McIlvenna v. Bank of Nova Scotia, (2014) 466 N.R. 195 (FCA)

• Judge: Nadon, Trudel and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 17, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 466 N.R. 195 (FCA);2014 FCA 203

McIlvenna v. BNS (2014), 466 N.R. 195 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2014] N.R. TBEd. NO.016

Robert McIlvenna (appellant) v. Bank of Nova Scotia (Scotiabank) (respondent)

(A-306-13; 2014 FCA 203; 2014 CAF 203)

Indexed As: McIlvenna v. Bank of Nova Scotia

Federal Court of Appeal

Nadon, Trudel and Stratas, JJ.A.

September 17, 2014.

Summary:

McIlvenna claimed that the Bank of Nova Scotia called in a mortgage loan on his house because there was cannabis growing on the property. McIlvenna filed a discrimination complaint, alleging that the bank's actions were discriminatory against people with a disability (his son), where such disability required the medicinal use and growing of cannabis. The Canadian Human Rights Commission dismissed the complaint. McIlvenna applied for judicial review.

The Federal Court, in a decision reported at 432 F.T.R. 311, dismissed the application. McIlvenna appealed.

The Federal Court of Appeal allowed the appeal, set aside the judgment of the Federal Court, quashed the decision of the Commission, allowed the application for judicial review, and remitted the matter to the Commission for further investigation of McIlvenna's complaint.

Civil Rights - Topic 7114

Federal, provincial or territorial legislation - Practice - Investigation of complaint (incl. report) - A bank called in a mortgage on the applicant's house because there was cannabis growing on the property - The applicant alleged discrimination because his son's disability required the medicinal use and growing of cannabis - The Canadian Human Rights Commission dismissed the complaint (Canadian Human Rights Act, s. 41), holding that it was not linked to a ground of discrimination since the bank was enforcing its contractual rights - The applicant applied for judicial review - The Federal Court dismissed the application - The applicant appealed - The Federal Court of Appeal allowed the appeal - The Federal Court erred - The Commission's decision was unreasonable - The Federal Court reviewed the Commission's decision as if a proper investigation had been conducted and it was assumed that no further investigation was required - Proceeding in that way, it reviewed the substantive basis for the Commission's decision on the record before it - The real question was whether it was reasonable for the Commission to decide that it was plain and obvious on the material then before it that the complaint had to fail - Plain and obvious was the standard for dismissal at the s. 41 stage - That was not the case here as there was a live contest in the record before the Commission - The Commission could not simply resolve the contest in favour of the bank as it purported to do - In doing so it would have had to have engaged in some sort of weighing process which it could not do at the s. 41 stage.

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 10].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 10].

Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 (T.D.), affd. (1999), 245 N.R. 397 (F.C.A.), refd to. [para.13].

Hartjes v. Canada (Attorney General) (2008), 334 F.T.R. 277; 2008 FC 830, refd to. [para. 14].

Boiko v. National Research Council (2010), 362 F.T.R. 258; 2010 FC 110, refd to. [para. 14].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 17].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 41 [para. 13].

Counsel:

Andrew Astritis and Amanda Montague-Reinholdt, for the appellant;

George Vuicic and Cheryll Waram, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the appellant;

Hicks Morley Hamilton Stewart Storie LLP, Ottawa, Ontario, for the respondent.

This appeal was heard in Ottawa, Ontario, on September 16 and 17, 2014, before Nadon, Trudel and Stratas, JJ.A., of the Federal Court of Appeal. The following decision was delivered from the bench, for the court, by Stratas, J.A., on September 17, 2014.