Hey Adam:

 

I am somewhat in agreement on the point that there is a rationale for Fox beyond the public policy concern.  I do think the judges as a whole are not entirely in agreement on what that rationale is, however.  Students and commentators spend a lot of time on Galligan’s opinion, but a close look seems to indicate that there is a great deal of disagreement on the rationale.  At least one, and perhaps both, justices are uncomfortable with Galligan’s  approach.

 

I also agree that public policy was not necessary in Fox.  That has long been my objection to it.

 

I, too, have puzzled about why counsel were unprepared to argue the question of whether public policy prevents discrimination in “private, family trusts.”  Perhaps I’m giving them all too much credit, but I half wonder that it’s because they might have been surprised by the question.  Having been told in Leonard that the decision does not apply to private trusts, they perhaps thought that question was settled, or at least not up for discussion in the context of the facts in Fox.  Perhaps like you and I, counsel in Fox were well aware that courts have long countenanced religious discrimination in trusts even in Ontario and so were not prepared with any comprehensive argument.  The fact that no one was prepared to argue the question should have been a sign to the court that it’s off-hand treatment of the issue was ill-advised.  That, for me, raises deep concerns about the motives and wisdom of just charging ahead.  It’s why I say that the public policy portion of Galligan’s opinion is just sloppy.

 

I am also hostile to Murley’s Estate.  That really does seem to be an ill-bred opinion.

 

The combination of Galligan J. in Fox and the single sentence in Murley provide ammunition to those, like me --- and I agree I  may be a small and eccentric minority --- who are hostile to the sweeping use of public policy  to justify what appear to be personal preferences of the judges involved.

 

I do agree with your view on McCorkill, however.  It really does raise some interesting points.

 

Best

Matt

 

 

 

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Matthew P. Harrington

Professeur titulaire

 

Faculté de droit

Université de Montréal

3101 chemin de la Tour

Montréal, Québec H3T 1J7

514.343.6105

www.droit.umontreal.ca

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