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Canadian Appellate Court Upholds Restrictive Covenant Barring Sale of Land to Jews

June 14, 1949
See Original Daily Bulletin From This Date

The Ontario Court of Appeals this week-end upheld a restrictive covenant barring the sale of land at a Lake Huron summer resort near here to Jews or Negroes. Attorneys for the appellants — Mrs. Annie Noble, the seller, and Bernard Wolfe, the purchaser — indicated that they will take the matter to the Supreme Court of Canada.

The first decision in a case of this sort, in 1945, completely upheld the right of the owner of such property to sell to a Jew. That decision, by Canadian Justice Keiller Mackay, was utilized by the United States Attorney General in obtaining a decision from the U.S. Supreme Court declaring that restrictive real estate covenants are unenforceable. In this case, Justice Mackay’s principle was reversed by a provincial Supreme Court Justice, from whose decision the current appeal was carried.

In a written statement in behalf of the five-man court, which handed down a unanimous decision, Appellate Chief Justice Robertson rejected the arguments of the appellants that the covenant violated Canadian public policy. "To magnify this innocent and modest effort to establish and maintain a place suitable for a pleasant summer residence into an enterprise that offends against some public policy requires a stronger imagination than I possess," Justice Robertson declared. He added: "There is nothing criminal or immoral involved; the public interest is in no way concerned."

Rabbi Abraham Feinberg, chairman of the Joint public relations committee of the Canadian Jewish Congress, central region, and the B’nai B’rith, commenting on the decision, which he termed as "shocking," stated: "The Court of Appeals excluded the principle of public policy from the restrictive covenant issue, and thus ignored a unique opportunity to affirm the spiritual oneness of Canada. I am convinced that public opinion takes a broader view than the learned Judges."

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