HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
The Estate of Edward Adamson
Applicant
-and-
Toronto Police Services Board, Toronto Police Association, Toronto Police Amateur Athletic Association, Toronto Police Senior Officers’ Organization, Bill Blair, Mike McCormack, Michael Federico, Mike Abbott, Larry Molyneaux, Stuart Eley, Charlene Baptist, Jim Coghlin and Heather Thoms
Respondents
DECision
Adjudicator: David Muir
Indexed as: Adamson Estate v. Toronto Police Services Board
APPEARANCES
Estate of Edward Adamson, Applicant
Michael Donsky and David Levangie, Counsel
Toronto Police Services Board, Bill Blair, Mechael Federico, Stuart Eley and Jim Coghlin, Respondents
Omo Akintan, Counsel
Toronto Police Association, Toronto Police Amateur Athletic Association, Mike McCormack, Mike Abbott, Larry Molyneaux and Charlene Baptiste, Respondents
Caroline v. (Nini) Jones, Counsel
Toronto Police Officers Organization and Heather Thoms, Respondents
Ian Roland, Counsel
Ontario Human Rights Commission, Intervenor
Cathy Pike, Counsel
INTRODUCTION
1This is an Application filed by the applicant, the estate of Edward Adamson, pursuant to section 34 of the the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In this Application the applicant alleges that it was subject to discrimination in employment and services on the basis of disability. The dispute concerns the placement of Mr. Adamson’s name on the Memorial Wall maintained by the Toronto Police Services Board (TPS) at the Toronto Police College and inferentially on the Honour Roll maintained by the TPS at police headquarters on College Street in Toronto. Mr. Adamson was a police officer with the TPS for a number of years and died in circumstances described in more detail below as a consequence of a tragic incident in which Mr. Adamson was involved in the course of his official duties as a police officer.
3In a Case Assessment Direction issued on July 4, 2013 the Tribunal directed that a summary hearing be held to deal with requests for early dismissal of the Application on a number of grounds including lack of standing of the applicant to bring the Application and whether all or part of the Application should be dismissed as having no reasonable prospect of success.
4The respondents in this case are the Toronto Police Services Board, Bill Blair, Michael Federico, Stuart Eley and Jim Coghlin (the “TPSB respondents”); the Toronto Police Association; Mike McCormick, Larry Molyneaux, Mike Abbott and Charlene Baptist (the “TPA respondents”); the Toronto Police Amateur Athletic Association (“AAA”); and the Toronto Police Senior Officer’s Association and Heather Thoms (the “TPSOA” respondents”).
5The Ontario Human Rights Commission intervened in this case on October 6, 2013 pursuant to section 37(2) of the Code.
6A summary hearing was held on October 2, 2013 in Toronto. All parties participated. At the conclusion of the hearing the applicant indicated that it would be seeking to amend the Application and it was agreed that the applicant would file a Form 10 seeking to amend the Application to, amongst other things, substitute another person for the Estate as the applicant. It was agreed that the Tribunal would not require the other parties to respond to the Request pending the disposition of the issues heard at the October 2, 2013 hearing. On October 16, 2013, the applicant wrote to the Tribunal and the other parties to indicate that they would not be seeking to amend the Application by the addition of the widow of Edward Adamson or his daughter Julie Adamson because neither of them believe that they have experienced discrimination on the basis of any disability of theirs.
7All of the responding parties take issue with the standing of the Estate to commence and proceed with this Application. At the hearing I asked that the parties focus their submissions on what appeared to be a unique feature of this case that unlike all of the other decisions dealing with the capacity of an estate to commence or proceed with a claim of some kind, the person in this case had been dead for some time when all of the alleged acts of discrimination took place.
8This fact situation is unique in this sense and all of the authorities referred to me by the parties are distinguishable for that reason.
9In my view this Application as currently framed must be dismissed. I find that the Estate has no standing to commence this Application because, by its very nature it is not an entity capable of experiencing discrimination and it did not do so. Given this conclusion, it is not necessary to deal in detail with the other arguments made by several of the respondents. However, I also find that the Application as it relates to the TPA, AAA and TPSOA respondents should be dismissed because it has no reasonable prospect of success as against those respondents.
THE BACKGROUND FACTS
10Mr. Adamson was a former police officer employed by the TPS for a number of years. During his employment with the TPS Mr. Adamson was witness to the murder of his partner in March 1980 in most tragic circumstances. Mr. Adamson worked for the TPS for a number of years after this incident until his retirement from the service in 1994. He was then employed with the OPP until he retired in 2004. On October 5, 2005, Mr. Adamson took his own life.
11The TPA retained an expert in WSIB claims to make a claim for WSIA benefits on behalf of the family and Estate of Mr. Adamson. This claim was successful with the WSIB concluding in 2007 that Mr. Adamson had taken his life as a consequence of post-traumatic stress disorder caused by the events in 1980. The WSIB concluded that this was a workplace injury which entitled his widow and Estate to certain benefits.
12In February 2009, the TPA at the request of the Adamson family made a formal request that a plaque in Mr. Adamson’s honour be put up on the Ontario Memorial Wall – a different memorial than those described above which is maintained by the Ontario Police Memorial Foundation. This request was denied. In March of 2009, Mr. Adamson’s widow made a request that his name be placed on the Memorial Wall maintained by the TPS. In October 2010, the TPA wrote to the respondent Blair and also requested that Mr. Adamson’s name be put on the Toronto Memorial Wall.
13These memorials are amongst a number of such displays across the country where the names of peace officers who have lost their lives in connection to their official duties are remembered and honoured. The Memorial Wall is located in the Toronto Police College. The Honour Roll is located in the lobby of the Toronto Police Service’s headquarters on College Street. Although the origins of these two memorials are different, all of the names on the Memorial Wall also appear on the Honour Roll.
14The TPS has not directly responded to Adamson family’s requests, the TPS established a working group to develop criteria for the placement of names on the Memorial Wall (and Honour Roll) as there had been no criteria in the past. The working group included representatives of the respondents TPS, TPA, AAA and TPSOA. It is not clear whether the working group has completed its work or not. A draft set of guidelines dated March 2011 was produced in this proceeding. However, the draft has never been approved and may have been amended. Surprisingly, the TPS was unable to say what the status of the draft is at present. What seems clear is that the decision with respect to the request to place Mr. Adamson’s name on the Memorial Wall and the adoption or not of criteria for placement on the Memorial Wall rests with the respondent Blair. Inexplicably, the respondent TPS’ latest advice in August 2013 is that there are other more pressing matters preventing a determination of these issues at present.
15Another police officer who has died in the course of his employment with the TPS has been memorialized since the requests on behalf of Mr. Adamson, notwithstanding the absence of criteria to be applied to such requests.
THE STANDING ISSUE
16As indicated above, the issue raised in this case is whether an estate can commence an application alleging discrimination that is said to have occurred after the death of the person and accordingly was not experienced by them. In my view, an estate has no standing to commence an application where the alleged acts of discrimination were not experienced by the person whose interests the estate administers but occurred after the person’s death. My reasons for this conclusion follow.
17Much of the argument and law presented by the parties concerned the circumstance of an estate purporting to commence and maintain an application alleging discrimination that was experienced by the person whose interests the estate holds. In some cases, the complaint or applications had been filed followed by the death of the person. In some others, the person had died before the estate commenced an application or complaint in the name of the deceased. This is not the circumstance here and in my view the cases relied on by the parties are not particularly helpful.
18The preamble of the Code sets out its purposes:
Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;
And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;
And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario;
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows … (Emphasis added)
19Similary one of the substantive provisions of the Code relied on by the applicant in this case provides as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. (Emphasis added)
20The Code’s preamble and its substantive provisions are broadly drafted and provide considerable flexibility in order to vindicate the important rights that they are intended to protect. However, as broad as the words in the statute are, they must have some specific discernible meaning and scope. The question is whether an estate is, in any real sense of the word, a “person” which has feelings of dignity and self worth. In my view it is not, and it is not a person with the kinds of rights the Code seeks to protect.
21The definition of “person” in section 46 of the Code is as follows:
“person” in addition to the extended meaning given it by Part VI (Interpretation) of the Legislation Act, 2006, includes an employment agency, an employers’ organization, an unincorporated association, a trade or occupational association, a trade union, a partnership, a municipality, a board of police commissioners established under the Police Act, being chapter 381 of the Revised Statutes of Ontario, 1980, and a police services board established under the Police Services Act; (“personne”)
22The extended meaning of person in the Legislation Act is not particularly expansive:
“person” includes a corporation; (“personne”)
23Section 29(1) of the repealed Interpretation Act, R.S.O. 1990, c. L.1, which was once incorparted in the definition of “person” in the Code provided as follows:
“person” includes a corporation and their heirs, executors, administrators or other legal representatives of a person to whom the context can apply.
24Arguably the current definition of “person” in the Code is narrower than prior to the enactment of the Legislation Act in 2006. In any case, the definition never included an estate as such.
25All of the parties referred to the decision of the Supreme Court of Canada in Canada (Attorney General) v. Hislop, 2007 SCC 10 (“Hislop”). As I have indicated earlier, because the claimant in Hislop was alive at the time of the alleged unequal treatment, that case is distinguishable. The Court’s comments, at para. 73, about the legal status of an estate may nonetheless be apt here:
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 has no dignity that may be infringed.
26The Commission argued that the courts have recognized that the Code’s protections should beextended to legal persons including corporations, and relied on the decision of the Divisional Court in Brockie v. Brillinger (no. 2) (2002), 2002 CanLII 63866 (ON SCDC), 43 CHRR D/90 on appeal from the Board of Inquiry. The case involved a claim by an individual and a corporate entity, the Gay and Lesbian Archives (“Archives”) that their right to be free of discrimination in the provision of services on the basis of sex had been infringed by the respondents. Archives had been added as a party to the proceeding by the Board of Inquiry but was removed by the Court on the basis that the Board of Inquiry had no jurisdiction to add a complainant at the Board of Inquiry stage of the proceeding. However, on the question of whether or not a corporation could experience discrimination, the Court concluded as follows, at paras. 26 to 28:
The appellants argue that all the grounds of discrimination in s. 1 are characteristics which can only attach to human beings, and cannot attach to corporations. Accordingly, they suggest that the context requires that the definition of person be limited to humans and that Archives could have no rights under s. 1 of the Code. We disagree. The definition of "person" in s. 46 of the Code specifically refers to "the extended meaning given it by the Interpretation Act" and goes on to include other kinds of organizations of human beings, including some which could be incorporated, either with or without share capital or under special statutes. The word "person" is used many times in the Act without limitation when referring to the object of the discrimination as opposed to the discriminator. In addition, the social purposes of the Code expressed in its terms and its preamble dictate a purposive as opposed to a restrictive definition of "person" ...
Mr. Brillinger, as an agent of Archives, also had rights under s. 1 by reason of s. 12 of the Code. Mr. Brillinger was refused the service not because of his particular orientation but because of his association with Archives and the gays and lesbians as a group whom Archives represents and who are its members.
It is wrong to impute to s. 1 an implied term that discrimination against Archives, the corporation seeking the services, is the only discrimination which can be complained of. Individuals who are discriminated against because of their human characteristics should not be discouraged from acting in concert by association with others suffering from discrimination to achieve the human worth and dignity to which they are individually entitled under the law. It would unduly limit the remedial purpose of human rights legislation if the court could not "pierce the corporate veil" to find the real sufferers of the discrimination and the grounds which motivate that discrimination ... (emphasis added)
27I agree with the respondents that this case is not very helpful in resolving the problem posed here. It stands for the proposition, in my view, that a purposive interpretation of the Code allowed the Board of Inquiry to “pierce the corporate veil” and recognize the human beings making up the corporate entity whose dignity and self worth were at issue. Importantly, in this case, the Estate does not claim to be the representative of living persons who may have experienced harm to their human dignity and worth in the delay and de facto denial to date of a service available to them, but rather can only claim that the discrimination experienced in this case was experienced by Mr. Adamson as this is the only “person” whose interests the Estate represents.
28At common law, an estate could not commence any kind of legal proceeding. However, in Ontario, it is clear that an estate can maintain certain kinds of proceedings for damages to “the person or to the property of the deceased”, including wrongful dismissal claims and some but not all tort claims. It is notable perhaps that an estate may not maintain an action for libel and slander. Section 38(1) of the Trustee Act, R.S.O. 1990 Chap. T. 23 provides as follows:
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.
29To the exent that the Trustee Act may speak to my jurisdiction to entertain this Application, the question is the same as that posed above: who is it that has suffered an injury to the person? It is not the Estate, nor is it Mr. Adamson who tragically had passed away several years prior to the events giving rise to the Application.
30I need not decide whether an estate is a legal person capable of suing and being sued beyond the statutory scheme created by the Trustee Act. What is clear is that an estate is not, as in Brockie, above, a combination of persons or a corporation comprised of persons possessed of dignity and self-worth. It is a creation of the law which “acts in a specific manner and for a limited time and purpose”, and for a time holds all of the assets and liabilities of the deceased person. See Denham v. Hamilton Health Sciences Volunteer Association, 2012 HRTO 858 at paras. 12 and 13.
31The applicant and intervenor also argued that if an estate cannot commence an application that relates to events after the death of the person, certain kinds of cases of blatant discrimination would go without remedy. The intervenor cited the example of a cemetery refusing to bury a person because they had been a Jew. First, in my view, the fact that some claims can not be advanced under the Code is not a complete answer to the problem posed by this case. The Code does not address discrimination in the abstract but is concerned with substantive acts of discrimination experienced by “members of the human family.” Secondly and more importantly as I indicated at the hearing, perhaps the answer in these kinds of scenarios is to identify a person whose dignity and human worth has been adversely impacted by the discrimination. So, for example, in the example cited by the Commission, as I indicated at the hearing, is it not the family of the deceased whose dignity and self worth has been impacted by the refusal to allow the burial of their relative and loved one? Similarly, it seems to me arguable that a colleague or family member of a fallen police officer might claim that their right to equal treatment in respect of this service was denied because of that officer’s race or disability. Contrary to the position of the applicant and Commission, it seems to me that for the Code to be engaged there must be a person who has experienced the discrimination: for example, a person like Mr. Brillinger in Brockie, above, who whether or not he was himself a member of a protected group was able to advance the claim that he was denied a service because of the personal characteristics of other persons who were ultimately not parties in the proceeding. See also Braithwaite v. Ontario (Attorney General), 2006 HRTO 15, which, although reversed on the merits for other reasons, involved complaints of family members of deceased persons who claimed they had been demeaned by the denial of of a coroner’s inquest allegedly because of the disability of their deceased family members. However, in my view, if there is no living persons whose dignity and self worth have been affected by an act or omission of a respondent, how can there be a claim under the Code?
32Finally on this point I note section 35 of the Code which provides as follows:
- (1) The Commission may apply to the Tribunal for an order under section 45.3 if the Commission is of the opinion that,
(a) it is in the public interest to make an application; and
(b) an order under section 45.3 could provide an appropriate remedy.
(2) An application under subsection (1) shall be in a form approved by the Tribunal.
(3) An application made by the Commission does not affect the right of a person to make an application under section 34 in respect of the same matter.
I appreciate that this may not be a complete answer to the claims made here, but it does provide for an avenue for the redress of potential violations of the Code where there is no other person willing to come forward to advance the claim.
33For all of these reasons, I find that the Estate has no standing to bring this Application and accordingly it must be dismissed. This determination is without prejudice to the right of any other person to file an Application in respect of this dispute.
No Reasonable Prospect of Success
34Although not necessary to do so, I would also have found that the Application should be dismissed as against the TPA, AAA and TPSOA respondents because as against these respondents it has no reasonable prospect of success. The applicant could point to no evidence that these respondents did anything other than participate in a working group established by the respondent Blair to advise him and create criteria for requests for inclusion in these memorials. It is clear that the TPS respondents, in particular Mr. Blair, remain solely responsible for the placement of a name on these memorials and has inexplicably not responded to the deceased family’s request to date. In the absence of any evidence of any alleged inappropriate acts or ommissions of these other respondents, the Application as against them must be dismissed.
35But for my conclusions with respect to the standing of the Estate to bring this Application, I would have dismissed the TPS’s request that the Application be dismissed as disclosing no prima facie case or because it had no reasonable prospect of success.
Dated at Toronto, this 29th day of November, 2013.
“Signed by”
David Muir
Vice-chair
CORRECTION
The decision released on November 29, 2013 incorrectly spelled counsel’s name as “Omo Akinton”. The error is corrected to: “Omo Akintan”.
Dated at Toronto, this 17th day of December, 2013.
“Signed by”
David Muir
Vice-chair