Personal Representatives (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2017
Page Categories:	[Contract Law, Leases, & Sub-Letting (LTB)], [Section 2 (RTA)]
Citation:	Personal Representatives (RTA), CLNP 2017, <https://rvt.link/1d>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2024/01/12

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act,

...

“landlord” includes,

(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,

(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and

(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; (“locateur”)

...

“tenant” includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,

(a) a co-owner of the residential complex in which the rental unit is located, or

(b) a shareholder of a corporation that owns the residential complex; (“locataire”)

Riggs Estate v. Intact, 2019 ONSC 6846 (CanLII)

[33] Intact relied on the text of the SDN which presumes signature by the insured person. For example, on the first page of the form is a “Notice and Caution” directed to the insured which states in part: “your insurer is required to give you this settlement disclosure notice if you have both agreed on a cash settlement…”. On page 3 of the form is a section entitled “What does it mean if you settle your claim?” The pronoun “you” appears frequently, making it clear that the instructions are directed to the insured. Likewise, above the space for the insured’s acknowledgment and signature on page seven of the SDN is a box with the heading: “If you change your mind and want to rescind the settlement”.

[34] Although Intact submits that the Regulations provide that the insured person must execute the SDN personally, I do not find that to be the case. At most, there is a presumption that the insured person will sign. The fact that there is no statutory provision to allow for a signature on behalf of the insured is not determinative. It is not uncommon for a recipient of SABs to be either under the age of majority, or suffering a physical or mental disability. In neither case could the person complete the SDN without the assistance of a personal representative. If Intact is correct in its position, there would be no possibility for such a person to conclude a settlement. That cannot be a reasonable interpretation of the legislation or the legislative intent behind it. I see no distinction between an insured under a disability who cannot sign an SDN and a deceased insured. In both cases, an authorized personal representative must be able to sign for the person.

[35] For the foregoing reasons, but for my conclusion that the court does not have jurisdiction to determine the issue, I would have found that the settlement between Gerald Riggs and Intact is binding and enforceable.

_{SDN, means "Settlement Disclosure Notice" - This note is not in the original case text and is for reference only}

Estates Administration Act, R.S.O. 1990, c. E.22

1 In this Act,

“court” means the Superior Court of Justice; (“cour”)

“judge” means a judge of the Superior Court of Justice; (“juge”)

“mentally incapable person” means a person who is incapable as defined in the Substitute Decisions Act, 1992, whether or not the person has a guardian or an attorney for property under a continuing power of attorney for property; (“incapable mental”)

“personal representative” means an executor, an administrator, or an administrator with the will annexed. (“représentant successoral”) R.S.O. 1990, c. E.22, s. 1; 2006, c. 19, Sched. C, s. 1 (1); 2009, c. 33, Sched. 2, ss. 31 (1, 2).

Sarmento v. IA Financial Group, 2022 HRTO 1233 (CanLII)

[6] A “personal representative” is defined in s.1 of the Estates Administration Act, R.S.O. 1990, c. E.22, as “an executor, an administrator, or an administrator with the will annexed.” Pursuant to s. 2 of that legislation, on a person’s death, all real and personal property that does not pass by right of survivorship devolves to and becomes vested in his or her personal representative. Section 7(1) of the Estates Act, R.S.O. 1990, c. E.21, provides that an application for a grant of probate or letter of administration must be “made to the Superior Court of Justice” and then filed with the county or district where the decedent resided.

[7] This Tribunal has determined, where the applicant is deceased, it has no authority to proceed without the appointment of an estate trustee. In Denham v. Hamilton Health Sciences Volunteer Association (“Denham”), 2012 HRTO 858, at paragraph 13 the Tribunal found that its “…general procedural powers cannot override clear and comprehensive statutory provisions that provide for the appointment by a court of a person or persons to control estate’s assets and make decisions on its behalf”. See also, Donaldson v. Waters Edge Care Community, 2017 HRTO 137 and Pankoff v. St. Thomas (City), 2019 HRTO 993.

[8] Though I appreciate the applicant’s submissions, the Application cannot proceed absent a Certificate of Appointment of Estate Trustee, even if the applicant is an executor. See Dorrington v. London Health Sciences Centre, 2018 HRTO 1483.

Canada Business Corporations Act, (R.S.C., 1985, c. C-44)

personal representative means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, a liquidator of a succession, an administrator of the property of others, a guardian or tutor, a curator, a receiver or sequestrator, an agent or mandatary or an attorney; 

R.R.O. 1990, Reg. 636: GENERAL: under Homes for Special Care Act, R.S.O. 1990, c. H.12

1. In this Regulation,

...

“trustee” means the Public Guardian and Trustee, a guardian of property duly appointed under the Substitute Decisions Act, 1992, an attorney under a continuing power of attorney, a trustee duly appointed under a statute, a will or other instrument. R.R.O. 1990, Reg. 636, s. 1; O. Reg. 376/93, s. 1; O. Reg. 66/00, s. 1; O. Reg. 651/00, s. 1; O. Reg. 329/05, s. 1.

Bank Act, (S.C. 1991, c. 46)

personal representative means a person who stands in place of and represents another person and, without limiting the generality of the foregoing, includes, as the circumstances require, a trustee, an executor, an administrator, a committee, a guardian, a tutor, a curator, an assignee, a receiver, an agent or an attorney of any person, but does not include a delegate; (représentant personnel)

Estate of K.D.F. v.TD General Insurance Company, 2022 CanLII 20127 (ON LAT)

[34] Riggs Estate v. Intact is directly on point. In that case, the insured died prior to executing the settlement documents. As is the case here, the insurer argued that the Regulations provided that the insured person must execute the SDN personally. The Superior Court disagreed, stating that at most while there is a presumption that the insured person will sign the document, it is not uncommon for a recipient of accident benefits to be under the age of majority or be suffering from a physical or mental disability that legally prevents them from signing the document without the assistance of a representative. The Court opined that there is no distinction between an insured under disability who cannot sign an SDN and a deceased insured, ultimately finding that an authorized personal representative must be allowed to sign for the insured person. Justice Reid held that the Court would have found the settlement between the parties binding and enforceable if such a dispute was not subject to this Tribunal’s jurisdiction.[2] While I agree with TD Insurance these comments are obiter dicta, I see no basis to depart from the reasoning.

(...)

[36] In my view, as the applicant’s sister was appointed by the court and has already been permitted to sign off on the other settlements that occurred at the same global mediation, she is clearly an authorized personal representative who is able to sign the SDN and release here. With the applicant’s sister installed as the Litigation Administrator for the Estate, there is accordingly no distinction between the applicant’s death preventing her from signing the SDN and, for example, a minor who is legally incapable of signing an SDN or an adult who lacks capacity as a result of a catastrophic brain injury to understand and direct counsel to sign an SDN, both of which occur regularly in accident benefit settlements. To borrow from the Court of Appeal’s analysis in The Estate of Rebecca Wu, I “disagree that the settlement died” with the applicant where, prior to her death, her claim for accident benefits had, by virtue of the settlement, become a contractual right to the agreed amount and which devolved to her Estate upon her death.[3]