Borderland Pride v. Corporation of the Township of Emo, 2024 HRTO 1651 (CanLII)

[1]         This Application alleged discrimination in services based on sexual orientation, gender identity, gender expression, creed and family status, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19 (“the Code”). It arose from municipal council’s refusal of Borderland Pride’s 2020 requests for (i) a resolution or proclamation declaring the month of June as “Pride Month” and (ii) display of an LGBTQ2 rainbow flag for a week in the month of June.

[2]         In due course, the Tribunal scheduled a hearing of the merits of the Application. The hearing took place by video conference and all parties participated with their legal counsel.

[3]         For the reasons that follow, I find on a balance of probabilities that the organizational respondent and individual respondent Mayor Harold McQuaker discriminated against Borderland Pride in refusing its proclamation request. I also find, as explained more fully below, that Mayor McQuaker is not entitled to the protection of section 448(1) of the Municipal Act, 2001.

[4]         At the hearing, the parties agreed that the proper legal name of the organizational respondent was The Corporation of the Township of Emo. The style of cause shall be amended accordingly.

[5]         At the beginning of the hearing, I also heard submissions from the parties and rendered a decision with reasons to follow on whether Borderland Pride, a corporation, had standing to bring an Application under section 34(1) of the Code. These are those reasons.

[6]         Section 34 of the Code provides:

[7]         I previously considered whether a corporation had standing to bring an application under section 34(1) of the Code in Pride Hamilton v. Hamilton Police Services Board, 2022 HRTO 1427 (“Pride Hamilton”). Based on the fact that the definition of “person” in the Code includes a corporation and applying the Divisional Court’s decision in Brockie v. Brillinger (No. 2), 2002 CanLII 63866 (Ont. Div. Ct.) (“Brockie”), I found in that case that a corporation had standing to commence an application under section 34(1) of the Code.

[8]         In this case, the organizational respondent submitted that Pride Hamilton was wrongly decided and urged me to find Borderland Pride had no standing to commence the within Application.

[9]         The organizational respondent noted that section 34(5) was added to the Code after the Brockie decision and asserted that that indicated an intention on the part of the Legislature to limit a corporation to commencing an application under section 34(5) on behalf of “another person” and not in its own right. The organizational respondent also submitted that the use of the words “a person” in section 34(1) versus the words “[a] person or organization” in section 34(5) supported its interpretation.

[10]      While I understand the organizational respondent’s argument, I note that in determining who may bring an application, I am bound by the definition of “person” in the Code and that that definition includes a corporation. I further note that the Legislature did not exclude corporations from the definition of “person” after Brockie, although they had the opportunity to do so. Finally, I was not referred to any cases that disturbed the holding of the Divisional Court in Brockie and as such I find I am bound by and furthermore agree with the Divisional Court’s decision.

[11]      For the reasons above, I reject the respondents’ submissions on this issue and find Borderland Pride does have standing to bring the Application under section 34(1).

[12]      The parties also made submissions on whether the Tribunal had jurisdiction to consider the Application as brought by Mr. Judson, Ms. Shoemaker and Northern Ontario Pride Network (“NOPN”), given that a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents against those applicants. The Tribunal does not have jurisdiction over general allegations of unfairness unless the unfairness is connected, in whole or in part, to one of the grounds specifically set out in Part I of the Code.

[13]      It was not disputed at the hearing that the 2020 proclamation and flag requests were made by Borderland Pride and not by the other three applicants, and I so find.

[14]      It was also not disputed that at the time of the requests, Borderland Pride was a corporation incorporated under Canada’s Not-for-Profit Corporations Act. As such, it had a separate legal personality from that of its members, officers or directors and from other organizations to which it belonged.

[15]      With respect to the Application as filed by NOPN, the Application described the work of NOPN and stated that Borderland Pride was a member of NOPN. It did not, however, allege that NOPN had any interactions at all with the respondents. Although NOPN was given an opportunity at the hearing to explain its involvement in the events giving rise to the Application, it provided no further details.

[16]      Mr. Judson’s evidence at the hearing was, and I accept, that he was not a resident of the Township at the time of Borderland Pride’s 2020 requests. Ms. Shoemaker’s evidence was that she was a resident of the Township at the time in question, but, as noted above, did not personally make the flag and proclamation requests at issue in the Application.

[17]      In these circumstances, having found that the requests were made solely by Borderland Pride, I find that no service relationship existed between the other three applicants and the respondents in relation to those requests. The Tribunal therefore has no jurisdiction to consider the Application as filed by the other three applicants. The Application as filed by NOPN and Mr. Judson and Ms. Shoemaker in their personal capacities is therefore dismissed.

[18]      Prior to the commencement of legal arguments, I was advised by the respondents that they had just learned that all, or substantially all, of the documents filed with the Tribunal for use at the hearing had been posted to Borderland Pride’s website. This included all of the witness statements, including witness statements that I had not accepted as evidence.

[19]      The respondents submitted that the posting of these documents violated Rule 3.3 of the Tribunal’s Rules of Procedure (the “Rules”), which states:

[20]      In Rosario v. Thunder Bay Police Services Board, 2015 HRTO 36, the Tribunal held at paragraph 6:

[21]      The applicants admitted that Mr. Judson had posted the documents to Borderland Pride’s website, but submitted that he had done so without his counsel’s knowledge and under the mistaken belief that once filed with the Tribunal, the documents were public. They submitted that Mr. Judson believed the deemed undertaking, which governs disclosure and use of documents filed in a civil action, applied without modification to Tribunal proceedings.

[22]      I note that the Tribunal heard evidence that Mr. Judson is an experienced lawyer and litigator. He was also represented by experienced counsel before the Tribunal. As such, he was a sophisticated party with legal knowledge and experience. He could have, and should have, reviewed the Tribunal’s Rules regarding confidentiality or consulted with his counsel prior to publicly posting all or substantially all of the parties’ documents on the internet. I am disappointed and surprised that he failed to do so.

[23]      However, I was presented with no evidence that Mr. Judson intentionally or wilfully disregarded the Tribunal’s Rules, and in these circumstances, I accept that he simply erred in assuming, without reading them, that the Tribunal’s Rules were the same as the Court’s on this matter.

[24]      I also note that Mr. Judson was asked to remove the documents from the website pending my decision on this issue, and he did so promptly.

[25]      For the reasons above, I find that the applicants breached Rule 3.3. However, I decline to dismiss the Application as requested by the respondents on the basis that such an order would be disproportionate in these circumstances.

[26]      As I advised during the hearing, if any third party wishes to access a document that is part of the adjudicative record in this proceeding, they may file a request for same with the Tribunal.

[27]      At the hearing, the Tribunal received documentary evidence and heard testimony from seven witnesses, including Mr. Judson, Ms. Shoemaker, the three individual respondents and the current Chief Administrative Officer of the organizational respondent, Crystal Gray.

[28]      In addition, Dr. Emily Saewyc was qualified as an expert on the LGBTQ2 community and the impact of discrimination on that community. Dr. Saewyc testified on behalf of the applicants.

[29]      In assessing the credibility of witnesses, I applied the traditional test set out in Faryna v. Chorney, 1951 CanLII 252 (BC CA), namely, whether the alleged facts were in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

[30]      I advised the parties at the outset of the hearing that in making my decision, I would consider only the documents that were specifically referred to by their witnesses during their testimony. Of that evidence and the testimony given, I refer in this decision only to the evidence relevant to the issues that require determination in the Application.

[31]      The material facts giving rise to this Application were largely undisputed.

[32]      The respondent Township is a small municipality with a population of approximately 1,330. The Township’s municipal council is comprised of a mayor and four councillors. While the particular circumstances of the individual respondents were not discussed in detail, the unchallenged testimony of Ms. Gray was that the members of the 2018 to 2022 council, including the mayor, worked full-time occupations in addition to serving on municipal council.

[33]      The applicant Borderland Pride is a corporation incorporated under the Canada Not-for-profit Corporations Act. Its Articles of Incorporation (“Articles”) state:

[34]      It was not disputed that Borderland Pride’s purpose and its activities are focussed on supporting and promoting the LGBTQ2 community in a geographical region that includes the Township. I therefore find that Borderland Pride is identified by the sexual orientation, gender identity and gender expression of the sexual minorities it represents and supports. As such, I find it possesses the enumerated grounds alleged within the meaning of Brockie.

[35]      The unchallenged evidence of Dr. Saewyc was that events and celebrations that recognize LGBTQ2 people in communities are usually called Pride celebrations. They include such activities as government declarations of a Pride week or Pride month, Pride festivals and Pride parades. She noted that these Pride celebrations have occurred regularly in cities in a large number of countries throughout the world.

[36]      It was not disputed that in 2020, Borderland Pride made the following requests of the Township:

[37]      All parties agreed that Borderland Pride’s 2020 proclamation and flag requests were similar to requests it had made in the past. As with prior requests, the 2020 proclamation request was submitted with a draft proclamation. The draft proclamation included eight recitals which I will refer to as the preamble. All parties agreed that in 2018 the Township issued Borderland Pride’s draft proclamation without amendment, but that in 2019, the Township unanimously resolved to issue an amended proclamation that omitted the preamble.

[38]      It was agreed by the parties that issuing proclamations was a service the Township had offered for several years. Mayor McQuaker testified on cross-examination that he was not aware of any request for a declaration or flag display that had been turned down by council. Ms. Gray also agreed on cross-examination that there was nothing in the record before the Tribunal to suggest any proclamation request had ever been refused by council prior to the 2020 Borderland Pride request. I note, however, that the record indicated the Township did not receive many requests for declarations or proclamations or requests for display of a flag. In fact, it received only four such requests between April 2019 and April 2020, including Borderland Pride’s 2019 and 2020 requests.

[39]      Mr. Boven testified that he had raised the need for a flags and proclamations policy following Borderland Pride’s 2019 requests and the issuance of the amended proclamation, with the intention of having the policy in place prior to Borderland Pride’s 2020 requests. While the respondents agreed the flags and proclamations policy was placed on the November 19, 2019 council meeting agenda, they also agreed that no policy was adopted prior to receipt of Borderland Pride’s 2020 requests.

[40]      It was agreed that Borderland Pride’s 2020 proclamation and flag requests were considered at the May 12, 2020 municipal council meeting, which was conducted over Zoom. An audio recording of the meeting was submitted at the hearing and relied on by all parties. Portions of the recording were distorted by audio feedback and interference and as a result some of council’s discussion prior to the vote was unintelligible. The participants in the meeting themselves could not, by times, hear or understand each other either. The excerpts of the recording discussed below were, however, clear and all parties agreed that events transpired as described.

[41]      A resolution proclaiming Pride Month in the language submitted was tabled by Councillor Lincoln Dunn. During discussion, all three individual respondents expressed the view that the vote should be delayed until there was a flags and proclamations policy in place. Mr. Boven attempted to move to delay the vote until that policy was in place, but the vote on the resolution was called. The resolution proclaiming Pride Month in the language submitted was defeated by a vote of 3-2. The three individual respondents voted against the resolution. The result was reflected in the minutes of the May 12 council meeting submitted as evidence and relied on by all parties.

[42]      Borderland Pride’s request that the Township fly or display the Pride flag was not included in the resolution tabled by Councillor Dunn and was not considered separately. Councillor Dunn stated during discussion of the proclamation that the Township did not have a flagpole.

[43]      It was not disputed that during the May 12 council meeting, shortly after the Borderland Pride vote, Mayor McQuaker remarked, “There’s no flag being flown for the other side of the coin…there’s no flags being flown for the straight people.”

[44]      It was also not disputed that later in the meeting Mr. Toles submitted a resolution proclaiming Pride Month in similar language to the 2019 proclamation that was passed unanimously. Mr. Toles’s resolution was not seconded by any councillor.

[45]      The parties agreed that Borderland Pride’s proclamation request was discussed again at the May 26, 2020 council meeting. An audio recording of that meeting was also submitted at the hearing and relied on by all parties. Based on the recording, there was significant confusion among the councillors as to the procedure for reconsidering its May 12 vote. Ultimately, the vote was not reconsidered.

[46]      To successfully establish discrimination, an applicant must prove on a balance of probabilities that their protected characteristic was a factor in the respondent’s actions. A balance of probabilities means that the Tribunal must determine whether it is more likely than not that the violations of the Code alleged by the applicant occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593.

[47]      I note that the applicable test is not whether the protected characteristics were the only factor, but simply that they were a factor in the respondent’s actions.

[48]      Furthermore, I was asked by the applicant to consider the “Policy on discrimination and harassment because of sexual orientation” released by the Ontario Human Rights Commission (the “OHRC”) in 2006 (the “Policy”).  Although the Policy is not binding on me, I considered it in accordance with section 45.5(2) of the Code. 

[49]      As submitted by the Township and reflected in sections 5(1) and 5(3) of the Municipal Act, 2001, the municipal corporation acts through its bylaws and the resolutions of council. The municipal corporation and its councillors must also act in compliance with the Code. Therefore, if municipal councillors vote against a resolution for a discriminatory reason, and their votes determine the outcome, then the outcome itself is discriminatory.

[50]      I find that issuing proclamations and displaying flags were services offered by the Township at the material times. However, as noted above, municipal council never voted on Borderland Pride’s flag request. I find based on the hearing recording that Councillor Dunn did not include the flag request in the tabled resolution because the Township did not have a flagpole. I note that the request was that the Township fly or “display” the flag, and that it could display the flag without a flagpole. However, no evidence was presented that the narrow reading of the flag request occurred for any discriminatory reason, and I find that it did not. I therefore find on a balance of probabilities that Borderland Pride’s protected characteristics were not a factor in the Township’s failure to consider the flag request.

[51]      However, Mayor McQuaker’s remark during the May 12 council meeting that there was no flag for the “other side of the coin … for straight people” was on its face dismissive of Borderland Pride’s flag request and demonstrated a lack of understanding of the importance to Borderland Pride and other members of the LGBTQ2 community of the Pride flag. I find this remark was demeaning and disparaging of the LGBTQ2 community of which Borderland Pride is a member and therefore constituted discrimination under the Code.

[52]      Moreover, I infer from the close proximity of Mayor McQuaker’s discriminatory remark about the LGBTQ2 community to the vote on Borderland Pride’s proclamation request that Borderland Pride’s protected characteristics were at least a factor in his nay vote and therefore it too constituted discrimination under the Code.

[53]      Having found that Mayor McQuaker’s nay vote was discriminatory, I must therefore find that council’s vote to defeat the resolution proclaiming Pride Month in the language submitted also constituted discrimination under the Code. 

[54]      Accordingly, I find that the applicant Borderland Pride has established on a balance of probabilities that the Township denied its 2020 proclamation request at least in part because of Borderland Pride’s protected characteristics, contrary the Code.

[55]      I am however unable to find, based on the evidence presented, that the nay votes of Mr. Boven and Mr. Toles constituted discrimination under the Code. Both councillors expressed non-discriminatory reasons for their nay votes. Both wanted to delay the vote until a flags and proclamations policy was in place and Mr. Boven attempted to move to do so. Furthermore, following the vote on Borderland Pride’s requests, Mr. Toles proposed proclaiming Pride Month in similar language to the 2019 proclamation that was unanimously passed. No evidence was presented that these actions were taken for discriminatory reasons and I find that they were not.

[56]      While I acknowledge Mr. Boven’s testimony that some of the proposed proclamation language was contrary to his own personal religious beliefs, he also said that his faith does not impact the decisions he makes as a councillor and that as an elected representative he must represent the whole community. Mr. Boven’s evidence was consistent in this regard, and in the absence of evidence to the contrary, I accept it.

[57]      For all of the reasons above, I find that Borderland Pride has failed to prove on a balance of probabilities that its protected characteristics were a factor in the nay votes of Mr. Boven and Mr. Toles.  Accordingly, the Application as against Mr. Toles and Mr. Boven is dismissed.

[58]      Having already dismissed the Application as against Mr. Boven and Mr. Toles on the merits, it remains only to determine whether Mayor McQuaker is entitled to immunity under section 448(1) of the Municipal Act, 2001. Section 448(1) provides:

[59]      The respondents submitted, and I agree, that section 448(1) serves an important public policy purpose. It allows municipal councillors to consider matters that come before them and debate matters in council chambers without putting their own assets at risk. Without this protection, few would be willing to run for municipal council.

[60]      It was not disputed that in voting on Borderland Pride’s requests, Mayor McQuaker was performing a duty or authority under the Municipal Act, 2001 and I find that he was. Whether he may claim the benefit of section 448(1) therefore turns on whether he acted in “good faith” or with an “absence of bad faith.”

[61]      In Grosvenor v East Luther Grant Valley (Township), 2007 ONCA 55, the Ontario Court of Appeal held that for a municipality to act in “bad faith” was to say it acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required.

[62]      Similarly, the Ontario Court of Appeal in Equity Waste Management of Canada v. Panorama Investment Group Ltd., 1997 CanLII 2742 (Ont. C.A.) held:

[63]      However, in Kuttschrutter v. The Corporation of the Town of St Marys et al., 2023 ONSC 4543 (Sup. Ct.), the Court held at paragraph 14 that municipal councillors have “the right to be wrong,” and an applicant’s subjective perception that certain actions were malicious to the point of mala fides or bad faith will not suffice to establish bad faith.

[64]      I have found that Mayor McQuaker discriminated against Borderland Pride. Discrimination is by definition arbitrary, unreasonable, partial and unfair. While Mayor McQuaker had the “right to be wrong,” he did not have the right to act in bad faith and breach the Code. In the circumstances of this case, given the actions of this particular individual respondent, I find he did not act in good faith in voting against Borderland Pride’s requested proclamation. I therefore find that Mayor McQuaker’s actions constituted bad faith and that they are accordingly not entitled to the protection of section 448(1) of the Municipal Act, 2001. To hold otherwise would, in this case, undermine the protections afforded by the Code and be contrary to the public interest.

[65]      There may well be circumstances in which a breach of the Code may have occurred in “good faith,” but this is not one of those cases.

[66]      As part of their legal submissions, the applicants requested to amend the remedies sought, including to increase the quantum of general damages claimed against each respondent.

[67]      To allow such amendments not only midway through the hearing but in fact after the close of evidence and with no prior notice to the respondents or Tribunal would have breached the procedural fairness rights of the respondents. Moreover, I note that the applicants were unable to point to any decision in which the Tribunal granted an amendment to the remedies sought after the close of evidence and that the applicants did not file any specific evidence to support the amended remedies. Accordingly, the requested amendments were refused.  

[68]      Section 45.2(1) of the Code states:

[69]      As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory act. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (Ont. Div. Ct.) at paragraph 150.

[70]      The factors frequently used in assessing the appropriate quantum of damages for injury to dignity, feelings and self-respect, or “general damages,” include:

[71]      In the Application, the applicants requested $15,000 from the Township and $10,000 from each of the individual respondents, along with a number of public interest remedies. The respondents submitted the applicants were not entitled to any of the remedies claimed.

[72]      While I heard evidence from Mr. Judson and Ms. Shoemaker about the injury to dignity, feelings and self-respect they personally suffered because Borderland Pride’s requests were refused, Borderland Pride is a separate legal entity from Ms. Shoemaker and Mr. Judson. Borderland Pride must therefore present evidence of the injury it suffered. I cannot simply impute Mr. Judson and Ms. Shoemaker’s evidence to the corporation. As noted by the Board of Inquiry in Hudler v London (City), 1997 CarswellOnt 6136 (“Hudler”):

[73]      That said, Dr. Saewyc presented evidence that there is a link between public or political figures making discriminatory statements or hate speech and significant harms among those targeted by that discrimination. Dr. Saewyc testified that one of the ways that negative speech contributes to harms is through tacitly encouraging others to imitate that discriminatory speech. For example, she testified that in longitudinal qualitative research with more than 1,200 people in the United States, people described how the anti-LGBTQ rhetoric by President Trump, Vice President Pence, and members of Trump’s cabinet during his presidency visibly increased the amount of hate and violence publicly expressed by others who were strongly affiliated with Trump’s political views.

[74]      I accept Dr. Saewyc’s expert evidence on this point and note that her evidence was not challenged by the respondents at all on cross-examination.

[75]      Moreover, Dr. Saewyc’s expert evidence accords with the applicants’ evidence that many homophobic and hateful social media posts about Borderland Pride and the LGBTQ2 community appeared following the May 12 council meeting and vote. While I note that the respondents attempted to argue that those posts were the result of Borderland Pride making the proclamation and flag requests and not the result of council’s vote, I reject that argument. The respondents’ position is contrary to Dr. Saewyc’s unchallenged evidence cited above. Moreover, no evidence was presented that Borderland Pride’s 2018 and 2019 requests prompted similar homophobic and hateful social media posts.

[76]      In support of their requested quantum of damages, the applicants relied on Hudler, in which the Board awarded the successful applicant $10,000, the maximum monetary compensation permitted under the Code at that time. However, I note that in Oliver v. Hamilton (City), 1995 CarswellOnt 169 (“Oliver”), the Board of Inquiry awarded the applicant only $5,000.

[77]      The applicants also relied on the British Columbia Human Rights Tribunal’s decision in Rainbow Committee of Terrance v. Terrace (City), 2002 BCHRT 26. While a monetary award was not sought by the applicant in that case, the Tribunal observed that if requested, the award would have been in the higher range of awards given by the Tribunal.

[78]        Having regard to the case law relied on by the parties, and noting that the applicants’ damages claim was made on the basis of there being four applicants to the Application and now there is only one, I find that $15,000 is an appropriate level of compensation for Borderland Pride’s injury to dignity, feelings and self-respect. This amount shall be payable as follows:

[79]      The applicants also requested a number of public interest remedies, including orders that the Township proclaim June of 2020 and subsequent years as Pride Month and that the Township “fly, raise or display” the rainbow flag at its offices on a week chosen by Borderland Pride.

[80]       In Oliver, the Board noted in relation to the request that it order the mayor to proclaim Pride week retroactively that the people of the municipality “cannot observe a week in honour of [the complainant’s] community when that week has passed into history.” The Board accordingly denied that request. I agree with and adopt the Board’s reasoning in Oliver on this issue and decline to grant the requested retroactive proclamation of Pride month.

[81]      With respect to the applicants’ request for an order that the Township continue to proclaim June as Pride Month in future years, I note that the Tribunal has generally declined to order remedies that raise potential freedom of expression concerns, such as apologies. See Abdallah v. Thames Valley District School Board, 2008 HRTO 230 and Adorgloh v. Seasons Foodmart and Feng Lin, 2013 HRTO 1201. In my view, the requested order raises similar concerns. Accordingly, I agree with and adopt the Tribunal’s reasoning in those cases and decline to grant the order sought.

[82]      Finally, I find it is appropriate to order Mayor McQuaker and the current Chief Administrative Officer (“CAO”) of the Township to complete human rights training. Mayor McQuaker and the CAO must complete the Ontario Human Rights Commission (“OHRC”) eLearning Module titled “Human Rights 101” and provide proof of completion of same to Borderland Pride within 30 days of the date of this Decision.

[83]      For the reasons set out above:

[84]      The Township shall pay to Borderland Pride the sum of $10,000 as compensation for infringement of the Code.

[85]      Mayor McQuaker shall pay to Borderland Pride the sum of $5,000 as compensation for infringement of the Code.

[86]      Mayor McQuaker and the Township’s current CAO shall complete the OHRC eLearning Module titled “Human Rights 101” and provide proof of completion of same to Borderland Pride within 30 days of the date of this Decision. The eLearning Module is available on the OHRC’s website at https://www.ohrc.on.ca/en/learning/learning.