Estate of Crystal Rose v. Humber River Regional Hospital, 2014 HRTO 1449

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Estate of Crystal Rose

Applicant

-and-

Humber River Regional Hospital

Respondent

DECISION

Adjudicator: Mark Hart

Date: September 26, 2014

Citation: 2014 HRTO 1449

Indexed as: Rose (Estate) v. Humber River Regional Hospital

APPEARANCES

Estate of Crystal Rose, Applicant

Jerry and Teresa Rose, Representatives

Humber River Regional Hospital, Respondent

Deborah Mercer Dennie, Representative

1This is an Application dated February 9, 2014 alleging discrimination with respect to services, goods and facilities because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Application is filed on behalf of the Estate of Crystal Rose, who died tragically on December 14, 2012 when she was only 27 years old following surgery at the respondent hospital. The Application alleges that Ms. Rose's rights as an Anglican were violated by the respondent when she was not offered chaplain services in the period leading up to her untimely death, whereby Ms. Rose lost her opportunity to exercise her last rites and prayers.

3By Case Assessment Direction dated May 16, 2014 (the "CAD"), the Tribunal on its own initiative directed that a teleconference hearing be held to address whether the Application should be dismissed on one or more of the following bases: (1) no estate trustee has been appointed; (2) the Application was filed more than one year after the alleged incident of discrimination; or (3) there is no reasonable prospect that the Application will succeed.

4The teleconference was held on July 8, 2014, at which time I heard oral submissions from Ms. Rose's parents and from a representative of the respondent hospital on the issues identified.

No estate trustee

5This Tribunal has held that it does not have authority to proceed with an application alleging a violation of the rights of a person who is deceased without the appointment of an estate trustee: see Denham v. Hamilton Health Sciences Volunteer Association, 2012 HRTO 858 ("Denham"). This Tribunal has found that the issue is not a mere procedural technicality but arises by virtue of the Estates Administration Act, R.S.O. 1990, c. E.22 and the Estates Act, RSO 1990, c E.21.

6In a letter dated April 7, 2014 from a lawyer retained by Ms. Rose's parents, it was expressed that the Tribunal should not require Ms. Rose's parents to apply for a certificate of appointment of an estate trustee without a will, as Ms. Rose died intestate, was not married and did not have any children, such that her parents would be the beneficiaries of her estate under the Succession Law Reform Act and thus are the logical choice to represent her estate, especially given that no one exists who would or could make a plausible challenge to their appointment. It was noted that, aside from the ability to proceed with this Application, there would be no other reason for Ms. Rose's parents to apply for a certificate, which would present a significant cost to them.

7In this regard, I note that similar reasons were advanced by the applicant in the Denham case, where it was found that such reasons were insufficient to overcome the clear statutory language requiring an estate trustee in order to proceed with a legal proceeding on behalf of a deceased person. As I explained at the teleconference hearing, the problem is that the Estates Administration Act vests all property that does not pass by right of survivorship in the estate trustee, and a right to proceed with a legal action like an application to this Tribunal is considered in law to be "property". That is why this Tribunal has ruled that only an estate trustee has the legal power to initiate or continue an application, in the same way as applies to a court action. Further, under the Estates Act, only the court has the power to appoint an estate trustee, and this Tribunal does not have the power or authority to do so or to override this legislative requirement.

8At the teleconference hearing, Ms. Rose's parents did not strenuously argue this point, which has been previously determined by the Tribunal. However, as in the Denham case, they asked that instead of dismissing the Application, they be given some time to obtain a certificate of appointment. If this were the only basis for dismissal of the Application, I would certainly have been prepared to grant them some time to obtain the required certificate. However, in view of the other reasons for dismissal of the Application, it is my view that this is not warranted.

Reasonable prospect of success

9With regard to the issue of reasonable prospect of success, Ms. Rose's parents point to a brochure regarding chaplaincy services offered at the respondent hospital. The brochure indicates that chaplaincy services are available, among other things, to provide emotional and spiritual support or care, to arrange for sacraments or blessings, or to arrange for prayers for a dying person at the time of death. The parents submit that, when it became clear that their daughter was in imminent danger, the hospital should have arranged for chaplaincy services to be available for her and failed to do so.

10I am aware from personal experience how comforting it can be to have a religious figure present at a time of imminent death, and I empathize with the parents' distress at this not being available for their daughter. However, as I indicated at the teleconference hearing, that alone is not a sufficient basis upon which to allege discrimination under the Code. The issue under the Code would be whether chaplaincy services were offered to other religious denominations but not to Ms. Rose because of her specific creed, i.e. because she is Anglican. While the parents expressed their belief that this was the case, they were unable to point to any specific basis or evidence to support this belief. Rather, they asked that the disposition of this matter be deferred for some period of time in order for them to conduct an investigation in order to obtain such evidence.

11In this regard, I note that Ms. Rose died over a year and a half ago now, and her parents have had ample time to seek out the evidence they need to support their allegation of discrimination. In particular, since the CAD was issued on May 16, 2014 identifying the issues to be addressed at the teleconference hearing, they had almost two months to gather the evidence they needed in order to establish a link or connection between how their daughter was treated and the allegation of discrimination because of creed. In my view, affording additional time at this stage is not warranted. In the absence of any specific basis to support their belief that the respondent would have ensured that chaplaincy services were available to other, non-Anglican denominations, I find that the Application has no reasonable prospect of success.

12Given my determination on this issue, it is not necessary for me to address the issue of delay.

ORDER

13For the above reasons, the Application is dismissed on the basis that it has no reasonable prospect of success.