An Indigenous activist’s case against a Major League Baseball team and its league will be before the Ontario Divisional Court next week as the league argues that Ontario’s Human Rights Tribunal does not have jurisdiction to hear the case.
In 2016, Douglas Cardinal — a renowned Canadian architect of Blackfoot descent — commenced two applications, before the Canadian Human Rights Commission and the Human Rights Tribunal of Ontario, seeking to enjoin the Cleveland Indians Baseball Company, Major League Baseball, and Rogers Communications Inc. from displaying, broadcasting, communicating or otherwise disseminating any representations or depictions using the word “Indian” or any form thereof in relation to the Cleveland Indians and using the “Chief Wahoo” logo within Canada.
The logo, as Legal Feeds previously reported, is a cartoon caricature of an aboriginal man, red-skinned with a toothy grin and a feathered headband, holding a baseball bat. Cardinal argues that the team name and the logo are racist and discriminatory, and using them in baseball games contravenes human rights codes.
“What the continual use and display of that logo at a baseball game means is that individuals who are wildly offended and troubled by that logo have to make a choice between avoiding a game altogether, or attending a game at an increased burden to themselves,” says Paul-Erik Veel, a partner at Lenczner Slaght Royce Smith Griffin LLP in Toronto and one of the counsel representing Cardinal.
Since the logo depicts an aboriginal person in a caricatured and racist way, says Veel, a burden is placed on individuals attending a Cleveland Indians game “as a condition of being able to access that service.” Cardinal’s counsel will argue before the Ontario Divisional Court on Wednesday that Ontario human rights law prohibits discrimination in the delivery of a service.
In October 2016, Ontario Superior Court Justice Thomas McEwen dismissed Cardinal’s application for an injunction just hours before a Cleveland Indians playoff game before the Blue Jays at the Rogers Centre in Toronto. In written reasons delivered the following month (Cardinal v. Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929), Justice McEwen found that “there is no reason why the application cannot have been brought long ago on a non-urgent basis.”
In May, Cardinal won a judgment allowing the case to proceed through Ontario’s Human Rights Tribunal. It is this judgment that one of the respondents, Major League Baseball, will challenge before the Ontario Divisional Court, on the grounds that the Tribunal does not have jurisdiction to hear the case against an American baseball team.
If Cardinal wins his case, the Cleveland Indians would be required to wear their alternate jerseys, which display the team’s stylized “C” logo but not the Chief Wahoo logo, when playing in Ontario or possibly anywhere in Canada.
In recent years sports teams at all levels have faced criticism for using indigenous peoples in their team names and logos.
“Each case that comes before the Tribunal will have to be considered on its own facts,” says Veel when asked about the implications for other sports teams if his client’s application is successful. However, he says, a successful outcome in Cardinal’s application “would at least further the dialogue about a number of names and logos used by various professional sports teams that a number of groups have considered to be quite racist.”
A hearing date in the application before the Human Rights Tribunal of Ontario has not yet been set.