Coote v. Laurentian Bank of Canada, 2017 HRTO 1678

Claufield Anthony Coote

Applicant

-and-

Laurentian Bank of Canada, Ginette St. Denis, Chantal Belanger, Sarah Deluy and B2B Bank

Respondents

Adjudicator: Josée Bouchard Date: December 19, 2017 Citation: 2017 HRTO 1678 Indexed as: Coote v. Laurentian Bank of Canada

WRITTEN SUBMISSIONS

Claufield Anthony Coote, Applicant

Self-Represented

Introduction

1On November 21, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1529 (“the Decision”), dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Application relates to the applicant’s application for a credit card to Laurentian Bank of Canada (“Laurentian Bank”), a Schedule 1 listed bank under the Bank Act, S.C. 1991, c. 46 (“Bank Act”), and the alleged discrimination against him in the way his application was handled. The Tribunal found that 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. The Tribunal’s Decision found that it had no jurisdiction over lending activities by banks.

THE REQUEST FOR RECONSIDERATION

3In summary, the Request for Reconsideration appears to provide the following reasons why the Tribunal should reconsider its Decision:

a. There is no understanding as to why the Tribunal and the Canadian Human Rights Tribunal both state that they do not have jurisdiction over financial institutions for the settlement of human rights complaints.

b. There is no understanding as to why the Bank Act, above, and the Financial Consumer Agency of Canada Act, S.C. 2001, c. 9, may be relied on to demonstrate that the federal Parliament has asserted jurisdiction over lending and borrowing.

c. This case is about ancillary credit card products. The case law states that credit card products are properly regulated by the province. The applicant’s credit card application also included insurance and travel insurance features.

d. It is unjust, unfair, and unconscionable for the Vice-chair to introduce new cases without giving an opportunity to the parties to address these new cases while ignoring all the cases cited in the record.

e. The applicant stated that the property and civil rights provision under s.92(13) of the Constitution Act, 1867 applied to him as an Ontario resident, yet the Vice-chair relied exclusively on s.91(15).

f. The applicant`s Application is not about jurisdiction over supervision, incorporation and issuance of money, but about the resolution of complaints by federally-incorporated banks to Ombudsman for Banking Services based on a contract, provided for by the Governor in Council.

g. The applicant specifically submitted that the respondents cannot opt out of provincial jurisdiction, having agreed in their contract that the Ombudsman for Banking Services is the forum to settle disputes.

4Rule 26.4 of the Rules of Procedure states, “A party who has been served with a Request for Reconsideration need not file a response with the Tribunal unless the Tribunal directs that a response is required”. The Tribunal did not direct the respondents to file a response.

THE LAW

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, effective as of January 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

7The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

ANALYSIS AND CONCLUSIONS

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10The applicant relies on Rules 26.5(a), (c) and (d).

11In support of his Request, the applicant essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

12The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

13I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.

14It is important to note that the issues raised in this Request were the subject of submissions before the Tribunal, and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional arguments on issues already fully canvassed before the Tribunal.

15The Tribunal also stated in Sigrist, above, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

16I also note the applicant’s objections to the Tribunal’s reliance on jurisprudence not brought forward by the parties. Decisions of the Tribunal may be subject to reconsideration if they are in conflict with established jurisprudence. The Tribunal cannot ignore established jurisprudence that the parties have not relied on during a hearing.

17In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.

Dated at Toronto, this 19th day of December, 2017.

“Signed by”

Josée Bouchard

Vice-chair