In Gordon v. Hamilton Health Sciences Centre (“Gordon”),[1] the Human Rights Tribunal of Ontario considered an application by an estate trustee against a hospital for purported ageism and breach of the Human Rights Code (the “Code”).[2]
Background
The Application was brought by Julia Gordon (the “Applicant”), whose 92-year old mother purportedly suffered inhumane treatment while receiving care at Hamilton Health Sciences Centre (“HHSC”).[3]
As detailed in her Application, the Applicant’s mother lived independently until a fall in her home. She was subsequently transferred to HHSC’s emergency department where she was assessed and determined to have fractured her shoulder, vertebrae and pelvis. It is submitted that her mother was hospitalised due to concerns that she would have difficulty moving at home.[4]
Claims of discrimination
While in hospital, the Applicant alleges that her mother received poor medical treatment due to her advanced age, causing her to consent to the commencement of palliative care in January 2020. The Applicant’s mother passed away in hospital several days later on January 21, 2020.[5]
In April 2020, the Applicant commenced proceedings against HHSC, on behalf of her deceased mother, alleging several medical staff and nurses discriminated against her on the basis of her age, manifesting in poor treatment. The Applicant filed a copy of her mother’s Last Will and Testament as authority that she was one of two estate trustees entitled to act on behalf of their mother’s estate.[6]
In October 2020, HHSC filed a reply to the Application. In May 2023, the Human Rights Tribunal identified several jurisdictional issues with the proceedings, which included:
- The Application did not allege any of the rights of the Applicant were infringed and the proceedings were not brought on behalf of another pursuant to section 34 of the Code; and
- The Application was filed on behalf of a person who was deceased at the time of the filing.[7]
In response, the Applicant submitted that her mother would have been entitled to bring an Application and that she would have consented to one being brought by her, if she were still alive. This was by virtue of the fact, in the Applicant’s view, that she was her duly appointed estate trustee.[8]
Legal Issue
The Human Rights Tribunal noted that the Applicant’s submissions raised the issue of whether an Application pursuant to the Code could be brought on behalf of someone who had died.
Section 34 of the Code provides:
Application by person
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2. […]
Application on behalf of another
(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,
(a) would have been entitled to bring an application under subsection (1); and
(b) consents to the application.
In Adamson Estate v. Toronto Police Services Board,[9] the Human Rights Tribunal found that an estate may not commence an application under the Code for events that took place after the death of the person. While in Gordon, the estate was commencing its Application for events that took place while the applicant was still alive, the tribunal found the decision was still notable for the view that a claim under the Code “requires a living person whose dignity and self worth have been affected by an act or omission of the respondent”.[10]
More recently in James v. Inspirah Property Management Ltd.,[11] the Human Rights Tribunal considered the powers afforded to an estate trustee under the Trustee Act,[12] in consideration of whether an estate trustee may initiate an application under the Code. Of consideration was section 38(1) of the Trustee Act, which provides:
Actions for torts
Actions by executors and administrators for torts
38 (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.
Giving the words their plain and ordinary meaning, “maintain” was interpreted to mean the executor or administrator may continue an action commenced prior to the person’s death but may not commence a new action.” As such, the tribunal concluded that “neither an estate nor an estate trustee is entitled to bring an application under section 34(1) of the Code and cannot satisfy that requirement in section 34(5)(a)”.[13]
Ultimately, the Human Rights Tribunal followed the above-noted decisions and their interpretation of the Code. Accordingly, it found that the Applicant did not have standing in her capacity as the estate trustee of her late mother’s estate. For this reason, the Human Rights Tribunal dismissed the Application.[14]
Concluding Comments
Gordon highlights some of the procedural rules that govern the Human Rights Tribunal of Ontario. It also highlights what may be seen as a gap in the jurisdiction of the tribunal to address age-based discrimination pursuant to the Code. It follows that as ageism can affect individuals who are in long-term or palliative care, there is a narrower mechanism to address wrongdoing that they are subjected to, after their passing.
—
[1] Gordon v. Hamilton Health Sciences Centre, 2025 HRTO 2031 (CanLII) (“Gordon”).
[2] Human Rights Code, RSO 1990, c H.19.
[3] Gordon at para 4.
[4] Gordon at para 4.
[5] Gordon at para 4.
[6] Gordon at para 5.
[7] Gordon at para 6.
[8] Gordon at para 10.
[9] Adamson Estate v. Toronto Police Services Board, 2013 HRTO 1983 (CanLII).
[10] Ibid. at para 31.
[11] James v. Inspirah Property Management Ltd., 2023 HRTO 1159 (CanLII).
[12] Trustee Act R.S.O. 1990, c. T.23.
[13] Gordon at para 16.
[14] Gordon at paras 22 and 23.
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Written by: Oliver O'Brien
Posted on: February 19, 2026
Categories: Commentary
In Gordon v. Hamilton Health Sciences Centre (“Gordon”),[1] the Human Rights Tribunal of Ontario considered an application by an estate trustee against a hospital for purported ageism and breach of the Human Rights Code (the “Code”).[2]
Background
The Application was brought by Julia Gordon (the “Applicant”), whose 92-year old mother purportedly suffered inhumane treatment while receiving care at Hamilton Health Sciences Centre (“HHSC”).[3]
As detailed in her Application, the Applicant’s mother lived independently until a fall in her home. She was subsequently transferred to HHSC’s emergency department where she was assessed and determined to have fractured her shoulder, vertebrae and pelvis. It is submitted that her mother was hospitalised due to concerns that she would have difficulty moving at home.[4]
Claims of discrimination
While in hospital, the Applicant alleges that her mother received poor medical treatment due to her advanced age, causing her to consent to the commencement of palliative care in January 2020. The Applicant’s mother passed away in hospital several days later on January 21, 2020.[5]
In April 2020, the Applicant commenced proceedings against HHSC, on behalf of her deceased mother, alleging several medical staff and nurses discriminated against her on the basis of her age, manifesting in poor treatment. The Applicant filed a copy of her mother’s Last Will and Testament as authority that she was one of two estate trustees entitled to act on behalf of their mother’s estate.[6]
In October 2020, HHSC filed a reply to the Application. In May 2023, the Human Rights Tribunal identified several jurisdictional issues with the proceedings, which included:
In response, the Applicant submitted that her mother would have been entitled to bring an Application and that she would have consented to one being brought by her, if she were still alive. This was by virtue of the fact, in the Applicant’s view, that she was her duly appointed estate trustee.[8]
Legal Issue
The Human Rights Tribunal noted that the Applicant’s submissions raised the issue of whether an Application pursuant to the Code could be brought on behalf of someone who had died.
Section 34 of the Code provides:
Application by person
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2. […]
Application on behalf of another
(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,
(a) would have been entitled to bring an application under subsection (1); and
(b) consents to the application.
In Adamson Estate v. Toronto Police Services Board,[9] the Human Rights Tribunal found that an estate may not commence an application under the Code for events that took place after the death of the person. While in Gordon, the estate was commencing its Application for events that took place while the applicant was still alive, the tribunal found the decision was still notable for the view that a claim under the Code “requires a living person whose dignity and self worth have been affected by an act or omission of the respondent”.[10]
More recently in James v. Inspirah Property Management Ltd.,[11] the Human Rights Tribunal considered the powers afforded to an estate trustee under the Trustee Act,[12] in consideration of whether an estate trustee may initiate an application under the Code. Of consideration was section 38(1) of the Trustee Act, which provides:
Actions for torts
Actions by executors and administrators for torts
38 (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.
Giving the words their plain and ordinary meaning, “maintain” was interpreted to mean the executor or administrator may continue an action commenced prior to the person’s death but may not commence a new action.” As such, the tribunal concluded that “neither an estate nor an estate trustee is entitled to bring an application under section 34(1) of the Code and cannot satisfy that requirement in section 34(5)(a)”.[13]
Ultimately, the Human Rights Tribunal followed the above-noted decisions and their interpretation of the Code. Accordingly, it found that the Applicant did not have standing in her capacity as the estate trustee of her late mother’s estate. For this reason, the Human Rights Tribunal dismissed the Application.[14]
Concluding Comments
Gordon highlights some of the procedural rules that govern the Human Rights Tribunal of Ontario. It also highlights what may be seen as a gap in the jurisdiction of the tribunal to address age-based discrimination pursuant to the Code. It follows that as ageism can affect individuals who are in long-term or palliative care, there is a narrower mechanism to address wrongdoing that they are subjected to, after their passing.
—
[1] Gordon v. Hamilton Health Sciences Centre, 2025 HRTO 2031 (CanLII) (“Gordon”).
[2] Human Rights Code, RSO 1990, c H.19.
[3] Gordon at para 4.
[4] Gordon at para 4.
[5] Gordon at para 4.
[6] Gordon at para 5.
[7] Gordon at para 6.
[8] Gordon at para 10.
[9] Adamson Estate v. Toronto Police Services Board, 2013 HRTO 1983 (CanLII).
[10] Ibid. at para 31.
[11] James v. Inspirah Property Management Ltd., 2023 HRTO 1159 (CanLII).
[12] Trustee Act R.S.O. 1990, c. T.23.
[13] Gordon at para 16.
[14] Gordon at paras 22 and 23.
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