Major League Baseball v. Cardinal et al.

[Indexed as: Major League Baseball v. Cardinal]

Ontario Reports

Ontario Superior Court of Justice, Divisional Court,

Kiteley, Linhares de Sousa, Pattillo JJ.

January 30, 2018

141 O.R. (3d) 57 | 2018 ONSC 714

Case Summary

Administrative law — Judicial review — Prematurity — Respondent commencing proceedings before Human Rights Tribunal for order enjoining use of team name "Cleveland Indians" and use of team's logo at Rogers Centre in Toronto — Applicant bringing motion challenging tribunal's jurisdiction on basis that respondent should have proceeded under Trade-Marks Act — Vice-chair issuing interim decision dismissing motion — Applicant's application for judicial review of interim decision dismissed as premature — Application not raising true issue of jurisdiction — No exceptional circumstances existing that justified departing from general rule against seeking judicial review of interlocutory decisions.

The respondent, an Anishnaabe elder, commenced an application at the Human Rights Tribunal of Ontario in which he alleged that the use of the name "Cleveland Indians" by a Major League Baseball team and the team's logo constituted discrimination in the provision of the entertainment service of baseball contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19. While the relief sought was initially quite broad, he ultimately narrowed it to an order enjoining the use of the team name and logo at the Rogers Centre in Toronto. The applicant brought a motion challenging the tribunal's jurisdiction to hear the application, arguing that the respondent should have proceeded under the Trade-Marks Act, R.S.C. 1985, c. T-13. The vice-chair issued an interim decision dismissing the motion. The applicant brought an application for judicial review of that decision.

Held, the application should be dismissed.

The application was premature. It did not raise a true question of jurisdiction. The tribunal clearly had the jurisdiction to entertain the respondent's claim that he had experienced discrimination. While the Federal Court has jurisdiction over trademarks, it does not have jurisdiction over the respondent's claim of discrimination. There was no consideration of the jurisdictional line between two or more competing specialized tribunals. There were no exceptional circumstances that took this case out of the normal rule that administrative proceedings ought not to be fragmented by bringing judicial review applications challenging interlocutory orders.

Ackerman v. Ontario Provincial Police Service, [2010] O.J. No. 738, 2010 ONSC 910, 259 O.A.C. 163, 11 Admin. L.R. (5th) 304, 186 A.C.W.S. (3d) 533 (Div. Ct.); C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J. No. 274, 2010 FCA 61, [2011] 2 F.C.R. 332, 400 N.R. 367, 2011EXP-3678, 185 A.C.W.S. (3d) 914; College of Nurses of Ontario v. Trozzi, [2011] O.J. No. 4744, 2011 ONSC 4614, 286 O.A.C. 92, 72 C.H.R.R. D/27 (Div. Ct.); Deemar v. College of Veterinarians of Ontario (2008), 92 O.R. (3d) 97, [2008] O.J. No. 3322, 2008 ONCA 600, 81 Admin. L.R. (4th) 307, 298 D.L.R. (4th) 305, 169 A.C.W.S. (3d) 207; Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, [1993] O.J. No. 61, 99 D.L.R. (4th) 738, 63 O.A.C. 393, 37 A.C.W.S. (3d) 1106, 19 C.H.R.R. D/199, 1993 3430 (Div. Ct.); [page58 ]Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18, [1988] O.J. No. 3114, 53 D.L.R. (4th) 90, 29 O.A.C. 84, 34 Admin. L.R. 87, 89 CLLC Â17,013 at 16090, 10 C.H.R.R. D/5761, 11 A.C.W.S. (3d) 333, 1988 5633 (Div. Ct.); Toronto (City) v. Dream Team, [2012] O.J. No. 3833, 2012 ONSC 3904, 297 O.A.C. 331, 44 Admin. L.R. (5th) 352, 222 A.C.W.S. (3d) 768 (Div. Ct.); Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 295 O.A.C. 164, 40 Admin. L.R. (5th) 307, 355 D.L.R. (4th) 518, 220 A.C.W.S. (3d) 240, consd

Other cases referred to

Cardinal v. Cleveland Indians Baseball Co. Limited Partnership (2016), 134 O.R. (3d) 340, [2016] O.J. No. 6155, 2016 ONSC 6929, 369 C.R.R. (2d) 1, [2017] 1 C.N.L.R. 31, 273 A.C.W.S. (3d) 853 (S.C.J.); Cardinal v. Rogers Communications Inc., [2017] O.H.R.T.D. No. 574, 2017 HRTO 570; Cardinal v. Rogers Communications Inc., [2017] O.H.R.T.D. No. 697, 2017 HRTO 686; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727

Statutes referred to

Constitution Act, 1867, 30 & 31 Vict, c. 3, ss. 91(2), 92(13)

Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 67(1) [as am.]

Human Rights Code, R.S.O. 1990, c. H.19, ss. 43(8), 45.1

Police Services Act, R.S.O. 1990, c. P.15, s. 69(18)

Trade-Marks Act, R.S.C. 1985, c. T-13

APPLICATION for judicial review of an interim decision of the Human Rights Tribunal.

W. Brad Hanna, Adam Chisholm and Peter Giddens, for applicant.

Monique J. Jilesen, Paul-Erik Veel, Laurel Hogg and Margaret Robbins, for respondent Cardinal.

James Schneider, for Human Rights Tribunal of Ontario.

The judgment of the court was delivered by

[1] KITELEY J.: — Major League Baseball brings this application for judicial review to set aside an interim decision of the Human Rights Tribunal of Ontario ("HRTO") dated May 23, 2017 (the "interim decision")[^1] and to dismiss or stay the HRTO proceedings. For the reasons that follow, the application is dismissed on the grounds of prematurity. [page59 ]

Background

[2] On October 14, 2016, Douglas Cardinal, an Anishnaabe elder, commenced an application at the HRTO in which he alleged that the name used by the Cleveland Major League baseball team, the "Cleveland Indians" (the "team name"), and the graphic image used by that team, popularly known as "Chief Wahoo" (the "logo"), when used in baseball games in Ontario, constitute discrimination in the provision of the entertainment service of baseball contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). The respondents to that application are the Cleveland Indians Baseball Company Limited Partnership (the "Cleveland Team"), Rogers Communications Inc. ("Rogers") and Major League Baseball ("MLB"). In his application, Mr. Cardinal asked for the following:

(a) An order enjoining the Respondents, and their agents, employees, officers and directors, from displaying, broadcasting, communicating or otherwise disseminating images, representations, depictions or descriptions using:

(i) The word "Indian" or any form thereof to describe the major league baseball team known as the "Cleveland Indians";

(ii) The graphic image popularly known as the "Chief Wahoo" logo, which depicts a racist caricature of an individual of Indigenous descent.

[3] MLB is a professional sports league consisting of 30-member clubs (each an "MLB club") in the United States and Canada, including the Cleveland team and the Toronto Blue Jays (the "Toronto club"). The Toronto club (owned by Rogers) is the sole MLB club, and the only team the Cleveland club plays against in Canada. The Toronto club plays its home games at the Rogers Centre in Toronto. Rogers either owns or has a direct or indirect ownership interest in the Rogers Centre, which hosts major league baseball games. MLB's corporate headquarters are located in New York City and the Cleveland team conducts its business operations out of offices in Cleveland, Ohio.

[4] The team name and logo are trademarks registered for use in association with services and various goods. MLB is the trademark agent for MLB clubs, and it has certain responsibilities regarding their respective trademark rights. MLB also acts as the licensing agent for the MLB clubs and licenses the MLB clubs' trademarks to third parties for sponsorships and for the manufacture, production, sale, distribution and promotion of various products, including apparel, on a worldwide basis. The Cleveland team displays the team name and/or logo on its uniforms and on the caps worn by players during games. [page60 ]

[5] In anticipation of a game later that afternoon, on October 17, 2016, Mr. Cardinal sought interim and interlocutory injunctions in the Superior Court of Justice to restrain the Cleveland team from displaying the team name and/or logo; to restrain Rogers from using or displaying the team name and logo in its broadcasts and in the Rogers Centre; and to restrain MLB from broadcasting the team name and logo through its television networks in Canada. The injunction application was heard and dismissed by McEwen J.[^2]

[6] The respondents in the HRTO proceeding brought motions challenging the jurisdiction of the HRTO to hear the application.

Interim Decision of the HRTO

[7] The wide scope of the order requested by Mr. Cardinal that would enjoin the respondents from all uses of the Cleveland team name and logo has not been amended. However, during the preliminary hearing, his counsel narrowed the relief sought as the vice-chair noted, at para. 9:[^3]

[I]t was clear from the submissions made by the applicant's counsel at the preliminary hearing that the focus of the Application before this Tribunal is the use of the Cleveland Team Name and/or Logo at baseball games held at the Rogers Centre in Toronto.

[8] At paras. 7 and 8 of the interim decision, the vice-chair confirmed that Mr. Cardinal did not seek to advance any allegations relating to the broadcasting of the Cleveland team name and logo and that claims with respect to broadcasting, communication and/or dissemination of the Cleveland team name and logo by television, radio, Internet streaming, websites and any mobile applications were within the jurisdiction of the Canadian Human Rights Commission (the "CHRC").

[9] When considering the constitutional issues related to federally regulated trademarks, the vice-chair held that

(a) trademarks fall under the federal jurisdiction over trade and commerce set out in s. 91(2) of the Constitution Act, 1867;

(b) the Code falls under the provincial power over property and civil rights in s. 92(13) of the Constitution Act, 1867; [page61 ]

(c) the doctrine of interjurisdictional immunity does not apply;

(d) paramountcy does not apply as there is no operational incompatibility between provincial and federal law as

(i) the Trade-Marks Act provides an owner of a registered trademark with the exclusive right to use that mark, not a positive, unfettered right of use immune from provincial laws of general application;

(ii) any right of use that might exist is not immune from restrictions of both federal and provincial laws of general application;

(iii) as a result, the Code can apply to restrict the use of a federally regulated trademark; and

(iv) Mr. Cardinal is not seeking to restrict all uses of the name and logo trademarks;

(e) the application of the Code in these circumstances therefore does not frustrate the purposes of the Trade-Marks Act as the application is not challenging the criteria used under the Trade-Marks Act.

[10] In response to MLB's submissions relating to international treaties, the vice-chair held that the relief sought by Mr. Cardinal does not violate any of the international treaties to which Canada is a party as

(a) the relief sought would not impede the right to register a trademark in Canada or enjoy the right to its exclusive use; and

(b) the application of the Code does not single out the name and logo for differential treatment.

[11] The vice-chair also held that the application does not seek to deregister the trademarks of the name and logo or to impose an absolute prohibition on their use in all contexts. As a result, Mr. Cardinal was not required to proceed under the Trade-Marks Act, R.S.C. 1985, c. T-13 as MLB argued.

[12] The effect of the interim decision is that the application will proceed to a hearing on a full evidentiary record.

[13] At para. 92 of the interim decision, the vice-chair made the following orders/directions:

(a) Rogers' objection to the applicant's standing to bring the application is denied; [page62 ]

(b) The objections by MLB and Rogers to the Tribunal's subject matter and jurisdiction are denied;

(c) The constitutional objections raised by MLB and Rogers are denied. The subject matter of the application falls under provincial jurisdiction;

(d) A full evidentiary record is required to determine whether the holding of baseball games at the Rogers Centre falls within the social area of services under the Code and, if so, which respondent(s) are responsible for any discrimination in the provision of these services;

(e) A full evidentiary record is also required to determine whether the Tribunal has territorial jurisdiction over the application against MLB and the Cleveland Team; and

(f) Rogers' objection on the issue of abuse of process is denied.

[14] At para. 93, the vice-chair directed the parties to advise within two days of the status of the applicant's CHRC complaint as well as the steps, if any, that the CHRC had taken to deal with the complaint.

[15] In an interim decision[^4] dated June 19, 2017, the vice-chair held that it was not appropriate for the HRTO to defer to the CHRC and she directed each respondent to file a full response (Form 2) within 35 days and the applicant could file a reply to the responses within 14 days thereafter.

Issues in this Judicial Review Application

[16] On June 23, 2017, MLB issued this notice of application in which it sought an order on the basis of certiorari or otherwise, to set aside the interim decision of the HRTO dated May 23, 2017; an order in the nature of mandamus or otherwise, staying the HRTO application; and a stay of the HRTO application until this application is decided.

[17] MLB challenges the orders reflected in para. 92(b) and (c) of the interim decision and, in para. 19 of the factum, summarized the issues to be resolved on this application as follows:

(a) Should the Divisional Court review the HRTO Decision at this juncture?

(b) What is the applicable standard of review?

(c) Is the HRTO's decision incorrect or, alternatively, unreasonable? More specifically, did the HRTO err [page63 ]

(i) By infringing on the exclusive jurisdiction of the Federal Court?

(ii) By taking jurisdiction contrary to the Federal Parliament's jurisdiction over trademark registrations?

(iii) By misinterpreting or misapplying Canada's treaty obligations?

(iv) By misinterpreting the rights afforded to owners of registered trademarks?

[18] In the preliminary hearing at the HRTO and in this court, MLB raised various issues that might require a notice of constitutional question. None were provided in the materials. Neither party raised it as a concern and in view of the decision below, I need not address it.

Standard of Review

[19] As indicated at the outset, I dismiss this application on the basis of prematurity. If it had been necessary to review and analyze the issues summarized in para. 17 above, I would have done so on the standard of review of correctness because the questions of law are outside the specialized expertise of the tribunal and, arguably, are of central importance to the legal system as a whole.[^5]

Prematurity Analysis

[20] Relying on s. 43(8) of the Code,[^6] MLB urges this court to judicially review the interim decision now (rather than exercise its discretion to let the HRTO application run its course) because the decision contains a fatal defect on a question of jurisdiction, finally decides a particular issue, and because MLB has no alternative recourse to challenge the interim decision. [page64 ]

[21] Mr. Cardinal opposes the application and asks that it be dismissed on the merits. Alternatively, he takes the position that the application should be dismissed on the grounds of prematurity given that, absent "exceptional circumstances", courts are, and should be, very reluctant to review interlocutory decisions of administrative tribunals.

[22] I begin by reviewing the decisions to which counsel referred.

[23] In Roosma v. Ford Motor Co. of Canada Ltd.,[^7] a board of inquiry appointed by the Ontario Human Rights Commission heard complaints of discrimination brought by Roosma and Weller, two employees of Ford. The board of inquiry made preliminary rulings that led to a continuation of the inquiry. Ford and the union appealed these preliminary rulings to the Divisional Court pursuant to a section of the Code that provided a right of appeal from a "decision or order" of a board of inquiry.

[24] In deciding that that appeal provision did not apply to interlocutory decisions or orders, at para. 26, the court emphasized the general principle that administrative tribunals exist to achieve "cheapness, expedition, and expertise". Allowing appeals of interlocutory decisions would serve as a "stumbling block" and prevent the "speedy and inexpensive resolution of . . . complaints".

[25] Although the court was considering an appeal, not a judicial review, it nevertheless stated, at para. 31, that, "if it appears at the outset that a proceeding in a tribunal will be fatally flawed, a means exists by way of judicial review to challenge it".

[26] In Ontario College of Art v. Ontario (Human Rights Commission),[^8] Ms. Majumdu filed a complaint with the Human Rights Commission against the Ontario College of Art. The college wrote to the commission, alleging that the human rights officer who inquired into the complaint did not conduct himself impartially. However, notwithstanding the college's representations, the commission decided to request that a board of inquiry be appointed. The college sought judicial review of that decision.

[27] The Divisional Court concluded that the college's application was premature. In particular, the court stated that the board of inquiry had the jurisdiction to determine any of the issues that had been advanced, including the allegation of bias. The court emphasized [at paras. 5 and 6] "the need to avoid a piecemeal approach to judicial review" and that it is preferable to avoid [page65 ]delay and fragmentation by "allow[ing] . . . matters to run their full course before the tribunal and then consider[ing] all legal issues arising from the proceedings at their conclusion" when the court has the benefit of a full record.

[28] In Deemar v. College of Veterinarians of Ontario,[^9] the College of Veterinarians' Complaints Committee referred a complaint against Dr. Deemar to the Discipline Committee for a formal hearing. Dr. Deemar applied for judicial review of pre-hearing rulings to exclude evidence that were made by the Discipline Committee. The Divisional Court quashed the pre-hearing rulings that restricted Dr. Deemar's use of expert evidence and the college appealed.

[29] The Ontario Court of Appeal allowed the appeal, set aside the order of the Divisional Court, and dismissed Dr. Deemar's judicial review application.

[30] The Court of Appeal considered the submission by the college that the Divisional Court erred by failing to dismiss Dr. Deemar's application for judicial review on the grounds of prematurity. At para. 33, the Court of Appeal observed that the Divisional Court has developed a consistent jurisprudence discouraging a piecemeal approach to the judicial review of administrative action to avoid delay and to permit all issues to be considered in the context of a full record. The court also held that early intervention is only justified in exceptional circumstances. At para. 34, the Court of Appeal observed that, while the Divisional Court had not said anything about the issue of prematurity, it was apparent that that court considered that the proceedings were tainted by a fatal jurisdictional defect and that the Discipline Committee had lost jurisdiction by failing to accord Dr. Deemar natural justice. While the Court of Appeal did not agree with that conclusion, the court held that the Divisional Court had had jurisdiction to entertain the application.

[31] In Ackerman v. Ontario Provincial Police Service,[^10] the OPP conducted an investigation into the alleged misconduct of Police Constable Ackerman. The OPP sought the approval of Commissioner Fantino for the service of a notice of hearing pursuant to then s. 69(18) of the Police Services Act, R.S.O. 1990, c. P.15 (the "PSA"). The commissioner approved the request, which resulted in Ackerman being served with a notice of hearing on a charge of discreditable conduct. Ackerman applied to the Divisional Court for judicial review of the commissioner's decision. [page66 ]

[32] Although the PSA does not provide any right of appeal from a decision of the commissioner under s. 69(18), the hearing that follows a notice of hearing can be appealed to the Ontario Civilian Police Commission, and the commission's decision can be further appealed to the Divisional Court pursuant to the PSA.

[33] The Divisional Court concluded that the application was premature because of the interlocutory nature of the decision. As a general principle, the court recognized [at para. 11] that it will not judicially review a tribunal decision that is "interlocutory or interim in nature and does not determine the rights of the parties" although in exceptional circumstances it may consider a judicial review application while administrative proceedings are ongoing. Even in those [at para. 19] "extreme situations, the remedy is discretionary and will be exercised sparingly". The court also noted [at para. 21] that the issue before it was not "jurisdictional" because "the Commissioner was exercising a procedural administrative function in extending the time for service of the notice" and there was "no question that Commissioner Fantino had the authority under the legislation to make the inquiry he did".

[34] In C.B. Powell Ltd. v. Canada (Border Services Agency),[^11] C.B. Powell Ltd. ("Powell") imported bacon bits into Canada and the Canada Border Services Agency (the "CBSA") assessed certain duties. Powell asked the President of the CBSA to conduct a re-determination of the CBSA's assessment, but the president concluded that he did not have jurisdiction to decide the matter. Instead of appealing the president's decision to the Canadian International Trade Tribunal (the "CITT") pursuant to s. 67(1) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), Powell brought a judicial review in the Federal Court requesting a declaration that the president's determination was a "decision" that could be appealed pursuant to s. 67(1). The declaration was granted and the Crown appealed.

[35] In allowing the appeal, the Federal Court of Appeal stated that the administrative process of adjudications and appeals contained in the Customs Act must be followed to completion. Parliament assigned decision-making authority to certain administrative bodies, not to the courts. The court also noted [at para. 42] that "the use of the label 'jurisdiction' to justify judicial interference with ongoing administrative decision-making processes is no longer appropriate". [page67 ]

[36] The court held that, absent any extraordinary circumstances, Powell's recourse against the president's ruling was to pursue an appeal to the CITT under s. 67(1) and it was for the CITT to determine what constituted a "decision" for the purposes of that section and whether it had jurisdiction to consider the appeal. Only after that process had been exhausted could the aggrieved party pursue a judicial review. This was the case notwithstanding the fact that the issue that was being brought before the court was "jurisdictional".

[37] In College of Nurses of Ontario v. Trozzi,[^12] the Registration Committee of the College of Nurses decided to impose conditions on Ms. Trozzi's RPN and RN registration. Trozzi appealed that decision to the Health Professions Appeal and Review Board ("HPARB") and asserted that her right to be free from discrimination under the Code was being violated. While Trozzi was waiting for HPARB's decision, which ultimately dismissed her request for a review and from which she did not appeal, Trozzi filed a complaint with the Ontario Human Rights Commission which was eventually referred by the commission to the Human Rights Tribunal.

[38] The college sought to have Trozzi's complaint dismissed under the new s. 45.1 of the Code on the grounds that HPARB had "appropriately dealt with the substance of the [HRTO] application". The tribunal dismissed the college's request and the college brought an application for judicial review of that interim decision.

[39] The Divisional Court observed that the application required the court to address an important issue of first instance, namely, the extent to which s. 45.1 of the Code gave the HRTO a supervisory or residual jurisdiction over complaints made under the Code when another tribunal had already dealt with the substance of such claims. At para. 21, the Divisional Court held that the matter did fit "within the narrow range of exceptions" to the general rule because a "true issue of jurisdiction" arose on a record that was complete. The court declined to quash the application on the grounds of prematurity and, following an analysis of the issues, the court quashed the decision of the HRTO and dismissed the complaints that were pending before the HRTO.

[40] In Toronto (City) v. Dream Team,[^13] the Ontario Human Rights Tribunal made two interim decisions rejecting the City of Toronto's request for an early dismissal of the Dream Team's [page68 ]application under the Code. The City of Toronto made its request on the basis that the tribunal lacked jurisdiction to grant the remedy sought. The City of Toronto brought an application for judicial review to challenge the tribunal's interim decisions. The Divisional Court dismissed the application on its merits.

[41] In the alternative, the Divisional Court dismissed the application on the grounds of prematurity because there were no exceptional circumstances that justified the judicial review of an interim decision. The tribunal had not yet made a decision about the jurisdictional issue and should have been given an opportunity to do so. Additionally, the court noted that this case was not like Trozzi because Trozzi involved consideration of the jurisdictional line between the tribunal and other decision-making bodies.

[42] In Volochay v. College of Massage Therapists of Ontario,[^14] the Complaints Committee of the College of Massage Therapists of Ontario investigated a complaint that was brought against Volochay but, contrary to the Health Professions Procedural Code (the "HPP Code"), failed to provide him with notice or an opportunity to make written submissions. The Complaints Committee decided to refer the matter to the Executive Committee so that it could conduct a full investigation. In granting Volochay's judicial review of the Complaints Committee's decision, the application judge concluded that the issue before her was a "true question of jurisdiction". The college appealed.

[43] The Ontario Court of Appeal allowed the appeal and held that the application judge erred in concluding that whether the college breached its duty of procedural fairness was a "true question of jurisdiction". In any case, even if a true question of jurisdiction existed, it is not by itself an exceptional circumstance that justifies judicial review prior to completion of the administrative proceedings.

[44] The court also noted that Volochay had the right to request that HPARB review the Complaints Committee's decision, pursuant to s. 29(2) of the HPP Code. He requested a review but then withdrew that request. To the extent that this was an adequate alternative remedy, which the court concluded it was, Volochay should have pursued that option before seeking judicial review unless exceptional circumstances existed. The court stated that [at para. 73] "[t]o be an effective or adequate remedy, the defect alleged . . . must be capable of being raised before the reviewing body, and the reviewing body must be capable of [page69 ]'curing' the defect". Additionally, there was no evidence of hardship, prejudice, costs or delay that could serve as an exceptional circumstance justifying early judicial review.

[45] While not in the context of prematurity, the Supreme Court in Dunsmuir^15 made observations on the issue of jurisdiction [at paras. 59 and 61]:

Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. . . . "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction. . . . [In] United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), . . . the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences . . . . That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires. These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.

Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis[.]

(Emphasis added; citations omitted)

[46] Two themes emerge from those decisions. The first is that a "true jurisdiction question" focuses narrowly on whether or not the tribunal had the authority to make the inquiry. The second is that even if a true jurisdiction question arises, it is not by itself an exceptional circumstance that justifies judicial review prior to completion of administrative proceedings.

[47] In the context of those decisions, I agree that this application is premature for these reasons. First, the applicant does not raise a true issue of jurisdiction. The HRTO clearly has the jurisdiction to entertain Mr. Cardinal's application that he has experienced discrimination. As indicated in Dunsmuir, the HRTO had the authority to make the inquiry. For the purposes of this application, I accept that the Federal Court has jurisdiction over trademarks and over review of decisions made by the CHRT but it does not have jurisdiction over the claim by Mr. Cardinal that he has experienced discrimination pursuant to the Code. There is no consideration of the jurisdictional line between two or more [page70 ]competing specialized tribunals as indicated in Dream Team. None of the issues listed in para. 17, including the constitutional issues, constitute "true questions of jurisdiction" that justify this court exercising its discretion to intervene at this stage.

[48] Second, MLB's essential challenge to jurisdiction is with respect to the remedy. In that respect, I agree with the interim decision, at para. 9, as follows:

While the applicant has framed his remedial request more broadly, if the Tribunal were to find discrimination in this case its remedial jurisdiction would be limited to remedying the actual breach of the Code that was found. In my view, any objections that the respondents have raised to the remedy sought by the applicant are issues to be dealt with at the end of the hearing, if the Tribunal makes a finding of discrimination. Any objections to the remedy sought by the applicant are not jurisdictional issues that must be dealt with at the outset of this hearing.

[49] Third is the crucial factor of "exceptional circumstances". During submissions, I asked counsel for MLB to assume a hypothetical, namely, the following: the application for judicial review is dismissed as premature; following the hearing on the comprehensive evidentiary record, the HRTO makes a finding that baseball is a "service" within the meaning of the Code; the HRTO makes a declaratory order to that effect but declines to order any relief that impacts on the trade-marks of the Cleveland team. In that hypothetical, Mr. Cardinal is not successful in obtaining the remedy claimed and conversely MLB is successful in resisting the remedy claimed.

[50] In response to my question as to the circumstances in that hypothetical that are "exceptional", counsel took the position that trademark lawyers would have lost the opportunity to challenge the decision of the HRTO that it had jurisdiction to order a remedy that engaged the trademark rights of the Cleveland team and that would leave trademark lawyers in the position of having to consult with human rights lawyers in order to provide advice to clients. In other words, MLB would have won the case but lost a legal opportunity to argue the question of the jurisdiction of the HRTO.

[51] That description of "exceptional circumstances" gives rise to these observations. In the course of arriving at a decision as to "exceptional circumstances", this court has to balance MLB's allegation of exceptional circumstances in this judicial review application with the interests of Mr. Cardinal in the HRTO application to seek a remedy pursuant to the Code for perceived discrimination. In that context, the balancing clearly favours Mr. Cardinal in the HRTO application. Furthermore, I do not consider it a "hardship" (in the context of para. 45 in Volochay) [page71 ]for trademark lawyers to have to consult human rights lawyers before advising clients on trademark matters.

[52] That hypothetical demonstrates why courts are cautious about permitting applications such as this because, while the HRTO made the rulings summarized in paras. 9 to 11 above, the HRTO has not made any orders or decisions that affect the Cleveland team name or logo.

[53] As the vice-chair held, the next step is a hearing based on "a full evidentiary record" to address two issues: (1) whether the holding of baseball games at the Rogers Centre falls within the social area of services under the Code and, if so, which respondent(s) are responsible for any discrimination in the provision of these services; and (2) to determine whether the tribunal has territorial jurisdiction over the application against the MLB and the Cleveland team. The vice-chair must find in favour of Mr. Cardinal on both those issues, make a finding of discrimination within the meaning of the Code, and decide on the remedy before the issues in para. 17 arise.

[54] I am not persuaded that this application poses a true question of jurisdiction. And in any event, I am not persuaded that there are exceptional circumstances that take this case out of the normal rule that administrative proceedings ought not to be fragmented by bringing judicial review applications challenging interlocutory orders.

[55] Before concluding, I note that s. 43(8) of the Code, on which MLB relies, is not relevant to this application in that there is no basis to find that the HRTO failed to comply with any practices and procedures required by the rules or the exercise of a discretion under the rules.

[56] At the conclusion of the hearing, counsel confirmed that they have complied with the procedural directions by the HRTO and, subject to the outcome of this application, are ready to proceed with the hearing on a full evidentiary record.

Order to go as Follows

[57] The application for judicial review is dismissed.

[58] The applicant shall pay costs to the respondent in the amount agreed, namely $20,000 (including HST) for fees and $5,000 for disbursements (including HST).

Application dismissed.

[page72 ]

Notes

[^1]: [2017] O.H.R.T.D. No. 574, 2017 HRTO 570.

[^2]: Cardinal v. Cleveland Indians Baseball Co. Limited Partnership (2016), 134 O.R. (3d) 340, [2016] O.J. No. 6155, 2016 ONSC 6929 (S.C.J.).

[^3]: The vice-chair was mindful of this narrow scope as reflected in all aspects of the interim decision, at paras. 43, 44, 49, 52, 53, 57, 58, 59, 62, 66, 67, 68, 78, 81, 86.

[^4]: Cardinal v. Rogers Communications Inc., [2017] O.H.R.T.D. No. 697, 2017 HRTO 686.

[^5]: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 55.

[^6]: Section 43(8) states that "[f]ailure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter".

[^7]: (1988), 66 O.R. (2d) 18, [1988] O.J. No. 3114, 1988 5633 (Div. Ct.).

[^8]: (1993), 11 O.R. (3d) 798, [1993] O.J. No. 61, 1993 3430 (Div. Ct.).

[^9]: (2008), 92 O.R. (3d) 97, [2008] O.J. No. 3322, 2008 ONCA 600.

[^10]: [2010] O.J. No. 738, 2010 ONSC 910 (Div. Ct.).

[^11]: [2010] F.C.J. No. 274, 2010 FCA 61.

[^12]: [2011] O.J. No. 4744, 2011 ONSC 4614 (Div. Ct.).

[^13]: [2012] O.J. No. 3833, 2012 ONSC 3904 (Div. Ct.).

[^14]: (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541.