Professional Status and the Freedom to Contract: Toward a Common Law Duty of Non-Discrimination

Canadian Journal of Law and Jurisprudence

Volumn 14, Issue 1, 2001, Pages 79-132

  Reichman, Amnon ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85007560460     PISSN: 08418209     EISSN: 20564260     Source Type: Journal    
DOI: 10.1017/S0841820900002381     Document Type: Review

References (79)

1. Franklin v. Evans (1924), 55 O.L.R. 349 [hereinafter Franklin].
2. Christie v. York Corp., [1940] S.C.R. 139 at 142, per Rinfret C.J. [hereinafter Christie).
3. For an historical account, see W. Tarnopolsky, W.F. Pentney, Discrimination and the Law (Scarborough, ON: Carswell, 1994) ch. 1,2.
4. S.A. 1990, c. 23 [hereinafter IRPA]; Human Rights Code, R.S.O. 1990, c. H. 19.
5. Bhadauria v. The Board of Governors of the Seneca College of Applied Arts and Technology, [1981] 2 S.C.R. 181 [hereinafter Bhadauria]
6. Ploofv. Putnam, 81 Vt. 471,71 Atl.A. 188 (1908), where the owner of a private dock was responsible in damages for unmooring a vessel which was docked without permission, thereby permitting it to drift upon shore;
7. Vincent v. Lake Erie Transportation Co., 124 N.W. 222 (Minn. S.C. 1910)
8. I. A. Hunter, "Human Rights Legislation in Canada: Its Origin, Development and Interpretation" (1976) 15 U.W.O. L. Rev. 21 at 23]
9. H.L. Molot, "The Duty of Business to Serve the Public: Analogy to the Innkeeper's Obligation" (1968) 46
10. CM. Haar, D. Wm. Fessler, The Wrong Side of the Tracks: A Revolutionary Rediscovery of the Common Law Tradition of Fairness in the Struggle Against Inequality (New York: Simon Schuster, 1986
11. D. Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999
12. M. Taggart, "Public Utilities and Public Law" in PA. Joseph, ed., Essays on the Constitution (Wellington, NZ: Brooker's, 1995) [hereinafter "Public Utilities and Public Law
13. D. Friedman, D. Barak-Erez, eds., Human Rights in Private Law (Oxford: Hart Publishing) [forthcoming].
14. Vriend v. Alberta, [1998] 1 S.C.R. 493 [hereinafter Vriend].
15. IRPA, supra note 4. The Human Rights, Citizenship and Multiculturalism Act, 1980, R.S.A. 1980
16. A. Reichman, Taking Constitutional Structures Seriously (S.J.D. dissertation, University of Toronto, 2000)
17. R.S. Echlin, M.L.O. Certosimo, Just Cause: The Law of Summary Dismissal in Canada, looseleaf (Aurora, ON: Canada Law Book, 1999) ch. 16;
18. D. Harris, Wrongful Dismissal, looseleaf (Scarborough, ON: Carswell, 1999) at 3-58).
19. Elsewhere I suggest that even if Mr. Vriend had been given adequate notice, the College could be held under an obligation to demonstrate that it did not consider group-based characteristics that are irrelevant to the nature of the position (See Reichman, at ch. 3).
20. The fact that in Mr. Vriend's case the College could have, in all likelihood, demonstrated that the sexual orientation of a teacher could be relevant for a Christian institution, is the exception
21. F. C. DeCoste, "The Separation of State Powers in Liberal Polity: Vriend v. Alberta" Case Comment (1999) 44 McGill L.J. 231;
22. T. Macklem, "Vriend v. Alberta: Making the Private Public" Case Comment (1999) 44 McGill L.J. 197;
23. Reichman, supra note 14 at ch. 3. The problematic nature of Vriend is also reflected in the debate that followed Vriend in the Alberta legislature
24. I.B. McKenna "A Common Law Action for Discrimination in Job Applications" (1982) 60 Can. Bar Rev. 122;
25. H. Kopyto, "The Bhadauria Case: The Denial of the Right to Sue for Discrimination" (1981) 7 Queen's L.J. 144;
26. LA. Hunter, "The Stillborn Tort of Discrimination: Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology, 37N.R. 455, 124 D.L.R. (3d) 193 (S.C.C. 1981)" (1982
27. Loew 's Montreal Theatres Ltd. v. Reynolds (1921), 30 Que. K.B 459 [hereinafter Loew's].
28. W. Tarnopolsky, W.F. Pentney, supra note 3
29. Wyld v. Pickford (1841), 8 M.& W. 443, 151 E.R. 1113.
30. He may also refuse on the ground that he has no room in his vehicle, or no convenience for carrying goods in safety: Jackson, supra note 57;
31. Batson v. Donovan (1820), 4 B.& Aid. 21 at 32, 106 E.R. 846 at 850;
32. Riley v. Home (1828), 5 Bing. 217 at 220-21, 130 E.R. 1044 at 1045;
33. Spillers and Bakers Ltd. v. Great Western Railway Co., [1911] 1 K.B. 386 at 392.
34. Ld. Raym. 646 at 652,91 E.R. 1332 at 1335. If the country through which the carrier's vehicle has to pass is in so disturbed a state that the goods cannot be carried safely, he may lawfully refuse to accept them:
35. Edwards v. Sherratt (1801), 1 East 604, 102-233
36. Mercury Energy Ltd. v. Electricity Corporation of New Zealand Ltd., [1994] 2 N.Z.L.R. 385 (J.C.P.C.) (sub nom. Auckland Electric Power Board v. Electricity
37. Corporation of New Zealand Ltd.), [1994] 1 N.Z.L.R. 551 (C.A.).
38. N.Z.L.R. 1709 (C.A.) [hereinafter State Advances] (finding a duty to supply water to tenants put in by mortgagee despite outstanding debts by defaulting and dispossessed
39. mortgagors); Marlborough v. County Council and Blenheim Borough Council v.
40. MacFarlane(unreported, 19 Dec. 1985 (C.A.)) decision appealed: [1984] 4 N.Z.L.R. 198 (refusing to strike down an application to review failure to supply water to property just outside water supply area;
41. The County Council eventually extended supply); Wairoa Electric-Power Board v. Wairoa Borough, [1937] N.Z.L.R. 211 (S.C.) 1869);
42. Messenger v. Pennsylvania Railroad Co., 37 N.J.L. 531 at 536-37 (1874)
43. State ex rel Webster v. Nebraska Telephone Co., 17 Neb. 126 (1885).
44. B. Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 125-26.
45. Slaughterhouse cases (Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522 (1923)) used one single justification.
46. E. Steed, "When Yes Means No: An Examination of the Distinction Between Genuine Consent and Acquiescence" (LL.M Thesis, University of Toronto Law School, 1997) [unpublished].
47. D.S. Bogen, "The Innkeeper's Tale: The Legal Development of a Public Calling" (1996) Utah
48. L. Rev. 51
49. P. Craig, "Ultra Vires and the Foundations of Judicial Review" (1998) 57 Cambridge L.J. 63;
50. C. Forsyth, "Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, The Sovereignty of Parliament and Judicial Review" (1996) 55 Cambridge L.J. 122;
51. D. Oliver, "Is the Ultra Vires Rule the Basis of Judicial Review" [1997] Pub. L. 543).
52. P.W. Hogg, "The Dolphin Delivery Case: The Application of the Charter to Private Action" Case Comment (1986) 51 Sask. L. Rev. 273).
53. T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown and Company, 1868), as cited in Haar, Fessler, supra note 9 at 202.
54. W.F. Foster, "The Doctrine of the United States Supreme Court of Property Affected by a Public Interest, and its Tendencies" (1895
55. J. Habermas, Legitimation Crisis (Boston: Beacon Press, 1975);
56. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996).
57. A common Carrier exercises a public employment," states Halsbury's Laws of England, supra note 54 at para. 441.
58. H. Bracton, On The Laws and Customs of England (c. 1250), trans. S.E. Thome (Cambridge, MA: Harvard University Press 1968)
59. Keilway 50, PI. 4, infra note 209. Some have claimed that the distinction originates in a monopoly (see Wyman, supra note 108).
60. Others try to distinguish the case dealing with a carpenter by suggesting that since the blacksmith sits at the intersection, he is already at work, holding himself out as available, while the carpenter assumes his obligation as a private person.
61. Thus, the carpenter transacts via a full contract, rather than as a professional who follows a standard code of business (see Adler, supra note 50 at n. 76).
62. The reading suggested here identifies a carpenter as a different type of a professional, one in which personal creativity and art play an important role, and consequently the interaction
63. between the customer and the provider is meaningful, in an authentic way, to the performance of the service and to the individual engaged in the transaction.
64. As pointed out to me by Professor Ernie Weinrib, the division between associational and non-associational vocations is consistent
65. Hegel's Philosophy of Right, trans. T.M. Knox (Oxford: Oxford University Press, 1967) at para. 35).
66. Falcone v. Middlesex County Medical Society, 34 NJ. 582, 170 A.2d 791 (1961) [hereinafter Falcone];
67. Pinsker v. Pacific Coast Soc. of Orthodontists, 1 Cal.3d 160 at 166,460 P.2d 495 at 499 (1 Burdick, supra note 49 at 516:
68. Cf. Brillinger and the Canadian Lesbian and Gay Archives v. Brockie, (29 September 1999; 24
69. Cf. A.T. Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life (Princeton, NJ: Princeton University Press, 1999).
70. R.A. Epstein, Forbidden Grounds, The Case Against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992).
71. Oliver, Common Values in Public and Private Law; Oliver, Common Values and the Public-Private Divide, supra note 9.
72. W. Holmes, The Common Law (Cambridge, MA: Belknap Press of Harvard University, 1967 (lsted. by Little Brown, 1881)).
73. Sealey v. Tandy, [1902] 1 K.B. 296). Had this been an inn, the owner would have had to wait until disorder actually started.
74. U.S. jurisprudence suggests that the racial identity of the customer may not be such a relevant consideration ("the colored man, under the common law of this State, is entitled to the same rights and privileges in public places as white man"
75. Ferguson v. Gies, 82 Mich. 358 at 365, 46 N.W 718 at 720 (1890)). In Canada
76. Bosse' J. left the question open in Sparrow, supra note 109 at 383
77. Martin J. in Loew's, supra note 42 at 466 commented that it might be unlawful to exclude persons of colour from the equal enjoyment of all rights and privileges in all places of public amusement. (It should be noted that
78. Martin J. distinguished between total exclusion and using group-based characteristics to assign seating).
79. As distinguished from the law regarding common callings and monopolies, the business may decide to 'close up shop', and it is not clear whether it should be subjected to the 'reasonable price' requirement (provided price is not a proxy for group-based discrimination, i.e., charging higher prices to minorities) or to the liability to guard customers' goods.