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: January 7, 2011 Citation: 2011 HRTO 18 Indexed as: Morrison v. Ontario Speed Skating Association
WRITTEN SUBMISSIONS
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 initiate and pursue an Application alleging a breach of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) when she acquired authority to represent the estate of the applicant two years after she purported to bring the Application.
2The applicant was hired to perform the duties of Executive Director for the Ontario Speed Skating Association (the “Association”) in November 2004.
3In October 2005, the applicant advised the Association that he had been diagnosed with cancer. The applicant alleges that after advising the Association of his illness, the Association 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.
4On 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.
5On April 7, 2009, the applicant’s wife filed this transitional Application in respect of her deceased husband’s complaint.
6On February 3, 2010, the applicant’s spouse was appointed Estate Trustee without a Will in respect of the estate of the applicant.
7The respondents argue 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.
8The respondents rely upon the case of Clark v. Toshack Brothers (Prescott) Ltd., 2003 HRTO 27 (“Clark”), 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. They note that at the time the applicant’s spouse purported to file the transitional Application, she had no authority to do so.
9The respondents also rely upon the case of Farlow v. Hospital for Sick Children, 2009 HRTO 739 (“Farlow”). 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).
10The intervenor argued that the respondents are attempting to insert into this administrative process a technicality that would not prevent a civil action from proceeding in similar circumstances. One of the purposes of administrative law is to provide an informal and fair process for determining the merits of the dispute with less formality than a court process. There is nothing unfair in permitting the Application to proceed as the respondents have been aware of the allegation of discrimination since the summer of 2006. It would be unfair to dismiss the Application upon the technicality that the applicant’s spouse did not obtain formal authority to act on behalf of the estate until February 2010.
11The intervenor notes that the Rules of Civil Procedure address this circumstance. In particular, Rule 9.30 provides that a proceeding commenced by an executor before probate has been granted is deemed to have been properly constituted from the beginning if the executor later receives a grant of probate.
12The intervenor submits that the Tribunal should not consider the Application a nullity and distinguishes the cases of Farlow and Clark, relied upon by the respondents. In Farlow, the parties apparently agreed, without argument, that the Commission action in adding the estate was “nullity.”
13In Clark, the Tribunal’s comment that the administrator has no power to act until that person has been appointed by the Court was an obiter statement.
Analysis and Conclusions
14The situation is this. The applicant filed a complaint of discrimination in 2006. He died. The applicant’s wife purported to represent his estate since that time, including filing the transitional Application in April 2009. However, it was not until February 2010 that she obtained formal authority to represent the estate.
15The respondents submit that the transitional Application is a legal nullity, as the applicant’s spouse had no authority to file the transitional Application and the time for doing so has now passed.
16I do not accept the respondents’ assertion that the transitional Application is a nullity because it was filed before the applicant’s spouse had legal authority to act. The common law principle to treat actions of the estate as a nullity (which has since been altered by Rule 9.03) does not apply to this Application as it is not a common law action.
17One of the purposes of administrative law is to provide an informal and fair process for determining the merits of the dispute with less formality than a court process. There are many statements in the jurisprudence and the commentaries reflecting this principle and the intervener cited the following:
One reason for conferring powers of decision upon administrative tribunal rather than upon the courts is to provide an expeditious and fair method of settling certain types of disputes with less formality than found in court proceedings and with an emphasis on mediation.
It is therefore not surprising that tribunals are rarely expected to follow court procedure. Their procedure must be flexible and based on a desire to deal fairly with the matters in issue and the parties concerned. Tribunals should adopt procedures than enable them to consider each case on its merits. They should avoid becoming bogged down with procedural formalities and technicalities.
This, of course, does not mean that tribunals may ignore the basic tenets of fair procedure and act arbitrarily. Some procedural formality is necessary to ensure that the public feel that they have been fairly treated. Fairness is the essential purpose of all procedural rules. However, common sense should prevail over legal formalism. Blake, Administrative Law in Canada (3rd ed.), (Butterworths, Toronto, 2001) at pp 5-6).
18In my view, it would be overly formally legalistic to refuse to process this Application because the applicant’s spouse did not obtain formal authority to act on behalf of the estate of the applicant until February 2010. The question is one of fairness.
19There is nothing unfair in permitting the Application to proceed as the respondents have been aware of the allegation of discrimination since the summer of 2006. It would be unfair to dismiss the Application upon the technicality that the applicant’s spouse did not obtain formal authority to act on behalf of the estate until February 2010.
20Accordingly, I conclude that the Application may proceed. The Registrar-Transition will contact the parties to set a date for hearing or mediation as desired.
Dated at Toronto, this 7th day of January, 2011.
”signed by”_________
Kaye Joachim Member