McGILL LAW JOURNAL
[Vol. 13
Gooding v. Edlow Investment Corp:
Ethnocentric Discrimination and Freedom of Contract
In a Changing Social Climate
Laurence Murray TANNY,*
A. Introduction
At the very heart of any legal order there is a conflict between
two diametrically opposite, but nevertheless essential, values. These
values are the autonomy of the human will, and the necessity to
subjugate that will to the demands of public order. The conflict
between them forms the matrix of our legal system, and the laws
which emerge are not only an indication of man’s relative capacities
for justice and injustice ,but indicate as well what the concept of
“Justice” means at any given time.
The problem which we will discuss in this paper is whether ethno-
centric discrimination is still a justifiable basis for refusing to enter
into a contractual agreement. This problem is an excellent example
of how these two basically incompatible values have resulted in a
conflict of such dynamism and importance that bench, bar and the
legislature itself have seen fit to try and bring the law more in step
with present day social needs. Our purpose is to examine how these
needs are being met.
B. “Chaque propri6taire est maitre chez lui”
It is a basic postulate of the Civil Law that anyone having the
necessary capacity is free either to enter into a contract or to refuse
to enter into that contract. As a corollary, it is generally felt that
the offeror may attach whatever conditions he wishes to the offer,
as long as these conditions do not contravene public order and good
morals (Art. 13 C.C.) or any mandatory provision of law. What con-
cerns us here is that in general the courts have upheld the validity
of conditions which were based on ethnocentric prejudice, e.g. dis-
crimination based on colour, race, language, religion or even economic
status.
* Of the junior board of editors.
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GOODING v. EDLOW INVESTMENT CORP.
187
One of the first cases on this point was Sparrow V. Johnson,1 and,
at first, that judgment seemed to bode ill for discriminatory conditions.
One of the incidental issues in that case was whether the defendant,
a theater manager, could prohibit the use of certain portions of the
theater to coloured persons. On this point Archibald, J. said:
“This position cannot be maintained. It would perhaps be trite to speak of
slavery in this connection, and yet the regulation in question is undoubtedly
a survival of prejudice created by the system of negro slavery.” 2
and later,
“Our constitution is and always has been essentially democratic, and it does
not admit of distinctions of races and classes. All men are equal before the
law and each has equal rights as a member of the community.” 3
But this judgment, although obiter in that a valid contract had
already been entered into between plaintiff and defendant, was years
ahead of its time as illustrated by Lamothe, C.J.’s view in the case
of Loew’s Montreal Theatre Ltd. v. Reynolds.4 Although the situation
was somewhat factually different from the Sparrow case, the theore-
tical question was the same. The Chief Justice answered the question
thus :
“Aucune loi, dans notre province, n’interdit aux propri~taires de th6atres de
faire une r~gle semblable… alors, chaque propri6taire est maitre chez lui;
il peut A son gr6 6tablir toutes r6gles non contraires aux bonnes moeurs et
Sl’ordre public.”G
The essential phrase in this judgment is the reference to public order
and good morals, for, as we shall discover, the very same criterion
is used today.
The ratio decidendi of Lamothe, C.J. was consecrated by the Court
of King’s Bench and the Supreme Court in what was perhaps the
most celebrated case on the topic of discrimination, namely, Christie
V. The Yorkh Corporation. 6 In that case, Christie, a negro, was refused
beer in a tavern on the sole grounds of his being coloured. He claimed
damages for pain, suffering and humiliation caused in the presence
of the other customers, and the suit was taken under both contract
and delict.
Christie claimed, first of all, that the tavern had issued a general
invitation to the public to buy beer, and that he had accepted the
1 (1899) 15 C.S. 104, (1899) 8 B.R. 379.
2 (1899) 15 C.S. 104, at p. 107.
3 Ibid., at p. 110.
4 (1921) 30 B.R. 459.
5 Ibid., at pp. 460, 461.
0 (1938)
65 B.R. 104, (1940) S.C.R. 139.
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offer, thus completing the contract. Christie’s action was maintained
in the Superior Court, but on entirely different grounds, and Bond, J.,
in the Court of King’s Bench, discussed the matter of contract as
follows:
“There is no doubt, I should say, that there was an implied if not an express
invitation on the part of the appellant, – but I have been unable to find
any legal ground or justification for the contention that the appellant was
not at liberty to attach conditions to its offer or to restrict it… In the
absence of any special law, I would say that a merchant or trader is free
to carry on his business in the manner that he conceives to be best for that
business.” 7
Let us keep in mind the important words, “in the absence of any
special law”, for they are just as significant in 1966 as they were in
1940.
As to the claim under delict, that same judge remarked:
“In order to invoke Art. 1053 C.C., the respondent must show some breach
of a duty or fault on the part of the appellant; and I am unable to find any
such wrong committed. If… there was no duty cast by law upon the appellant
to serve the respondent, then its refusal to do so is an innocent act.” 8
The Supreme Court upheld this decision, and for many years there was
no real change in the law. The scales were clearly balanced in favour
of the “Autonomous Will”.
C. “Chaque propri~taire n’est plus i’absolue maitre chez lui”
It is an asset, if not a necessity, of the Civil Law that its system of
interlocking principles is flexible enough to admit changes, even
radical changes, when the situation demands it, and in
the next
twenty years after Christie v. The York Corporation was decided, the
pendulum began to swing in the opposite direction, i.e. people began
to become more aware of the negative aspects of discrimination.
Whether this was due to the atrocities committed against minorities
in World War II, or to the fervour accompanying the signing of the
U.N. Declaration of the Rights of Man 9 or to the racial trouble in the
7 (1938) 65 B.R. 104, at p. 107.
8Ibid., pp. 111, 112.
9 On this point see Re Drummond Wren (1945) 4 D.L.R. 675. This was an
Ontario case in which the issue was whether a restrictive covenant on land to
the effect that the “land not be sold to Jews, or to persons of objectionable
nationality” was valid. Mackay, J., in holding it invalid, said:
“First and of profound significance is the recent San Francisco Charter to
which Canada was a signatory, and which the Dominion Parliament has now
ratified … Under Articles 1 and 55 of this Charter, Canada is pledged to
promote “universal respect for, and observance of, human rights and funda-
mental freedoms for all without distinction as to race, sex, language or
religion.””
When, however, the same type of situation occurred a few years later in the
case of Noble and Wolfe v. Alley, 1951 S.C.R. 64, the Supreme Court came to
the same conclusion as Mackay J. but did not even mention his ration decidcnti.
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GOODING v. EDLOW INVESTMENT CORP.
189
United States, the one certain fact was that the “Autonomous Will”,
once considered to be stainless and pure had become somewhat tarnish-
ed and ugly, and it was recognized that the will was capable of
destructive abuse even when acting in virtue of a right.
This changing social climate was, at length, reflected in legislation
and jurisprudence. In two important Acts, the Quebec Legislature
sharply restricted the right to discriminate. The first step was taken
in the Hotels Act,’0 section 8 of which states:
“No owner or keeper of a hotel, restaurant or camping ground shall, directly
or through his agent or a third party :
(a) Refuse to provide any person or class of persons with lodging, food or
any other service offered to the public in the establishment, or
(b) Exercise any discrimination to the detriment of any person or class of
persons as regards lodging, food or any other service offered to the
public in the establishment, because of the race, belief, colour, nationality,
ethnic origin or place of birth of such person or class of persons.”
Another important step was taken in the Employment Discrimi-
nation Act,” where section 2 provides that:
“No employer or person acting on behalf of an employer or employer’s
association shall resort to discrimination in hiring, promoting, laying off or
dismissing an employee or in the conditions of his employment.”
But even more significant than the Acts of the Legislature is the
recent decision of Gooding v. Edlow Investment Corp.12 In that case,
the agent of the defendant had entered into a telephone agreement
with the plaintiff to lease an apartment to her. Pursuant to this
conservation, he made an appointment with her to sign the lease which
he had himself already signed. When, however, the defendant’s agent
discovered that the plaintiff was coloured, he refused to allow her to
sign the lease and, in the presence of her friend, he told her it was
because she was coloured.
Nadeau, J., recently appointed to the bench, gave damages for
breach of contract, but more significant is his following judgment:
“Consid~rant que toute discrimination raciale est ill~gale parce que contraire
Sl’ordre public et aux bonnes moeurs;
Considdrant que le geste discriminatoire pos6 par la d~fenderesse constitue
une violation des r~gles couramment admises de la morale, applicables A la
10 (11-12 Eliz. II, c. 40), R.S.Q. 1964, c. 205.
11 (12-13 Eliz. II, c. 46), R.S.Q. 1964, c. 142.
12 [1966] C.S. 436.
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vie en soci6t6; qu’il est aussi de la cat4gorie des actes attentatoires 4 l’ordre
public, 6tant de nature h troubler la paix dans la socit6;
Considrant qu’un tel acte de discrimination pos6 dans les circonstances expo-
ses plus haut constitue une faute civile d~lictuelle, dont la d6fenderesse doit
r6pondre.”
For these reasons, Nadeau, J. awarded plaintiff $225.45 damages for
breach of contract and $300.00 damages for the delict.
Our task is now to determine what weight to attach to this judg-
ment, i.e. where does it stand in the line of jurisprudence and what
hope would Christie have today, if the same situation occurred.
It is the guarded opinion of the author that all the ramifications
of the controversy concerning discrimination and freedom of contract
converge in Gooding V. Edlow Inv. Corp., and that this case has the
effect of overruling Christie v. York Corp. The following reasons are
submitted for this view:
(a) Under Contract
At first glance, the fact that plaintiff and defendant had already
entered into a valid contract of lease seems to render Nadeau, J’s.
remarks obiter as far as the issue of contract is concerned, but, in
fact, this judgment strikes right at the very heart of the issue; Lamo-
the, C.J.13 and Bond, J.,14 as we recall, spoke of the freedom of the
trader to attach whatever conditions he wished to the offer, as long
as no law was contravened. Now, Nadeau, J. has flatly stated that
“toute discrimination raciale est ill6gale parce que contraire , l’ordre
public et aux bonnes moeurs.” Consequently, any condition which
is based on discrimination and which is attached to an offer will be
illegal as contravening the law of public order and good morals, or,
to put it more exactly, the condition will be illegal insofar as Nadeau
J’s. interpretation of public order and good morals is concerned.
(b) Under Delict
Bond J’s. decision on the claim under Art. 1053 C.C. was based on
the absence of any duty imposed on the defendant to serve Christie.i,
But Nadeau, J’s. judgment shows that such a duty does today exist,
i.e., according to the law of public order and good morals everyone
has the duty to respect the person and personality of his fellows.
13 Supra p. 187.
14Supra p. 188.
16 Supra p. 188.
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GOODING v. EDLOW INVESTMENT CORP.
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It might be immediately pointed out that the importance of this
case has been greatly exaggerated, because it rests on the rather
fragile basis of Nadeau, J’s. personal interpretation of public order
and good morals. To this, I answer that in view of the general social
antipathy for discrimination, as reflected so clearly in recent legis-
lation, Nadeau J’s. judgment is more than just a personal crusade
against prejudice –
it, too, reflects the dynamic growth of the sphere
of public order.
