licensed under  the Embalmers, Funeral Directors and Funeral Providers Act for negligence or malpractice in the practice of embalming, funeral directing or funeral providing shall be commenced but within two years from the day of the discovery of the cause of action, or when such cause of action should have been discovered.

 

Certificate of Registrar

48                A statement of facts verified by the Registrar is admissible as evidence in any proceeding without proof of the office or signature of the Registrar and is proof, in  absence of evidence to the contrary, of the facts stated therein.

 

Committees

49(1)          The Board shall establish the following committees:

 

(a)               Complaints Committee; and

 

(b)               Discipline and Fitness to Practice Committee.

 

49(2)          The Board shall appoint the members of the committees, whose composition shall be as follows

 

(a)               Complaints Committee - four active members who are licensed Funeral Directors, and one person who has never been an Embalmer, Funeral Director or Funeral Provider; and

 

(b)               Discipline and Fitness to Practice Committee - four active members who are licensed Funeral Directors and one person who has never been an Embalmer, Funeral Director or Funeral Provider.

 

49(3)          The Board shall appoint a chairperson for each Committee from among the persons appointed to the Committee.

 

49(4)          A quorum shall consist of three persons, two of whom are licensees and one person who has never been an Embalmer, Funeral Director or Funeral Provider.

 

49(5)          No person is eligible to sit as a member of the Discipline and Fitness to Practice Committee if the person has taken part in the investigation of the subject matter before the Committee's hearing.

 

Complaints

50(1)          A person may make a complaint to the Registrar regarding the conduct or actions of a licensee.

 

50(2)          A complaint shall be in writing and shall include the complainant's name and mailing address.

 

50(3)                    Where a complaint is filed with the Registrar, the Registrar shall refer the complaint to the Complaints Committee if the conduct or actions complained of may constitute professional misconduct, incompetence or incapacity.

 

Complaints Committee

51                In the absence of a complaint, if the Registrar has reason to believe that the conduct or actions of a licensee may constitute professional misconduct, incompetence or incapacity, the Registrar may request the Complaints Committee to investigate the licensee.

 

52                Upon receiving a complaint referred by the Registrar or a request from the Registrar the Complaints Committee shall investigate the matter raised by the complaint or in the request.

 

53                    Where the Complaints Committee investigates the conduct or actions of a licensee, the Complaints Committee shall notify the licensee of the investigation, giving reasonable particulars of the matters alleged to be investigated and shall advise the licensee that the licensee may make a written submission to the Committee with respect to the matter within thirty days after receiving the notice.

 

54(1)          The Complaints Committee is not required to hold a hearing or to afford any person an opportunity for a hearing or to make oral submissions before it, prior to it taking action or making a recommendation under this section.

 

54(2)          After the completion of an investigation of a licensee and after considering the submission of the licensee and considering or making a reasonable attempt to consider all documents and information it considers relevant to the matter, the Complaints Committee may

 

(a)          direct that no further action be taken if, in the opinion of the Complaints Committee, the complaint is frivolous or vexatious or there is insufficient evidence of professional misconduct, incompetence or incapacity;

 

(b)          refer allegations of professional misconduct, incompetence or incapacity to a Discipline and Fitness to Practice Committee;

 

(c)               caution the licensee; or

 

(d)          take such other action as it considers appropriate in the circumstances that is not inconsistent with this Act or the regulations.

 

54(3)          The Complaints Committee shall prepare a summary of its findings and its decision in writing and shall send a copy to the licensee and the complainant, if any, by registered or certified mail.

 

54(4)          The Registrar shall concurrently send to the person complained against notice that informs him or her that he or she is entitled to a hearing by the Discipline and Fitness to Practice Committee if he or she mails or delivers to the Registrar and to the Discipline and Fitness to Practice Committee, within fifteen days after the notice is served on them, notice in writing requiring a hearing.

 

54(5)          If upon receipt of a complaint the person complained against does not require a hearing by the Discipline and Fitness to Practice Committee, the Complaints Committee may carry out the recommendations contained in the decision involving the licensee.

 

Action By Complaints Committee to Protect Public

55(1)                    Where the Complaints Committee refers an allegation to the Discipline and Fitness to Practice Committee and where the Discipline and Fitness to Practice Committee considers the action necessary to protect the public pending the conduct and completion of proceedings before the Discipline and Fitness to Practice Committee in respect of a licensee, the Discipline and Fitness to Practice Committee may, subject to subsection (2), make an interim order

 

(a)               directing the Registrar to impose specified terms, conditions or limitations upon the license of the licensee; or

 

(b)               directing the Registrar to suspend the license of the licensee.

 

55(2)          No order shall be made by the Discipline and Fitness to Practice Committee under subsection (1) unless the licensee has been given

 

(a)               notice of the Discipline and Fitness to Practice Committee's intention to make the order; and

 

(b)          at least ten days to make representation to the Discipline and Fitness to Practice Committee in respect of the matter after receiving the notice.

 

55(3)                    Where the Complaints Committee takes action under subsection (1), and refers same to the Discipline and Fitness to Practice Committee, they shall notify the licensee of its decision in writing and of the reasons for the decision.

 

55(4)          An order under subsection (1) continues in force until the matter is disposed of by the Discipline and Fitness to Practice Committee, unless the order is stayed pursuant to an application under subsection (5).

 

55(5)          A licensee against whom action is taken under subsection (1) may apply to The Court of Queen's Bench of New Brunswick for an order staying the action of the Committee.

 

55(6)          If an order is made under subsection (1) by the Discipline and Fitness to Practice Committee in relation to a matter referred to, the Board and the Committee shall act expeditiously in relation to the matter.

 

55(7)          Any hearing held by the Discipline and Fitness to Practice Committee shall be within sixty days of the decision made by the Complaints Committee.

 

Attendance of Witnesses and Production of Records Before Any Committee

56(1)          The chairperson of a Committee or the Registrar may order a person to attend a hearing before any Committee to give evidence and to produce records, documents and other things in the possession of or under the control of the person.

 

56(2)          The chairperson of a Committee or the Registrar shall order a person referred to in subsection (1) by issuing a notice requiring the person's attendance, stating the date and time of such attendance and requiring the production of the records, documents or other things in the person's possession or under the person's control.

 

56(3)          The chairperson of a Committee or the Registrar, upon the written request of a licensee or counsel, shall provide the licensee or counsel with any notices that the licensee requires to secure the attendance of witnesses at the hearing, without charge to the licensee.

 

56(4)          A person, other than the licensee whose conduct is the subject of the hearing, who is served with a notice under this section shall be tendered the same fees as are payable to a witness in an action in The Court of Queen's Bench of New Brunswick at the time the notice is served.

 

Failure to Comply With Any Order of Committee

57(1)          On application by the chairperson of any Committee to The Court of Queen's Bench of New Brunswick, should a person fail to attend or to produce records, documents or other things as required by an order of the chairperson or Registrar, or who refuses to be sworn or affirmed as a witness or to answer any question any Committee directs that person to answer, may be found liable for contempt as if the person were in breach of an order or judgment of The Court of Queen's Bench of New Brunswick.

 

57(2)          If the person referred to in subsection (1) is a licensee, the failure or refusal to act may be held by any Committee to be professional misconduct.

 

Committee May Proceed in Absence of Investigated Licensee

58                Any Committee, on proof of service of the notice of hearing on the licensee against whom allegations are made, may

 

(a)               proceed with the hearing in the absence of the licensee; and

 

(b)               without further notice to the licensee, take any action that is authorized to be taken under this Act or the regulations.

 

Committee may Hear Other Matters

59                If any other matter concerning the licensee against whom allegations have been made arises during the course of the hearing, any Committee may hear the matter, but it shall notify the parties of its intention to do so, and shall ensure that the licensee is given a reasonable opportunity to respond to the matter.

 

Committee Not Bound by Rules of Evidence

60                Any Committee is not bound by the rules of evidence which apply to judicial proceedings.

 

Committee May Adjourn Hearing

61                Any Committee may adjourn the hearing from time to time.

 

Members of Committee Who Participate in Decision

62                Only the members of a Committee who were present throughout the hearing shall participate in the Committee's decision.

 

63                The complainant, if any, may attend the hearing in its entirety with or without counsel, and may make a written or oral submission to any Committee before the calling of evidence and after the completion of evidence.

 

Discipline and Fitness to Practice Committee / Professional Misconduct or Incompetence

64(1)          Any licensee affected by a decision of the Registrar pursuant to section 10 or 11 or by a decision of the Complaints Committee pursuant to section 54 or 55 may appeal the decision and request a hearing by the Discipline and Fitness to Practice Committee.

 

64(2)          Any appeal shall be made in writing, within thirty days of the decision in the form provided in the regulations.

 

64(3)          Any decision or order of the Registrar made under section 10 or 11 or by the Complaints Committee made under section 54 or 55 continues in force and effect until the matter is heard and disposed of by a Discipline and Fitness to Practice Committee, unless the decision or order is stayed pursuant to an application under subsection (4). 

 

64(4)          A licensee against whom a decision or order is made under subsection (1) may apply to The Court of Queen's Bench for an order staying the decision or order until the matter is heard and determined by the Discipline and Fitness to Practice Committee.

 

64(5)          A licensee shall give the Registrar or the Complaints Committee at least one week's notice of an application to The Court of Queen's Bench of New Brunswick to stay an order of the Committee.

 

64(6)          If the person complained against requires a hearing, or if a licensee appeals a decision of the Registrar made pursuant to section 10 or 11, the Discipline and Fitness to Practice Committee shall appoint a time and place to hold a hearing within the prescribed time and no later than sixty days.

 

64(7)          The Discipline and Fitness to Practice Committee and each licensee thereof shall for the purposes of this Act have the powers of a commissioner under the Inquiries Act and the Commissioners for Taking Affidavits Act.

 

64(8)          The Discipline and Fitness to Practice Committee may receive and accept evidence and information on oath or affirmation, affidavit or otherwise as in its discretion it may deem fit and proper, whether admissible as evidence in a Court of law or not.

 

64(9)          The Discipline and Fitness to Practice Committee shall determine its own procedure but shall in every case, except as otherwise provided in this Act, give full opportunity to all interested parties to any proceeding to present evidence and to make representations, and the Discipline and Fitness to Practice Committee may make rules governing its procedure and the exercise of its powers and prescribing such forms as are deemed advisable.

 

64(10)        The Discipline and Fitness to Practice Committee may attach such conditions to its order as it considers proper to give effect to the purposes of this Act.

 

64(11)                    Notwithstanding any other sections of this Act, the Board or the Registrar may direct the Discipline and Fitness to Practice Committee to hold a hearing and determine any allegation of professional misconduct, incompetence or incapacity on the part of a licensee.

 

Powers of Discipline and Fitness to Practice Committee

65(1)          The Discipline and Fitness to Practice Committee shall

 

(a)          when so directed by the Board, Registrar or Complaints Committee, hear and determine allegations of professional misconduct, incompetence or incapacity against a licensee;

 

(b)          hear and determine matters referred to it by the Board, Registrar or Complaints Committee under this Act with respect to a licensee;

 

(c)               perform such other duties as are assigned to it by the Board; and

 

(d)          take such other action as it considers appropriate in the circumstances that is not inconsistent with this Act or the regulations.

 

65(2)          A licensee has committed an act of professional misconduct if

 

(a)          the licensee pleaded guilty or was found guilty of an offence that, in the opinion of the Committee, is relevant to the licensee's suitability to practice;

 

(b)          the governing body of the funeral profession in a jurisdiction other than New Brunswick has found that the licensee committed an act of professional misconduct that would, in the opinion of the Committee, constitute professional misconduct under this Act or the regulations;

 

(c)          the licensee has digressed from established or recognized professional standards or rules of practice of the profession;

 

(d)          the licensee has committed an act of professional misconduct as defined in the regulations;

 

(e)          the licensee has violated or failed to comply with this Act or the regulations;

 

(f)           the licensee has violated or failed to comply with a term, condition or limitation imposed on their license;

 

(g)          the licensee has failed to submit to an examination ordered by the Committee under subsection 70(1);

 

(h)          the licensee has sexually abused a patient; or

 

(i)           the licensee has failed to file a report pursuant to this Act or regulations.

 

Sexual Abuse of a Patient

66(1)                    Sexual abuse of a patient by a licensee means

 

(a)               sexual intercourse or other forms of physical sexual relations between the licensee and the patient,

 

(b)               touching, of a sexual nature, of the patient by the licensee,

 

(c)               behavior or remarks of a sexual nature by the licensee towards the patient. 

 

66(2)          For the purposes of subsection 66(1), "sexual nature" does not include touching, behavior or remarks of a clinical nature appropriate to the service provided by a licensee.

 

Measures To Prevent Sexual Abuse of Patients

67(1)          The Board shall undertake measures for prevention of the sexual abuse of patients by its licensees.

 

67(2)          Such measures referred to in subsection (1) shall include

 

(a)               education of licensees about sexual abuse;

 

(b)               guidelines for the conduct of licensees with patients;

 

(c)               providing information to the public respecting such guidelines; and

 

(d)               informing the public as to the complaint procedures under this Act.

 

Board To Report To Minister

68(1)          The Board shall report to the Minister of Health and Wellness within two years after the commencement of this section, and within thirty days at any time thereafter on the request of the Minister, respecting the measures it is taking and has taken to prevent and deal with sexual abuse of patients by licensees.

 

68(2)          The Board shall report to the Minister of Health and Wellness respecting all complaints received during the calendar year respecting sexual abuse of patients by Embalmers, Funeral Directors or Funeral Providers.

 

68(3)          A report under subsection (2) shall be made within two months after the end of each calendar year and shall contain the following information:

 

(a)          the number of complaints received during the calendar year for which the report is made and the date each complaint was received;

 

(b)          with respect to each complaint received during the calendar year for which the report is made:

 

(i)      a description of the complaint in general non-identifying terms;

 

(ii)     the decision of the Complaints Committee with respect to the complaint and the date of the decision;

 

(iii)   if allegations are referred to the Discipline and Fitness to Practice Committee, the findings and decision of the Discipline and Fitness to Practice Committee and the date of the decision; and

 

(iv)          whether an appeal was made from the findings and decision of the Discipline and Fitness to Practice Committee and the date and outcome of the appeal; and

 

(c)          with respect to each complaint reported in a previous calendar year, a report on the status of the complaint in accordance with paragraph (b) if the proceedings initiated as a result of the complaint were not finally determined in the calendar year in which the complaint was first received.

 

Failure to Report Sexual Abuse

69(1)          Any licensee who, in the course of practicing the profession, has reasonable grounds to believe that another licensee has sexually abused a patient and who fails to file a report in writing with the Board within twenty-one days after the alleged sexual abuse the licensee commits an act of professional misconduct.

 

69(2)          The licensee is not required to file a report if he or she does not know the name of the licensee who would be the subject of the report.

 

69(3)          If reasonable grounds for filing a report have been obtained from one of the licensee's client's, the licensee shall use his or her best efforts to advise the client that he or she is filing the report before doing so.

 

69(4)          A report referred to in this subsection shall contain the following information:

 

(a)          the name of the licensee filing the report;

 

(b)          the name of the licensee who is the subject of the report;

 

(c)          the information the licensee has of the alleged sexual abuse; and

 

(d)          if the grounds of the licensee filing the report are related to a particular patient of the licensee who is the subject of the report, then also the name of the patient.

 

69(5)          The name of a patient who may have been sexually abused shall not be included in a report unless the client, or if the client is incapable, the client's representative, consents in writing to the inclusion of the patient's name.

 

69(6)          No action or other proceeding shall be taken against a licensee who in good faith files a report.

 

Physical or Mental Examination of Licensees

70(1)                    Where the Discipline and Fitness to Practice Committee has reasonable grounds to believe that a licensee who is the subject of an investigation is incapacitated or incompetent, the Committee may require the licensee to submit to physical or mental examinations or both by one or more qualified persons selected or both, by such persons as the Board designates and, subject to subsection (2), may make an order directing the Registrar to suspend the license of the licensee until the licensee submits to the examinations.

 

70(2)          No order shall be made with respect to a licensee unless the licensee has been given

 

(b)               notice of the intention of the Committee to make the order, and

 

(b)          at least ten days to make written submissions to the Committee after receiving the notice.

 

70(3)          If a licensee fails to submit to an examination required under this section, the Discipline and Fitness to Practice Committee may order that the license of the licensee be suspended until the licensee submits to the examination.

 

70(4)          A legally qualified medical practitioner who conducts a physical or mental examination required under this section is not compelled to produce at the hearing his or her case histories, notes or any other records that may constitute medical evidence.

 

70(5)          A person who conducts an examination under this section shall upon completing the examination forthwith prepare and deliver to the Registrar a report that contains facts, findings and conclusions, if any.

 

70(6)          A report that is prepared as a result of an examination that is conducted under this section shall be delivered by the Registrar to the licensee

 

(a)          if the examination is required prior to the hearing, at least ten days prior to the commencement of the hearing; or

 

(b)          if the examination is required during the course of the hearing, at least five days prior to its introduction as evidence.

 

70(7)          A report that is prepared as a result of an examination that is conducted under this section is receivable as evidence without proof of its making or the signature of the person making the report.

 

70(8)          A party to the hearing who is not tendering a report as evidence has the right to summon and cross examine the person who made the report on the contents of the report.

 

Powers of the Discipline and Fitness to Practice Committee

71(1)          If the Discipline and Fitness to Practice Committee finds a licensee guilty of professional misconduct, incompetence or incapacity, it may by order do any of the following things or any combination of the following things:

 

(a)               revoke the license of the licensee;

 

(b)               suspend the license of the licensee for a stated period;

 

(c)               impose restrictions on the license of the licensee for a period and subject to the conditions specified;

 

(d)               reprimand the licensee;

 

(e)          order the licensee to repay a fee for service(s) charged to the client if applicable;

 

(f)               impose such fine as the Committee considers appropriate to a maximum of $10,000.00 to be paid by the licensee to the Registrar of New Brunswick for payment into the Consolidated Revenue Fund;

 

(g)          direct that the imposition of a penalty be suspended or postponed for the period and upon the terms specified; and

 

(h)          take such other action as the Committee deems appropriate.

 

71(2)                    Where the Discipline and Fitness to Practice Committee finds that a licensee is incompetent or incapacitated or has committed an act of professional misconduct, or any combination of them and makes an order, the Committee may, by order, do one or more of the following:

 

(a)          direct the Registrar to give public notice of any order by the Committee that the Registrar is not otherwise required to give under this Act; or

 

(b)          direct the Registrar to enter the result of the proceeding before the Committee in the records of the Board and to make the result available to the public.

 

71(3)                    Where the Discipline and Fitness to Practice Committee makes an order revoking a licensee's license, the Discipline and Fitness to Practice Committee may specify a period of time before which the person whose license is revoked may apply for a new license.

 

71(4)                    Where the Discipline and Fitness to Practice Committee finds that a licensee has committed an act of professional misconduct or is incompetent or incapacitated, the parties to the hearing and the licensee or the licensee's counsel may, before the penalty is determined, make submissions to the Discipline and Fitness to Practice Committee as to the penalty and the parties may, subject to the discretion of the Discipline and Fitness to Practice Committee, call further evidence in respect of the penalty.

 

71(5)          If the Discipline and Fitness to Practice Committee imposes a fine or reprimands a licensee, the Discipline and Fitness to Practice Committee may direct that the fine or the reprimand not be entered in the applicable register.

 

71(6)          If the Discipline and Fitness to Practice Committee is of the opinion that the commencement of the proceedings was unwarranted, the Discipline and Fitness to Practice Committee may order that the Board reimburse the licensee for the licensee's costs or such portion thereof as the Discipline and Fitness to Practice Committee fixes.

 

71(7)          If the Discipline and Fitness to Practice Committee revokes, suspends or restricts a License on the grounds of incompetence or incapacity, the decision takes effect immediately despite the fact that an appeal is taken from the decision, unless The Court of Queen's Bench of New Brunswick otherwise orders and, where the Court is satisfied that it is appropriate in the circumstances, the Court may so order.

 

71(8)          If the Discipline and Fitness to Practice Committee revokes, suspends or restricts a license on grounds other than for incompetence or incapacity, the order does not take effect until the time for appeal from the order has expired without an appeal being taken or, if taken, the appeal has been disposed of or abandoned, unless the Committee otherwise orders, and, where the Discipline and Fitness to Practice Committee considers that it is appropriate for the protection of the public, the Discipline and Fitness to Practice Committee may so order.

 

71(9)          If the Discipline and Fitness to Practice Committee finds a licensee guilty of professional misconduct, incompetence or incapacity, a copy of the decision shall be served upon the complainant, if any.

 

Examination of Evidence Before Hearing

72(1)          In proceedings before the Discipline and Fitness to Practice Committee, the Board and the licensee whose conduct is being investigated in the proceedings, are parties to the proceedings.

 

72(2)          A licensee whose conduct is being investigated in proceedings before the Discipline and Fitness to Practice Committee shall be given, at least ten days notice before the hearing is to take place

 

(a)          in the case of written or documentary evidence, an opportunity to examine the evidence;

 

(b)          in the case of evidence of an expert, the identity of the expert and a copy of the expert's written report or, if there is no written report, a written summary of the evidence; and

 

(c)          in the case of evidence of a witness, the identity of the witness.

 

72(3)          The licensee against whom allegations have been made shall give the Discipline and Fitness to Practice Committee at least ten days' notice before the hearing, in the case of evidence of an expert, the identity of the expert and a copy of the expert's written report or, if there is no written report, a written summary of the evidence that the licensee intends to introduce at the hearing.

 

72(4)          The Discipline and Fitness to Practice Committee may, in its discretion, allow the introduction of evidence that has not been disclosed under subsection (2) or (3) and may make such directions it considers necessary to ensure that the licensee or the Committee is not prejudiced, as the case may be.

 

72(5)          No member of the Discipline and Fitness to Practice Committee holding a hearing shall have taken part before the hearing in any investigation of the subject-matter to be brought before the hearing other than as a member of the Board considering the referral of the matter to the Discipline and Fitness to Practice Committee.

 

72(6)          No member of the Discipline and Fitness to Practice Committee shall communicate directly or indirectly in relation to the subject-matter of the hearing with any person or with any party or representative of a party except upon notice to and opportunity for all parties to participate.

 

72(7)          The Discipline and Fitness to Practice Committee may seek legal advice from counsel independent from the parties and, in such case, the nature of the advice shall be made known to the parties in order that they may make submissions as to the law or the opinion of counsel.

 

72(8)          The oral evidence taken before the Discipline and Fitness to Practice Committee shall be recorded and, if so required, copies of a transcript thereof shall be furnished only to the parties which cost shall be born by the requesting party.

 

72(9)                    Documents and items put in evidence at a hearing of the Discipline and Fitness to Practice Committee shall, upon the request of the person who produced them, be released to the person by the Discipline and Fitness to Practice Committee within a reasonable time after the matter in issue has been finally determined.

 

Costs

73(1)          A Discipline and Fitness to Practice Committee may make an order requiring a licensee who the Discipline and Fitness to Practice Committee finds has committed an act of professional misconduct or finds to be incompetent or incapacitated, to pay all or part of the following costs and expenses:

 

(a)          the Board's legal costs and expenses;

 

(b)          the Board's costs and expenses incurred in investigating the matter; and

 

(c)          the Board's costs and expenses in conducting the hearing.

 

73(2)          The costs and expenses payable under subsection (1) may be agreed upon by consent or taxed by the Registrar of The Court of Queen's Bench of New Brunswick as between solicitor and client on filing with the Registrar the order of the Discipline and Fitness to Practice Committee and on payment of the fees prescribed by the Rules of Court of New Brunswick and judgment may be entered for such taxed costs in Form 1 of this Act, with such modification as are necessary.

 

Reasons for Penalty Imposed

74                A Discipline and Fitness to Practice Committee shall give its decision, the reasons for its decision and the penalty imposed in writing and shall serve a copy of it on the parties and on the complainant, if any, along with a statement of the rights of the parties to appeal the decision to The Court of Appeal of New Brunswick.

 

Suspension Licensee

75                    Where a licensee fails to pay a fine or costs imposed under this part within the time ordered, the Registrar may, without notice to the licensee, suspend the license of the licensee until the fine or costs are paid and shall serve the licensee with notice of the suspension.

 

Violation of Order

76(1)          The Board, if it is satisfied that a licensee has violated or failed to comply with an order of any Committee, may without notice to the licensee, revoke or suspend the licensee's license.

 

76(2)          The Registrar shall send the licensee a written notice of the revocation or suspension.

 

77                Upon completion of any hearing, all Committees shall forward to the Registrar

 

(a)          the written decision of the Committee, and

 

(b)          the record of the hearing and all the documents and other things put into evidence.

 

78                A licensee whose license has been suspended or revoked shall immediately return his or her license to the Registrar.

 

79                An order of the Discipline and Fitness to Practice Committee under section 71 takes effect immediately or at such other time as the Discipline and Fitness to Practice Committee may direct, notwithstanding that an appeal has been taken from the order.

 

Judicial Review

80(1)          A party to the proceedings before the Discipline and Fitness to Practice Committee may seek review from the decision or order of the Committee to The Court of Appeal by way of Judicial Review and may apply to The Court of Appeal for a stay of the Committee's order pending the disposition of the Appeal and The Court of Appeal may make any order it considers appropriate.

 

80(2)          A review under this section shall be commenced within thirty days after the date of the decision or order.

 

80(3)          A review under this section shall be conducted in accordance with the Rules of Court of New Brunswick, where not inconsistent with the Act.

 

80(4)          On the request of a party to a review under this section and on payment by the party of any reasonable expenses related to the request, the Registrar shall provide the party with copies of part or all, as requested, of the record of the proceedings before the Discipline and Fitness to Practice Committee.

 

80(5)          A review under subsection (1) shall be founded upon the record of the proceedings before the Discipline and Fitness to Practice Committee and upon the Discipline and Fitness to Practice Committee's decision.

 

80(6)          On the hearing of a review under this section, The Court of Appeal may

 

(a)               affirm or reverse the decision or order of the Discipline and Fitness to Practice Committee;

 

(b)          refer the matter back to the Discipline and Fitness to Practice Committee, with or without directions; or

 

(c)               substitute its decision or order for that of the Discipline and Fitness to Practice Committee.

 

80(7)          The Court of Appeal may make any order respecting the costs of a review that it considers appropriate.

 

Reinstatement

81(1)          A person who has had terms, conditions and limitations imposed on his or her license or whose license has been suspended or revoked as a result of proceedings before the Discipline and Fitness to Practice Committee may apply to the Registrar in writing to have the terms, conditions and the limitations removed or the suspension removed or a new license issued.

 

81(2)                    Where a license has been revoked, a person shall not make an application under subsection (1) earlier than one year after the revocation if the Discipline and Fitness to Practice Committee has not specified a period of time.

 

81(3)                    Subsequent applications to the Registrar after an initial application for the removal of terms, conditions and limitations imposed on a licensee's license or for the removal of a suspension or the issuance of a new license shall not be made earlier than six months after any previous application under this section.

 

82(1)                    Subject to subsection (2), where the Registrar receives an application under section 81, the Registrar shall refer the application to the Discipline and Fitness to Practice Committee.

 

82(2)                    Where terms, conditions and limitations have been imposed on a license for a specified period of time and no specified criteria have been imposed or where a license has been suspended for a specified period of time and no specified criteria has been imposed, the Registrar may remove the terms, conditions and limitations or the suspension if the specified period of time has elapsed.

 

82(3)          A person who makes an application under section 81 shall provide the Discipline and Fitness to Practice Committee with such information as the Discipline and Fitness to Practice Committee may require in relation to the application.

 

82(4)          The Discipline and Fitness to Practice Committee may, with or without a hearing, with respect to a person whose application has been referred to the Discipline and Fitness to Practice Committee, make an order doing one or more of the following:

 

(a)               directing the Registrar to remove some or all of the terms, conditions and limitations imposed on the license;

 

(b)               directing the Registrar to remove the suspension;

 

(c)               directing the Registrar to issue a new license to the person; or

 

(d)               directing the Registrar to impose specified terms, conditions and limitations on the person's license if a direction has been given under paragraph (b) or (c).

 

General

83(1)          The Registrar shall forthwith enter into the records of the Board

 

(a)          the result of every proceeding before a Discipline and Fitness to Practice Committee that

 

(i)          resulted in the suspension or revocation of a license; or

 

(ii)          resulted in a direction under subsection 82(4) of the Act; and

 

(b)               where the findings or order of a Discipline and Fitness to Practice Committee that resulted in the suspension or revocation of a license or the direction are appealed, a notation that they are under appeal.

 

83(2)                    Where an appeal of the findings or order of a Discipline and Fitness to Practice Committee is finally disposed of, the notation referred to in paragraph (1)(b) shall be removed and the records adjusted accordingly.

 

83(3)          For the purpose of paragraph (1)(a), "result", when used in reference to a proceeding before a Discipline and Fitness to Practice Committee, means the Committee's findings, and the penalty imposed and in the case of a finding of professional misconduct, a brief description of the nature of the professional misconduct.

 

Records to be Made Available to Public

84                The Registrar shall provide the information contained in the records referred to in subsection 83(1) to any person who inquires about a licensee or former licensee

 

(a)          for an indefinite period if the licensee or former licensee was found to have sexually abused a patient; and

 

(b)          for a period of five years following the conclusion of the proceedings referred to in section 83 in all other cases.

 

85(1)          The Registrar, upon payment of a reasonable fee, shall provide a copy of the information contained in the records referred to in section 83 that pertain to a licensee or former licensee to a person who requests a copy.

 

85(2)                    Notwithstanding subsection (1), the Registrar may provide, at the Board's expense, a written statement of the information contained in the records in place of a copy.

 

Annual Report to Board

86                The Registrar shall submit a written report annually to the Board containing a summary of the complaints received during the preceeding year by source and type of complaint and the disposition of such complaints.

 

Board and Committee members Acting in Good Faith

87                No person shall commence any action or other proceeding for damages against the Board, or against a member, officer, employee, agent or appointee of the Board or a member of a Complaints Committee or Discipline and Fitness to Practice Committee for an act done in good faith in the performance of a duty or the exercise of a power under this Act, or a regulation or by-law made under this Act, or for the neglect, or default in the performance, or exercise in good faith of the duty or power.

 

To Effect Service

88(1)          Any notice or other document which is to be given to, filed with or served on the Board shall be sufficiently given, filed or served if it is delivered personally or sent by prepaid registered or certified mail to the Registrar.

 

88(2)          Any notice or other document which is to be given to, sent to or served upon any other person shall be sufficiently given, sent or served if it is delivered personally or if it is sent by prepaid registered or certified mail to

 

(a)          the last address of that person as reported to the Registrar, or

 

(b)          the address for service endorsed upon the notice of intention to appeal.

 

88(3)                    Service by prepaid registered or certified mail shall be deemed to be effected five days after the date the notice or other document is deposited in the mail.

 

Admissibility of Certificate of Registrar

89                A statement purporting to be certified by the Registrar under the seal of the Board which is a statement of information from the records kept by the Registrar in the course of the Registrar's duties, is admissible in Court or in any hearing under this Act as proof, in the absence to the contrary, of the information in it without proof of the Registrar's appointment or signature or the seal of the Board.

 

90                Any proceeding respecting the conduct or actions of a licensee that was commenced before this section came into force shall be dealt with and concluded as though this had not been enacted.

 

Retroactivity of Licenses

91                Any person lawfully carrying on business in the Province as an Embalmer, Funeral Director or Funeral Provider prior to the day of proclamation of this Act shall be entitled to obtain a license from the Board upon payment of the prescribed fee.

 

92                The Embalmers and Funeral Directors Act, chapter 64 of the Acts of New Brunswick, 1978, is hereby repealed.

 

93(1)                    Section 1 of the Pre-arranged Funeral Services Act, chapter P-14 of the Revised Statutes, 1973, is amended by repealing the definition "Board" and substituting the following:

 

"Board" means the Board for Registration of Embalmers, Funeral Directors and Funeral Providers appointed under the Embalmers, Funeral Directors and Funeral Providers Act;"

 

93(2)                    Subsection 3(2.1) of the Act is amended by striking out "Embalmers and Funeral Directors" and substituting "Embalmers, Funeral Directors and Funeral Providers".

 

FORM 1

IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

 

JUDGMENT

 

A Discipline and Fitness to Practice Committee having on the          day of                , 2      , ordered that                                      pay all or part of the costs of the Board for Registration of Embalmers, Funeral Directors and Funeral Providers on a hearing before the Discipline and Fitness to Practice Committee; and

 

The costs including disbursements of Board for Registration of Embalmers, Funeral Directors and Funeral Providers, having been taxed by the Registrar of The Court of Queen's Bench of New Brunswick on the          day of                , 2      ;

 

It is this day adjudged that the Board for Registration of Embalmers, Funeral Directors and Funeral Providers recover from   the sum of $                .

 

 

DATED this           day of                 , 2      .

 

 

 

_______________________________

Registrar

Court of Queen's Bench of New Brunswick