Benjamin’s Park Memorial Chapel, the largest Jewish funeral home in Toronto, was in Ontario’s Superior Court of Justice on May 23 trying to overturn two orders that it must refund hundreds of thousands of dollars in fees that it deducted from in-house charitable foundations it set up in the names of deceased persons, dating back to 2016.
Last summer, the Bereavement Authority of Ontario (BAO) ruled that the family-run Benjamin Foundation should not have withheld 10 percent in administrative fees from the donations that family and friends of the late Liam Zisman, a 19-year-old Toronto student, made in his memory through the Foundation.
Benjamin’s lawyer, Andrea Sanche, told the three-judge panel during a virtual court hearing that the BAO—a body that regulates funeral operators in Ontario—exceeded its jurisdiction, was biased, and that it also issued “unreasonable” orders.
Sanche argued that the Benjamin Foundation is not technically covered under the Ontario legislation regulating the death industry, even though the Foundation appears on the same website as the family-run funeral home.
At issue is whether Michael Benjamin promoted the Foundation as a licensed service when he met the teenager’s parents over Zoom in early January 2022 to sell the overall package for the funeral and burial.
“A bad example is if Benjamin’s chapel decided to start selling ice cream, you don’t need a licence under this Act to sell ice cream,” Sanche told the court. “You may need another [kind of] licence. That’s colloquially somebody else’s problem.”
For over 40 years, the Benjamin Foundation has permitted its bereaved clients to park charitable donations until they are emotionally ready to decide how and where to distribute the money.
The Zismans story
When the obituary for their son was being prepared, the Zismans stipulated they wanted any donations to go directly to the two charities and sent the links. However, the version that was initially published had removed the links and named the Benjamin Foundation as the clearing house. The incorrect version stayed up for the whole week of shiva.
The couple also then contacted Benjamin Foundation to see how much money had come in for the Liam Jacob Zisman Memorial Fund.
That’s when they say they discovered not all the money would be sent to their designated charities.
The Zismans first tried to cancel their contract. When that didn’t succeed, they filed a case in small claims court, which is still outstanding. They also complained to the BAO.
Although the Benjamin Foundation website notes their deduction of 10 percent, the Zismans insist they were never told about this fee. They signed a contract sent by email which mentions it, but insist they were too distraught at the time to understand what they were signing.
The Zismans had thought that the entirety of the donations would be forwarded to benefit Chai Lifeline Canada and Camp Quality Canada, two charities that meant a lot to their late son.
The deduction did not appear anywhere on the Benjamin funeral home official fees list at the time.
What services are covered by the Ontario funeral home law
Sanche, the lawyer for Benjamin’s, maintained the fee was talked about during the Zoom call. But the BAO’s lawyer told the judges the transcript of the conversation doesn’t mention it.
Sanche also argued that the BAO compliance officer who investigated the complaint used “reverse engineering” in order to get the Foundation deemed to be “services” that are covered by the funeral home industry regulations.
She also stated that the BAO, in November 2022, admitted it had overstepped its jurisdiction. Soon after, then-CEO Carey Smith resigned, and was replaced by Jim Cassimatis, as interim CEO and registrar.
A lawyer for the BAO, Anastasia-Maria Hountalas, confirmed to the court that the BAO did not have the jurisdiction to make these financial penalty rulings it levied on Benjamin’s. She asked that the whole case be sent back to the BAO, which will take a second look at it.
Two of the judges then asked for clarification on Michael Benjamin’s relationship to the Foundation which bears his family name. Aside from being a licensed funeral director, Michael is a director of the Foundation, as are two of his children Marc Benjamin and Barbi Levitt, who also work for the family’s funeral home and grave monuments divisions respectively.
“It may not have been clear as to when he switched hats,” said Sanche, the lawyer for Benjamin’s.
On July 28, 2022, the BAO told the funeral home operator to release all the monies it was holding to the Zisman’s two charities, including the 10 percent processing fee.
The BAO also said Benjamin’s should have been more transparent when it offered and promoted the Foundation service. On Aug. 10, a further ruling was published on the BAO website ordering Benjamin’s to refund all the charity money it has ever deducted for processing fees from its Foundation donors, dating back to 2016.
That could amount to an estimated $200,000.
Benjamin’s was also ordered to take a series of other steps to fix its business practices and update its website and donations pages, which Benjamin’s promised to do, in response to emailed questions fromThe CJN. The website has not been substantially updated—although, for a time, Benjamin’s stopped charging the administrative fee. It has not released the funds yet for the Zismans charities.
The funeral home maintains it loses money on the Foundation, and tops it up to the tune of between $100,000 and $150,000 per year.
Following the BAO rulings, in September, the Toronto Board of Rabbis called on the funeral home operator to “uphold their sacred responsibilities, maintain a sacred trust, and treat mourners with fairness, compassion and transparency.”
Benjamin’s subsequently took the BAO to court, asking for a judicial review of these two rulings. They also started a libel suit in October against the BAO for comments made to the media about the case, including The CJN.
Slams BAO’s media campaign
During Tuesday’s court hearing, Benjamin’s lawyer, Andrea Sanche, told the judges these comments did “considerable harm” to Benjamin’s. She said the language used in the BAO’s interviews with journalists were “unlike any other decisions they’ve ever made,” including threatening to revoke the licence for the 100-year-old Jewish funeral provider.
Her client wants the Ontario Superior Court of Justice to quash the BAO’s two rulings.
In her view, sending it back to the BAO for a second, albeit more thorough investigation would be unfair. Even though there is a new CEO and registrar now in place at the BAO, Sanche maintained the BAO would be biased.
“The [BAO] could have just looked at ethics, we have lots of authority to do that, we have a committee, but they didn’t do that, and my client’s concern is they’re going to be back in the Wild West doing whatever they want again,” she told the court.
While the BAO’s lawyers seemed to agree that the case could become “a merry-go-round,” they suggested that the court should let the provincial body do what Ontario’s Legislative Assembly set it up to do in 2016. The BAO is a not-for-profit corporation administering provisions of the Funeral, Burial and Cremation Services Act on behalf of Ontario’s Ministry of Public and Business Service Delivery. It is responsible for protection of the public interest, but funded through fees levied on the industry, not by taxpayers.
“The hope is they do it right the second time,” said Bernie LeBlanc, one of the BAO’s two lawyers. “You can’t allow perceived weaknesses to follow them forever.”
But Sanche told the judges that–aside from the $90,000 which Benjamin’s have already spent on litigation–having Michael Benjamin, who recently turned 80, do the whole case over again would be like “the wild west”.
“Unfortunately, my client who is a real person and prominent person in his community is going to be dragged back through all of this, which is a consideration,” Sanche said.
The three-member panel of judges have reserved their decision on the case.