“What the continual use and display of that logo at a baseball game means is that individuals who are wildly offended and troubled by that logo have to make a choice between avoiding a game altogether, or attending a game at an increased burden to themselves,” says Paul-Erik Veel, a partner at Lenczner Slaght Royce Smith Griffin LLP in Toronto and one of the counsel representing Cardinal.

Since the logo depicts an aboriginal person in a caricatured and racist way, says Veel, a burden is placed on individuals attending a Cleveland Indians game “as a condition of being able to access that service.” Cardinal’s counsel will argue before the Ontario Divisional Court on Wednesday that Ontario human rights law prohibits discrimination in the delivery of a service.

In October 2016, Ontario Superior Court Justice Thomas McEwen dismissed Cardinal’s application for an injunction just hours before a Cleveland Indians playoff game before the Blue Jays at the Rogers Centre in Toronto. In written reasons delivered the following month (Cardinal v. Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929), Justice McEwen found that “there is no reason why the application cannot have been brought long ago on a non-urgent basis.”

In May, Cardinal won a judgment allowing the case to proceed through Ontario’s Human Rights Tribunal. It is this judgment that one of the respondents, Major League Baseball, will challenge before the Ontario Divisional Court, on the grounds that the Tribunal does not have jurisdiction to hear the case against an American baseball team.

If Cardinal wins his case, the Cleveland Indians would be required to wear their alternate jerseys, which display the team’s stylized “C” logo but not the Chief Wahoo logo, when playing in Ontario or possibly anywhere in Canada.