Document generated on 09/28/2021 6:31 p.m.

Ontario History

The Cooperative Memorial & Removal Services vs. The Board of Funeral Services How A Memorial Society Changed Ontario’s Funeral Industry Eleanor Dolores Dickey

Volume 111, Number 2, Fall 2019 Article abstract In a test case that the attorney general of Ontario considered of province-wide URI: https://id.erudit.org/iderudit/1065083ar importance, a small group of citizens in , who had formed a burial DOI: https://doi.org/10.7202/1065083ar cooperative, took on the province’s funeral industry in the courts in the early 1980s. The resulting judgement fundamentally changed how the industry See table of contents operated in the province of Ontario.

Publisher(s) The Ontario Historical Society

ISSN 0030-2953 (print) 2371-4654 (digital)

Explore this journal

Cite this article Dickey, E. D. (2019). The Cooperative Memorial & Removal Services vs. The Ontario Board of Funeral Services: How A Memorial Society Changed Ontario’s Funeral Industry. Ontario History, 111(2), 195–211. https://doi.org/10.7202/1065083ar

Copyright © The Ontario Historical Society, 2019 This document is protected by copyright law. Use of the services of Érudit (including reproduction) is subject to its terms and conditions, which can be viewed online. https://apropos.erudit.org/en/users/policy-on-use/

This article is disseminated and preserved by Érudit. Érudit is a non-profit inter-university consortium of the Université de Montréal, Université Laval, and the Université du Québec à Montréal. Its mission is to promote and disseminate research. https://www.erudit.org/en/ 195 The Cooperative Memorial & Removal Services vs. The Ontario Board of Funeral Services How A Memorial Society Changed Ontario’s Funeral Industry*

by Eleanor Dolores Dickey

ords are important. As build- judgment led to signi cant changes in ing blocks of our stories and the Ontario funeral industry. songs they narrate events and Caring for the dead, in a ceremonial playW on our emotions, and, carefully de- manner, dates back to the earliest human ned, can have surprising repercussions. cultures. rough time, this work be- is was never truer than in the early came the role of undertakers, morticians 1980s in under Bay, Ontario, during and/or funeral directors, who adapted a confrontation between a small group their business practices to meet public of local citizens, who had formed a bur- needs and expectations. No one ques- ial cooperative, and the Ontario funeral tioned the fact that when death occurs industry. is story, like all good stories, someone must care for the body, almost involved a problem to be solved, action immediately, but in the United States, and reaction that advanced the plot, and in the 1930s, the cost of funeral services a resolution. As the players in the drama became a matter of debate. Funeral pric- consolidated their positions, the events es were presented as the cost of a casket led to a local court case, an appeal of the only; other services that were necessary decision, and a nal judgment from the might not be discussed. People who Ontario Court of Appeal. To everyone’s would normally comparison shop before surprise, the outcome of the case rested making a large expenditure, oen avoid- on the meaning of a single word, and that ed thinking about a funeral as a commer-

* e Memorial Society of under Bay (MSTB) Minutes and Papers (1964-2003) are located at the under Bay Historical Museum. References to Cooperative Memorial & Removal Services (Co-op) can be found at the Northwest Funeral Alternative (NFA), the new name for the Co-op. A version of this arti- cle appeared in the pages of the under Bay Historical Museum Society Papers & Records (2008).

Ontario History / Volume CXI, No. 2 / Autumn 2019

OH inside pages autumn 2019.indd 195 2019-08-29 11:12:22 PM 196 ONTARIO HISTORY

e American Me- morial Society high- Abstract lighted the desire for In a test case that the attorney general of Ontario consid- simplicity in funeral ar- ered of province-wide importance, a small group of citizens rangements and the idea in under Bay, who had formed a burial cooperative, took spread quickly aer the on the province’s funeral industry in the courts in the early 1980s. e resulting judgement fundamentally changed Second World War. e how the industry operated in the province of Ontario. rst Canadian Memorial Society formed in Mon- Résumé: Au début des années 1980, un cas de jurispru- dence considéré d’importance provinciale par le procureur treal in 1955. Winnipeg, général de l’Ontario opposait un petit groupe de citoyens Edmonton, , de under Bay ayant formé une coopérative funéraire à and Ottawa organized in l’industrie des salons funéraires. La décision de la cour a the late 1950s. Between radicalement changé la manière dont fonctionne ce secteur 1971 and 1987, an um- dans la province. brella group, the Memo- rial Society Association of Canada (MSAC), had cial transaction. Aer the service, they enrolled 200,000 paying members.4 e might have second thoughts about the British Columbia society was the larg- cost, but the money had been spent. est in North America in 1971.5 Industry e Memorial Society (MS) move- opponents of simpli ed funeral arrange- ment, established in the United States ments were forced to realize that public in 1939,1 reacted to funeral prices and demands for change were fueling the suc- excessive ceremony by stressing preplan- cess of the Memorial Society movement. ning in terms of dignity, simplicity and Books and magazine articles kept the dis- moderate expense. Local memorial so- pute before the public. cieties negotiated terms for prearranged Organizing a Memorial burials. e funeral industry saw this as an intrusion on their prerogative of Society “educating the public in the right paths”.2 he memorial society committee that Almost forty years later, in 1979, the edi- Torganized in under Bay in 1971, tor of Canadian Funeral Director echoed inherited reference books and papers those words.3 from the Lakehead Unitarian Fellow-

1 MSTB misc. le 1972., e Progressive, Madison Wisconsin 1961, “e high cost of dying”; Matu- rity, June – July 1974 , “Funerals that make sense”. 2 Ibid, Maturity. 3 MSTB misc. le 1979, Canadian Funeral Director, January 1979, “Life with MS”. 4 MSTB misc. le 1972, Inventory of Memorial Society of Canada fonds, in Inventory #FO355, York University Archives and Special Colections. 5 Ibid., Dr. Philip Hewitt, “e Memorial Society of B.C.: a glance at its early history”.

OH inside pages autumn 2019.indd 196 2019-08-29 11:12:22 PM a memorial society vs the funeral industry 197

ship’s 1963 attempt to establish a mor- needed to register a death, and a place to tuary society.6 e steering committee write personal wishes for a memorial ser- members7 expected to follow the usual vice. Completing the printed form would Society pattern of developing a member- provide a valuable framework for a fam- ship that supported the goals of dignity, ily discussion about death and funerals. simplicity, and moderate expense in fu- A member could then visit a cooperating nerals through advance planning on a funeral home, discuss arrangements in nonpro t, voluntary basis. ey assumed advance of need, and leave a copy of the that the newly formed society would ne- form. e family kept a copy and led the gotiate a contract with one or more of third copy with the Memorial Society. the local funeral homes to provide mem- e steering committee organized its bers with a simple burial service. rst public meeting on 7 February 1972, e ‘Type A’ basic service would ar- to announce its action plan and gauge range for the removal of the deceased community interest in a Memorial So- from the place of death, and would ciety. ose in attendance showed sup- provide an inexpensive container for port for the plans, listened attentively to the body. ere was to be no embalm- a presentation by an executive member of ing or cosmetic restoration. e funeral the Toronto Memorial Society and end- home sta would complete the legal ed the evening with a spirited discussion paper work and transport the body to a about funeral practices.8 cemetery, or crematorium. e ‘Type B’ Encouraged by the enthusiasm basic service would include additional shown at this meeting, committee mem- elements, selected from a funeral home’s bers scheduled appointments to discuss itemized price list. Family members were a contract at each of the four under to be free to arrange a memorial service Bay funeral homes.9 It quickly became at a time and place of their choosing, or apparent that under Bay was dierent omit a service, if that was their prefer- from other cities. No local funeral direc- ence. tor would negotiate; each encouraged Each Memorial Society member people, who wished to pre plan, to make would receive a designation form that an appointment with the funeral home had space to record the vital statistics of their choice. Undeterred, the commit-

6 Ibid., Minute Book of the Lakehead Unitarian Fellowship (LUF), 1963-65. Members were: Cecil Blair, Jack Elwert, Marion Julien, A.W. Kallio, George Love, Walter Marcyniuk, Neil Markus, Prue Mor- ton, Mr. & Mrs, M. Redfern, William Sunam, R.H. Reynolds, Don Salo and Bob Stennett. 7 MSTB le 1971. First Steering Committee members were: Annette Augustine, Dr. John Augustine, Georhe Breckenridge, Nan Ernewein, Pam Hunt, Batt Lie, Arne Lie, Rev. Keith Lingwall, Rev. Ken Mof- fatt and Catherine Tett. 8 MSTB le 1972, Newsletter, February 1972. 9 In 1971 the funeral homes in under Bay were: Blake Funeral Chapel, Everest of under Bay, Jenkens Funeral Home and Sargent & Son, Ltd.

OH inside pages autumn 2019.indd 197 2019-08-29 11:12:22 PM 198 ONTARIO HISTORY

tee mailed a membership form to 135 cooperative: “investigate the possibility... people. Many became members and were of a cooperative funeral parlor, a commit- among the sixty people who attended tee could be composed of representatives the rst under Bay Memorial Society of various segments of the community, (MSTB) meeting, 5 June 1972.10 the initial fundings could be based upon e newly elected board of directors shares and memberships.”13 dealt with its rst challenge in August 1972, when the father of a board mem- Legislation Pending ber died. Family members wished to have ociety volunteers used every opportu- his body own to Sault Ste. Marie for Snity to educate the public about the cremation. e rst funeral home they anti-consumer aspects of funeral practic- contacted claimed that the body could es and prices, and board members tried not be sent by air but must be transport- to obtain copies of the legislative changes ed by road, at considerable expense. e being proposed for the funeral indus- MSTB executive members knew that try. Rumour indicated that regulations some of the information was not accu- would be tightened so that only licensed rate. e family chose a dierent local fu- funeral directors could arrange for the neral home which provided the services disposition of the deceased. Memorial requested.11 Societies were concerned that this mo- is experience gave the board an im- nopoly position would make it increas- mediate incentive to establish a commu- ingly dicult for people to choose a sim- nity education program using newspaper ple funeral at moderate expense. Board ads, discussion panels on the community member, the Rev. G. Daly, in a letter to TV channel, and small group meetings.12 the editor, asked if it was morally justi- e board commissioned a survey to dis- able to spend a lot on funerals. He felt cover attitudes to funerals, especially the that changes in the law would force con- wishes and concerns of seniors. One of sumers to “go through expensive chan- the ve recommendations in the survey nels that have been set up in a very lucra- report contained the rst mention of a tive business.”14 But he also constantly

10 MSTB le 1972, Report of the First Annual MSTB Meeting, 5 June1972. Executive committee members were: President, Batt Lie; Vice President, Jack McLean; Treasurer, Olav Sundland; Secretary, Catherine Tett; Recording Secretary, Ellen Taylor; Membership Registrar, Dorothy Tarbet; Publicity, Webb Twinem;. Members at Large: Rev Gordon Daly, Sharon Merits and David Smith. Members of the Advisory Committee: Dr. John Augustine, M. Hastings, Dr. N. Mcleod, Rev. Ken Moatt, S. Lukinuk. Auditor; Erie Gowen. 11 MSTB Binder, vol 1, Lucy Tett to Elly Elder, 9 September 1972. 12 MSTB le 1972, local newspaper ads, “Does the High Cost of Dying Oend You?”, “Do You ink is Way About Funerals?” 13 MSTB le 1973, “Action Research – Survey Results”, in Action Research Project 1973. 14 MSTB Binder, vol 1, Rev. G. Daly to MSTB, 4 March 1975.

OH inside pages autumn 2019.indd 198 2019-08-29 11:12:22 PM a memorial society vs the funeral industry 199

Eric Gowen, a member of the under Bay Memorial Society board of directors since the early 1970s, was the Society’s principal advocate and public face throughout its long struggle with the funeral industry. Photo cour- tesy of the author.

were oen reported in the press. Eric Gowen, board president in 1975, in a let- ter to the editor stated: “Memorial Soci- ety members opt for a simple service that costs as little as $235 in some places.” e average cost of a funeral that year was $600. Gowen wrote that the dierence in cost “would be better spent on a char- ity or given to medical research.”17 Gowen, a member of Wesley United Church, had joined the Memorial Soci- ety board as treasurer in 1973. In March, 1974, his article in the Wesley uarterly drew attention to the simplicity of burial reminded the board members that their practices in many denominations. He en- goal was to enlist the understanding and couraged the United Church to reissue cooperation of funeral directors.15 its 1956 pamphlet On Christian Burial In 1975, Canadian Funeral Director which had stressed simplicity in funeral acknowledged “the success of Memorial arrangements. e United Church did Societies and ways that the funeral in- not reprint it but he had it retyped and dustry might combat nontraditional fu- printed for Wesley members. nerals.”16 At the same time, the under Gowen’s concern about the pro- Bay membership was growing steadily. posed new funeral legislation and his New board members tried repeatedly to frustration with the under Bay situa- overcome the intransigence of the local tion found a sympathetic hearing in the funeral directors, while volunteers were political arena. As Public Relations Of- always ready to assist people in preparing cer of MSAC,18 he presented a brief, their designation forms, and to listen to stressing the anti-consumer parts of the stories and complaints about experiences proposed new regulations, to the third in arranging funerals. Society activities caucus meeting

15 Letter to the editor, Chronicle Journal, 15 November 1975. 16 MSTB 1975, Minutes le. Article in Canadian Funeral Director attached to Minutes of meeting, 28 March 1975. 17 E. Gowen to Editor, Chronicle Journal, 31 October 1975 18 Chronicle Jourrnal, 9 July 1976.

OH inside pages autumn 2019.indd 199 2019-08-29 11:12:22 PM 200 ONTARIO HISTORY

in under Bay in Sep- the question of embalm- tember 1976.19 MSAC ing by passing a motion sent a similar brief to that all bodies received the Liberal Party in No- at the crematorium, af- vember, but these eorts ter 10 January 1977, were too little and too must be embalmed. late to aect the legisla- e board had adopted tion. this idea, used in other On 26 November Ontario centres, in con- 1976, the Ontario Gov- sultation with local un- ernment introduced Bill dertakers.21 At this time, 171, Funeral Services Ontario law required Act 1976, with little ad- forty-eight hours to vance notice. It was ap- elapse before cremation. proved in principle on 8 Bodies had been held at December 1976. When the hospital or between Gowen complained the hospital and the about the lack of time to crematorium, without study Bill 171, Premier embalming, during this Davis assured him that waiting period. Now all there had been adequate bodies would have to be Despite Premier ’s soothing consultation. Davis also words, the Funeral Services Act of 1976 cre- removed by a licensed stated: “It should be ated uncertainty about the simple removal funeral director and em- noted that funeral di- and burial of and unembalmed body. balmed, regardless of a rectors are required to Photo: under Bay Chronicle Journal. family’s wish. is new provide a simple disposal if requested Riverside Cemetery rule would prevent to do so.”20 is le memorial societies anyone, not just MSTB members, from uncertain about the simple removal and arranging for a ‘Type A’ or ‘Type B’ ba- burial (or cremation) of an unembalmed sic service. e ruling was not always en- body. Such a minimal service was oen forced.22 called a convenience service; the word ‘disposal’ presented a less attractive im- Founding a Cooperative age when a funeral director was discuss- n response, Gowen, and other MSTB ing arrangements with a client. Imembers, began a serious study of a A decision by the board of under cooperative as a means to provide a ba- Bay’s Riverside Crematorium resolved sic service without breaking the Funeral

19 MSTB, “Briefs to Ontario Legislature and Political Parties” le. 20 NFA Archives, vol 1. Letter of Premier Davis, 9 February 1977. 21 Ibid., Riverside Shareholders’ Meeting, 6 February 1977. 22 Ibid., P. Bolt obituary and letter, 7 May 1977.

OH inside pages autumn 2019.indd 200 2019-08-29 11:12:22 PM a memorial society vs the funeral industry 201

Services Act 1976. e term ‘basic ser- Eric Gowen, Donald Prodanyk, Melvin vice’ would oer members direct burial Redfern and Lucy Catherine Tett to sign or cremation without the use of a funeral the application forms to register Cooper- home, with no embalming or cosmetic ative Memorial & Removal Services Inc. restoration of the deceased. on 6 June 1978.25 While interested Society members e ve signatories realized that explored the details of such a service, their proposal might be rejected. A the board invited Mr. Farand, manager month before they mailed the forms, of the cooperative Funeral Home of they had received a letter from the legal Sudbury, to be the guest speaker at the department of the Ontario Ministry of Society’s Annual Meeting in September Health stating that the plan would be a 1977. Representatives of the four local violation of the Funeral Services Act. A funeral homes were in the audience, as copy of that opinion had gone to the Co- was Mr. Donald Steenson, Registrar, On- operative Services Branch, Ministry of tario Board of Funeral Services (OBFS), Consumer and Commercial Relations.26 Toronto, to hear Mr. Farand describe the e decision was based on the interpreta- successful operation of the Sudbury Co- tion of the Funeral Services Act that only operative. licensed funeral directors could serve the In April 1978, the under Bay fu- public. Although Gowen recognized the neral directors again rebued the Socie- Health Department’s position, he con- ty’s approach for a contract, disregarding tinued to research the legality of a coop- the Canadian Funeral Director caution erative. At the Ontario Memorial Soci- that “e arrogance of the funeral di- ety’s conference in September 1978, he rectors in Vancouver [caused] their own asked Mr. Gaylord Watkins, Chairman downfall.... ey refused to serve Memo- of the Board of the Public Interest Advo- rial Society members... in this manner cacy Centre in Ottawa, for his views on they thought they could stop the Memo- the legal questions involved.27 rial Society.”23 Gowen’s personal regis- Mr. Watkins, co-author of the 1973 tered letter requesting a meeting with the Neilson Watkins Report (Proposals for funeral directors was rejected, although Legislative Reform Aiding the Con- one establishment did oer him a ‘Type sumer of Funeral Industry Products and A’ service free of charge.24 is last failure Services) was an expert on Funeral legis- to negotiate encouraged Eugenie Curtis, lation.28 He considered the under Bay

23 “A Look at Funeral Trends”, Canadian Funeral Director, February 1978. 24 NFA Binder, vol 2, letter of 17 April 1978. 25 Ibid., copy of registration form, 6 June 1978. 26 Ibid., letter of Ontario Ministry of Health, 7 May 1978. 27 MSTB le 1978, Ontario MS Regional Meeting at Bolton, Ontario, 29 September 1978. 28 Mr. Watkins, an Ottawa lawyer employed by the Law Reform Commission of Canada, was a mem- ber of the team that prepared the Neilson Watkins Report (Proposals for Legislative Reform Aiding the

OH inside pages autumn 2019.indd 201 2019-08-29 11:12:22 PM 202 ONTARIO HISTORY

situation a priority, and requested copies of Canada. of all correspondence. He felt that the 3. Make it mandatory for funeral di- Funeral Services Act 1976 did not clearly rectors to provide an itemized price list de ne what was meant by funeral servic- of supplies and services to the purchaser. es. At the time, no one realized that the 4. Embalm a body only if it is speci - de nition of the word ‘funeral’ would cally requested by the purchaser, or if the later become very important. body needs to be transported out of the e funeral industry’s concern about province. new public attitudes was news,29 and the 5. Funeral directors would no longer January 1979 Canadian Funeral Direc- have the exclusive right to provide re- tor editorialized that it was time to nd moval services and funeral supplies.30 common ground with memorial socie- e Bill was defeated but a funeral ties. At the Legislature, Jim Foulds, NDP trade magazine wrote that this was an member for Port Arthur, submitted a pri- attempt “to introduce into Ontario, the vate member’s bill to amend the Funeral same sort of harsh restrictions which the Services Act 1976. His proposals were [American] Federal Trade Commission an attempt to reform the Act to provide has been trying to foist on American consumer protection. e amendments, Funeral Service.”31 e July/August Ca- however, would have upset the monopo- nadian Funeral Director remarked: “Mr. ly position enjoyed by the funeral indus- Foulds represents an area that is a hotbed try. e changes would: of discontent when it comes to funeral 1. Move responsibility for the Act service.”32 from the Ministry of Health to the Min- e publicity about funeral reform istry of Consumer and Commercial Re- was slight comfort to those who had wait- lations. ed almost a year for the Co-op registra- 2. Increase the number of consumer tion papers. e Legal Branch, Ministry representatives on the Board of Funeral of Health, con rmed again that the co- Services, including a representative of the operative would be breaking the law even Ontario Region of the Memorial Society though “it restricted its oering of funeral

Consumer of Funeral Industry Products and Services) in 1973. A. W. Neilson was a law professor at York University. MSAC, headquartered in B.C. at that time, commissioned the study in conjunction with its United States counterpart, the Continental Association of Funeral and Memorial Societies, with the pur- pose of “preparing a Model Act for funeral services in our country”, Canadian Funeral Director, February 1974: MSTB le 1974, Briefs to the Ontario Government; NFA, vol 5. 29 MSTB le 1979, Press reports, January to March 1979: Toronto Globe and Mail, “Woman’s At- tempts to Rearrange Funeral Led to Frustration, Complaints to the Board”; Macleans, “Florists Losing Business”; Chronicle Journal, an article concerning a mortician in Trail B.C. and cremation containers cov- ered with reusable wooden shell; Times News, several articles and Letters to the Editor. 30 Ibid., New Democratic Party press release, 17 April 1979. 31 Ibid., Casket & Sunnyside, July/August 1979. 32 Ibid., Newsletter, December 1979

OH inside pages autumn 2019.indd 202 2019-08-29 11:12:22 PM a memorial society vs the funeral industry 203

Jim Foulds, NDP member for Port Arthur, seen here in the early 1980s, submitted a private member’s bill to amend the the 1976 Funeral Services Act to provide consumer protection. Photo: under Bay Histori- cal Museum Society.

services and sup- plies to its mem- bership.”33 But eight days later a letter from Corporate and Consumer Relations stated “your certi - He wanted the Co-op to plan its rst ba- cate of incorporation will be issued within sic service with a family that would agree the next few days. I understand that you to allow the event to become a test case. have also received communications from e decision of a court would determine the Ministry of Health outlining the re- if Section 5 (1) [Funeral Services Act quirements of the Funeral Services Act 1976] had been contravened.36 as they may apply to the Cooperative.”34 e Co-op directors decided that e Co-op charter, dated 18 May 1979, such a trial would involve lengthy de- appeared to be a mixed blessing if the Co- laying tactics by the industry. ey were op’s operation would be breaking the law.35 con dent that, if prosecuted, they could Not all Ontario memorial socie- rely on a double membership to avoid ties supported the idea of a Co-op that breaking the funeral industry regulations, might be prosecuted for breaking the law because only Memorial Society members since a guilty verdict, and the publicity could become Co-op members. e Co- surrounding it, might damage the coop- op would provide services only to its own eration that others had achieved with the members and not to the general public. funeral industry. Mr. N. Schultz, a lawyer Co-op members also signed a member- with the Public Interest Advocacy Cen- ship form that stated a rejection, in prin- tre had proposed a dierent approach. ciple, of the embalming and cosmetic

33 NFA vol. 3, “Opinion on proposed incorporation”, Ministry of Health, 9 May 1979. 34 Ibid., letter of Ontario Ministry of Consumer and Corporate Aairs, 17 May 1979 35 Ibid., Registration con rmation, 18 May 1979. 36 Ibid., E. Gowen to Steven W. Lukinek, 14 November 1980.

OH inside pages autumn 2019.indd 203 2019-08-29 11:12:23 PM 204 ONTARIO HISTORY

restoration of dead bodies. ey wanted answer the phone from 9 to 5, Monday direct cremation or burial. e directors to Friday.38 Gowen informed Mr. Shultz were also relying on the fact that no lo- that, in the opinion of Mr. Lukinuk, the cal funeral home would stock the com- lawyer who had helped MSTB with its bustible corrugated cremation container incorporation, “It would be a foolish they would use.37 e simplest container attorney-general who would... prosecute stocked by the funeral homes was a gray a bunch of do-gooders up in under cloth covered wooden casket. Bay.... e group will not be serving the ese assumptions were enough public, but only people who are members for the Co-op directors and volunteers, of both MSTB and the Co-op.”39 without experience or professional sup- ere were 134 Co-op members port, to organize the nonpro t business when MSAC met for its National Con- during the summer months of 1979. vention at Avila Centre in under Bay ey were prepared to assist Co-op mem- on the weekend of 8 June 1980. Del- ber families by removing the deceased, egates represented 85,000 Canadian completing the paper work necessary to MS members.40 Following the successful register the death, and arranging for di- convention, everyone seemed ready for a rect burial or cremation. e work was quiet summer. It was the calm before the to be done by volunteers, and the cost storm. to a member was a fee set by the direc- On 30 June 1980, the daughter of tors to cover the business operating costs a Co-op/Memorial Society member and the charges of the crematorium or phoned Gowen; her father had been cemetery. e family was to be responsi- found dead beside his bed. Gowen went ble for arranging a memorial service and to the residence, met with family mem- no Co-op volunteer could help with the bers, one of the executors, and the coro- planning of a ceremony. Only licensed ner, who told him to pick up the medical funeral directors could organize a tradi- and coroner’s certi cates the next day. tional, ceremonial funeral service and no Gowen le to arrange for the storage of Co-op volunteers had such a license. the body for the 48-hour waiting period At the rst ocial board meeting, before cremation and, during his absence, 12 September 1979, the directors estab- someone at the house called a funeral di- lished an oce on James Street in un- rector to come for the body and await der Bay and planned to have a volunteer instructions.

37 Ibid., E. Gowen to J.D. Campbell, 10 September 1979 38 Ibid., Co-op Minute Book, September 1979 to December 1983: rst board meeting, 12 September 1979 . e rst Board of Directors members were : Mel Redfern, Eugenie Curtis, Patton Brown, Louise Chmarny, Eric Gowen and Donald Prodanyk. 39 Ibid., letter to N.J. Schultz, 30 November 1979 40 Ibid., Press releases, Newspaper accounts, June 1980.

OH inside pages autumn 2019.indd 204 2019-08-29 11:12:23 PM a memorial society vs the funeral industry 205

Both Eric Gowen and MPP for Fort William Mickey Hennessy (right) lobbied Ontario’s Min- ister of Health Dennis Timbrell (le) for changes to the Funeral Services Act. Photos: under Bay Chronicle Journal.

e family members resolved their Dennis Timbrell, Minister of Health, dierences and asked Gowen to inform Gowen emphasized that he was not tar- the funeral home that the deceased did geting an individual [funeral director] not want to be embalmed and that the but rather the Funeral Services Act for the family agreed. e funeral director re- events that had taken place.41 plied that either he would embalm the Mickey Hennessy, the well known body or the family could come and pick MPP for Fort William, had politely it up. At this point the family asked the acknowledged, but quietly led, previ- Co-op to take charge and arrange for ous MSTB correspondence. is time, minimal service [embalming only] by the breaking party ranks, he wrote to the funeral home. e following day, Gowen Hon. Dennis Timbrell: “I oer my sup- and one volunteer, with the reluctant port to the Society and would appreciate help of a funeral home employee, re- if their concerns should be looked into.”42 moved the body from the funeral home, while another employee, on instruction A Summons to Court from the funeral director, took pictures he Ontario Board of Funeral Ser- of the removal. Tvices acted. e Co-op, and Gow- In a letter of complaint to the Hon. en, each received a summons to appear

41 Ibid., Eric Gowen to Hon. Dennis Timbrell, 8 July 1980. 42 Ibid., Mickey Hennessy to Hon. Dennis Timbrell, 14 July 1980.

OH inside pages autumn 2019.indd 205 2019-08-29 11:12:23 PM 206 ONTARIO HISTORY

in court on act as local counsel.45 30 Septem- e case opened on 16 January 1981 ber 1980, to before His Honour, Provincial Court answer the Judge R.B. Mitchell. Crown Counsel charge that: was B. Swadron (Toronto) and Defense “between Jan. Counsel, G. Labine, (under Bay). 9, 1980, and Gowen and the Co-op were being tried July 2, 1980, together for breaking the Funeral Ser- at under vices Act, 1976, with Gowen speaking for Bay Ontario, himself but also answering questions on not being li- behalf of the Co-op. censed as a fu- e court heard only a small amount neral director, of evidence that day. e funeral director [the accused] witness agreed that written permission did engage in was required to embalm a body, but he providing fu- also remarked “we never get it.”46 In refer- neral services ence to the 30 June 1980 removal from a and funeral residence, he claimed not to know who supplies to called the funeral home to remove the Cooperative Memorial & Removal Ser- the public... body although one of his employees later vices Inc. engaged Arthur Maloney Q.C. contrary to testi ed that the coroner had given the of Toronto to defend them of the charge of the Funeral order. is same employee had been in- breaking the Funeral Services Act. Photo: under Bay Chronicle Journal. Services Act.” structed to take pictures when the Co-op e names of volunteers removed the body from the four deceased persons were listed in the funeral home. summons.43 Aer day-long testimony, Court Mr. Lukinuk advised the directors closed for the day and resumed ve to obtain senior legal counsel from To- months later on 19 May 1982.47 e ronto. “It may be that you, as well as the crown called ve witnesses in an attempt OBFS, may wish to appeal the decision to prove that the Co-op volunteers were in the initial Court.”44 Acting on Luki- providing services normally done by a nuk’s suggestion, the Co-op engaged licensed funeral director. To prove this Arthur Maloney Q.C. of Toronto, who point, a funeral director gave lengthy recommended that Mr. Gilbert Labine testimony about the training required to

43 Ibid., Initial Summons and Notice for Adjournment, September 1980. 44 Ibid., Lukinek and Halabisky to E. Gowen, 31 October 1980. 45 Ibid., Arthur Maloney to Co-op, 7 January 1981. 46 MSTB, Court Transcript Binder; NFA vol. 4, Transcript, 16 January 1981. 47 Ibid., Trail transcript, 19, 20 May 1981.

OH inside pages autumn 2019.indd 206 2019-08-29 11:12:23 PM a memorial society vs the funeral industry 207

obtain such a license but Labine, in cross people who preferred simple rather than examination, introduced another factor, ornate caskets and moderate costs rather establishing that no funeral home carried than great expense in funeral services. any type of corrugated cremation con- He emphasized this view by remarking tainer like the one used by the Co-op. that “our Lord went to his tomb in a e next three witnesses described clean linen shroud, and many people are the paper work required to release a de- quite willing today to face the fact that it ceased body from the hospital, to register doesn’t take tremendous expenditure to the death at city hall and to arrange for do honour to a life that was lived.”48 is cremation. In all cases there was no re- statement was consistent with Gowen’s quirement for a funeral director to com- support for the 1956 United Church plete the forms. All witnesses agreed that statement on Christian burial. However, Gowen, as a representative of the Co-op, as later reported in Maclean’s, Gowen’s always had the paper work completed words upset the judge who “cited Gowen and at no time did he refer to himself as for his contemptuous attitude” when he a funeral director. e words ‘funeral di- passed sentence in September 1981.49 rector’ had been crossed out on the forms In his continuing testimony, Gowen he presented. alluded to problems that some families e nal crown witness, a funeral encountered at funeral homes and added home employee, answered questions “the Cooperative seeks to meet that need about his understanding of the dier- of people seeking simplicity without ence between a funeral and a memo- getting a put-down in a licensed funeral rial service. He indicated that embalm- home.”50 But Judge Mitchell had only ing the deceased was customary prior one concern; he wanted to know if the to a funeral service. When questioned Co-op was licensed.51 about a disposal service he referred to it On the second day of the trial, Gow- as a convenience service, a name change en described the removal of the body made about two years previously by the of the Co-op member from the funeral management of the funeral home where home (June 1980) and agreed that he he was employed. e witness also con- and his volunteer helper needed the as- rmed that the cremation container used sistance of the funeral home sta to by the Co-op, was not available at his complete the removal. Swadron’s cross place of employment. examination established the fact that the Gowen, the last witness for the day, Co-op was not licensed under the Funer- in answer to his lawyer’s question, de- al Services Act, 1976. scribed Memorial Society members as All the testimony to this point was

48 Transcript, p. 105 49 Macleans, 21 September 1981. 50 Trial transcript, p.114, 19 May 1981. 51 Ibid., p.115.

OH inside pages autumn 2019.indd 207 2019-08-29 11:12:23 PM 208 ONTARIO HISTORY

about the 30 June 1980 death. ere Did they serve the public? was no question that two other deceased Crown Counsel Swadron insisted named in the summons had been Co-op that: (1) Co-op members were the pub- members but membership for the fourth lic, (2) Gowen had done the things nor- named deceased was open to question. In mally done by funeral directors, (3) the this case, the widow of an MSTB mem- Co-op’s cremation container was not a ber signed the Co-op membership a few special supply. hours aer her husband’s unexpected Aer a brief recess Judge Mitch- death in an accident. Was the deceased a ell pronounced the Co-op and Gowen Co-op member or did the Co-op provide guilty, ned Gowen personally $1,000 a service for a member of the public? is and the Co-op $3,000, with six months question was important since the Co-op to pay. e Co-op was to “cease and de- was depending on double membership sist.” Maclean’s printed “Back To e to avoid serving the public. Only Game In Town,” an article that e argument could not be present- pro led Gowen as unrepentant and pre- ed that day; the case was put over to Sep- pared to appeal the decision.53 tember. under Bay’s Chronicle Journal Before ling an appeal, Gowen and reported the trial on 20 and 21 May 1981. the Co-op Board had to wait until the Canadian Funeral Director described the written reasons for judgment were issued case in detail, and Maclean’s 1 June 1981 on 17 December 1981. In this docu- edition printed: ment, Judge Mitchell wrote that neither “Dust to Dust Without Frills” “...as Gowen the Co-op nor Gowen were licensed un- puts it. ‘I’m a freedom ghter, and all we’re der the Funeral Services Act and claimed doing is defending the right to simplicity. that both defendants had engaged in pro- We’re not trying to push on people who have viding funeral services or funeral supplies the abiding belief that looking on a corpse in [the cremation container] to the public. a funeral parlor is good for their grief. What In conclusion, he added “...I am informed we’re trying to stand for is the right of peo- that this case has attracted some great ple who want to spend their money while they’re living instead of on funeral trappings deal of notoriety and media response. when they’re dead.’”52 e judgment, herein, is in no way to be interpreted as a criticism of the morality At the third and nal court hearing, of either of the defendants.”54 9 September 1981, the argument was brief and sharply de ned. Labine pre- e Appeals sented three points: (1) Did the Co-op owen worked with lawyer Doug and Gowen provide a funeral service? (2) GShaw, who was now to represent the Did they provide a funeral supply? (3) Co-op, to prepare for an appeal by list-

52 Macleans, 1 June 1981 53 Ibid., 21 September 1981 (article by local CBC reporter, Rosalie Woloski). 54 NFA vol.5; MSTB Court Transcript Binder, Reasons for Judgment, 17 December 1981.

OH inside pages autumn 2019.indd 208 2019-08-29 11:12:23 PM a memorial society vs the funeral industry 209

ing the errors in the original trial. One word funeral, and the work of a funeral point was that the transcript had shown director. In comparing the work of the the witnesses in the wrong order. is Co-op with that ‘usually done’ by a fu- was important because of contradictory neral director he stated that not only was testimony about embalming. the Co-op’s service not ‘usually provided’ e Rev. Karl Sauer, MSTB board by the funeral director, it was not provid- member, also outlined another error re- ed at all. In conclusion, the Judge cited peated throughout the trial. MSTB was three dictionary de nitions of the word not on trial although there had been re- funeral: “By these de nitions, one Eng- peated references to the Memorial So- lish, one Canadian and one American, ciety when Co-op would have been the published in Canada, the simple collec- correct term. He emphasized that over tion, packaging and conveyance of a dead 1,200 MSTB members had not joined human body to a crematorium, without the Co-op and were certainly not on accompanying rites, ceremonies, or a trial. e Memorial Society “advocates, procession, would not constitute a fu- plans and does publicity, but never pro- neral whether or not a memorial service vides funeral services or supplies to the is later held.”57 public.”55 Within days, OBFS won leave to ap- Judge Patrick Fitzgerald presided at peal in the Ontario Court of Appeal on the rst appeal on 23 March 1982. He the grounds that: “e learned District clari ed the confusion about the terms Court Judge [Fitzgerald] erred in law Co-op and Memorial Society and then in his interpretation of ‘funeral services’ dealt with the meaning of the word ‘fu- and ‘funeral supplies’ and as a result of neral’, and the word ‘usually’ as used in this interpretation, improperly found describing the work of a funeral director. that the defendants had not contravened He reviewed the question of embalming the provisions of the Funeral Services Act (a major distinction in the case), and the 1976.” 58 dispute about caskets and the Co-op’s Mr. Justice McKinnon [Oce of cremation container. He reserved judg- the Attorney General] was of the view ment but thought that he would exoner- that: “this was a test case of Province ate Gowen.56 wide importance that therefore the mat- On 16 April 1982, Judge Fitzgerald ter should be dealt with by the Ontario released his Reasons for Judgment which Court of Appeal, rather than being le at focused on the accepted meaning of the the District Court Level.”59 is case was

55 NFA vol.5; MSTB 1982 le, Rev. Karl Sauer to Judge Mitchell, 9 March 1982. 56 NFA vol. 5, E. Gowen’s hand-written notes of Hearing, 23 March 1982. 57 NFA vol. 5; MSTB Court Transcript Binder, Reasons for Judgment, 16 April 1982. 58 NFA vol. 5, Leave to Appeal, 16 April 1982. 59 Ibid, D. Shaw to E. Gowen, 29 May 1982; Co-op Minutes, 7 June 1982; Ocial Minute Book 1979-83 (in NFA oce).

OH inside pages autumn 2019.indd 209 2019-08-29 11:12:23 PM 210 ONTARIO HISTORY

the rst challenge to the recently enacted College developed a training course for Ontario statue and as such needed scru- transfer service operators. OBFS grand- tiny by the highest court in the Province. fathered the Co-op from the new regu- And so the case proceeded to the lations until the sta had completed this Ontario Court of Appeal on 7 October, training. 1983.60 In a brief session, the Judges de- e ve people who had applied to termined that Judge Fitzgerald was not register the Co-op in 1978, and the many in error and dismissed the appeal, with people who made it work, could not costs assigned to OBSF, which had initi- have imagined that their volunteer busi- ated the proceedings. Funeral service in ness would operate as part of the indus- the Province of Ontario would never be try, under the Funeral Services Act. Nor the same again! could they have known how their actions would change that industry. Reactions to the Judgment In 1997, the board of the Co-op, act- he funeral industry expressed con- ing on legal advice, le the Cooperative Tcern that the outcome of this case Corporations Act and registered as the could usher in storefront disposal ser- Northwest Funeral Alternative under the vices, but also admitted in Canadian Fu- Ontario Corporations Act. In under neral Director that the industry had some Bay, the Alternative and the Memorial responsibility for stirring up the issue Society continue to hold back-to-back an- with its unwillingness to accept the ideas nual meetings to elect new board mem- of change in the services it oered.61 bers. e Federation of Ontario Memorial e Co-op was now free to nd suit- Societies was represented on two Ontario able business premises and hire sta. e government committees, the Ministerial board members learned how to move Advisory Committee and the Bereave- from a volunteer organization to a com- ment Services Advisory Committee. is munity business. Later there was even a was especially important because funeral business relationship with one funeral customs were changing rapidly with On- home to rent space in its cool room. tario demographic shis, the introduction Storefront burial services did not ap- of new technology, and consumer concern pear. Removal services opened in several over the environmental impact of past fu- cities, but there was minimal disruption neral practices. e Ontario Federation to the industry as a whole. e govern- continued to represent consumer opinion ment proclaimed a new Funeral Services to the Ministry of Government Services Act in 1990, making transfer services a and advocates for more consumer choices part of the funeral industry and Humber in the supply and provision of Death Care

60 NFA vol. 6; MSTB 1983 le, Trial Transcript 7 October 1983. 61 NFA vols 5 and 6; MSTB 1982 le. Series of articles from Canadian Funeral Director, May and October 1982.

OH inside pages autumn 2019.indd 210 2019-08-29 11:12:23 PM a memorial society vs the funeral industry 211

Goods and Services. word—‘funeral’—surprised everybody. The conflict between a very small Yet none of this would have happened part of the Ontario funeral industry and if the Memorial Society of under Bay a group of determined under Bay citi- had been able to follow the usual pat- zens escalated gradually. e Co-op sup- tern of Memorial Society activity. ere porters thought they were building a case would have been no Co-op, no court on the strength of common sense; their cases and probably very little change in opponents in the funeral industry viewed funeral legislation. at it happened is the confrontation as more nuisance than a tribute to the courage and tenacity of threat. But this case, and its resolution, Eric Gowen in particular, and to those had considerable implications for, and who shared his determination to spread eects upon, the funeral industry in On- the Memorial Society message of sim- tario. e fact that the nal judgment plicity, dignity, and moderate expense in depended on the meaning of that one nal arrangements.

OH inside pages autumn 2019.indd 211 2019-08-29 11:12:23 PM