On June 29, 2019, the Human Rights Tribunal of Ontario (the “HRTO”) released an interim decision which impacts upon estate trustees and which calls for some friendly scrutiny from estate solicitors and litigators.

My colleague, Jacob Kaufman, blogged about a previous and related HRTO 2017 case which required that a certificate of appointment of estate trustee (probate) be obtained – both where there is and is not a will – in order for an estate trustee to represent the estate before an administrative tribunal. Jacob noted, in part, that obtaining probate may create undue hardship for an estate trustee and that the HRTO should consider analyzing whether probate is necessary and proceed on a case-by-case basis.

Now, it appears the HRTO is taking their position even further. In its recent decision, the HRTO set out that it was to hear an application of Michel Fitingof, but that Mr. Fitingof had recently passed away. The HRTO noted that it requires confirmation of who is “authorized to act on behalf of the estate.” The HRTO cited previous tribunal decisions which found that it does not have authority to proceed with an application without the appointment of an estate trustee. The HRTO then went on to direct that the estate of Mr. Fitingof provide a copy of a certificate of appointment of estate trustee with or without a will that authorizes the trustee to act on behalf of the estate. It stated that this must be filed with the registrar and delivered to the other parties to the application no later than one month from the date of HRTO’s decision; however, if no response to the decision were received within one month, the HRTO may deem the application of the estate of Mr. Fitingof to be abandoned and dismiss it on that basis.

While estates may not be the HRTO’s area of expertise, it is nevertheless important to read this decision with a critical eye. As many estate practitioners know, it can take many months for a certificate of appointment of estate trustee to be issued as a result of ordinary court and administrative delays. As well, often times an estate trustee is advised of corrections or amendments that have to be made to his/her probate application before a certificate is issued. All of this, of course, takes time. It is also important to take into account the reality of the death of a friend or family member – it is not unreasonable that an estate trustee may not be taking steps to obtain probate so close to the date of death (in other words, the estate trustee may be grieving or otherwise preoccupied with issues associated with the death).

Most importantly, however, is that the authority of an estate trustee does not stem from probate; rather, it derives from the last will and testament of a deceased. The law is clear on this point.  This is significant for estate trustees to keep in mind not only if faced with a hearing before the HRTO, but in endeavouring to take certain steps to deal with an estate before probate has been issued.