Jane Thomson (University of New Brunswick, Faculty of Law) & Ashleigh Keall (University of Sussex Law School) have posted Silent All These Years: Public Policy, Expressive Harm, and the Legacy of Christie v York Corporation (J Thomson and A Keall, "Silent all these years: Public policy, expressive harm and the legacy of Christie v York Corporation" (2022) UNBLJ (Forthcoming)) on SSRN. Here is the abstract:
In 1939 the Supreme Court of Canada released its now infamous decision in Christie v York, in which it declined to find that a Montreal tavern's "whites only" policy was contrary to public policy.
This paper reviews Christie in detail, explaining how the Court could and should have found that the discrimination at issue contravened the doctrine of public policy. It also examines each subsequent opportunity the Supreme Court has had to reverse the Christie decision, and how it has consistently failed to do so.
While human rights laws in Canada would now prohibit the treatment Fred Christie received at the York Tavern, there are areas of the private law that remain insulated from such legislation. In those areas, namely private wills, trusts, and scholarships, the doctrine of public policy is used by Canadian courts to remedy discrimination by invalidating otherwise legal operations in private law that harm the public interest.
The substantive harms of Christie have been well documented by other scholars. The primary focus of this paper is on the expressive harm caused by that decision and by the Supreme Court’s subsequent avoidance of the question of public policy’s application to discrimination in the private law. “Expressive harm” is the injury stemming from the expression of a negative or inappropriate attitude that is distinct from its subsequent, material consequences. The harm lies in the expression itself and the message it sends.
In this paper, we argue that the expressive harm from the Supreme Court’s judgment in Christie, which condoned and legitimized racist behaviour by private establishments in Canada, is rivalled by the Court’s subsequent failures to overturn that decision or to engage with the issue of discrimination and public policy at all. When faced with future cases concerning discrimination and the private law, the Court must take the opportunity to acknowledge that the discrimination faced by Fred Christie in 1937 was contrary to public policy then, just as it is today.