Douglas Cardinal v. Rogers Communications Inc., 2016 HRTO 1610

Human Rights Tribunal of Ontario

Between:

Douglas Cardinal

Applicants

-and-

Rogers Communications Inc., Major League Baseball, and Cleveland Indians Baseball Company Limited Partnership

Respondents

Interim Decision

Adjudicator: Jo-Anne Pickel Date: December 13, 2016 Citation: 2016 HRTO 1610 Indexed as: Cardinal v. Rogers Communications Inc.

Written Submissions

Douglas Cardinal, Applicant Monique Jilesen, Counsel

Rogers Communications Inc., Respondent Kent Thomson, Counsel

Major League Baseball, Respondent Markus Koehnen, Counsel

Cleveland Indians Baseball Company Limited Partnership, Respondent Jonathan Lisus, Counsel

1The applicant filed an Application alleging that the respondents discriminated against him because of ancestry, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant seeks an order enjoining the Cleveland Indians Baseball Company Limited Partnership (“Cleveland Team”), Major League Baseball (“MLB”), and Rogers Communications Inc. (“Rogers”) (collectively “the respondents”) from displaying, broadcasting, communicating or otherwise disseminating images, representations, depictions or descriptions using the word “Indian” (the “Name”) or any form thereof in relation to the Cleveland Team and the “Chief Wahoo” logo (the “Logo”) within Ontario.

2The applicant claims that the use of the Name and Logo:

a. constitutes discrimination against the applicant in the provision of services, namely professional sports entertainment in the Rogers Centre in Toronto and as broadcast to a national audience, contrary to s. 1 of the Code.

b. violates s. 13(1) of the Code in that it is the publication or display of a notice, sign, symbol, emblem, or other similar representation that is intended to incite the infringement of Part I of the Code.

Notice of Intent to Defer

3On November 8, 2016, the Tribunal sent the parties a Notice of Intent to Defer (“Notice”) the Application pending the conclusion of another proceeding. The Tribunal invited the parties to make submissions in response to the Notice. The applicant and MLB noted that the only other proceedings in this case were an application for an injunction and a complaint filed with the Canadian Human Rights Commission (“CHRC”).

4I find that deferral is not appropriate in this case as the application for an injunction has been determined and there is no ongoing civil proceeding between the parties. The CHRC complaint is ongoing. The issues to be resolved as between this Application and the CHRC complaint are jurisdictional in nature – that is, does the Application against any of the respondents fall under federal jurisdiction rather than provincial jurisdiction. The Tribunal must determine these jurisdictional issues before proceeding with consideration of the Application. However, the existence of these jurisdictional issues is not a valid reason to defer consideration of the Application.

Preliminary Jurisdictional Issues

5By letter dated December 7, 2016, MLB submitted that the Tribunal lacked territorial jurisdiction and subject matter jurisdiction over the Application as it relates to MLB. By letter dated December 8, 2016, Rogers took the position that the Application falls within federal jurisdiction over broadcasting and trademarks. By letter dated December 8, 2016, the Cleveland Team submitted that the Tribunal lacks jurisdiction over it and advised that it does not attorn to the Tribunal’s jurisdiction.

6These jurisdictional issues must be addressed before the Tribunal proceeds with any further consideration of this Application. The timeline for the parties’ submissions is as follows:

a. Any respondent who wishes to raise any objection to the Tribunal’s jurisdiction in this matter must file full written submissions to support its objection no later than January 16, 2017.

b. The applicant may file submissions responding to the respondents’ submissions no later than February 6, 2017; and

c. Upon receiving the parties’ submissions, the Tribunal will determine appropriate next steps, including whether it is necessary to hear oral submissions or whether it is appropriate to render a decision on the jurisdictional issues based on the parties’ written submissions.

7The parties should note that the Tribunal does not consider the filing of submissions in relation to jurisdictional issues as attorning to the Tribunal’s jurisdiction.

Order/Directions

8For the reasons set out above, the Tribunal will not defer consideration of the Application. The Tribunal will address any preliminary jurisdictional issues identified by the parties using the process and timelines set out in para. 6 above.