'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 infri ngement was required to abolish the common law property

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

to ban racial discrim ination 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 B ellv McKaya conict between the human rights ofCarl McKaya

prospective tenant, and the ownership rights of Ken neth Bell, a landlord,

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

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

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

inwhichhea nd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t hattheatwasnolongeravailableanunt ruththatprompted

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

ﾅﾆﾄFrankLuceandKarenSchucher

The complaint, alleging discr imination based on race, colour, and place of

origin, proceeded through a n 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 arg ued involved the emerging

eldofadmi nistrativelawin CanadaT heemergenceof anadmin istrative

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

the common law courts and a growing body of admi nistrative tribunals, a

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

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

questions about the relationship between government as legi slator 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 construct ion 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tu rnreected ajur isprudentialcon ictbetween

legal formalism and the more contextual approach th at generally character

izestheCourt scurrentapproachtostatutoryinterpretationInt his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quest ionwas selfcontainedwithi nthe meaning oft heCode Theso

cial context in which thi s issue arose involved a serious concern within

racializedcom munitiesincludingBlack andJewishcom munitiesthatd is

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 huma n

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

and religious discrim ination 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 socia l 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 a nd

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

choosinginsteadanalternativedisputeresolutionmechan ism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 necessar y. Here the legal and social

contextsintersec tedas the conictt hat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 discri mination. The competition between McKay’s social rights

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

tect remained central to bot h the substantive and the procedural aspects of

th is leg acy.

The chapter begins wit h a brief review of the legislative history of the

Codeand the process ofenact inga ntidiscrimin ation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 court s, with particular

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

theywereoperatingThiscas estudyexaminesasign icantcourtchallenge

toOntarioslegislativeapproachtothe issueofdisc riminationa ndtherst

instance in which t he 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discr imination

against racial and religious mi norities. The social activists ca mpaigned for

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

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

andsign santiSemitic andraci strestrict ivecovenants onthe saleof land

anti Semit icandrac istemploy mentprac ticesa ndant iSemit icandra cistex

clusions from public recreational facilities a nd from access to services, such