HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Claufield Anthony Coote
Applicant
-and-
Laurentian Bank of Canada, Ginette St. Denis,
Chantal Belanger, Sarah Deluy and B2B Bank
Respondents
DECISION
Adjudicator: Josée Bouchard
Indexed as: Coote v. Laurentian Bank of Canada
APPEARANCES
Claufield Anthony Coote, Applicant
Self-represented
Laurentian Bank of Canada, Ginette St. Denis, Chantal Belanger, Sarah Deluy and B2B Bank, Respondents
Wendy Greenspoon-Soer, Counsel
Introduction
1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities on the basis of race, colour, ancestry, place of origin and ethnic origin. The applicant also alleged that the respondents reprised against him within the meaning of the Code.
2Following a Tribunal initiated Notice of Intent to Dismiss on the basis of jurisdiction, the Tribunal decided to hold a summary hearing to determine whether the Application should be dismissed, in whole or in part, for one of the following reasons: (1) on the basis that the subject matter of the Application falls under federal jurisdiction; and/or, (2) on the basis that the Application has no reasonable prospect of success under the Code. The Tribunal also noted in its June 26, 2017 Case Assessment Direction that the Tribunal would hear the parties’ submissions on whether the personal respondents should be removed as parties to the Application.
3On July 28, 2017, the respondents, Laurentian Bank of Canada (“Laurentian Bank”), Ginette St. Denis, Chantal Belanger, Sarah Deluy and B2B Bank, filed their documents for the summary hearing.
4The Tribunal held the summary hearing on October 17, 2017.
parties’ submissions
The Applicant’s Submissions
5The applicant alleges that the respondents discriminated and/or reprised against him when they denied his credit card application for a card offering a 2.99% interest rate on balance transfers for the first nine months. The applicant also alleges discrimination and/or reprisal with respect to the respondents’ refusal to investigate his complaint when he failed to sign the consent form required by the respondents. The applicant argues that the matter is well within provincial jurisdiction.
6The applicant argues that the corporate respondent, Laurentian Bank, cannot opt out of provincial jurisdiction by relying on the Canadian Human Rights Tribunal’s federal jurisdiction. The applicant notes that the respondents have not stated why they wish to deviate from provincial jurisdiction and what expertise the Canadian Human Rights Tribunal brings that supersedes the expertise of the Ontario Human Rights Tribunal.
7The applicant argues that his Application is not based on general allegations of unfairness but on allegations that are clearly linked to the Code grounds of race, colour, ancestry, place of origin and ethnic origin. He alleges that his credit card application was denied on arbitrary, capricious and discriminatory grounds resulting in prejudice to his files with rating agencies.
8In addition, the applicant maintains that when he refused to sign a very unreasonable and discriminatory illegal consent agreement, Laurentian Bank’s ombudsperson reprised against him by refusing to investigate his complaint. The applicant argues that he resides in Ontario and was treated differently than a resident from Quebec. The applicant submits that the respondents knew he is not Caucasian as they heard his accent over the phone and received emails from him that included his picture. He argues that as a person of colour, the refusal to allow him to conduct balance transfers under the pretense that his credit cards had high interest rates is unconscionable and clearly discriminatory.
9The applicant argues that that the Tribunal should deny the request to remove the personal respondents. He requests instead that the Tribunal add three personal respondents, Vladimir Bonnaire, Haucem Sabba and Lynda Bousquet, all employees of Laurentian Bank. The applicant submits that they all participated in making the decision to deny his application for a credit card. The applicant submits that these employees should be held jointly and severally liable for the alleged incidents of discrimination.
Respondents’ Submissions
10The respondents argue that under s. 91(15) of the Constitution Act, 1867, 30 & 31 Vict., c.3 (“Constitution Act, 1867”), matters related to banking, incorporation of banks and the issue of paper money fall within federal jurisdiction. The respondents note that the corporate respondents, Laurentian Bank and B2B Bank, are Schedule I banks under the Bank Act, S.C. 1991, c. 46 (“the Bank Act”).
11The respondents acknowledge the jurisprudence which has held that not all activities carried out by banks necessarily fall within the federal power over banking. However, they argue that the granting of credit, or loans, is at the core of banking and is federally regulated. The respondents submit that the Application relates to the granting of credit or loans; the denial of the applicant’s application for a credit card; and the alleged discrimination in the way the application was handled.
12The respondents also maintain that the whole Application is about general unfairness and bad faith. They submit that the applicant can point to no evidence, or evidence reasonably available to him, that shows that the respondents acted inappropriately or that the respondents’ actions are linked to a Code-protected ground. As such, the respondents argue that the Application has no reasonable prospect of success.
13The respondents further request the removal of the personal respondents, Ginette St. Denis, Chantal Belanger and Sarah Deluy, as parties to the Application. The respondents argue that Laurentian Bank is participating as a corporate respondent, it accepts that it is deemed liable for the actions of its employees, the personal respondents were acting within the scope of their duties and their removal would not cause prejudice to the applicant.
14The respondents also argue that B2B Bank is a subsidiary of Laurentian Bank and it was not involved in the allegations contained in the Application. For that reason it should be removed because it is inappropriately named.
analysis and decision
15This Tribunal has no jurisdiction over this Application and it is dismissed. The Tribunal need not address whether there is no reasonable prospect that the Application or part of the Application will succeed or whether respondents should be added or removed.
16This Application relates to the applicant’s application for a credit card to Laurentian Bank, a Schedule 1 listed bank under the Bank Act, and the alleged discrimination against him in the way his application was handled.
17Under s. 91(15) of the Constitution Act, 1867, matters related to banking, incorporation of banks and the issue of paper money fall within federal jurisdiction. 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 Farquhar v. Bank of Nova Scotia, 2016 HRTO 991 at para. 7; Canadian Western Bank v. Alberta, 2007 SCC 22; and Bank of Montreal v. Marcotte, 2014 SCC 55 (“Marcotte”).
18However, as in this case, lending by a bank listed under Schedule 1 of the Bank Act is central to banking and has been recognized as such by the Supreme Court of Canada as a federally-regulated activity. See Marcotte, above at para. 66.
19The legislative regime related to loans is federal. Parenthetically, I note that sections 454 and 455 of the Bank Act address issues related to loans. Section 454 of the Bank Act provides that the Governor in Council may make regulations respecting borrowing costs. Section 455 outlines the procedure for dealing with complaints “made by persons having requested or received products or services in Canada from a bank”. In addition, banks are supervised by federal agencies pursuant to the Financial Consumer Agency of Canada Act, S.C. 2001, c. 9. Although not determinative of constitutional jurisdiction, these provisions demonstrate that the federal Parliament has asserted jurisdiction over lending and borrowing.
20This Tribunal has recognized that jurisdiction over banking, incorporation of banks and the issue of paper money is federal and that the Code does not apply to banking. See Strutt v. RBC Royal Bank, 2011 HRTO 1794, Sandoz v. Amex Bank of Canada, 2012 HRTO 525, and Dos Remedios v. Amex Bank of Canada, 2013 HRTO 1020.
21The Tribunal has no jurisdiction over this Application. Accordingly, the Application is dismissed.
Dated at Toronto, this 21st day of November, 2017.
“Signed by”
Josée Bouchard
Vice-chair