HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda Denham
Applicant
-and-
Hamilton Health Sciences Volunteer Association and Tonia Quinlan
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Denham v. Hamilton Health Sciences Volunteer Association
WRITTEN SUBMISSIONS
Timothy Denham ) Herman Faber, Counsel
Hamilton Health Sciences Volunteer Association ) Mark Zega, Counsel
and Tonia Quinlan, Respondents )
)
1The applicant, Linda Denham, passed away after filing this Application. She did not have a will. Her husband, Timothy Denham, seeks to continue the Application without being appointed by a court as estate trustee. He asserts that pursuant to its inherent powers to control its process, the Tribunal can and should appoint him as personal representative for the estate and order that he is entitled to any award that may result from the proceedings. The respondents oppose such an order. For the reasons that follow, I find that an estate trustee must be appointed by a court before the Application can proceed.
BACKGROUND
2Following the filing of the Application, Response, and Reply, Ms. Denham’s husband, daughter, and son wrote to the Tribunal advising that she had passed away suddenly and unexpectedly. They advised that they wanted to continue to pursue the Application in her memory and that they were taking steps to have an estate trustee appointed, as they had been directed to do by the Tribunal.
3Through counsel, Timothy Denham then filed a statutory declaration which indicated, among other things, that most of Ms. Denham’s assets passed by law to him as the surviving joint owner. It states that the bulk of Ms. Denham’s estate consists of her personal possessions and this claim. It states that Mr. Denham has been advised by counsel that, as the surviving spouse, he is entitled to a preferential share of the estate pursuant to the Succession Law Reform Act, R.S.O. 1990, c. S.26 in the amount of $200,000.00, and is therefore the sole beneficiary of the estate. He states that if appointed as the personal representative of the estate, he undertakes to protect the interests of the estate and to fully comply with any order or directive of the Tribunal.
4In a Case Assessment Direction dated January 24, 2012, the Tribunal sought submissions from the parties on the questions (i) whether the Application may proceed in the absence of an executor appointed under a will or an estate administrator appointed by a court; (ii) whether the Tribunal has the authority to appoint an individual as the representative of an estate for the purpose of an Application, or whether only the courts may make an order with such an effect; and (iii) if the Tribunal has the authority to make such an appointment, what should be the basis of such an order.
5Mr. Denham relies upon Clark v. Toshack Brothers (Prescott) Limited, 2003 HRTO 27 (“Clark”), for the proposition that the Application can proceed without the appointment of an Estate Trustee. He also relies upon Yuill v. Canadian Union of Public Employees, 2011 HRTO 126 (“Yuill”), in which the Tribunal found that as part of the power to control its procedure, it can appoint a litigation guardian to conduct tribunal proceedings on behalf of a person without legal capacity. He emphasizes the general legal principle that Tribunal proceedings should be less formal than those of courts, and argues that given the modest circumstances of the family and the complexity of the application for appointment of estate trustee without a will in the Superior of Court of Justice, which may involve the posting of a bond as security, the Tribunal should avoid hardship to the applicant’s family if possible.
6The respondents argue that before the Application can proceed, there must be an order appointing an Estate Trustee by the Superior Court of Justice. They concede based on Clark that the Application can continue without an estate trustee, but note that the distribution of any funds payable as a result of settlement or decision could not be possible without an order of the Superior Court of Justice (para. 21). They submit that from a practical perspective, it would not make sense to proceed. They do not accept the applicant’s analogy to Yuill, noting that case was about access to someone incapable of making their own decisions. They rely on cases predating Yuill for the principle that the Tribunal cannot take on a power that lies in the Superior Court of Justice: the appointment of an estate trustee without a will.
7In reply, Mr. Denham argues that he is asking the Tribunal recognize him as the personal representative of the estate. While he suggests that it may not be necessary that Mr. Denham apply for an appointment from a court to obtain any financial award, any such requirement should only take effect if there is an award or settlement.
ANALYSIS AND DECISION
8I note that neither party challenges the fact that an estate may continue an Application under the Code. See Morrison v. Ontario Speed Skating Association, 2010 HRTO 1058. The issue here is whether an executor or estate trustee must be appointed before that can happen. I do not agree with the applicant that this is merely a matter of the Tribunal controlling its own procedure or that the Tribunal has the authority to allow someone to represent the estate outside the specific procedure for that purpose established in estates legislation.
9Despite the respondent’s concession, I do not agree that Clark is authority for the proposition that in the current human rights regime, an application can be continued where no administrator has been appointed for the estate of a deceased applicant. Clark was decided under the previous human rights system in which complaints were filed with the Ontario Human Rights Commission, then referred to the Tribunal. Pursuant to s. 39(2) of the old Code, the Commission had “carriage of the complaint” and was a party to the complaint before the Tribunal. The Tribunal’s reasoning in Clark depended upon the fact that the Commission was a party with a separate status from the complainant. See paras. 17-19. In my view, Clark has no application to the present case, where the only parties to the Application under the current Code are the applicant and respondents.
10I also do not agree that appointing a personal representative for an estate is a matter of procedure that falls under the Tribunal’s powers. Under the Estates Administration Act, R.S.O. 1990, c. E.22, s. 1, a “personal representative” has a specific meaning: “an executor, an administrator, or an administrator with the will annexed”. Pursuant to s. 2 of that legislation, on a person’s death, all real and personal property that does not pass by right of survivorship devolves to and becomes vested in his or her personal representative. Under the Estates Act, R.S.O. 1990, c. E.21, s. 7(1), an application for a grant of probate or letter of administration must be “made to the Superior Court of Justice and filed in the office for the county or district in which the testator or intestate had at the time of death a fixed place of abode”. Taxes are to be paid on the appointment of an estate trustee pursuant to the Estate Administration Tax Act, 1998, S.O. 1998, c. 34. Where a person dies intestate, no distribution may be made for one year. See Estates Administration Act, s. 28.
11What the applicant asks is fundamentally different from the appointment of a representative for a person without legal capacity as in Yuill. In Yuill, the Tribunal found that the power to control its own process under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, allowed it to exercise a similar procedural power to that found in the Rules of Civil Procedure, where a court may appoint a litigation guardian for the purpose of its process only under Rule 7. This is a power that has been exercised by various statutory courts and administrative tribunals. See Yuill at paras. 12-14.
12In contrast, the courts do not have a power to allow an action to be brought on behalf of an estate without an executor or estate trustee, and Mr. Denham has cited no other circumstance in which such a power has been found. A court action or application by an estate must be brought by an executor or estate trustee. See Rule 9.01 of the Rules of Civil Procedure. Only where a proceeding is commenced or continued against an estate may a litigation administrator be appointed for the purposes of the proceeding in the Court. See Rules 9.02 and 9.03.
13There are other important differences between the appointment of a litigation guardian for a person without legal capacity and what Mr. Denham requests. A person without legal capacity to carry on litigation owns property, and may have capacity for many decisions other than litigation. Ensuring equivalent access to the legal system for persons with disabilities was an important value underlying Yuill. See paras. 15-17. In contrast, an estate must act in a specific manner and exists for a limited time and purpose, and the same considerations of access for persons with disabilities do not arise. There is a comprehensive statutory regime governing estates that provides for a specific process for the estate to be constituted and for a representative to be appointed. The Estates Act requires that an application for a grant of probate or letter of administration be made to the Superior Court of Justice, and the Estates Administration Tax Act requires that taxes be paid as part of that process. Bypassing that regime as Mr. Denham asks would be inconsistent with these statutes. The Tribunal’s general procedural powers cannot override clear and comprehensive statutory provisions that provide for the appointment by a court of a person or persons to control an estate’s assets and make decisions on its behalf.
14This Application, therefore, cannot proceed without the appointment of an estate trustee. In the circumstances, the Application will be held in abeyance for up to six months while the necessary steps are taken. If the Tribunal receives no communication from the estate within six months from today’s date, the Application may be dismissed as abandoned.
15I am not seized.
Dated at Toronto, this 30th day of April, 2012.
”signed by”________________
David A. Wright
Associate Chair