Bad scholarship?

• Author: Broder, Peter

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.

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...