Lawyers for Major League Baseball argued Wednesday the best way to address a discrimination claim against the Cleveland Indians’ “Chief Wahoo” logo is in Federal Court, not the Ontario Human Rights Tribunal.
“When someone seeks effectively . . . to vary or expunge a registered trademark, they have to do it before the Federal Court,” lawyer Brad Hanna told a panel of three Superior Court Judges.
Douglas Cardinal, an architect and Anishnanaabe elder, has filed a complaint with the tribunal alleging the team’s name and mascot, when used in baseball games at Rogers Centre, amount to discrimination under the Ontario Human Rights Code and should be barred inside the stadium.
Last spring, the Human Rights Tribunal agreed to hear the case over the objections of lawyers representing the MLB, the Cleveland Indians baseball team and Rogers Communications, who wanted it tossed on jurisdictional grounds.
On Wednesday, MLB lawyers were in Divisional Court seeking a judicial review of the tribunal decision.
The lawyers, from the Bay Street firm McMillan LLP, argued the issues raised in the Cardinal case are outside the tribunal’s jurisdiction and “expertise.”
Hanna told the justices no case law exists in Canada where someone has alleged a trademark is discriminatory.
“This is a novelty,” he said.
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Nevertheless, MLB’s position is that the case, because it involves a trademark, should be heard in a Federal Court, which has the power to “expunge or vary, the registration of trademarks,” if one is found to be a “slur on nationality,” Hanna told the court.
The court also has exclusive jurisdiction to issue an injunction prohibiting the use of a trademark found to be “scandalous, or obscene or immoral on the basis they are offensive to the public.”
“But that’s not what Mr. Cardinal is fundamentally after,” Justice Fran Kiteley said to Hanna.
“He’s pursuing discrimination . . . that’s different than being offended by something, or being upset because it’s scandalous. They are qualitatively two different approaches.”
Hanna said he disagreed, and argued the “remedy” Cardinal is seeking is a prohibition on the use of the trademark.
Kiteley said she wanted to rephrase her point.
If the Federal Court finds the logo scandalous and orders it banned, it will not determine “his rights . . . have been violated, he won’t get that from the Federal Court,” Kiteley said.
“I say you get to the same place,” Hanna replied.
Monique Jilesen, a lawyer representing Cardinal, told court the only body that can remedy the infringement of rights — “and this is a rights case” — is the Ontario Human Rights Tribunal.
Jilesen and a team of other lawyers from the firm Lenczner Slaght Royce Smith Griffin LLP are representing Cardinal pro bono.
The judges reserved their decision.
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