Impact of applicant's death on human rights application

What happens when the individual in a matter before the HRTO dies before a decision is reached?

Impact of applicant's death on human rights application
Geoffrey Lowe

Exclusive to Canadian HR Reporter from Rudner Law.

“You'll never get a second chance
Plan all your moves in advance”

— You’re Dead, Norma Tanega

In Ontario, the human rights system ensures that parties are not discriminated against on the basis of a number of protected characteristics in activities such as employment or obtaining housing.

Human rights legislation provides protection from discrimination; the human rights system, such as the Human Rights Tribunal of Ontario (HRTO), is where the guarantee of protection is carried out.

In theory, the process is straightforward: the party who believes their rights were violated may bring an application to the HRTO requesting that it review the facts. If the HRTO finds that the applicant’s rights were breached, it may award damages both for the breach and the impact of this breach.

Sometimes, however, things are not as simple: for example, an applicant’s death can complicate proceedings.   

What happens when the applicant in a matter before the HRTO dies before a decision has been reached? Is the application discontinued or can the applicant’s estate continue it?

Or, what about where an applicant’s human rights are breached before their demise but the applicant does not bring an application? Is the applicant’s estate permitted to initiate and continue proceedings on their behalf?

The Human Rights Code does not explicitly address these events. Instead, the answers can be found in the HRTO’s interpretation of the Code.

Existing application

An applicant dying before their application decision is reached is not the end of the process. The HRTO has confirmed that an applicant’s estate may continue an existing application following their passing.

The HRTO addressed this in Morrison v Ontario Speed Skating Association. Rick Morrison had alleged that his employer dismissed him as a result of him disclosing an illness. On May 2, 2006, Morrison filed a complaint with the Ontario Human Rights Commission alleging discrimination on the basis of disability.

On May 21, 2006, he died of this illness. On April 7, 2009, the applicant’s wife filed a transitional application with the HRTO to move her husband’s complaint from the Commission to the HRTO.

The employer sought to have the application dismissed in light of the applicant’s death. The HRTO upheld the application, noting that if Morrison had sued for breach of contract, his estate could have maintained the action following his passing.

Morrison appears to have settled or been discontinued as there is no reported decision of the outcome. However, it demonstrates that the HRTO will permit an application that predates an applicant’s death to continue. 

No existing human rights application

What happens when the applicant did not file an application prior to their passing, and their estate seeks to start one on the behalf of the deceased?

The HRTO addressed this in Adamson Estate v Toronto Police Services Board. The deceased, a former police officer, had taken his own life. His family applied for his name to be added to the Toronto Police’s memorial wall as someone who died in the line of duty. The Toronto Police Services Board refused.

The Estate of the deceased sought to bring an application, asserting that this was a breach of Edward Adamson’s rights. The proposed responding parties objected, asserting that the Estate did not have standing to bring an application.

The HRTO reviewed the Code, noting that the definition of the word “person” it used did not include an estate, and that interpretations also had not. The HRTO indicated that it was “notable” that the Trustee Act, which allows an estate to sue in certain areas, prohibited an action for libel and slander. The HRTO noted that the basis for this prohibition was the issue of who had suffered the wrong in the instance of a dead person being defamed.

The HRTO did not state as much in the decision, but suggested that as the individual was deceased, they had no basis to seek recourse for having been defamed after death. 

The HRTO held that the same issue was relevant in this case: because the events had happened after his death, Adamson had not suffered any injury, nor had the Estate. The HRTO found that the Estate had no standing to bring an application.

The HRTO has since applied Adamson Estate for the proposition that an estate may not initiate an application on behalf of a decedent, even where the alleged wrong was done to the affected party before death. In McGuiness v. Hampton Terrace Care Centre this was found to be the case even where an individual had power of attorney for the deceased: as the application had made post mortem, it could not proceed. 

Conclusion

Whether or not a breach of a deceased person’s rights under the Code can be addressed by the HRTO is based on whether the application was brought before the affected individual passed on. This does not need to be brought by the individual themselves, as the Code permits another party to be designated as the individual’s representative for purposes of the matter.

However, irrespective of when the wrong is done to the individual, an application may not be brought by their Estate or any other party after their death. An existing application is something that can be passed on: an existing or new wrong is not.

Geoffrey Lowe is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].

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