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 Tarnopolsky, W. & Pentney, W.F., Discrimination and the Law (Scarborough, ON: Carswell, 1994) ch. 1,2Google Scholar.

4. See, e.g., Individual’s Rights Protection Act, R.S.A. 1980, c. 1–2, as am. by S.A. 1985, c. 33, 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. This paper focuses on the duty to provide equal service upon request. Absent an expression of a desire to purchase the good or service, its provision and a subsequent claim for remuneration falls under the law of restitution. For cases dealing with a possible duty to provide goods and services under the necessity principle, and a reciprocal duty for remuneration for such goods and services even when not requested, see e.g., Ploofv. Putnam, 81 Vt. 471,71 At l.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; Vincent v. Lake Erie Transportation Co., 124 N.W. 222 (Minn. S.C. 1910), where an owner of a vessel was held responsible for damages to a dock caused by his ship during efforts by the dock owner to save the ship from a storm; Nicholson v. Chapman (1793), 126 E.R. 536 where timber was saved and remuneration for salvage was ordered; Metropolitan Asylum District Managers v. Hill (1881–5), All E.R. 536 (H.L.) [hereinafter Metropolitan Asylum District Managers] where the Court indicated that a duty to save lives may be part of the legal obligations imposed on doctors; and Hastings v. Semans Village, [1946] 4 D.L.R. 695 (Sask. C.A.) and Matheson v. Smiley, [1932] 2 D.L.R. 787 (Man. C.A.) dealing with a reciprocal obligation to remunerate the doctor. All these cases involved the conferral of unrequested benefits under clear and present danger for the loss of life or property. It is beyond the scope of this paper to further explore a possible intersection between the claims advanced here and the cases in restitution, other than noting that further research might prove illuminating.

7. B. Vizkelety, “Discrimination, the Right to Seek Redress and the Common Law: A Century-Old Debate” (1992) 15 Dal. L.J. 304.

8. Other than a “lone voice crying in a judicial wilderness” [the trial judgment in Johnson v. Sparrow, [1899] S.C.R. 104, as referred to in I. A. Hunter, “Human Rights Legislation in Canada: Its Origin, Development and Interpretation” (1976) 15 U.W.O. L. Rev. 21 at 23] and a “solitary beacon” [Re Drummond Wren (1945), O.R. 778, as referred to in D.J. Mullan, “Developments in Administrative Law: the 1980–81 Term” (1982) 3 Supreme Court L.R. 1 at 7, n. 25], the common law in Canada did not recognize a full-blown duty to provide equal service. In fact, it could be argued that the Supreme Court in Bhadauria, supra note 5 rejected such a duty. The decision in Bhadauria is analyzed below.

9. A pioneering foray into the common law of anti-discrimination in Canada was embarked upon by H.L. Molot, “The Duty of Business to Serve the Public: Analogy to the Innkeeper’s Obligation” (1968) 46 Can. Bar Rev. 612. Scholars in other jurisdictions have attempted to provide similar analysis and advance possible rationales for filling the gap. See in the U.S., J. W. Singer “No Right To Exclude: Public Accommodations And Private Property” (1996) 90 Nw. U.L. Rev. 1283; 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); “Note: The Antidiscrimination Principle in the Common Law” (1989) 102 Harv. L. Rev. 1993. See in the U.K., D. Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999) [hereinafter Common Values and the Public-Private Divide); D. Oliver, “Common Values in Public and Private Law and the Public/Private Divide”, (1997) Public Law 630; see in Australia and New Zealand, 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”].

10. For an analysis of the legal powers to discriminate based on one’s property rights, see A. Reichman, “Property Rights, Public Policy and The Limits of the Legal Power to Discriminate” in D. Friedman & D. Barak-Erez, eds., Human Rights in Private Law (Oxford: Hart Publishing) [forthcoming].

11. For a discussion of the shortcomings of the current regime see D. Réaume, “Of Pigeon Holes and Principles: A Reconsideration of Discrimination Law” (Paper presented to the Learned Society, June 1999) [unpublished, manuscript with author].

12. Vriend v. Alberta, [1998] 1 S.C.R. 493 [hereinafter Vriend].

13. IRPA, supra note 4. The Human Rights, Citizenship and Multiculturalism Act, 1980, R.S.A. 1980, c. H-11.7, which replaced the IRPA on September 6 1996, also did not include protection against discrimination on the grounds of sexual orientation.

14. The facts of Vriend revolved around discrimination in employment, but the Court expanded Mr. Vriend’s standing to challenge the absence of protection against discrimination on the grounds of sexual orientation in all spheres covered by the Code, including the provision of goods and services customarily available to the general public. The Court found that discrimination in employment is indistinguishable from other types of discrimination for the purposes of the constitutional challenge, and subsequently found the legislative silence in all spheres to be discriminatory. This paper will focus on discrimination in the provision of goods and services, a sphere covered by the Code. It should be noted, however, that the duty to refrain from considering the group-based characteristics of an applicant or an employee in certain positions is similar in nature to the duty to refrain from taking these characteristics into account in the provision of goods and service customarily available to the general public (see A. Reichman, Taking Constitutional Structures Seriously (S.J.D. dissertation, University of Toronto, 2000) ch. 1). It should also be recalled that Vriend involved a summary dismissal of Mr. Vriend, a teacher at Kings College, a private, Christian institution, on account of his sexual orientation. Therefore, Mr. Vriend could have filed a suit for unjust dismissal, and claimed that he was fired without just cause; that is, he could have argued that his sexual orientation does not qualify as a ‘just cause’. (For cases dealing with just cause see 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; D. Harris, Wrongful Dismissal, looseleaf (Scarborough, ON: Carswell, 1999) at 3–58). 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, ibid. at ch. 3). 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; had Mr. Vriend been employed in a commercial, rather than a religious, institution, it would have been difficult to demonstrate that his sexual orientation is a relevant consideration.

15. F. C. DeCoste, “The Separation of State Powers in Liberal Polity: Vriend v. Alberta” Case Comment (1999) 44 McGill L.J. 231; T. Macklem, “Vriend v. Alberta: Making the Private Public” Case Comment (1999) 44 McGill L.J. 197; 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, where the ruling party was able to shirk its responsibility to amend the statute, since the Supreme Court had effectively assumed responsibility. See Alberta, Legislative Assembly, Debates (2,6,7,8,21 April 1998) at 1329–31, 1339–40, 1356–57, 1396–99, 1442, 1549.

16. In order to avoid confusion it should be stated that this paper does not advocate constitutional judicial review of the common law. Retail, Wholesale and Department Store Union v. Dolphin Delivery, [1986] 2 S.C.R. 573 [hereinafter Dolphin Delivery] and Mckinney v. University of Cuelph, [1990] 3 S.C.R. 229 preclude such review, and for good reasons (see Reichman, supra note 14 at ch. 2). The thrust of the argument here is that in deciding the constitutionality of the legislative silence, the court cannot ignore the common law background, in order to fully capture the legal effect of such silence.

17. (1979), 27 O.R. (2d) 142 (C.A.). The facts of Bhadauria were as follows. Mrs. Bhadauria, a highly qualified mathematician of East Indian origin with seven years of teaching experience, was not offered an interview by Seneca College, allegedly because of her ethnicity (or colour). Although letters were sent to her by the College in response to her repeated applications—some ten in number, in the period between 1974 and 1978—no reason was provided why an interview was never scheduled. Mrs. Bhadauria claimed before a court of general jurisdiction “a breach of a duty not to discriminate against her and also [a] breach of s. 4 of the Ontario Human Rights Code, as amended. She claimed damages for being deprived of teaching opportunities at the College in which she was still interested and for being deprived of an opportunity to earn a teaching salary. Moreover, she suffered mental distress, frustration, loss of self esteem and dignity, and lost time as a direct result of repeatedly applying for advertised positions for which she was denied the opportunity to compete.” Ibid. at 143.

18. Ibid. at 150.

19. Chief Justice Laskin stated: “The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime…” Bhadauria, supra note 5 at 194–95.

20. Bhadauria, supra note 5 at 189, 190.

21. E.J. Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995).

22. For an analysis of the different approaches to Bhadauria see N. Gupta, “Reconsidering Bhadauria: A Re-examination of the Roles of the Ontario Human Rights Commission and the Courts in the Fight Against Discrimination” (LL.M. Thesis, University of Toronto Law School, 1993). Some commentators have called upon the court to overrule Bhadauria, and reinstate the Court of Appeal’s position. See I.B. McKenna “A Common Law Action for Discrimination in Job Applications” (1982) 60 Can. Bar Rev. 122; H. Kopyto, “The Bhadauria Case: The Denial of the Right to Sue for Discrimination” (1981) 7 Queen’s L.J. 144; 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) 14 Ottawa L. Rev. 219 at 226, wondering, in Lord Denning’s words, whether the Court’s stifling of the common law was the product of timorous souls, fearful of allowing a new cause of action, or bold spirits, who were ready to allow it if justice so required. An alternative approach could modify Bhadauria so as to include a ‘practicability’ component: as long as an administrative remedy is reasonably accessible, one would have to exhaust the administrative procedure before turning to courts of general jurisdiction and the common law. Given the overwhelming burden under which most human rights commissions currently operate, receiving relief has arguably become impracticable.

23. (1703), 2 Ld. Raym 938, 92 E.R. 126.

24. In “Civil Actions for Discrimination” (1977) 55 Can. Bar Rev. 106, Hunter argues that litigation should not be the first option, in light of the conciliatory and educational purposes of human rights legislation. However, Hunter recognizes that on some occasions recourse to the courts is necessary in order to ensure that “any lingering private grievances … be resolved by private proceedings” (ibid. at 118) in the event that the plaintiff rejects what the tribunal sees as a reasonable settlement, or when the plaintiff disagrees with a decision that the complaint does not warrant convening a tribunal. It could be added that there could be cases where the public interest warrants attention and debate unavailable in the administrative channels. Therefore, from a public perspective, there could be cases that should be adjudicated in the general jurisdiction, given its greater exposure and accessibility.

25. The matter was debated before the Alberta legislature, which chose not to adopt an amending bill which would have extended the design to cover sexual orientation. See discussion in Reichman, supra note 14 at ch. 3. It should be noted that even absent a clear indication of a legislative choice on point, the statutory design itself, and the lack of civil remedies, could stand for the exclusive proposition adopted by the Court in Bhadauria, thereby suggesting that the legislative enforcement design might not be implicated if the matter was dealt with by the common law courts.

26. Cf. Hunter, supra note 24, discussing the educative and conciliatory function of human rights legislation.

27. The terminology of proximity is not foreign to tort law, and in particular to the law of negligence, where it serves a double purpose: first, to establish privity (neighbourhood), or the circle of those to whom the defendant owes a duty of care; second, to establish cause in fact, and more specifically, the ‘distance’ or ‘length’ of the chain of events that form the causal connection between the actions/inactions of the defendant and the damage caused to the plaintiff. Both uses of proximity are part of an attempt to link the plaintiff, the defendant and the harm, or more accurately, to determine the responsibility of the particular defendant, who behaved in a particular manner, to the plaintiff, who suffered a certain kind of harm. For the centrality of the concept of responsibility, see A. Ripstein, Equality, Responsibility and the Law (Cambridge and New York: Cambridge University Press, 1999). The term ‘proximity’ will be used in this paper primarily in its first meaning, namely of establishing privity, neighbourhood or some other type of relationship between the person who discriminated and the person who suffered such discrimination.

28. The claim that an employer and an employee are in a ‘proximate’ relationship is strengthened by the presence of an employment contract, but is not necessarily limited to the contractual phase. Arguably, an employer and employee share a connection, and owe each other reciprocal duties, by virtue of their relative status. See Reichman, supra note 14 at ch. 1.

29. But cf. D. Mullan, supra note 8 at 8, arguing that a legislative decision not to include a protected ground, given the comprehensiveness of the legislation, strengthens the displacement of the common law. Mullan learns from the process of refining the definition of age discrimination “a rather careful consideration of the matters deemed to be offensive forms of discrimination, and a legislative intent that what is not included should not be seen as contrary to the present public policy of Ontario”. If such is indeed the case, the constitutional road taken in Vriend is easier to justify, given that the public policy of Ontario is subjected to the Charter. However, the argument presented below is not that the court should rely on the Human Rights Code to discern a novel public policy of Ontario, but rather that it should look to the bedrock principles of the common law, such as human dignity, and develop from these principles the limits of the power to discriminate on the basis of sexual orientation. Therefore, while Mullan is perhaps correct to suggest that the legislative scheme does not support reliance on its silence to develop public policy, it does not support barring the common law from its own course of development and refinement.

30. D. Gibson, “The New Tort of Discrimination: A Blessed Event For the Great-Grandmother of Torts” (1980) 11 C.C.L.T. 141 at 147.

31. The normative source of Gibson’s analysis is not clear. On the one hand, he seems to support the common law ‘action on the case’ doctrine, which suggests that the common law, through considerations of consistency and coherence, may approach like cases in a like manner. On the other hand, Gibson expects the court to rely on public policy considerations as determined by the legislature, suggesting that in the absence of an indication of such a clear policy, as is the case of discrimination on the basis of physical appearance, “the courts would be very reluctant to impose liability, there being little evidence of public policy contrary to the conduct in question, and little or no opportunity for the defendant to learn in advance that the conduct is legally questionable” (ibid at 149). In contrast, this paper suggests that public policy is a common law doctrine, which is designed to ensure that common law rights are consistent with the premise of a civil society, of which they are a part. Put differently, ‘public policy’ is there to ensure that the common law retains the concept of a ‘public’, which allows rights to be meaningful. (See Reichman, supra note 14 at ch. 1). Therefore, even if there is evidence that the legislature has specifically decided not to include a certain ground, the common law must remain true to its principles and examine the issue. Should the legislature reject the common law conclusion, it is free to intervene, thereby shifting the future dialogue between the judiciary and the legislature to the constitutional domain of judicial review and the exercise of a possible override.

32. Cf. in the criminal context: R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. B. (K.G.), [1993] 1 S.C.R. 740.

33. In Metropolitan Asylum District Managers, supra note 6, Lord Blackburn stated at 543: “It is clear that the burden lies on those who seek to establish that the legislature intended to take away the private rights of individuals to show that by express words or by necessary implication such an intent appears.” Old common law maxims are equally clear: Quœ communi legi derogan stricté interpretantur (Things derogating from the common law are to be strictly interpreted. Jenk. Cent. 221); and Statutum Affirmativum non derogat communi legi (An affirmative statute does not take from the common law. Jenk. Cent. 24).

34. “[I]f it were intended that the Code exhaust the field of human rights in Ontario, it would have been clearly stated”: L.N. Klar, “Developments in Tort Law: The 1980–81 Term” (1982) 3 Supreme Court L. R. 385 at 397. Later, Klar specifically raises the issue of sexual preference, leaving the question open. It should be noted that the legislative silence here is not used to deduce civil liability from the Code by way of analogy, as was contemplated and rejected by G. Williams, “The Effect of Penal Legislation in the Law of Tort” (1960) 23 Mod. L. Rev. 233. The silence is merely taken as not precluding an independent development of the common law, with respect to a type of discrimination not included in the statutory scheme.

35. See discussion supra note 14.

36. By way of a preview, it will be argued that an incremental approach, identifying certain types of relationships where discrimination is irreconcilable with the underlying premise of such relationships, should receive a more favourable response from a common law court than the sweeping move advanced by the Court of Appeal for Ontario in Bhadauria. More specifically, it is submitted that such proximity, from which a duty not to discriminate may arise, is clearly present in the scenario of Vriend, where a corrective, rather than a distributive, argument could be made in support of establishing a duty not to dismiss a person because of irrelevant group-based characteristics. At minimum, such a question should be squarely presented to a contemporary court acting under the general jurisdiction conferred on it by the common law.

37. Support for the position advanced here could be found in Canada Trust Co. v. Ontario Human Rights Commission (1991), 74 O.R. (2d) 481 (C.A.), where both the trial division and the Court of Appeal found that courts of general jurisdiction may hear an application for advice and direction regarding the validity of a restrictive charitable trust, despite the initiation of an investigation of the same issues under the Human Rights Code. Such a holding may be viewed as reaffirming the genuine need for the common law to develop organically, especially when the legislature has remained silent, as was the case with respect to the law of charitable trusts. Similarly, it could be argued that as Canadian legislatures have not displaced the common law of contracts, property and torts, the common law may, indeed must, examine to what extent consideration of the other party’s sexual orientation may play a role in a decision [not] to contract or to dispose of one’s property in a certain way.

38. As pointed by Vizkelety, supra note 7, we should be mindful of the experience of Quebec, which has been quite different from that of other Canadian jurisdictions. The protection scheme adopted by Quebec specifically allows for recourse to the courts, and the Superior Court in Yvon Blanchette v. La Compagnie d’Assurance du Canada sur la Vie, [1984] C.S. 1240 (Qué.), interpreted the Code de Procédure Civil and the Code Civil du Bas Canada as permitting access to courts without first obtaining a decision from the Human Rights Commission finding discrimination. It should be noted that Mr. Blanchette did not go directly to court, as Mrs. Bhadauria did. He filed a complaint with the Human Rights Commission, alleging discrimination because his ‘common-law’ (or the equivalent thereof) spouse was not recognized by his employer as a spouse and thus was not invited to a company-sponsored retreat in Florida. The Commission, after first finding for Mr. Blanchette, apparently withdrew its recommendation that the company amend its policies and pay the claimant a sum of $2500 ($500 for moral prejudice, $1500 for actual (material) damages (i.e., the trip to Florida) and $500 as punitive damages). Mr. Blanchette then went to court. However, the court did not sit as an appellate court, nor was it exercising its jurisdiction to judicially review the Commission’s decision. Bhadauria was specifically rejected by the Quebec Superior Court as incompatible with Quebec civil law, as a matter of procedural design, as well as a matter of substantive law, given the explicit cause of action established by statute which includes protection against discrimination.

39. See Reichman, supra note 14 at ch. I.

40. This phrase is found in the 1RPA, supra note 4, and designed to capture those goods and services the provision of which is not dependent upon a certain unique associational membership. Cf. Gould v. Yukon Order of Pioneers, [1996] 1. S.C.R. 571 interpreting a similar phrase in s. 8(a) of the Yukon Human Rights Act, R.S.Y. 1986 (Supp.), c. 11.

41. The reader will no doubt notice that unlike the constitutional or the human rights contexts, groups mentioned here need not necessarily suffer from historical disadvantage or prejudice; nor is a showing of widespread, or systemic, discrimination required, as this analysis takes place on a purely conceptual level. This distinction is relevant, since it alerts us to the presence of two possible models. One is distributive, seeking to provide certain social goods to groups which heretofore were deprived of these goods. The other is corrective, seeking to correct breaches of duties which occur when a party behaves in contradiction with his or her undertaking towards another party or towards the community.

42. Christie, supra note 2; Franklin, supra note 1; Loew ‘s Montreal Theatres Ltd. v. Reynolds (1921), 30 Que. K.B 459 [hereinafter Loew’s].

43. It should be noted that the analysis of one’s legal powers to discriminate is not confined to the contractual sphere. Rather, it is intertwined with property law, tort law and the doctrine of public policy as well. Due to breadth concerns, this paper will focus on the principle of freedom of contract and its exceptions. For property law analysis and for a discussion of the doctrine of public policy as it pertains to the question of discrimination, see Reichman, supra note 10.

44. Coke, 2. Inst. (London 1671) 47.

45. Christie, supra note 2 at 142, per Rinfret C.J.

46. See Sparrow, supra note 8 and Loew’s, supra note 42, discussed infra notes 207, 217 and accompanying text. See also W. Tarnopolsky & W.F. Pentney, supra note 3.

47. According to legal jargon, the action for a failure to carry out these professional duties is an action ‘on the case’ (i.e., an action for offending the custom of the realm, the community itself) as distinguished from an action for a breach of contract, which is an ‘assumpsit’ (an action stemming from the breach of a specific, voluntary undertaking, or a promise one has made). See generally P.S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press; New York: Oxford University Press, 1979).

48. See M. Taggart, “The Province of Administrative Law Determined?” in M. Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) [hereinafter “The Province of Administrative Law”]; Oliver, “Common Values in Public and Private Law”, supra note 9.

49. See Haar & Fessler, supra note 9, describing the origin of common callings in the 12th century; see also C.K. Burdick, “The Origin of the Peculiar Duties of Public Service Companies” (1911) 11 Colum. L. Rev. 514; M.G. Arterburn, “The Origin and First Test of Public Calling” (1926–7)74U. Pa. L. Rev.411.

50. For an impressive list, see E.A. Adler, “Business Jurisprudence” (1914) 28 Harv. L. Rev. 135 at 146.

51. This phenomenon attracted scholarly attention: see J.H. Beale, Jr., “The Medieval Innkeeper and his Responsibility” (1906) 18 Green Bag 269; J.H. Beale, Jr., ‘The Carrier’s Liability: Its History” (1897) 11 Harv. L. Rev. 158; J. Storey, “Origin and Monopoly Right of Ancient Ferries” (1915) 76 U. Pa. L. Rev. 718.

52. See generally Halsbury’s Laws of England, vol. 24, 4th ed. (London: Butterworths, 1980) “Innkeepers”. An innkeeper is a proprietor of an establishment held out as offering food, drink, and if so required, sleeping accommodation, without special contract, to any traveller presenting himself who appears to be able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit condition to be received.

53. See generally Halsbury’s Laws of England, vol. 21, 4th ed. (London: Butterworths, 1980) “Ferries” (in Highways, Streets and Bridges) at paras. 877, 886. A ferrymen is the holder of a franchise to operate a ferry. Such a franchise is granted by the Crown or parliament, or acquired by prescription (continuing use) which assumes a lost grant. A ferry line is considered as a “highway of a special description”: Huzzey v. Field (1835), 2 Cr. M. & R. 432,150 E.R. 186. A highway in turn, is defined as a “way over which there exists a public right of passage, that is to say a right of all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance”: ibid. at para. 1. The right to charge tolls is usually part of the franchise: ibid. at para. 877.

54. See generally Halsbury’s Laws of England, vol. 5(1), 4th ed. (London: Butterworths, 1980) “Common Carriers” (in Carriers), esp. paras. 402,441,498: a common carrier is one who exercises the public profession of carrying the goods of all persons wishing to use his services or of carrying passengers whoever they may be.

55. White’s Case (1558), Dyer 158b, 73 E.R. 343 [hereinafter White’s Case]; Calye’s Case (1584), 8 Coke 32a, 77 E.R. 520 [hereinafter Calye’s Case]. See also J.B. Ames, “The History of Assumpsit” (1888) 2 Harv. L. Rev. 1.

56. A common carrier, absent lawful grounds for refusal, is bound to accept goods which are offered to him for carriage according to his profession: Johnson v. The Midland Railway Co. (1849), 4 Ex. 367 [hereinafter Johnson], Similarly, a common carrier of passengers, is bound to carry according to his profession; Clarke v. West Ham Corp., [1909] 2 K.B. 858 at 877, 882 (C.A.). A ferry owner must give attendance at all reasonable hours: Gravesham Borough Council v. British Railways Board, [1978] Ch. 379, [1978] 3 All E.R. 853 [hereinafter Gravesham]. While such hours might not mean all hours of day and night, nonetheless the ferryman cannot simply decide he does not wish to conduct business, as the grant of a ferry is for the benefit of the public, so that the public may be certain of finding the means of transit across the river: Dibden v. Skirrow, [1907] 1 Ch. 437 at 444. Moreover, the owner cannot relieve himself of his duties by building a bridge: Paine v. Partrich (1691), Carth 191, 90 E.R. 715 [hereinafter Paine]. An innkeeper, naturally, doesn’t get the night off; the provider must provide even if he or she is not interested in doing business at all (regardless of the customer). For example, an innkeeper must open the door to a guest even though he has arrived in the middle of the night, the keeper was sleeping, and was not interested in doing business until the morning (the only question being whether the innkeeper in fact heard the knock on the door and could have concluded that a guest has arrived): Hawthorne v. Hammond’ (1844), 1 Car.& Kir. 404, 174 E.R. 866 [hereinafter Hawthorne]. See also R. v. hens (1835), 7 C.& P. 213, 173 E.R. 94 [hereinafter Ivens).

57. “An Innkeeper cannot be a bankrupt, for he is not like a trader; he must receive all comers and feed them and lodge them taking reasonable rate”: Eyre J. in Newton v. Trigg (1691), 1 Salk. 109, 91 E.R. 100 [hereinafter Newton); R v. Collins (1623), Palm. 373, 81 E.R. 1130; Crisp v. Pratt (1639), Cro. Car. 549, 79 E.R.1072 [hereinafter Crisp]. Similarly, if a common carrier demands an unreasonable charge or seeks to impose unreasonable conditions, this amounts to a wrongful refusal to carry: Garton v. The Bristol and Exeter Railway Co. (1861), 1 B.&S. 112, 121 E.R. 656 [hereinafter Carton); Allday v. The Great Western Railway Co. (1864), 5 B.& S. 903, 122 E.R. 1066 for which the common carrier is liable should the goods suffer any damage in consequence: Jackson v. Rogers (1683), 2 Show. K.B. 327 89 E.R. 968 [hereinafter Jackson); Crouch v. The London and North-Western Railway Co. (1854), 14 C.B. 255, 139 E.R. 105. Likewise, a ferry toll must be reasonable: A-G v. Simpson, [1901] 2 Ch. 671 (C.A.), on appeal [1904] A.C. 476 (H.L.); Stamford Corp. v. Pawlett (1830), 1 Cr.& J. 57, 148 E.R. 1334; aff’d (1831), I Cr.&J. 400, 148 E.R. 1478 (Exch.), and, where such is the custom, the ferryman may even be obliged to carry the inhabitants of a town for free: Paine, supra note 56.

58. “The true view of the common law rule was that if an inn was not full the landlord was bound to admit travellers…. He could not pick and choose”: Lord Alverstone C.J. in Browne v. Brandt, [1902] 1 K.B. 696 [hereinafter Browne). A ferrymen must carry all peaceable wayfarers who are willing to pay his toll: Hammerton v. Earl ofDysart, [1916] I A.C. 57 at 103 (H.L.). A common carrier is bound to carry any person not in an unfit condition, for whom he has accommodation upon tender of his proper fare, without the imposition of any unreasonable condition: Garton v. Bristol and Exeter Rly Co. (1861), 1 B&S 112 at 162.

59. For example, in Constantine v. Imperial Hotels Ltd., [1944] 1 K.B. 693 [hereinafter Constantine], a famous black West Indian cricketer was transferred from one hotel to another, apparently because of his colour. The Court found that transfer amounted to a refusal of service, for which the hotel was liable in tort (even though specific damage was not proved).

60. Kenny v. O’Loughlin (1944), 78 Ir. L.T.R. 116.

61. Only ‘reasonable grounds’ are recognized as valid grounds for refusal to serve. For example, in the context of innkeepers, if the inn is full: Lane v. Cotton (1702), 12 Mod. Rep. 472 at 484, 88 E.R. 1450 at 1464 [hereinafter Lane] or perhaps if insufficient food is available: Pidgeon v. Legge (1857), 21 J.P. 743 [hereinafter Pidgeon]; if the guest refuses payment in advance: Anon (1460), Y.B 39, Hen 6 fo. 18, PI. 24; Mullinerv. Florence (1878), 3 Q.B.D. 484 at 488 (C.A.); if the guest arrives drunk: Lamond v. Richard & The Gordon Hotels Ltd., [1897] 1 Q.B 541 (C.A.); filthy: Pidgeon, supra; or indulges in “indecent or improper behaviour”: hens, supra note 56; Hawthorne, supra note 56 at 407, 868, refusal is ‘reasonable’. It should be noted, nevertheless, that when the provision of refreshment (part of the duty to lodge) was at stake, and in a time of social disturbance (World War I) the Court accepted reasons of ‘bad character’ (such as moneylending activities amongst the military and newspaper reports of conviction in fraud: Rothfield v. North British Railway Co. (1920), 57 S.L.R. 661, [1920] S.C. 805 (Scot.)). However, if the guest arrives late, or upon Sunday, or refuses to disclose his name [hens, supra] or is ill and has to wear his overcoat, or wishes to sit up all night: Fell v. Knight (1841), 8 M.& W. 269 at 273, 151 E.R. 1039 at 1041, a refusal to serve was deemed unreasonable. See Molot, supra note 9 at 620.

In the context of common carriers, Halsbury’s Laws of England, supra note 54 at para. 441 informs us that “it is a lawful excuse for refusing to carry that the common carrier does not hold himself out to carry the particular kind of goods offered, or that his operations do not extend to the proposed destination: Macklin v. Waterhouse (1828), 5 Bing. 212, 130 E.R. 1042; Johnson, supra note 56 Johnson v. Midland Railway Co. [1849] ExCh. 367. He may refuse to accept foods for carriage unless and until he is paid the full and proper price for carriage: Wyld v. Pickford (1841), 8 M.& W. 443, 151 E.R. 1113. 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; Batson v. Donovan (1820), 4 B.& Aid. 21 at 32, 106 E.R. 846 at 850; Riley v. Home (1828), 5 Bing. 217 at 220–21, 130 E.R. 1044 at 1045; Spillers and Bakers Ltd. v. Great Western Railway Co., [1911] 1 K.B. 386 at 392. He may also refuse to accept the goods it they are brought to him a long time before he is ready to start on his journey, for the goods must be tendered at a reasonable time [and the carrier might find himself responsible during storage]: Lane v. Cotton (1701), 1 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: Edwards v. Sherratt (1801), 1 East 604, 102 E.R. 233. He may also refuse to accept goods tendered to him for carriage without such protection of packing as is necessary to enable him to carry them with a reasonable prospect of protection from loss or damage in transit: Munster v. South Eastern Railway Co. (1858), 4 C.B.(N.S.) 676 at 701, 140 E.R. 1257 at 1267; Sutcliffe v. Great Western Railway Co., [1910] 1 K.B. 478 at 495 (C.A.)”. It should be recalled that the general rule is that absent lawful grounds, the common carrier is bound, as exercising a public employment, to accept goods which are offered to him for carriage according to his profession. Ibid. at para. 441.

62. Rothfield, supra note 61, dealt with the rejection of a Jew, allegedly of German origin, whose occupation was a moneylender. This case was relied upon by the Court of Appeal in Bhadauria, supra note 5, as an example of an exception that proves the rule, but distinguished by Laskin Ci. C. of the Supreme Court as insufficient to establish a general tort of discrimination, since it arises in the context of a specific common law duty attached to innkeepers. The Supreme Court did not attempt to explain the rationale behind that unique duty, nor did it try to provide a principle which should limit the scope of this duty.

63. “Subject to certain statutory limitations, a common carrier is absolutely responsible for the safety of goods entrusted to him for carriage save where loss or damage result from: (1) an act of God, (2) an act of the Queen’s enemies, (3) the fault of the consignor, or (4) inherent vice in the goods themselves”: Halsbury’s Laws of England, supra note 54 at para. 446 “Common Carriers”, vol. 5(1), para. 446, citations omitted. “He is liable even when overwhelmed and robbed of the goods by irresistible force”: ibid., citing Coggs v. Bernard (1703), 2 Ld. Raym. 909,92 E.R. 107 [hereinafter Coggs]; Forward v. Pittard (1785), 1 Term Rep. 27 at 34, 99 E.R. 953 at 957 [hereinafter Forward]). “A common carrier is liable for loss or injury caused wholly by the fault of persons over whom he has not control”: ibid. at para. 447, and see citations there. It should be noted, again, that such liability is part of the law, not the contract: see e.g. Forward, supra at 33; Bretherton v. Wood (1821), 3 Brod.& Bing. 54 at 62–62, 129 E.R. 1203 at 1206–07. Similarly, “the liability of a ferry owner in respect of goods carried by him is similar to that of a common carrier”: Halsbury’s Laws of England, supra note 53 at para. 889, citing Southcote’s Case (1601), 4 Co. Rep. 83b, 76 E.R. 1061. Likewise subject to very limited exceptions (such as live animals) the innkeeper “is chargeable to guests for restoring property which is lost or stolen within the hospitium of the inn and he is under the like liability to make good to his guest any damage to the guest’s property brought to the inn as he would be if the goods were lost. The liability of an innkeeper is strict, that is to say, without proof of negligence on his part, but subject to certain conditions, the liability can be limited in amount”: Halsbury’s Laws of England, vol. 21, 3rd ed. (London: Butterworths, 1960) “Innkeepers” at 451–52, para. 950. And see Shacklock v. Ethorpe, Ltd., [1939] 3 All E.R. 372 (H.L.). As an example, see Orchard v. Bush & Co., [1898] 2 Q.B.D.C.B. 284 [hereinafter Orchard], where a guest left his coat in a coat closet in a restaurant which was part of an inn, the coat was lost and the inn held liable.

64. [1919] A.C. 505 (P.C.) [hereinafter City of Levis]. At the core of the dispute was whether the city of Levis could disconnect a federal building from the water supply, given that the federal government did not pay municipal taxes. The Court stated at 513 that:

In the case of the Crown, no implication of an obligation upon the respondents to give a water supply can be based on liability to water taxation, since the Crown is admittedly not liable to such taxation. The respondents, moreover, have not the monopoly of water supply, so that the implication of an obligation cannot be supported on the ground that the Government of Canada has been deprived of the right to supply water to the government building. It must be recognized, however, that water is a matter of prime necessity, and that, where waterworks have been established to give a supply of water within a given area for domestic and sanitary purposes, it would be highly inconvenient to exclude from the advantages of such supply government buildings, on the ground that these buildings are not liable to water taxation. The respondents are dealers in water on whom there has been conferred, by statute, a position of great and special advantage, and they may well be held in consequence to come under an obligation towards parties, who are none the less members of the public and counted among their contemplated customers, though they do not fall within that class, who are liable to taxation, and who being in the immense majority are expressly legislated for and made subject to taxation. Their Lordships are, therefore, of opinion that there is an implied obligation on the respondents to give a water supply to the government building provided that, and so long as, the Government of Canada is willing, in consideration of such supply, to make a fair and reasonable payment. [Emphasis added].

65. Chastain et al. v. British Columbia Hydro and Power Authority (1973), 32 D.L.R. (3d) 443 (B.C.S.C.) [hereinafter Chastain]. Compare to Canadian Pacific Airlines Ltd. v. The Queen (1976), 71 D.L.R. (3d) 421 (F.C.T.D.), aff’d 87 D.L.R. (3d) 511 (F.C.A.) where the Court declined to find a ‘prime necessity’ common law duty placed on the state to maintain airport runways clear of snow in times of strike.

66. The causal link between a service or a good being a prime necessity and the ‘prime necessity duty’, is not obvious. As the New Zealand jurisprudence demonstrates, see infra note 69, City of Levis, supra note 64, has been viewed as holding that showing a ‘practical monopoly’ is necessary, in addition to the nature of the service as a necessity, to trigger such a duty (although City of Levis itself refrains from using monopolistic terminology). In Canada, Levis was read to establish, absent a statutory obligation, a duty stemming from the essence of the service being essential and from the “relative positions of the parties”. (Levis at 513. This element is stressed in Tsawwassen Indian Band v. Delta (Corp.) (1997), 149 D.L.R. (4th) 672 at 685 (B.C.C.A.) [hereinafter Tsawwassen]). Analyzing the relative positions, or ‘relationship’, the court found the corporate municipality, like the city of Levis, under a duty: “The advantages which Lord Parmoor attributed to the City were simply the system of waterworks it owned and the authority to levy taxes for water. These factors gave the City an advantage over other entities in providing services, an advantage which gave rise to an obligation to supply services to taxpaying and non-taxpaying members of the public alike.”

67. In Chastain, supra note 65, it was held that a security deposit requirement violated the common law obligation to provide power in a non-discriminatory manner (promoting, in many cases, legislative intervention).

68. “Public Utilities and Public Law,” supra note 9.

69. Albeit more cautiously. See 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 Corporation of New Zealand Ltd.), [1994] 1 N.Z.L.R. 551 (C.A.).

70. Mayor of Auckland v. The King, [1924] G.L.R. 415 (applying the principle in reverse by demanding that the Crown pay a reasonable price for rubbish collection, which was deemed a matter of necessity); State Advances Superintendent v. Auckland City Corp. and the One Tree Hill Borough, [1932] 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 mortgagors); Marlborough v. County Council and Blenheim Borough Council v. 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; the County Council eventually extended supply); Wairoa Electric-Power Board v. Wairoa Borough, [1937] N.Z.L.R. 211 (S.C.) (finding electricity a prime necessity, calling for reasonable pricing); South Taranaki Electric-Power Board v. Patea Borough, [ 1955] N.Z.L.R. 954 (S.C.) (finding that the Electric Power Board enjoyed practical monopoly, and the principle of City of Levis, supra note 64 applies). But see Stubbs v. Taumarunui Borough, [1975] 1 N.Z.L.R. 125 (S.C.) (refusing to extend doctrine to (as yet not existing) drainage pipes).

71. The structure of the duty was laid out in State Advances, supra note 70 at 1715, per Myers C.J.:

(i) that the supply of water is a matter of prime necessity;

(ii) that where a water-supply authority has a practical monopoly there lies upon it an obligation (implied where not expressed) to supply water to all those requiring it and who are prepared to pay a fair and reasonable charge; and

(iii) that apt, if not coercive, language is required to confer upon the water-supply authority the right to refuse water, or stop the supply to any particular premises by reason of non-payment of a rate or charge in respect of water previously supplied, except to the person primarily liable for, and actual in default in respect of, the arrears. In the nature of things, that person is generally the person to whom the water in respect of which the arrears are owing was actually supplied.

72. See Bennett & Fisher Ltd. v. The Electricity Trust of South Australia, [1961) S.A.S.R. 286 (S.C), which rejected the principle but did not mention City of Levis, supra note 64, and see critical evaluation in “The Province of Administrative Law”, supra note 48.

73. “Certainly the obligation of a public utility having a practical monopoly, to supply the services is clear and is as old as the notion of a public utility: Chastain [supra note 65]; Munn v. Illinois, 94 U.S. 113 (1876) [hereinafter Munn]; Canada (Attorney General) v. Toronto (City) (1893), 23 S.C.R. 514; St. Lawrence Rendering Company Ltd, v. Cornwall (City), [1951] O.R. 669 (Sup. Ct.).” Per Saunders J. in Adams Lake Indian Band v. District of Salmon Arm (1997), 27 B.C.L.R. (3d) 334, 137 D.L.R. (4th) 89 (S.C.) (sub nom. 238709 B. C. Ltd. v. Salmon Arm (District)) [hereinafter Adams]. The duty was confirmed on appeal—see infra note 74.

74. The common law duty was analyzed in depth on appeal, see Tsawwassen, supra note 66 [a.k.a. Adams Lake Indian Band v. District of Salmon Arm]. At issue was whether a corporation (be it a ‘private’ entity providing prime necessities, a municipality or an arm of the Crown) has a duty to provide, indefinitely and for a reasonable price, water, sewers, fire protection and gas, to non-native residents of a commercial project under an Indian band, possessing powers of self-taxation. Saunders J. found that although such a duty existed, it was not indefinite and the municipal corporations could withdraw, giving reasonable notice. She distinguished City of Levis, supra note 64, in two ways. First, at bar was the provision of services to several acres of land, not to one building in a city, and hence the ‘inconvenience’ argument did not help the band (and perhaps might even have helped the corporation). Second, the bands in question could establish such services on their own. It should be noted that the reason for refusal was not solely economic. In one case, refusal to provide service (fire protection) to the emerging project was linked to a failure to agree on the density of the project.

The Court of Appeal, analyzed the question as follows:

The ability of the Bands to provide their own services or to secure an alternate supply does not determine the issue of whether the municipalities have a duty to continue to supply services in exchange for a reasonable price…. [TJhese matters are, in fact, only two of many factors which must be considered in deciding the issue. In other words, the common law, as taken from the Levis decision, can be viewed as a continuum where the extent of the obligation owed depends upon the nature of the relationship between the parties. For example, if in a given situation an individual property owner asked a municipality to continue to provide services even though the owner was not or would not be obligated to continue to pay taxes, it is arguable that the common law would impose upon the municipality a duty to supply this single property owner with services indefinitely, subject only to reasonable compensation being paid for the services. On the other hand, if the relationship involved two independent taxing authorities of roughly equal size, both with the ability to put in place the necessary infrastructure, it is arguable that the common law would allow one of the parties to terminate the provision of services to the other with a relatively short period of reasonable notice.

[A]s indicated by the foregoing examples, there are several criteria which are helpful in assessing the relationship between given parties and determining the exact nature and extent of the common law obligation which may or may not be owed. Without attempting to set out an exhaustive list, some of the more important factors include: the relative size of the parties; the resources available to each of the parties including the ability to raise revenue; the ability to implement or maintain a new and existing infrastructure; the experience each party may already have in providing the services in question; and the length of time over which the service has already been provided by one of the parties [at 685–86].

After analyzing the factors, the Court found a duty, but, given the relative positions, found that duty to be terminable upon reasonable notice, and remanded the case so further evidence as to that which may constitute ‘reasonable notice’ and/or ‘reasonable price’ could be adjudged. The Court further asserted that the duty to provide service is reciprocal, stating, in effect, that the band must respect municipal by-laws regarding density.

It is important to note that the Court rejected an argument that the statutory scheme, under which the bands may request the Lieutenant Governor to order the municipalities to provide services for a year, sealed the common law duty to provide service for a reasonable price.

75. B.P. McAllister, “Lord Hale and Business Affected With a Public Interest” (1930) 43 Harv. L. Rev. 759.

76. As quoted in M. Taggart, “Public Utilities and Public Law”, supra note 9 at 216:

A man for his own private advantage may in a port town set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own … If the king or subject have a publick wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharfs only licensed by the queen … Or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the king’s license or charter. For now the wharf and crane and other conveniences are affected with a publick interest, and they cease to bejurisdictio privati only; as if a man set out a street in a new building on his own land, it is now no longer bare private interest, but is affect with a publick interest.

77. For further discussion on the history of the treaties by Hale see D.E.C. Yale, ed., Sir Matthew Hale’s The Prerogatives of the King (London: Selden Society, 1976).

78. Bolt v. Stennett (1800), 8 Term Rep. 606, 101 E.R. 1572, involved a defence for Stennet, the city of London deputy for loading and unloading, who used Bolt’s crane without his consent. The crane, privately owned but placed on a public quay, was necessary for discharging the city’s ancient privilege, namely unlading goods. Consequently, Bolt received reasonable compensation for the use of his crane, but could not sue in trespass.

Allnut v. Inglis (1810), 12 East 527, 104 E.R. 206 [hereinafter Allnut], involved the refusal of the London Dock Company to accept wine imported by Allnut after he refused to pay the price demanded. The Company, a private corporation certified by the Board of Treasury under the Warehousing Acts, to store, upon landing, goods free of import duties, enjoyed a monopoly of such duty-free facilities. As a result of the refusal, the wine was landed and stored elsewhere thus attracting an import duty, for which the plaintiff sued. The court held that where private property is, by the consent of the owner, invested with a public interest or privilege for the benefit of the public, the owner can no longer deal with it as private property only, but must hold it subject to the rights of the public in the exercise of that public interest or privilege conferred for their benefit. Therefore the company was bound by law to receive the goods into its warehouses for a reasonable price. The issue of whether the company could repudiate the certificate at its pleasure was left open.

79. “For this purpose therefore the question may be taken to be, whether they [the company] may claim an unreasonable rent? But though this be private property, yet the principle laid down by Lord Hale attaches upon it, that where private property is affected with a public interest, it ceases to be juris privati only; and in case of its dedication of such a purpose as this, the owners cannot take arbitrary and excessive duties, but the duties must be reasonable”. Allnut, supra note 78 at 212, per Le Blanc J.

80. Ibid. at 210–11, per Lord Ellenborough C.J.

81. This is the full title of Haar & Fessler’s book, supra note 9.

82. “The hallmarks of the earliest common law doctrine of equal service, though cast and recast in various formulations, were the complementary concepts of equality of access, adequacy of rendition and reasonableness in the pricing of public or communal services and facilities”. Ibid. at 56.

83. Fitchburg Railroad Company v. Addison Gage, 78 Mass. 393 (1859), putting in place a thin notion of a duty to charge only a reasonable price, but allowing discrimination (differential fees for ice and bricks). This rule has lead to great abuse, and was replaced by rediscovering the principles behind the law of the common carrier—a duty to render service, and a duty not to discriminate: McDuffee v. Portland & Rochester Railroad, 52 N.H. 430 (1873) [hereinafter McDuffee]; New England Express Co. v. Maine Central Railroad Co., 57 Me. 188 (1869); and Messenger v. Pennsylvania Railroad Co., 37 N.J.L. 531 at 536–37 (1874) [hereinafter Messenger], which held that there is an implied condition, that it is held as a quasi public trust for the benefit of all the public, and that the company possessed of the grant must exercise a perfect impartiality to all who seek the benefit of the trust. For fuller exposition, see Haar & Fessler, supra note 9 at ch. 4.

84. See, e.g., State ex rel Webster v. Nebraska Telephone Co., 17 Neb. 126 (1885).

85. Munn, supra note 73, holding that the Illinois legislature could set maximum prices for warehouses, grain elevators and railroads, as the use of one’s property for such purposes was “clothed with a public interest” and therefore did not violate the constitutional taking clause, which protected only private property.

86. Portland Natural Gas & Oil Co. v. State ex rel. Keen, 135 Ind. 54 (1893). Compare to earlier decision, Paterson Gas Light Co. v. Brady, 27 N.J.L. 245 (1858) [hereinafter Paterson] where the Court feared all businesses would become public, and the Court would force companies to provide services outside their reach.

87. The City of Danville v. Danville Water Co., 178 111. 299 (1899).

88. Noble State Bank v. Haskell, 219 U.S. 104 (1911).

89. Consumers’ Light & Power Co. v. Phipps, 120 Okla. 223 (1927).

90. German Alliance Insurance Co. v. Lewis, 233 U.S. 389 (1914).

91. Constitutionally, the debate focused on the scope of legislative taking power (eminent domain) and the subsequent legislative authority to delegate this domain to private utility companies. The U.S. Constitution limits the powers of the state to confiscate, or ‘take’ land (or other property), even if compensation is offered. The state has to show that the taking is for public purpose or use: Missouri Pacific Railway Co. v. Nebraska, 164 U.S. 403 (1896). Such powers over ‘eminent domain’ were deemed delegable to private utility companies. See H.N. Scheiber, “The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts” in D. Fleming & B. Bailyn, eds., Law in American History (Boston: Little, Brown and Company, 1971) at 327.

92. The controversy in Munn, supra note 73 (and its progeny) centred around the constitutional powers of the state to regulate private business by statute. For the interconnectedness of the liberty of contract, the concept of business affected with a public interest and the notion of what constituted a direct effect on interstate commerce (all constitutional doctrines), see B. Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), esp. part III. The Court found that as regulation is legal in common law when businesses are affected with a public interest, so could these businesses be subjected to price regulation by the legislature. As the Court put it, “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created”: Munn, ibid. at 125–26. Scholars of the time such as McAllister (supra note 75), C. Fairman, (“The So-Called Granger Cases, Lord [sic] Hale, and Justice Bradley” (1952–53) 5 Stan. L. Rev. 587) and W.H. Hamilton (“Affectation with Public Interest” (1930) 39 Yale L.J. 1089), following the dissent in Munn, challenged the broad language of the regulatory powers of the common law, the wisdom of bestowing upon judges such a task, and the constitutionality of subjecting (in effect) all businesses to legislative regulation. As an alternative, scholars suggested limiting the boundaries of state intervention to situations where either a franchise was needed in the common law, or special privileges were given to a business, such as use of public property or governmental funding (including tax exemptions). See Taggart, supra note 9 at 223 quoting T. Cooley, “Limits of State Control of Private Business” (1878) 233 Princeton Rev., new series 1, as cited in Scheiber, supra note 91 at 327.

93. Nebbia v. New York, 291 U.S. 502 (1934).

94. See Slaughterhouse cases (Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522 (1923)) where the Supreme Court struck down state legislation declaring food processing, the manufacturing of clothing, the production of fuel, public utilities and common carriers as businesses affected with public interest, and thus subject to wage regulation. Chief Justice Taft, recognizing the difference between regulating wages and rates, nonetheless stated that the judicial power to declare a service ‘affected with public interest’ stemmed from the “indispensable nature of the service and the exorbitant charges and arbitrary control to which the public might be subjected without regulation”, intimating that if these criteria are not met, judges are not at liberty to declare a service ‘public’. Taft C.J. found that the production of food was not monopolistic, and danger of abuse did not lurk, and thus the state could not interfere with the freedom of contract.

95. Chief Justice Taft’s reasoning, summarized above, must be read contextuaily, given the widespread prosperity enjoyed by the U.S. in post-World War 1 times. For jurists of the time, the danger of abuse did not seem substantial. However, legally speaking, the principle itself allows for declaring a service ‘affected with public interest’ if it is indeed seen as a practical necessity, and if danger could be shown that, absent judicial control, its provision would lead to rate abuse or discrimination.

96. Haar & Fessler, supra note 9 at 165–68.

97. “[I In the eighteenth and early nineteenth centuries, the common law was also thought to represent human reason. In a famous English case of 1710 addressing the obligations of common carriers for loss of passengers’ goods, Justice Powell wrote: “for nothing is law that is not reason.” “[Singer supra note 9 at 1304, citing Coggs, supra note 63 at 109 (E. R.)]. For a general discussion of the centrality of reason, see Brudner, A., The Unity of the Common Law: Studies in Hegelian Jurisprudence (Berkeley: University of California Press, 1995)Google Scholar; Eisenberg, M.A., The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988)Google Scholar.

98. Molot, supra note 9, has demonstrated why the distinction between inns and restaurants is difficult to maintain.

99. What Lennox J., considered ‘legal’ deserves attention. After reciting the facts, including the offensive manner in which Mr. Franklin was treated [“The defendant confirmed the previous refusal—in fact repeated it; and he certainly was not as humane or considerate as he well might have been. If I said that he was unpardonably offensive, the expression may have been strong, but not too strong”], the Court noted at 350, that:

the plaintiff does not set up any actual financial loss. He is suing for the establishment of what he believes to be his right as a Canadian citizen; and, if wronged, he is entitled to at least nominal damages. The plaintiff is undoubtedly a thoroughly respectable man, of good address, and I have not doubt, a good citizen, and I could not but be touched by the pathetic eloquence of his appeal for recognition as a human being, of common origin with ourselves. The theoretical considerations of this matter is a difficult and decidedly two-sided problem, extremely controversial, and entirely outside my sphere in the administration of law—law as it is.

It is submitted that this is the error the Court committed: a refusal to see the legal implications of upholding a discriminatory policy in the provision of goods and services customarily available to the general public. Asserting that the question of the equal status of blacks is outside the administration of law is quite revealing.

100. Lennox J. did not see the fact that a license is required for operating a restaurant as suggesting reciprocity, since “no limit is placed upon the number of licenses issued”. He proceeded to state that licenses are issued to department stores as well, “but it could hardly be that the proprietor of a departmental store, for instance, cannot legally justify his arbitrary refusal to sell to a particular applicant, although ostensibly ready to sell to all who may apply”. And he continued: “That the immediate acceptance of an offer to pay the quoted price may constitute an irrevocable contact in itself does not impugn the soundness of the proposition I have been endeavouring to state. There was no ‘bargain struck’ in this instance”, despite the possibility of seeing such a bargain, as will be argued below. Lennox J. conceded that the law of innkeepers imposes a duty of equal service but noted that “there are many modifications and distinctions, such as ‘private hotels’, ‘residential hotels’, etc., where the general rule has no application or a limited application only”. Franklin, supra note 1 at 350–1.

101. Orchard, supra note 63.

102. “[E]ven an hotel-keeper may be excused on various grounds. Regina v. Rymer (1877), 2 Q.B.D. 136 [hereinafter Rymer] is only one of many instances”.

103. The facts of Rymer, ibid., a case of a private indictment, were as follows: “The prosecutor, Mr. Cramer, who was a householder living within twelve hundred yards of the hotel, had been in the habit of coming to the premises of the defendant accompanied by two dogs. He had formerly three. One of the two was a savage dog, and generally wore a muzzle; the other of the two was a quiet animal… [although had upon one occasion vomited on the door-mat of a tradesman’s shop in the town]…. They were very large, of the St. Bernard mastiff breed. … After a recent visit from the prosecutor, the hotel keeper wrote to him as follows:-

Dear Sir,-1 regret to have to request you will be so good as not to bring your dog or dogs into the Carlton. The slop and mess this evening has been much complained of, and the dogs are as objectionable in the Carlton as in the hotel….

The prosecutor replied that he had a right to bring the dogs [unless dirty or wet], since hoteliers are “under special laws, some of which tend to protect the public against the petty, tyrannical, whimsical, mad freaks or act of individual landlords”. The prosecutor was subsequently denied service upon arrival with a dog to the refreshment bar. The court found that in these circumstances the prosecutor was not a traveller and the refreshment bar not part of the hotel, but continued:

… even if both the foregoing questions had been answered otherwise, I think it clear that the defendant had reasonable cause for refusing to receive the prosecutor. I do not lay down positively that under no circumstances could a guest have a right to bring a dog into an inn. There may possibly be circumstances in which, if a person came to an inn with a dog, and the innkeeper refused to put up the dog in any stable or outhouse, and there were nothing that could make the dog a cause of alarm or annoyance to others, the guest might be justified in bringing the dog into the inn. But it is not necessary to decide any such question. In this case, looking at the previous facts, the number of the dogs previously brought, and their kind and behaviour, the nature of the right claimed by the prosecutor in his letter, and the size and class of the dog, I think the defendant would have had ample ground for his refusal even if the place had been an inn and the prosecutor a traveller.” Ibid. at 140.

It is submitted that the judicial reliance on Rymer, a case involving sloppy dogs, in the context of a refusal to serve on the basis of race is problematic, and perhaps demonstrative of the Court’s refusal to appreciate the significance of counsel’s plea for equal citizenship.

104. This can be seen with respect to businesses affected with a public interest, where a railroad or a phone line could be both businesses affected with a public interest and common carriers. See Haar & Fessler, supra note 9.

105. It should be noted that once repugnancy between two parts within the common law is found, the common law methodology demands that the jurist decide which of the two inconsistent parts to overrule. It would seem that the decision would have to take into account which part would best fit with the principles embodied in the other areas of the common law not immediately affected by the clash.

106. See, for example, Hall, F.P., The Concept of a Business Affected with a Public Interest (Bloomington, IN: Principia Press, 1940), canvassing the justifications provided in the various casesGoogle Scholar.

107. The literature identifies different types of monopolistic conditions, such as legal monopoly: Simpson v. A-C, [1904] A.C. 476 at 490 (H.L.); A-C Australia v. Adelaide Steamship Co. Ltd., [1913] A.C. 781 (P.C.); a ‘natural’ monopoly which occurs by way of business; and ‘virtual’ monopoly or oligopoly: Allnut, supra note 78, and Munn, supra note 73. For a critical analysis see “Note: Judicial Intervention in Admission Decisions of Private Professional Associations” (1982) 49 U. Chi. L. Rev. 840 at 848. See also Trebilcock, M.J., The Limits of Freedom of Contract (Cambridge, MA: Harvard University Press, 1993), analyzing the relationship between monopoly, legal or natural, and the freedom of contractGoogle Scholar.

108. B. Wyman, “The Law of the Public Callings as a Solution of the Trust Problem” (1904) 17 Harv. L. Rev. 156 at 156–60. In general, U.S. jurisprudence, following Munn, supra note 73, relies on the monopoly reasoning, and in some cases explicitly states that the finding of monopolistic conditions is a causa sine qua non. See Barrows v. Northwestern Memorial Hosp., 123 III.2d 49, 525 N.E.2d 50 (1988); Hottentot v. Mid-Maine Medical Center, 549 A.2d 365 at 368 (Me. 1988) [hereinafter Hottentot]. See “Note”, supra note 9.

109. A clear example of reliance on necessity can be found in the innkeepers cases, as at stake was the provision of shelter and food for a traveller, stemming from the necessity of such a service in a sometimes hostile environment. See, generally, J.H. Beale, Jr., The Law of Innkeepers and Hotels (1906) at 1–9. This is also reflected in J.H. Beale, Jr., & B. Wyman, Cases on Public Service Companies: Public Carriers, Public Works, and other Public Utilities (Cambridge, MA: The Harvard Law Review Publishing Association, 1902). In Sparrow v. Johnson, [1899] 8 Q.B. Que. 379 [hereinafter Sparrow], Bossé J., rejects the analogy between a theatre, as an amusement place, and an inn, for the purposes of establishing a duty for equal service, stating:

“L’hôtelier ou aubergiste est, par nos lois, soumis à des obligation spéciales nécessaires pour la sécurité et la santé des voyageurs. [para.] Un théâtre est placé dans des condition essentiellement différents. Il n’y a plus là nécessité, mais simple question d’amusement…” (383).

110. This rationale will be dealt with in detail infra, subsection c). For sub-categories see infra, notes 141, 142, 143 and accompanying text.

111. Coke, supra note 44; Ipswich Tailors’ Case (1614), 11 Co. Rep. Coke 53a, 77 E.R. 1218; Munn, supra note 73.

112. Trebilcock, supra note 107.

113. “A restaurant keeper is not at all in the same position as persons who, in consideration of the grant of a monopoly or quasi monopoly, take upon themselves definite obligations, such as supply accommodations of a certain character, within certain limits, and subject to recognized qualifications, to all who apply”: Franklin, supra note 1 at 350. It should be noted that as a matter of common law, an inn (unlike a ferry) does not require a grant or franchise to operate: see Anon. (1623), 2 Roll. Rep. 345 referred to in 3 Burr, at 1501. And see Halsbury’s Laws of England, supra note 63 at 445, n. (h).

114. Adler, supra note 50.

115. It is difficult to understand why a ‘private’ veterinary surgeon should be held not liable in malpractice, while a ‘common’ surgeon would, if the rationale were monopoly, 19 Y.B. 19, Hen. VI. 49, pi. 5. As a matter of history, it is unclear whether some professions operated under monopolistic conditions while others not. See Adler, supra note 50 at 149–50.

116. For a distinction between private inns and common inns see Halsbury’s Laws of England, supra note 52.

117. See Halsbury’s Laws of England, supra note 54.

118. See Hall, supra note 106 at 149; Haar & Fessler, supra note 9. It is clear that courts have not used one single justification.

119. In City of Levis, supra note 64, for example, the Privy Council referred to the “(in]convenience” of providing end-users with choice, instead of attempting to rely on strict monopoly.

120. See 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].

121. A traveller is distinguished from a neighbour (Calye’s Case, supra note 55) or a resident (Burgess v. Clements (1815), 4 M.& S. 306, 105 E.R. 848; Parkhurst v. Foster 1 Salk. 387,91 E.R. 337), to whom no such duty is owed. See also Crimston v. Innkeeper (1627), Het. 49, 124 E.R. 334; Newton, supra note 57 at 269; R. v. Luellin (1701), 12 Mod. Rep. 445, 88 E.R. 1441; Rymer, supra note 102.

122. “This premise”, writes Molot, supra note 9 at 634, “was developed out of historical necessity of medieval England, a land in which bad roads, the ubiquity of thieves along them and poor communications made travel a dangerous pastime indeed. Inns were intended as a haven for the traveller, his horse and belongings against robbery and murder, hunger thirst and exhaustion.”

123. This term was coined in Calye’s Case, supra note 55.

124. Sunbolfw. Alford (1838), 3 M.& W. 248, 150 E.R. 1135.

125. D.S. Bogen, “The Innkeeper’s Tale: The Legal Development of a Public Calling” (1996) Utah L. Rev. 51. Professor Bogen traces the development of the innkeeper’s duties, and suggests that at least in part the expansion of the duty to serve all was premised on a previous liability of the innkeeper for goods stolen from a guest at the inn.

126. Orchard, supra note 63.

127. See American and English Encyclopedia of Law, vol. 16, 2nd ed. (Northport, Long Island, NY: Edward Thompson Company, 1904)Google Scholar, Innkeeper, stating that it is doubtful whether is was ever intended to lay any stress on the term ‘guest’ (citing Walling v. Potter, 35 Conn. 183 (Sup. Ct. 1868), where the plaintiff resided half a mile from the defendant’s inn in the town of Kent yet was not denied the status of a guest).

128. Harder v. Auberge Des Fourges Inc., 40 A.D.2d 98,99–100,338 N.Y. Supp. 2d 356, 358 (1972) (N.Y. App. Div.) [hereinafter Harder]:

… Blackstone stated that a cause of action would lie against “an inn-keeper, or other victualler” who refused to admit a traveller without cause (3 Blackstone’s Comm., Sharswood ed., p. 166), and Judge Cardozo found that a “plaintiff, if wrongfully ejected from [a] café, was entitled to recover damages for injury to his feelings as a result of the humiliation” (Morningstar v. Lafayette Hotel Co., 211 N.Y. 465 at 467 (1914) [hereinafter Morningstar]). Although in Morningstar the plaintiff was a guest in the hotel wherein the café from which he was ejected was situated, there is nothing in the opinion to indicate that this was a crucial factor in the court’s decision.

129. See Adler, supra note 50.

130. Harder, supra note 128 at 99:

… At common law, a person engaged in a public calling, such as an innkeeper or common carrier, was held to be under a duty to the general public and was obligated to serve, without discrimination, all who sought service. On the other hand, proprietors of private enterprises, such as places of amusement and resort, were under no such obligation, enjoying an absolute power to serve whom they pleased (Madden v. Queens County Jockey Club Inc., 296 N.Y. 249 at 253; Woolcott v. Shubert, 217 N.Y. 212 at 216 (1916)).

The reason for the rule that innkeepers could not refuse service to members of the public was to make travel throughout the King’s domain possible. For whatever benefit and purpose the rule once served in ancient times, it has no relevance in the 20th century, and should not be recognized for the purpose of distinguishing inns from other places of public accommodation. In our view, a restaurant proprietor should be under the same duty as an innkeeper to receive all patrons who present themselves “in a fit condition”, unless reasonable cause exists for a refusal to do so.

Courts in Canada, following their U.S. and U.K. counterparts, can be read as rejecting necessity as an exclusive justification. A careful reading of Bossé J. in Sparrow, supra note 109, reveals that, while he rejected the direct, somewhat mechanical analogy between a theatre and an inn, he nonetheless left open the question of whether another rationale could justify a duty not to exclude on the basis of race, thus suggesting that necessity is not a necessary condition. At issue in Sparrow was the power of a theatre owner to discriminate between blacks and whites. But since the black patron had a ticket of general admission, and hence enjoyed the rights conferred by the purchase of this ticket, the Court did not have to confront the broader issue there; yet one could have expected explorations of that point in future cases, had the matter been considered under general principles of law, rather than under human rights codes.

131. See Molot, supra note 9 at 634–35.

132. Harder, supra note 128.

133. Even in cases where a status of guest was refused, the court did not question the association between food, lodging and an alcoholic refreshment. See for example Rymer, supra note 102.

134. See Adler, supra note 50 at 155, especially n. 76.

135. See Sparrow, supra note 109.

136. Can we justify, under the necessity rational, the duty not to refer a guest from one inn to another? Constantine, supra note 59.

137. See Christie, supra note 2.

138. Molot, supra note 9 at 615.

139. It is submitted that the private-public divide is contextual. In Britain, the debate has centred around the application of judicial review under Order 53 and the source of ultra vires judicial review jurisdiction. (See P. Craig, “Ultra Vires and the Foundations of Judicial Review” (1998) 57 Cambridge L.J. 63; 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; D. Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review?” [1997] Pub. L. 543). In the U.S. and Canada, the debate is organized around state action for the purposes of applying constitutional judicial review. (See “Symposium on the State Action Doctrine” (1993) 10 Const. Commentary at 309–441; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [hereinafter Eldridge]; P.W. Hogg, “The Dolphin Delivery Case: The Application of the Charter to Private Action” Case Comment (1986) 51 Sask. L. Rev. 273). As a point of context, then, this inquiry searches for a ‘public’ aspect of private entities engaged in their use of the common law. The ‘public’ aspect, therefore, is integral to the common law of private bodies, and is not a province of administrative law (cf. The Province of Administrative Law, supra note 48. The nature of the restraint on private entities explored here rejects the application of s. 53 to these bodies, and rejects a full analogy between judicial review and the common law duty of equal service (cf. D. Oliver, Common Values and the Public-Private Divide, supra note 9). This matter will be further discussed below.

140. Haar & Fessler, supra note 9 at 200, note this trend in American jurisprudence.

141. Haar & Fessler, supra note 9 at 219.

142. Molot, supra note 9 at 641.

143. Adler, supra note 50.

144. Cooley, T., 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)Google Scholar, as cited in Haar & Fessler, supra note 9 at 202. And see W.F. Foster, “The Doctrine of the United States Supreme Court of Property Affected by a Public Interest, and its Tendencies” (1895) 5 Yale L J. 49. Cooley mentioned “necessity, convenience and welfare” as features which distinguish a purely commercial activity from that which is sufficiently governmental so as to allow the government to engage in such an activity, or regulate it, under the U.S. Constitution. By implication, if such an activity is carried out by a private company, the common law may place it under a duty of equal service. Perhaps under the rubric of ‘convenience’, one could point to considerations of scale, which might tint a commercial business in a quasi-governmental light, or to the need to co-ordinate with other aspects of government, such as public land development. Another aspect of ‘governmentness’ could be traced to the origin of the specific power granted to private entities. For example, the power to expropriate land for public use was a delegated sovereign state power of eminent domain. Such delegation of state power sufficiently infused corporations with governmental properties to subject them to duties similar to those the government would face. As Haar and Fessler put it, “the power determined the identity” (Haar & Fessler, supra note 9 at 217).

145. See e.g. “Note”, supra note 9.

146. A similar analysis could be read between the lines in Adams, supra note 73.

147. Such as education, and the provision of health: see Eldridge, supra note 139.

148. See e.g. Habermas, J., Legitimation Crisis (Boston: Beacon Press, 1975)Google Scholar; Habermas, J., Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996)Google Scholar.

149. “A common Carrier exercises a public employment,” states Halsbury’s Laws of England, supra note 54 at para. 441.

150. hens, supra note 56.

151. Molot, supra note 9. A similar rationale was used to substantiate governmental nature for the purposes of constitutional judicial review. See Eldridge, supra note 139.

152. M.J. Horwitz, “The History of the Public/Private Distinction” (1982) 130 U. Pa. L. Rev. 1423; A.C. Hutchinson & A. Petter, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988)38U.T.L.J. 278.

153. “That an industry was owned privately, even that the profit motive underlay its formation and provided the incentive for its investment, was not determinative in the courts’ eyes. When the function performed was judicially defined as public in nature … its financing and pursuit of profit became ‘incidental only’.” Haar & Fessler, supra note 9 at 206. And see Sandford v. Catawissa Railroad Co., 24 Pa. 378 at 380–81 (1855) [hereinafter Sandford]. The profit motive was not persuasive in Morningstar, supra note 128 either, dealing with excessive charges for food in a hotel. A similar picture appears in English jurisprudence, where the duty to provide service at a reasonable price is tied to a concept of vocation which is not for individual profit only, or even primarily. See Crisp, supra note 57 and Kirkman v. Shawcross (1794), 6 Term Rep. 14 at 17, 101 E.R. 410 at 411.

154. Scholars have been grappling with ‘the divide’ quite extensively: See J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford: Clarendon Press, 1996); J. Beatson, “‘Public’ and ‘Private’ in English Administrative Law” (1987) 103 L.Q. Rev. 34; P. Cane, “Public Law and Private Law: A Study of the Analysis of and Use of a Legal Concept” in J. Eekelaar & J. Bell, eds., Oxford Essays in Jurisprudence, Third Series (New York: Oxford University Press, 1987) at ch. 3; see both P. Craig and Forsyth supra note 139.

155. Eldridge, supra note 139.

156. Hogg, supra note 139; D. Beatty, in “Canadian Constitutional Law in A Nutshell” (1998) 36 Alta. L. Rev. 605 finds the move made in Eldridge redundant.

157. But cf. Molot, supra note 9. However, it should be noted that Molot suggests that we can “pick and choose” which of the common law duties are applicable. While this move might make sense in terms of the common law, it is unclear whether we can substantiate a differentiation between ‘governmentness’ for common law purposes, and non-government for Charter purposes. Molot did not have to confront that issue, writing in 1968.

158. Even if we assume that absent a clear statute the common law would ascribe private law duties to governmental entities, i.e., subject the government to the law of torts, or contract law, a principled approach would situate the source of the duty in the initial vires of the governmental agency, rather than in the moral agency of the interacting parties. Similarly, the content of the common law duties imposed upon governmental agencies might in fact be more lax than those placed upon individuals, since the government is arguably not acting for its own benefit, but rather for the benefit of the public at large. Thus, the government may be allowed to invoke public interest as a justification for reduced reliance damages in pre-contractual negotiations that broke down.

159. Dolphin Delivery, supra note 16.

160. “State Action” in G. Gunther, Constitutional Law, 12th ed. (Westbury, NJ: Foundation Press, 1991).

161. Oliver, Common Values in Public and Private Law, supra note 9.

162. The possibility of subsuming all legal interactions under the constitutional norm by providing a juridical person with a constitutional cause of action against another juridical person is dealt with in Reichman, supra note 14 at ch. 2. See also J.D. Whyte, “Is the Private Sector Affected by the Charter?” in L. Smith et al., eds., Righting The Balance: Canada’s New Equality Rights (Saskatoon, SK: Canadian Human Rights Reporter, 1986).

163. See “Note”, supra note 9. But see Oliver, supra note 161, calling such a classification artificial and unnecessary, if not harmful, to the progressive agenda.

164. The goods received from the state could be the right to use public docks: Allnut, supra note 78, or more generally, a franchise, (as is the case with a ferry—see supra) including a monopolistic one. It should be noted that theoretically this justification views a monopoly as a public good which can be traded in exchange for a public-oriented duty. This is distinguished from the ‘monopoly’ justification, which focuses on the alleviation of dangers associated with monopoly. Another ‘state good’ could be a privilege to engage in a profession over which the state has assumed full control via regulation: Davis J. dissenting in Christie, supra note 2 at 152. A right to use state power to expropriate property is another good which associates a corporation with the government. The grant of such power was needed in the public utility cases—see supra notes 82–96 and accompanying text. However, the bargaining construct sidesteps the ‘eminent domain’ conundrum. It assumes that the state has powers to expropriate land for public use, and instead of scrutinizing whether the actual use was indeed for a public purpose (i.e., whether the state, or the delegated corporation, has acted constitutionally and/or whether the ‘subject matter’ is sufficiently public to establish common law duties), the very act of receiving some state-related good implies a correlative consideration. Public funding is a classic example of ‘state good’. Cf. T. Cooley’s Treatise, supra note 144, which suggests public funding and easement of taxation discounts, as possible sources of justifications for deeming a business as affected with a public interest. The act of accepting public funding, in and of itself, does not necessarily substantiate a duty to use the money in a manner respecting the duty of equal service. If an individual receives welfare, that does not automatically mean that he should not exclude Jews from a dinner he is cooking with that money. The acceptance of public grants, here, is used to suggest that a bargain must have been struck between the public and the provider, from which the public is assured that its interest will be taken into account. Thus, for a right to equal service to be claimed, other elements of the bargain have to be shown. In short, the list of ‘state goods’ is quite expansive, and might even include the use of public fora for advertisement. See, in the context of housing, Beech Grove Inv. Co. v. Civil Rights Com., 380 Mich. 405, 157 N.W.2d. 213(1968) [hereinafter Beech].

165. A case on point is Allnut, supra note 78 where Lord Ellenborough could be read as stipulating a. quid pro quo: “… but if he (the provider] have a monopoly…, if he will take benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms…”

166. Bracton was very clear on this point, stating that in fact all grants and franchises (i.e., the right to engage in any vocation) belonged to the King. Citizens could nonetheless engage in all non-franchised activities, unless or until the King reassumed his powers. H. Bracton, On The Laws and Customs of England (c. 1250), trans. S.E. Thome (Cambridge, MA: Harvard University Press, 1968) at 166.

167. At least one court suggested that finding a legislative intent to confer the power to discriminate raises “a question of the constitutional authority of the legislature to convey a prerogative so hostile to the character of our institutions and the spirit of the organic law”: McDuffee, supra note 83.

168. See discussion in Molot, supra note 9 at 636.

169. Non-individual does not deny the human aspect of providing service, as clearly human beings are cast in the roles of provider and customer. ‘Non-individual’ as a feature which characterizes the interaction of the provision of the service stands for the non-associational aspect of such provision. The logic of the business in question does not require the provider and the customer to form an association, nor to engage in meaningful, moral, aesthetical or value-forming communicative exchange or creation. The business is oriented toward an exchange of tangible goods or services, the identity of the provider or customer being a mere circumstance.

170. As Adler, supra note 50, when analyzing the cases dealing with common callings, states:

What then did “common” mean? Simply, “business,”—business carrier, business tailor, business barber. A common surgeon was one who made business of surgery, who practiced it commonly; a common tailor was one who was in the business of tailoring. In 1367 an order was made for porters and creelmen “who then exercised that craft commonly”—a perfect illustration to the true meaning of the word “common”… (at 152).

We may reasonably conclude, therefore, that so far as the carrier’s business is concerned, it is no different from any other business. The carrier, like every other business man, purports to serve and to deal with the public. Business is impersonal; in ordinary course it is merely a question of merchandise or other exchangeable values on the one hand and money on the other. A man is engaged in business when he solicits the favour and undertakes to deal with persons indifferently for profit. This is the common characteristic of all business and at once its identification and definition (at 156). [emphasis in original]

171. Those who follow the writings on the law of common callings are familiar with the ‘test’ writers have to pass in order to qualify as presenting a viable rationale for the law of common callings: the distinction between a carpenter and a smith, found in Keilway 50, PI. 4, infra note 209. Some have claimed that the distinction originates in a monopoly (see Wyman, supra note 108). 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. 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). 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 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. As pointed out to me by Professor Ernie Weinrib, the division between associational and non-associational vocations is consistent with a Hegelian approach (see Hegel’s Philosophy of Right, trans. T.M. Knox (Oxford: Oxford University Press, 1967) at para. 35).

172. Falcone v. Middlesex County Medical Society, 34 NJ. 582, 170 A.2d 791 (1961) [hereinafter Falcone]; Hottentot, supra note 108.

173. Pinsker v. Pacific Coast Soc. of Orthodontists, 1 Cal.3d 160 at 166,460 P.2d 495 at 499 (1969).

174. Shifting perceptions is a recognized legal phenomenon. Films were originally not seen as a medium for expression (Mutual Film Corp. v. Industrial Com, of Ohio, 236 U.S. 230 (1915)), gas not as a public utility (Paterson, supra note 86) and racetracks not as fully private (Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 148 A.2d 1 (1959) [hereinafter Garifine). All three holdings were later reversed). Similarly, it could be argued that theatres were considered in the days of the Norman conquest to be non-individual (communal), i.e., beyond private ownership. Perhaps their sociological role in society has shifted, through the rule of aristocracy and the rise of individualism, to include a unique associational, or identity-forming aspect, and hence the pre-World War II courts were more attuned to the right of the owner to decide who may enter. Arguably, our contemporary understanding of culture and community is such that we recognize theatres as a ‘general’ or ‘public’ socializing forum. Thus, unless the theatre is part of a club organized around membership, we view the relationship between the theatre owner and the public as non-individual, or as centred around the role of providing culture and consuming it, rather than as creating and forming joint aesthetic associations. Perhaps a similar account could apply to restaurants.

175. “Why are Inns established?” asked the Court in Ivens, supra note 56 at 97, and then replied: “for the reception of travellers who are often very far distant from their own house.” Thus, the contours of the duty owed by the innkeeper towards the traveller includes receiving guests in late hours. As we see, the Court engages in an analysis of the nature of the profession or vocation at hand, and inquires as to the set of responsibilities assumed by those who choose to hold themselves out as members of that profession.

176. See Molot, supra note 9, analyzing cases; see Haar & Fessler, supra note 9; Burdick, supra note 49.

177. See Burdick, supra note 49 at 516: “It was because a person held himself out to serve the public generally, making that his business, and in doing so assumed to serve all members of the public who should apply, and to serve them with care, that he was liable in an action on the case for refusal to serve or for lack of care in the performance of the service, by which refusal or lack of care he had committed a breach of his [general] assumpsit.”

178. This idea of a profession resembles concepts of the ultra vires doctrine. Yet the competence to contract was not allocated by statute—it is inherent to the role and therefore cannot tolerate repugnancy to the inner logic, or raison d’être, of the role. Compare to cases dealing with sale of offices, where the contract was between public parties, but the subject matter ‘belonged’ to the government, or the public.

179. Sandford, supra note 153, cited in Haar & Fessler, supra note 9 at 203 in a different context.

180. Messenger, supra note 83, as cited in Haar & Fessler supra note 9 at 205–06.

181. I owe this point to Professor Ernest Weinrib.

182. For discussion of associational rights see J. Rossi, “The Common Law “Duty to Serve” and Protection of Consumers in an Age of Competitive Retail Public Utility Restructuring” (1998) 51 Vand. L. Rev. 1233. However, if such association is monopolistic, exclusion ought to be rejected. See Falcone, supra note 172.

183. If we accept that in the associational cases imposing a duty to provide service to all, that is, to ignore the associational aspect, is in conflict with the human dignity (autonomy) of the service/good provider (see further discussion under property, below) we can, by analogy, accept the claim that one’s own domicile, the house or apartment in which one generally lives, deserves, when put temporarily on the rental market, a different kind of treatment, because of its centrality to one’s sense of self (see D.l.A. Cohen, “On Property as Self (1998) 26 J. of Psychiatry & Law 3). In other words, perhaps, under the common law regime, one may be entitled to express prejudice when one’s own apartment is rented for a limited period of time. The thought of a man sleeping in Joan’s bedroom might be offensive to her, prompting her to decline renting her apartment to men; Joseph, a member of the Jewish faith, might be offended by a Catholic dining in his dining room, given dietary concerns; François, a sovereignist, might find the idea of a federalist using his study intolerable; Paul, a Catholic, might feel that renting his own apartment to a gay couple might somehow taint his bedroom and doom him to hell. All, undoubtedly, are prejudicial attitudes. Yet it could be argued that imposing a legal duty in these cases to ignore prejudice might constitute a harm in itself, given the centrality of one’s home to one’s identity. One could, perhaps, equate the renting of one’s own home to providing personal services, which are arguably exempted from the duty to provide equal services.

184. See R. v. Edwards Books and Art, [1986] 2 S.C.R. 713.

185. At a certain point a sale of a house amounts to a sale of stock, if the seller is in the business of selling houses.

186. However, if such a line were drawn such that all property other than the domicile itself of the landlord (and perhaps the domicile of one’s parents or children), were considered commercial, the dissonance created might be minimal. The special case of the person renting out her own apartment might be seen as a transaction flavoured with familial (or associational) essence, rather than a purely commercial enterprise. As such, the liberty to associate (or not to associate) might trump equality demands. It should be noted that it is not clear whether such an approach is identical to the one adopted by the human rights code. For example, the Alberta human rights code does not differentiate between the commercial and accidental rent provider. However, s. 11.1 of the IRRA states that “[a] contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened shows diat the alleged contravention was reasonable and justifiable in the circumstances.”

187. For an Hegelian critique of the Kantian paradigm see Brudner, supra note 97. The notion of status builds upon Brudner’s exposition.

188. Marriage is an example of assuming an obligation to specific members of a community. Marriage provides a couple with the tool through which to express their recognition for each other not merely as agents free to pursue their own goals. The unit provides a structure under which each married person is expected to take into consideration the wellbeing of his or her spouse. As a result, familial obligations may trump individual property or testimonial rights.

189. Cf. Brillinger and the Canadian Lesbian and Gay Archives v. Brockie, (29 September 1999; 24 February 2000) BI-0179–98 (O.H.R.B.), where the Ontario Human Rights Board decided to the contrary, without distinguishing between taking the identity of a customer into account and refusing service so as not to take part in, or be associated with, a commission of what one’s religion sees as a sin. Placing the printer under a duty to provide printing services in these circumstances may be problematic because such a duty coerces the printer to commit a certain act or associate with a certain cause against his will as an autonomous agent. In order for such a coercion to be justified in law, we have to locate the source of such a duty. This paper suggests that professional status may be a source of a duty to provide equal service upon request, because the profession is organized as non-associational, or non-individual, and therefore as a professional, the printer may not take the group-based identity of his customers into account. Further analytical work is required in order to establish a duty to provide a service irrespective of the nature, associational or other, of one’s actions.

190. Applbaum, Cf. A.T., Ethics for Adversaries: The Morality of Roles in Public and Professional Life (Princeton, NJ: Princeton University Press, 1999)Google Scholar.

191. For example, this rationale may prove inadequate, or circular, in explaining why an innkeeper, under the non-individual understanding of his profession, cannot refuse service to all on a certain day. Replying that a duty to serve is part of the true essence of the profession of innkeeping runs the risk of conclusionism.

192. Similar claims were made with respect to the idea of contract in general. See Atiyah, supra note 47.

193. Opposing counsel would have at his disposal Holmes’ remark, which saw some aspects of the law of common callings as “monstrous” (see Holmes infra note 196 at 160). See also R.A. Epstein, Forbidden Grounds, The Case Against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992).

194. “Note”, supra note 9.

195. Oliver, Common Values in Public and Private Law; Oliver, Common Values and the Public-Private Divide, supra note 9.

196. Holmes, O.W., The Common Law (Cambridge, MA: Belknap Press of Harvard University, 1967 (1st ed. by Little Brown, 1881))Google Scholar. Holmes, unable to reconcile the cases based on the principle of the bailee’s responsibility, which he seems to have advocated, resigned to answer the quest for a coherent body of law by saying “we can only answer it by enumerating the decisions in which the old law is applied; and we shall find it hard to bring them together under a general principle” (at 159–160).

197. Bogen, supra note 125.

198. When rejecting an analogy between an inn and a theatre, Bossé J. must have had in mind not only the perceived difference regarding the ‘necessity’ of these services, but also the effect of analogy: placing a theatre under a duty to serve (an inn doesn’t close at night: Iverts, supra note 56, a ferry must be available at all reasonable hours: Gravesham, supra note 56); making a theatre liable for goods lost, etc.

199. Analytically, such legitimate expectations may be conceived of as part of a ‘larger contract’ between the profession and the community, with respect to the use of public elements by the profession, be these public elements concrete goods or the legal power to address non-specific members of the community. Viewed differently, such expectations can be seen as derived from the essence of the profession, quite like the expectations of due diligence and other professional standards.

200. As mentioned above, such a classification takes seriously the notion of a profession as possessing inherent requirements on the manner in which the profession is being pursued. These requirements are not arbitrary, as they could be shown to derive from the raison d’être of a profession being ‘common’, directed at the ‘public’, or non-individual. A person holding herself out as professing such a vocation is seen as publicly declaring the assumption of some responsibility to the profession itself. Hence, the professional owes a duty to members of the community to provide equal service as part of meeting a certain standard of practicing a profession. Such a standard, in professions defined around non-individual service, does not tolerate discrimination, or refusal to serve based on irrelevant characteristics. Such a return to the idea of a profession (and virtues/responsibilities thereof) is consistent with a long tradition within the common law. This is the essence of Haar and Fessler’s book, supra note 9.

201. In this respect, this paper suggests that Hohfeld’s attack on in rem rights was too expansive. While Hohfeld is correct in suggesting that in rem rights always materialize in adjudication between two particular individuals, and therefore play out in adjudication as in personam rights would, the analytical foundation is different, once we appreciate the necessary proximity that is required for the application of in personam rights, which does not require a ‘public’ element, and the structure of in rem rights, which requires some public element as a broker between the holder of the in rem right and the person subjected to correlative duty which flows from the right. See W.N. Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale L.J. 710.

202. The monopoly may not necessarily extend to goods and services which otherwise would be essential, but nonetheless, the monopoly [de jure or de facto] carries with it a duty to serve all. Cf. City of Levis, supra note 64. For the development of the law of public callings see Wyman, supra note 108. For the use of the concept of monopoly in U.S. common law jurisdiction see Falcone, supra note 172; and in the context of discrimination against minorities see “Note”, supra note 9.

203. This category may cover most of modern commerce, as its source is the nature of the entity as one which “held [itself] out to serve the public generally, making that [its] business”: Burdick, supra note 49; Adler, supra note 50; Molot, supra note 9. For U.S. cases broadening the common law duty to serve (without necessarily extending the stringent liabilities for reasonable prices, stolen goods and the like) see examples in “Note”, supra note 9 at 1998, such as restaurants, gasoline stations, home builders and even places of amusement, such as casinos.

204. This category includes those businesses and services which do not hold themselves open to the general public, but which are centred around association, such as private clubs, or familial associations. In addition, the category includes goods and services in which the provider invests part of his or her personality, as is the case of contracts for personal services, such as singing, or performing art and the like, which constitute part of the very identity of the performer, above and beyond the commercial interest involved. In a sense, one could claim that these belong to a private sphere, and are thus governed by jus privati (see Hale, quoted in supra note 76), based upon the liberty to pursue one’s happiness (See Coke, supra note 44 Coke, inst. 2 47).

205. Such true necessities, in modern days, should include basic public utilities (water, electricity, gas) and health services, without which actual life might be in peril.

206. Browne, supra note 58. As for the prices, not only must they be reasonable, but the provider is liable for damage to the customers’ goods once under her hospices (and if she falsely refused to accommodate, even if lost or stolen outside her hospices: White’s Case, supra note 55). In other words, the common law regulates these necessities to a great extent, seeing them as part of a profession which ‘belongs’ to the community (Parker v. Flint (1699), 12 Mod. Rep. 254, 88 E.R. 1303). Very few reasons are considered ‘reasonable grounds’ for refusal to serve. Among them are a full house (“For he is bound to receive all manner of people into his house till it be full” said Holt C.J. in Lane, supra note 61) and indecency, drunkenness and improper behaviour of the guest (Ivens, supra note 56, but see Scrivenor v. Reed (1858), 6 W.R. 603, stating that pursuant to misconduct an owner may remove a guest from a particular room, but not from the house altogether).

207. The businesses under this category may consider broader factors in their decision as to whether to engage in a transaction with a specific individual. For example, a licensee of a pub (which is not an inn) may assess the likelihood of a future disorder and if he finds a fight likely, or if he finds the individual customer to be troublesome, he may eject the customer, even if disorderly conduct has not yet begun. (See Sealey v. Tandy, [1902] 1 K.B. 296). Had this been an inn, the owner would have had to wait until disorder actually started. 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”: Ferguson v. Gies, 82 Mich. 358 at 365, 46 N.W 718 at 720 (1890)). In Canada, Bossé J. left the question open in Sparrow, supra note 109 at 383, and 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 Martin J. distinguished between total exclusion and using group-based characteristics to assign seating). 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.

208. It should be noted that a justification for exclusion based on loss of clientele (“I have nothing against blacks, but if I serve blacks I will lose business, because people will go elsewhere”) misses the point. Either the profession is considered non-associational, in which case there will be nowhere else to go which does not serve blacks, and therefore no credible loss of business could be shown, or the profession is considered associational (i.e., sensitive to the group-identity of the customers) in which case the duty wouldn’t apply, and the organizational structure of the profession would be club-like. The idea that a profession could be associational to some but non-associational to others again misapplies the term ‘profession’: either a restaurant is about serving food to the general public for profit, or it is about providing an environment for people to associate with their friends as they eat, in which case it should be organized as a club, with membership requirements, size limits and the like.

209. This rubric of the law captures what may be termed as ‘personal services’ (for which special performance is rejected—see Halsbury’s Laws of England, vol.9(1), 4th ed. (London: Butterworths, 1980) “Contract”), or transactions to which the identity of the provider and the customer is important, as may be the case in the paradigmatic case of a contract. See Atiyah, supra note 47. See Keilway (1503), 50 PI. 4, 72 E.R. 208, where the Court stated that “where a carpenter makes a contract to build a house and does nothing, the action against him lies not on the case but it sounds in contract”, implying that there is no duty on the carpenter to provide his services without an explicit contract, which he may or may not enter into. For associational rights in general see Rossi, supra note 182.

210. The reasons for that are twofold. First, the common law draws, at least to some extent, its legitimacy from acceptance, hence from moral reasoning, formed via moral interaction within associations. Full control over such associations obliterates the necessary freedom to form values. Second, the common law could be seen as drawing its legitimacy from the concept of human dignity. Integral to the concept of human dignity is the sphere in which one may form moral values, associate and interact with people of one’s choosing or liking. Subordinating the human dignity of A, who wishes not to include B in the association, to the claim of B who wishes to force association, amounts, unless the association is in some way ‘open to the public as such’, to the subordination of the dignity of one to the dignity of another, which is repugnant to the very idea of human dignity. This does not entail granting full control to A regarding his property rights, as will be discussed below, but it does suggest that the state might require further justification before it disallows A from forming a club with people of his choosing.

211. Haar & Fessler, supra note 9.

212. Singer, supra note 9; Molot, supra note 9; Oliver, supra note 9; Burdick, supra note 49; Taggart, supra note 9; Haar & Fessler, supra note 9. It should be noted that each of the writers presents a different model for analysis, and therefore would reach a slightly different articulation of the governing categories. Yet it would appear that all the aforementioned writers challenge the assumption that retail store owners, or restauranteurs, may discriminate against their customers or prospective customers along group-based characteristics such as race.

213. Supra note 2.

214. Supra note 1.

215. Supra note 42.

216. Arguably, Mr. Christie had ‘struck a bargain’ by asking for 3 glasses of beer and presenting adequate money in a tavern open for business. Likewise, Mr. Franklin had done the same by asking for a luncheon in a restaurant (presumably relying on the menu). Mr. Reynolds could be held as entering into a contract for general admission to a show, as specifically stated by his ticket. The theatre could not have relied on a condition on the back of the ticket that “all privileges might be revoked by the management”, as this condition could not be construed to include unreasonable cancellation (see dissent by Carroll J. at 461–62). Hence the house segregation rule did not apply to Mr. Reynolds, even though he knew about it, since it was not part of the offer and acceptance.

217. Another aspect of Loew’s, supra note 42, was its staging as a test case. At least one judge found that such a stage does not warrant the sympathy of the Court.

218. An interesting question might be whether a theatre can put in place a ‘black/ white/ male/ female/ Jewish/ Catholic/ heterosexual /homosexual night’, in which only members of these identity groups are allowed. Perhaps one could answer in the positive, provided that ‘general’ nights were offered too, and that the price and quality of the shows were the same for all.

219. See Gibson, supra note 30, celebrating the ‘action on the case’ as developed by the Ontario Court of Appeal in Bhadauria.

220. “Note”, supra note 9.

221. Harder, supra note 128.

222. Streeter v. Brogan, 113 N.J. Super. 486 at 493, 274 A.2d 312 at 316 (1971).

223. Leach v. DrummondMedical Group, Inc., 144 Cal. App.3d 362 at 373, 192 Cal. Rptr. 650 at 657 (1983) basing a duty to provide equal service on virtual monopoly.

224. Beech, supra note 164 at 435–36, 157 N.W.2d 213 at 227–28.

225. Uston v. Resorts International Hotel Inc., 89 N.J. 163,445 A.2d 370 (1982), in effect overruling Garifine, supra note 174, which held that since a racetrack was a private enterprise it could exclude any would-be patrons.

226. Singer, supra note 9.

227. Cf. S.C. Coval & J.C. Smith, “Compensation for Discrimination” (1982) 16 U.B.C. L. Rev. 71, esp. at 98–100. The authors attempt to identify clashes between ‘fundamental rights’ and less fundamental interests, suggesting that the interest of a restaurant owner as to the identity of his patrons is less fundamental than the interest of a landlord as to the group identity of her tenants. I failed to fully grasp the reasoning provided in support of such a distinction, as well as those presented to support a distinction between the proper enforcement mechanisms in these two situations. As mentioned, the approach suggested here does not accept categorical differences between the types of interactions. However, as a matter of theory, both the approach suggested here and that adopted by Coval and Smith recognize the centrality of human agency.

228. See discussion in Klar, supra note 34 at 393.

229. As mentioned above, further work needs to be done in order to fully outline the exact contours of a cause of action in tort which allows a plaintiff a remedy against instances of discrimination when proximity is established in non-associational, profession-based interactions.

230. Professor Richard Epstein, in the introduction to his book (supra note 193 at 7) writes that he has asked many people to refer him to any book or article that states in systemic terms the modern case for anti-discrimination law against the common law alternatives, and none has been offered. If my argument is correct, Epstein’s quest was misguided because the anti-discrimination principle is integral to a systemic understanding of the common law.