The Malling of Property Law?: The Toronto Eaton Centre Cases, 1984?1987, and the Right to Exclude

• Author: Eric Tucker
• Pages: 303-351

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The Malling of Property Law?:

The Toronto Eaton Centre Cases,

andtheRighttoExclude

EricTucker

Introduction

TTEC TECopeneditsdoorsonFebruaryand

instantly become one of Torontos top aractions drawing in mi llions of

tourists, shoppers, and people who just wanted to hang out.

But it also soon became the site of contests over the ancient action of tres

pass. Cadillac Fairview , TEC’s principal owner, asserted it enjoyed an abso

lute right to exclude people from its private property, while members of the

public, trade unionists, and political activist s claimed that common areas of

the mall werel ike city streets These conict ingc laims were transformed

into legal disputes in three ca ses The rst arose out of a union organiz

ing drive by the Retail, Wholesale and Depart ment Store Union (RWDSU).

RWDSUhad organi zed retail workers at six Eatonsdepartment stores in

southernOntarioandwasaemptingtoorganizeworkersatEatonsagship

store in the TEC. Both Eaton’s and Cadillac Fairview invoked their property

rightsto excludeunionorgan izersfrom their premisesT heunion leda n

unfair labour practices (ULP) complaint with the O ntario Labour Relations

BoardOLRBclaim ingt hatthe exclusion oforgan izersf romthe common

areasofthe mallinterfered withtheir statutoryrightto organizeundert he

LabourRelationsAct (LRA). The OLRB agreed with the RWDSU and its deci

sion was subsequently upheld by the Ontario Court of Appeal. In the second

case, then city council lor Jack Layton was assisting RWDSU by handing out

ﾇﾄﾈEricTucker

leaetstoEatonsemployeesarrivingforworkwhilesta ndingonTECprop

erty. A Cadillac Fairview manager directed Layton to leave and when he

refused to do so, police were called and he was charged under the Trespassto

PropertyAct (TPA). Layton was convicted at tr ial but successfully appealed

based on a claim that the Ch arterof Rightsand Freedoms guarantee of f ree

dom of expression trumped the absolute right of property owners to exclude

under the TPA. The third case also involved a charge under the TPA, but the

defendantwasKeith Medcalfavolunteer inLaytonsoceMedcalfscase

wasunrelated totheorganizingdr iveratherhis casearose outofCadil lac

Fairview’s policy of excluding persons that it found undesirable. Medcalf

defended himself on the ground t hat Cadillac Fairview had entered into

a public access agreement with the City of Toronto to secure planning ap

provals and had no right to exclude. Subsequent litigation between Medcalf

andCadillacFairv iewwaseventuallys eledwithoutconcessionsby either

pa r t y.

FigureAerialPhotographofth eTorontoEatonCentreOctoberTorontoArchivesof

OntarioTEatonCoFondsFUsedwiththepermis sionofSearsCanadaI nc

TheMallingofPropertyLawﾇﾄﾉ

These three cas es are not leading cases in any conventional sen se of the

term, but they are important. First, they provide a glimpse of property law

ontheground sotospeakwhereit arguablymaersmostbutisnotof ten

seen by law students whose training is ce ntred on appeal court judgments.

Second, these case histories i lluminate the processes a nd contingencies t hat

produce or don’t produce leading cases. Finally, these cases reveal a tension

within property law bet ween two models of ownership: an absolutist one

andasociallycontextualizedoneAccordingtotheabsolutistmodelowners

should enjoy complete discretion to decide how property is used and who

isper miedto enterbased entirely on selfinterestOpposed to that view

isthesocia llycontextualized modelwhichrequiresowners totakeintoac

countthe interestsof nonownerswhen making decisionsabout theuse of

and access to property. There is no easy reconciliation of these competing

views within a liberal rights f ramework and the stakes of the debate are

often high, engaging deep concerns over human f reedom and autonomy.

Fornonownerslimitsonwheretheycanbemayentailasignicantrestric

tio non th ei rfr ee dom if the ee ct oft ho sel im it sis to exc lude th emf ro mlo ca

tionsthatare importantormeani ngfultotheirabilitytoreal izetheirgoals

As Jeremy Waldron made clear in the context of the homeless, “No one is

free to perform an action u nless there is somewhere he is free to perform it.”

Yet a limit on property owners’ right to exclude necessarily restricts owners’

freedomandautonomytousetheirpropertytor ealizetheirgoa lsAfterall

John Locke told us the state was called into existence to protect the r ights of

property owners. The resolution of these cases, a nd their legal aftermath,

provide us with a rich empirical case study of the way this rec urring tension

was resolved in a liberal property regime at a particular time and place and

in a particular context.

In order to set the stage for this case study, the chapter begins with a brief

history of the right to exclude and its application to a new property form, the

shopping mall. It then proceeds to the three cases, each begin ning with the

legal and factual background, followed by the actual cas e and its af termath.

Then alsect ionexam inest helegal aftermath oft hecases and providesa

brief summation.

The Right to Exclude and the Rise of the Mall

B  right of propert y as “that sole and

despotic dominion which one man clai ms and exercises over the external