The Ontario Human Rights Tribunal has ordered a small rural township to pay $15,000 damages to an LGBTQ2+ activist group and send its officials on mandatory diversity and inclusion training after the municipal council declined to honour Pride Month.
Located in the far west of Ontario, at the last Census in 2021, the Township of Emo had a population of just 1,204 residents.
The dispute began in 2020 when the Township’s municipal council – comprised of a mayor and four councillors – was approached by Borderland Pride, an LGBTQ2+ advocacy group, with a written request to proclaim June as Pride Month. In addition, the council was asked to “fly, raise or display” the rainbow flag at its offices on a week in June “to be chosen by Borderland Pride”.
Attached to the letter was a draft proclamation including clauses such as “pride is necessary to show community support and belonging for LGBTQ2 individuals”, and “the diversity of sexual orientation, gender identity, and gender expression represents a positive contribution to society”.
The letter concluded with a request that Emo “please email us a copy of your proclamation or resolution once adopted and signed”.
However, when the draft proclamation was tabled before a May 2020 meeting of Emo’s municipal council, it was defeated by a vote of three to two.
Speaking at a council meeting held on Zoom shortly afterwards, Emo Mayor Harold 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.”
It was this utterance which proved crucial to the success of Borderland Pride’s claim of discrimination based on sexual orientation, gender identity, gender expression, creed and family status, contrary to Ontario’s Human Rights Code (‘the Code’), which it subsequently filed with the Human Rights Tribunal of Ontario.
In a decision handed down in late-November 2024, the Tribunal ruled that Emo, its mayor, and two of its councillors had violated the Code by refusing to proclaim June as “Pride Month.”
As Human Rights Tribunal vice-chair Karen Dawson wrote in her decision:
“Mayor McQuaker’s remark was… on its face dismissive of Borderland Pride’s flag request and demonstrated a lack of understanding of the importance to Borderland Price 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 Ontario’s Human Rights Code.”
Ms Dawson went on to say that she could “infer” from the “close proximity of Mayor McQuaker’s 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”.
The Tribunal dismissed an additional claim that the Township’s decision not to fly an LGBTQ2 rainbow flag was discriminatory, after it emerged during the hearing that Borderland Pride’s request had never been tabled for discussion by the council for the simple reason that Emo doesn’t have a flagpole.
In its application to the Tribunal, Borderland Pride requested compensation from the Township and each of the individual respondents, based on injury to dignity, feelings and self-respect suffered by its staff. To that end, it submitted evidence to the Tribunal suggesting that “many” homophobic and hateful social media posts “appeared” following the council’s May 2020 meeting and vote.
On this point, the Tribunal ordered that damages of $15,000 be awarded to Borderland Pride, with $10,000 payable from the Township itself, and the other $5,000 coming directly from Mayor Harold McQuaker, whom the Tribunal ruled had acted “in bad faith” and thereby lost his right to immunity protection as a public official under section 448 of the Municipal Act 2001.
How was this compensatory amount determined?
In part on the basis of evidence submitted to the Tribunal by Dr Emily Saewyc, an academic at the University of British Columbia’s School of Nursing who is described in the ruling as “an expert on the LGBTQ2 community and the impact of discrimination on that community”.
The respondents had been seeking to argue that any homophobic and hateful social media posts posted during the relevant time period were precipitated not by the council’s vote, but by Borderland Pride’s very public, very online announcement of its proclamation and flag requests.
Dr Saewyc disputed this, however, positing a direct link “between public political figures making discriminatory statements of hate speech and significant harms among those targeted by that discrimination”.
By way of an example, Dr Saewyc testified that “anti-LGBTQ rhetoric” and “hate speech” by “President Trump, Vice President Pence, and members of Trump’s cabinet during his presidency visibly increased the amount of hate and violence publicly”.
Tribunal Vice-chair Karen Dawson accepted this testimony without question, remarking that it “accords with [Borderland Pride’s] evidence that many homophobic and hateful social media posts about Borderland Pride and the LGBTQ2 community appeared following the May 12th council meeting and vote”.
The Tribunal also ordered Mayor McQuaker and the Chief Administrative Officer of the municipality to complete the Ontario Human Rights Commission eLearning Module, titled “Human Rights 101”. Ms Dawson stipulated that proof of completion of this suitably titled course must be provided directly to Borderland Pride within 30 days of the Tribunal’s decision.
In a statement celebrating the Tribunal’s decision, Borderland Pride noted that Emo joins both London and Hamilton in the category of Ontario communities that have been “sanctioned for refusing to adopt proclamations in support of their local Pride organisations”.
Speaking to CBC News, one of the directors on the board of Borderland Pride, Doug Judson, said: “We didn’t pursue this because of the money. We pursued this because we were treated in a discriminatory fashion by a municipal government, and municipalities have obligations under the Ontario Human Rights Code not to discriminate in the provision of a service.
“The important thing we were seeking here was validation that as 2SLGBTQA plus people, we’re entitled to treatment without discrimination when we try to seek services from our local government.”
Judson, a practising lawyer, went on to suggest that one of the messages the decision will send to other townships and municipalities is that “Pride needs to be in the smallest and most remote communities just as it is in larger cities, and in some of the places where it can be really hard to help people understand why it’s so important”.
He also expressed his hope that the relationship between Borderland Pride and the Township of Emo will now be more positive, with the municipality being a more active supporter of its programming.
A letter sent to Emo municipal council just prior to the Human Rights Tribunal hearing commencing earlier this year gives a clue as to what this ‘active support’ might look like.
Having berated the council for its “bigoted and discriminatory” actions, Judson presents what he describes as a “final off-ramp from this impending national public relations tire fire for your council and community”.
The municipal council can avoid the hearing, he says, if it apologises, imposes mandatory diversity and inclusion training for council members, agrees to undisclosed financial terms, pledges to green-light future Pride proclamations “without stripping out their 2SLGBTQIA+ affirming language”, and provides free facilities for a “charitable drag event… the proceeds of which will support the Emo Public Library”.
The drag queen motif reoccurs again a little later, when Judson promises that Borderland Pride will return one third of the compensation received under the terms of the agreement to Emo’s Public Library, on condition that it hosts a “drag story time event, free to all to attend, on a date of our choosing”.
