Ontario’s funeral home watchdog released a ruling Wednesday ordering the Benjamin Foundation charity to refund more than six years worth of “administration fees” which it had quietly deducted from charitable donations made in memory of deceased clients.
The ruling, posted to the Bereavement Authority of Ontario (BAO) website on Aug. 10, ordered the family-run funeral home’s private charity to release all the deductions it took off for administration fees dating back to Jan. 1, 2016.
No dollar amount was listed on the BAO’s registrar’s decision. It’s unclear how much money Benjamin’s will have to pay out.
A spokesperson for the BAO, David Brazeau, told The CJN it will be up to the funeral home company to go through its records dating back six years and compile a list of all the clients impacted and how much is involved.
When asked why the BAO registrar Carey Smith selected six years as the time span, Brazeau explained that it has to do with provincial legislation.
“Records are required to be kept for six years from the date a contract is performed or canceled as per the law,” Brazeau said in an email, referring to Ontario’s Funeral, Burial and Cremation Services Act, 2002.
A check of the Benjamin Foundation’s financial statements made to the Canada Revenue Agency dating back to 2016 shows over $2 million was paid out to mourners’ designated charities through to 2021, so 10 percent would be approximately $200,000.
The registrar gave Benjamin’s until Jan. 31, 2023, to transfer all the money to the various charities.
The Benjamin Foundation has always taken 10 percent in administration fees since the family created its charitable arm in 1983, but the family claims it loses money on the service, which it provides to the community. As a result, the family tops up its foundation with money of its own each year, according to the Foundation website.
The Foundation, which is described as “unique in North America,” was designed to allow families to park charitable donations until they can deal with making more informed decisions, rather than merely choosing something at random during the emotional time after a loved one’s death.
The new ruling, impacting possibly hundreds of bereaved families over the last six years, comes two weeks after The CJN reported on the case of a grieving Toronto family, Raziel and Jeanne Zisman.
The family filed a formal complaint to the BAO on May 18, 2022, saying the funeral side of the company, Benjamin’s Park Memorial Chapel, was not being transparent with several aspects of its funeral home business. The Zismans said they had not been informed that any donations in memory of their late son, Liam Jacob Zisman, to the allied Benjamin Foundation would have 10 percent deducted in fees.
Although the fee is listed on the contract, which the family signed on Jan. 3, Raziel Zisman said he did not notice it. He and his wife sat through the Zoom, meeting with Michael Benjamin in a state of shock after their son’s sudden death at age 19.
The Zismans had wanted any donation money sent directly to Chai Lifeline Canada and to Camp Quality Canada. During their arrangements meeting with Michael Benjamin, the family alleged they were encouraged to set up a Liam Jacob Zisman Memorial Trust through the Benjamin Foundation, but were never told about any 10 percent hold back.
Despite trying to cancel that part of their contract after the funeral, the Zismans were unsuccessful. Efforts to resolve the dispute in the months after the shiva failed.
On May 18, the Zisman family filed a complaint to the BAO. They also complained to Ontario Superior Court.
On July 28, the BAO issued a ruling ordering Benjamin to refund the Zismans 10 percent and to send all the donations made to the Liam Zisman Memorial Trust to the two charities. The order was effective immediately, and Benjamin’s had five days to show that it had complied.
Benjamin’s was also ordered to be up front on all its communications with grieving families who use the foundation from now on; put the 10 percent fee on all contracts, on all price lists, and on every funeral announcement where the charity is being used.
Benjamin’s has also not disclosed that it owns Hebrew Basic Burial, which it was supposed to do under provincial legislation that must now be clearly stated on all paperwork.
To date, the funeral home company has not complied with either of the two rulings.
The BAO has been informed that Benjamin’s intends to appeal these two rulings to the divisional court. No date has been set yet for this.
As such, all the orders are on hold pending the outcome of the judicial review of the BAO rulings.
For his part, Michael Benjamin said they are not making further comments at the moment. “We are taking time to review the ruling and determine our next steps,” he said in an email to The CJN on Aug. 11.
The Benjamin family did not consider the Foundation to be governed by the Funeral, Burial and Cremation Services Act, but rather a separate entity. As such, it felt disclosure rules that apply to pricelists and other services offered by a funeral home did not apply.
The BAO disagreed in its ruling.