To one degree or another and whether we acknowledge it or not, we all eschew some form of unconscious bias. If left unchecked, our biases can negatively affect the way we interact with other of differing, races, cultures and socio-economic backgrounds. In some instances, unchecked unconscious bias can manifest itself as systemic anti-black racism.

Can a court account for the reality of racial prejudice when considering an equitable remedy?  The answer is yes. The Ontario Superior Court of Justice in Elias Restaurant v. Keele Sheppard Plaza Inc.[1], a case concerning a commercial tenancy, is proof positive that such biases can be taken into consideration in the determination of an appropriate equitable remedy.

Elias Restaurant is a family restaurant, owned by a husband-and-wife team. Located in a shopping plaza on Keele Street and Sheppard Avenue, the restaurant caters primarily to the Black community, serving Caribbean, African, and Black cultural foods. Keele Sheppard Plaza Inc., took over as Landlord in 2016 and hired Castehill Properties Inc. as the Property Manager.

In 2013, Elias Restaurant took over a five-year lease dated August 1, 2012, for a 1500 square foot restaurant and bar. Under the original lease, Elias Restaurant had the option to extend the lease upon expiry for two more five-year terms. Elias Restaurant was required to provide written notice to the Landlord that it was exercising its renewal option, at least six months prior to the end of the lease.

Six months before the lease expired, in 2017, Elias Restaurant tried to contact the Landlord and the Property Manager to exercise the renewal option. Despite numerous phone calls, neither the Landlord nor the Property Manager got back to Elias Restaurant. In the end, Elias Restaurant continued its tenancy as an overhold tenant. And in 2020, Elias Restaurant was served with a notice terminating that tenancy.

In its application to the Court seeking relief from eviction, Elias Restaurant convinced the Court that the Landlord never responded to its attempts to renew the lease, because the Landlord did not like the restaurant’s primarily black clientele. Even though Elias Restaurant was family owned, the Landlord said that it did not attract “like minded family-oriented customers”.  And the Landlord’s contractor complained that, people who he assumed were patrons of the restaurant, were often smoking, drinking, gambling and engaging in otherwise “undesirable” activities. The restaurant had a license to serve alcohol.

The Court found these comments resembled a caricature of racially derogatory themes. And that they pointed to a mindset that condemned the minority population for what is considered normal behaviour by the majority. Unsurprisingly, the Tenant was granted its relief.

The Court made significant comments about the racial prejudice Black Canadians face every day. It stressed the importance of considering this racial bias and injustice when awarding equitable remedies. At the very least, the Court held, it must consider the societal realities that face Black businesspeople.

This case is a powerful reminder that, not only do Black Canadians suffer racial bias on a frequent basis, but that the law will not act as a mask for such bias. Parties such as a Landlords must be careful to act in good faith, and parties like Elias Restaurant can rest knowing that any racial prejudice will be accounted for by the Court when it considers granting an equitable remedy.

[1] 2020 ONSC 5457.