Levesque v. Alterna Savings, 2012 HRTO 1028

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Levesque on behalf of Marguerite Levesque

Applicant

-and-

Alterna Savings

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: May 23, 2012

Citation: 2012 HRTO 1028

Indexed as: Levesque v. Alterna Savings

APPEARANCES

Robert Levesque, Applicant ) Self-represented

Alterna Savings, Respondent ) Danny Bernstein, Counsel

1This Application, filed under section 34(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of sex, marital status, and age in the provision of goods, service or facilities. The applicant has brought this Application on behalf of his mother (the “claimant”).

2In essence, the applicant states that the claimant was refused a $10,000 line of credit and that her sex, age, and marital status were factors in the respondent’s decision. The respondent has filed a Response denying the allegations of discrimination. Pursuant to a Case Assessment Direction (“CAD”) dated July 12, 2011, the Tribunal directed of its own initiative that the matter proceed by way of a summary hearing. In its CAD, the Tribunal indicated that, based on its review of the materials submitted by the parties, it appeared that the applicant may be unable to prove a link between the respondent’s alleged actions and the Code.

3A summary hearing was conducted in person on May 9, 2012. I heard submissions from the applicant and from counsel for the respondent.

4For the reasons that follow, the Application is dismissed. I understand that the claimant was dissatisfied with the service she received from the respondent. However, I find that the Application has no reasonable prospect of success and, in particular, that there is no reasonable prospect that the applicant can establish a link between the respondent’s alleged conduct and the Code.

THE FACTS

5The claimant and her husband held a joint line of credit with the respondent. The claimant’s husband passed away in late December 2008.

6There is a dispute as to the number of times the parties met and what, if any, information was communicated by telephone beforehand. However, the parties agree that, on January 9, 2009, the claimant and her son attended at a branch of the respondent co-operative. At some stage, either at this meeting or prior to it, the respondent learned that the claimant’s husband had passed away.

7The respondent’s policies require that a jointly held line of credit be closed upon the death of one or the other of its holders. In this case, the respondent applied its policies and closed the joint line of credit held by the claimant and her deceased spouse. It advised the claimant that she could apply for a new line of credit, which it would evaluate based on her financial circumstances.

8The claimant sought a $10,000 line of credit, but was declined and offered a $2,000 line of credit instead. The respondent stated that, based on the ratio of her debt to income, the claimant did not qualify for the $10,000 line of credit on her own. The respondent states that it evaluated the claimant’s credit application in the same way it would have evaluated that of any other person and that it did so without regard for her age, sex or marital status.

9The applicant argues that the respondent’s treatment of her application for a line of credit was discriminatory because:

a. Her request for a line of credit was approved by another financial institution;

b. Her application for credit was evaluated based on inaccurate information about her current debt;

c. In evaluating the her income, the respondent failed to consider that the claimant would become eligible for additional pension income following the death of her spouse. The applicant acknowledges that the claimant did not advise the respondent of this additional income, but states that it ought reasonably to have anticipated this;

d. In one of two documents summarizing the meeting between the claimant, the applicant and the respondent, respondent staff incorrectly noted that the claimant was not present for the meeting. The applicant argues that the fact that they did not recall the claimant attending this meeting is evidence of the respondent’s dismissive attitude towards her;

e. The respondent assumed that the applicant was intending to use the line of credit and take advantage of the claimant and declined the claimant, at least in part, for that reason;

f. The initial joint line of credit held both credit holders jointly and severally liable. I understand the applicant to argue that closing the line of credit was unnecessary as a result; and

g. Had the claimant not alerted the respondent to her husband’s passing, she could have maintained the $10,000 line of credit.

10At the hearing, the applicant acknowledged that, when one holder of a joint line of credit dies, the respondent is entitled to evaluate the remaining applicant’s credit-worthiness based on that person’s own financial circumstances. However, he argues that the respondent evaluated the claimant’s credit application inappropriately and unfairly. He also argues that elderly women who are widows are disproportionally impacted by the application of the respondent’s policies.

ANALYSIS

11Section 1 of the Code states:

Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

12The issue before me in determining this summary hearing is whether or not the applicant has no reasonable prospect of establishing that the respondent discriminated against the claimant based on the Code grounds identified. In particular, I must consider whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the event and the alleged prohibited ground.

13In considering these issues, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

14The applicant has advanced a number of arguments that relate to his perception of the fairness or appropriateness of the respondent’s policies and its approach to joint lines of credit. While it is clear that the applicant disagrees with the respondent’s policies and its decision concerning the request for a line of credit, none of these arguments suggests that the applicant has any reasonable prospect of establishing discrimination.

15Without more, the fact that the claimant was approved for credit at a different financial institution does not assist her in establishing discrimination by the respondent. It may be that the other financial institution has a different level of risk tolerance; it may also be that it based its decision on different information. As I indicated to the parties at the hearing, the Tribunal’s role is not to determine whether the respondent’s moneylending policies or level of risk tolerance is appropriate or fair. My only role is to consider whether there is a reasonable prospect that it discriminated against the claimant based on a Code factor.

16Similarly, the fact that credit holders are jointly and severally liable has no bearing on the allegations of discrimination. While the applicant is questioning the respondent’s policy to close a joint line of credit where there is joint and several liability, he has not pointed to anything to suggest that this policy is discriminatory. For example, there is no suggestion that the policy is applied differently in other circumstances, where the holder of a joint line of credit does not share the applicant’s Code-related characteristics.

17Even if the respondent relied on inaccurate credit information obtained from a third party, this does not assist the applicant in establishing the allegations discrimination. The Tribunal’s role is not to correct alleged errors but to determine whether the applicant has a reasonable prospect of showing that the claimant was treated differently because of a Code ground. The respondent states that it is entitled to rely on the third-party information and that it and other institutions do so in the normal course. The applicant has presented no basis to suggest that the claimant was treated differently from any other credit applicant.

18I understand the applicant to argue that his mother was treated differently from persons who do not report the death of a spouse. Even if this is the case, it has no bearing on the allegations of discrimination. The differential treatment complained of is based on the reporting of a spouse’s death; it is not based on a Code ground, namely the claimant’s actual marital status.

19I do not accept that the respondent should have assumed or could have known that the claimant would be eligible for additional income because of the death of her husband. This information was not disclosed to the respondent and it is not discriminatory to assess the claimant’s credit on the basis of the information she provided.

20I do not accept the applicant’s argument that a memorandum dated February 19, 2009, which states that the claimant did not attend the January 9, 2009 meeting is indicative of discrimination. The applicant argues that this document shows that the respondent treated the claimant as though “she were not even in the room”. At the summary hearing, the applicant explained that he did most of the talking at the January 9, 2009 meeting, but that his mother occasionally added a comment. The applicant did not suggest that his mother was unable to participate in the meeting, that the respondent refused to consider her comments, or that the respondent’s behaviour was disrespectful to her. The fact that, more than five weeks later, staff forgot that the claimant was present at the meeting is not, in my view, sufficient to show that the Application has a reasonable prospect of success.

21In internal memoranda, the respondent’s staff state that the applicant appeared to be attempting to secure the line of credit for his own use. Staff wrote: “I would not recommend this loan due to son’s involvement and due to income and [total debt service ratio].” Staff also states that the applicant initially refused to pay off the outstanding joint line of credit unless his mother’s credit application was approved.

22In the circumstances of this case, I find that even if the respondent incorrectly assumed that the applicant would benefit from the line of credit and even if this assumption was a factor in its decision to deny the credit application, this does not establish a reasonable prospect of success.

23I make no finding as to whether the applicant was, in fact, seeking the credit for himself. I note that the applicant vigorously disputes this. In the documents filed with the Tribunal, however, it is clear that the respondent’s concerns about the applicant’s involvement are based on the applicant’s own behaviour and, in particular, the comments he allegedly made. In the circumstances, I find that the applicant has no reasonable prospect of showing that the respondent’s assumption about his involvement in the claimant’s affairs was based on her age, gender or marital status.

24Finally, the applicant has not pointed to any evidence or prospective evidence to show that the respondent’s policies regarding joint lines of credit disproportionately impact the elderly, women or widows. The respondent’s policy regarding joint lines of credit applies to all joint credit holders, be they married, friends, partners or otherwise. Further, the applicant acknowledged at the hearing that the respondent is entitled to evaluate the claimant based on her own financial circumstances. His principal argument is that the respondent’s assessment of the claimant’s creditworthiness was unfair and inaccurate. Again, it is not for me to determine whether the respondent behaved in a manner that was appropriate or fair. I find that the applicant has failed to point to direct or indirect evidence that would establish a link between the respondent’s conduct and a prohibited ground of the Code.

25For the reasons set out above, I find that the Application has no reasonable prospect of success.

26Accordingly, the Application is dismissed.