Across Canada there are thousands of bronze plaques marking historic designations but, until now, not one of them has commemorated a court case.
That changed this past week when a plaque was unveiled at the Wolf Performance Hall in the London Public Library, marking the national historic significance of the Supreme Court of Canada decision in the 1950 case of Noble and Wolf v. Alley. The plaque will later be installed at the London court house.
The watershed real-estate case began in April 1948, when Bernard Wolf, a successful London, Ont., businessman, signed an agreement to buy a cottage property in the exclusive Beach O’ Pines subdivision on the shores of Lake Huron near Grand Bend.
He hired young Edward Richmond, fresh out of law school, to handle the $6,800 purchase.
Richmond’s title search disclosed a registered restriction in a 1933 deed. It provided that the land could never be sold, used, occupied or rented “by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood.”
The stated purpose of the document was to restrict the use of the cottage community “to persons of the white or Caucasian race” not otherwise prohibited by the restriction.
Richmond began an unopposed court action to void the restriction. He represented Wolf, while John R. Cartwright (later Chief Justice of Canada) represented the vendor, Annie Noble.
Although the two lawyers agreed with each other, the court upheld the validity of the restriction. It didn’t offend public policy, the court said, and freedom to contract was not to be lightly interfered with.
Cartwright and Richmond appealed to the Ontario Court of Appeal. In January 1949, the Court of Appeal gave a hostile hearing to both lawyers. Barely disguising the anti-Semitism that was so prevalent at the time, five justices of the Ontario Court of Appeal agreed with the trial decision and noted that the racist restriction was just to assure that the residents were “of a class who will get along together.”
Public reaction was swift. The Toronto Daily Star demanded legislation to end restrictive covenants and urged an appeal to the Supreme Court of Canada.
With the backing of a legal team headed by law professor Bora Laskin (later Chief Justice of Canada) and the financial support of the Canadian Jewish Congress, Richmond took the case to the Supreme Court of Canada. When Cartwright was appointed to the Supreme Court, John J. Robinette was hired to represent Noble.
The Supreme Court accepted Robinette’s argument that it was not possible to determine with certainty whether a buyer was “of the Jewish, Hebrew, Semitic, Negro or coloured race or blood.”
The court reversed the decisions of the two lower courts and declared the covenant invalid for uncertainty. It also ruled that the restriction was an illegal restraint on an owner’s right to sell.
Public reaction was favourable. The Star’s editorial was typical of most, expressing satisfaction that restrictive covenants would become illegal after the Noble and Wolf decision.
Meanwhile, the Ontario government bowed to public pressure as a result of the case and passed a law voiding restrictive covenants entered into after March 24, 1950, but it did not cancel older ones.
The plaque created by the Historic Sites and Monuments Board of Canada and unveiled this week in London reads:
“Argued by Edward Richmond in London, Ontario, this important court case was an integral part of a multi-faceted attack led by the Canadian Jewish Congress and other groups against racial and religious discrimination in the mid-20th century. The resulting Supreme Court of Canada decision in 1950 erected significant barriers against the enforcement of racially restrictive legal covenants. During the highly publicized litigation, public opinion turned against this practice, leading to legislation outlawing discriminatory covenants in several provinces and the enactment of human rights and anti-discrimination legislation in Ontario.”
Today, we take for granted in Ontario that anyone can purchase land without discrimination by reason of race, creed, colour, nationality, ancestry or place of origin.
To a large measure, that right came about because of Ted Richmond, Bora Laskin, John Cartwight, John Robinette and those who assisted in their crusade. To them we owe an eternal debt of gratitude.
Bob Aaron is Toronto real estate lawyer. His Title Page column appears on this blog, Move Smartly, and in The Toronto Star. You can follow Bob on Twitter @bobaaron2 and at his website aaron.ca Email Bob
April 22, 2015Legal |