Executive Summary: Key Legal and Evidentiary Issues

• The applicant sought a writ of mandamus compelling the Financial Consumer Agency of Canada (FCAC) to investigate and act against RBC’s refusal to provide banking services.

• Federal Court jurisdiction over disputes between consumers and banks was central to the determination.

• The FCAC’s statutory obligations and its discretion in handling individual complaints were closely examined.

• The court assessed whether the legal criteria for mandamus were met, particularly the existence of a public legal duty.

• A key evidentiary issue was whether the applicant exhausted all available remedies before seeking judicial review.

• Costs were pre-agreed and imposed on the applicant following the dismissal of the application.

Facts and outcome of the case

Background of the dispute

Ari Ben Menashe, the applicant, had been denied access to banking services by most major Canadian banks for over a decade, most recently by the Royal Bank of Canada (RBC). Following a history of unsuccessful legal actions in Quebec courts against CIBC and Amex Bank of Canada, he attempted to compel RBC to offer him basic banking services. After exhausting internal complaint mechanisms with RBC and seeking assistance from the ADR Chambers Banking Ombuds Office, which declined jurisdiction over business policy decisions, Mr. Ben Menashe submitted a complaint to the Financial Consumer Agency of Canada (FCAC) and the Department of Finance.

In August and October 2021, he formally requested the FCAC to investigate and take regulatory action under provisions of the Bank Act and the Financial Consumer Agency of Canada Act. The FCAC responded, clarifying that it had no authority to intervene in individual banking disputes and could only collect such complaints for broader compliance monitoring purposes.

Legal action and arguments

Frustrated by the lack of recourse, Mr. Ben Menashe filed a judicial review application in Federal Court, seeking a writ of mandamus to compel the FCAC to investigate and act against RBC. He relied on statutory provisions that guarantee access to basic banking services under the Bank Act, arguing that his rights had been violated and that FCAC had a public legal duty to act.

The court reviewed whether the legal test for mandamus was met, focusing primarily on whether there was a public legal duty owed to the applicant by the FCAC, and whether the remedies sought fell within the jurisdiction of the Federal Court. The Bank Act’s provisions allowing discretionary denial of services due to reputational or commercial risk were noted as critical in framing the bank's actions as legally permissible.

Decision and reasoning

The Federal Court found that the FCAC's duties, as defined by statute, were limited to systemic monitoring and did not extend to resolving individual disputes. The agency had no enforceable obligation to act on behalf of Mr. Ben Menashe beyond recording his complaint. Moreover, the court clarified that any dispute between a bank and an individual consumer regarding access to services falls under the jurisdiction of the provincial courts, specifically the Superior Court of Quebec in this case.

Since the first two mandatory criteria for a mandamus order—a legal duty to act and that duty being owed to the applicant—were not met, the court declined to examine the remaining factors.

Final judgment

On November 8, 2023, Associate Chief Justice Jocelyne Gagné dismissed the application for judicial review. As per a prior agreement between the parties, the court awarded $5,700 in costs to the respondent, the Attorney General of Canada.