Cottages, Covenants, and the Cold War: Galbraith v Madawaska Club

AuthorPhilip Girard
Cottages, Covenants, and the Cold War:
M ofreal propertyis aboutaachment toplaceand soit is
with G albraithvMadawaskaClub. The dispute is set on a rugged, windswept
shore of Georgian Bay that has inspired a nationa l iconography of leaning
Ihavedoneverylilesketchingthiscountr ydoesnotlenditselftoitItis
with scrub and pi ne trees, and not quite paintable.
As environmental historia n Claire Campbell notes, three years later Jackson
would render this “not quite paintable” landscape as TerreSauvage, “one of his
most famous paintings, . . . [one that] signalled a new era in Canadian ar t.
I confess that at the outset of this assignment, my reaction to Galbraithv
Mad awa sk aClu b was similar to Jackson’s to Georgian Bay. Could a case on the
law of restrictive covenants that has never been the subject of a ny extended
academic commentary really be a leading case? Everyone would agree that
NobleandWolfv Alley, where the restrictive covenant was racially and reli
giously exclusive, is a leading case. But the covenant in Galbrait h purported
to exclude only those who were not graduates of the University of Toronto —
apossiblyobjectionablebuthardlyearthshaeringrestrict ionanditsmain
point about the need for the dominant tenement to be easily ascertained in
the deed creating the covenant was not exactly novel. Was my task perhaps
the legal equivalent of “not quite paintable”?
Fortunately the archival record yielded the raw materials for a treatment of
Galbraith that goes beyond the technical requ irements for the running of coven
antsI tprov ided ali le know nba cks tor yoft hestate sup por tedc olon iza tion
ofa nowiconicpart of northern Ontario bya highly selfconscious group
ofu niversitysc holarsin the name of scienticallyinformed conservation
The archival trail a lso suggested themes of enduring interest, including chiv
alry and family honour, the lim its of free alienability, and that quintessential
property law theme of belonging/not belonging, set agai nst a backdrop of
intense Cold War anxiety. And last but not least, the archives disclosed an
interesting cast of characters, par ticularly in the person of our protagonist,
John Stupart Galbraith.
So much for Galbraith itsel f. But what about its impact? Academic inter
pretation of Ga lbraith has r un curiously parallel to academic interpretation of
the Group of Seven’s depiction of Georgian Bay: both are seen as ma nifesta
tions of a nascent Canadian nat ionalism, in the legal and art istic spheres
respectively. Galbraith conrmed at rendin Canadian lawtowardsmak ing
the requirements for the ru nning of restrict ive covenants more precise and
rigoroust han those recog nized in English law This view ts nicely with
a postwar trend of AngloCa nadian legal nationalism but I want to sug
gest another larger theme illustrated by the divergence between English
and Canadian law evident in Galb raith. That is the theme of liberal ism, in
particular what I have called elsewhere facil itative liberalism. When con
fronted with the complex legacy of English real property law which perm it
ted a wide variety of restraints to be imposed on t he use and alienation of
intrusive ones, promoting freer alienabi lity and a more autarkic, individual
istic property law.
A brief primer on restrictive covenants may be in order. A covenant is
the name given to contractual promis es contained in documents under seal,
and burdens another, for example, where the purchaser of land agrees not
to operate a certain kind of business on it in order not to compete with a
similar business r un by the vendor on land retained nearby. The common
law said that the purchaser’s promise could not “run with the land”: i.e., the
purchaser was bound to observe the covenant but if she sold the land, the

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