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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 said 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 said, they are “void as being contrary to public policy.”
Priebe’s will said that if his requirements were struck down by the court, the proposed scholarships must be “deleted.”
An obituary said Priebe worked as a radiologist at Windsor’s Hotel Dieu Hospital for years before retiring more than 20 years ago.
Court documents said 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 said.
“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.”
Cases such as this one are rare because most of the time “solicitors who draft wills will talk their clients out of putting provisions in that may be struck down or will almost certainly lead to litigation,” said David Freedman, an associate professor at the Queen’s University law school.
Courts are typically reluctant to interfere, said Freedman, who teaches about wills, estates and trusts.
When they do, it’s usually in cases involving charitable trusts, since trustees are supervised by the courts, he said.
“The courts will quite rightly say a charitable trust is something that is in the public benefit and you can’t include discriminatory provisions in setting up a charitable trust,” he said.
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.”
Another recent case, now on appeal, is unusual in that it does not involve a trust, Freedman said.
A judge last year overturned the will of Rector Emanuel Spence, who disinherited his daughter because she had an interracial son with a white man. The court said Spence’s actions were “based on a clearly stated racist principle.”
The appeal court has yet to rule.
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