Death of the Complainant
Under Alberta law, a human rights claim for damages which are personal in nature ends upon the death of the complainant.
This includes claims for:
- injury to dignity;
- humiliation;
- emotional distress;
- other damages viewed as personal to the individual complainant.
The Alberta Human Rights Tribunal confirmed this principle in The Estate of Donald Mitchell v South Country Co-op Limited.
The Tribunal considered whether the Estate could continue the proceeding after the complainant died before completion of the human rights process.
The Tribunal drew an important distinction between:
- claims which are personal in nature; and
- claims involving actual economic loss.
The Tribunal concluded that claims for injury to dignity, humiliation and emotional harm do not survive death because such claims are fundamentally personal to the complainant.
The Tribunal reached a different conclusion, however, regarding a possible wage loss claim. There was no wage loss claim made in this instance.
The distinction is significant because modern human rights cases increasingly involve substantial financial claims, including:
- past wage loss;
- future income loss;
- pension losses;
- loss of benefits.
The decision therefore confirms an important principle under Alberta human rights law, namely that personal damages terminate upon death, economic loss claims arising from discriminatory conduct may continue through the Estate.
The Alberta reasoning is also consistent with broader Canadian survivorship principles discussed by the Supreme Court of Canada in Marine Services International Ltd. v. Ryan Estate
Although Marine Services was not a human rights case, the Supreme Court conducted an extensive review of the historical common law principle that “actio personalis moritur cum persona” a personal action dies with the person.
Historically, this rule prevented many claims from continuing after death, particularly claims viewed as personal to the deceased.
The Supreme Court explained that Canadian provinces modified this harsh common law rule through survival of actions legislation. These statutes were intended to prevent wrongdoers from escaping financial responsibility merely because the injured party had died.
Importantly, however, the Court recognized that Canadian law has continued to distinguish between:
- claims compensating personal suffering; and
- claims compensating measurable financial loss.
The Court noted that survival legislation generally preserves causes of action involving economic or proprietary interests while continuing to restrict certain claims viewed as purely personal in nature.
This distinction has become deeply embedded in Canadian survivorship law.
That same distinction appears directly in The Estate of Donald Mitchell.
The Alberta Human Rights Tribunal effectively applied the same survivorship reasoning by concluding:
- claims for injury to dignity and emotional harm terminate upon death;
- claims for economic loss survive through the Estate.
The significance of this distinction is growing rapidly because human rights litigation increasingly involves very large financial awards.
Modern tribunals now frequently award:
- lost income;
- future income damages;
- pension losses
- out of pocket expenses
Accordingly, the survival of wage loss claims may expose employers to substantial liability even where the complainant dies before adjudication.
At present, there appears to be little judicial consideration of The Estate of Donald Mitchell outside Alberta. The decision is still relatively recent and does not yet appear to have generated substantial treatment in other provincial human rights jurisdictions. However, the reasoning is likely to attract attention because it addresses an increasingly important issue:
whether expanding human rights financial remedies survive death in the same manner as civil economic claims.
Given the rapidly increasing size of human rights monetary awards across Canada, the distinction between:
- personal damages which terminate upon death; and
- economic claims which survive through the Estate
may become increasingly important in both human rights litigation and employment law generally.