After the Ontario Human Rights Tribunal ordered a small town and its mayor to pay $15,000 fines for “discriminating” against a Pride group for not declaring June as Pride Month, the two are applying for a judicial review of the case.
The northern Ontario township of Emo announced that it has applied for a judicial review to the Ontario Superior Court of Justice to have the November decision quashed and sent back to the Human Rights Tribunal of Ontario.
The tribunal found that Emo, Ont., discriminated against Borderland Pride when it voted to refrain from accepting the verbiage of a draft proclamation written by the pride group.
In the announcement, the town noted that despite being labelled as discriminatory against the LGBT community, it made a “Declaration of Equality” in 2022, after the vote and before the tribunal decision, which recognized the “dignity and worth” of LGBT people and the barriers they may face in society.
The town announced that it would not provide further comment because the matter was before the divisional courts.
The tribunal ordered the town to pay Borderland Pride $10,000. Its mayor, Harold McQuaker, was fined $5,000. McQuaker and the township’s chief administrative officer, hired after the vote, were also ordered to take a “Human Rights 101” eLearning Module by Dec. 20.
McQuaker publicly refused to pay the damages ordered against him at the beginning of the month, prompting Borderland Pride to take enforcement action against him and have the money garnished directly from his account.
According to the notice of the judicial review application obtained by True North, the town and McQuaker want the tribunal to reexamine the case and have the orders against them stayed, claiming that the decision was “unreasonable and incorrect.”
The applicants demand that any orders placed on them be halted until the human rights tribunal reexamines the matter. They also want the $5,000 –plus interest and taxes – garnished from McQuaker’s account to be returned in the meantime. They claim that the money was unfairly taken from the mayor as it was garnished before the 30-day timeline to apply for judicial review had passed.
The tribunal based its discrimination finding on a statement McQuaker made at a later, council meeting in which he pointed out that the township wasn’t flying a flag for anyone – and to fly the flag would be a political statement to which the alternative “straight flag” isn’t being flown..
Because the tribunal found McQuaker to have not acted in good faith when voting, he was disqualified from being shielded from paying damages as municipal workers in Ontario typically are for actions taken while performing their duties.
The applicants argue that the court should not have used the mayor’s post-vote statements to determine if he had discriminated against the Pride group for voting not accepting its verbiage and proclamation.
The applicants argue that the tribunal failed to explain why it declined to accept alternative explanations for McQuakers statements, including that he sought to be inclusive and that it didn’t support its claim that he acted in bad faith with “any articulable” facts.
The notice said the decision has “a profound impact on democracy” and may dissuade many from wanting to work in a low-paying municipal council job.
The applicants also argue that the orders against the CAO of the town, who was hired after the incident in question, demonstrate the unreasonableness of the decision. She allegedly was not informed that she would be subject to enforcement and wasn’t given a chance to defend herself.
Among other problems the applicants have with the decision, they also took issue with the finding that Borderland Pride could even be paid compensation for injury to its “dignity, feelings and self-respect,” as it is a corporation and not a human under the human rights code.
Josh Dehaas, a civil liberties lawyer at the Canadian Constitution Foundation and co-author of a new book on free speech, told True North that the CCF is glad that the mayor and township are challenging the decision.
“There was a lot about this decision that was illogical and unreasonable, and it sets a really bad precedent,” he said. “So we’re happy to see that Emo and Mayor McQuaker challenged this.”
The Human Rights Tribunal of Ontario did not respond to True North’s request to comment.