Northwest Funeral Alternative Inc

Maclean's printed "Back To The Only Game In Town", an article by Rosalie Woloski in the 21 September, 1981 issue. She wrote that...

"To add weight to his argument that funeral directors needlessly embellish burials with embalming, cosmetics and expensive caskets, he reminded the judge that 'Jesus Christ went to his tomb in a clean linen shroud.' The argument made an impression on the judge- but not in the way the past president of the Thunder Bay Memorial Society had intended. In passing sentence last week, Judge Mitchell cited Gowen for his contemptuous attitude. He also called him 'petty and nasty'. Gowen remains unrepentant. Now he wants to appeal the decision, if only to get an opinion on the Funeral Services Act, which he still claims doesn't serve the public's best interest."

Chronicle Journal articles announced the unanimous decision of the Co-op board to appeal the convictions.101 At the October 1981 membership meeting, board members listed the expected costs of the appeal and pointed out that small donations from each member could meet all the needs. Members were again asked to write to their MPPs to request the repeal of the Funeral Services Act.102 Labine was to approach the most amenable funeral home in Thunder Bay to provide a basic service for members while the Co-op was under the court order.

The Co-op's conviction may have pleased the industry, but the Chronicle Journal printed letters of support for the Co-op. The London Free Press editorialized about the verdict in a 19 October issue, while at the national level, Brian McGarry, OFSA President, wrote a letter to the editor of Maclean's about Rosalie Woloski's article.103

Both the funeral industry and the government were feeling the pressure for change. The Ministry of Health had asked for comments about the possible repeal of the Funeral Services Act. FOOMS responded with a brief to the Ministry in October 1981 but did not release the details to the press as a courtesy to the government that had requested it. The brief referred back to the comprehensive Neilson Watkins Report which had been submitted to the Minister of Health on 10 October, 1973.104 FOOMS asked all its member societies to approach their local MPPs about the repeal of the Act and MSTB sent 6 pages of signatures on a petition to change funeral regulations.

The Ontario Government also asked for briefs from Humber College and from the Ontario Board of Funeral Administration. Canadian Funeral Director printed "Ontario Seeks Opinions On Deregulation", and called it a surprise move. In answer to the magazine article "Why now?" the executive assistant to the Minister of Health said that funeral service might come under the Ministry of Consumer and Commercial Relations. He continued,

"We are asking funeral service to give their rationale for keeping the Act under Health. We have trouble understanding why, when we suggest a change to Consumer Affairs, those representing funeral service are horrified."105 The Health Ministry had also requested information from the Memorial Funeral Services Cooperative of London which had been cited in the FOOMS brief as being the subject of harassment.106

While waiting for Judge Mitchell to release his Reasons for Judgment the Co-op Board planned for the future. Donations to the defence fund came from across Canada and from cities in the United States. There were small donations ($10 to $25 range) from individuals, significant ones from other memorial societies and a variety of donations from many who identified themselves as church members. The fund totalled $4,030 in early December.107

Reasons for Judgment. 17 December. 1981

Judge Mitchell found neither the Co-op nor Gowen licensed under the Funeral Services Act. He then dealt with whether either or both defendants had provided (1) funeral services or (2) funeral supplies (3) to the public. For the first point, he cited the Yellow Pages ad for MSTB rather than the Co-op ad. He wrote that performing one act of providing funeral services or supplies on one occasion established the fact that the Co-op had served the public.

The written document repeated much of the testimony previously given at the trial. Several pages related to the meaning of a funeral supply and the word 'usual' in relation to the 'usual' practices of a funeral director. Finally, Judge Mitchell dismissed the idea that membership in the Co-op, even double membership with MSTB, removed members from being 'the public'. He also noted that the case has attracted a great deal of notoriety and media response. He stated that his judgment "...is in no way to be interpreted as a criticism of the morality of either of the defendants."108

Planning for the future, January 1982

MSTB's December 1981 newsletter encouraged members to write to the Ministry of Health and local MPPs in support of the repeal of the funeral legislation and to donate to the Co-op defence fund. Ever hopeful of winning the appeal, the Co-op explored ways to establish itself on a more business like footing and the board members planned for an Annual Meeting in April. At least one Thunder Bay funeral director must have thought that the MSTB was going to quietly disappear.

Gowen met with Doug Shaw [Atwood, Shaw and Labine] in February 1982 to plan for the appeal. It would be necessary to show that there had been errors in the original court proceedings. The testimony about embalming had been contradictory and the trial transcript put the witnesses in the wrong order.

MSTB board member, the Rev. Karl Sauer, noted another inaccuracy. His letter to Judge Mitchell (copied to Shaw and Swadron) included photocopies of the yellow page ads of MSTB and the Co-op. He clarified the differences between them and pointed out that Judge Mitchell had frequently referred to MSTB when he meant the Co-op. Rev. Sauer stated that the judge had implied that the 1200 MSTB members were the accused when it was the Co-op membership that was under consideration. He made it clear that the two organizations had different officers, bylaws and memberships, and that the Memorial Society advocated funeral planning and publicized its work, but never provided funeral services or supplies to the public.109

The judge had been correct in noting that the trial had attracted media response! The Toronto Star printed an article "Memorial Society Charged In Funerals", a headline that added to the confusion between the Co-op and MSTB. The article ended with the information that the Funeral Services Act review should be finished by midsummer.110