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October 18, 2016

Believe it or not, no one is trying to punish the Cleveland baseball team

Behind Douglas Cardinal’s failed injunction against the Cleveland baseball team, there is a human rights complaint. Two, actually. And those complaints will proceed in very different environments than what took place in Ontario Superior Court on October 17. As was made clear yesterday, the complaints allege that the name of the Cleveland franchise and their Chief Wahoo cartoon logo are discriminatory.

While it may not always seem this way, human rights regimes in Canada are intended to be ameliorative and remedial, not punitive. This principle prioritizes outcomes over blaming and finger-pointing.

It may seem like legal hair-splitting, but as a practical matter, this principle can really shape cases – sometimes for the better, sometimes for the worse.

For defendants like the Cleveland baseball team, the remedial principle removes a possible defence: lack of intent to discriminate. The Tribunal has been really clear that the respondent’s intent isn’t relevant, and that’s perfectly in keeping with the legal system more broadly. In order to punish a person, courts at least theoretically require some proof of moral culpability. However, when the law is merely trying to correct some harm — which is the case in many civil suits — intent will usually play only a secondary role, if at all.

On the other side of the coin, for applicants like Mr. Cardinal, the challenge will often be to prove a harm. And the key word is “prove”: the onus is on the applicant. Here, there is no doubt that racism toward Indigenous people is a major problem in both Canada and the U.S., and that it results in real and measurable harms. The more difficult part of the case will be to connect Cleveland’s name and logo to the downstream harms.

The remedial principle has other practical consequences for this case and others. Notably, compared to many American suits, the amount of money awarded by Canadian tribunals is usually very modest. Human rights awards are not intended to be punitive, and rarely does the Tribunal award more than five figures to an applicant.

Instead — and this is likely to strike fear into the heart of Cleveland’s front office — the Tribunal is more free than a Court to make specific orders about conduct going forward. Such orders could involve mandatory training, posting information publicly, and, yes, forbidding the logo to be used on the field here in Toronto.

Bottom line: the decision to proceed in Canada before human rights tribunals is inevitably going to shape how the case is litigated. Whether or not you think that Cleveland ought to be punished, it’s simply not the focus of the next stage in the litigation.


Millard & Company specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.

Photo by Erik Drost (Flickr) used under cc licence

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