Dioba v. BMO (Bank of Montreal), 2008 HRTO 325

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nacon Dioba Applicant

-and-

BMO (Bank of Montreal) Respondent

DECISION

Adjudicator: David A. Wright Date: November 28, 2008 Citation: 2008 HRTO 325 Indexed as: Dioba v. BMO (Bank of Montreal)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 7, 2008, alleging discrimination in goods, services and facilities by BMO (Bank of Montreal). He alleges that BMO discriminated and committed reprisals against him through the manner in which it dealt with his application for overdraft protection on his chequing account and its treatment of him in its branch.

2On November 19, 2008, the Tribunal administratively issued a “Notice of Intent to Dismiss” under Rule 13.2 of its Rules of Procedure, for the reason that the respondent appeared to be a “federally regulated business or service” and sought submissions from the applicant on this issue.

3On November 24, 2008, the applicant provided the Tribunal with a revised Application which named “BMO Nesbitt Burns” as the corporate respondent. The Application, however, still relates to the same issues: his application for overdraft protection and treatment at the BMO branch. The applicant argues that BMO Nesbitt Burns is regulated by the Nesbitt Burns Group, which he states is “a private organization”, and suggests that the Tribunal therefore has jurisdiction.

4A dismissal under Rule 13 occurs before an application is served on a respondent, and a decision to continue to deal with an application is not a final decision on the issue of jurisdiction. When there is a potential issue relating to whether a matter falls under provincial or federal jurisdiction the Tribunal will only dismiss the application if it is plain and obvious that the matter falls under federal jurisdiction: Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63.

5The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. The Canadian Human Rights Commission has power to deal with various human rights matters that fall under federal jurisdiction. Under s. 91(15) of the Constitution Act, 1867, the federal Parliament has jurisdiction over “Banking, Incorporation of Banks, and the Issue of Paper Money”. The Code therefore does not apply to banking. It is plain and obvious on the face of the application that whether the respondent is named as BMO (Bank of Montreal) or BMO Nesbitt Burns, the Tribunal has no jurisdiction over this Application, which relates to banking.

6For these reasons, the applicant is denied leave to amend the Application to name BMO Nesbitt Burns as the corporate respondent and the Application is dismissed.