© 1990 Karen Selick
 Public Looting and Pillaging
An edited version of this article first appeared in the October, 1990 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Public Looting and Pillaging 

"Beggars canít be choosers." This well-known piece of folk wisdom dates back more than 400 years according to Bartlett's Familiar Quotations. 

You can now forget you ever heard it. A recent decision of the Ontario Court of Appeal has transformed beggars into conquerors, with all of the usual looting and pillaging privileges. 

The case (Canada Trust Company v.Ontario Human Rights Commission) involved a scholarship fund set up in 1923 by Colonel Reuben Wells Leonard. The colonel had his prejudices (to put it mildly) and was not reticent about them. 

He believed that British Protestants of the "White Race" were the world's best hope for peace and the advancement of civilization. His scholarships were therefore restricted to the class of people now referred to as WASPs (white Anglo-Saxon Protestants). 

The Ontario Court of Appeal recently pronounced the terms of the trust void, saying discrimination of this kind is "contrary to public policy." As a result, the scholarship is up for grabs to all comers. 

What bothers me is the notion that "public policy" applies to this situation at all. I could understand it if there were "public money" at stake. It would be intolerable for taxes collected from all racial, religious and ethnic groups to be channeled to only one select group. 

But this was a private gift, made by one person, using his own money. Why should a private individual have to govern his altruistic urges according to "public policy?" 

With racial and linguistic quotas becoming firmly entrenched in public policy, does this mean 
WASPs will have to invite a percentage of blacks, natives and francophones to every house party they give? What's the difference, in principle, between a gift of cash and a gift of hospitality? 

Mr. justice Robins wrestled briefly with this public-private distinction and concluded that the trust fund had acquired a public or at least quasi-public character. One reason was that the scholarships are tenable at publicly funded universities. Not very persuasive, I'm afraid. If you give your spouse or child a car as a gift, does it become quasi-public property because it's driven on government-owned roads? 

The second reason was the mere fact that the trust had operated for over half a century since the colonel's death. This flies in the face of other doctrines of property law that tend to establish private property rights more securely, rather than less, with the passage of time. 

This case exemplifies a peculiar notion that has crept into many minds lately: the notion that if the owner of private property lets a great number of different people use it, it is somehow transformed into public property. 

How far can we nibble away at the edges of property rights before we can stop referring to our actions as regulation and admit that they're more in the nature of confiscation? 

But semantics aside, this ideology has its problems.  Ironically, recent world events are proving it to be inimical, rather than beneficial, to the public interest. As the people of Eastern Europe are learning, the degree to which property rights are respected has everything to do with the level of freedom and prosperity enjoyed by a country. The right to own, use and dispose of property according to one's own judgment is itself an important matter of public policy. 

Can't we simply learn from others' mistakes without having to make them all ourselves? 

In this, instance, the ruling can backfire in two foreseeable ways. First, it opens up the possibility that other discriminatory scholarships will be similarly attacked--and there are plenty of them. Lindsay Histrop, counsel for the class of persons eligible for Leonard Foundation awards, provided me with a list of some 284 Canadian university scholarships that restrict eligibility on the basis of sex, language, religion, ethnic origin or other criteria. More than 62 percent discriminate in favour of--not against--those who are generally considered disadvantaged in Canadian society: women, francophones, natives, and students from third world countries. 

Are the intended beneficiaries of these scholarships now going to have to compete with WASP males for the money? Mr. Justice Tarnopolsky has tried to forestall this possibility, suggesting in obiter dicta that not all restrictions constitute discrimination or are contrary to public policy. 

Unfortunately, that still leaves plenty of tough cases. Several scholarships are restricted to Jewish or Japanese students. Are these restrictions acceptable because those two ethnic groups have been shamefully discriminated against in the history of this country? Or are they contrary to public policy because, notwithstanding the discrimination, both Jewish and Japanese Canadians have been a thundering success, thereby rendering themselves WASPishly ineligible for favours from their own kind? 

The judgment will backfire in a second way, by drying up the flow of future estate money into scholarship trust funds. If would-be philanthropists are told by their lawyers, as they plan their wills, that there is no guarantee the money will be applied according to their wishes, how many of them will want to take that risk? There are lots of other hassle-free ways to dispose of their money. 

Ultimately, this judgment has done a disservice to both WASPs and every minority group. 



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