Ontario Human Rights Commission v. Toshack Brothers (Prescott) Limited, 2003 HRTO 27

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Donald B. Clark Complainant

-and-

Toshack Brothers (Prescott) Limited and Joan Hubbard Respondents

INTERIM DECISION

Adjudicator: Matthew D. Garfield Date: November 28, 2003 Citation: 2003 HRTO 27

INTRODUCTION

1On February 22, 2001, Donald B. Clark filed a Complaint with the Ontario Human Rights Commission (“Commission”) alleging that the Respondents had denied him equal treatment with respect to employment because of his disability, contrary to subsection 5(1) and section 9 of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). The Commission referred the subject-matter of the Complaint to the Tribunal in February 2003. An Initial Conference Call with the Tribunal was held and the parties agreed to engage in fast-track mediation. Following the mediation and prior to the Pre-Hearing Conference of June 25, 2003, Mr. Clark passed away. Mr. Clark’s common law spouse, Cindy Martin, indicated that she wished to proceed and would represent the Estate in this proceeding.

2At a subsequent Pre-Hearing Conference, as a result of the Tribunal’s enquiry, it became apparent that Mr. Clark died intestate and that no Certificate of Appointment of Estate Trustee Without a Will had been issued by the Superior Court of Justice. The Tribunal directed the parties to advise it about whether an estate trustee had been appointed, and if not, when that would occur. As well, submissions were requested about whether the law requires that an estate trustee be appointed by the Superior Court of Justice or whether the Tribunal may appoint a litigation representative for this proceeding. In essence, could the proceeding continue before the Tribunal without an appointment of someone to speak for the Estate of Donald B. Clark. The Commission and Respondents filed written submissions.

ISSUE

3The Tribunal deals with the following issue: does the Tribunal have the jurisdiction to proceed in light of the death of the Complainant and without the appointment of someone to speak on behalf of the Estate of Donald B. Clark?

DECISION

4The Tribunal has the power to proceed in the absence of an appointment of an estate trustee without a will by the Superior Court of Justice.

SUBMISSIONS OF THE COMMISSION

5Mr. Griffin advises that, following discussions with Mr. Clark’s surviving common law spouse, Cindy Martin, and his sister, Nancy Craven, “[T]here is no will, and that there is no intention to have an estate trustee appointed.”

6Mr. Griffin submits that the proceeding can continue. He quotes from section 39 of the Code and the Ontario Court of Appeal decision in McKenzie Forest Products Inc. v. Tilberg (2000), 2000 CanLII 5702 (ON CA), 37 C.H.R.R. D/316 to support his argument. He also refers to four decisions of the Board of Inquiry (as it then was) as standing for the proposition that a hearing of a complaint can and should continue following the death of a complainant: Barber v. Sears Canada Inc. (No. 2)(1993), 1993 CanLII 16505 (ON HRT), 22 C.H.R.R. D/409, Ontario (Human Rights Commission) v. Vogue Shoes (1991), 1991 CanLII 13168 (ON HRT), 14 C.H.R.R. D/425, Baptiste v. Napanee and Dist. Rod & Gun Club (1993), 1993 CanLII 16495 (ON HRT), 19 C.H.R.R. D/246, Anonuevo v. General Motors of Canada Ltd. (No. 1)(1996), 1996 CanLII 20105 (ON HRT), 31 C.H.R.R. D/238.

7Mr. Griffin also submits that, “The duty of the Tribunal to continue its hearing does not depend on the provisions of the Trustee Act, s. 38.” Subsection 38(1) reads:

Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased but if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

Counsel cites paras. 80, 85 and 86 in Anonuevo as elucidating the rationale for the continuation of the proceeding. In that case, the Board held that the complainant’s death did not affect its jurisdiction to hear the matter. At para. 85, the Board wrote:

I hold that I have the jurisdiction to proceed under the Trustee Act. In addition, a complaint pursuant to the Code serves not only the private interests of individuals in being free from unlawful discrimination, but also public interest.

8Mr. Griffin makes the following written submission:

When a plaintiff in a civil action dies, it is necessary to have an executor or administrator maintain the action; there is no other party to carry the case. Conversely, under the statutory scheme created by the Code, the Commission is a party and has carriage of the complaint. That is unaffected by the death of the complainant.

9Commission counsel asserts that administrative tribunals “need not assume the trappings of a court”: Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653. Mr. Griffin continues, “The object is not to import into administrative proceedings the rigidity of court procedures but to allow administrative agencies to have systems that are flexible and fair.”

10Mr. Griffin concludes by writing:

The relevant question is not whether an estate trustee needs to be appointed by a court, or whether the Tribunal can appoint a litigation administrator. The relevant question is whether any kind of appointment is required. For reasons set out above, an appointment is not necessary. For the Tribunal to take the position that its hearing cannot proceed in the absence of an estate trustee or other appointment would be inconsistent with both the law and with the Tribunal’s rules.

SUBMISSIONS OF THE RESPONDENTS

11The Respondents’ counsel, Mr. Laushway, made his submissions in two letters to the Registrar. In the first dated October 20, 2003, he writes:

My concern [about the lack of an estate trustee] is exacerbated by the fact that Ms. Martin would not be entitled to receive under the Succession Law Reform Act. Because she and Mr. Clark were not married, she would not meet the definition of spouse under the Succession Law Reform Act. A very strong possibility exists that even if this case is settled or finally resolved, that an action or further proceedings at some point in the future could be commenced by someone who comes forward and applies, and is actually appointed by the Court, as Administrator Without a Will.

12In his second letter of November 7, 2003, Mr. Laushway writes:

We take the position that Ms. Clark [Cindy Martin] has no standing to advance this claim. Any initial concerns I had are exacerbated by the fact that we have now been informed that the sole intestate beneficiary is a minor. Without putting too fine a point on it, absent the appointment of an Administrator without a Will or absent Court approval of an Infant Settlement, any document we would sign purporting to settle any claim at this time would be worthless and unenforceable against the sole beneficiary of Mr. Clark’s estate.

I am at a loss to understand why Ms. Martin or someone else can’t apply to the Court to be appointed as an Administrator Without a Will. This is a very simple and inexpensive process.

ANALYSIS

Does the Death of a Complainant Terminate the Proceeding?

13The Tribunal accepts the proposition that the death of a complainant does not terminate the proceeding before the Tribunal under the Code and oust the jurisdiction of the Tribunal: Barber, Vogue Shoes, Baptiste and Anonuevo. And the Tribunal does not have to engage in the question, as the Board did in the cases noted above, of whether subsection 38(1) of the Trustee Act applies to proceedings under the Code. Subsection 38(1) is not applicable as there is no “executor or administer of any deceased person” in this case. In each of the four cases referred to above by Commission counsel, there was someone who had authority over the estate – namely, an executor or administrator (now called the “estate trustee”). That is not the case here. Mr. Clark died intestate and no one has been granted the authority by the Superior Court of Justice (as only it can), in the form of a Certificate of Appointment of Estate Trustee Without a Will, to represent the Estate of Donald Clark. Counsel have not presented the Tribunal with a single case where a tribunal has proceeded with a complaint where the complainant died intestate and without an estate trustee appointed by the Court. The absence of such a case, of course, is not determinative of this issue.

14The four cases noted above speak of a complaint under the Code serving not only the private interests of individuals, but also the public interest. This is an important consideration in support of the continuation of this proceeding.

Is the Appointment of An Estate Trustee Necessary?

15Mr. Griffin makes the following submission:

When a plaintiff in a civil action dies, it is necessary to have an executor or administrator maintain the action; there is no other party to carry the case. Conversely, under the statutory scheme created by the Code, the Commission is a party and has carriage of the complaint. That is unaffected by the death of the complainant.

The Tribunal agrees with the above submission, but would add the following: in the civil context, it is necessary to have an “executor or administrator maintain the action” not just because “there is no other party to carry the case” but also because only an “executor or administrator” has the legal authority over the estate, including representing it in a legal proceeding.

16The statutory mandate of the Tribunal to hold a hearing is set out in subsection 39(2) of the Code, which reads:

The Tribunal shall hold a hearing,

(a) to determine whether a right of the complainant under this Act has been infringed;

(b) to determine who infringed the right; and

(c) to decide upon an appropriate order under section 41…

17The Commission’s status as a party is separate and distinct from a complainant, although there is a mutuality of public interest. In Tilberg, the Ontario Court of Appeal held that a hearing before the Tribunal shall continue by a complainant even where the Commission has settled with a respondent. The Court emphasized the separate party status of a complainant and the Commission in the proceeding.

18The following passages from the judgment of McMurtry C.J.O., writing for the Court, in Tilberg are instructive:

Once a complaint has been referred to the Board of Inquiry [as it then was], there is no provision in the Code which limits the Board of Inquiry’s obligation to conduct a hearing into a complaint. [at para. 41]

The Commission does, of course, have a responsibility to advocate its view of the public interest and in so doing, may also advocate for the interests of the individual complainant. However, the Commission’s role as a party to the proceeding cannot derogate from the independent status of an individual complainant. [at para. 34]

I agree with the submission of the appellant that an interpretation of the Code that would not allow the complainant to proceed in the absence of the Commission is inconsistent with both the independent party status accorded the complainant in the proceedings and with the Board of Inquiry’s independent status and its duty to hold a hearing. [at para. 44]

19This case presents the flip side of Tilberg – the Commission as a separate party may proceed with taking “carriage of the complaint” before the Tribunal, in the absence of participation by a complainant (by his Estate Trustee). Similarly, if a living complainant decided that s/he was no longer willing to participate in the hearing or pursue his/her rights under the Code, the Commission could decide to continue with its “carriage of the complaint” before the Tribunal. It could call the complainant as a witness, etc. There may be an evidentiary issue which the Commission has to bear, and which may make proving its case difficult, but the death of a complainant with no estate trustee appointed, does not stop the Commission from proceeding to a hearing, successful or not. In essence, it is akin to a situation where the Commission initiates a complaint by itself or at the request of a person other than a complainant (subsection 32(2)): it still has “the carriage of the complaint”.

20The Tribunal agrees with Commission counsel’s submission that the appointment of an estate trustee is not required here. It is true that, without such an appointment by the Superior Court of Justice, no one has authority over the Estate’s assets and interests. In Oosterhoff on Wills and Succession, A.H. Oosterhoff, 5th ed., Carswell, 2001, the author writes at p. 30:

The purpose of a grant, therefore, is to invest a person with lawful authority to deal with the estate. This entails in outline: getting in the assets and administering them, bringing and defending actions on behalf of the estate, paying all lawful expenses, debts and other claims, setting up any trusts directed by the will and, finally, distributing the balance to those entitled under the will or on an intestacy, or both, as the case may be.

Unlike an executor or executrix (called “estate trustee” since 1995 pursuant to the Estate Rules of the Ontario Court (General Division) – as it then was), who derives authority from the will and has the power to act for the estate before probate, an administrator (since 1995, referred to as the “estate trustee without a will”) has no power to act for the estate until that person has been appointed by the Court. The letters of administration (since 1995 called the “certificate of appointment of estate trustee without a will”) were conclusive evidence of the intestacy of the deceased person. The power of the administrator (estate trustee) is rooted solely in that grant from the Court: see as far back as Chard v. Rae (1889), 18 O.R. 371.

The Effects of Having No Estate Trustee Here

21Without someone who has legal authority over the Estate of Donald Clark, it has no one who can sign off on a settlement. In this particular situation, the Tribunal is advised that there is a minor beneficiary. There may be other beneficiaries or creditors who would have an interest. The Children’s Lawyer would need to be given notice vis-à-vis the minor beneficiary’s interest and any distribution of funds flowing from this Complaint. Without an estate trustee, any monies awarded could not be distributed without approval of the Superior Court of Justice. However, while those issues may be relevant to the distribution of any funds payable to the Estate as a result of a settlement or an Order, if any, of the Tribunal, that does not prevent the Tribunal from fulfilling its statutory duty under subsection 39(1) of the Code.

22The Tribunal has indicated above that someone with legal authority over the Estate of Donald B. Clark need not be appointed for this proceeding to continue. Further, the Tribunal does not have the power to appoint a de facto estate trustee or litigation representative here. That appointment rests with the Superior Court of Justice. Nor does the Tribunal have the power to force the family, Children’s Lawyer or any other “interested person” in the Estate, to apply for a certificate of appointment of estate trustee without a will.

23It would have been preferable for the family to apply for a certificate of appointment of estate trustee without a will. In that case, the Estate of Donald B. Clark would have had someone who could have spoken on behalf of it. His family has chosen not to do so. The absence of a represented Complainant here, however, does not prevent the Tribunal from exercising its statutory duty. It is true that the passing of Mr. Clark denies the Tribunal the opportunity to hear his direct viva voce evidence and the Respondents from cross-examining him. But that reality would be no different with the presence of an estate trustee. From a practical perspective, none of the parties is prejudiced by the absence of an estate trustee. Indeed, the Commission has not indicated any divergence of interests between it and the Complainant, nor has it indicated any wish to withdraw from participating. On the contrary, it is asserting a strong interest to proceed with the hearing.

24As between the choice of conducting a hearing pursuant to the Code’s provisions without an estate trustee appointed, and terminating the proceeding, the law and common sense suggest the same thing. The hearing on the merits shall proceed, as scheduled, on December 19, 22, 23, 2003 in Kingston.