High Court Judge Nicole Pierre dismissed the account-closure case brought by WIN member Gobin Harbhajan against Scotiabank, ruling that the contract termination was a private matter not subject to review under public law.
The discrimination claim, which was also part of the case, was also dismissed for want of both proof and jurisdiction.
Harbhajan is a current Parliamentarian representing the We Invest in Nationhood (WIN) party, which is led by US-indicted businessman Azruddin Mohamed. He contended that the closure of his account, despite being in good standing, was due to his political alignment. He argued that the account was wrongfully closed and that he was discriminated against.
The judge did not agree with these assertions. It was noted that the Personal Financial Services Agreement the bank maintained catered to the cancellation of services and closure of accounts with 30 days’ notice; the bank did not need to give a reason either.
“The PFSA governing the relationship between the applicant and respondent [Scotiabank] in this case permits termination without cause on notice. It is an unqualified contractual right and does not require the decision-maker to form a judgment or evaluation,” it was noted.
So, the Judge said the “Braganza rationality” was not applied here. The Braganza term dictates that when a contract gives one party the discretion to make a decision—or form an opinion—that affects the rights of both parties, that discretion must be exercised in good faith, honestly, and in a rational manner.
On the claims relating to discrimination by virtue of Harbhajan’s political affiliation, the Judge acknowledged that Scotiabank denied this. It was noted that Harbhajan’s assertion that all WIN members’ accounts were closed by the bank was uncorroborated. The mere assertion or correlation is insufficient, the Judge said.
The case also involved the impact of the WIN leader’s sanctions. Harbhajan sought a declaration that the party is a distinct entity from its members and that no sanctions have been imposed on the party or other candidates. However, Judge Pierre said the sanction status of the party or its candidates has not been established.
In the ruling, the Judge said the purely contractual nature of the customer-banker relationship, alongside the termination provisions of the contract Harbhajan agreed to, insulated the bank from any liability in common law. So, the case was dismissed. However, Judge Pierre said it would be a matter for lawmakers to consider whether an independent individual should be appointed to investigate such matters.
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