October 18, 2016 - 6:00 AM
TORONTO - An effort to ban the Cleveland Indians from using their full team name and logo when they played the Toronto Blue Jays was dismissed by an Ontario judge on Monday evening, just a few hours before the baseball teams met in a high-stakes playoff game.
Justice Thomas McEwen issued his ruling after lawyers for an indigenous activist sought to bar use of the American team's name and logo in Ontario, arguing they amounted to racial discrimination.
Indigenous activist and architect Douglas Cardinal had filed complaints to the Human Rights Tribunal of Ontario and Canadian Human Rights Commission on the matter, but pursued an injunction in a Toronto court before those cases were ruled on.
His lawyers had argued that the Cleveland team name and logo of "Chief Wahoo" — a grinning cartoon man with red skin and a feather in his headband — was a violation of the Ontario Human Rights Code and Canada's Human Rights Act.
"On behalf of Mr. Cardinal, we're disappointed that the court didn't grant the injunction," said Michael Swinwood, a lawyer for Cardinal who was not involved in the legal arguments but spoke for his client.
"However, we look at it this way ... we believe that the awareness around this issue has now been elevated."
Cardinal said in a statement Monday evening that he was "deeply disappointed" by the court's ruling.
"I hope that, one day, the Cleveland team's ownership will realize that its racist name and logo has got to go – entirely," he said.
Lawyers who made legal arguments on Cardinal's behalf on Monday suggested the Cleveland team use spring training jerseys — which didn't have the full name and logo — during their games, while Rogers Communications, which broadcasts the games, could be ordered not to use the team logo on screens in the stadium where the Jays play.
They had also suggested that Rogers sportscasters could be directed not to use the team's full name during broadcasts and that Major League Baseball be ordered to allow the Cleveland team and Rogers to take those measures.
"You could not call a team the New York Jews. Why is it OK to call a team the Cleveland Indians," Cardinal's lawyer Monique Jilesen said in court.
"Someone like Mr. Cardinal ought to be able to watch the game, like every other person in Canada, without suffering from racial discrimination."
Jilesen noted that the urgency of the legal application was due to the number of fans that were expected to tune into the game in Toronto on Monday night. But she emphasized that the legal action did not seek to cancel the game or its broadcast, nor did it seek to stop fans from using the team name or logo.
"The game can go ahead, the team can play, there would be no loss of enjoyment for any viewers," she said. "And indigenous people can watch, at a minimum, with a reduced amount of discriminatory iconography."
A lawyer for the Cleveland team, however, had said the "inappropriate" request from Cardinal amounted to asking a court for censorship.
"What my friends are asking you ... is to reach down from your dais and censor words and images that Mr. Cardinal finds offensive," said Jonathan Lisus.
"It is his right to be offended, but it is a very long leap from Mr. Cardinal's right to be offended to say that this court ... should determine that issue."
A lawyer for Rogers noted that Cardinal is currently in China, where Rogers does not broadcast.
Kent Thomson also said that Cardinal's legal application, which was filed on Friday, initially suggested that all use of the Cleveland team's name and logo — including by fans in the stands — ought to be banned, but that wasn't ultimately the case.
"The result of this would be an injunction that would have such a minimal impact that it wouldn't come remotely close to satisfying the concerns Mr. Cardinal has in this case."
He also noted that an injunction would only prevent Rogers from broadcasting the team's name and logo, while its competitors would still be able to continue using them.
A lawyer for Major League Baseball questioned why Cardinal was bringing his injunction while the Blue Jays were in the playoffs.
"He's been exposed to the logo and the name since 1977, so what's happened now to come to court on an emergency basis?" asked Markus Koehnen.
The Indians dropped Wahoo as their primary logo two years ago, switching to a block "C" and reduced the logo's visibility.
However, one of the caps the Indians wear at home has the "Wahoo" logo on its front and Cleveland's jerseys remain adorned with the Wahoo logo on one sleeve.
News from © The Canadian Press, 2016