Why and When Discrimination is Discordant with Charitable Status: The Problem with 'Public Policy', The Possibility of a Better Solution

AuthorAdam Parachin
PositionAssociate Professor, Osgoode Hall Law School, York University
Why and When Discrimination is
Discordant with Charitable Status:
e Problem with “Public Policy”,
e Possibility of a Better Solution
Adam Parachin*
When courts have considered when and why discrimination renders an institution
ineligible for charitable status, they have resorted to the doctrine of public policy to
explain the non-charitableness of discrimination. Public policy is not, though, up to
the task. It is undisciplined, inspires courts to consider irrelevant factors and of‌fers
no principled explanation as to when and why discrimination should and should not
vitiate charitable status. A better approach would be to address this issue using the
traditional analytical tools of charity law — charitable purposes, charitable activities
and public benef‌it. But this is a deceptively dif‌f‌icult task, which perhaps accounts for
the appeal of public policy to courts. Nonetheless, this paper looks inward to the law of
charity, developing an “in-house” rule against discrimination grounded in the internal
logic and values of charity law. Specif‌ically, this paper discovers in the public benef‌it
requirement an inclusive ethic through which charity law af‌f‌irms the equal worth, value
and dignity of others. Discrimination is non-charitable when it fails this standard
through stigmatizing rejection. But not all dif‌ferential treatment under charitable
trusts contradicts the inclusive ethic of charity law.
* Associate Professor, Osgoode Hall Law School (Toronto, Ontario
Parachin, Why and When Discrimination is Discordant
I. I
II. L A
A. United States
B. Canada
1. Canada Trust Co v Ontario Human Rights Commission
2. Re Ramsden Estate and University of Victoria v British
Columbia (AG)
3. Re Esther G Castanera Scholarship Fund
4. Royal Trust Corp of Canada v University of Western Ontario
C. Summation
III. T S F B S
A. Discrimination and Non-Charitable Purposes
B. Discrimination and Non-Charitable Activities
C. Discrimination and Public Benef‌it
1. Public Benef‌it and Activities
2. Two Components of Public Benef‌it
IV. M B A F U O P B
A. General
B. Inclusive Ethic Within Public Component of Public Benef‌it
C. Guiding Considerations
1. Courts Should Be Hesitant to Intervene
2. Expression Can Matter (Exclusionary Versus Inclusionary
3. Ameliorative Charitable Trusts
4. Avoid a ‘Race to the Bottom’
5. Pemsel Categories of Charitable Purposes Are Not Silos
D. Application to Specif‌ic Targeting Criteria
1. Sexual Orientation
2. Marital Status
3. Caucasian
4. Not a Feminist
E. Summation
V. C
(2020) 6 CJCCL
I. Introduction
When charity lacks its characteristic warm glow, courts sometimes
turn to public policy to conclude that the prerequisites for
charitable status are unmet. is happened in, for example, Bob Jones
v United States,1 where private schools engaging in racial discrimination
were found to be non-charitable, Canada Trust Co v Ontario Human
Rights Commission,2 where a discriminatory scholarship fund was
found to be non-charitable, and Royal Trust Corp v University of Western
Ontario,3 where another discriminatory scholarship fund was found to be
non-charitable. e problem with these decisions is not the conclusions
reached but rather the basis — public policy — for decision-making.
As has been widely observed, public policy is a poor basis for judicial
decision-making.4 So how do we account for the appeal of public policy
to courts in these kinds of cases? When courts invoke public policy in
these fact patterns, it is (I think) because they instinctively perceive a
discordance with charitable status at law but struggle to articulate that
intuition using the usual frames of reference employed in charity law.
e above authorities had very little to say about the traditional charity
law touchstones of charitable purposes, charitable activities and public
benef‌it. It is almost as though public policy was relied upon in these
decisions as shorthand for ‘noncharitable for inarticulable reasons’.
1. 461 US 574 (1983) [Bob Jones].
2. (1990) 69 DLR (4th) 321 (ONCA) [Canada Trust Co].
3. 2016 ONSC 1143 [Royal Trust Corp].
4. Church Property Trustees, Diocese of Newcastle v Ebbeck, [1960] HCA
88. Windeyer J noted that public policy has been variously described
(citations omitted here) as: “a very unruly horse”, “a treacherous ground
for legal decision”, “a very unstable and dangerous foundation on which
to build”, a “slippery ground”, “a vague and unsatisfactory term” and
“calculated to lead to uncertainty and error when applied to the decision
of legal rights” at 416. See also Fender v St John-Mildmay (1937), [1938]
AC 1 (HL (Eng)) [Fender]. Per Lord Atkin, the doctrine of public policy
was described as a doctrine of last resort that “should only be invoked in
clear cases in which the harm to the public is substantially incontestable
and does not depend upon the idiosyncratic inferences of a few judicial
minds” at 12.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT