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

AuthorFrank Luce and Karen Schucher
“The right to discriminate”:
Kenneth Bell versus Carl McKay and
the Ontario Human Rights Commission
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”).
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
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
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
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
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
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

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