On October 14, 2016, the Superior Court of Ontario heard an application for an injunction preventing the display, broadcast, and dissemination of the team name and logo of the “Cleveland Indians,” a U.S. baseball team scheduled to play at the Rogers Centre later that day. The team, whose offensive logo has long been the subject of criticism amongst Indigenous Americans, was playing against the Toronto Blue Jays as part of the American League Championship Series. While the court refused to grant the injunction, the application has called attention to the issue of racial stereotyping and has raised questions about the viability of addressing this issue through the courts and/or human rights tribunals in Canada.
Human rights in the Canadian context
Human rights in Canada are governed by provincial and federal laws. Both the Ontario Human Rights Code (the Ontario Code) and the Canadian Human Rights Act (the CHRA) prohibit against discrimination on the basis of race, skin colour, ethnic origin, sexual orientation, age, marital status, family status, and disability: whether a human rights complaint should be brought before a provincial or federal tribunal depends on who has jurisdiction over the subject matter.
In his materials for the injunction in the case of the Cleveland baseball team, Douglas Cardinal, an Indigenous elder and sports fan, argued the team name and logo reinforce and therefore further entrench racist stereotypes against Indigenous peoples in Canada — a group that the courts have recognized as being historically disenfranchised. He argued that the injunction should be granted in aid of complaints that have been filed before both the Ontario and Canadian Human Rights Tribunals.
a) Broadcasting of baseball games as a ‘service’
The basis of Mr. Cardinal’s human rights complaints is that the use and dissemination of the team name and logo discriminate against Indigenous persons in the provision of services (Section 1 of the Ontario Code; Section 5 of the CHRA). An additional argument in the federal complaint is that the team name and logo constitute harassment in the provision of services (Section 14 of the CHRA).
The success of Mr. Cardinal’s argument before both the provincial and federal tribunals turns on how these bodies interpret the “provision of services.” Services have historically been understood to include social areas of employment, accommodation, goods, services, and facilities, and the Human Rights Tribunal of Ontario (the Tribunal) has expressed some wariness when it comes to expanding that definition. In a 2010 case involving the Peel Children’s Aid Society, the Tribunal refused to find that a “service relationship” existed between a parent and the Society, stating that “mere interaction” did not meet the test.
The HRTO has also confirmed that editorials in newspapers do not fall within the meaning of a “service.” In a 2010 decision involving a newspaper editorial disparaging individuals who had moved to Prince Edward County, the HRTO found that the editorial was not a “service” and consequently could not be scrutinized by the Tribunal. They noted that finding otherwise may threaten the freedom of press and expression that are guaranteed under the Charter of Rights and Freedoms.
In light of these decisions, it is unclear whether Mr. Cardinal’s proposed interpretation of services as something “of benefit which is provided by one person to another, or to the public” will succeed, as it requires a broadening of the interpretation of what constitutes a “service” to include the broadcasting of images.
b) Signs and symbols that announce an ‘intention to discriminate’
In addition to arguing that the team name and logo discriminate in providing services, Mr. Cardinal has argued that the team name and logo are in breach of Section 13 of the Ontario Code, which prohibits signs, symbols or emblems that contain “an announcement of an intention to discriminate.” That section of the Code is followed by 13(b), which clarifies that the provision shall not be used to infringe upon freedom of expression.
There is a dearth of case law that deals with the application of this provision outside the context of newspaper editorials, which the Tribunal has refused to define as a “sign, symbol or emblem.” The Tribunal has also noted that to the extent that there is ambiguity in interpretation, it should be resolved in favour of freedom of expression; arguably, the case for freedom of expression is less compelling in the case of a team logo displayed during the broadcast of a baseball game than in the case of a newspaper editorial. Nonetheless, it is unclear how this argument will be received.
The issue of discriminatory and offensive team names and logos is not unique to the American context; indeed, one need only look to the Edmonton Eskimos to find parallels here in Canada. While the success of the human rights applications is yet, unknown, it may that the public calls for accountability are the critical ingredient for change. The case of the Ottawa-based football team, the Nepean Eagles (formerly the Nepean Redskins) suggests this to be true: while the Tribunal refused to make a finding of discrimination, the public’s demand for change — spearheaded by a prominent artist from the band Tribe Called Red — resulted in the re-branding of the team, which had held its name since 1981. To the extent that the above-noted proceedings call public attention to this issue, they will have been successful.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.
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