Morrison v. Ontario Speed Skating Association, 2010 HRTO 1058

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rick Morrison

Applicant

-and-

Ontario Speed Skating Association, Stephen Arnold, Dennis Duggan, Jim Elliot, Robert Miller and Hugh Morrison

Respondents

-and-

Ontario Human Rights Commission

Intervenor

interim DECISION

Adjudicator: Kaye Joachim

Date: May 13, 2010

Citation: 2010 HRTO 1058

Indexed as: Morrison v. Ontario Speed Skating Association

WRITTEN SUBMISSIONS

Rick Morrison, Applicant ) Debra Morrison,

) Representative

Ontario Speed Skating Association, ) Patty Murray,

Stephen Arnold, Dennis Duggan, Jim Elliot, ) Counsel

Robert Miller and Hugh Morrison, Respondents )

Ontario Human Rights Commission, Intervenor ) Anthony D. Griffin,

) Counsel

1This Interim Decision addresses whether the estate of a deceased applicant may continue to pursue an Application alleging a breach of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2The applicant was hired to perform the duties of Executive Director for the Ontario Speed Skating Association (the “Association”) in November 2004. In June 2005, a new Board of Directors was elected. The personal respondents were all elected members of the Board from June 2005 to June 2006.

3In October 2005, the applicant advised the Board that he had been diagnosed with cancer. The applicant alleges that after advising the Board of his illness, the Board gradually reduced his work duties in an attempt to phase him out of his employment. On February 23, 2006, he received notice of termination of his contract.

4The respondents assert that they granted the applicant time off with pay and benefit coverage to obtain treatment. However, they did notice performance issues. Due to financial difficulties they decided to eliminate the positions of Executive Director and Development Director and combine the two positions into a new position of Director of Sport Development. The applicant and the Development Directors were both advised on the same date that their employment was terminated due to financial reasons effective April 23, 2006.

5On May 2, 2006, the applicant filed a complaint with the Ontario Human Rights Commission alleging discrimination in employment on the basis of disability contrary to section 5 of the Code. On May 21, 2006, shortly after filing the human rights complaint, the applicant died.

6On April 7, 2009, the applicant’s wife filed this transitional Application in respect of her deceased husband’s complaint.

7The respondents filed a Request for Order during Proceedings seeking the dismissal of the Application in light of the applicant’s death. The Ontario Human Rights Commission (the “Commission”) filed a Request to Intervene to make submissions on the issue whether the estate of a deceased person may pursue an Application under the Code, and included those submissions together with their Request to Intervene. The respondents opposed the Commission’s Request to Intervene and responded to the Commission’s submissions.

Intervention

8The Tribunal’s Rules of Procedure for Transitional applications provides for intervention:

14.1 The Tribunal may allow a person, organization or the Commission to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an Intervenor will be permitted to participate in a proceeding.

9Some of the factors the Tribunal has considered in determining whether to grant intervention include:

• Whether the intervention will unduly delay or prejudice the determination of the rights of the parties;

• Whether the Intervener has a significant interest in the issue on which intervention is sought;

• Whether the Intervener is likely to provide assistance to the board that will not otherwise be provided: Jeppesen v. Ancaster (Town) Fire & Emergency Services (2001) 39 C.H.R.R. D/137, 2001 CanLII 26209 (ON H.R.T.)

10In my view, the Commission’s intervention will not delay the Application as no hearing is scheduled at this time and the Commission made its submissions in a timely fashion. I accept that the Commission, given its role in the current Human Rights system, has a significant interest in the development of the law in this area. I am also satisfied that the Commission is likely to provide assistance to the Tribunal that would not otherwise have been provided. The applicant’s wife was not able to provide any meaningful submissions on the issue.

11Accordingly, I grant the Commission Intervenor status for the purpose of making written submissions on the issue whether the estate of a deceased person may continue with an application after the applicant’s death and for the other issue identified below. I have reviewed and considered their submissions.

ANALYSIS AND DECISION

Do the rights of an applicant abate upon death?

12The respondents submitted that the Code does not contemplate that a deceased person may pursue an Application. The rights under Part I of the Code are framed as personal rights. For example, subsection 5(1) which prohibits discrimination in employments states:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability

13The Code contemplates that a person can bring an application on behalf of another person. Section 34(5) states:

34(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

14The respondents argued that section 34(5) demonstrates the Legislature’s intention to allow a person to have assistance from another person or organization in fling an application under the Code. However, had the Legislature intended deceased persons’ right to be enforced by another person, the Legislature would have explicitly provided this right. The requirement of consent, which cannot be obtained by a deceased person, negates such an intention.

15It is not novel to observe the general principle that a broad, policy-based and liberal interpretation must be given to human rights legislation and the policies behind such legislation. See Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665; B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403), at para. 44.

16In my view, the lack of a specific provision to deal with deceased persons is not indicative of any Legislative intention about what happens to an application after the person’s death and would be counterintuitive to the above general principles.

17The respondents also urged me to follow the approach of the British Columbia Court of Appeal in British Columbia v. Gregoire, 2005 BCCA 585, leave to SCC ref’d 2006 CanLII 10838 (“Gregoire”). In that case, the British Columbia Human Rights Tribunal determined that it had the jurisdiction to hear a complaint from Mr. Goodwin filed on his behalf by his mother, Ms. Gregoire, after the complainant’s death and before a hearing. See Goodwin v. B.C. (Ministry of Public Safety), 2004 BCHRT 25. The British Columbia Supreme Court overturned that decision and ruled that the rights established under the British Columbia Human Rights Code were personal rights that abated on the death of the person whose rights had been breached. See: HMTQ v. Gregoire (2005), 39 B.C.L.R. (4th) 1, 2005 BCSC 154. The British Columbia Court of Appeal upheld that decision.

18I acknowledge that the British Columbia Human Rights Code and the Ontario Code contain similar language with respect to a person’s right to be free from discrimination. Therefore, I have carefully considered the British Columbia authorities.

19In Gregoire the British Columbia Supreme Court and Court of Appeal relied upon four cases to support the principle that a human rights applicant’s rights to claim a breach of the human rights code abate upon his death: Stinson Estate v British Columbia (1999), 1999 BCCA 761, 70 B.C.L.R. (3d) 233, 199 BCCA 761: Wilson Estate v. Canada (Attorney General) (1996), 25 B.C.R. (3d) 181 (S.C); Re Cadeddu and the Queen, 41 O.R. 92d) 481 and Collins v Abrams 2004 BCCA 96, [2004] B.C.J. no. 376.

20In Stinson Estate, the estate of a deceased brought an application to the Workers Compensation Board to pay survivor’s benefits to the deceased. The underlying claim related to alleged breach of section 15 of the Charter. The British Columbia Court of appeal held that section 15 equality rights are personal rights that do not survive the death of the applicant. A similar conclusion was reached in Wilson Estate.

21I note that the Supreme Court of Canada has endorsed the Stinson Estate approach in Canada (Attorney General) v. Hislop 2007 SCC 10, [2007 1 S.C.R. 429 (although Hislop was not referred to by the British Columbia Supreme Court or Court of Appeal). The Court stated at paragraph 73:

…. In the context in which the claim is made here, an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed. The use of the term “individual” in s. 15(1) was intentional. For these reasons, we conclude that estates do not have standing to commence s. 15(1) Charter claims. In this sense, it may be said that s. 15 rights die with the individual. (emphasis added)

22I am also aware that the Ontario Court of Appeal in Giacomelli Estate v. Canada (Attorney General), 2008 ONCA 346 at paragraph 16, accepted that Hislop is binding precedent for the principle that an estate cannot continue a claim based on section 15(1) of the Charter.

23I acknowledge that there are similarities between a claim alleging a breach of the right to equality under section 15 of the Charter and a claim alleging a breach of the right to be free from discrimination under the Ontario Code.

24However, the Ontario Divisional Court has suggested that, although section 15 Charter analysis of discrimination may be applicable in interpreting the Ontario Code where government legislation, programs or services are at issue, it is far from clear whether a similar legal analysis is required in cases involving private actors. See Ontario (Attorney General) v. Ontario (Human Rights Commission), 2007 CanLII 56481 (ON SCDC), [2007] O.J. NO. 4978 (Div.Ct) at para 47; Ontario (Director, Disability Support Program) v. Tranchemontagne, 2009 CanLII 18295 (ON SCDC), 95 O.R. (3d) 327; 2009 CanLii 13295.

25I recognize that the Ontario cases cited above were not addressing the specific issue before me, whether a Code claim is akin to a Charter claim, such that both should be recognized as personal rights that abate upon the death of the applicant. However, in my view, the Ontario Courts have given a clear indication that they consider that claims against private actors under the Ontario Code should not necessarily be considered akin to claims under section 15 of the Charter with respect to government legislation, programs or benefits.

26In that sense, I find that it is open to me to distinguish the present Application which involves an allegation of discriminatory dismissal from employment by a private actor contrary to the Code from the Stinson case relied upon in Gregoire, which involved an allegation of unequal provision of government benefits or services, contrary to section 15 of the Charter.

27In my view, a claim of alleged employment discrimination by a private employer is more similar to a common law action for breach of contract (which is not extinguished by the death of the plaintiff) than a section 15 claim of unequal provision of government benefits or services, notwithstanding the “quasi-constitutional” nature of human rights legislation.

28Had the applicant filed a civil action for breach of contract, the estate of the deceased could continue the action and obtain damages for the wrongful dismissal. Why then should the estate be barred from proceeding against the respondent in this case merely because the specific nature of alleged wrongful dismissal arises out of a potential breach of the Code?

29I also note that the Ontario Code was recently amended to permit an applicant to claim a breach of the Code in the context of a common law civil action.

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

30The effect of section 46.1 is that, if in the context of a civil action for wrongful dismissal, a plaintiff establishes a breach of the Code, the Court is authorized to make an order in respect of the Code breach. If the plaintiff died, the estate of the plaintiff would be permitted to continue the civil action, including the claim for a remedy for breach of the Code. Why then should an applicant claiming directly under the Code before this Tribunal be treated differently?

31The Gregoire decision itself is also distinguishable. Although both Gregoire and the present Application involve claims of breaches of provincial human rights statues, Gregoire involved an allegation that the provincial government had breached the applicant’s right to be free from discrimination on the basis of disability under the British Columbia Human Rights Code by failing to provide a appropriate supervision, treatment and counselling services. It was a claim against the government with respect to the provision of government services or benefits. In contrast, the Application before me involves an allegation of discrimination by a private employer. It is unnecessary for me to decide in this case whether Gregoire is a compelling precedent in the situation of a claim for government benefits and services, as this Application does not involve such a claim.

32Another case relied upon by the Court of Appeal in Gregoire is Wilson Estate. In Wilson Estate, the plaintiff was the estate of a woman who died while being detained in a police cell. The estate sued various officials alleging the defendants actions violated the deceased’s right to life, liberty and security of the person, her right not to be arbitrarily detained, her right not to be subjected to cruel and unusual punishment and her right to equal protection and benefit of the law. The British Columbia Supreme Court held that as it was the deceased personal rights and freedoms that had allegedly been violated, there was no legal basis for the administrator of her estate to bring the action. As in Stinson Estate, it is distinguishable on the basis that it involved government services.

33Another case relied upon by the Court of Appeal in Gregoire is Re: Cadeddu. Mr. Cadeddu’s parole was revoked by the Ontario Parole Board. A Justice of the Ontario Superior Court quashed the revocation of the parole and the Attorney General of Ontario appealed to the Ontario Court of Appeal seeking to set aside the decision revoking parole. After oral argument, and while the decision was under reserve, Mr. Cadeddu died. The Attorney General urged the Ontario Court of Appeal to issue a decision in any event, which they refused to do. The Court of Appeal held that the general principle is that an appeal abates where the person charged or the subject of the proceedings has died pending an appeal. In my view, the factual circumstances of that case are so substantially different from the present that it cannot be considered a binding precedent with respect to the issue whether a claim for employment discrimination under the Code abates upon the death of the claimant.

34The final case relied upon by the British Columbia Court of Appeal in Gregoire was Collins. Mr. Collins had been a respondent to a complaint before the British Columbia Human Rights Tribunal. He sought judicial review of the Tribunal’s decision against him on the basis that section 7(1) (b) of the British Columbia Human Rights Code violated his right to freedom of expression under section 2(b) of the Charter. Mr. Collins died before his constitutional challenge was heard in court. The Court of Appeal upheld the Chambers Judge’s decision that his death rendered the petition for judicial review moot. Although there are similarities between issues of mootness upon death and abatement upon death, this decision stands for the proposition that the constitutional challenge in question was moot. I do not find it a compelling precedent for the argument that a claim of employment discrimination under human rights legislation abates upon the death of the applicant.

35In summary, I conclude Gregoire is distinguishable on the basis that it involved a human rights claim against government in respect of government services. Alternatively, if Gregoire is not distinguishable upon that basis, I find that the cases that suggested section 15 equality rights are personal rights that abate upon the death of the applicant are not compelling precedent to find that human rights claims against private actors are similarly personal rights that abate upon death.

36I conclude that this particular claim under the Ontario Code alleging employment discrimination against a private employer does not abate upon the death of the applicant.

Are the applicant’s rights extinguished by the common law?

37Historically, a common law cause of action in tort was extinguished when the plaintiff died by the common law maxim, actio personallis moritur cum persona. The maxim actio personallis moritur cum persona applied to actions in tort, but not to actions in contract: McCulloch v Green, [1995] B.C.J. No. 567. The Legislature stepped in to alter the common law and the Trustee Act, 1990, c. T.23, as amended, now provides that tort actions are not automatically extinguished upon the death of the plaintiff.

38Section 38(1) of the Trustee Act, states:

38.(1) 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.

39The respondents assert that a human rights application is not an “action” within the meaning of the Trustee Act, is therefore not saved by section 38 of the Trustee Act, and is therefore extinguished by the death of the applicant. The respondents rely upon the decision of the Ontario Court of Appeal in West End Construction Ltd. v. Ontario Human Rights Commission (1989), 1989 CanLII 4088 (ON CA), 62 D.L.R. (4th) 329 (Ont.C.A.) (“West End Construction”). In West End Construction, the issue before the Court was whether a complaint under the Code was an “action” within the meaning of the Limitations Act and the Court concluded that it was not.

40I agree with the submissions of the Commission that an application under the Code is not a common law action. It is a statutory claim. See: Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181; Honda Canada Inc. v Keays, 2008 SCC 39, [2008] 2 S.C.R. 362 at para 64. As a statutory claim, it cannot be extinguished by the common law. See Stevenson v. Canadian National Railway Co., [2001] C.H.R.D. no. 28 (CHRT).

41It is unnecessary for me to decide whether a human rights application is an “action” within the meaning of s. 38 of the Trustee Act as I have found that the statutory claim under the Code is not extinguished by the common law.

42In plain language, at one time, the rule at common law was that a common law cause of action died along with the plaintiff. Since a claim under the Code is not a common law action, a common law principle that might otherwise extinguish the applicant’s claim is irrelevant.

43I conclude that the applicant’s human rights Application is not a common law action and is not extinguished by his death.

Prejudice to the Respondents

44The respondents submitted that the death of the applicant causes significant prejudice to them, such that it would amount to an abuse of the Tribunal’s process to permit the Application to proceed.

45They note that the only evidence of the applicant is hearsay evidence as set out in the original complaint filed with the Ontario Human Rights Commission, and that they have had no opportunity to cross-examine the applicant on this statement.

46I find that it would be premature to dismiss the Application at this stage on the basis of potential prejudice to the respondents. The adjudicator hearing this Application, if it proceeds, will determine whether to admit the complaint as evidence, and what weight, if any to give to the statement, having regard to the availability of any other evidence regarding the circumstances surrounding the applicant’s dismissal.

Identity of the Applicant

47At the time Janice Morrison filed the Tribunal application in April 2009, she mistakenly identified herself as the “applicant” on the TR-1 Form. The respondents seek to rely upon this error to bar to the Application on the basis that Ms. Morrison is not the proper applicant. I exercise my discretion to waive the technical error in the transitional application whereby Ms. Morrison listed herself as the applicant. It is evident that Ms. Morrison was intending to make the transitional application on behalf of her deceased spouse. The TR-1 is amended to reflect that the applicant is the estate of the deceased.

Evidence of Authority to Act on behalf of the Estate

48In a prior interim Decision, 2010 HRTO 102, dated January 18, 2010, and in accordance with Rowsell v. Johnson-Rose, 2009 HRTO 1580, I directed the Ms. Morrison to provide evidence establishing that she is authorized to act on behalf of the estate of the applicant. In response Ms. Morrison submitted documentation establishing that, on February 3, 2010, she was appointed the Estate Trustee without a Will in respect of the estate of the applicant.

Applicant’s Spouse not Estate Trustee at Time Application was Made

49The respondents submitted in their reply submissions that at the time Ms. Morrison made the Application in April 2009 she was not formally authorized to act on behalf of the estate, as the Certificate of Appointment was granted on February 3, 2010.

50The respondents rely upon the case of Clark v. Toshack Brothers (Prescott) Ltd., 2003 HRTO 27, in which the Tribunal confirmed that only an executor or administrator (now Estate Trustee and Estate Trustee without a will) has the legal authority to represent the estate.

51The respondents also rely upon the case of Farlow v. Hospital for Sick Children, 2009 HRTO 739. In that case, the applicant was the mother of a deceased child. She made a complaint in her own name to the Commission. The Commission purported to add the estate of the deceased child, by her mother as litigation guardian, as a party to the complaint. The Tribunal held:

All parties are in agreement that, in order to have status to initiate any legal proceeding on behalf of a deceased infant, the applicant needs to make an application to the Ontario Superior Court to obtain a Certificate of Appointment of Estate Trustee without a will. No such certificate had been obtained at the time the complaint was filed with the Commission, with the result that the Commission’s purported action to add the Estate of Annie Farlow as an additional complainant was a nullity (at para 14).

52I note that this argument was raised for the first time in the respondents’ reply submissions. This is not a criticism of the respondents as they only learned of the date Ms. Morrison acquired authority to represent the estate of the applicant in February 2010, shortly before their reply submissions were due. However, it does mean that the applicant and the Intervenor have not yet had an opportunity to respond to the arguments set out in paragraphs 28 to 30 above.

53Accordingly, the applicant and the Intervenor, if desired, may file submissions in response to the paragraph 3 to 13 of the respondents’ reply submissions within 21 days of receipt of this Interim Decision. The respondents shall have 14 days to file a reply, if desired.

54The Tribunal will issue further directions as required.