An Ontario government agency that oversees funeral homes and burials is going up against a Newcastle operator over fears a new way of disposing of a body — one the agency approved and licensed — could pose a risk to human health.

The process, called low-heat alkaline hydrolysis, uses a machine containing water and lye to break down human remains into liquid and bone. The effluent is sterilized and poured down the drain. The bones are pulverized and returned to the family.

A study by Public Health Ontario — a survey of existing research commissioned by the Ontario Bereavement Authority, after it had already licensed the funeral home — found there wasn’t enough scientific evidence to prove the low-heat method destroys prions, transmissible pathogens that can cause neurodegenerative diseases such as Creutzfeldt-Jakob disease, a rare fatal brain disorder.

This week, the provincial bereavement authority will be at the Ontario Court of Appeal asking for a stay of a Divisional Court ruling that allowed Trevor Charbonneau, owner of the Newcastle Funeral Home in Durham Region, to resume operations.

The case began when the bereavement authority revoked Charbonneau’s licence in June 2018, after an inspection of his site revealed a number of alleged operating infractions, the bulk of which related to the improper storage of chemicals. The operation of the low-heat alkaline hydrolysis machine wasn’t mentioned in the infractions.

Since then, the case has see-sawed back and forth in court.

Charbonneau was allowed to operate again after a licensing appeals tribunal, which also considered potential risks of the low-heat alkaline hydrolysis machine, ruled in May this year that he had fixed the deficiencies and there is an “absence of evidence” to show the low-heat machine is a risk to the public or safety. The low-heat machines operate for a longer period of time than high-heat machines, which the bereavement authority considers safer.

But the case went to court again and his operation was suspended until October, when the bereavement authority lost an appeal of the tribunal’s decision.

Charbonneau is now back up and running and using the machine.

Three other funeral home operators in the province — in Arnprior, Kingston and Peterborough — offer alkaline hydrolysis, all of them with high-heat, pressurized machines. The high-heat version has been used for years to dispose of animal remains used in research. Some studies of animal tissue show the process destroys prions, according to court documents.

Carey Smith, the registrar and CEO of the Ontario Bereavement Authority, says he is determined to stop Charbonneau from using the low-heat machine.

“The prior courts have said ... the burden of proof that something is unsafe is on the regulator,” says Smith in an interview. “And that’s why we’re appealing right now. I can’t let their interpretation of the law right now stand.”

“I’m not going to risk public health and safety on the (bereavement authority’s) part to say it’s OK to do this even though there’s no evidence it kills prions,” he said of low-heat alkaline hydrolysis. “And then something happens? Guess where people will be looking at.”

He says little was known about alkaline hydrolysis when Charbonneau received a licence to operate the low-heat machine.

There were already two operators in the province, one in Smith Falls, the other in Kirkland Lake. Both have since stopped operating.

Smith says they were both given licences by the former Board of Funeral Services and the Cemeteries and Crematoriums Regulation Unit, which was part of the Ministry of Government and Consumer Services.

The Ontario Bereavement Authority, an arms-length government agency, replaced the board in April 2016.

Smith says he had no reason to deny Charbonneau a licence at the time.

“I need grounds to refuse a licence,” says Smith. “I have to grant a licence for disposition techniques, regardless of what they are, unless I have grounds to say why they shouldn’t be licensed.”

Charbonneau was issued a licence. Charbonneau says he made the decision to purchase the machine, for $150,000 (U.S.), because it uses a fraction of the energy flame cremation uses and he wanted to offer families something that could be done “in house.”

He chose the low-heat version because he believed it was safer to operate than the pressurized machine, and he didn’t mind the extra time it took because he doesn’t need to process more than one body a day.

Charbonneau placed a refundable deposit on the machine in July 2017 but didn’t buy it outright until he was sure he would receive a licence.

“I was trying to do everything properly,” he says in an interview with the Star.

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The bereavement authority issued his licence in November 2017. Charbonneau also obtained a wastewater permit from the local authority after providing them with a breakdown of what is contained in the effluent.

By that time, the bereavement authority had learned more about the low-heat machines.

A bereavement authority employee had attended a conference in the U.S. earlier in the year and heard Dean Fisher speak. Fisher is a funeral director and part-owner of a company that manufactures high-heat machines.

“Mr. Fisher spoke of the benefits of the high temperature (alkaline hydrolysis) process and the risks of the low temperature process,” according to the Divisional Court ruling.

Smith says, when he heard about the risks, “the first thing I said to my field staff is, ‘Well, thank God we don’t have that machine to worry about here’ ... And then I find out that Trevor’s got one.”

That discovery came in February 2018, according to a text message exchange, included in court filings, between an employee of the bereavement authority and Smith.

“It’s a low temp unit Damn,” the employee texted.

“Argh,” replied Smith.

The bereavement authority has since instituted a questionnaire to ensure operators of alkaline hydrolysis high-heat machines have fail-safe measures in place and have met health and safety standards as well as technical standards.

The bereavement authority is not conducting any studies on the low-temperature machines, Smith says.

Municipalities are supposed to be notified if there are changes to the funeral act that could impact wastewater, according to a City of Toronto spokesperson. But in this case there have been no legislative changes. Body fluids from embalming, as well as formaldehyde, already go into our wastewater.

In Quebec, where one funeral home operates a low-heat machine, the province’s funeral act was updated to prohibit the use of alkaline hydrolysis for bodies that have a probable diagnosis of Creutzfeldt-Jakob disease or any other prion disease, active tuberculosis, as well as some other infectious diseases.

Business goes on in Newcastle. Charbonneau says he has been pleased by the popularity of the process.

“It took us by surprise,” says Charbonneau. “Out of all the families that come to us for flame cremation, and we explain both methods, we’re having 90 to 95 per cent of families choose ‘aquamation,’” he says, which is the name the manufacturer has given to the process. “The machine doesn’t stop. We’re doing one a day.”