Executive Summary: Key Legal and Evidentiary Issues

• Allegation of racial discrimination in banking services under section 5 of the Canada Human Rights Act (CHRA).

• BMO’s internal credit card policy was challenged as racially exclusionary but found to be neutral and valid.

• The Canadian Human Rights Tribunal (CHRT) ruled that the applicant did not meet the policy’s eligibility, regardless of race.

• The Federal Court applied a reasonableness standard under Vavilov and found no error warranting judicial intervention.

• Arguments invoking UNDRIP and systemic racism were deemed new issues not raised before the CHRT and thus inadmissible.

• The Court dismissed the application without awarding costs, recognizing the applicant’s good faith as a self-represented litigant.

Facts and outcome of the case

Background and context
Clifton Starr, an Indigenous man from Manitoba, brought a complaint against BMO Financial Group, alleging racial discrimination after being denied a secured credit card. His claim centered on an incident that occurred on April 18, 2018, at BMO’s Main Branch in Winnipeg, where he was informed that secured credit cards were only available to new Canadians. Starr argued this policy was discriminatory and alleged he was treated differently due to his Indigenous identity.

Following the incident, Starr visited another BMO branch, where he believed contradictory information was provided about eligibility for secured credit cards. He later returned to the Main Branch and was again denied the product, after which he initiated BMO’s internal complaint process but did not complete it. On February 5, 2019, Starr filed a formal complaint with the Canadian Human Rights Commission (CHRC), alleging a denial of service and adverse treatment based on race.

The CHRC referred the matter to the Canadian Human Rights Tribunal (CHRT), which conducted a hearing in September 2023. The CHRT ultimately dismissed the complaint, finding that the policy was valid, non-discriminatory, and neutrally applied. The CHRT held that the denial was not based on race but on eligibility criteria Starr did not meet.

Judicial review and court’s analysis
Unhappy with the outcome, Starr applied for judicial review in Federal Court, arguing that the CHRT’s decision was unreasonable and procedurally unfair. He claimed the CHRT misapplied the law, overlooked evidence, and failed to account for systemic discrimination and obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its implementation statute, the UNDA.

The Court, applying the Vavilov standard of reasonableness, rejected Starr’s arguments. It found that the CHRT provided a transparent, intelligible, and justified decision that fairly addressed the relevant facts and legal issues. The Court also held that arguments related to UNDRIP and systemic racism were not raised before the CHRT and therefore could not be considered in the judicial review.

The Court further rejected claims of procedural unfairness, noting that the self-represented applicant had multiple opportunities to present his evidence and arguments, including written and oral submissions. It found no indication that the CHRT limited his ability to make an opening statement or present relevant testimony.

Outcome and costs
The Federal Court dismissed the application, upholding the CHRT’s decision. While BMO requested costs, the Court declined to award any, citing the applicant’s self-represented status and good faith conduct. There were no damages awarded.