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

• Author: Philip Girard
• Pages: 93-117

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Cottages, Covenants, and the Cold War:

GalbraithvMadawaskaClub

PhilipGirard

Introduction

Mofrealpropertyisaboutaachmenttoplaceandsoitis

with GalbraithvMadawaskaClub. The dispute is set on a rugged, windswept

shore of Georgian Bay that has inspired a national iconography of leaning

pinesancientgraniteandwildwaterYetwhenAYJacksonrsttravelledto

theareainhemadetheseobservations

IhavedoneverylilesketchingthiscountrydoesnotlenditselftoitItis

agreatcountrytohaveaholidayinbutitsnothingbutlileislandscovered

with scrub and pi ne trees, and not quite paintable.

As environmental historian 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

MadawaskaClub was similar to Jackson’s to Georgian Bay. Could a case on the

law of restrictive covenants that has never been the subject of any 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 Galbraith purported

to exclude only those who were not graduates of the University of Toronto —

apossiblyobjectionablebuthardlyearthshaeringrestrictionanditsmain

ﾍﾈPhilipGirard

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Itprovidedalileknownbackstoryofthestatesupportedcolonization

ofanowiconicpartofnorthernOntariobyahighlyselfconsciousgroup

ofuniversityscholars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 against a backdrop of

intense Cold War anxiety. And last but not least, the archives disclosed an

interesting cast of characters, particularly in the person of our protagonist,

John Stupart Galbraith.

So much for Galbraith itself. But what about its impact? Academic inter

pretation of Galbraith has r un curiously parallel to academic interpretation of

the Group of Seven’s depiction of Georgian Bay: both are seen as manifesta

tions of a nascent Canadian nationalism, in the legal and artistic spheres

respectively. GalbraithconrmedatrendinCanadianlawtowardsmaking

the requirements for the running of restrictive 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 Galbraith. That is the theme of liberalism, in

particular what I have called elsewhere facilitative 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 the use and alienation of

propertytheSupremeCourtofCanadahastendedtowhiledownthemost

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,

whichdeedsoflandusuallyareTypicallysuchapromisebenetsoneparty

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 run 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