|‘It was like the Blues Jays winning the World Series,’ says lawyer Alec Richmond in recalling when he learned of the Supreme Court decision 62 years ago.Photo: Paul Legall|
Former Michigan governor George Romney bought a sprawling beachfront property there in 1950.
The two-story structure was a favourite summer vacation spot in the 1960s for his son and current Republican presidential hopeful Mitt.
Mitt continued to visit the property with his own family while he was governor of Massachusetts and there’s speculation it might become a kind of Hyannis Port of the North should he prevail in November.
Today, a recent real estate ad describes the gated enclave, where middle-class cottagers and retirees now rub shoulders with the super rich, as “one of Grand Bend’s most exclusive gated communities.”
Grand Bend real estate broker Kim McCann, who listed the $1.7-million cottage described in the ad, says the exclusiveness of Beach O’ Pines stems from the privacy it offers through electronically controlled barriers and the fact that some of the older properties have been in the same family for generations.
But exclusiveness today seems to mean something quite different than it did when a Detroit resort developer, Frank Slater, built the first 35 cottages in 1933.
On each property deed, there was a covenant stating that the land “could not be sold, used, occupied, rented by any person of the Jewish, Hebrew, semitic, negro race or colored blood.”
“It is the intention and purpose of the grantor to restrict ownership, use, occupation, and enjoyment of the said recreational lands to persons of white or Caucasian race,” the covenant stipulated.
The odious document, which the Supreme Court of Canada struck down in November 1950 in Noble v. Alley, helped pave the way for the human rights and anti-discrimination legislation we take for granted today.
The public first became aware of the restrictive covenant in 1948 when merchant Bernard Wolf agreed to purchase a cottage in Beach O’ Pines from Annie Maude Noble for $6,800.
Wolf was a Russian Jew who had immigrated to Canada with his brother, David, in the 1920s.
Together, they had built up a successful women’s wear shop on Dundas Street in London, Ont., and Bernard was reputedly a millionaire when he agreed to buy the cottage.
Noble was an elderly widow and wasn’t aware of the covenant as her husband had negotiated the purchase of the cottage from Slater’s company in 1933.
Her lawyer Ted Richmond, who was just a few years out of law school, discovered the covenant when he searched the deed. Himself a Jew, Richmond was young and idealistic and appalled by the crass racism. He immediately decided to challenge the validity of the covenant in court.
He didn’t think he’d have much trouble convincing a judge to have it declared null and void.
Alec Richmond, now 88, was a junior partner in his cousin Ted’s London law office when the Noble motion came before Ontario High Court Judge Walter Shroeder in 1948.
Now living in a retirement home, Alec says his cousin enlisted the help of Toronto lawyer John Cartwright, who had successfully challenged the validity of restrictive covenants in another case.
He advanced all of the same arguments before Shroeder but to no avail this time.
Shroeder ruled the covenant was perfectly legal and that people had a right to live with whomever they chose for reasons of “congeniality.”
Cartwright and Ted got a similar hearing when they took the case before the Ontario Court Appeal in January 1949. By this time, the Beach O’ Pines Protective Association, which represented 35 cottagers, had hired a high-powered Toronto lawyer, Kenneth Morden, to represent their interests.
Morden argued the covenant applied only to a limited recreational area during the summer months and didn’t offend public policy. He also submitted that the covenant had helped maintain a congenial relationship among cottagers, about half of whom were Americans.
Alec remembers sitting in the appeal court when Cartwright argued that the covenant was unenforceable because it was impossible to tell who was a Jew and who wasn’t.
At this point, he recalls, Judge William Henderson injected, “Oh, you can tell; you can tell.”
In dismissing the appeal, former chief justice Robert Robertson stated: “The purpose of this clause is to assure that the residents are of a class who will get along together.”
The public backlash was swift and strong, however, from labour leaders, editorialists, and religious spokespeople like Rabbi Abraham Feinberg of the Canadian Jewish Congress.
By this time, the congress was paying for Noble and Wolf’s legal expenses and had enlisted a team of brilliant legal scholars like future Supreme Court chief justice Bora Laskin to help prepare an appeal before Canada’s highest court.
Before the case went ahead, however, Cartwright became a judge of the Supreme Court. Noted lawyer John J. Robinette, 43, replaced him.
In a 2003 biography of Robinette, former appeal court justice George D. Finlayson said the courts had shown “an astonishing lack of interest in the public policy argument raised by Wolf and Noble, that racial and religious discrimination was anathema to a civilized society.”
The courts at all levels, he suggested, were focusing more on freedom association.
In winning the appeal, Robinette accordingly played down the public policy argument while stressing that the odious covenant was unenforceable because the language was too vague to determine who belonged to the prohibited classes.
The top court agreed and struck down the covenant.
For the congress, however, it was a dubious victory because the top court hadn’t directly condemned the racist nature of the covenant, something it considered the “burning public policy issue.”
Alec, meanwhile, remembers the jubilation he and his cousin Ted felt when they got a telephone call about the top court’s decision. They ran out of the office down Dundas Street to Wolf’s dress shop yelling: “We won, we won.”
“It was like the Blues Jays winning the World Series,” he recalls 62 years later.
Bob Sharen, 73, a real estate broker and former reeve of Grand Bend, says the Noble case is still a thorny subject among Beach O’ Pines residents.
“They don’t like that being talked about,” he says. “They think it reflects badly on the community. That was then. This is now. It’s a lot different now.”
Sharen says the Romney family, which is still in the Grand Bend phone book under G. Romney, has kept a low profile in the community.
He never heard anything negative about Mitt during his teenage years at Beach O’ Pines. To Sharen, that suggests he must have been a well-behaved adolescent.
For more, see "A reminder of lawyers' valiant contributions."