Tag: human rights

31 Aug

No Human Rights Without A Certificate of Appointment

Paul Emile Trudelle Estate & Trust, Estate Planning, Trustees, Uncategorized Tags: , , 0 Comments

A recent decision of the Human Rights Tribunal reiterates the necessity of obtaining a Certificate of Appointment of Estate Trustee, with or without a Will, in order to be allowed to continue with a human rights compliant before the Ontario Human Rights Tribunal.

In Pollard v. York Condominium Corporation, 2018 HRTO 1149 (CanLII), the Applicant alleged discrimination on the basis of disability. The Applicant was fired from his employment as a superintendent, allegedly on the basis that he was absent from work due to a disability. The Applicant later died, and the Respondent applied for an Order dismissing the Application because no Certificate of Appointment of Estate Trustee had been obtained. The deceased Applicant’s wife sought to continue the Application.

The Human Rights Tribunal reviewed case law to the effect that an application under the Human Rights Code cannot proceed without the formal appointment of an Estate Trustee.

Rather than dismiss the Application, the Human Rights Tribunal allowed the Applicant’s wife six months to obtain a Certificate of Appointment. If no Certificate was obtained within that time, the Application was to be dismissed.

The requirement of a Certificate of Appointment can cause significant hardship for an applicant. They must incur the costs of applying for the Certificate. In many cases, the estate has no assets: either because it is impecunious or because the assets pass outside of the estate. In other cases, the estate would have to pay Estate Administration Tax that might not otherwise be payable.

There is a similar requirement to obtain a Certificate of Appointment in order to continue other civil litigation: see David Smith’s blog, here.

Have a great long weekend.

Paul Trudelle

11 May

U.K. Man Loses Bid for Open Field Funeral Pyre

Hull & Hull LLP In the News Tags: , , , , , , 0 Comments

A recent case from Britain focuses the spotlight on the traditional Hindu cremation practice. 
A 70 year old Hindu spiritual leader, Davender Ghai, sought the legal right to an open air funeral pyre. In 2006, Newcastle City Council has refused Mr. Ghai’s request for a permit for an open air cremation site in a remote part of Northumberland. Citing the Cremation Act, 1902, Council noted that the burning of human remains other than a crematorium is a criminal offence. The Ministry of Justice agreed with the Council’s decision.
Mr. Ghai appealed the Council’s decision to the High Court. Mr. Ghai, who immigrated to Britain from Kenya in 1958, stated this he required an open air funeral pyre to release his spirit after death. Invoking Articles 8 and 9 of the  European Convention on Human Rights Act, Mr. Ghai argued that his religious freedom and freedom to family life were being infringed. Mr. Ghai requested to be able to follow the 4,000 year old tradition at the time of his death and noted that such permits would have to be regulated and pyres sites held away from urban and residential areas. 
Mr. Justice Cranston upheld the Council’s decision. He agreed with the Ministry of Justice that open cremation is prohibited by law and that the prohibition was justified on the grounds of public health and public safety. The issue is not over yet, Justice Cranston did give Mr. Ghai permission to appeal his ruling to the Court of Appeal. Mr. Ghai has stated his intention to do so.  
As the population ages in multicultural societies, we can expect to revisit similar issues frequently

Enjoy your day,

Diane Vieira



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