History Update: Westdale's Dirty Little Secret
By David Thompson
Westdale was founded in the 1920s. It was one of Canada’s first planned communities.
The development of Westdale was led by W.J. Westaway through his development company Westdale Properties Limited and a contingent of local investors on the Westaway Citizens Committee; they envisioned the creation of an upscale, exclusive, white Protestant community.
On October 30, 1928, Westdale Properties Limited conveyed to L. Lloyd a vacant piece of land at 25 Oak Knoll Drive, Hamilton, with the contemplation that a single-family dwelling would be constructed on the lot.
The Deed contained the following restrictive covenant:
None of the lands shall be used or occupied by, or let, or sold to Negroes, Asiatics, Bulgarians, Austrians, Russians, Serbs, Rumanians, Turks, Armenians, whether British subjects or not, or foreign-born Italians, Greeks or Jews.
On January 11, 1936, Westdale Properties Limited conveyed to Mabel Ferguson a vacant piece of land at 182 Dromore Crescent, Hamilton, again with the contemplation that a single-family dwelling would be constructed on the lot. That Deed contained the same restrictive covenant, word for word.
There were apparently dozens, if not hundreds of similar-type conveyances at the time, all containing these types of restrictive covenants.
These types of restrictive covenants were not limited to Westdale.
In April 1948, Bernard Wolf, a Jewish owner of a ladies’ wear store in London, Ontario, entered into an Agreement of Purchase and Sale to buy a cottage near Grand Bend.
He hired lawyer Edward Richmond to handle the purchase.
Richmond searched title and discovered a registered restriction/covenant in the 1933 Deed which 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 intention of the covenant was to restrict the use, ownership and enjoyment of the recreational development called Beach O’Pines on the shores of Lake Huron “to persons of the white or Caucasian race” not otherwise excluded by the prohibition.
Richmond wrote to the lawyer for the vendor stating that, as Bernard Wolf was Jewish, it would be a requirement for closing that the restriction be released and that the vendor obtain a court order declaring that the restrictive covenant was void.
Richmond relied upon Re: Drummond Wren,  OR 778,  4 DLR674, which had held that such a covenant was against the public good, and hence contrary to public policy.
Richmond brought what he thought would be a friendly court application to declare the restriction invalid.
Richmond represented Bernard Wolf. John Cartwright, who later became Chief Justice of the Supreme Court of Canada, represented the vendor.
The friendly joint application was opposed by the Beach O’Pines Protective Association.
The court upheld the validity of the restrictive covenant.
Richmond and Cartwright appealed to the Ontario Court of Appeal.
Five justices of the Court of Appeal delivered what leading real estate lawyer Bob Aaron called “one of its all-time worst decisions”, agreeing with the application Judge noting that the restriction was to assure that the residents were “of a class that would get along together”.
The Court of Appeal confined Drummond Wren to its facts.
Chief Justice Robertson said:
“it is in evidence that the Beach O’Pines Development was undertaken, and is organized, as a place where the owners of the several parcels of land comprised in the development may establish summer homes at a place suitable for such purpose, on the eastern shore of Lake Huron, remote from any large communities. It is common knowledge that, in the life usually led at such places, there is much intermingling, in an informal and social way, of the residents and their guests, especially at the beach. That the summer colony should be congenial is of the essence of a pleasant holiday in such circumstances. The purpose of [the] clause here in question is obviously to ensure, in some degree, that the residents are of a class who 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. I suppose that if, instead of saying somewhat bluntly that persons of certain race or blood are excluded, the convent had said that only persons of specified race or blood should be admitted, nothing would have been said about public policy. There is nothing criminal or immoral involved; the public interest is in no way concerned. These people have simply agreed among themselves upon a matter of their own personal concern that affects property of their own in which no one else has an interest. If the law sanctions the restricting by covenant or condition of their individual freedom of alienation of that property by limiting their right of alienations to persons of a particular class, as I think it does, then I know of no principle of public policy against which this is an offence.”
In a separate but concurring judgment, Justice Henderson specifically found that the judgment in Re: Drummond Wren was wrong in law and should not be followed.
“I do know that in thousands of ways there exist restrictions that have always existed, and always will continue to exist, by which people are unable to exercise a choice with respect to their friends and neighbours, and I can think of no reason why a group of people who have adopted a manner of living during two or three months of the year as a summer colony, and who have by agreement among them placed restrictions upon those who may become owners of that colony, are infringing the rights of anybody… the sanctity of contract is a matter of public policy which we should stride to maintain. Justice Hogg said that the Doctrine of public policy should be extended to embrace the case because of the principles expressed and adopted by the General Assembly of the United Nations and other international bodies and charters, and because of opinions expressed in certain judgments in the Supreme Court of the United States.”
Justice Hogg said:
“… the obligations set out in the Untied Nations Charter do not seem to have been made a part of the law of this Country or of this Province by any legislative enactment of either the Dominion Parliament or the Ontario Legislature… this expression of the law, in my view, applies as well to the principles and obligations set forth in international covenants or charters, such as the United Nations Charter, until such time as they should be made a part of the law of the land.”
The Court of Appeal specifically rejected the argument that the restrictive covenant be declared invalid on public policy grounds. It said that it was essential to a pleasant Summer holiday that the members of the “colony” should be congenial and that the purpose of the clause was obviously to assure in some degree that the residents would be of a “class” that got along well together.
At that time, the Canadian Jewish Congress formed a behind-the-scenes group to monitor the proceedings. The committee was headed by Law Professor Bora Laskin, who later became Chief Justice of the Supreme Court of Canada.
The decision of the Ontario Court of Appeal was further appealed to the Supreme Court of Canada: Noble et al v. Alley, 1950 CanLII 13 (SCC),  SCR 64.
Just before the Supreme Court heard the case, Cartwright was appointed to the Court. In his place, J.J. Robinette and W.B. Williston were retained.
K.G. Morden and J.C. Osborne appeared for the Respondents.
The Supreme Court of Canada reversed the decision of the two lower courts and declared the covenant invalid.
Disappointingly, however, instead of ruling that the covenant offended public policy, the court voided the restriction on narrow legal grounds, saying that it was too uncertain to be enforced and could not attach to the land since it did not concern the land itself, but only those who used or occupied it.
This was a mere 70 years ago.
David Thompson practices civil litigation at Scarfone Hawkins LLP. He can be reached at:
Scarfone Hawkins LLP
One James Street South, 14th Floor