Executive Summary: Key Legal and Evidentiary Issues

• Scope of the Registrar’s statutory duty under s. 96(4) FBCSA to “undertake” a burial site investigation once undue financial burden on the landowner is found, including the implied power to reimburse investigation costs.
• Proper delineation between reimbursable “burial site investigation” work under the FBCSA and non-reimbursable Stage 4 archaeological assessment work under the Ontario Heritage Act, where both were carried out on the same property, at the same time, by the same archaeologist.
• Reasonableness of the Registrar’s reconsideration decision under the Vavilov framework, including whether the Registrar ignored or misapplied prior directions that had expanded the scope of the burial site investigation.
• Evidentiary weight of the archaeologist’s invoices, preliminary and revised reports, and excavation maps in determining what work formed part of the burial site investigation, and whether the Registrar fairly interpreted that record.
• Legality of the Registrar’s “tool-based” approach (distinguishing reimbursable vs. non-reimbursable work by the types of tools and mesh used, and by references to “block excavation”) in light of earlier written instructions authorizing those same techniques for the burial site investigation.
• Appropriateness of the Registrar’s departure from an earlier decision finding that an estimated $504,699 in investigation costs “appeared to be reasonable,” without providing a coherent explanation for later limiting reimbursement to $169,528.47 and characterizing the balance as Stage 4 costs.

Background and discovery of the burial site

Carmela Taccone and Joseph Galea purchased a residential lot in Oak Orchards Estates, Trent Lakes, Ontario, in November 2020 with the intention of building a home. The subdivision was already known to contain archaeological sites, so development on the property triggered standard archaeological requirements. In August 2021, the owners commenced a Stage 4 archaeological assessment of the property, as part of a broader archeological mitigation plan tied to the home construction project. During that assessment in October 2021, archaeologists unearthed human remains. Police and the coroner were notified on October 6, 2021, and the coroner determined the remains were not of recent forensic interest. The next day, the coroner informed the Registrar appointed under the Funeral, Burial and Cremation Services Act, 2002 (FBCSA). On October 8, 2021, the Registrar ordered a burial site investigation under s. 96(1) of the FBCSA to determine the origin of the burial site. The applicants retained Michael Henry, a licensed archaeologist from AMICK Consultants Limited, to perform that burial site investigation. He had already been conducting the Stage 4 assessment on the property. The Registrar sent him the written Investigation Order and instructions, including direction to begin the investigation within 5 metres of where the remains were found and authorizing the use of block excavation and/or mechanical topsoil removal, while Stage 4 assessment could continue elsewhere on the lot.

Statutory and regulatory framework

The decision turns on the interaction between the Funeral, Burial and Cremation Services Act, 2002, its General Regulation O. Reg. 30/11, and Part VI of the Ontario Heritage Act and its Standards and Guidelines for Consultant Archaeologists. Under the FBCSA, a “burial site” is land containing human remains that is not a cemetery. When a burial site is discovered and foul play is ruled out, the coroner notifies the Registrar and the landowner must preserve the site, remains, and artifacts until a final disposition is made under the legislation. The Registrar may order a burial site investigation under s. 96(1) to determine the probable cultural origin of the remains, the boundaries of the site, how the remains were interred, associated artifacts, and other information needed to classify the site (for example, as an Aboriginal burial ground, burial ground or irregular burial site) and to facilitate the ultimate disposition of the remains. Licensed archaeologists perform the investigation and report findings to the Registrar, who must also notify appropriate cultural representatives. Crucially, s. 96(4) provides that if the Registrar is of the opinion that the investigation would impose an undue financial burden on the owner, the Registrar “shall undertake the investigation.” Applying the Legislation Act and general administrative law principles, the court accepted that this obligation carries with it implied incidental powers to reimburse landowners for reasonable, verified investigation costs where doing so is necessary to discharge the Registrar’s statutory duty. In parallel, the Ministry of Citizenship and Multiculturalism administers archaeological work under the Ontario Heritage Act. The Standards and Guidelines for Consultant Archaeologists set out four stages of archaeological assessment. Stage 4, at issue here, involves mitigation of impacts to archaeological sites—often through hand excavation in one-metre grid squares, using a defined protocol for how far and how long excavation must continue based on artifact yield and cultural features. That regime is primarily tied to development approvals and provincial interest in conserving archaeological resources, rather than burial site decision-making under the FBCSA.

Distinguishing burial site investigations from Stage 4 archaeological assessments

The core legal and factual tension in the case was how to separate work done for the burial site investigation (for which the Registrar accepted there could be reimbursement) from the broader Stage 4 archaeological assessment (for which the Registrar claimed to have no reimbursement authority). Initially, the Registrar and the Ministry’s archaeological review officer worked with the archaeologist to develop an integrated, but conceptually distinct, strategy for running both the Stage 4 assessment and the burial site investigation on the same property. That combined strategy, finalized on April 1, 2022, required: for Stage 4, contiguous block excavation of grid squares surrounding artifact-bearing units, using hand excavation and 6 mm mesh until edge squares yielded zero artifacts; and for the burial site investigation, hand excavation around any confirmed or potential human remains, use of 3 mm mesh and more delicate tools (trowels and wooden sculpting tools) when human or possible human remains were encountered, and expansion of excavation to all squares within 5 metres of any square where human remains were positively identified. The strategy explicitly limited the burial site investigation to grid squares within 5 metres of confirmed human remains and limited Stage 4 to the wider contiguous block excavation based on artifact distribution. It appeared at that point that the burial site investigation would be confined to a relatively discrete area around the discovered burials, while the Stage 4 work would deal with the broader archaeological site.

Expansion of the burial site investigation and disturbed site conditions

As excavation resumed in 2022, further bone fragments were found. The remains were highly fragmentary and disarticulated, and the soil matrix indicated repeated disturbance, probably from decades of construction activity in and around the Oak Orchard site. In March 2022, the archaeologist emailed a proposed strategy that blurred the lines between Stage 4 work and the burial site investigation, prompting concern from the Registrar that the burial site investigation was “bleeding into” the Stage 4 excavation. After revisions, the combined strategy was finalized on April 1, 2022 with more formal distinctions between the two processes. However, the practical reality on the ground quickly undermined those neat distinctions. In a key March 28, 2023 direction, the Registrar interpreted the agreed strategy to mean that any bone fragment that could not be conclusively identified as non-human was to be treated as human for the purposes of the burial site investigation, and all “possible human remains” would be treated similarly. Given the disturbed archaeology and scattered remains, this direction effectively expanded the burial site investigation to encompass all areas where indeterminate bone or possible human remains were encountered. As the archaeologist’s preliminary report and later correspondence showed, indeterminate bone was found across the excavation area. By July 2023, the archaeologist advised the Registrar that they expected to excavate 100% of the property’s surface area through block excavation as part of the burial site investigation, and that earlier Stage 4 block excavation had been “subsumed” into the burial site investigation because those areas fell within the expanding 5-metre buffers around confirmed or possible human remains.

Undue financial burden and the Registrar’s reimbursement posture

The applicants applied for an undue financial burden determination in December 2022, supported by a cost summary from their archaeologist and evidence of their limited means. On June 22, 2023, the Registrar accepted that the burial site investigation would impose an undue financial burden and formally undertook to conduct the investigation under s. 96(4). In that decision, the Registrar acknowledged that the projected cost of $504,699 for completing the burial site investigation appeared reasonable, given the disturbed Indigenous archaeological context and the scattering of fragmentary human remains across the property, which made the investigation time-consuming. The Registrar’s approach to “undertaking” the investigation was to reimburse the owners for past and future burial site investigation costs based on invoices and supporting documentation. The applicants advised that their total costs had risen to over $638,000. The Registrar’s office repeatedly requested more detailed invoices and clarification to distinguish burial site investigation charges from Stage 4 charges, even suggesting a backdated project information form (PIF) to administratively separate the two. The archaeologist resisted creating a separate PIF, maintaining that in practice, all block excavations within the property had become part of the burial site investigation because human or potential human remains, and indeterminate bones, were being found across the entire excavation area.

Registrar’s narrowing of the burial site investigation and reimbursement decision

Despite the earlier acceptance of the broad scope and high cost of the burial site investigation, the Registrar shifted to a much narrower view when deciding reimbursement. On September 22, 2023, the Registrar reimbursed the applicants $169,528.47 for invoices that, in the Registrar’s view, clearly related to work in the “vicinity of confirmed human remains,” as reflected in the archaeologist’s preliminary report. At the same time, the Registrar ordered the applicants to stop the burial site investigation and to submit revised invoices. In March 2024, a new Registrar took office and issued a decision refusing to reimburse any additional amounts, effectively capping the reimbursement at $169,528.47. That decision adopted what the court later described as a “tool-based” and location-based analysis: work using 3 mm mesh and delicate tools in squares around confirmed human remains was treated as burial site investigation work; block excavation using 6 mm mesh, conducted over a much larger area, was characterized as Stage 4 assessment. The Registrar also relied on a statement in a January 2024 report that referred to the burial site investigation area as “a portion of the much larger site area subject to Stage 4 investigations,” to support the conclusion that the burial site investigation covered only a small part of the property and that only about 32 days of field work formed part of the investigation. In April 2024, after the applicants sought reconsideration, the Registrar confirmed that position. He rejected the applicants’ points about the treatment of indeterminate bones, the scattered nature of remains, and the expanded excavation required under the agreed strategy, and maintained that additional costs related to Stage 4 work, for which he said he lacked statutory authority to reimburse.

Judicial review and standard of review

The applicants brought an application for judicial review in the Divisional Court. Both sides accepted that the standard of review was reasonableness, following the Supreme Court’s decision in Vavilov and subsequent Ontario case law. The court emphasized that a reasonable decision must show a coherent chain of analysis, be justified in light of the legal and factual constraints, and address the central evidence and arguments. It is not enough for a tribunal decision to identify the correct statutory provisions; it must also reasonably apply them to the record and its own prior directions. Applying those principles, the court scrutinized the Registrar’s reasons, the various directions given during the life of the investigation, the archaeologist’s reports and invoices, and the earlier undue financial burden decision.

Errors in the Registrar’s treatment of the scope of the investigation

The court held that the Registrar’s reconsideration decision was unreasonable for several interlocking reasons. First, the Registrar failed to properly account for the March 28, 2023 direction, which had expanded the burial site investigation to include areas where indeterminate bones and “possible human remains” were found, and thus, by operation of the 5-metre rule in the strategy, effectively extended the investigation across the whole site as those bones were encountered. Having given that direction and acknowledged the disturbed, scattered nature of the remains, it was not open to the Registrar to later treat most of that excavation as “pure Stage 4” without grappling with how the earlier directions had turned what had started as Stage 4 work into integral parts of the burial site investigation. Second, the court found that the Registrar’s reliance on the phrase “a portion of the much larger site area subject to Stage 4 investigations,” taken from a January 2024 report, was out of context and contradicted by other evidence, including maps and correspondence where the archaeologist repeatedly explained that the burial site investigation had come to encompass the entire grid of block excavations on the property.

Critique of the tool-based and invoice-only analysis

The Divisional Court also rejected as unreasonable the Registrar’s attempt to separate reimbursable and non-reimbursable work solely by reference to tools and mesh size, and by treating “block excavation” as inherently Stage 4. The Registrar’s own October 12, 2021 instruction had explicitly authorized block excavation and mechanical topsoil removal as appropriate methods for conducting the burial site investigation within 5 metres of human remains. The later integrated strategy did not revoke that authorization or declare block excavation unsuitable for burial site investigations. In that context, it was irrational to treat all block excavation and 6 mm mesh work as necessarily Stage 4 and not part of the burial site investigation, especially when that work was precisely how indeterminate and fragmentary remains were first identified. The court concluded that it was not reasonable to assume that indeterminate bone found by 6 mm mesh would not be analyzed for the burial site investigation, or that work around such finds was categorically Stage 4. The Registrar’s chain of analysis ignored his own earlier directions and the factual realities of the disturbed site conditions.

Use of reports and invoices, oversight, and limits on reimbursement

On the evidentiary front, the court accepted that the Registrar was entitled to rely on the archaeologist’s reports and the supporting invoices to understand what work had been done where, and to ensure that only burial site investigation costs were reimbursed. However, it held that the Registrar erred by treating the invoices in isolation and discounting the narrative and mapping in the reports that explained how the burial site investigation unfolded and expanded. When those documents were read together, most of the claimed work could be seen as part of the burial site investigation, except for a narrow period of field work in November 2023 that occurred after the Registrar had directed that the investigation be stopped. The court also remarked that, acting reasonably, the Registrar should have exercised more active oversight as the investigation progressed and as costs escalated, rather than raising concerns about qualifications and documentation only after very substantial work had been completed. As to specific items, the court upheld the Registrar’s exclusion of costs for work done after the stop order and of certain analytical work that the applicants did not adequately tie to the burial site investigation in their evidence. Nonetheless, those limited points did not salvage the overall decision, given the larger flaws in the Registrar’s approach to the scope of the investigation.

Failure to reconcile with the earlier undue financial burden decision

A further key flaw was the Registrar’s failure to explain the sharp departure from the June 22, 2023 undue financial burden decision, which had accepted that an estimated $504,699 to complete the burial site investigation appeared reasonable in light of the disturbed Indigenous site and scattered remains. The later decisions in March and April 2024 treated the bulk of those same costs as Stage 4 expenses without any meaningful engagement with the earlier acceptance of the reasonableness of that figure as burial site investigation costs. The court viewed this as a break in the logical chain of analysis: a reasonable decision-maker had to confront and reconcile the earlier finding, not simply ignore it when convenient.

Outcome and relief granted

The Divisional Court concluded that the Registrar’s reconsideration decision of April 18, 2024, which refused to reimburse any additional burial site investigation costs beyond $169,528.47, was unreasonable. It quashed that decision and remitted the matter to the Registrar for reconsideration in accordance with the court’s reasons. The panel declined to fix a reimbursement amount itself, holding that the record did not make a particular monetary outcome inevitable and that it remained the Registrar’s role, with expertise in the statutory scheme, to reassess the invoices and evidence under the proper legal and factual framework. In terms of litigation success and money actually ordered, the successful parties were the applicants, Carmela Taccone and Joseph Galea. The court granted their application for judicial review and awarded them their costs of the application in the agreed, all-inclusive amount of $10,000, payable within 30 days. No additional fixed amount was ordered by the court for reimbursement of the burial site investigation costs themselves, as that question was remitted and therefore the total ultimate reimbursement figure could not yet be determined.