As my colleague Joanna Lindenberg and I have blogged about the Human Rights Tribunal of Ontario has taken the position that it requires a certificate of appointment of estate trustee (i.e. probate) in order for an application before the HRTO to proceed. Now, in Boyd v. Steeves & Rozema Enterprises Ltd. cob Landmark Village, the HRTO has doubled-down on its position, claiming that it lacks the authority to proceed with the application. This does not appear to be correct as a matter of law and the HRTO should adopt a process similar to other tribunals, such as the Workplace Safety and Insurance Appeals Tribunal.

Susan Boyd died on April 16, 2019. She had an active human rights application. The HRTO, in accordance with its policy, requested a copy of the certificate of appointment. The daughter provided a copy of, among other things, a power of attorney. The HRTO once again requested the certificate of appointment and the daughter asked for an extension. On July 20, 2021, the HRTO once again followed up and the daughter provided “another document”. Finally, on May 9, 2022, the HRTO dismissed the application on the grounds that it “does not have jurisdiction to proceed with the Application” as it “does not have authority to proceed with the application without the appointment of an estate trustee.”

It may be the case that the HRTO lacks the authority to proceed with an application without the appointment of an estate trustee. Note, however, as I previously blogged about the WSIAT has agreed to hear cases where there is no estate trustee if there is unanimity amongst the intestate beneficiaries. In any event, in the case at hand, much turns on what the “other document” the deceased’s daughter provided was. An estate trustee’s power derives from the will, not from probate. So in cases where no certificate of appointment has been obtained, the HRTO has jurisdiction to hear these cases it is just, as a matter of policy, it has decided that it will not do so.

There is some value in the idea that a tribunal needs to ensure, as the HRTO stated in the Donaldson case cited in Boyd and in my previous blog, “that in all cases the person seeking to represent a party’s estate in fact has the authority to act on behalf of the estate as a trustee.” However, even in a scenario where the purported estate trustee was ultimately found not able to represent the estate, surely the new estate trustee would rather an award be paid out to that estate trustee (such that they could attempt to recover it) rather than the application being dismissed.

I am cognizant of the HRTO’s lengthy backlog and do not want to add more cases to an already overworked tribunal. But given the vulnerable nature of those that seek redress at the HRTO, the HRTO should strongly consider adopting the more contextual approach of the WSIAT in not necessarily requiring a certificate of appointment. In any event, the HRTO should be clear that it still has jurisdiction to hear such claims, it is just declining to do so.