Mitchell v. Questrade Inc., 2014 HRTO 1308

Human Rights Tribunal of Ontario

Between:

John Mitchell Applicant

-and-

Questrade Inc. and BBS Securities Inc. (Virtual Brokers) Respondents

Decision

Adjudicator: David Muir Date: September 4, 2014 Citation: 2014 HRTO 1308 Indexed as: Mitchell v. Questrade Inc.

1This Application alleges discrimination with respect to services and contracts because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges that he has a gambling dependency and maintains that the manner in which the respondents offer their services as securities brokers discriminates because as it encourages him to make trades with money that he does not have.

2In an Interim Decision, 2014 HRTO 162, issued on February 4, 2014 the Tribunal directed on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

5In the February 4, 2014 Interim Decision the Tribual observed that in this case, the issue would be whether, assuming the allegations to be true, the applicant's allegations may be reasonably considered to amount to a Code violation.

6A summary hearing was held by telephone conference call on June 6, 2014. All parties participated.

7In his Application the applicant alleges that by the way in which the respondents operate their online brokerage service is discriminatory because as a person with a gambling addiction the fact that he can trade on margins exposes him to greater risk than a person who does not suffer from his disability. The applicant argues that his access to sums of money for trading on these online brokerages, which greatly exceed what a bank would lend him for example, play on his gambling addiction. The applicant describes the problem in his Application as follows:

By inviting the applicant to borrow money on margin, Questrade is essentially inviting the applicant to gamble; to borrow money and to gamble that the ETF will never drop to the point that the applicant could be subjected to a margin call. It is a significantly riskier proposition than the applicant's current strategy.

It is very hard for the (applicant) to guard against these types of thoughts because borrowing large sums of money requires no deliberation on Questrade's platform. The (applicant) can do it instantly at the click of a button, which is even more dangerous as the volatility in the market and the speed with which prices change expose the applicant to adrenaline rushes that make him feel immune to loss and 'smarter than the others' who get burned by margin-trading. Every time the applicant checks the Balances section of the Non-Registered Accounts, he is reminded that he can borrow large sums of money at the click of a button. When he views images of men smiling and clenching their fists on the Questrade website, he is encouraged to focus only on the potential benefits of margin trading.

8The Application is dismissed.

9To begin with, it is not at all clear how the applicant has experienced differential treatment in his interactions with the respondent BBS Securities Inc. who the applicant acknowledges never provided any services to him because he never sought to access their services. This aspect of the Application is dismissed because there are no allegations of discrimination made about this respondent. Assuming without deciding that the applicant was entitled to be accommodated by this respondent he never attempted to access their services or request anything of them.

10As regards the remainder of the Application it must be dismissed as well because in my view it has no reasonable prospect of success. The applicant is a client of Questrade and apparently makes trades on the website utilizing a margin account. He claims that the enticement to trade on margin has affected his behaviour although he has not actually made a margin trade but has borrowed money from a bank to make a trade.

11The primary difficulty is that there is no evidence that the respondent was ever made aware that the applicant claimed to be a person with a disability and asked it respond in some way to his situation. In his Application the applicant merely asserts that he asked the respondent whether it was possible to disable the margin trading feature and was told it was not possible. I appreciate that both respondents assert that they both offer the ability to trade for cash only, but assuming that the applicant's allegation is true it is insufficient to establish any liability on the respondent's part. At the summary hearing I asked the applicant when he made this request and he was unable to say other than to affirm that it was shortly after he begain using the respondent's service. More importantly I asked him what he had told the respondent about his personal circumstances and whether he was a person with a disability. The applicant responded initially that he did not know and then indicated that he was not prepared to answer the question taking minor issue with my probing him on these points.

12The applicant need not answer my question but at the end of the day there is no evidence to which the applicant can point that the respondent was made aware of his disability and therefore even assuming that there was some duty to accommodate him such an obligation would only have potentially arisen if he had made a Code based request for such accommodation.

13For these reasons the Application is dismissed.