Pubdate: Mon, 24 Jul 2017
Source: Sudbury Star (CN ON)
Copyright: 2017 Osprey Media
Contact: http://www.thesudburystar.com/letters
Website: http://www.thesudburystar.com
Details: http://www.mapinc.org/media/608
Author: Ben Leeson
Page: A1

MEDICAL POT BATTLE

City man alleges bank discriminated against his family because his son
and daughter-in-law were growing medicinal marijuana

A federal judge has granted a Greater Sudbury man's application for
judicial review of a Canadian Human Rights Commission decision last
year to dismiss his 2010 complaint, which alleged the Bank of Nova
Scotia discriminated against his family by demanding repayment of a
mortgage because his son and daughter-in-law were growing medicinal
marijuana.

Robert McIlvenna filed the complaint on Aug. 23, 2010, but the
commission dismissed it in a letter in March 2012, deciding that the
facts as alleged did not constitute a discriminatory practice. That
decision was quashed through the Federal Court of Appeal, which sent
it back to the commission for further investigation, but the
commission dismissed it again, after further investigation, on June
16, 2016.

McIlvenna then applied for judicial review of the commission's most
recent decision.

In a judgement dated July 19, Justice Keith Boswell decided to allow
the review, ruling the commission's decision to dismiss the complaint
was "procedurally unfair and unreasonable," because the investigator's
report did not sufficiently address or consider certain evidence,
including the bank's policy on grow ops.

Boswell set aside the commission's 2016 decision and returned the
matter to the commission yet again for redetermination and, if
necessary, further investigation.

Trouble between McIlvenna and the bank began after he and his wife met
with a personal banking officer to discuss an increase to their line
of credit to complete renovations to their house in Val Therese, which
was then occupied by their son, Ryan, daughter-in-law, and their three
children.

After some of the renovations had been completed, McIlvenna and his
wife returned to the bank to discuss their line of credit. The bank
arranged for an appraiser to inspect the property on June 24, 2010,
and in a letter dated July 16, 2010, the appraiser noted that Ryan
McIlvenna had informed him that he and his wife were permitted by
Health Canada to grow marijuana for medicinal purposes and the second
story addition to the house would be to accommodate the marijuana
plants they required for medical purposes.

The appraiser reported that the house was stripped to its studs, the
exterior facade was removed and the house was at a point that would be
considered a shell only.

A few weeks later, McIlvenna and his son met with Estelle Joliat, a
community manager at the bank's branch in Sudbury. The bank denied an
increase to the line of credit and informed them it would to demand
repayment of the entire mortgage.

Joliat sent an email the same day to the bank's national collection
centre, in which she summarized the meeting, as well as the events
leading up to it.

In a letter to McIlvenna dated Aug. 5, 2010, the bank demanded full
repayment of the mortgage, stating that he had breached the terms and
conditions of the mortgage agreement.

McIlvenna filed a complaint with the human rights commission alleging
that the Bank had discriminated against him and his family because of
the disabilities of his son and his daughter-in-law. He explained that
his son Ryan and daughter-in-law had each been prescribed marijuana
and been licensed by Health Canada to possess and grow marijuana for
treatment of their disabilities.

He also alleged that when he met with Joliat in July 2010, he was
informed that the bank would demand repayment of the entire mortgage
because marijuana was being grown in the house. McIlvenna complained
that the bank's actions and policies were discriminatory against
people with disabilities who require the use and growing of marijuana.

A human rights officer investigated the matter, but the commission
decided to not deal with the complaint, because the bank's decision to
call in the mortgage was not based on a prohibited ground of
discrimination.

The Federal Court of Appeal quashed the 2012 decision and remitted the
matter back to the commission for further investigation. The
commission recommenced its investigation and, over the course of
several months, an investigator interviewed various individuals before
releasing a report in February 2016 that recommended that the
commission dismiss the complaint.

The investigator noted in the report that six individuals had been
interviewed,including Robert   McIlvenna, his son Ryan, the appraiser,
Joliat, and two other bank employees. The investigator followed a
two-step investigation process by first examining whether there was
support for the allegation of discrimination in the provision of a
service, then whether the bank could provide a reasonable explanation
for its actions that was not a pretext for discrimination on a
prohibited ground.

It was unclear, the investigator wrote in the report, "whether the
respondent's decision to call in the mortgage was linked to the
respondent's son's disability. Substantial changes were made to the
property without the consent of the bank, and had the effect of
reducing its value.

"However, although the respondent maintains that the alleged
disabilities of the complainant's son played no part in its decision
to call the mortgage, it was made aware that the changes made, and
proposed to be made, were to accommodate the growing of medical marijuana."

The investigator noted that, according McIlvenna, Joliat said that
"growing marijuana at a mortgaged home was prohibited by bank policy,"
that she was "very concerned about the environmental issues within
residences where cannabis was grown" and that "the bank does not allow
marijuana in their communities."

Joliat denied making those comments, however, and said she focused on
the fact that the use of the property was no longer the same as when
the mortgage had been approved and that the house was a shell with no
windows and a plywood roof. The investigator referred to an email
Joliat had sent after the meeting with McIlvenna and his son to the
collection centre, which emphasized the fact that the property had
been altered.

"The evidence gathered indicates that the bank called in the mortgage
because the complainant breached several terms of the mortgage, and
the respondent was concerned that the complainant did not have the
ability to bring the property back to an acceptable state of repair,
particularly given that the STEP Mortgage did not allow the mortgagors
to incur any additional funding as it was close to its lending limit
being maximized," the investigator wrote in her report. "The evidence
gathered does not indicate that the respondent called in the
complainant's mortgage based on his son's disability and the
particular form of treatment for that disability."

McIlvenna contended, however, that the investigator failed to consider
"obviously crucial evidence" which, had it been considered, would have
led to a different conclusion and recommendation. He said the
investigator's conclusion that there was no evidence that the bank's
decision to refuse the line of credit and demand repayment of the
mortgage was based on his son's disability, was directly contradicted
by two emails sent by Joliat. In the first, dated July 15, 2010,
Joliat made repeated references to the presence of a "grow-op" in
explaining the decision to call in the mortgage. McIlvenna said the
email showed that the bank had called in the mortgage because the use
of the property no longer met the bank's criteria and Joliat's
reference to the changed use of the property refers to the applicant's
son growing medicinal marijuana.

McIlvenna also noted the email confirms that the bank decided to call
in the mortgage before receiving the appraiser's letter of July 16,
2010, and before it received the appraiser's final report dated, Sept.
1, 2010.

In a subsequent email, dated Sept. 9, 2010, Joliat explicitly stated
that she had reviewed the bank's policy on grow-ops with another bank
employee.

"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," Boswell wrote in his
judgement. "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 15 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."

The Sept. 9, 2010 email confirmed Joliat discussed the bank's official
policy on "grow-ops" with another bank employee, Boswell wrote, "yet,
the Investigator glossed over this evidence."

"The applicant's application for judicial review is allowed," Boswell
wrote.

"The commission's decision to dismiss the complaint was procedurally
unfair and unreasonable because the investigator's report did not
sufficiently address or consider the bank's policy on grow-ops, nor
did it fully engage with or address the content of Ms. Joliat's emails
when compared with the statements by the applicant and his son."

Read the full judgement at

https://www.canlii.org/en/ca/fct/doc/2017/2017fc699/2017fc699.html
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