“Before Justice Schroeder of the Ontario High Court, Mr. Morden argued that over the years since it had been formed in 1935, the Beach O’ Pines Protective Association had nurtured a congenial summer community among its members. It had paved and maintained the roads, provided police and fire protection, and undertaken substantial general improvement to the property, to the effect that the Beach had become a desirable location whose value would be diminished by any change to its character. This positive development had occurred under the protective shield of the restrictions contained in the covenant, which each owner had been aware of at time of purchase. Very few changes in ownership had taken place, so that it was a compatible and intimate group of citizens who in 1948 sought to maintain their enjoyment and the value of their property.” (207)

In June, 1948 — one month after the U.S. Supreme Court had ruled against the enforcement of racial restrictive covenants in Shelley v. Kraemer — the Ontario High Court upheld the covenant on all counts. The ruling held that the precedent of DRUMMOND WREN did not apply as only resort property and not a permanent residence was at stake; that there was enough certainty about the meaning of a Jew to undermine the concern about “uncertainty”; and freedom of alienation was not wholly circumscribed (non-Jews could acquire it) and thus was not affected enough to sue.

Encouraged by the Canadian Jewish Congress, Wolf filed an appeal of the case with the Ontario Court of Appeal in late June 1948, and was heard in January 1949. The proceedings were similar to those that had occurred at the lower court: the judges displayed support for the Association. The Chief Justice of the court wrote of the covenant that

‘The purpose of clause (f) here in question is obviously to assure, in some degree, that the residents are of a class who will get along well together. 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…There is nothing criminal or immoral involved; the public interest is in no way concerned.” (216-217)

He, like the judges in the lower court, asserted that laws would not change the relationships of individuals, and that natural evolution has to do this.

Public reaction to the Appeals Court decision was strong. Rabbi Abraham Feinberg of the Canadian Jewish Congress issued the statement:

“Canadian democracy may never grow beyond a collection of isolated racial units, roped off from one another by a legalized iron curtain of snobbery and barred from the mutual acquaintance and understanding which alone can develop internal unity.” (218)

The Association for Civil Liberties also issued a critical statement, and both national labor organizations attacked the judgment. (218) A poll on the willingness of Canadians to sign a covenant showed 19 percent of Canadians willing to sign, 13 percent undecided and 68 percent not willing to sign. Newspapers such as THE HAMILTON NEWS and the TORONTO STAR editorialized against the judgment. However, the GLOBE and MAIL endorsed the decision, in part citing the argument that legislation cannot counter prejudice effectively.

In June, 1949, the Canadian Jewish Congress decided to appeal to the Canadian Supreme Court.(219)[3] Walker describes how the atmosphere in the Supreme Court was very different from those in the lower courts.

“…when [Morden] suggested that his clients’ property would depreciate in value if Jews were allowed, Justice Ivan Rand interjected that if Albert Einstein and Arthur Rubinstein purchased cottages there the property values would increase, and the Association ‘should be honoured to have them as neighbours.'” (229)

He also cited the retort of Justice Rand that

‘freedom of association on a voluntary basis is one thing but it is quite a different thing to say that the law should protect an inclination to disassociate.” (229)

Ultimately, it was the question about what would happen if a Gentile man bought the cottage, married a Jew, and then died that the Association’s counsel found itself unable to answer. (229)

On 20 November, 1950 the positive judgment in favor of the appellants appeared, on the narrower grounds argued — that because of the application of the covenants to the users or purchasers of the land, and not the land itself, it was not considered to “run with the land” — that is, the covenant would only apply to the two parties involved in the initial agreement. Secondly, the judges accepted the argument of “uncertainty” — that defining the affected class such as Jews was too difficult to retain their exclusion in public orders. (229-230)

The legacy of Noble and Wolf v. Alley was ambiguous, as the court refrained from ruling that racial restrictive covenants were against public policy, which would have sent the message out that other types of discrimination were also unconstitutional. The court’s failure to do so did result in later decisions that public policy could *not* be drawn on to litigate against discriminatory behavior. (235-245) In spite of this, no covenant was enforced after Noble & Wolf vs. Alley, and thus it was successful in putting an end to the use of covenants in Canada. (234)