Background
Andrew Martin sought judicial review of the Canadian Human Rights Commission’s dismissal of his discrimination complaint against the Bank of Nova Scotia. The complaint arose from Scotiabank’s 2012 decision to call his mortgage on an Orillia, Ontario property where Martin and his former partner had grown marijuana for medicinal purposes. Martin alleged discrimination based on disability and later added marital status.
Scotiabank maintained that it called the mortgage because Martin had breached its standard charge terms by obtaining a second mortgage from another bank without written consent. A Commission investigator recommended dismissing the complaint because further inquiry was not warranted, and the Commission adopted that recommendation in 2018. Martin asked the Federal Court to set aside the dismissal and direct that the complaint proceed to the Canadian Human Rights Tribunal.
The Court’s Holding
The Federal Court granted judicial review because the investigation was procedurally unfair. Although complainants cannot require investigators to interview every proposed witness, the investigator failed to contact potentially crucial witnesses—including the Scotiabank branch manager who allegedly said the bank had a policy against doing business with anyone involved with marijuana—and provided no explanation for that omission. The investigator also did not analyze whether she accepted or rejected Martin’s account of the alleged policy.
The Court held that these omissions undermined the neutrality and thoroughness required of the Commission’s screening investigation. It did not decide Martin’s remaining arguments or determine whether discrimination occurred. Declining Martin’s request for a direct referral to the Tribunal, the Court remitted the complaint to the Commission for reconsideration by a different member, including reconsideration of whether further witness interviews should be conducted. Scotiabank was ordered to pay Martin $8,000 in costs.
Key Takeaways
- A Canadian Human Rights Commission investigation must be neutral and thorough enough to provide a fair basis for deciding whether a complaint warrants Tribunal inquiry.
- An investigator need not interview every suggested witness, but failing without explanation to examine obvious witnesses with potentially crucial information can breach procedural fairness.
- Successful judicial review does not necessarily produce a direct Tribunal referral; absent exceptional circumstances, reconsideration by the Commission may be the appropriate remedy.
Why It Matters
The decision reinforces that the Commission’s screening role does not permit it to dismiss a complaint on an incomplete evidentiary foundation. Where competing explanations exist for an allegedly discriminatory decision, evidence capable of supporting a prohibited-ground connection must be meaningfully examined.
The ruling also illustrates the limited nature of judicial-review remedies. The Court corrected the unfair process but left the Commission, through a different decision-maker, to reconsider whether the complaint should advance and whether additional witnesses should be interviewed.