Estate Planning

An Estate cannot pursue Charter Claims

By Hull & Hull LLP

In a recent decision Giacomelli v. Canada (Attorney General), the Ontario Court of Appeal confirmed that an estate cannot continue a claim based on the Charter.

The Deceased was a Canadian citizen of Italian origin who brought a statement of claim against the Government in 2005 for damages relating to his detention at a concentration camp. The Deceased alleged that Canada’s refusal to offer compensation to Italian Canadians while offering compensation to other ethnic minorities was discriminatory and contrary to sections 7 and 15 of the Charter.

The Deceased died in 2006 and his estate trustees obtained an Order to Continue. In 2007, citing Canada (Attorney General) v. Hislop the Government was successful in obtaining a motion varying the Order to Continue so that the Estate could not pursue any claims for relief for Charter based violations. The estate trustees appealed this decision.

The Court of Appeal dismissed the estate trustees’ appeal. Gillese J.A. stated that she was also of the view that Hislop was determinative that an estate cannot continue a claim based on s. 15(1) of the Charter as rights guaranteed by s. 15(1) are personal and end with the death of the affected individual.

Further, Gillese noted that the Supreme Court identified only two exceptions to that principle being, when the individual dies after judgment while an appeal is pending or when the individual dies after the conclusion of argument but before judgment is entered.As these did not apply, the Appeal was dismissed.

Enjoy your weekend,

Diane Vieira

Full post as published by Toronto Estate Law Blog on January 09, 2009 (boomark / email).