Estates Cannot Continue Claims for Charter Remedies
The Ontario Superior Court recently held that an action for damages under the Canadian Charter of Rights and Freedoms could not be continued by the Plaintiff’s estate following the death of the Plaintiff.
In Giacomelli Estate v. Canada (Attorney General), 2007 CanLII 32908 (Ont. S.C.), Mr. Giacomelli commenced an action for damages for breaches of the Charter arising from his arrest and imprisonment from 1940 to 1945 based on his Italian origin. After the action was commenced, Mr. Giacomelli died, and his Estate Trustees obtained an Order to Continue. This Order was issued by the Registrar on a motion without notice, which is the normal practice for obtaining such an Order.
The Defendant moved to set aside the Order to continue. They argued that the Supreme Court of Canada decision of Canada (Attorney General) v. Hislop, (2007) S.C.C. 10 was dispositive of the motion. There, the SCC held that “s. 15(1) [Charter] rights cannot be enforced by an estate because those rights are personal and terminate with the death of the affected individual… an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed.”
The Ontario court extended this ruling to claims under s. 7 of the Charter as well.
The court held that while s. 38(1) of the Trustee Act allows an Estate to continue with certain tort claims, this section does not apply to Charter claims.
Have a great weekend.
Paul Trudelle
