In an increasingly competitive fund-raising milieu, it is clearly tempting for development officers to accept all gifts that come their way. However, in reality, prudent management may dictate the rejection of gifts which fall outside the mandate and mission of the organization. Acceptance of such gifts could result in certain adverse long-term implications, which the organization may be ill-prepared to deal with in the future. When accepting gifts, it is essential for the organization to keep its strategic objectives in mind. A set of well-formulated criteria for the acceptance of gifts will facilitate this process in an orderly fashion so that the organization is not merely reacting on an ad hoc basis to gift proposals. A recent case, which illustrates some of these issues, involves two of Ontario’s most famous art patrons, Robert and Signe McMichael.
The McMichael Canadian Collection was established over three decades ago when the McMichaels generously donated over 200 paintings, their log-and-fieldstone house and 14 acres of land to the Province of Ontario under the terms of a formal Agreement signed in 1965. The Agreement provided that the Government of Ontario would maintain the Collection and its special character in perpetuity and give the McMichaels lifelong membership on the Collection’s advisory committee which controlled acquisitions. With remarkable foresight, the McMichaels ensured that the Agreement would bind successive organizations which might be responsible for the management of the Collection in the future.
The gallery in Kleinburg which houses the McMichael Canadian Collection includes a substantial number of works by the world-renowned Group of Seven. In the intervening years since its founding, the dynamics under which the Collection operates have changed considerably.1 It has grown in size so that the McMichaels’ original house accounts for less than one-tenth of the current gallery complex and about one-seventh of the land. The Government of Ontario now provides about $2.7 million of the gallery’s annual operating budget of $6.7 million. Disagreements with the McMichaels arose over the type of works of art that were being collected. (The Government had increasingly assumed power over the running of the gallery as well as curatorial discretion.) The McMichaels, who are now in their seventies, were opposed to this expanding role of the Government and to the acquisition of contemporary abstract and conceptual works, which they felt were inconsistent with the purpose and essential character of the original Collection.
For more than 14 years, the McMichaels sought to have their concerns addressed through petitions and private representations to successive Ontario ministers and governments. No action was taken and so in 1996 the McMichaels, increasingly dissatisfied with what they believed was excessive growth and inappropriate diversification, finally sued the Government of Ontario for breach of contract arguing that the Crown corporation, which managed the Collection, had reneged on the terms of the gift Agreement.2 This lawsuit culminated in a decision of Grossi J. of the Ontario Court’s General Division on November 15, 1996 in favour of the McMichaels.3
Judgment of Grossi J. in McMichael v. Ontario
Grossi J. ruled that the Agreement was in full force and effect and that subsequent legislative amendments to the Act4 did not override the original terms.5 He stated that the Gallery should restrict its collection to Group of Seven artists, their contemporaries, and other artists who have made a contribution to Canadian art as designated by the advisory committee of the gallery, and that the unifying theme of the work of the Group Seven is Canada’s natural splendor.
Aftermath of Decision
The ruling has now been appealed to the Ontario Court of Appeal and is scheduled for hearing in the fall of 1997. Following Grossi J.’s decision, the curator of Canadian art at the National Gallery of Canada offered the opinion that the Group of Seven would not have wanted to restrict the mandate of the McMichael gallery.6 Charles Hill further warned that the Court’s decision would limit the gallery to Canadian art as defined by the “amateur collectors” who had founded it over 30 years ago. This decision raises some serious questions about the liabilities of trustees of the gallery.7 The trustees have expended monies on works of art that have now been determined to be outside the Gallery’s mandate. Did they act improperly and are they now obliged to sell off these works of art? Will the trustees be required personally to make up any shortfall of assets after they have sold off these improperly acquired works of art? Also, some gifts accepted from private donors will now fall outside the mandate of the gallery.
Interpretation of the Decision
As a result of Grossi J.’s decision, it will be difficult for the trustees to purchase, or accept as donations, additional works of art because it will be difficult to determine whether they meet the mandate as enunciated by the
Court. The ratio decidendi, in part, of the McMichael case is quite straightforward: this was simply a case of breach of contract as the Crown did not comply with Section 13 of the 1965 Agreement, which sets out the acquisition policy.s However, Grossi J. then went on to elaborate upon what constituted other artists who have made contributions to Canadian art and stated:
In my view, the meaning of “Canadian art” is defined in the context of the Group of Seven and their contemporaries and the indigenous peoples of Canada, in particular, the colours, the relationship to nature, to energl and to uncontrollable forces to reflect the expansiveness of their wide horizons.
With this statement, Grossi J. has muddied the waters, as it is particularly confusing for the trustees to interpret and apply. Unless this statement can be treated merely as part of obiter dicta, or as an incidental statement which was not necessary to the disposition of the case, it would need to be strictly followed by the trustees when making future acquisitions. As a result of this decision, the trustees will act conservatively as they may only feel safe when they acquire further works by the Group of Seven and their contemporaries, but will tend to feel insecure when purchasing works of art by other artists who have made contributions to the development of Canadian art. It has been suggested that the McMichael case was unique not only because of the magnitude and the significance of their gift of paintings which had heralded a new era in Canadian art, but also because it was a special deal struck before the tax laws were changed to create the generous present day tax treatment of gifts. It is said that such extraordinary circumstances cannot occur again. While this might be true, the findings in the McMichael case will continue to apply generally in the future to conditional gifts where the charity agrees to maintain the special character of a gift over time.
Lessons Learned from McMichael
This case emphasizes the necessity of paying close attention to the negotiation of gift agreements so that donors’ intentions are satisfied without stifling the vision, future evolution and growth of an organization. Where the terms of the trust are narrowly defined, it is important to find common middle ground and to redraft the trust document so that both parities can live with the agreement well into the future. Once the terms of the gift agreement are settled, they have to be strictly observed by the recipient organization and all future trustees. The McMichaels had complained that while the relevant ministries and the Attorney General acknowledged that the 1965 Agreement had not been extinguished by subsequent legislation, the trustees of the Crown Corporation (“The McMichael Canadian Collection”) did not operate with this view, and “the Crown refused to rein in its agent”. Generally, the trustees need to understand the terms of a trust and to carry out its mandate. If the trustees then delegate the authority to administer the trust to staff, the trustees have an obligation to monitor the staff to ensure compliance with the terms of the gift agreement.
Gifts of Works of Art in General
Some precautions need to be taken when dealing with donations of gifts of art. For example, recipients should beware of the donor who wishes to palm off schlock art on the condition that it be displayed. It requires a great deal of tact and diplomacy to turn down insipid gifts of canvasses portraying giant moose or famed hockey players. Also, some bequests may leave an organization with second-rate works by first-rate artists, again subject to the condition that they be displayed. In such cases it may be best to decline the gifts.
Survey of Planned Giving Officers
Although it is, in general, anathema to charitable organizations to reject gifts, in practice most have had to do so at one time or another. In the February 1997 issue of Planned Giving Today the editor, Roger Schoenhals, has published a survey of such rejection scenarios.10 He asked his readership: “Have you ever turned down a planned gift?” The response indicated that 69 per cent had done so and, of the balance, 31 per cent stated that they were relatively new to planned giving and therefore had not had the opportunity to do so as yet. The most common rejected gift was real estate containing toxic waste.
Important Reasons for Rejecting Gifts
First, charities may reject gifts if acceptance of the property entails unacceptable financial risk and burden. For example, a donor may give a new building to a university and require that it carry the donor’s name. Unless the charity is able to provide funds for the maintenance of the building, it may be obliged, reluctantly, to turn down the gift. The charity might, of course, be able to persuade the donor to provide operating funds or to find alternative funding sources. Second, the purpose for which the gift has been given may be too restrictive and that may make the gift unacceptable. In one such instance, a donor offered to endow a professorship in economics at a university, stipulating the teaching of a particular economic ideology, retaining the right to veto appointments to the position, and participating in the selection of the candidate. These conditions scuttled the whole deal.
Gift Acceptance Criteria
Many charities have gift acceptance policies in place, but all too often these policies are merely procedural in nature and only specify checklists which must be filled in prior to the acceptance of gifts. At the Vancouver Foundation, the board has approved Gift Acceptance Criteria for Complex Gifts which take into consideration the issues addressed below. These criteria are substantive and assure that complex gifts will be thoroughly evaluated before action is taken to accept or reject them.
Organizational Mission, Values and Vision
The first step in deciding whether to accept a gift is to examine its compatibility with the mission, values and vision of the organization. For example, a bequest for establishing a Tibetan studies scholarship at a postsecondary educational institution might not be acceptable if it does not fall within the mandate or vision of the institution’s Oriental Studies Department. In 1996, merchant banker Joseph Rotman made a gift of $15 million payable over the next 11 years to the Faculty of Management Studies of the University of Toronto through the Rotman Foundation.11 The agreement provides that the donor can withhold an installment if, in his opinion, the University is jeopardizing attainment of the agreed-upon vision-that is, the pursuit of excellence and the position of the Faculty of Management Studies as an internationally renowned business school. If local peer reviews indicate that the faculty is not making good progress towards the attainment of that vision, the Rotman Foundation has the right to seek an independent investigation by the Association of American Universities and obtain its recommendations. If such recommendations are unacceptable to the University, then the University reserves the right to withdraw from the agreement. This gift has received intense scrutiny from both faculty and students of the University of Toronto, who feared that the terms of the gift might compromise academic freedom. However, the University’s president indicated that the amended agreement was not only in keeping with the University’s mission and strategic initiatives, but that it also explicitly recognized the centrality of academic freedom and its governing principles. The Rotman gift exemplifies a case where the goals of both the donor and the recipient organization were met after the evaluation of the organization’s mission, values and vision.
Increasingly, as governments curtail funding, health, social and educational institutions will need to enter into alliances with private benefactors whose long-term wishes they will have to consider. In certain circumstances, a charity may make exceptions and accept unusual gifts, especially where there is a long-standing relationship with a particular donor. The nexus between a charity and that donor may be special because of the sheer magnitude of the donation or the possibility of attracting additional funds. It is therefore tempting to make exceptions and accept gifts from such a donor even though they might not be optimal gifts from the charity’s perspective as they may not, for example, be cost-effective to manage. The danger here is that such gifts, once accepted, may be precedent-setting as other donors might expect similar treatment and be offended when they are turned down.
Ownership Implications for the Organization
Ownership implications can raise important practical considerations for charitable organizations. Each organization needs to determine whether it can allocate staff and other material resources to manage, maintain and preserve the donated asset or whether it will have to sell it.
1. Administration time is usually in short supply, so gifts that require organizations such as community foundations to set up and administer scholarships should be viewed cautiously as they are particularly labour-intensive. However, universities are set up to do so, and there is generally no need for them to view such donations cautiously unless the terms are unacceptable. Assessment of cost-effectiveness of the gift is critical.
2. Management of the asset may be unduly onerous, e.g., the gift of a working farm which needs to be operated.
3. Marketability of the asset is also a consideration, e.g., a gift of private shares or tangible property for which there is no ready market.
4. Potential liability may arise for an organization when it accepts a gift where, for example, calls are made on partnership assets. Such liability may also arise when, for example, a gift of an apartment building, subject to a high-ratio mortgage and a high vacancy rate, in a bad neighbourhood, is made to a charity. It is imperative that due diligence requirements be fulfilled to ensure that a gift does not encumber the organization with liabilities.
5. Risk management of the asset is one more factor for the organization to consider prior to acceptance of the gift. Risk management helps the charity to evaluate potential risks attached to the gift which could result in financial loss, and to devise methods of eliminating or reducing such risks.
6. Location of the asset is also important as, for example, it may not be practical to manage real estate which is situated in another province or country.
7. Valuation of gifts is necessary for the issuance of tax receipts. This becomes difficult when the asset is not readily marketable. Of course, there are qualified appraisers available for evaluating virtually any asset. If it is possible that the asset has significant value, it need not be rejected simply because valuation might be difficult.
Protecting the Donor
The best interests of the donor must be respected wherever possible. It is incumbent upon all charities to ensure that donors not overextend themselves when making gifts. Planned Giving Toda2cites the example of an elderly couple who were prepared to donate almost all of their savings to purchase a gift annuity. The charity advised them to leave a bequest instead and to keep their savings as a cushion for emergencies.
Some donors unreasonably expect their gifts to entitle them to a high degree of involvement with the organization. This may be especially true of donors who make large gifts. For example, a donor may set up an academic chair in schizophrenia studies, and then expect to have input into the selection of the candidate and also in setting research priorities. This clearly would not be acceptable to the recipient organization as it would be a breach of academic freedom and integrity.
Gifts With Strings Attached
Unconditional gifts are the simplest and most desirable. However, often gifts come with strings attached in the form of either conditions precedent or subsequent.13
A. Conditions Precedent
A condition is precedent when it must be fulfilled before the gift takes effect. For instance, provided that the testator’s gift is sufficient, it is a condition of the gift that a chair in philosophy will be established at a particular university. If the condition is not satisfied, then the gift fails to take effect. Also conditions which are contrary to public policy are not only unenforceable, but are void. The common law provides that if a condition is void, then the entire gift fails because the condition, which was originally required to be fulfilled before the gift came into existence, will not occur.
Leonard Foundation Trust
The Leonard Foundation Trust case14 is particularly interesting as, until that case, there had been no finding in a Canadian or British court that a trust, established at common law to provide scholarships to a restricted class, was void as being contrary to public policy because it was discriminatory. In this case, the charitable trust, established in 1923, was premised on considerations of racial and religious superiority. It contained conditions precedent which restricted applications for scholarships to students who were “needy, white, of British parentage or nationality, and Christian of the Protestant persuasion”. Recitals in the trust document referred to the superiority of the white race and the importance of maintaining the Protestant faith. The trial judge held that the trust provisions were valid, as they did not violate the Human Rights Code [S.O. 1981, c.53], or public policy. He also ruled that these recitals, while they might be offensive to today’s general community, were merely expressions of the settlor’s motives and not relevant to the determination of the case before him. McKeown J. cited several examples of educational scholarships, which currently exist in Canada to provide education for restricted classes.5
On appeal, the trial judge’s decision was set aside6 Tamopolsky J.A. held that the charitable trust was void on the grounds of public policy to the extent that it discriminated on grounds of race, colour, nationality, ethnic origin, religion and sex7 The document was to be considered as a whole, including the offending recitals. Apart from the provincial human rights legislation, equality rights “without discrimination” are now enshrined in the Canadian Charter of Rights and Freedoms in s.15 and in international conventions to which Canada is a signatory. However, as the settlor had a general charitable intent to promote leadership through education, the court could apply the cy-pres doctrine to save the trust upon the deletion of the discriminatory provisions. This is a fascinating case as it depicts the evolution of the public policy doctrine.IS Clearly, these conditions precedent were valid, and not contrary to public policy, when philanthropist Colonel Reuben Wells Leonard imposed them in 1923. However, with changing social mores, the application of the public policy doctrine has evolved in the 1990s and these restrictions have been labeled as sorry anachronisms.
It follows that, in some situations, a charity may be confronted with a conditional gift which it believes would be void because it offends public policy. Provided that the donor displays a sincere charitable intent, it is important for the charity to work with the donor to clean up the offending provisions. However, note that not all gifts which discriminate in favour of particular persons or groups will be held void as being contrary to public policy.19
Per Tarnopolsky J.A.:
Some concern was expressed to us that a finding of invalidity in this case would mean that any charitable trust which restricts the class of beneficiaries would also be void as against public policy. The respondents argued that this would have adverse effects on many educational scholarships currently available in Ontario and other parts of Canada. Many of these provide support for qualified students who could not attend university without financial assistance. Some are restricted to visible minorities, women or other disadvantaged groups. In my view, these trusts will have to be evaluated on a case by case basis, should their validity be challenged. This case should not be taken as authority for the proposition that all restrictions amount to discrimination and are therefore contrary to public policy.
B. Conditions Subsequent
When a condition subsequent is satisfied, it operates to terminate a gift that has already taken effect. An example of a condition subsequent would be a gift made to a charity provided it keeps a donated building in good repair. Professor D.W.M. Waters in his seminal text, The Law of Trusts in Canada20summarizes the difference: a condition precedent is a qualification that the donnee must meet; the condition subsequent is a forfeiture.
In terms of desirability, gifts subject to both conditions precedent and subsequent are contingent in the sense that they are dependent upon something that may or may not occur, so conditional gifts are not as desirable as unrestricted gifts. However, gifts subject to conditions precedent are arguably more desirable than gifts subject to conditions subsequent, as the charity will not become accustomed to the use of the gift only to have it forfeited because of a later disqualification.
Pitfalls For the Unwary
1. Uncertain Conditions
Conditions, in general, also fail if they are uncertain. In Leonard Trust, uncertainty of the conditions precedent was not an issue as the trustees had no difficulty, over some six decades, in ascertaining which students qualified for the scholarships. Also, although the McMichael gift will lead to litigation at two levels of court, uncertainty was not an issue in that case. The certainty of the rights vested in the McMichaels under terms of the 1965 Agreement was not challenged. The Crown simply submitted that subsequent legislation had superseded the 1965 Agreement. Two recent cases dealing with the creation of public parks, an accepted charitable purpose, illustrate that gifts may fail because of uncertainty of beneficiaries or purpose.ZI
In Muir Estate v. Muir,22the testator made a holographic will in which he set out, in part, a bequest of 10 per cent of the income from his estate to a foundation, which would eventually build a park to honour Alexander Muir (author/composer of The Maple Leaf Forever) and some others. Also when an income beneficiary died, his or her share was to go to the foundation. Ultimately, the testator intended that all money, excluding a gift to the Cancer Society of Grey County, should remain in perpetuity in the foundation. However, the foundation did not exist as the testator had not created it prior to his death. It was held that the bequest to the foundation fell into the residue, which passed upon intestacy to the testator’s widow and only child. No trust was created as there was no certainty as to the objects of the trust or the beneficiaries.
Again, in 0’Neill Community Ratepayers Association v. Oshawa (City),23 the trust failed because of uncertainty of purpose. In that case, the city conveyed a parcel of land to the hospital for the construction of a cancer centre and parking lot. The description of the land in the deed of sale under which the city had purchased it, contained the words “for the purposes of a Park”. However, there was no other reference in the deed to the creation of a trust limiting its use to a park. The Public Trustee and certain citizens claimed that the land was subject to a charitable trust, requiring that it only be used as a public park. The city and the hospital applied to the court for a declaration that the deed did not create a trust. The Court held that the deed lacked the degree of certainty needed to create a trust as it did not contain any specific provisions or references to a trust.
It is particularly important for a charity not only to know and understand the donor’s intent, but also to capture such intent in clear and unambiguous words in the trust document. If in doubt, it is important for the charity to obtain good legal advice.
2. Illegal or Tainted Gifts
Sometimes redeemed criminals seek respectability by making donations to “worthy” causes. Do organizations need to be supercilious in the vetting of such gifts? Even though the source of such funds may be suspect, if it cannot be established to be illegal, then the charity is at liberty to accept such gifts after reviewing its own values. In the case of morally tainted gifts, such as those from tobacco companies, it is hard to sit in judgment upon such gifts as the funding for them is derived from legal business sources. But again, the acceptance of such gifts may be patently inconsistent with the mission of the charity. In the few brazen cases where donors attempt to launder money from the proceeds of crime, the answer has to be an unequivocal “no thank you” to the prospective donor. Recently, in Canada, some charities have been approached by donors offering gifts of art for which they have obtained inflated appraisals with the hope that the tax receipt will be for the inflated value. A few small charities, hungry for gifts, have decided to accept such gifts although they can only realize a fraction of the appraised value upon sale. These charities face the real danger of revocation of their charitable status by Revenue Canada.
Charities should, of course, never issue donation receipts unless these reflect the real value of the gift and they are certain that the object contributes to the fulfilment of the charity’s mission. If the condition for the giving of a gift is a tax receipt based upon an inflated appraisal, then clearly the charity should not accept the gift. In terms of conditions attached to gifts, Revenue Canada is concerned that there be no private inurement with respect to the gift, i.e., the donor or the donor’s family do not personally benefit from the donation. For example, this benefit would arise where a gift is made on the condition that a scholarship is awarded to a donor’s relative.
The Ideal Benefactor
As we have seen there are a number of reasons why gifts fail or come back to haunt charitable organizations decades later. In a perfect world, all benefactors would give unconditional gifts; however in the real world, dialogue with donors is often necessary and can lead to acceptable compromise and effective problem-solving.
Charities need to work with donors to find creative solutions so that the donative intent is satisfied as well as the needs of the organization. Charitable organizations have to communicate their practices to donors and not merely be reactive. Being flexible also helps. Good communication skills are necessary when explaining the complex tax implications of gifts to donors. Generally, relationship-building with donors over the long term is essential to achieving mutually beneficial gifts. Intervention by the charitable organization at the right time also increases the certainty of obtaining enforceable gifts. This applies to both inter vivos and testamentary gifts. Such action also safeguards against the organization finding itself embroiled in expensive litigation at a later stage.
Negotiations with the donor may relate to recognition of control issues. For example, a donor may wish to make a capital gift of a building and have it named after himself or herself. However, the donor may wish to have this privilege for a lesser gift than the charity is willing to accept. In one instance, a donor agreed to make a gift of $10 million on condition that a wing of a building carry his name. He also wished to make the gift over a period of five years. As the university concerned did not wish to give its recognition possibilities away cheaply, it negotiated with the donor and achieved an agreement that the principal amount of the gift would bear interest from the date of the first installment. Again in a university context, in cases where annual contributions are made for setting up currently funded professorships, the university may feel it necessary to negotiate that the amount gifted each year increase in step with any escalation in the consumer price index.
Negotiations may also need to take place when the donor wishes to exercise control over the purpose for which the gift is used. For example, a donor endows a new and acoustically state-of-the-art concert hall for a school of music at an established university. Being an aficionado of Baroque music, the donor may insist that the university orchestra play Vivaldi’s Four Seasons for the inaugural concert, and may even insist upon conducting the orchestra for that piece. Although this might appear to be an innocuous request, it may signal to the university that it is dealing with a donor who may wish to have input into the thematic programming structure and curricula of the school at a later date. Establishing from the outset what is essential for the university in terms of academic freedom and integrity will go a long way towards alleviating such future disagreements.
Bequests constitute by far the greatest number of planned gifts and here, once again, early intervention on the part of the charity helps in securing an optimal gift.24 The three types of bequests are: specific, contingent and residual. Specific bequests provide the greatest certainty, but may be the least valuable. Contingent bequests are often large, but they are the least predictable. For example, the chances of a bequest coming to a charity are remote if the gift is contingent upon the donor’s daughter not surviving him.
In the case of residual gifts, there is usually something left over for the charity, and the amount will grow as the estate increases in size. Specific bequests, on the other hand often decline in relative value, because they are not adjusted upwards when the estate increases in value. Residual bequests are the best type of bequest which a charity can obtain. Also note that the use of precatory clauses helps testators to express their wishes without imposing an enforceable obligation upon the donee organization.
It is often possible to negotiate acceptable terms with donors. Charities may be concerned that if they do not agree to donors’ terms, they will lose the gifts yet, in reality, donors may need them as much as they need the donors and most donors are reasonable. However, if the conditions imposed are unacceptable and negotiation proves impossible, the charity must be prepared to walk away. Charitable organizations need to ensure that they can live with the gift agreement. Also, it is particularly important to have a written gift agreement, which describes the terms of the gift and contains power-to-vary language. Such documentation preserves flexibility and prevents future misunderstandings.
It is clear that charitable organizations do need to “look a gift horse in the mouth” before accepting a donation. Development officers have to employ a great deal of tact and diplomacy and take care not to relinquish the role of the charity as a gracious recipient. Ultimately, the planned giving officer has to walk a fine line between honouring the wishers of the donor and maintaining the vision and integrity of the charitable organization. Rarely will we encounter the ideal benefactor with the magnanimous generosity displayed by Toronto philanthropist Bluma Appel, who stated:25
A gift to an arts organization must ensure an arm’s length relationship between the donor and organization lest it become subject to the personal whims and tastes of the patron. Times change-needs change-but often donors don’t. As the sponsor of the Bluma Appel Theatre in the St. Lawrence Centre, I might not agree with the choice of plays that are performed. HoweverI do not consider it my right to attempt to influence management on their choices. A gift is made in the spirit of generosity. The benefactor is owed nothing. The institution’s management should manage.
1. See The Globe and Mail, Tuesday, November 19, 1996 at A13.
2. See, The Globe and Mail, Wednesday, June 5, 1996, at Cl and The Toronto Star,
Wednesday, August 7, 1996 at Bl.
3. McMichael v. Ontario (1996), 31 O.R. (3d) 196 (General Division).
4. McMichael Canadian Collection Act, S.O. 1972, c. 134.
5. Supra, footnote 3.
6. Supra, footnote 1.
7. “What does the McMichael collection do now?” by A. Milrad in The Globe and
Mail, Tuesday, November 26, 1996 at A23.
8. Section 13 of the 1965 Agreement reads: –
13. The Crown shall, with the advice and assistance of Robert and Signe McMichael, establish, develop and maintain in perpetuity at Tapawingo a collection of art reflecting the cultural heritage of Canada; the said collection shall be know as the “McMichael Conservation Collection of Art” (hereinafter called “the Collection”) and shall be comprised of paintings by Tom Thomson, Emily Carr, David Milne, A.Y. Jackson, Lauren Harris, A.J. Casson, Frederick Varley, Arthur Lismer, J.H. MacDonald, Franklin Carmichael and other artists as designated by the Advisory Committee who have made contributions to the development of Canadian Art.
9. Supra, footnote 3 at p. 209.
10. See Planned Giving Today, February 1997, pp. 5, 6 and 10.
11. See The Globe and Mail, Saturday, February 1, 1997 at A9.
12. Supra, footnote 10 at p. 10.
13. J. Warburton, assisted by D. Morris, Tudor on Charities (London: Sweet and
Maxwell, 81h ed. 1995), at 143-150.
14. (1987), 27 E.T.R. 193.
15. Ibid., per McKeown J. at p. 209.
Evidence was introduced to show that there exist in Ontario and elsewhere in
Canada, numerous educational scholarships which contain eligibility restrictions based on race, ancestry, place of origin, ethnic origin, citizenship, sex, age, marital status and handicap. Examples include the Amouney Jessie Memorial Awards at the University of Windsor awarded to sons and daughters of members of the
Windsor Islamic Association and the Dick Cousins Bursary, awarded at the
University of Western Ontario to Roman Catholic student teachers.
16. (1990), 69 D.L.R. (4th) 321.
17. Ibid., at p. 352.
18. For an extensive discussion of this topic, see “Anti-Discrimination, Freedom of Property Disposition and Public Policy of Charitable Educational Trusts: A Comment on Re Canada Trust Company and Ontario Human Rights Commission” by James Phillips (1996), 9 Philanthrop. No.3, p. 3.
19. Supra, footnote 17.
20. D.W.M. Waters, The Law of Trusts in Canada (Toronto: Carswell, 2nd ed., 1984), at 247-251.
21. See “Creation of Public Parks” in “Legal Developments” by James Phillips (1996), 13 Philanthrop. No. 3, p. 35.
22. (1995), 7 E.T.R. (2d) 58 (Ont. Gen. Div.).
23. (1995), 22 O.R. (3d) 648.
24. See D.D. Bushmayer, “Understanding Wills and Probate” in Advanced Planned
Giving Seminar materials, Banff Centre for Management, October 25-28, 1995.
25. See The Globe and Mail, Saturday, December 7, 1996, at D8.
Executive Board, Vancouver Foundation and Member, British Columbia Bar