NEWS RELEASE
The Human Rights Tribunal of Ontario has released its decision in the application brought by Borderland Pride and others against the Township of Emo and 3 members of council over the council’s refusal to make a proclamation in support of Pride Month in 2020.
The claimants were Borderland Pride, the Northern Ontario Pride Network (NOPN), Douglas W. Judson (a director of Borderland Pride), and Katie Shoemaker (a 2SLGBTQIA+ resident of the municipality). Their claim alleged that the council’s refusal to make the requested proclamation constituted discrimination in the provision of a service, contrary to the Human Rights Code, on the protected grounds of sexual orientation, gender identity, gender expression, creed, and family status.
The claim also named Mayor Harold McQuaker, Councillor Harrold Boven, and Councillor Warren Toles as respondents, as the 3-member majority of council who had opposed municipal recognition of Pride. In June 2024, the claim went to a hearing before Tribunal Vice Chair Karen Dawson.
Compensation and training ordered
In its decision, the Tribunal ordered the respondents to pay Borderland Pride $15,000 in compensation. $10,000 of that amount is payable by the Township and a further $5,000 is payable by Mayor McQuaker personally. In addition, the Tribunal has ordered Mayor McQuaker and the Chief Administrative Officer of the municipality to complete, within 30 days, a “Human Rights 101” training course offered by the Ontario Human Rights Commission.
The Tribunal's decision affirms precedent-setting cases from 30 years ago, where Hamilton and London officials were sanctioned for refusing to adopt proclamations in support of their local Pride organizations. The Township's council was explicitly warned about those earlier decisions back in May 2020 when it was asked to reconsider its position. It ignored those cautions.
Tribunal recognizes link between discriminatory statements by politicians and hate
In determining the appropriate remedies, the Tribunal relied on testimony from Dr. Elizabeth Saewyc, an expert retained by Borderland Pride. The Tribunal accepted Dr. Saewyc’s 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.”
The Tribunal also accepted that Dr. Saewyc’s testimony accorded with Borderland Pride’s evidence of “the many homophobic and hateful social media posts about Borderland Pride and the [2SLGBTQIA+] community” which appeared following the council meeting where council refused to make the requested proclamation. Those comments included homophobic posts from the Mayor's family members.
Mayor acted in bad faith and is now liable for the costs of his own defence
In reaching her decision, Tribunal Vice Chair Dawson specifically found that Mayor McQuaker’s public remarks about the refusal to recognize Pride Month, including his comments that “there’s no flags being flown for the straight people” were made in bad faith and contrary to the Human Rights Code.
Vice Chair Dawson concluded that the Municipal Act, 2001 did not make members of council immune from personal liability under the Human Rights Code for taking actions which are discriminatory, and that to provide such a blanket immunity would be “contrary to the public interest”. Her decision states that Mayor McQuaker “did not act in good faith in voting against Borderland Pride’s requested proclamation” and that his actions “constituted bad faith and that they are accordingly not entitled to the protection of section 448(1) of the Municipal Act, 2001.”
In addition to $5,000 payable by Mayor McQuaker personally, having been found to have acted in bad faith, it would appear that Mayor McQuaker is personally liable for his share of the legal fees paid by the Township for his representation, pursuant to the terms of the municipality’s indemnification by-law. The indemnity by-law was enacted by council in response to Borderland Pride's claim, in an attempt to shield the 3 members from liability. However, section 4.1 of their by-law only provides indemnification at taxpayer expense where the member has acted “in good faith”.
In light of the express finding that he acted in bad faith, Mayor McQuaker will need to reimburse taxpayers for the legal fees associated with his defence.
Municipality continues to conceal amount it spent defending discrimination claim
The Township has refused to disclose the amount it has paid to the numerous law firms that have assisted it and the 3 members of council over the past 4 years. That amount is estimated to be at least six figures. In the summer of 2024, Borderland Pride appealed the Township's refusal of their municipal freedom of information request to the Information and Privacy Commissioner of Ontario. No decision has been reached in that appeal. It is obvious that this is public information and the failure to disclose it is contrary to law.
On April 5, 2024, Borderland Pride made a public offer to the municipality to settle the dispute and have a modest amount paid to settle the proceeding, from which it would make a donation to the Emo Public Library. The municipality refused this offer, electing instead to proceed with a nearly two-week hearing.
It is noted that Tribunal dismissed the claims of NOPN, Judson, and Shoemaker because the proclamation request to the municipality came from Borderland Pride. As a corporation, Borderland Pride is a separate legal person from its members and directors.
While the Tribunal took issue with Borderland Pride’s decision to publish the documents that were filed as evidence with the Tribunal, all of these documents are independently a matter of public record, either online or as municipal documents. In any event, the open court principle would typically compel the release of documents filed with the Tribunal to any member of the public who made such a request.
Borderland Pride is currently fundraising to offset some of the costs of its claim. Donations can be made online at www.borderlandpride.org/donate and are eligible for charitable donation receipts from Veritas Charity Services.
Borderland Pride et al were represented at the Human Rights Tribunal of Ontario by Douglas Elliott and Timothy Phelan of Cambridge LLP.
For more information, please contact:
Douglas W. Judson (he/him)
Borderland Pride
Email: borderlandpride@gmail.com