Many years ago I played a small part in the unearthing of a controversial scholarship at the University of Toronto that was, among other things, restricted to white, Protestant candidates. It was called the Leonard Scholarship and dated from 1923. After being featured in a student newspaper of which I was an editor, a story about the scholarship and its restrictions was picked up by the national media. The eventual fallout was a legal action through which a number of unsavoury restrictions on candidates for the scholarship were dropped. The decision employed the doctrine of cy-pres.
Cy-pres allows the changing of the terms of a trust that as originally expressed would be impossible, impracticable or illegal to carry out. Under the doctrine, a court is permitted to alter the trust’s terms in a manner that comes as close as possible to achieving the intention of the party that created it, while avoiding impossibility, impracticability or illegality.
In the 1990 case of Canada Trust Co. v. Ontario Human Rights Commission, the Ontario Court of Appeal ruled that certain conditions to awarding the scholarship in question were contrary to public policy, and thus, the restrictions with respect to race, colour, creed, ethnic origin and sex were removed.
Not applying a philosophical litmus test will inevitably mean that some people may be offended by the way in which the qualifications for some scholarships or other placements are assessed, but it is the better approach. Fast forward to 2016 and an Ontario ruling dealing with scholarships created under a Will, and limited, in part, to “Caucasian (white), male single, heterosexual students”, and in part to a “hard-working, single Caucasian white girl who is not feminist or lesbian.” Citing the Canada Trust case finding that a charitable trust can be void as contrary to public policy to the extent that it discriminates on the grounds of race (colour, nationality, ethnic origin), religion and sex, the judge ruled in Royal Trust Corporation of Canada v. The University of Western Ontario et al., that a number of the restrictions for the scholarships contemplated under the Will were contrary to public policy.
[Note that an executor, administrator or trustee of an estate of a person is considered a trustee, and a Will or similar instrument is considered to give rise to a trust or trusts. In this case, the Will providing instruction on use of the deceased’s property included both purportedly charitable aspects – use of resources for scholarships – and non-charitable aspects, distributions to non-charitable beneficiaries.]
The Will in the Royal Trust case provided that if particular provisions of the document were held to be void, those provisions should fail without affecting the treatment of the assets under other provisions of the document, so the doctrine of cy-pres was not available in this instance.
Notwithstanding that, in the judgment, Justice Mitchell wrote:
I have no hesitation in declaring the qualifications relating to race, marital status, and sexual orientation and, in the case of female candidates, philosophical ideology, in paragraph 3(d)(ii)(E) of the Will void as being contrary to public policy.
(In a footnote, Justice Mitchell also remarked on the derogatory use of the term “girls” in reference to female candidates.)
The facts in this case, like those in the Canada Trust case are distasteful. That said, and with due respect to the Court, ruling that the ability to choose between candidates based on “philosophical ideology” can be contrary to public policy may be problematic.
(Parenthetically, another approach that might have achieved the same outcome in a less troublesome way would be to have ruled that determining definitively that someone is or isn’t a “feminist” – or, indeed, adheres to another ideology – is an impracticability that thwarts fulfillment of the trust.)
Cy-pres allows the changing of the terms of a trust that as originally expressed would be impossible, impracticable or illegal to carry out. In another context, a National Post columnist recently lamented the availability of two student awards at the University of Victoria “in memory of the late Mao Tse Tung”, pointing to that leader’s long record of political tyranny. At issue for the columnist was not the eligibility criteria for the awards, but naming of the prizes for an oppressive regime. The existence of these two awards is indicative of the range of scholarships and attendant abundance of selection criteria that have been created for such awards in Canada.
Though scholarship and other academic awards are mostly associated with post-secondary institutions – the preponderance of which are registered charities, countless charitable public policy institutes, foundations and leadership groups also offer fellowships, bursaries and similar programs supporting research or training.
While it is reasonable to ask those institutions and organizations to select candidates without discriminating on grounds that have be enumerated in human rights or other legislation as being impermissible, it is another thing to ask them to vet the propriety of the “philosophical ideology” of award criteria.
Not applying a philosophical litmus test will inevitably mean that some people may be offended by the way in which the qualifications for some scholarships or other placements are assessed, but it is the better approach. Doing otherwise would both stifle the range of perspectives available to participate in legitimate debate and place an unreasonable administrative burden on schools and groups in their efforts to advance knowledge.