Benjamin’s Park Memorial Chapel has been ordered to be more transparent in how it handles millions of dollars of charitable memorial donations
Seven months after Jeanne and Raziel Zisman buried their only child, the grieving Toronto family has won its complaint to the Ontario funeral industry watchdog about how Benjamin’s Park Memorial Chapel, the prominent Jewish funeral home, handled the charitable donations made in memory of their son.
On Thursday, July 28, the Bereavement Authority of Ontario (BAO)—which is responsible for licensed funeral operators—ruled, among other orders, that Toronto-based Benjamin’s “must be more transparent with consumers.”
The issue was with an administration fee that the Benjamin Foundation deducted from donations to a memorial fund set up in Liam Zisman’s name. The family was not aware of the fee at the time of the teenager’s funeral in January.
His parents lodged their complaint this spring against the family-run Jewish funeral home, which together with its affiliated company, Hebrew Basic Burial, handles most of the Jewish funerals in Toronto. (The third funeral operator, Steeles Memorial, is independent of the Benjamin Groups.)
“It is disappointing and a real shame that during an unimaginably painful time for our family, despite repeated requests to Michael Benjamin to do the right thing, we were reluctantly forced to divert time from grieving to file a complaint with the BAO and start an action in court, a process which we hope will be concluded later this year,” said the Zisman couple late Sunday, after receiving the favourable ruling.
Arrangements meeting by Zoom
Liam Zisman died on Jan. 3, 2022. He was 19. He was a straight-A student and had just completed his first semester at Brock University in St. Catharines, Ont.
Later that same day, his shocked parents sat down for an “arrangements” meeting, via Zoom, with Michael Benjamin, the president of Benjamin’s Park Memorial Chapel. The casket was selected, they finalized all the other details, and they agreed on a price of approximately $12,000 for the entire burial.
Michael Benjamin urged the family to write the obituary notice that was needed to be placed onto the Benjamin’s website, as the funeral was scheduled for Jan. 5.
Liam had been a cancer survivor, and the Zismans wanted their son’s two beloved charities to be linked in his obituary: Chai Lifeline Canada, and Camp Quality Canada.
During the Zoom meeting, they were also made aware of the possibility of using the services of the Benjamin family’s private charity, The Benjamin Foundation, to park any memorial donations that might come in, by opening a trust fund in Liam’s name. The Foundation would hold the money temporarily until the Zismans were in a better frame of mind to deal with such matters, and choose where it should be donated.
The Zismans were soon sent a couple of long pdf documents by email to sign and return through DOCUSIGN, within a brief window of time. They were so distraught, they didn’t notice the small print about the 10 percent admin fee.
“We had no idea”: Zisman
“The 10 percent was not mentioned at all. It’s as simple as that. We had no idea,” Raziel Zisman said.
Nearly two weeks after the funeral, Raziel Zisman, a lawyer and mining industry consultant, contacted Benjamin’s to inquire whether anyone had donated money to his son’s favourite causes.
They had, he was told.
But when he asked how much and who donated what, so they could be properly thanked, he was informed that some of this information was confidential. Zisman was surprised because his contract said he had been appointed as an administrator of the temporary Liam Jacob Zisman Memorial Fund.
He was told this was just a formality and gave him no real say.
The couple had told the funeral home’s staff to link directly to the two charities in Liam’s online obituary, but this was not done. Instead, Benjamin put a link to the Liam Jacob Zisman Memorial Fund c/o The Benjamin’s Foundation.
The incorrect information remained on the website, until Jan. 18, after which the two charities’ links were subsequently added.
At first, the family had no problem with that, because at this point they were unaware of the 10 percent being deducted.
When they were told about it, they were stunned.
“From the donors’ point of view, I think those people that found out there was a 10 percent were very taken aback. Some people were upset because, rightly so, it’s their money, and this is the way that they would want to honour Liam’s name and memory,” said Jeanne Zisman. “And they felt that that was somehow sullied and reduced by taking away 10 percent of their donation. If those donations were great or small is irrelevant.”
The Zismans then tried to cancel the Foundation part of their funeral contract. They felt they had that right, under Ontario consumer protection law, within 30 days of signing it.
Benjamin told them the document was legally binding.
“He said, ‘Well, it’s on the contract’. And the way it was said in terms of the speed of response and the brusqueness in his voice was literally like a sucker punch,” said Jeanne Zisman, of her conversation with Michael Benjamin.
“We were just floored that, having placed our trust to put our son to rest and to honour his memory through these charities, that the response was so callous and essentially not taking into consideration what it could mean to us and to families of these charities.”
That’s what convinced them to complain to the BAO, which has now agreed with the family.
Bereavement Authority of Ontario ruling July 28, 2022
“At the very least, it should have prompted the Chapel staff to reach out to the complainants, and confirm the situation,” the decision reads. (The Zismans provided a copy of the decision to The CJN Daily. It was issued on July 28, 2022.) “The obituary notice was received prior to any donation being made through the Foundation and could have easily been implemented without incident.”
According to the Zismans’ lawyer, Kip Daechsel, there was no need for the Foundation to be used.
“The Zismans knew exactly where they wanted [the money] to go to, and that was communicated to the people at Benjamin’s, if not in the initial conversation shortly thereafter. And so really, there wasn’t any particular advantage to them or any reason for them to use the Foundation,” said Daechsel, who is a lawyer with Dentons in Toronto.
The BAO listed six steps which Benjamin’s must now take to comply with its ruling, within the next five days:
They are:
- The Foundation, its services, and the retained fee is to be outlined on both the price list for the Chapel and for that of Hebrew Basic Burial
- Release all donations to the Zisman’s son’s fund, add back the 10 percent deducted, and split the proceeds equally between Chai Lifeline Canada and Camp Quality Canada
- Mention the administration fee in any obituary which uses the Foundation to hold donations
- Ensure the admin fee is visible on all payment pages so donors can see it, when they click to proceed
- Make the admin fee clearly visible on the Foundation’s page on the Chapel’s website
- Update price lists for both Benjamin’s and Hebrew Basic to tell clients they are both affiliated companies, as required by law.
While the Bereavement Authority did put part of the responsibility on the Zismans for not being more careful when reading through the paperwork before they signed the contract, their registrar found that Benjamin’s was at fault for a lack of transparency about its 10 percent administration fee.
The funeral home company’s legal team had argued that it didn’t have to disclose the administration fee because the Foundation is not covered by the rules of the Funeral, Burial and Cremation Services Act, which is overseen by the Ontario Ministry of Public and Business Service Delivery. The company said only the funeral home side of the operation is covered.
But the registrar shot that defence down, saying Benjamin’s Park Memorial Chapel “offers and promotes” this Foundation service to handle donations—although it is administered by their affiliated Foundation—so the Foundation’s service and fee should be considered as a part of the funeral package.
“While there is no price being directly charged to the purchaser, there is a cost associated with it that must be clearly disclosed to the purchaser on the price list and the contract, and to would-be donors when they make an online donation through the Foundation,” the ruling said.
“There is no specific requirement for [Benjamin’s] to discuss the contract item by item, clause by clause, however, [it] has an obligation to be as transparent as possible. Upon review of the transcript from the initial Zoom meeting, it is apparent that the Licensee had ample opportunity on several occasions to mention the 10 percent fee but neglected to do so.“
Benjamin responds to allegations
In August, Benjamin’s will mark its 100th year of providing funeral services to Canada’s Jewish community. The business was founded in 1922 by Henry Benjamin, Michael’s grandfather. Michael’s children are also now senior executives and directors of the funeral home’s businesses, including the Foundation.
The Benjamin Foundation was established in 1983, just a few years after the family opened the current site of its funeral chapel on Steeles Avenue W. in Toronto.
The website says the Foundation service is “unique in North America”.
Michael Benjamin declined to be interviewed in person, but sent a written statement to The CJN in late July.
According to the statement, they created the Benjamin Foundation to give families some breathing room during a fraught and emotional time.
“It was our experience that when making funeral arrangements, many families had not thought about where they wanted to direct donations, and as a result, were forced to make a quick (often not well thought through) decision in order to meet a newspaper deadline,” he said.
Benjamin maintained they have “always taken great care to be transparent” when it comes to the fees they collect for offering this service. The fee has always been 10 percent and has not changed since the outset.
What’s more, he said, the money collected doesn’t cover the Foundation’s real operating costs. The Foundation website says the family contributes anywhere from $100,000 to $150,000 per year.
In 2021, The Benjamin Foundation reported to the Canada Revenue Agency that it had lost nearly a quarter of a million dollars.
With revenues of $452,304.00 and expenses of $698,710, the Foundation distributed $405,892 to charities.
Only one person is named as Foundation staff, Shelley Norris, the executive director.
The Foundation reported it paid $190,219 last year in administration fees and management.
The Benjamin Foundation paid out a further $102,599 towards other charitable ends of its own, last year.
In the last nine years, according to figures from the Canada Revenue Agency collected by the charity watchdog Charitable Impact, The Benjamin Foundation has transferred over $3 million given in trust in memory of a deceased community member to designated charities.
Steeles Memorial does not list a similar foundation.
Paperman’s, the main Jewish funeral home in Montreal, does run a family foundation, which issues tax receipts to donors who use Paperman’s online portal to send money in memory of loved ones, to designated charities. There is a “processing fee”, but the amount charged is not available on the Paperman website.
In comparison, Canada Helps charges between 2 and 4 percent.
The BAO said they were told by Benjamin’s that Chai Lifeline Canada charges a flat $2.25 per donation, but a spokesperson for the charity said that is not true.
“We never ever charge an admin fee,” the spokesperson said.
Instead, when someone donates to their charity directly through their website, they use some of the funds — between 1 and 3 percent — to cover the credit card processing fee or the fee for the fundraising software which they use, Neon One.
The Jewish Community Foundation in Toronto charges between nothing and 1 percent, depending on the age of the donor.
In Manitoba, the Jewish community’s foundation charges nothing.
The Bereavement Authority of Ontario said that it does not have the power to conduct accounting audits or to comment on the Benjamin charity’s fiduciary reporting requirement, as that is a matter for the Canada Revenue Agency.
But the ruling did urge Benjamin’s to be more transparent about the structure of the Foundation, and how it works, and put that all on the funeral contract.
It also found it “logical” to assume that a family would want to know who donated to their charity so they could thank them properly.
The Foundation told the Zismans it could not reveal exact amounts of donations that fall under a certain dollar figure, but rather, would give them approximate figures.
Raziel Zisman finds the Foundation’s inner workings questionable, especially the 10 percent admin fee. He feels the Foundation does not operate using the way other charities do, since it does no fundraising or marketing to collect donations.
“What is your charitable purpose aside from taking 10 percent? The two charities where [our] money is going to, have administrative charges because they actually do charitable work. They have to pay their own staff. So, no, there’s no justification for taking 10 percent,” he said.
What the CRA says
The Benjamin Foundation address is listed online in two places: the Chapel address on Steeles Avenue W., and also shows it is registered at 3429 Bathurst St. That is the same address and building where the Hebrew Basic Burial organization lists its office location.
The Benjamin’s Foundation website says it could legally charge up to 20 percent for administration fees. However, a spokesperson for the Canada Revenue Agency tells The CJN that is not correct, as there is no law setting out maximum amounts which charities can charge.
Instead, said Hannah Wardell of the CRA, registered charities are expected to devote all their efforts to charitable purposes and activities. So, when charities have “certain non-program related expenditures” such as fundraising or administration, they are allowed to spend money on these items.
“However, such amounts must be reasonable compared to amounts spent on charitable programs,” she said.
If people suspect a charity or an employee isn’t following the Income Tax Act, they can report them to the CRA at this link here.
Toronto rabbis won’t speak publicly
At least three prominent rabbis in Toronto spoke to The CJN about how they have long been aware of the Benjamin Foundation admin fees, and disapprove. But none would go on the record about it.
“You can’t be a rabbi in this city and have a bad relationship with Michael Benjamin,” one of them said, asking to remain anonymous.
The Toronto Board of Rabbis also declined to comment officially, saying it would not be in their interests to talk about the case. However, they did offer the sentiment that some grieving families take out their emotions on the funeral home.
One rabbi explained to The CJN why no one wanted to make waves in public. About sixty percent of Jewish funerals in the city are conducted by rabbis on a freelance basis, he said, on behalf of families who are not members of a synagogue and do not have their own clergy.
So funeral homes have a list of rabbis on call, for which the rabbi is paid a set fee to officiate.
In 2022, the Toronto Board of Rabbis raised the fee to $750 for a chapel or a graveside service, or $900 to do both, according to Rabbi Michal Shekel, the executive director.
Shekel explained these fees had not risen since 2014.
“Usually, clergy receive a cheque at the time of the funeral,” Shekel said in an email to The CJN. “It may be a cheque issued by the funeral home, a personal cheque, or an ‘estate of’ cheque.”
If the deceased belonged to a synagogue, rabbis do not usually get paid to officiate, as funerals are considered part of the member’s dues.
Ontario report on high pressure sales tactics
In December 2020, Ontario’s Auditor General issued a scathing report on the funeral industry in the province, calling out high pressure sales tactics and misleading information, including up-selling during the pandemic.
A series of 20 recommendations were issued, including 51 actions, which the funeral operators were required to comply with, including new regulations on transparency.
Benjamin’s Park Memorial Chapel did move earlier this year to put its price list on the website, as did Hebrew Basic Burial. Steeles Memorial Chapel has their list online dated June 27, 2022.
But finding the Benjamin Foundation’s policy of the 10 percent deduction for admin fees takes some effort. It was on the contract which Michael Benjamin sent to the Zismans.
The BAO gave Benjamins five days to implement its new orders.
The Zismans feel this victory was Liam’s doing.
“He was always one for fairness and justice, always. And honesty. He was brutally honest, and this is what he stood for,” said his mother.
“We are also relieved that, thanks to the BAO’s ruling, the community at large will now have the benefit of enhanced transparency on the part of the Benjamin Foundation,” said the couple.
They are particularly pleased to be shining a light on the 10 percent fee the Foundation retains from funds donated by families and friends in the name of loved ones.
The Zismans lawyer, Kip Daechsel thinks the case is an important lesson for anyone who has to deal with complicated legal documents during stressful and emotional times.
“So it’s important for the community to be aware of that, so that these kinds of misunderstandings don’t happen again,” he said.
It is not clear whether the Benjamin Groups will appeal the BAO ruling.
It is also unclear whether the ruling will lead the funeral home to make any changes in how it administers the Foundation.
For his part, Michael Benjamin did not respond by deadline to our request for comment on the latest development.
However, in his earlier statement, he said they had never faced a court case about the Foundation before, and always were able to make arrangements with families who had customer service issues. Except for the Zismans, who launched legal action.
“We regret that this individual wasn’t satisfied with their experience with the Foundation,” Benjamin said. “We remain grateful to have had the privilege to help hundreds of families during a very challenging time in their lives and will continue to serve families with integrity.”
Michael Benjamin was not able to provide data requested by The CJN on how many clients use the Foundation, or how many funerals they conduct every year. He couldn’t give details on the Foundation’s financial statements because he said their accountant was on vacation.
The Zisman family’s lawsuit against the funeral home, which was filed in Ontario’s Superior Court of Justice in February, continues.
“This is a scenario of one layer of awfulness just added on top of another,” said Daechsel. “The awfulness of having lost their son under those circumstances, the awfulness of the miscommunication, the awfulness of Benjamin not having rectified it, and the awfulness of them still being there, such that we have to still be in court.”
The Zismans are organizing a conference to be held at Brock University this October, in Liam Zisman’s memory, on the topic of sustainability in the resource industry. Liam had been studying environmental geoscience at the Ontario school.
With files from Victoria Redden.