Grade: A+ Course Prize Winner

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  Converts a specific non-charitable purpose trust into a power for 21 years
  
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    Courts not using this power, rather construing things as gifts
    
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  A power is an authorization but is not enforceable like a trust
  
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    Gives at least a chance of it occurring instead of it being completely abolished
    

Note always that trusts must still meet the three certainties. Even if a trust is valid, it can still be voided if the lack of specification of the trust goals or the lack of joinder with the various goals and objects of the group the trust is bequeathed to is too damning. Trustees must be able to determine whether a particular purpose would fall in or out of the definition (Re Russell, Wood v The Queen)

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  While CHPT’S may have no beneficiary, the lack of beneficiary problem is solved because the crown supervises the trust. As such, no specific beneficiary is required
  
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    The pseudo-beneficiary is the Attorney General. They act in such a way as to compel the trustee when they are not meeting their obligations
    
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    Parens Patriae jurisdiction – Literally the parent of the nation, or in this case, the parent of the trust itself
    
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    Why does government step in to enforce the trust? – Government gains public benefit if people are donating money where they don’t have to
    
    • 
      Encourages giving, pareto-superior transaction such that the greater good is benefitted and there is no corresponding detriment
      
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      It also encourages the formation of charitable organization that can carry on their work, holding the funds they receive on trust. The tax benefits that accrue to both the organization as well as those who donate (charity deductions) serve as a public policy modifier that effectively forces tax-payers to subsidize a more giving society
      
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  Does not require certainty of objects aside from an exclusive charitable purpose
  
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    Normally need sufficient certainty (McPhail v Daulton)
    
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    Only need to show that you have a charitable purpose, can be specific or not
    
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    Court can create scheme to administer funds
    
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  Permitted to last forever (but must vest within the perpetuity period)
  
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    Can go on forever, some trusts gain more investment funds than they churn out (L’Eveque Catholique Romain de Bathurst v New Brunswick (AG)
    
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    Except gift over from one charitable purpose to another (S.23(5) Perpetuity Act) – Vesting rule doesn’t apply
    
    • 
      Human beneficiary somewhere in the mix, must vest in normal time frame – must be totally charitable
      
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  Court can alter the charitable scheme using cy-pres doctrine
  
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    Allows court to alter terms of charitable purpose trust (only for CHPT)
    

1. 
   There must be a public benefit;
   
2. 
   There must be a valid charitable purpose; and
   
3. 
   There must be an exclusive devotion to the chartiable purpose
   

1. 
   Provide a benefit to society that is of “practical utility”
   
   1. 
      Most trusts involve donation of cash, so there is no problem here
      

1. 
   Be available to a class of potential beneficiaries that is not negligible
   
   1. 
      The fewer the people that can benefit, the more likely it is to be construed as private although this is not determinative. It is not necessarily about how many recipients there are but how many people potentially can be the recipient (such as scholarships)
      
2. 
   Not distinguish the class of recipients against society based on a relationship to a particular person
   
   1. 
      If the trust is only available because of your relation to a certain person, it is unlikely that the community as a whole can benefit, more of a private trust
      

Note: Lord McDermott in dissent in Oppenheim voiced concern over the fact that a slight reference to a particular person or group may void the trust, even though it benefits a very large number of group. Would be wiser in his opinion to focus on the number rather than the relationship

1. 
   Relief of aged, impotent and poor people
   
2. 
   Maintenance of sick and maimed soldiers and mariners
   
3. 
   Schools of learning, free schools and scholars of universities
   
4. 
   Repair of bridges, havens, causeways, churches, sea banks and highways;
   
5. 
   Education and preferment of orphans;
   
6. 
   Relief, stock or maintenance of houses of correction
   
7. 
   Marriages of poor maids;
   
8. 
   Supportation, aid and help of young tradesmen, handicraftsmen and persons decayed;
   
9. 
   The relief of redemption of prisoners or captives and the aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers and other taxes
   

1. 
   Relief of Poverty
   
   1. 
      Impoverished or poor is a relative concept – abject povery is not necessary
      
      1. 
         Trustees of Mary Clark House v Anderson – Established for “ladies in reduced circumstances”; someone is poor if they are unable to maintain a very modest standard of living for themselves
         
   2. 
      One does not need to be limited to the basics of life (luxury goods or experiences can be provided
      
      1. 
         Re Brown – Gift to the poor house treasurer was allowed to be applied to basic necessities and luxury goods
         
      2. 
         Re Hart – A gift that allowed children to go to summer camp was upheld
         
         1. 
            The court barely gave it any thought on review, clearly feel incentivized to uphold a gift for poor children
            
   3. 
      Must be some element of “economic deprivation”
      
      1. 
         Re Planned Parenthood of Toronto – The group provided services to many poor people, but its goals were not expressly to elevate the people from poverty
         
      2. 
         London v Byron Optimist Sports Complex Inc – While it was the only sports facility in town, it had nothing to do with elevation from poverty
         

Note: In application of this section, “Public Benefit” is read very charitably and has a relaxed standard

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  No concern is drawn to a numerically negligible class
  
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  Relations may qualify
  
  • 
    Re Scarisbrick: “Relations” here was read more widely than next of kin, “class of relatives” was therefore much broader
    
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    Jones v Executive Officers of the T. Eaton Company – funds were to be used for “needy or deserving” members. The predominant intention was to hedge against economic deprivation, not at all concerned with merit.
    
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      There needn’t be a public benefit as directly absolving one persons financial situation has an ancillary social benefit
      

2. 
   Advancement of Education
   
   1. 
      The focus is on two categories:
      
      1. 
         The acquisition of Knowledge and the improvement of the individual; or
         
         1. 
            Societa Unita v Gravenhurst (Town): educational activities that furthered the learning of language, history, folklore, etc
            
         2. 
            Re Dupree’s Trusts – Encourage boys to play chess, a game of skill that teaches foresight, ingenuity, strategy, etc.
            
      2. 
         The improvement of human knowledge and its public dissemination
         
         1. 
            Incorporated Council of Law Reporting and Wales v AG – Production of case law reporters by a non-profit, materials were available to the public as well as betterment of lawyers (although CB author calls this into question)
            

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  Case law has held that education need not be formal (classical) education and may include literary works, cultural pursuits, fine arts, etc (Re Shaw’s Will Trusts)
  
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  The advancement of education itself should be flexible, not static and should expand with the times. Restrictions to formal training are unduly restrictive (Vancouver Society of Immigrant and Visible Minority Women v MNR)
  
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    Note also that as long as there is no promotion of a particular viewpoint or political orientation, there should be no issue (Human Life International in Canada Inc v MNR)
    

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  Courts will recognize that certain institutions (such as libraries) are presumably for the benefit of the public and for the advancement of education, but that the presumption can be rebutted (Re Pinion)
  

3. 
   Advancement of Religion
   
   1. 
      Is fulfilled when it includes activities such as publishing and teaching religious beliefs such that they are propagated further, building and maintaining churches and burial grounds, and/or furthering the work of churches, ministers, clergy members, etc
      

2. 
   Religion includes two essential attributes: faith in a diety or dieties and the worship of said dieties. Without these two characteristics of the faith, one cannot be said to be advancing religion (Re South Place Ethical Society)
   

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  There is a presumption of public benefit in relation to the advancement of religion
  
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    To hold otherwise may be to violate the conscience of the community, even though religion is the single most divisive element of the entire human experience and span of human history
    
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  Note that the “public” element of the benefit is most certainly up for debate
  
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    Courts have held that the lack of public participation can lead to the advancement of religion not being upheld (Gilmour v Coats)
    
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      Here the court could also not recognize the public benefit from prayers held in secret
      
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    Prayers said in public have been held to be edifying and therefore for the public benefit (Re Hetherington)
    
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      Public is easy to find in a catholic religious context as church masses are open to the public and do not have a limit to the amount of people who can “benefit”
      
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    Even home based faith healing that only occasionally took place in public was found to have a “benefit” (Funnell v Stewart)
    

4. 
   Other Purposes beneficial to the community
   
   1. 
      The Traditional approach to finding a purpose beneficial to the community involves:
      
      1. 
         Finding a purpose in the preamble to the Statute of Charitable Uses; or
         
      2. 
         Making an analogy to a purpose therein; or
         
      3. 
         Making an analogy to an analogy that has already been recognized
         
         1. 
            Analogy-ception *BWONGGG*
            

1. 
   Consider Trend of decisions that have established objects as being charitable and ask by reasonable extension or analogy whether the instant case is in line with the trend
   
   1. 
      Judges are the ones asking whether they can fit the case into the trend
      
   2. 
      Past cases and cases from other jurisdictions can be useful
      
2. 
   Examine anomalies to see whether they cover the objects under consideration
   
   1. 
      Certain causes such as sports have always been excepted, some gentrified activities have been included (AYSA v Canada)
      
3. 
   If the income and property can be applied for purposes outside of charitable purposes, there will be no charitable purpose
   
   1. 
      Must look towards the scope of discretion of the trustees, objectives of the organization, actual actions
      
      1. 
         Must meet the exclusivity requirement with the caveats that ancillary purposes are acceptable and legislation allows funds to be applied solely to the charitable purposes
         
4. 
   Consider whether there is a public benefit
   
   1. 
      Actual evidence is often best
      

Note: Courts are hesitant to make anything other than incremental changes. Changes such as including sports have dramatic effects on the tax base (AYSA)

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  Social welfare (orphans, care of elderly, hospitals and the sick, disaster relief, veterans, prisoners)
  
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  Community purposes (public works, parks, cemeteries)
  
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  Others (Animal welfare)
  
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    Humane societies, abandoned animals, etc
    

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  In order to satisfy the analogy, there must be a benefit and a charitable purpose relating to the “spirit and intendment” of the preamble (Native Communications Society v MNR)
  
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    The analogy in NCS was to aboriginals being a group that the state plays a role in protecting and assisting
    
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    Keep in mind that Canada and England are different, the SCU must be interpreted with particular Canadian sensitivities
    
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  A computer network and the internet was analogized to “bridges, ports, causeways and highways” (Vancouver Regional FreeNet v MNR)
  

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  In order to be a valid CHPT, there must be an exclusive devotion of the trust property to charitable purposes
  
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    This is due to all of the benefits that accrue to CHPT’s. Courts and legislatures do not want to set up a situation where the “public good” is supposed to be benefited yet someone allocated 95% of their property to NCHPT’s but reaps the reward for having a 5% allocation to CHPT’s
    
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  Mixed charitable and non-charitable purpose trusts are void
  
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    If allowable, trustee could use funds for either purpose, especially with high discretion
    
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    Charitable trusts are almost “trusts for the public good” – to allow otherwise would allow for possible fraudulent activity
    
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  Look to the intention of the settlor and the wording of the trusts
  
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    Jones v Executive Officers of the T. Eaton Company
    
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      The trust was so overwhelmingly oriented towards the public good that the courts were clearly incentivized to find that it was valid
      
      • 
        No reason to give the estate a massive windfall
        
  • 
    Courts can generate creative interpretations
    
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      “needy and deserving” – deserving had no economic deprivation element, but intention of settlor related to non-merit based awards, deserving viz a financial depression, emergency situation
      

1. 
   Nature of the trustee is seen to limit the scope of charitable purposes
   
   1. 
      Where a party could not be reasonably be expected to use the gift for anything other than charitable purposes, the courts will be comfortable with courting the low percentage possibility that the trustee would use the gift for NCHPT’s
      
      1. 
         Blais v Touchet – Using a bishop as a trustee saved the mixed purpose trust
         
2. 
   Doctrine of Severance
   
   1. 
      Very special circumstances – chop off non-charitable purposes
      
   2. 
      Only applies where settlor intended division of property, doesn’t work most of the time unless procedural implements put into place
      
      1. 
         Most of these problems arise when a testator or settlor does not fully appreciate the fine legal distinctions at play. Unlikely they would set up their instrument to account for this possibility (for if they did, it would be unlikely to occur to begin with)
         
3. 
   Establish that the Non-Charitable Purposes are ancillary (not parallel) to the charitable purposes
   
   1. 
      A contextual analysis must be done to determine whether the other purposes are merely incidental or ancillary to the functioning of the charitable element of the trust or whether they are purposes that stand on their own and are seen as either additional or parallel (Guaranty Trust Co v MNR)
      
      1. 
         Note in this case – each Non-charitable purpose was construed as incidental (each purpose was designed to further the charitable ends and objects of the medical society)
         

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  If the non-charitable purpose would be void for remoteness or uncertainty then the trust will not fail but rather the interest in the non-charitable purpose will be devoted to the charitable purpose
  
  • 
    Serves as an alternative form of severance
    
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    Where this occurs and the purposes are not parallel but are in fact linked, the trust will not be invalidated but will operate only for the benefit of the charitable purpose (Land Conservancy of BC)
    
    • 
      This is an elegant solution that does away with any form of incentivizing people to manipulate the system such that they can get away with doing what they aren’t supposed to be doing viz NCHPT’s
      

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  Trusts for political purposes are void (even if otherwise charitable)
  
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    Especially if trying to create a change in the law. The courts do not want to incentivize the creation of a trust which will be subsidized by taxpayers that may not clearly support the public good
    
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  Activities of political parties and political positions cannot be assessed by courts for public benefit – Bowman v Secular Society
  
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    Any attempt to influence legislature and/or executive captures
    
    • 
      McGovern v Attorney General – Amnesty International directly campaigned for legislative changes
      
      • 
        “Political Purposes” is defined broadly.
        
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    Court: Doesn’t want to make judgment about what is good or bad for political purposes, removes their neutrality, removes separation between judiciary and legislature
    
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  In the event that a group is found to be exercising non-charitable purposes, the group has the onus of proof in dispelling the assumption that they are taking part in political purposes (Human Life International
  
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  Limited exception if ancillary purpose
  
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    Ontario (Public Trustee) v Toronto Humane Society
    
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      Helps animals, also advocates legislative changes to prevent researching impounded animals
      
    • 
      Court: Don’t let legislative change be your main purpose and its ok
      

Real World Application: If you want to further a group that directly pushes your worldview/political opinion on everyone else, just give them an absolute gift and let them go nuts.

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  While the starting presumption at common law is that you are free to divest your property as you please (with the normal exceptions), establishing charitable trusts comes with certain responsibilities that will effectively constrain your discretion in your divulgence of property
  
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  As CHPT’s are for the public good and are essentially given tax-payer subsidies, they must be held to a higher standard
  
  • 
    All CHPT’s are held in some way shape or form for the public benefit. Even if they are exclusively charitable, that is not the end of the analysis
    

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  Trusts have been upheld for specific religious groups (Ramsden Estate – Protestants; UVIC Foundation v BC (AG) – Catholics))
  
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  Trusts won’t be found wanting for lack of a managing trustee. Courts may order otherwise valid trusts to be administered by other entities if in doing so they would allow the trust to proceed (Ramsden Estate)
  
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  Trusts wherein the trustee acts as a mere conduit may give rise to an essentially private relationship between the settlor and the beneficiary such that public policy concerns are a moot point (UVIC Foundation)
  

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  Equitable jurisdiction for the court to amend the scheme of a charitable purpose trust “near to” the original intention
  
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  Charitable purpose trusts will not fail once it is ascertained that the trust property has been exclusively devoted to charitable purposes – court will guarantee its success where possible
  
  • 
    This normally occurs when an unforeseen incident occurs that fundamentally changes the CHPT such that the court needs to restore its validity (Re Ramsden Estate; see also Re Stillman Estate)
    
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  Arises where there is impossibility or impracticability, use a red pen to amend the document in so far as it needs to viz the original intention
  
  • 
    No person/institution who can benefit
    
    • 
      Will especially occur when trust instrument mislabels possible recipients (Royal Trust Corp v Hospital for Sick Children; see also Re Buchanan)
      
  • 
    Unclear purpose (certainty of objects)
    
    • 
      Lower standard in charitable purposes - court will help give trustee a purpose
      
    • 
      Courts will essentially redefine the intention of the settlor such that they can give themselves an idea of who to benefit (Royal Trust Corp; Buchanan)
      
  • 
    Surplus accumulated in the trust
    
    • 
      Funds may grow exponentionally, outpacing original ambit or scope of the trust (L’Eveque Catholique Romain de Bathurst v New Brunswick (AG))
      
  • 
    Illegality or contravention of public policy
    
    • 
      May be tax consequences, trustee may not be able to implement
      
  • 
    General concerns over the practicability of the trust itself
    
    • 
      Such as being unable to meet its original goals or method to benefit beneficiaries (Re Stillman Estate; see also Lee v Board of Education of North Vancouver School District No.44)
      

Note: Where the original purpose of a trust may still be met, if only hypothetically (no impossibility or impracticability), courts need not utilize the Cy-Pres doctrine at the request of the potential beneficiaries (Rector, Wardens and Vestry of the Parish of Christ Church v Canada Permanent Trust Co)

What differences, if any, will the court take towards a trust that started off as a failure versus a trust that was working at its inception but has since failed?

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  Note: The courts must construe the act not as a gift but as a charitable purpose trust. A gift that does not vest will simply fail and revert back to the settlors estate
  
• 
  Essentially, we must ask whether the settlor would have wanted the money back, or whether they would have wanted the money to go on to bigger and better things
  
  • 
    Royal Trust Corp v Hospital for Sick Children – a large number of bequeaths were made for a large number of hospitals, unlikely the settlor would have wanted any money back
    
  • 
    Re Buchanan – General charitable intent was to help dem keeds
    
    • 
      The testators family argued he never would have wanted funds to help Catholic children, but the court is only looking for a general intent
      

• 
  This was used in Lee v Board of Education of North Vancouver as the funds were properly vested but insufficient to provide continual disbursements
  
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  Also used in a fashion for Leonard Estate as the estate had been giving out disbursements (and continues to do so)