Ontario Superior Court of Justice Takes a Stand on Racism in Private Arrangements

A refreshing Judgment from our Superior Court released January 27th, 2015 which set aside a private agreement, in fact a Will, the basis upon which was that its provisions were clearly racist and accordingly, offended public policy. One can hope that this becomes a benchmark for the governance of private arrangements, albeit perhaps an infringement of citizens' "rights and freedoms", or at least those as perceived by some.

A father (who died and whose Will was in question) had enjoyed an extremely close relationship with his daughter until 2002 when she announced that she was pregnant, with her father of the yet unborn child being of another race. From 2002 until his death in 2013 the Deceased essentially abandoned this daughter, would not see her, talk with her or even return her numerous telephone calls. He also refused to have anything whatsoever to do with his mixed race grandson throughout that youngster's first ten years of life. The Deceased had no relationship with his other daughter (who resided in England) or her children for many years. However, in 2002 he drew a new Will, disinheriting the daughter with whom he had, for so long been so close, on the pretext that she had received no communication with him for several years and had shown no interest in him as a father. This new Will distributed his entire Estate to his other daughter and her two children. Upon Application to set aside the 2010 Will, and upon hearing persuasive evidence that the Deceased disinherited his daughter solely because the father of her son was not of their race, the Court ruled that this offended public policy, being based on a clearly racist principle. The Court also found offensive to public policy the fact that the daughter in England stood to receive the entire Estate simply and solely because her children were fathered by a man of the family's same race.

The Honourable Mr. Justice Gilmore of the Ontario Superior Court of Justice was indeed faced with an interesting situation in this case: Spence et al v BMO Trust Company et al (2015 ONSC 15). The Deceased's Last Will and Testament dated May 12th, 2010, stated that "I specifically bequeath nothing to my daughter, **********, as she has had no communication with me for several years and has shown no interest in me as a father". That would, one might perhaps think, cover the testator's bases, give a reasonable explanation for the change in his Will and the abandonment of his daughter and her son. However, Justice Gilmore, in this writer's humble opinion correctly so, looked behind the Will, and its stated rationale and intention, and considered evidence given by a long time family friend who testified that the Deceased had told her that it was when he learned that the father of his daughter's son was not of his race that he refused to associate with them and his statement that he had no further use for his daughter and her "bastard **** son". The evidence was that the Deceased told this friend on several separate occasions that the reason he disinherited his daughter and her son was because the father of her son was of another race and that he was therefore leaving his entire Estate to the other daughter and her two sons, simply because the father of that other daughter's children were of his same race.

The issue before the Court was a simple one, although no doubt not simple for Mr. Justice Gilmore to rule on. The Applicant daughter with the mixed race son, took the position that the Will ought be set aside based on public policy and thereby result in an intestacy (death without a Will). Interestingly, neither the daughter who stood to gain from the 2010 Will, nor her children, appeared to the Application or took any position regarding it. The Executor, BMO Trust Company, argued that public policy did not apply unless a testamentary document was manifestly contrary to the public interest and that here it was not. Justice Gilmore however cited Canada Trust Co v Ontario Human Rights Commission (1990) 74 OR 2nd 481 wherein the Ontario Court of Appeal considered the terms of a trust and ruled that trust void by reason of both public policy as set out in the Human Rights Code (discrimination based on race, creed, citizenship, ancestry, place of origin, colour, ethnic origin, sex, handicap or otherwise) and generally. In the Canada Trust Co case the Court of Appeal ruled it in the interests of society that the Court intervene, albeit recognizing that while the owner of property ought have the freedom to dispose of it as he or she might wish, and that public policy must prevail. In that case the trust was based on notions of racism and religious superiority, which notions the Court held contravened modern public policy.

The Estate Executor in the Spence case argued that there was nothing "manifestly harmful" in the bequest as made by the Deceased in his Will of 2010 and that there was no evidence that the recipient daughter or her children would do anything harmful with their inheritance. The Estate Executor argued that the Court can look only at the Will, which set out the reason for the disinheritance, and that ought end matters. It further argued that Courts traditionally have not looked at the intentions of deceaseds in public policy cases and that they ought so do only where the validity of the Will is in issue or where there is ambiguity or uncertainty on its face.

Justice Gilmore considered, and considered carefully, the relevant paragraph of the Deceased's Will and found that, at least on its face, it did not offend public policy. However, he did find that the matter required "further scrutiny" particularly given the evidence of the family friend who, he noted, was neither a beneficiary nor an Executor and stood to gain nothing by her participation in the Court proceeding.

The Judge found that there was absolutely no evidence that prior to learning about his grandson's parentage did the Deceased and his daughter have anything but a good and healthy relationship. In fact, the evidence was that the Deceased was remarkably supportive, both financially and otherwise, of his daughter up until 2002 and that there could be no explanation for such "a sudden and complete cessation of communication" other than the information regarding the race, the mixed race, of his grandson.

Crucial to this case was the unchallenged evidence of the family friend; Justice Gilmore stated clearly that had there been no such evidence he would have gone no further than the wording of the Will. However, having found as fact, clear and uncontradicted, that the reason the Deceased disinherited his daughter was based on a clearly stated racist principle that "offends not only human sensibilities but also public policy", he had no hesitation in making his ruling.

The upshot was that the Will was set aside and pursuant to the provisions of the Succession Law Reform Act, an intestacy resulted with the Deceased's Estate ultimately divided equally as between his two daughters.

With all due respect to our trial and appellate Courts, seldom have they taken a stand, what this writer would argue is a positive or strident stand, against patently untoward, and long past acceptable conduct. This may, and hopefully will, be a role our Courts if not enthusiastically, but at least willingly, shall accept, albeit in appropriate, and presumably limited, circumstances.