The doctrine of public policy was recently considered by another Canadian trusts case in Re The Esther G. Castanera Scholarship Fund, a decision of the Court of Queen's Bench of Manitoba available at http://www.canlii.org/en/mb/mbqb/doc/2015/2015mbqb28/2015mbqb28.html?resultIndex=1.
At issue was a charitable trust restricting scholarships to female graduates of the settlor's high school majoring at the University of Manitoba in chemistry, physics, mathematics, biochemistry or molecular biology. The University of Manitoba declined to administer the fund according to its terms on the basis that women were no longer underrepresented in all of the specified programs of study. An application for advice or direction was brought to determine whether the scholarship fund violated either public policy or the Manitoba Human Rights Code. Not surprisingly, Dewar J. upheld the fund.
With respect to public policy, the following points (explicit and implicit in the court's reasoning) are of interest:
- Proportionate representation is not the definitive factor for determining whether a scholarship exclusive to a particular group violates public policy. That is, a scholarship can be exclusive to a particular group even if that group is not underrepresented.
- A scholarship can be upheld even if it is targeted on the basis of criteria that are ultimately unrelated to the end game of advancing education. This point is of particular importance, as some have argued that the eligibility criteria for charitable goods and services must somehow relate to the nature of goods and services.
- Respect should be shown to the wishes of a settlor / testator.
- A settlor's motive is relevant to whether a targeted charitable trust violates public policy.
For what it is worth, I question the correctness of the last point, which Dewar J. based on Canada Trust Co v Ontario (Human Rights Commission) (1990) 74 O.R. (2d) 481. In my view, a better interpretation of Canada Trust Co is that the trust in that case was void not due to the settlor's motive but rather because its terms disclosed a non-charitable purpose.
Adam Parachin
Associate Professor
Faculty of Law
University of Western Ontario
(519) 661-2111 Ext. 81445
Associate Professor
Faculty of Law
University of Western Ontario
(519) 661-2111 Ext. 81445