R.R.O. 1990, Reg. 468: COMPENSATION FUNDSkip to content
|revoked or spent July 1, 2012|
|February 11, 2011 – June 30, 2012|
|December 31, 1990 – February 10, 2011|
Funeral Directors and Establishments Act
Loi sur les directeurs de services funéraires et les établissements funéraires
R.R.O. 1990, REGULATION 468
Note: This Regulation was revoked on July 1, 2012. See: O. Reg. 32/11, ss. 9, 10.
Last amendment: O. Reg. 32/11.
This Regulation is made in English only.
1. In this Regulation,
“approved securities” means investments authorized under sections 26 and 27 of the Trustee Act;
“Committee” means the Compensation Fund Committee appointed by the Board;
“participant” means an operator of a funeral establishment or an operator of a transfer service who participates in the Compensation Fund;
“Trustee” includes any successor Trustee appointed under subsection 15 (7). R.R.O. 1990, Reg. 468, s. 1.
2. The compensation fund known as the Prepaid Funeral Services Compensation Fund is continued. R.R.O. 1990, Reg. 468, s. 2.
3. Except for the duties and responsibilities of the Trustee and the Board under this Regulation, the affairs of the Compensation Fund shall be managed by the Committee. R.R.O. 1990, Reg. 468, s. 3.
4. A member of the Committee is disqualified from participating and shall not participate in any deliberation or decision of the Committee with respect to any claim against a participant where the member is the participant or an officer or director of the participant or has a financial interest in the participant. R.R.O. 1990, Reg. 468, s. 4.
5. The situs of the Compensation Fund shall be in Ontario at all times and the property and interest comprising the Compensation Fund shall be held at all times by the Trustee in Ontario. R.R.O. 1990, Reg. 468, s. 5.
6. (1) The Committee may employ or retain or authorize the employment or retention of such counsel, accountants or other experts or advisors as it may reasonably require to assist in administering the Compensation Fund and the Committee may act and shall be protected where it acts in good faith on the opinion or advice of or information from any of them and shall not be responsible for any misconduct on the part of any of them.
(2) The Committee may, in its discretion, employ or authorize the employment of such persons to act as claims officers and clerks as it may reasonably require to assist in the efficient consideration and resolution of claims and operation of the Compensation Fund.
(3) All fees, costs and expenses incurred by the Committee in employing or retaining persons under this section shall be paid by the Trustee and shall be deducted first from the income of the Compensation Fund and in the event of any deficiency, from the capital of the Fund. R.R.O. 1990, Reg. 468, s. 6.
Payments from Participants
7. The capital of the Fund shall be composed of the payments of the participants contributed in the manner set out in section 8. R.R.O. 1990, Reg. 468, s. 7.
Payments by Participants
8. (1) Every operator of a funeral establishment that offers services to the public and every operator of a transfer service shall participate in the Compensation Fund.
(2) Each participant shall make an initial payment of $180 into the Compensation Fund at the time the participant applies for a licence.
(3) In addition to the initial payment, each participant shall pay a $5 levy into the Compensation Fund for each death registered under the Vital Statistics Act for which payment was required for funeral services or supplies or transfer services provided during the year by the participant, until the participant is notified by the Committee that the book value of the Compensation Fund is at least $1,000,000.
(4) The levy required to be paid each year under this section shall be for the period ending on the 31st day of October and may be paid in one instalment or two equal instalments as follows:
1. One payment after the 31st day of October and on or before the 31st day of December in that year.
2. One payment after the 31st day of October and on or before the 31st day of December in that year and one payment in the next year after the 30th day of April and on or before the 30th day of June.
(5) If the book value of the Compensation Fund is less or is anticipated to be less than $500,000 by reason of a proposed payment or payments by the Compensation Fund to one or more claimants, the Committee may in its discretion require each participant,
(a) to pay such additional amount in proportion to the amount of the levy that the participant is required to pay under this section, as the Committee determines is necessary to bring the level of the Compensation Fund up to at least $1,000,000; or
(b) to recommence paying the levy under subsection (3).
(6) Each participant shall pay the additional amount referred to in clause (5) (a) within twenty-one days of the notice of the required payment. R.R.O. 1990, Reg. 468, s. 8.
9. (1) All money received from participants or others under this Regulation and all income on any such money including any rights or benefits accruing from the investment of such money shall be held in trust for the benefit of such of the holders of claims as the Committee may from time to time in its discretion approve as provided in this Regulation and all such money and income shall constitute the Compensation Fund to be dealt with and distributed in accordance with this Regulation.
(2) The Committee shall maintain a record of payments or other amounts received from, on behalf of or in respect of each participant and all such payments or amounts shall be credited to a participant or participants and the Committee’s decision in respect of such crediting is final.
(3) No credit of a payment or amount to the Compensation Fund with respect to a participant gives the participant any right to that payment or amount or any part thereof.
(4) The Trustee, in accordance with the direction received from the Committee, shall keep the Compensation Fund invested in approved securities.
(5) The Trustee shall collect and receive all income from the Compensation Fund and shall, after deducting the fees, costs, charges and expenses referred to in section 17, invest the balance of the income in approved securities in accordance with the provisions of section 16.
(6) Records of all transactions referred to in this section with respect to the administration of the Compensation Fund shall be based on a fiscal year ending with the 31st day of October.
(7) A copy of the financial statements of the Compensation Fund certified by the Committee shall be delivered to each member of the Board and the Registrar within thirty days after the end of each fiscal year or as soon thereafter as is reasonably possible.
(8) The financial statements of the Compensation Fund shall include, where applicable, at least the following information:
1. The amount owing under this Regulation by any participant to the Compensation Fund that has not been paid when due.
2. The amount of all receipts and the sources thereof.
3. The amount of all payments on behalf of participants.
4. A statement of all receipts and disbursements for claims in respect of each participant who failed to meet an obligation or liability under this Regulation during the fiscal period to which the statements relate.
5. A statement of all credits and debits to the capital of the Compensation Fund.
6. A statement of all fees, costs, charges and expenses paid from the income or capital of the Compensation Fund or owing by the Compensation Fund for expenses incurred during that fiscal period.
7. Such other information in addition to that set out in paragraphs 1 to 6 with respect to the Compensation Fund as the Board or the Registrar may from time to time require.
(9) The Trustee shall provide a quarterly statement to the Committee of the assets of the Compensation Fund at book value and fair market value and a statement of any acquisitions and dispositions of investments during the quarter to which the statement relates.
(10) The financial statements of the Compensation Fund shall be available to any participant for inspection upon request during the regular business hours of the Board. R.R.O. 1990, Reg. 468, s. 9.
10. (1) The Committee, subject to subsection (8), shall pay compensation to a person who makes a claim in accordance with this section and who satisfies the Committee that the person has suffered a financial loss and has not otherwise been fully compensated because,
(a) a prepaid contract was cancelled and all the funds and income accrued thereon and owing to the person were not paid in accordance with section 34 of the Act;
(b) a prepaid contract was not fulfilled and as a result it was necessary for the person to obtain funeral services, funeral supplies or transfer services other than under the prepaid contract;
(c) a payment was not made to the person in accordance with section 35 of the Act; or
(d) a refund was not made to the person in accordance with section 36 of the Act.
(2) A claim for payment out of the fund may only be made,
(a) within six months of the event giving rise to the claim in the case of a claim under clause (1) (a), (b) or (d); or
(b) within six months of the date that the person could have reasonably been expected to have known that payment was due in the case of a claim under clause (1) (c).
(3) A claim may be made by a claimant giving written notice of the claim to the Registrar who shall give a copy of the claim to the Committee.
(4) The Committee may require as a condition precedent to making payment of a claim or any part thereof, the delivery and execution of such documents as the Committee in its discretion or upon the advice of its counsel considers necessary including such documents as are necessary for transferring to the Committee the interest of the claimant in such claim so as to subrogate the Committee to the position of the claimant against the participant.
(5) Despite subsection (2), if circumstances warrant it, the Committee may grant an extension of time for making a claim against the Fund and the decision of the Committee as to any such extension is final and not subject to review.
(6) The Committee shall determine the eligibility and the amount of any claim made by a claimant and shall direct the Trustee to pay any claim or any part thereof that meets the requirements of this Regulation and, subject to section 11, the decision of the Committee is final.
(7) No amount shall be paid out of the Compensation Fund until the claimant assigns to the Compensation Fund any judgment or other right of any kind that the claimant has against the participant or any other person in respect of the claimant’s claim.
(8) Despite subsection (6) and subsection 11 (4), the Trustee shall not pay out of the Compensation Fund, more than $25,000, exclusive of costs, to each claimant in respect of each transaction, for a claim or claims against any one participant.
(9) For the purposes of subsection (8), a partnership and the members thereof are deemed to be one participant and a corporation and the officers thereof are deemed to be one participant.
(10) If an amount is recovered from any source in partial satisfaction of the total claim against a participant, the maximum amount authorized by subsection (8) is reduced by the amount so recovered.
(11) If it appears to the Board or the Committee that a customer of a participant will be entitled to claim against the Compensation Fund, and that the customer has been placed in circumstances where immediate funds or service are necessary to alleviate undue inconvenience of the customer, the Committee, with the concurrence of the Board, may direct the Trustee to pay out of the Compensation Fund an amount sufficient to alleviate the immediate inconvenience.
(12) If a claim is approved by the Committee, the Trustee shall pay the claim out of the Compensation Fund to the person or persons entitled.
(13) If a payment is made out of the Compensation Fund, the Committee is subrogated for the amount of the payment, to any and all rights or remedies to which the person receiving the payment is entitled in respect of the claim for which the payment was made, including rights and remedies as judgment creditor or execution creditor in respect of any judgment that has been assigned under subsection (7) against the participant or any other person or in the event of the death, insolvency, bankruptcy or other disability of the participant or other person, against the personal representative or other person administering the estate of the participant. R.R.O. 1990, Reg. 468, s. 10.
Hearing by Tribunal
11. (1) If the Committee determines that a claim or any part thereof made under section 10 is not a proper claim, it shall serve notice of its decision together with written reasons therefor on the claimant.
(2) The notice of the Committee’s decision shall inform the claimant that the claimant is entitled to a hearing by the Tribunal if the claimant mails or delivers to the Registrar and the Tribunal within fifteen days after the notice is served on the claimant, notice in writing requiring a hearing.
(3) If a claimant who is served with a notice of the Committee’s decision does not require a hearing, the Tribunal shall not hold a hearing and the decision of the Committee is final.
(4) If a claimant requires a hearing before the Tribunal with respect to a determination of the Committee, the Tribunal shall appoint a time for and hold the hearing and, after affording the claimant an opportunity to be heard, may confirm the determination of the Committee or may set aside the determination of the Committee with respect to all or any part of a claim and direct the Trustee to pay the amount determined by the Tribunal.
(5) The claimant who requests the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section. R.R.O. 1990, Reg. 468, s. 11.
Termination of Participation in The Compensation Fund
12. A participant whose licence is voluntarily cancelled under subsection 22 (8) of the Act shall be deemed to be no longer participating in the Compensation Fund on the day that the licence is cancelled by the Registrar. R.R.O. 1990, Reg. 468, s. 12.
13. (1) If a participant fails to meet an obligation or liability under this Regulation, the Committee shall forward notice in writing of the failure to the participant.
(2) If a participant fails to meet an obligation or liability under this Regulation, the participant shall satisfy the failure within ten days from the date of the notice of the failure from the Committee.
(3) This section does not apply where the failure is due to insolvency, bankruptcy or a voluntary or compulsory winding up of a participant. R.R.O. 1990, Reg. 468, s. 13.
14. A licensee who ceases to participate in the Compensation Fund shall file with the Committee and the Registrar such financial statements and other evidence as the Committee in its discretion requires to establish that the affairs of the licensee are settled and that there are no claims on the Compensation Fund and that arrangements satisfactory to the Committee have been made to ensure that all liabilities and obligations of the licensee that could give rise to any such claim have been met and discharged. R.R.O. 1990, Reg. 468, s. 14.
15. (1) The Committee shall, with the approval of the Board, appoint a trust corporation registered under the Loan and Trust Corporations Act as the Trustee.
(2) The Trustee shall not be required to give any bond or other security for the performance of its duties and shall not be responsible for any diminution in the funds, securities or property of whatever character constituting part of the Compensation Fund or any loss resulting from the making of any investments or from the retention in good faith for any length of time of securities or other property of whatsoever character purchased or acquired by it, despite the fact that the securities or property may not be income producing, or from any mistake in judgment made in good faith or from any loss of whatsoever character unless resulting from its own fraud, negligence or wilful misconduct.
(3) The Trustee may act upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, letter, telegram, cablegram or other paper or document believed by it on reasonable grounds to be genuine and to have been signed, sent or delivered by or on behalf of the proper party or parties.
(4) The Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of discharging its duties under this Regulation and may act on the opinion or advice of or information obtained from any of them and shall not be responsible for any misconduct on the part of any of them.
(5) The Trustee may at any time resign as Trustee by giving ninety days notice in writing to the Board.
(6) The Committee or the Board may at any time require the removal of the Trustee on giving ninety days notice in writing to the Trustee.
(7) Upon the resignation or removal of the Trustee or where the Trustee is at any time unable to act, the Committee, with the approval of the Board, shall appoint another trust corporation registered under the Loan and Trust Corporations Act as a successor trustee and the corporation upon acceptance of such appointment shall, subject to subsection (8), have vested in it without further act or formality, all rights and powers given under this Regulation to the Trustee who resigned, was removed or was unable to act.
(8) Upon the written request of the Committee, the Trustee ceasing to act shall execute and deliver an instrument in writing transferring to the successor Trustee all the rights, powers and Compensation Fund assets reposing in or with the Trustee ceasing to act and shall do all such other acts or things necessary or desirable for the vesting of the Compensation Fund assets in the successor Trustee.
(9) A Trustee ceasing to act shall render to the Board and to the Committee an account of its administration. R.R.O. 1990, Reg. 468, s. 15.
16. (1) The Trustee, in the administration of the Compensation Fund, shall have power and authority to,
(a) invest and reinvest the Compensation Fund in approved securities and may do all acts and things and execute, acknowledge and deliver all instruments in respect thereof;
(b) hold in the form of cash awaiting investment or other application hereunder any portion of the Compensation Fund and may hold the cash in any deposit or current account operated by the Trustee;
(c) sell, convert, assign, exchange, transfer or otherwise dispose of any approved securities at any time constituting part of the Compensation Fund at public or private sale for such consideration and upon such terms and conditions as the Trustee sees fit;
(d) vote in person or by proxy with respect to any approved security constituting part of the Compensation Fund;
(e) exercise personally or by general or limited power of attorney any right appurtenant to any approved securities or to any other property held by it at any time;
(f) join in or dissent from and oppose the reorganization, redistribution, consolidation, merger, liquidation or sale of corporations or properties whose securities are held by the Compensation Fund;
(g) exchange approved securities for other securities issued in connection with or resulting from a reorganization and retain such securities;
(h) exercise or sell any rights issued upon or with respect to any approved securities;
(i) register any approved security or other property held by it in its own name or in the name of a nominee with or without the addition of words indicating that such securities are held in a fiduciary capacity;
(j) do any act in addition to those referred to in clauses (a) to (i) with respect to any property in the Compensation Fund necessary to protect the investment of the Compensation Fund.
(2) The Trustee shall ensure that its books and records clearly identify all approved securities and property howsoever held by it that are part of the Compensation Fund. R.R.O. 1990, Reg. 468, s. 16.
17. (1) The Trustee’s fee for performing its duties under this Regulation shall be such as may be mutually agreed upon between the Board and the Trustee.
(2) In addition to the fee referred to in subsection (1), the Trustee is entitled to be reimbursed for any and all costs, charges and expenses reasonably incurred by the Trustee in the performance of its duties under this Regulation.
(3) All fees, costs, charges and expenses and the expenses directed to be paid by the Committee shall be deducted first from the income of the Compensation Fund and in the event of any deficiency in the income of the Compensation Fund from the capital of the Compensation Fund. R.R.O. 1990, Reg. 468, s. 17.
18. The Committee shall notify the Registrar forthwith of any failure by a participant to meet an obligation or liability under this Regulation or of any claim made in respect thereof. R.R.O. 1990, Reg. 468, s. 18.
19. The Trustee shall furnish the Committee with all information, records and documents in its possession in connection with this Regulation and its administration of the Compensation Fund as the Committee may from time to time reasonably request. R.R.O. 1990, Reg. 468, s. 19.
20. No payment shall be made out of the Compensation Fund to satisfy or settle any claim or judgment or other court order resulting from the fraud, negligence or wilful misconduct of the Trustee. R.R.O. 1990, Reg. 468, s. 20.
21. (1) The Committee shall, when required by the Minister, provide to the Minister such information, books, records or documents respecting the affairs of the Compensation Fund as the Minister may specify from time to time.
(2) The Board may, where it considers it advisable, direct that the affairs of the Compensation Fund be audited and the Committee shall assist the Board in performing such an audit and shall provide all books and records and other information as may be required in connection therewith. R.R.O. 1990, Reg. 468, s. 21.