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Queen's University
 

University of Victoria v BC Attorney General

Can Universities offer bursaries on the basis of religion?

Facts

A donor, Ms. McConnell, left money to the University of Victoria and specified that she wanted them to create two scholarships, one in education and one in music. The stipulation was that the recipients be Roman Catholics. Concerned that this provision might constitute discrimination on the basis of creed, or a breach of public policy, the University asked the court for guidance. University of Victoria v British Columbia (Attorney General) (2000), 37 C.H.R.R. D/200, 2000 BCSC 445

Question

  1. Is the awarding of such a bursary  considered to be "a service customarily available to the public" ?
  2. If yes, is the breach of human rights acceptable?

Answer

  1. No
  2. Yes

Reasons

  1. The Court’s point of departure was that the Code prohibits discrimination, on the basis of religion, with respect to services customarily available to the public.   In this case, however, the relevant relationship was a private one between the deceased (a private citizen) and potential recipients of the award. The University’s role was not to offer services, but to act as a conduit. Since the relationship is a private one, the religious provision attached to the awarding of the bursaries was determined to be not discriminatory.
  2. The Court also stated that in the alternative, if the relevant relationship in this case was the public relationship between the university and its students, then the provisions were a breach of the code. The question became: are they an acceptable breach? The test it used was the following question: Is there a bona fide and reasonable justification for the discrimination? Yes, it found, for the following reasons:

1.       The discriminatory language used in these bursaries was relatively innocuous compared that the inflammatory language used in the Leonard bursaries, “where the terms of the trust were based on blatant religious supremacy, racism and sexism” (16)

2.       Faith is a human right. If we were to eliminate bursaries offered only to persons of a given faith, we would have to eliminate bursaries offered to persons based on other human rights (race, origin, gender, disability)

3.       To eliminate all bursaries offered to persons “who have historically suffered systemic discrimination” would be an unacceptable breach of the “freedom of testamentary disposition”

4.       Had the donor left the money to a non-public institution, the code would not apply. Declaring them discriminatory just because they were left to a public institution would be arbitrary and misguided.

NB

The Court compared this bursary to the Leonard educational trust, which the Court had voided as “offending public policy to the extent it discriminated on the grounds of race, religion and sex”. In the re Leonard decision, however, the Court “sought to restrict the precedential value of the decision” (24) by pointing out that not all scholarships that privilege persons on the basis of religion are contrary to public policy (23) and that each trust must be evaluated on a case by case basis. Not all restrictions amount to a breach of public policy.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000