Double Check What Is Required. Lack Of Precision Can Cause Problems (Especially When Moving Dead Bod

A recent Ontario Superior Court decision illustrates how important it is to provide the proper information when required. The story begins 35 years ago when the father of the two plaintiffs died. He was buried in Winnipeg and all seemed well, for the next three decades.

In 2014 the Plaintiffs' mother died leaving instructions that she wished to be buried in Toronto and beside her late husband. The dutiful sons obtained a double burial plat and properly buried their late mother. They then started the process to exhume and move their father. The cemetery would not allow the exhumation and removal without the appropriate paperwork being an Certificate of Interment. When the Plaintiffs requested this, the religious organization who sold the burial plot wrote a letter stating where the burial plot was located, and the duration they would hold the plot. This latter fact created the impression that someone other than the Plaintiffs' late father might be buried beside their mother.

The cemetery in Winnipeg objected as the letter did not contain all the requisite information required by the Funeral, Burial and Cremation Act. A dispute arose between the Plaintiffs and the religious organization and the Plaintiffs sued. In what can only be described as overkill, they brought an injunction to prevent the burial of anyone else in the plot, registerd a Certificate of Pending Litigation on the plot (more on this later) and sued for breach of contract.

The court agreed with the Plaintiffs and found that the failure to provide the Certificate breached the terms of the sale of the plots. While the letter might have sufficed had it provided all the requisite information, it failed to do so. Specifically, the following information was missing: the name of the interment rights holder; the dimensions of the lot to which the interment rights relate; the date on which the interment rights are purchased; the amount paid by the purchaser for the interment rights; the amount deposited into the care and maintenance fund or account for the interment rights; and a statement that, if the interment rights holder resells or transfers the interment rights, the endorsed certificate must be returned to the operator before the operator is required to issue a new certificate.

The court awarded each of the Plaintiffs $10,000 for mental distress, being $20,000 in total for failing to double check what specific information was necessary and provide it.

The Lesson: if you are going to take a short cut and provide information in letter form, double check what is necessary. Failure to do so can be costly.

There are two further considerations to this case. First, a decision as to costs will likely negate any gain made by the Plaintiffs. The total award is $20,000 and the case should have been brought in the proper monetary jurisdication of Small Claims Court. As such, costs, if any, will likely be reduced to a negligible award.

Secondly, the issuance of a Certificate of Pending Litigation was, in this author's opinion foolish. Certificates of Pending Litigation are registerd on title to real estate to advise potential purchasers that the property is the subject of litigation. In a case such as a burial plot, such a certificate has no function as title is never searched with respect to burial.

Tsekhman v Spero et al, 2017 ONSC 1718 https://www.canlii.org/en/on/onsc/doc/2017/2017onsc1718/2017onsc1718.pdf

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