Cardinal v. Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929

COURT FILE NO.: CV-16-562275 DATE: 20161130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DOUGLAS J. CARDINAL Applicant

– and –

CLEVELAND INDIANS BASEBALL COMPANY LIMITED PARTNERSHIP, MAJOR LEAGUE BASEBALL, and ROGERS COMMUNICATIONS INC. Respondents

COUNSEL: Monique J. Jilesen, Rebecca Jones, Paul-Erik Veel, Laurel D. Hogg, Michael Swinwood, for the Applicant Jonathan Lisus, Eric Hoaken, Andrew Winton, for the Respondent, Cleveland Indians Baseball Company Limited Partnership Markus Koehnen, Adam Chisholm, for the Respondent, Major League Baseball Kent Thomson, James Doris, Matthew Milne-Smith, Stephen Shamie for the Respondent, Rogers Communications Inc.

HEARD: OCTOBER 17, 2016

MR. JUSTICE T. MCEWEN

REASONS FOR DECISION

INTRODUCTION

[1] The applicant, Douglas J. Cardinal, is an Indigenous person. As a child, Mr. Cardinal attended residential school. He now works as a prominent architect.

[2] Mr. Cardinal has commenced two applications, respectively, before the Canadian Human Rights Commission (the “CHRC”) and the Human Rights Tribunal of Ontario (the “HRTO”) (collectively the “Human Rights Proceedings”) seeking orders enjoining the Cleveland Indians Baseball Company Limited Partnership (the “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 Indians and the “Chief Wahoo” logo (the “Logo”) within Canada.

[3] The basis for the applications before the CHRC and the HRTO is that the use of the Name and Logo:

• constitutes discrimination against Mr. Cardinal on the grounds of race, ancestry, colour, ethnic and national origin in the offering of services, namely the provision of professional sports entertainment in the Rogers Centre and as broadcast to a national audience, contrary to s. 1 of the Ontario Human Rights Code (the “OHRC”) and s. 5 of the Canadian Human Rights Act (the “CHRA”);

• constitutes harassment against Mr. Cardinal in the provision of services, on the grounds of race, ancestry, colour, ethnic and national origins, contrary to s. 14(1)(a) of the CHRA; and

• violates s. 13(1) of the OHRC, 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 OHRC.

[4] Mr. Cardinal also has commenced this application seeking an interim and interlocutory injunction enjoining the same activities.

[5] At the hearing of the application, Mr. Cardinal refined his position and sought the following:

• An interim and interlocutory injunction restraining the Cleveland Team from displaying the Name or the Logo.

• An interim and interlocutory injunction restraining Rogers from using or displaying the Name and the Logo in its broadcast or in the Rogers Centre.

• An interim and interlocutory junction restraining MLB from broadcasting the Name or Logo through its television networks in Canada.

BACKGROUND

[6] This application was brought on an urgent basis. The Notice of Application was issued on Friday, October 14, 2016, and the application proceeded the following Monday. The first game in Toronto of the American League Championship Series (the “ALCS”) between the Toronto Blue Jays and the Cleveland Team was to commence later that evening.

[7] The speed at which the application was brought led to certain evidentiary issues. Some affidavits relied upon unproven polls, newspaper reports, journal articles and third party statements. In other instances, I asked counsel to provide me with information concerning the effects of the injunction if it were granted. This led to counsel stating their beliefs based on discussions with their clients that were not contained in the record.

[8] Fortunately, the filed record was sufficiently developed to allow me to deal with all of the issues raised in the application. As these reasons will demonstrate, the aforementioned documents and statements, while occasionally useful, played little part in determining the disputed issues.

[9] Given the urgent nature of the injunction and the nature of the relief sought, I advised the parties in advance of the hearing that I would render a decision with the reasons to follow. I dismissed the application and I am now providing those reasons.

PRELIMINARY ISSUES

[10] In addition to making submissions involving the interim and interlocutory injunction, the parties raised a number of other discrete issues. I will first deal with these issues and then analyse the specific request for the injunction.

Jurisdiction

[11] The parties do not dispute that this Court has jurisdiction to grant an injunction with respect to the Human Rights Proceedings. Jurisdiction in this regard was expressly affirmed by the Supreme Court of Canada in Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626.

[12] MLB submits, however, that this Court lacks jurisdiction to restrain MLB’s activities since MLB conducts its activities with respect to the Name and the Logo in the United States. It relies upon the Supreme Court of Canada decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. I disagree.

[13] It is noteworthy that in its record, factum and argument, MLB went beyond challenging the jurisdiction of the Court and arguably attorned to this Court’s jurisdiction: Wolfe v. Wyeth, 2011 ONCA 347, 92 C.P.R. (4th) 208, at para. 44. Given the last-minute nature of the application, however, I am not prepared to determine the issue of jurisdiction on this basis. It was also not raised at the application by any party.

[14] MLB submits that, since there is currently patent litigation proceeding in the United States concerning the Name and Logo, this Court should, “let the United States Supreme Court determine what conduct will be acceptable or unacceptable within the United States”.

[15] In this regard, MLB submits that Van Breda did not oust the traditional bases for Court jurisdiction and points to principles of private international law, including comity, as barring this Court from assuming jurisdiction. Notwithstanding MLB’s argument, I am satisfied that this Court has jurisdiction on the basis of the real and substantial connection test set out in Van Breda. In Van Breda, the Supreme Court enumerated four connecting factors which presumptively enable a Court to assume jurisdiction. Two of those factors are present in this case: MLB carries on business in the province and the alleged discriminatory acts would have been committed here. Furthermore, the Cleveland Team’s Name and Logo are the subjects of registered trademarks in both the United States and Canada.

[16] The weakness in MLB’s submission is that the principle of comity, which is a principle of mutual respect and courtesy between nations, is already reflected in the real and substantial connection test. The Supreme Court specifically commented, at para. 84, that principles such as comity may influence the connecting factors. Here, however, given the above facts, the principle of comity does not preclude and rather supports this Court assuming jurisdiction.

[17] In my view, MLB’s submission that I should let the United States Supreme Court determine the issue ignores the reality of the nature of this application. This application primarily concerns whether the use of the Name and depiction of the Logo discriminates in the provision of a service to Mr. Cardinal, who is a Canadian and First Nation citizen. While the patent litigation in the United States may engage the acceptability of the Name and Logo to some extent, I cannot envision how the determination in the United States would or should be determinative of whether the use of the Name and depiction of the Logo discriminate in the provision of a service to an Indigenous person living in Ontario, Canada.[^1]

[18] Based on the foregoing, I am satisfied that this Court has jurisdiction to deal with all aspects of the application concerning MLB.

Mr. Cardinal’s Trip to China

[19] Mr. Cardinal, at the time of the hearing, was not present in Ontario as he had travelled to China. On this basis alone, Rogers submits the application should be dismissed as Rogers does not broadcast in China; therefore, Mr. Cardinal could not view the broadcast, and would not suffer irreparable harm. Rogers also takes issue with the fact that Mr. Cardinal did not disclose in his affidavit that he would in China on the day of the first ALCS game.

[20] In my view, the application should not be dismissed on this basis. There are many ways in which Mr. Cardinal could still access the televised broadcast of the game while in China or at a later date. He deposed that he will watch the ALCS.

[21] While it would have been preferable to have this information disclosed in the affidavit, nothing of significance turns on it and certainly Mr. Cardinal did not seek to suppress information about his whereabouts. It was his own lawyer who disclosed his trip to Rogers’ counsel on the morning of the application.

The Failure to File an Undertaking Concerning Damages

[22] Mr. Cardinal has not provided the usual undertaking concerning damages and his affidavit is silent on this point.

[23] Rogers and the Cleveland Team submit that the failure to file the undertaking is fatal since it is mandatory pursuant to the provisions of Rule 40.03 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194, unless otherwise ordered by the Court.

[24] Rogers also argues that the Notice of Application does not seek relief from this obligation, which is also fatal.

[25] Alternatively, Rogers and the Cleveland Team submit that Mr. Cardinal ought to have offered an undertaking to pay some portion of damages (given the fact that any damages sustained could be far beyond his ability to pay). The failure to do so and file evidence with respect to his ability to pay, they say, is also fatal.

[26] First, I am not prepared to dismiss the application on the basis that Mr. Cardinal failed to seek this relief in the Notice of Application. To dismiss the application on this technical basis would honour form over substance. I have the authority to dispense with this requirement as part of the “further and other relief” sought by Mr. Cardinal. This issue was well-identified by the parties and fully argued.

[27] Second, in the specific and unique circumstances of this case, I am not of the view that the failure to provide the undertaking or provide an explanation should be fatal.

[28] The parties generally agree that there is no meaningful undertaking that Mr. Cardinal could provide to compensate the respondents with respect to the damages that they would sustain if the injunction was granted. While it is exceptional to grant an injunction without an undertaking, I agree with Mr. Cardinal’s submission that greater flexibility ought to be granted in cases such as this one which have broader public interest significance and which concern human rights as opposed to commercial and pecuniary interests. These types of cases are unlike commercial cases where such an undertaking ought to be filed absent extenuating circumstances. This application is similar to that dealt with by Justice D. Brown (as he then was) in Batty v. City of Toronto, 2011 ONSC 6785, 342 D.L.R. (4th) 121.[^2] In Batty, he dispensed with the need to file an undertaking given the Charter-based nature of the relief sought by the applicants. This application invokes quasi-constitutional issues of similarly broad significance.

THE INJUNCTION

The Applicable Legal Test

[29] Mr. Cardinal submits that the applicable test is the “serious issue to be tried” test set out RJR – Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. Pursuant to the decision in RJR – Macdonald, Mr. Cardinal must demonstrate:

• there is a serious issue to be tried;

• the moving party would suffer irreparable harm if the order were not made; and

• the balance of convenience favours granting the order.

[30] The Cleveland Team submits that the appropriate test is the “clearest of cases” test from Canadian Liberty Net, and Canada (Human Rights Commission) v. Winnicki, 2005 FC 1493, [2006] 3 F.C.R. 446. Alternatively, the Cleveland Team submits that the appropriate test is the strong prima facie test from RJR – Macdonald. Rogers agrees that the strong prima facie test is the appropriate test.

[31] I accept Mr. Cardinal’s submission that the “serious issue to be tried”, set out in RJR – Macdonald, is the applicable test.

[32] The “clearest of cases” test established by the Supreme Court in Canadian Liberty Net and applied by the federal Court in Winnicki does not apply here. A review of those cases demonstrates that the “clearest of cases” test is intended for non-commercial speech. The speech in this case is commercial.

[33] In Canadian Liberty Net, Justice Bastarache, writing for the majority, modified the RJR – Macdonald test for circumstances in which the moving party sought to enjoin non-commercial hate speech. In these circumstances, the test for an injunction asks whether the case before it is one of the “rarest and clearest of cases” which would justify an interlocutory injunction restricting “pure” speech as opposed to asking whether there is a serious issue to be tried, or whether there is a strong prima facie case. The test for an injunction to restrict pure speech jettisons the second and third stages of the RJR – Macdonald test in favour of a high threshold at the first stage. Justice Bastarache’s primary concern appeared to be that the first stage of the RJR – Macdonald test did not adequately protect freedom of expression in the context of non-commercial hate speech. He explained this distinction between commercial and non-commercial speech at para. 47:

In my view, the Cyanamid test, even with these slight modifications, is inappropriate to the circumstances presented here. The main reason for this is that Cyanamid, as well as the two other cases mentioned above, involved the commercial context in which the criteria of “balance of convenience” and “irreparable harm” had some measureable meaning and which varied from case to case. Moreover, where expression is unmixed with some other commercial purpose or activity, it is virtually impossible to use the second and third criteria without grievously undermining the right to freedom of expression contained in 2(b) of the Charter. The reason for this is that the speaker usually has no tangible or measureable interest other than the expression itself, whereas the party seeking the injunction will almost always have such an interest. This test developed in the commercial context stacks the cards against the non-commercial speaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself. (Emphasis added).

[34] Since the irreparable harm stage and balance of convenience stages favour the moving party in these cases of alleged hate-speech, the low threshold of a serious issue to be tried fails to adequately protect freedom of speech in the context of non-commercial speech.

[35] In the immediate case, the respondents have a tangible and measureable interest in the use of Name and Logo by virtue of the negative monetary effects an injunction would have on the respondents. Because this case involves commercial speech, the applicable tests of irreparable harm and balance of convenience provide significant hurdles for Mr. Cardinal to surmount and they adequately protect freedom of speech. A higher threshold at the first stage is not necessary.

[36] Similarly, I do not accept the submission that the strong prima facie test applies in this case. In RJR – Macdonald, the Supreme Court outlined three exceptional cases in which the higher threshold of a strong prima facie case should be used instead of the “serious issue to be tried” test. The case law that developed thereafter has established additional exceptions. None of those exceptions apply to this case.

[37] I do not accept Rogers’ submission that if the injunction were granted it would amount to a final determination of the rights of the parties. Rogers claims that the injunction would constitute a final resolution of the underlying dispute because Rogers would be enjoined from broadcasting games involving the Cleveland Team during the entirety of the playoffs. I disagree.

[38] Rogers would not be prevented from broadcasting the game but rather would have to do so in a severely trimmed down fashion and could not use the Name or Logo, audibly or visually. The Cleveland Team would also have to wear uniforms that did not display the Name or Logo. Regardless of the practical consequences of the injunction, the final resolution of the issues would be determined in the Human Rights Proceedings.

[39] Rogers further submits that the relief sought by Mr. Cardinal constitutes a mandatory interlocutory injunction. Again, I disagree. In my view, Mr. Cardinal is seeking a prohibitive injunction. Rogers’ submission ignores “inherent frailties” in the distinction between a mandatory injunction and a prohibitive injunction: Bark & Fitz Inc. v. 2139138, 2010 ONSC 1793, at para. 7.

[40] Often, a mandatory injunction may be rephrased in negative terms, and a prohibitive injunction may be phrased in positive terms. This is because, as Sharpe J. A. notes in Injunctions and Specific Performance, “the burden imposed by a prohibitive order is often substantial and a negative order often may amount in practical terms to an order requiring a certain course of action”.[^3]

[41] That is precisely the scenario in this case. The relief requested by Mr. Cardinal, while framed in negative terms, could have had the practical effect of requiring the respondents to undertake positive acts, including: (1) altering broadcasts, and (2) changing uniforms.

[42] In my view, however, even if the practical effect of the injunction would require the respondents to undertake positive actions, those actions do not rise to the level of a mandatory injunction and do not turn this prohibitive injunction into a mandatory injunction. The import of the requested relief is fundamentally prohibitive: it seeks not to change the Name or Logo, but to prevent, on an interim basis, their use and depiction in broadcasts during the ALCS.

[43] Last, Rogers submits that an additional exception exists for injunctions which would be extraordinarily intrusive. In this regard, Rogers relies on Cytrynbaum v. Look Communications Inc., 2013 ONCA 455, 116 O.R. (3d) 241. In Cytrynbaum, the Court of Appeal commented, at para. 54,

The Court typically looks to see if the case is “arguable”, “raises a serious issue to be tried” or is “not frivolous and vexatious”. If a preliminary or interlocutory order will have drastic consequences (including, for example, an interlocutory mandatory injunction or a Mareva or Anton Piller order), the bar is raised to the level of “strong prima facie case”.

[44] In my view, the Ontario Court of Appeal was not creating a new exception for “extraordinarily intrusive” injunctions. Rather, the Court was using “drastic consequences” to explain the existing exceptions, which include mandatory injunctions, while leaving open the question of whether other exceptions might exist.

[45] In any event, Mr. Cardinal is not seeking to block the broadcast, but rather to alter its presentation. The consequences, while significant, do not reach the level of being so drastic that the bar is raised to a strong prima facie case. In my view, the “serious issue to be tried” test, with its checks and balances, is the appropriate test given the nature of the relief sought.

Application of the Test

[46] For the reasons set out below, I have determined that, while there are serious questions to be tried, Mr. Cardinal failed to establish irreparable harm or that the balance of convenience favours him.

Serious Questions to be Tried

[47] Mr. Cardinal submits that the respondents collectively provide a sports entertainment service to the Canadian public. He submits that the use of the Name and Logo in the provision of that service has significance as follows:

• A broadcast is a service within the meanings of s. 1 of the OHRC and s. 5 of the CHRA and similarly the Names and Logo are contrary to those provisions.

• The use of the Name and Logo are contrary to s. 13(1) of the OHRC which prohibits the publication of any “notice, sign, symbol, emblem or other similar representation” that indicates an intention to infringe a right under Part I of the OHRC or is intended to incite the infringement of a right under Part I. In this regard, he argues that a reasonably foreseeable consequence the use of the Name and Logo is the incitement of additional racism, contrary to Part I.

• The use of the Name and Logo harass Indigenous persons in the provision of a service contrary to s. 14(1) of the CHRA.

[48] In my view, this raises three serious issues to be tried. First, do the respondents provide a service within the meaning of the legislation? Second, do the Name or Logo discriminate against Mr. Cardinal, or harass Mr. Cardinal, in the provision of a service? Third, how and to what extent is the respondents’ right to freedom of expression relevant? I will address each in turn.

Do the Respondents Provide a Service?

[49] Mr. Cardinal submits that the definition of “service” ought to be given a broad and liberal interpretation with respect to the issue of the provision of a service. I am of the view that this is a serious issue to be tried.

[50] In part, Mr. Cardinal relies upon the definition set out in Ontario (Attorney General) v. Ontario Human Rights Commission (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455, at para. 39, where the Divisional Court held that a service is “something which is of a benefit which is provided by one person to another or to the public”. The Cleveland Team argues that it does not provide a service to Mr. Cardinal as he has not purchased any tickets or merchandise from the team. The Cleveland Team also cannot sell tickets to the ALCS games played in Toronto nor can it sell merchandise at those games. Rogers and MLB took no position with respect to the issue of service.

[51] While the case law offers no clear answer as to whether the respondents provide a service, it is well established that a consumer relationship is not necessary to meet the definition of a service. For instance, in Huang v. 1233065 Ontario Inc. (c.o.b. Ottawa Chinese Senior Assn.), 2006 HRTO 1, a seniors’ association was found to offer a service.

[52] The issue of whether a service is offered is a question of mixed fact and law: Incorporated Synod of the Diocese of Toronto v. Ontario (Human Rights Commission), 2008 CanLII 19784 (ON SCDC), 236 O.A.C. 110 (Div. Ct.). A factual record establishing the nature of the relationship between the respondents and Mr. Cardinal is required to properly analyze this issue. As I indicated earlier in my reasons, the factual record in this case was not entirely satisfactory. Given the broad definition of a service, however, I am of the view that there is a serious issue to be tried before the HRTO and CHRT as to whether a service is provided, notwithstanding the possible absence of a consumer relationship between Mr. Cardinal and some or all of the respondents.

Do the Name and Logo Discriminate or Harass in the Provision of a Service?

[53] I am also satisfied that there is a serious issue to be tried as to whether the Name and/or Logo offend the provisions of the OHRC and the CHRA.

[54] The proper perspective to be applied is “subjective-objective”, that being the perspective of a reasonable person in Mr. Cardinal’s position: see Law v. Canada (Minister of Employment & Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 60; Quebec v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 430; Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769.

[55] While no Canadian court has gone so far as to find that the term “Indian” or a similar logo constitutes discrimination, harassment or a violation of the OHRC or CHRA there is some support in the case law for the proposition that a reasonable person in Mr. Cardinal’s position would view the Name and/or Logo as perpetuating prejudice or stereotypes against Indigenous persons and suffer an adverse impact. In Canada (Human Rights Commission) v. Canada (Attorney General), 2016 FCA 200, 8 Admin L.R. (6th) 1, Gleason J.A. commented, at para. 9,

Since Confederation, the federal government has followed a policy of defining who is an “Indian” for the purpose of regulating its relationship with indigenous peoples. For some time, such status has been – and continues to be – governed by the Indian Act, which sets out the criteria for determining whether an individual is an “Indian” under the Act. (I refer to such a determination in the balance of the Reasons as a grant of “Indian status” and am sensitive to the fact that many indigenous people find this terminology offensive. It is, however, the terminology that is used in the legislation and thus is relevant to the issues in this appeal.). (Emphasis added)

[56] Similarly, in R. v. Yang (1996), 1996 CanLII 8230 (ON SC), 31 O.R. (3d) 66 (Div. Ct.), Justice La Forme (as he then was) commented on the special investigation unit’s use of the term “Indian Stock”,

Before going further, I wish to comment upon any practice of law or those legislative enforcement agencies who cleverly and cavalierly describe matters within their jurisdiction or concern in pejorative and insensitive terms such as that of “Indian Stock”. Whether intended or not, it is an indication and illustration of disrespect for a segment of our society and smacks of condescension and contains, at least in my mind, racial slurs and demeaning overtones. It is a practice which all segments of our society, regardless of role or responsibility, should strive to neither practice nor condone.

[57] The respondents, with the exception of MLB, essentially concede that these issues deserve to be discussed and debated in our society. The Cleveland Team has gone so far as to conduct polling with respect to the issue, broadened the use of its other logos and facilitated protests at its home stadium. Based on the existing case law, and the evolving societal discussion, the issue as to whether the Name and/or Logo run contrary to the provisions of the OHRC and the CHRA is a serious issue to be tried.

Freedom of Expression

[58] The third serious issue to be tried is the relevance of freedom of expression.

[59] First, freedom of expression is relevant with respect to the issue of whether the respondents provide a service. Where there is ambiguity about whether ‘services’ include the interactions in question, it must be resolved in favour of the protection of rights under the Charter: Tesseris v. Greek Orthodox Church of Canada, 2011 HRTO 775, at para. 6. While Mr. Cardinal would obviously prefer “services” to be interpreted in accordance with the Charter’s s. 15 equality guarantee, the s. 2(b), right to freedom of expression must also be considered in determining whether the respondents offer a service.

[60] In Dallaire v. Les Chevaliers de Colomb – Conseil 6542, 2011 HRTO 639, for instance, the HRTO found an inscription on a monument was not a service, in part, on the basis that to find otherwise would infringe the respondent’s freedom of expression and religion: see also Barth v. Ottawa (City), 2016 HRTO 740, at para. 15; Marceau v. Brock University, 2013 HRTO 569, at paras. 13-20.

[61] Similarly, the issue of freedom of expression weaves its way through many of the issues that will be raised in the Human Rights Proceedings. Freedom of expression is guaranteed under the Charter and has been held to protect the abilities of individuals to express their opinions, however unpopular, distasteful or even repugnant: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 1 & 50, Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at para. 41, and Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892, at para. 50.

[62] In this regard, freedom of expression will obviously have to be dealt with in the context of the OHRC and CHRA. For example, freedom of expression may be dispositive of the incitement of discrimination issue referred to in s. 13(1) of the OHRC since section 13(2) expressly states that s. 13(1) “shall not interfere with freedom of expression or opinion”.

[63] Finally, MLB argues the Whatcott decision protects all speech that does not rise to the level of hate speech. I disagree.

[64] As the British Columbia Supreme Court concluded in Pardy v. Earle, 2013 BCSC 1079, 284 C.R.R. (2d) 250, at paras. 11 & 193, the question of whether legislation that prohibits discriminatory speech, in the provision of a service, unjustifiably infringes freedom of expression is distinct from the question of whether the prohibition of hate speech is constitutionally valid.

[65] I now turn to address the remaining issues of irreparable harm and balance of convenience.

Irreparable Harm

[66] Mr. Cardinal asserts that he will suffer irreparable harm. He argues that he cannot be compensated in damages for the subjective experience of discrimination and harassment that he faces as a result of the Name and Logo.

[67] Mr. Cardinal relies upon the decisions of Justice C. Brown in Wahgoshig First Nation v. Ontario, 2011 ONSC 7708, 108 O.R. (3d) 647, and Justice G. P. Smith in Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, (2006) 2006 CanLII 26171 (ON SC), 272 D.L.R. (4th) 727. Generally, both of those cases support the notion that irreparable harm can be caused to Indigenous persons who may lose land as a result of commercial activities. The loss of land is important from a cultural and spiritual perspective and no award of damages could compensate for that loss. Here, Mr. Cardinal argues by analogy that the unique position of Indigenous persons must be considered and no damages can compensate him for the harm he would sustain from being repeatedly subjected to the Name and Logo.

[68] I do not accept that Mr. Cardinal has established that he will sustain irreparable harm in the context of an interlocutory injunction. The precise issue is whether the harm suffered by Mr. Cardinal, pending the determination of the serious issues to be tried, is without remedy and hence irreparable. Both OHRC and the CHRC provide damages as a remedy with respect to the harm Mr. Cardinal claims he has incurred due to discrimination. In my view, this distinguishes this case from Wahgoshig and Platinex Inc. which dealt with the immediate spectre of the loss of property to which the Indigenous applicants had cultural and spiritual relationships. Also, the situation here is a different one. Mr. Cardinal deposes he cannot experience the ALCS series without experiencing an affront to his dignity. I accept the truth of this statement. This has, however, been on-going for years, and does not constitute evidence of irreparable harm during the time frame between the hearing of the application and the OHRC and CHRA hearings, so as to invoke this court’s extraordinary equitable jurisdiction.

[69] The issue of delay, raised by the respondents, is also germane to this analysis.[^4] The application was commenced at the very last minute and argued mere hours before the commencement of the first game of the ALCS. Before Mr. Cardinal’s application, the Cleveland Team played approximately 200 games in Toronto since the Toronto Blue Jays joined the league in 1977, which includes seven regular season games played in 2016.

[70] In my view, there is no reason why the application cannot have been brought long ago on a non-urgent basis. Mr. Cardinal has offered no explanation for the delay in his affidavit and the absence of any explanation supports my view that there is no evidence of irreparable harm during the time frame between the hearing of the application and the OHRC and CHRA hearings. At the hearing, Mr. Cardinal argued that the urgency was dictated by the fact that the Cleveland Team only qualified for the ALCS eight days prior to the first game of the series being played. In my view, given the above, this is not a reasonable explanation and I do not understand how the team’s standing in the league makes a difference to the alleged injuries caused by its Name and Logo.

[71] Nor does the argument that this series would be broadcast to a broader audience than previous games explain the delay. Only irreparable harm to Mr. Cardinal personally is relevant at the second stage of the RJR – Macdonald test. Third party interests are considered at the balance of convenience stage. The harm complained of, by Mr. Cardinal, remains the same.

[72] The application seeks to change the status quo, which has been in place for many years. The last minute nature of the application, if granted, would materially prejudice the respondents. The Cleveland Team’s uniforms, the broadcast and the signage at the Rogers Centre would all have had to be significantly changed three hours or less prior to game time. In some respects, this was not possible and in others it would create upheaval.

[73] I further agree with the Cleveland Team that this case is similar to that of Hearing Clinic (Niagara Falls) Inc. v. the Ellesmere Hearing Centre Ltd. [2008] O.J. No. 5271 (S.C.) in which the court found that the applicant had failed to demonstrate irreparable harm in part because of its delay in bringing the injunction application:

Finally, it must also be noted that there has been considerable delay in bringing this motion forward. The plaintiff was aware of the difficulties concerning competing overtures to his alleged client base as early as the spring of 2007, yet did not bring this motion until October 2008. Although it is true that certain pieces of evidence did not surface until recently, that evidence did not suddenly transform the plaintiff’s claim to one of urgency justifying interlocutory relief. Delay in injunction cases usually negates or undermines allegations of irreparable harm. As stated in Justice Sharpe’s text, Injunction and Specific Performance, at para. 1.990:

The very fact of delay by the plaintiff, quite apart from any question of prejudice to the defendant, may often serve as evidence that the risk is not significant enough to warrant interlocutory relief. [Emphasis added]

[74] In all of these circumstances, Mr. Cardinal has failed to demonstrate that he would suffer irreparable harm if the injunction was not granted.

Balance of Convenience

[75] Finally, the balance of convenience favours the respondents.

[76] Once again, the issue of delay must be considered. As noted, the very late nature of this application, if granted, will cause material prejudice to the respondents. I do not accept Mr. Cardinal’s submission that the injunction would only result in insignificant changes concerning the uniforms and broadcast. The record before me discloses that the effects would be profoundly negative.

[77] These last-minute changes include:

• significant alternations to the signage at the Rogers Centre;

• scrapping pre-recorded graphics on the centre field video board;

• forcing the Cleveland Team to endure a considerable distraction at an important time in the franchise’s history;

• causing a competitive disadvantage to Rogers as against competitors not subject to the injunction; and

• implementing limitations on the pending broadcast.

[78] Further, the damage would be irreparable to the respondents as there is no undertaking concerning damages or likely any ability to pay in any event.

[79] I am sensitive to the argument that Mr. Cardinal and other Indigenous persons, who find the Name and Logo offensive, may feel harmed by the broadcast of the Name and Logo to a record number of viewers during the ALCS. However, I am of the view that the remedies sought would only have very limited value since they would not bind other media broadcasting the Name or Logo in Canada, nor would it prevent fans, who would undoubtedly be part of the broadcast, from wearing team apparel displaying the Name and Logo.

[80] The totality of these factors significantly tips the balance of convenience in favour of the respondents, particularly where Mr. Cardinal has the ability to pursue his application for discrimination, which could include a claim for damages, in the Human Rights Proceedings.

DISPOSITION

[81] For the reasons above, I dismissed the application. MLB and Rogers have indicated that they are not pursuing costs. If the Cleveland Team is pursuing its costs I can be spoken to by the parties.

Mr. Justice T. McEwen

Released: November 30, 2016

[^1]: MLB also argued that, if Mr. Cardinal wanted to challenge the Canadian trademarks, he should do so pursuant to the provisions of the Trademark Act, R.S.C. 1985, c.T-13. I see no reason why this restriction ought to be imposed and MLB provided no legal authority to support its position.

[^2]: The Batty case involved the 2011 international protest in which protesters had occupied a municipal park in Toronto for several weeks.

[^3]: loose-leaf (2015-Rel. 24), (Toronto: Thomson Reuters Canada Ltd., 1992)

[^4]: Indeed, delay alone can disentitle an applicant from an injunction. As Sharpe J. A. explains in Injunctions and Specific Performance, at para. 1820-1.830 “A plaintiff, once entitled to an injunction or specific performance may lose that right on account of delay in asserting the claim…Consideration of delay is an aspect of the more general principle which takes into account the injustice of awarding relief against a party who will be prejudiced on account of a change of position related to acts or omissions of the party seeking relief.” Given the public interest nature of this application and my conclusion that there are serious issues to be tried, however, I would not dismiss the application on the basis of delay alone. Instead, I prefer to deal with the issue of delay within the irreparable harm and balance of convenience analyses.