'The right to discriminate': Kenneth Bell versus Carl McKay and the Ontario Human Rights Commission1

• Author: Frank Luce and Karen Schucher
• Pages: 119-158

ﾅﾅﾍ

“The right to discriminate”:

Kenneth Bell versus Carl McKay and

the Ontario Human Rights Commissionﾅ

FrankLuceandKarenSchucher

Introduction

Hinf ringes on common law property rights in

order to advance social justice.From the perspective of Ontario’s Black popu

lation, such infringement was required to abolish the common law property

rights of slaveholders in nineteenth century O ntario, and was again required

to ban racial discrimination in employment, services, and housing in the

twentiethcenturyThisconictbetweenhumanrightsandpropertyrights

was considered by the Supreme Court of Canada when Ontario’s legislative

approach to discrimination met a n early challenge in the common law courts.

The case in question, cited as BellvMcKay, was decided on a point of law on

which the Supreme Court recently reversed itself, although the soc ial impact

of its original decision can not be so easily reversed.

In BellvMcKayaconictbetweenthehumanrightsofCarlMcKaya

prospective tenant, and the ownership rights of Kenneth Bell, a landlord,

played out in the context of the statutory procedure set out in the Ontario

HumanRightsCode (“Code”) to process human rights complaints. Bell had

advertisedaatforrentonthesecondandthirdoorofahouseheowned

inwhichheandhiswifeoccupiedthemainoorWhenMcKayselfstyled

as “a Black man from Jamaica,” appeared at his door as a potential tenant,

Belltoldhimthattheatwasnolongeravailableanuntruththatprompted

McKay to complain to the Ontario Human Rights Commission (“OHRC”).

ﾅﾆﾄFrankLuceandKarenSchucher

The complaint, alleging discrimination based on race, colour, and place of

origin, proceeded through an internal investigation and on to a Board of

Inquiry, chaired by Walter Tarnopolsky. However, the inquiry was halted

when Bell’s lawyer served a notice of application for prohibition and pro

ceeded to challenge the juri sdiction of the Board of Inquiry in a common law

court. The application was initially granted, t hen overturned by t he Ontario

Court of Appeal, and ultimately reinstated by the Supreme Court of Canada.

The legal context in which the case was argued involved the emerging

eldofadministrativelawinCanadaTheemergenceofanadministrative

law model for dispute resolutionled to a ju risdictional conict between

the common law courts and a growing body of administrative tribunals, a

conictinwhichthecourtswereoftendepictedasthedefenderofindivid

ualrightsagainstgovernmentintrusionThisneweldoflawgaveriseto

questions about the relationship between government as legislator and the

courts, as well as the relationship between the government’s administrative

agencies and the courts. In th is context the BellvMcKaycasewassignicant

because it consolidated the construction of the legal doctrine of “jurisdic

tional fact” at the level of the Supreme Court of Canada. The Court’s ap

proachtothisdoctrineinturnreectedajurisprudentialconictbetween

legal formalism and the more contextual approach that generally character

izestheCourtscurrentapproachtostatutoryinterpretationInthiscontext

the case represents a high water mark for the formal ist approach.

The “jurisdictional fact” at issue in Bell v McKay was whether the at

inquestionwasselfcontainedwithinthemeaningoftheCodeTheso

cial context in which this issue arose involved a serious concern within

racializedcommunitiesincludingBlackandJewishcommunitiesthatdis

crimination i n the housing market was preventing them from renting decent

housing. It also involved a social movement that demanded compliance with

the UniversalDeclaration of HumanRights’ proclamation “ . . . that human

rights should be protected by the rule of law,” to bring an end to the racial

and religious discrimination that the common law tolerated. Confronting

thiscommonlawtraditionsocialactivistsdemandedarmativelegisla

tive action” to promote human rights and combat discrimin ation.

WhentheOHRCwasestablishedintheConservativegovernment

of the day turned to one of the social movement activists, Dr. Daniel Graf

tonHillIIItoserveasitsrstdirectorAsahumanrightsactivistHillwas

aware of the relative strength of the movement’s opponents who relied on

the common law’s traditional protection of their property rights. In design

Therighttodiscriminateﾅﾆﾅ

ing the OHRC procedure for processing human rights complaints, Hill and

his colleagues sought to avoid the interference of the common law courts,

choosinginsteadanalternativedisputeresolutionmechanismthatreected

the duality that they read into the OHRC’s statutory mandate, that is, to con

ciliate if possible and to litigate only if necessary. Here the legal and social

contextsintersectedastheconictthatplayedoutinBellvMcKay was as

much focused on Bell’s procedural rights as it was on McKay’s right to be

free from discrimination. The competition between McKay’s social rights

and the property rights that the common law courts were designed to pro

tect remained central to both the substantive and the procedural aspects of

th is leg acy.

The chapter begins with a brief review of the legislative history of the

Codeandtheprocessofenactingantidiscriminationstatutesinresponse

to the reform strategies of the social movement. This rev iew pays particular

aentiontotheevolutionofstatutoryprovisionsthatprohibiteddiscrimina

tion in housing up to the time of McKay’s complaint and the evolution of

the procedural response adopted by the OHRC. The chapter then follows

the legal path taken by McKayscomplaint as it proceeded rst th rough

the OHRC’s internal process and then through the courts, with particular

aentiontothelegalactorstheirargumentsandthesocialcontextinwhich

theywereoperatingThiscasestudyexaminesasignicantcourtchallenge

toOntarioslegislativeapproachtotheissueofdiscriminationandtherst

instance in which the Supreme Court of Canada was called upon to inter

pret and apply a Canadian human rights statute. The art icle concludes with

somereectionsonthelegacyofthecaseitselfthesocialmovementandthe

underlying competition between social a nd property rights.

The Ontario Human Rights Code and Protection

Against Discrimination in Rental Housing

OHRCevolved from “fair practices” legislation that

socialactivistsfoughtforinthesandstoaddressdiscrimination

against racial and religious minorities. The social activists campaigned for

armativelegislativeactioninresponsetospecicformsofdiscrimination

including antiSemitic and racist speeches, publications, advertisements,

andsignsantiSemiticandracistrestrictivecovenantsonthesaleofland

antiSemiticandracistemploymentpracticesandantiSemiticandracistex

clusions from public recreational facilities and from access to services, such