Court strikes down will that would create scholarships for white, straight students
TORONTO — An Ontario judge has ruled that a deceased doctor's plan to create scholarships for white, single and heterosexual students as part of his will amounts to discrimination and must be quashed as a matter of public policy.
In a decision published last week, Ontario Superior Court Judge Alissa Mitchell says the stipulations laid out in Dr. Victor Priebe's will "leave no doubt'' that he intended to discriminate based on race, marital status and sexual orientation.
As a result, she says, they are "void as being contrary to public policy.''
Priebe's will says that if his requirements were struck down by the court, the proposed scholarships must be "deleted.''
An obituary says Priebe worked as a radiologist at Windsor's Hotel Dieu Hospital for years before retiring more than 20 years ago.
Court documents say his will was written in 1994, more than two decades before he died at age 83 on New Year's Day 2015.
In it, he instructs his trustee, the Royal Trust Corporation of Canada, to provide funds for awards and bursaries for white, single, heterosexual men in scientific studies at the University of Western Ontario or the University of Windsor.
"Students with the necessary academic qualifications who through work histories have demonstrated that they are not afraid of hard manual work in their selection of summer employment shall be given special consideration in the selection process,'' the document says.
"No awards to be given to anyone who plays intercollegiate sports.''
A similar award is also to be created for a "hard-working'' white, single woman "who is not a feminist or a lesbian.''
"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 ... void as being contrary to public policy,'' Mitchell wrote in her decision.
"Although it is not expressly stated by Dr. Priebe that he subscribed to white supremacist, homophobic and misogynistic views... (the provisions laid out in the will) leave no doubt as to Dr. Priebe's views and his intention to discriminate on these grounds.''
"Yes, it's a private trust but it's touching on the whole question of public policy," says Hull, co-founding partner of Hull & Hull LLP.
While Hull was not involved in this matter and makes his comments generally, he points to a similar case he recently worked on, Spence v. BMO Trust Company, 2015 ONSC 615 (CanLII).
In that case, Justice Cory Gilmore set aside the will of the deceased who had disinherited one of his daughters while leaving his estate to his other daughter and her two children. The applicant, Verolin Spence, asserted that the will was void for public policy reasons due to the deceased's racist views and should be set aside resulting in an intestacy.
"The Ontario Court of Appeal is currently mulling over the same issues in Spence and we're waiting for the decision any day now," Hull says.
"Essentially what it comes down to is whether or not public policy can get into the middle of testamentary freedom and the freedom to create trusts. If the trust or will is motivated by anything discriminatory, does that void the trust or the gift?
"It's going to be really interesting to see what the Court of Appeal has to say," he adds.
Meanwhile in the Priebe case, the Royal Trust Corporation had asked the court for guidance in how to administer the doctor's estate in accordance to his will.
The Office of the Public Guardian and Trustee, which is part of the provincial Ministry of the Attorney General, had pushed for the provisions to be struck down as contrary to public policy.
The office helps protect charitable assets and may participate in court cases where an estate trustee is seeking advice on a charitable gift, ministry spokesman Brendan Crawley said Monday.
"It is well-established that provisions that are contrary to the Ontario Human Rights Code will be found to be void as being contrary to public policy,'' though such provisions are "relatively rare,'' he said in an email.
In one case dating back to 1990, the Ontario Court of Appeal found that a trust creating a scholarship exclusively for white Christians of British nationality or parentage was "premised on notions of racism and religious superiority that contravened contemporary public policy.''
© 2016 The Canadian Press
— With files from AdvocateDaily.com