Abstract of Chapter 4 of "RACE," RIGHTS AND THE LAW IN THE SUPREME COURT OF CANADA: HISTORICAL CASE STUDIES

July 22, 1998

I am writing a dissertation about racial restrictive covenants in the Chicago area in the twentieth century and am interested in gathering examples of the use of such legal instruments against Jews in the U.S. and elsewhere. In exchange for information on this subject, and in the hope that it will be of interest to others, I am abstracting a chapter on the use of covenants against Jews and other forms of antisemitism in Canada, from W. St. G. Walker's monograph on "RACE," RIGHTS AND THE LAW IN THE SUPREME COURT OF CANADA: HISTORICAL CASE STUDIES (The Osgoode Society for Canadian Legal History and Wilfred Laurier University Press, 1997).

I appreciate the editing on this piece by Richard Levy, Professor of History at University of Illinois at Chicago and editor of H-Antisemitism , a network of H-Net.

Walker's work includes the following chapters:

  • Chapter 1: Orientation
  • Chapter 2: Quong Wing v. The King (a naturalized Canadian of Chinese heritage violated the Saskatchewan law prohibiting Chinese persons from employing white females in 1912)
  • Chapter 3: Christie v. York Corporation (a black chauffeur from Montreal was turned away from a tavern in 1936)
  • Chapter 4: Noble & Wolf v. Alley (the right of a Jew to acquire a covenanted resort property was contested in 1948)
  • Chapter 5: Narine-Singh v. Attorney General of Canada (a Trinidadian of East Asian ancestry was served with a deportation notice in 1953 under the 1952 Canadian Immigration Act which prohibited Asians)
  • Chapter 6: Implications

OVERVIEW: ANTISEMITISM IN CANADA AND ATTEMPTS TO COMBAT IT

Walker traces the history of Jews in Canada, and the rise of antisemitism -- a subject addressed in a 1948 investigation undertaken by Maclean's magazine which uncovered obvious discrimination against Jews in Canadian resorts and Canadian businesses. Antisemitism had a long history in Canada, according to Walker, as did the struggle against it, which in 1832 resulted in legislation securing rights to Canadian Jews -- the "first of its kind passed by any jurisdiction in the British Empire." (183)

In 1871, the small community of Jews in Canada totaled only about one thousand, clustered in Montreal and Toronto. But the Jewish population increased rapidly towards the end of the nineteenth century, as a result of immigration from Eastern Europe and especially Russia. Over 125,000 Jews resided in Canada by 1921, in Montreal, Toronto, and Winnipeg. Antisemitic incidents coincided with the rising Jewish population. Walker cites antisemitic correspondence in the mainstream newspapers, and increasing employment discrimination in the 1920s. The participation of many Jews in left-wing and radical causes in Canada in the 1930s fed the antagonism against them in certain circles. (184-185)

Antisemitism manifested itself in a 1934 strike by interns in a Montreal hospital when a Jew was accepted as an intern, leading to his resignation three days after starting duty. Quotas were strictly enforced against Jewish doctors, nurses, and medical/nursing students, and library schools discriminated along the same lines. Law firms expressed reluctance to hire Jews, and the other professions -- such as banking, finance, teaching, architecture, engineering, and accounting -- were found to have disproportionately low numbers of Jews. (185)

Residential discrimination also arose, ranging from blatantly antisemitic signs on housing to restrictions against Jews in English and French hotels. According to Walker, "One Montreal-area resort had a sign 'Christians Only' at the entrance, but to be doubly effective an employee 'walked along the beach with a megaphone, politely inquiring whether there was a Jew present despite the warning, and asking him to leave as quickly as possible." (186)

Canada maintained high barriers against Jewish refugees from Nazism in the 1930s, accepting only four thousand Jews, comparing unfavorably with the records of the U.S., Britain, and Australia, which accepted refugees in the tens and hundreds of thousands. (186) Especially in Quebec, antisemitic and pro-fascist sentiment spread, combining with a "resurgent nationalism in the 1920s and 1930s, characterized by an attitude of exclusion against any who were not French and Roman Catholic." (187)

Economic boycotts against Jewish retail stores were organized, and provoked Jewish organized anti-Nazi rallies in Montreal in 1933. (188) Right-wing political parties espoused antisemitic positions, and violence against Jews occurred in Toronto in August 1933 carried out by youths with swastika banners and chanting anti-Jewish "taunts." (189) Not even the war effort overcame Canadian antisemitism as Jews found themselves discriminated against in the armed forces. (189)

Jews individually and through their organizations in the early 1930s challenged the antisemitism around them. An early example is a successful fight against discriminatory insurance practices in Ontario under which Jews were charged higher premiums or denied insurance entirely. When a Jewish legislator attempted to have the practice ended administratively, his insurance policy was cancelled without stated reason. He turned to the Ontario legislature for relief, and it enacted legislation prohibiting racial and religious discrimination in the provision of insurance. According to Walker, the legislation was innovative and precedent-setting in establishing the right of the public sector to regulate discriminatory practices, and to declare "racial" discrimination as undesirable. (193)

Jews also attempted to pass laws in Quebec, Manitoba, and Ontario provinces making it libelous to publish broad negative statements about groups. They were only successful in Manitoba in 1934, in an amendment to the Libel Act that survived the court challenge it was immediately subjected to. Next came several initiatives against public antisemitic signs ("Gentiles Only"), such as those found on the Toronto Island beaches on land owned by the city but leased to private interests. Among the most comprehensive measures passed was Ontario's Racial Discrimination Act of 1944, which "prohibit[ed] the publication or display of signs, notices, or symbols expressing racial or religious discrimination in Ontario." The success in enacting it was thought to have been the result of attitudes changed dramatically by the war against Hitler. (197-198)

NOBLE AND WOLF V. ALLEY: ATTACKING RACIAL RESTRICTIVE COVENANTS

One of the strongest supporters of the Ontario Racial Discrimination Act of 1994 was the Canadian Jewish Congress. Created in 1919, the Congress lay dormant during much of the 1920s and early 1930s. In 1936, alarmed by the Nazi threat, it combined with the B'nai B'rith to fight prejudice and discrimination along a broad front through creation of a Public Relations Committee. (192) Optimistic as a result of its successes in enacting legislation, the Canadian Jewish Congress determined to attack individual instances of discrimination in court -- including the use of racial restrictive covenants. Covenants were legal restrictions attached to property deeds prohibiting occupancy or use of residential real estate by particular groups.

From the late 19th century, Covenants were commonly used against Jews and various racial and ethnic groups in Canada:

"In Nova Scotia covenants were most often directed against blacks, in British Columbia against Asians. In central Canada, while persons of African or Asian origin were not exempted from such restrictions, covenants usually specified Jews among the rejected categories." (190)

However, in the course of the twentieth century, Canadian law had been moving away from support of these instruments. In 1911, a British Columbia Chief Justice had "invalidated a property covenant" against sale to Chinese and Japanese. A 1930 Ontario case also resulted in a ruling against a covenant, although on a technicality. (200-201)

Covenants received a reprieve in the 1945 Ontario case of MCDOUGALL AND WADDELL, in which the court upheld a property restriction against 'any person or persons other than Gentiles (non-semitic) of European or British or Irish or Scottish racial origin'. Although, only six months before, the Ontario legislature had passed the Racial Discrimination Act, the absence of an explicit mention of covenants in this legislation led the judge in MACDOUGALL AND WADDELL to rule in favor of the covenant. He

"lamented . . . 'the unchristian action of racial discrimination,' denounced the Holocaust 'inflicted upon certain races and creeds by a satanic direction in this people. Nevertheless he felt bound to uphold the covenant, for the legislation could have increased the range of the Act but chose to limit it to certain specific instances." (202)

A turn-around occurred almost immediately. In 1945, the Ontario High Court ruled in DRUMMOND WREN against a covenant against Jews. As Walker describes:

"The Workers' Educational Association had purchased a lot in East York, intending to build a house on it and then raffle it off for fund-raising purposes. It was, however, discovered that the land was restricted by a covenant pronouncing that it was 'not to be sold to Jews or persons of objectionable nationality.' This would seriously complicate the raffle, so the WEA applied to have the covenant declared invalid." (202)

In the resulting case, the Ontario High Court found the covenant unconstitutional on three grounds: it was against public policy, was an invalid restraint on alienation of property, and required the ability, which did not exist, to define the class of those excluded from owning the property. The case had international ramifications, in the U.S. as elsewhere, where it was cited in the U.S. Supreme Court's decision against covenants in Shelley v. Kramer.[1]

Other trends also tended to lead anti-discrimination advocates to assume that Canada was becoming less prone to indulge in racial/ethnic/religious discrimination. In response to protests against the practice of a Toronto ice skating rink to refuse admission to Jews, the Toronto Board of Police Comissioners passed a regulation refusing to license businesses that "practised racial or religious discrimination." (205) In 1947, the CCF government of Saskatchewan passed a Bill of Rights which prohibited racial, ethnic, and religious discrimination. Finally a Gallup Poll released in summer 1947, indicated that 64% of Canadians would support legislation against discrimination.(205)

Thus, when a Jew, Bernard Wolf, acquired a property in 1948 at Beach O'Pines, a Lake Huron summer resort covered by a 1933 covenant, his attorney was optimistic about asking in advance for a ruling from the courts that the covenant would not apply as a result of DRUMMOND WREN. (191-192; 206) [2] Such a ruling was not forthcoming. The Beach o' Pines Association tried to forestall legal action by acquiring the property at a profit from Wolf, who refused. When Wolf's attorney brought the covenant to the court for a ruling, the Association actively engaged in the attempt to uphold the covenant. The court proved sympathetic to their claims.

"Before Justice Schroeder of the Ontario High Court, Mr. Morden argued that over the years since it had been formed in 1935, the Beach O' Pines Protective Association had nurtured a congenial summer community among its members. It had paved and maintained the roads, provided police and fire protection, and undertaken substantial general improvement to the property, to the effect that the Beach had become a desirable location whose value would be diminished by any change to its character. This positive development had occurred under the protective shield of the restrictions contained in the covenant, which each owner had been aware of at time of purchase. Very few changes in ownership had taken place, so that it was a compatible and intimate group of citizens who in 1948 sought to maintain their enjoyment and the value of their property." (207)

In June, 1948 -- one month after the U.S. Supreme Court had ruled against the enforcement of racial restrictive covenants in Shelley v. Kraemer -- the Ontario High Court upheld the covenant on all counts. The ruling held that the precedent of DRUMMOND WREN did not apply as only resort property and not a permanent residence was at stake; that there was enough certainty about the meaning of a Jew to undermine the concern about "uncertainty"; and freedom of alienation was not wholly circumscribed (non-Jews could acquire it) and thus was not affected enough to sue.

Encouraged by the Canadian Jewish Congress, Wolf filed an appeal of the case with the Ontario Court of Appeal in late June 1948, and was heard in January 1949. The proceedings were similar to those that had occurred at the lower court: the judges displayed support for the Association. The Chief Justice of the court wrote of the covenant that

'The purpose of clause (f) here in question is obviously to assure, in some degree, that the residents are of a class who will get along well together. To magnify this innocent and modest effort to establish and maintain a place suitable for a pleasant summer residence into an enterprise that offends against some public policy, requires a stronger imagination than I possess...There is nothing criminal or immoral involved; the public interest is in no way concerned." (216-217)

He, like the judges in the lower court, asserted that laws would not change the relationships of individuals, and that natural evolution has to do this.

Public reaction to the Appeals Court decision was strong. Rabbi Abraham Feinberg of the Canadian Jewish Congress issued the statement:

"Canadian democracy may never grow beyond a collection of isolated racial units, roped off from one another by a legalized iron curtain of snobbery and barred from the mutual acquaintance and understanding which alone can develop internal unity." (218)

The Association for Civil Liberties also issued a critical statement, and both national labor organizations attacked the judgment. (218) A poll on the willingness of Canadians to sign a covenant showed 19 percent of Canadians willing to sign, 13 percent undecided and 68 percent not willing to sign. Newspapers such as THE HAMILTON NEWS and the TORONTO STAR editorialized against the judgment. However, the GLOBE and MAIL endorsed the decision, in part citing the argument that legislation cannot counter prejudice effectively.

In June, 1949, the Canadian Jewish Congress decided to appeal to the Canadian Supreme Court.(219)[3] Walker describes how the atmosphere in the Supreme Court was very different from those in the lower courts.

"...when [Morden] suggested that his clients' property would depreciate in value if Jews were allowed, Justice Ivan Rand interjected that if Albert Einstein and Arthur Rubinstein purchased cottages there the property values would increase, and the Association 'should be honoured to have them as neighbours.'" (229)

He also cited the retort of Justice Rand that

'freedom of association on a voluntary basis is one thing but it is quite a different thing to say that the law should protect an inclination to disassociate." (229)

Ultimately, it was the question about what would happen if a Gentile man bought the cottage, married a Jew, and then died that the Association's counsel found itself unable to answer. (229)

On 20 November, 1950 the positive judgment in favor of the appellants appeared, on the narrower grounds argued -- that because of the application of the covenants to the users or purchasers of the land, and not the land itself, it was not considered to "run with the land" -- that is, the covenant would only apply to the two parties involved in the initial agreement. Secondly, the judges accepted the argument of "uncertainty" -- that defining the affected class such as Jews was too difficult to retain their exclusion in public orders. (229-230)

The legacy of Noble and Wolf v. Alley was ambiguous, as the court refrained from ruling that racial restrictive covenants were against public policy, which would have sent the message out that other types of discrimination were also unconstitutional. The court's failure to do so did result in later decisions that public policy could *not* be drawn on to litigate against discriminatory behavior. (235-245) In spite of this, no covenant was enforced after Noble & Wolf vs. Alley, and thus it was successful in putting an end to the use of covenants in Canada. (234)

Wendy Plotkin
University
of Illinois at Chicago
Department of History
U20566@uicvm.uic.edu

Notes


[1] Shelley v. Kraemer and the accompanying court cases heard by the Supreme Court all involved covenants against African- Americans.

[2]Canada's VENDORS AND PURCHASERS ACT allowed parties to a real estate transaction to apply to the court for rulings on various aspects of the real estate prior to the transaction. (206)

[3]Wolf considered not appealing to the Supreme Court, as he was tired of the case. Even the CJC expressed reservations about proceeding because the suit would involve summer property rather than permanent residences. In spite of this, the CJC decided to support and to finance the appeal. The CJC had to promise to find an alternative buyer and to pay the difference in price if the appeal was lost, to satisfy Noble's economic concerns. Noble put forth additional expensive demands, and the CJC agreed to comply because of the importance of her involvement in the case and Wolf's refusal to do so. It took until September 6, 1949 to draw up the terms of the agreement to proceed on the appeal, and on September 23, the appeal was approved by both parties.

 

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This WWW page was created by Wendy Plotkin (wendy.plotkin@asu.edu) in 1998 and updated on 1 September 2003.