In Borderland Pride v. Emo (Township), 2024 HRTO 1651, the Ontario Human Rights Tribunal ordered the Township of Emo and its mayor, Harold McQuaker, to pay damages of $15,000 to Borderland Pride, a local 2SLGBTQIA+ Pride organization.
The tribunal’s finding was based on a comment made by McQuaker that there are “no flags being flown for the straight people,” made shortly after a vote on a resolution to proclaim June as “Pride month.”
The tribunal had found that McQuaker voted against a resolution at least in part because of the protected characteristics of Borderland Pride, which had requested the proclamation.
The tribunal found that McQuaker acted in bad faith and ordered the township to pay Borderland Pride $10,000 and directed McQuaker to pay Borderland Pride $5,0000 as compensation for infringement of the Human Rights Code.
The Township of Emo and McQuaker have filed an application for judicial review of the decision, arguing that the tribunal wrongly found McQuaker’s statement to be indicative of discrimination in his vote on the proclamation request.
The applicants have also submitted that the court’s determination that Borderland Pride has human rights under the Human Rights Code and may receive compensation for injury to its dignity, feelings and self-respect is incorrect in law and unreasonable
Additionally, the application notes that the tribunal failed to consider or comment on the fact that the township council did subsequently make a declaration of equality supportive of, among other communities, the LGBTQ2 community.
The applicants are also challenging a finding by the tribunal that McQuaker acted in bad faith. The tribunal had observed that discrimination is by definition arbitrary, unreasonable, partial and unfair.
The finding of bad faith means that McQuaker does not have the protection of s. 448(1) of the Municipal Act, which bars any proceedings against a member of a municipal council for any act done in good faith while performing a duty under the Act.
“The Tribunal made a finding of bad faith by wrongly equating discrimination to bad faith. The Tribunal’s Decision was also unreasonable because the Tribunal failed to support its finding of bad faith with any articulable findings of fact,” the applications reads.
The applicants have submitted that the tribunal’s decision lowered the standard as to what constitutes bad faith by a municipal councillor and will have a “profound impact on democracy.”
They also note that the decision will have an impact on the willingness of people in small townships to run for council and on who is willing to express themselves on matters of public interest.
Counsel for Borderland Pride, Doug Elliott of Cambridge LLP, said that there was no doubt that the tribunal’s finding on bad faith would be upheld.
“The question for the Divisional Court will be whether the finding was patently unreasonable, and clearly it was not patently unreasonable, because the evidence was clear that not only was Mayor McQuaker warned by my client that there was binding case law on this issue, he was also told that by one of his fellow councillors,” he told Law360 Canada.
Elliott also noted that his clients have always been open to resolving this issue and to settling the case.
In April 2024, before the matter was heard by the tribunal, Borderland Pride published an open letter to the Township of Emo asking that it agree to a settlement offer comprising a published apology, financial compensation and diversity and inclusion training for members of council.
Borderland Pride had also offered to donate one-third of the financial compensation paid by the municipality directly to the Emo Public Library, on the condition that it host a drag story time event, free to all to attend, on a date of Borderland Pride’s choosing.
“Even if you do win (which is a very remote possibility, and one we would likely seek judicial review of), you cannot recover your legal costs at the Tribunal,” the letter read.
Elliott declined to share details of the settlement agreement that was offered to Emo but said that he was sure that more had been spent on lawyers by the township and McQuaker than the amounts awarded, or the amounts contemplated in the offer.
In a release, Borderland Pride said that the application for judicial review reflected a “far-right political obsession with the legal rights of queer and trans people.”
In a release issued on Dec.19, the township reiterated that it had made a “Declaration of Equality” in 2022 that was still in effect.
The declaration states that the township “recognizes the dignity and worth of all people, as well as the barriers of discrimination and disadvantage faced by human rights protected groups, including members of the LGBTQ2+ community.”
Counsel for the applicants, Paul Cassan of Wishart Law Firm LLP, was not immediately available for comment.
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