Date:
20130115
Docket:
T-360-11
Citation:
2013 FC 30
Ottawa, Ontario,
January 15, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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MOHIE EL DIN ALI
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Applicant
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and
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ATTORNEY GENERAL,
TORONTO-DOMINION
BANK
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Canadian Human Rights
Commission (the Commission) dated February 4, 2011 not to refer his complaint
to the Human Rights Tribunal. For the reasons that follow this application is
dismissed.
Facts
[2]
The
applicant alleges that Toronto-Dominion Bank (TD Bank) denied him banking
services and treated him in an adverse manner based on his race, religion and
national or ethnic origin. In particular, the applicant alleges that he was
discriminated against because he is Arab and Muslim.
[3]
The
applicant has had an account with TD Bank for approximately 15 years. On
November 3, 2009 he went to his usual TD Bank branch in downtown Ottawa and attempted to cash a cheque, payable to him, in the amount of $2,448.00 drawn
from another bank. The teller advised the applicant that there would be a hold
on the funds for five days. After some discussion, a customer service
representative confirmed this policy. The applicant was advised that he could
have immediate access to the funds if he obtained a certified cheque or money
order. The applicant claims that the TD Bank staff asked him inappropriate
questions including the source of the cheque and details regarding his
employment.
[4]
The
applicant believes that TD Bank’s decision was motivated by his race and
religion and because the issuer of the cheque has a Muslim name. The applicant
was insulted by the TD Bank’s concern that the cheque might be fraudulent or
dishonoured.
[5]
The
Commission appointed an investigator who conducted interviews and collected
evidence. TD Bank provided the investigator with its Hold Funds Policy. TD
Bank determines whether it will place a hold on a cheque after assessing the
customer’s banking and credit history.
[6]
TD
Bank explained why it decided to apply the Hold Funds Policy to the applicant.
First, the applicant had not deposited any money into his account for over a
year. While the applicant provided a bank statement showing a wire transfer on
October 15, 2009, two weeks earlier, TD Bank explained that wire transfers are
guaranteed funds, unlike uncertified cheques. Second, the balance for his
account was $281.00 and his $13,000 line of credit was at its limit. Third,
the applicant stated that the cheque was from his employer but the cheque
issuer did not match the TD Bank’s records regarding the applicant’s
employment. Fourth, there was no history of deposits similar to the cheque he
wished to cash.
[7]
Two
weeks after this incident, at a different TD Bank branch, the applicant
deposited a cheque in the amount of $14,800 and received from it $1,800 in
cash. The applicant questioned why two branches would apply the same policy
differently. TD Bank replied that a branch has the discretion under policy.
As the applicant used the $14,800 to pay off his outstanding line of credit of
$13,000 at that time, the branch elected to exercise its discretion to release
a portion of the funds.
[8]
The
investigator provided a preliminary assessment report dated October 12, 2010.
The report concluded that TD Bank was acting in accordance with its policy when
it elected to place a hold on the cheque. As the applicant had only $281.00 in
his account and was at the maximum of his line of credit, there would be no
funds to cover the amount of the cheque should it be dishonoured.
[9]
The
parties each filed submissions in response to this report.
[10]
On
February 4, 2011, the Commission dismissed the complaint pursuant to
subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, RSC 1985 c H-6 (CHRA), because
the evidence did not establish a link between TD Bank’s conduct and a
prohibited ground of discrimination. The applicant seeks judicial review of
this decision.
Issues
[11]
The
Commission’s decision is reviewed on a standard of reasonableness: Wu v
Royal Bank of Canada, 2010 FC 307, para 20.
The applicant has also raised issues regarding procedural fairness which are
reviewed on the standard of correctness.
Analysis
Preliminary Issues
[12]
The
applicant alleges that TD Bank has acted contrary to various statutes,
including the Privacy Act (RSC, 1985, c P-21), the Bank Act (SC
1991, c 46) and the Financial Consumer Agency of Canada Act (SC 2001, c
9). For the purposes of this application the Court will only review the
decision of the Commission made pursuant to the CHRA. The Court will
not consider the applicant’s allegations regarding these other statutes.
Additionally, even if the applicant was successful in this proceeding, the
Court does not have the jurisdiction to order that TD Bank pay damages to the
applicant as part of this judicial review.
Procedural Fairness
[13]
The
applicant raises three issues with respect to procedural fairness and argues
that these deficiencies in procedure and the Commission’s ultimate conclusion
indicate bias. I find that there was no breach of procedural fairness.
Additionally, there is nothing in the record to indicate a reasonable
apprehension of bias.
[14]
First,
the applicant argues that the Commission should not have accepted submissions
from TD Bank after the deadline for his submissions. He also alleges that the
Commission did not keep him apprised of TD Bank’s submission.
[15]
Following
the preliminary assessment report the parties had the opportunity to provide
written submissions. The deadline was set for November 29, 2010. On December
3, 2010, the Commission called the applicant to advise him that TD Bank had
filed further submissions dated November 25, 2010. The applicant considered
this unfair because he had not had the opportunity to respond. Therefore, the
Commission granted the applicant the opportunity to file additional
submissions, which he did on December 20, 2010.
[16]
There
is no unfairness in this process. The Commission advised the applicant of TD
Bank’s further submission soon after it was filed. The Commission then granted
the applicant a generous period of time with which to respond.
[17]
Second,
the applicant alleges that certain evidence and submissions were not disclosed
to him. In particular, he mentions the Hold Fund Policy which states that the
TD Bank has the discretion to over-ride the policy, and contends that he was
not provided with his bank history from 2008.
[18]
The
record reveals that the applicant was provided with disclosure. He
specifically acknowledged receipt of the Hold Fund Policy in a phone
conversation with the investigator on August 31, 2010, and subsequently did so
in writing. He was also in possession of his own bank records throughout.
[19]
Third,
the applicant alleges that the Commission did not conduct a thorough
investigation. I see no deficiency in the investigation. The investigator
interviewed both parties and requested information from TD Bank. Both parties
had the opportunity to present evidence and make written submissions.
Reasonableness
[20]
When
the Commission adopts an investigator’s findings and provides only brief
reasons, the investigator’s report is treated as the Commission’s reasons: Sketchley
v Canada, 2005 FCA 404, at para 37.
[21]
I
find that the decision was reasonable. There was no evidence to link the
applicant’s complaints to a prohibited ground of discrimination. There is no
indication that the applicant’s or the cheque issuer’s race or religion
influenced the TD Bank’s interactions with him. All of the evidence is
consistent with a fair and reasonable application of the Hold Policy.
[22]
The
applicant was offended by certain conduct of the TD Bank, in particular the
implication that his cheque could be fraudulent. The applicant also considers
it inappropriate for the TD Bank to have asked questions regarding his
employment. He felt disrespected by the Manager’s conduct, including the fact
that the Manager did not stand to shake his hand. The applicant is
dissatisfied with the customer service he received. Again, the investigator
found TD Bank’s actions to be based in the Hold Policy, or, in the case of the
Manager’s decision to remain seated, a desire to better manage the relationship
with an upset customer. The applicant has not identified any evidence that
could support the view that TD Bank was motivated by bias towards Muslims or
Arabs.
[23]
The
applicant has made several arguments regarding whether he “cashed” or
“deposited” the cheques in question. He claims that the Commission improperly
made reference to him depositing certain cheques, when he in fact cashed or
attempted to cash them. This distinction has no bearing on the reasonableness
of the decision. As TD Bank explained, when an individual seeks to “cash” a
cheque, the cheque is first deposited into the individual’s account and then
the funds are withdrawn. It is a two step process. The applicant’s efforts to
characterize it as a single step is both legally incorrect and factually
irrelevant.
[24]
The
applicant also argues that the investigator improperly characterized his
complaint as being about TD Bank’s decision to place a hold on his cheque. His
allegation is that he was denied banking services and treated in an adverse
manner based on prohibited grounds of discrimination. However, in the
preliminary assessment report, the investigator accurately sets out the
applicant’s complaint: “that the respondent denied him a banking service and
treated him in an adverse differential manner on the basis of his race,
religion and national or ethnic origin.” Though the investigator’s final
conclusion refers specifically to the hold, she understood the scope of the
applicant’s complaint.
[25]
Additionally,
the applicant argues that the Commission did not consider the following
evidence:
(1)
TD
Bank implied that his cheque could be fraudulent and asked the applicant the
source of the cheque and details regarding his employment.
(2)
The
applicant had deposited $1,290 to his account on October 15, 2009, shortly
before the incident at issue.
(3)
The
applicant deposited $13,000 to his line of credit on November 24, 2009.
[26]
I
first note that a decision maker is not required to reference every argument or
detail that the parties have raised nor make a finding on each subordinate
issue: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, para
16. Regardless, the record in this case shows that all of the above evidence
was considered.
[27]
The
investigator noted that “the complainant alleges that the Customer Sales and
Service Representative that he dealt with was disrespectful and insinuated that
his cheque was fraudulent.” The investigator also considered TD Bank’s
response, that the cheque was not referred to as fraudulent, nor was any
reference made to the ethnicity of the complainant or the issuer of the cheque.
[28]
While
the applicant would have preferred for the investigator to make specific
reference to the applicant’s allegation that the TD Bank was disrespectful of
his religion and ethnicity, I am satisfied that she considered all of the
applicant’s allegations.
[29]
The
preliminary assessment report does not reference the October 15, 2009 wire
transfer. However, the record shows that the investigator considered this
incident. On December 10, 2010, the applicant provided a bank statement
showing this wire transfer. The investigator contacted TD Bank and the bank
clarified that this was a wire transfer, not a deposit of an uncertified
cheque.
[30]
While
it would have been preferable for TD Bank to have identified this wire transfer
early on in the investigation, I am satisfied that the investigator considered
this evidence and reasonably accepted TD Bank’s explanation that wire transfers
are guaranteed funds and do not raise the same concerns as cheques. There is,
therefore, simply no basis for the applicant’s argument that the TD Bank was
untruthful or that it falsified records.
[31]
The
investigator did not err in finding that the applicant had not deposited any
money into his account for over a year. Strictly speaking, a wire transfer is
not a deposit by the applicant. Though the investigator did not explicitly
mention the wire transfer the omission does not detract from the overall
reasonableness of her decision.
[32]
The
investigator also considered the November 24, 2009 deposit including the
$13,000 applied to the line of credit. She concluded that the other branch had
exercised its discretion to over-ride the Hold Funds Policy given the source of
the funds and the use to which they were to be put.
[33]
In
conclusion, the investigator conducted a fair and thorough investigation. She
considered the applicant’s allegations and reasonably concluded that there was
nothing to indicate that TD Bank had discriminated against the applicant. The
Commission accepted this recommendation and decided to dismiss the complaint.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed, with costs.
"Donald J.
Rennie"