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

AuthorEric Tucker
The Malling of Property Law?:
The Toronto Eaton Centre Cases,
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
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
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
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
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.
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

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