How do I use MacCormick's approach to determine whether there is one or morediscernibleratio(orrationes)decidendi in a court decision?

[1]COULTER CJ: This sad case arises out of the death by accident on 1 May 2021 of Lyra Silver, a young 27-year-old woman, who was brought up in the Muslim faith. Her husband, Roger Silver, the respondent, seeks to have his deceased wife's remains cremated, in accordance with what he perceives were herexpressed wishes. Lyra Silver's father, Kassem Kafeel, the appellant, seeks to prevent the cremation and to have his daughter's remains disposed of by burial because one of the fundamental tenets of the Muslim faith is that, if a body is not somehow buried in the ground, it cannot be properly received by God. I have no doubt that each party wishes to do the right thing. It is unfortunate that their views of what is right in the circumstances are irreconcilable and that it has been necessary to seek a legal resolution of the issue.

[2] The questions to be decided are on whom the duty to dispose of the remains falls and what is the nature of the duty imposed upon that person. At trial, Costa J found for Mr Silver (then the defendant) and dismissed Mr Kafeel (then theplaintiff's) application. For the following reasons,she was correct to do so.

[3] The essential facts of the case may be briefly stated. Lyra Silver grew up in a Muslim household. She and Roger Silver were married in a mosque on April 14 2018. Roger Silver converted to the Muslim faith for the purposes of marrying Lyra. Around February 14 2019, Lyra Silver communicated to her husband an abhorrence of burial and expressed the wish to be cremated in the event of her death. Lyra Silver died on May 1 2021 without a will, and Roger Silver was appointed as administrator of her estate on May 21 2021. As administrator, RogerSilver's obligations include the identification of beneficiaries and the distribution of Lyra Silver's assets among those beneficiaries. In addition, Roger Silver has stated,quite understandably, that he believes it to be his duty as administrator to carry out Lyra Silver's expressed wish to be cremated and not buried. Although I am satisfied that, prior to her death, Lyra Silver did express the wish to be cremated, that is not dispositive of the issues before me, as an expressed wish of a person directing the disposition of his or her body cannot be enforced in law even if stated in a will or other instrument: seeWilliams v Williams(1882) 20 Ch D 659, 665.

[4] It is not disputed that, upon the death of a person, a duty arises to bury or otherwise dispose of the remains in a decent and dignified fashion. The first issue to be determined is upon whom that duty falls.

[5] InHunter v Hunter[1930] 4 DLR 255, 65 OLR 586 (HC), the deceased, who had been a Protestant, expressed his desire to be buried in the place where his wife would be buried, which would have been a Roman Catholic cemetery. He converted to Roman Catholicism before his death. On his death, there was a contest between family members as to where he should be buried.

Page 4 of 12

[6] At263-4,McEvoyJstated:

The law as to who has the right to the possession of a dead body for the purposes of burial, as distinguished from the question of upon whom a duty of burial devolves, may not be entirely well settled. In 3 Hals., p. 405, para. 851, it is stated:

a.'The law as to the persons upon whom the duty of disposing of a dead body falls, and as to the nature of that duty, is imperfectly developed.'

[7] Itistheresaidalsothatthereisauthorityforthepropositions:(a)thattheduty is incumbent upon the executor; (b) on the husband of a deceased wife; (c) on the parent of a deceased child; and (d) on any householder on whose premises the body lies.

[8] Afterreviewingtheauthorities,McEvoyJconcludedthattheexecutor,whowas the deceased's son, had the right to have the body for the purposes of burial over the competing claim by the widow. It goes without saying that the same right extends to an administrator who is, after all, simply an executor by a different name, being someone appointed to deal with an estate when there is no will.

[9] InWilliams v Williams,at 664, Kay J quoted with approval fromWilliams on Executors, 6th ed, at 906, where it was said: 'It is now proposed to consider theduties of an executor or administrator. And first, he must bury the deceased in amanner suitable to the estate he leaves behind him.' Kay J went on to state:

It has been argued that this only applies to the expenses of the burial; but I do not agree with that contention. It means, and I understand the law of this country to be, thatprima faciethe executors are entitled to the possession and are responsible for the burial of a dead body ...

[10] In the light of these authorities, I conclude that the duty to dispose of the remains of Lyra Silver falls upon the administrator of her estate, and that Roger Silver therefore has the right to have the remains for the purpose of disposing of them.

[11] Having determined upon whom the duty falls, the second issue to be determined is the nature of the duty imposed on the administrator, Roger Silver.The old common law cases referred to the duty as being a duty to provide a 'decent Christian burial'. That has been modified with the times. InR v Price(1884), 12 QBD 247, Stephen J held thatthe term 'Christian burial' as used was obviouslyinapplicable to persons who were not Christians.

[12] Counselfortheappellant,KassemKafeel, acknowledged that both burial and cremation could be dignified methods of disposal of a body, but, he submitted, not in every situation. He argued that it would depend on the circumstances. In considering the nature of the common law duty to be imposed, counsel for the appellant asked me to consider the wisdom shown in a general reading of the ancient common law cases as opposed simply to considering specific principles enunciated.

[13] I should state that, in view of counsel's submissions, I have perused the authorities put before me by counsel rather than going simply to the specific principles in the cases referred to by counsel. Having done so, I have concluded simply that the fundamental duty or obligation is that the remains be disposed of in a decent and dignified fashion. Further, disposal by either means (burial or cremation) would meet the requirement for disposal in a decent and dignified fashion. InAbeziz v Harris Estate[1992] OJ No 1271, Farley J proceeded on the understanding that in this area of the law there are only legal obligations, and that, in the legal sense, none of the rights of the appellant, Kassem Kafeel, as a parent are being affected.

[14] Roger Silver, as administrator of the estate of Lyra Silver, has the sole right to determine how to dispose of the last remains of Lyra Silver. As I stated earlier in this judgment, the expressed wishes of a person as to the disposition of his or her body cannot be enforced in law. Nevertheless, there is nothing to prevent an executor or administrator, on whom the duty falls to dispose of the remains, from carrying out the deceased's lawful wishes concerning the disposal of his or her body: seeAbezizat 20. Accordingly, Roger Silver, as administrator, may carry out the wishes that Lyra Silver expressed to him with respect to cremation, if he so chooses. The appeal is dismissed.