For the second time, a decision of the Canadian Human Rights Commission to dismiss a complaint regarding discrimination related to medicinal marijuana has been set aside by the courts. In McIlvenna v Bank of Nova Scotia, the Federal Court found that the Commission breached its duty of fairness and ignored obviously crucial evidence supporting a complaint that Scotiabank had called in a mortgage because of the presence of medicinal marijuana on the mortgaged property.
The Applicant, Robert McIlvenna, had a mortgage with the Bank, and had applied for an additional line of credit to perform renovations on the mortgaged house, which was occupied by his son and daughter-in-law. The Bank refused the line of credit and called in Mr. McIlvenna’s mortgage, and he alleged the Bank took this action because it had learned that medicinal marijuana was being grown in the home under a Health Canada license. The Bank maintained that the reason for its actions was a violation of the terms of the mortgage.
The Canadian Human Rights Commission initially rejected the complaint without an investigation. That decision was overturned by the Federal Court of Appeal, which found it unreasonable for the Commission to refuse to investigate, when there was a live factual dispute between the parties as to whether the Bank made its decision on discriminatory grounds. (See the Federal Court of Appeal’s decision here.)
The complaint was returned to the Commission for investigation. Following its investigation, the Commission again dismissed the complaint, finding that further inquiry into the complaint was not warranted. Mr. McIlvenna again sought judicial review of the decision in Federal Court. Among his arguments, he raised the fact that there were internal Bank emails in the Commission’s investigation file, which clearly supported the McIlvennas’ allegation that the mortgage was called in because of the presence of medicinal marijuana.
Judgment of the Federal Court
In his judgment, dated July 19, 2017, Justice Boswell of the Federal Court allowed the Application for judicial review. He found that the Commission failed to investigate obviously crucial evidence before it—specifically, the internal Bank emails. The Court held:
“The content of these two emails, in particular the email sent July 15, 2010, is obviously crucial evidence given the relevant allegations in the Applicant’s human rights complaint and the contradictory statements by the Applicant and his son. A reasonable person would agree that this evidence was crucial because it lends credence to the Applicant’s position that his son’s growing of medical marijuana may have been a factor in the Bank’s decision to call in the mortgage. Although the July 15, 2010 email is certainly not conclusive of exactly what was said during the July 15th meeting, at the very least it tends to corroborate the Applicant’s claim that Ms. Joliat discussed the Bank’s policy on grow-ops during their meeting and is crucial in determining the merits of the Applicant’s claim.”
Justice Boswell found that the Investigator “glossed over this evidence”, and failed to investigate the Bank’s policy on marijuana “grow-ops” in determining whether the Bank had a reasonable, non-discriminatory explanation for calling in the mortgage. The Court went on to find the ultimate decision unreasonable, because the Commission’s analysis “essentially ignores the evidence contained in Ms. Joliat’s two emails”, despite the fact that these emails supported the McIlvennas’ version of events. The complaint was referred back to the Commission for re-determination and, if necessary, further investigation.