Farquhar v. Bank of Nova Scotia, 2016 HRTO 991

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert (Robin) Farquhar Applicant

-and-

Bank of Nova Scotia Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 28, 2016

Citation: 2016 HRTO 991

Indexed as: Farquhar v. Bank of Nova Scotia

WRITTEN SUBMISSIONS

Robert Farquhar, Applicant

Self-represented

Bank of Nova Scotia, Respondent

Patricia Murray, Counsel

1This Interim Decision addresses whether the Tribunal has jurisdiction over this Application.

2The applicant filed an Application in which he alleged that the respondent discriminated against him because of age contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondent discriminated against him by denying him trip cancellation and interruption insurance through his ScotiaGold Passport Visa credit card. The trip cancellation and interruption insurance provided through the credit card is available only to cardholders who are under the age of 65. The applicant is over 65 years of age.

3In addition to filing this Application, the applicant filed a complaint against the respondent with the Canadian Human Rights Commission (“CHRC”). The CHRC is currently in the process of determining whether it has jurisdiction over the Application.

4The Tribunal issued a Notice of Intent to Defer (“NOID”) the Application pending the CHRC’s determination of the jurisdictional issue. The Tribunal sought the parties’ submissions in response to the NOID.

5The applicant appears to support a deferral of the Application. The respondent submitted that it was not appropriate to defer consideration of the Application as the case law makes clear that this Tribunal has jurisdiction over the Application. The respondent has taken the same position on the jurisdictional issue before the CHRC.

6For the reasons that follow, I find that a deferral is inappropriate as I agree with the respondent that this Tribunal has jurisdiction over the Application. As a result, a decision to defer this Application pending a determination by the CHRC would only prolong these proceedings unnecessarily.

applicable law

7Under subsection 91(15) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, banking, incorporation of banks and the issue of paper money are all matters that fall within federal jurisdiction. However, the case law has held that not all activities carried out by banks necessarily fall within the federal power over banking. In particular, the Supreme Court of Canada has held that ancillary products offered by banks, such as travel and other types of insurance, are properly regulated by the provinces. See Canadian Western Bank v. Alberta, 2007 SCC 22 and Bank of Montreal v. Marcotte, 2014 SCC 55.

8The issue raised in the Application is whether the trip cancellation insurance that the respondent provides to certain credit card holders is discriminatory on the basis of age. Based on the case law cited above, I agree with the respondent that the issues raised in the Application fall under provincial jurisdiction.

ORDER

9For the reasons set out above, the Application will not be deferred. The respondent is directed to file a complete Response to the Application within 28 days of the date of this Interim Decision.

10I am not seized of this Application.