



COURT OF APPEAL FOR ONTARIO

CITATION: Spence v. BMO Trust Company, 2016 ONCA 196

DATE: 20160308

DOCKET: C60021

Cronk, Lauwers and van Rensburg JJ.A.

In the Estate of
    Rector Emanuel Spence, also known as Eric Spence, deceased

BETWEEN

Verolin Spence and A.S.

Applicants (Respondents)

and

BMO Trust Company
, Donna Spence, K. S.-P.
  and K. S.-P.

Respondents (
Appellant
)

Justin W. de Vries and Angela Casey, for the appellant

Earl A. Cherniak, Q.C., Jasmine T. Akbarali and Michael S.
    Deverett, for the respondents

Heard: September 4, 2015

On appeal from the judgment of Justice Cory A. Gilmore of
    the Superior Court of Justice, dated January 13, 2015, with reasons reported at
    2015 ONSC 615.

Cronk J.A.:

[1]

Is it open to the courts to scrutinize an unambiguous and unequivocal residual
    bequest in a will, with no discriminatory conditions or stipulations, if a
    disappointed beneficiary or other third party claims that the bequest offends public
    policy?  Is third-party extrinsic evidence of the testators alleged
    discriminatory motive for making the bequest admissible on an application to
    set aside the will on public policy grounds?

[2]

This appeal raises these important issues.  They are matters of first
    impression for this court.

I.        Background Facts

(1)

The Parties

[3]

Rector Emanuel Spence, also known as Eric Spence (Eric), was born in
    Jamaica. He died in Ontario on January 25, 2013 at 71 years of age.  He was
    predeceased by his wife, Norma Spence (Norma).  Eric and Norma had no
    children.

[4]

Eric and his previous partner had separated in about 1964 or 1965. They
    had two children: the respondent Verolin Spence, born in England in 1963, and Donna
    Spence, born in England in 1964.  Verolin is now 52 years of age.  Donna is 51
    years of age.

[5]

After their parents separated, Verolin lived with her father and Donna lived
    with her mother.  The two sisters did not communicate with each other after the
    separation.

[6]

Eric immigrated to Canada from England in 1979.  Verolin joined him in
    1984.  She lived with her father in Canada, except for periods of educational
    study abroad, until approximately 1993.  Donna lived with her mother in
    England.  She continues to live there, with her children.

[7]

According to Verolin, she and her father enjoyed a positive relationship
    for many years.  However, as I will describe in more detail later in these
    reasons, she claims that their relationship changed in September 2002 when she
    told Eric that she was pregnant. Verolin says that Eric, a black man, began to
    restrict his communications and any other contact with her when he learned that
    the father of her child was white.

[8]

Verolin gave birth to her son A.S. on April 26, 2003.  A.S. is now
    almost 13 years old.  Unfortunately, he never met Eric.

(2)

The Will

[9]

Eric made a will on May 12, 2010, almost eight years after Verolin
    alleges that he cut off all contact with her (the Will).  The Will makes no
    provision for Verolin or A.S.  Instead, it provides that: i) Donnas two sons are
    to inherit Erics jewellery; ii) Norma or, if Norma predeceased Eric, Donna, is
    to inherit Erics personal and household articles; iii) the residue of Erics
    estate is to be divided in equal shares among Donna and her sons; and iv) one
    of Erics cousins is the remainder beneficiary of Erics estate.

[10]

Eric
    expressly excluded Verolin from sharing in any part of his estate. Clause 5(h)
    of the Will states:

I specifically bequeath nothing to my daughter, [Verolin] as
    she has had no communication with me for several years and has shown no
    interest in me as her father.

[11]

The
    appellant, BMO Trust Company (BMO Trust), was issued a Certificate of
    Appointment of Estate Trustee with a Will on May 1, 2013 and began to
    administer the estate.

(3)

The Litigation

[12]

Verolin
    and A.S. did not challenge the Will or BMO Trusts appointment as estate
    trustee in the probate proceeding.  Instead, in mid-October 2014, they applied in
    the Superior Court under r. 75.06 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 and ss. 58 and 60 of the
Succession Law Reform Act
,
    R.S.O. 1990, c. S.26 (the 
SLRA
) for: i) a declaration that the Will
    was void, in whole or in part, because it was contrary to public policy; ii) leave
    to proceed with a dependants relief application under the
SLRA
; and iii)
    directions from the court.

[13]

In
    support of the application, Verolin filed her own affidavit, together with an
    affidavit sworn by Imogene Parchment (Imogene), one of Normas friends who had
    acted as Erics occasional caregiver after Normas death.  In both affidavits,
    the affiants alleged that Erics decision to exclude Verolin and A.S. from his
    Will was racially-motivated.  Neither Verolin nor Imogene were cross-examined
    on their affidavits.  I will refer to their affidavit evidence, collectively,
    as the Extrinsic Evidence.

[14]

Verolin
    described the nature of her relationship with her father in her affidavit. She
    said, among other things, that she and Eric enjoyed a very good relationship as
    father and daughter from the time of her birth.  However, Verolin alleged that this
    changed dramatically in the fall of 2002:

In about September 2002, my relationship with my father came
    crashing down. That is the time when I told my father that I was pregnant. When
    he found out that the father of my child to be was white, my father told me
    that he was ashamed of me. From that point onwards, my father restricted his
    communications with me.



My father made it very clear to me that he would not allow a
    white mans child" in his house.



The reason my father severed the relationship with me is
    because I gave birth to a child fathered by a white man.

[15]

Imogenes
    affidavit supported Verolins version of the reason for her estrangement from
    her father and exclusion from the Will.  Imogene swore that: i) Eric had told
    her on several occasions that he disinherited Verolin and A.S. because A.S.s father
    was a white man; ii) Eric had told her that he changed his Will on May 12, 2010
    because he wanted to exclude Verolin and include Donna and her two sons, since
    the father of Verolins son was white and the father of Donnas sons was
    black; and iii) based on her relationship with Eric, it was very clear to
    her that the reason he excluded Verolin from his Will, and included Donna and
    her sons, was because he wanted to discriminate against Verolin because the
    father of her son was a white man.

[16]

Verolin
    also swore in her affidavit that, in about 1992, Eric told her that he had made
    a will specifying that she was to inherit his home on his death.  In her
    affidavit, Imogene indicated that Eric had told her that he changed his will
    in 2010 essentially to disinherit Verolin and benefit Donna and her two sons. 
    No other evidence regarding the alleged existence of this earlier will forms
    part of the record before this court.  In any event, the Will contains a
    standard revocation clause, revoking all prior wills, codicils and testamentary
    dispositions by Eric.

[17]

Based
    on the Extrinsic Evidence, and contrary to the plain language of clause 5(h) of
    the Will, Verolin argued before the application judge that the real reason she
    was disinherited by her father was because she gave birth to a child fathered
    by a white man. She asserted that, because her disinheritance was motivated by
    racial discrimination on Erics part, the Will was void by reason of public
    policy and should be set aside.

(4)

Application Judges Decision

[18]

The
    application judge held that, on its face, clause 5(h) of the Will did not
    offend public policy (at para. 44).  She also stated, at para. 49: Were it not
    for the unchallenged evidence of Ms. Parchment and Verolin, the court would
    have no alternative but to go no further than the wording in the [W]ill.

[19]

The
    application judge further held that, given the uncontradicted and clear Extrinsic
    Evidence, Erics reason for disinheriting Verolin was based on a clearly
    stated racist principle and that the provisions of the Will favouring Donna
    and her sons to the exclusion of Verolin offended not only human sensibilities
    but also public policy (at para. 49).

[20]

The
    application judge therefore set aside the Will, in its entirety, on the basis that
    it violated public policy against discrimination on racial grounds.  She also granted
    declarations that an intestacy in Erics estate thereby resulted by operation
    of the
SLRA
and, consequently, that the estate was to be divided
    equally between Verolin and Donna.  Notably, the effect of these declarations
    was to wholly disinherit Donnas sons, named beneficiaries under Erics Will. 
    The application judge granted costs to Verolin and A.S. ($11,300) and to BMO
    Trust, payable out of Erics estate.

[21]

In
    light of her decision to set aside the Will, the application judge concluded that
    it was unnecessary to address Verolin and A.S.s request for leave to proceed
    with a dependants relief claim under the
SLRA
. Nonetheless, she indicated
    that, if the leave application had to be decided, she would have denied leave
    as the test for leave had not been made out.

[22]

BMO
    Trust appeals the application judges decision setting aside the Will on public
    policy grounds. Verolin and A.S. do not cross-appeal the application judges ruling
    on their
SLRA
claim.  Donna and her sons took no part in the
    proceedings before the application judge or this court.
[1]

II.       Issues

[23]

As
    argued, the appeal raises four issues:

(1)

Was the Extrinsic
    Evidence admissible before the application judge?

(2)

If the
    answer to question (1) is yes, did the application judge err in her
    assessment of the Extrinsic Evidence?

(3)

Did the
    application judge err by improperly interfering with Erics testamentary
    freedom?

(4)

In any
    event, did the application judge err by setting aside the entire Will, rather
    than only the residual bequest?

III.      Analysis

(1)

Parties Positions

[24]

BMO
    Trust makes four main arguments.  First, it submits that the Extrinsic Evidence,
    as evidence of Erics intention behind disinheriting Verolin and benefiting Donna
    and her two sons, was inadmissible.  Further, and in any event, it submits that
    the application judge erred by placing any weight on the Extrinsic Evidence
    because it is contradictory and internally inconsistent.

[25]

Second,
    BMO Trust argues that the application judge unjustifiably interfered with
    Erics testamentary freedom, which allows him to distribute his property as he
    chooses, subject only to certain statutory requirements that are inapplicable
    in this case.

[26]

Third,
    BMO Trust says that, for various reasons, the application judge did not have
    jurisdiction to set aside the entire Will.  And, fourth, allowing the
    application judges decision to stand would increase uncertainty in estates law
    and open the floodgates to litigation in estates matters.

[27]

In
    response to the first argument, Verolin and her son submitted in their factum
    that the Extrinsic Evidence was properly admissible to evaluate whether Erics
    intention to disinherit Verolin and benefit Donna and her children offends
    public policy.  During oral argument, this position shifted.  At the appeal
    hearing, Verolin and A.S.s counsel acknowledged that evidence of Erics
    intentions in disposing of his property under his Will was inadmissible on the
    authority of this courts decision in
Rondel v. Robinson Estate
, 2011
    ONCA 493, 106 O.R. (3d) 321, leave to appeal to S.C.C. refused, [2011] S.C.C.A.
    No. 536.  Nonetheless, they maintained that the Extrinsic Evidence was properly
    admissible because it relates, not to Erics intention, but rather, to his
    specific discriminatory motive for disinheriting Verolin.

[28]

Verolin
    and A.S. submit that the Extrinsic Evidence supports the application judges finding
    that the Will is based on offensive racist principles.  Further, the
    application judge made no palpable and overriding error in her assessment of
    the Extrinsic Evidence.  As a result, she did not err in concluding that the
    Will must be set aside as contrary to public policy against discrimination.

(2)

Testamentary Freedom

[29]

I
    begin my analysis of the issues on appeal with consideration of the important principle
    of testamentary freedom.

[30]

A
    testators freedom to distribute her property as she chooses is a deeply
    entrenched common law principle.  As this court emphasized in
Canada Trust
    Co. v. Ontario (Human Rights Commission)
(1990)
,
    74 O.R. (2d) 481, at p. 495, citing
Blathwayt & Lord Cawley
,
    [1976] A.C. 397, [1975] 3 All E.R. 625 (H.L.):

The freedom of an owner of property to dispose of his or her
    property as he or she chooses is an important social interest that has long
    been recognized in our society and is firmly rooted in our law.

[31]

The
    Supreme Court has also recognized the importance of testamentary autonomy,
    holding that it should not be interfered with lightly, but only in so far as
    the law requires:
Tataryn v. Tataryn Estate
, [1994] 2 S.C.R. 807, at p.
    824.

[32]

The
    freedom to dispose of her property as a testator wishes has a simple but significant
    effect on the law of wills and estates: no one, including the spouse or
    children of a testator, is entitled to receive anything under a testators
    will, subject to legislation that imposes obligations on the testator.

[33]

Tataryn
is a case in point.  In
Tataryn
, the Supreme Court was concerned with
    the principles to be applied to s. 2(1) of the British Columbia
Wills
    Variation Act
, R.S.B.C. 1979, c. 435.  Under that section, if a testator
    failed to make adequate provision for the proper maintenance and support of a
    surviving spouse and children, including independent adult children, the court was
    authorized to order provision from the estate that it considered adequate,
    just and equitable in the circumstances for the claimant.
[2]


[34]

In
    considering the purposes and scheme of the British Columbia statute, the
    Supreme Court held that the legislation protected two interests: i) adequate,
    just and equitable provision for the spouses and children of testators; and ii)
    testamentary autonomy.  With respect to testamentary autonomy, the Supreme
    Court observed, at p. 816:

The Act did not remove the right of the legal owner of property
    to dispose of it upon death.  Rather, it
limited
that right.  The
    absolute testamentary autonomy of the 19th century was required to yield to the
    interests of spouses and children to the extent, and only to the extent, that
    this was necessary to provide the latter with what was adequate, just and
    equitable in the circumstances.   [Emphasis in original.]

[35]

Tataryn
holds that, in British Columbia, a testators broad right of testamentary
    freedom is constrained by, but only to the extent of, the specific obligation
    imposed by the British Columbia legislature on testators to provide what is
    adequate, just and equitable in the circumstances for the testators wife,
    husband or children after the testators death.

[36]

Even
    when required to enforce a statutory requirement of this kind,
Tataryn
instructs, at pp. 823-24, that the courts should be cautious in interfering
    with a testators testamentary freedom:

In many cases, there will be a number of ways of dividing the
    assets which are adequate, just and equitable.  In other words, there will be a
    wide range of options, any of which might be considered appropriate in the
    circumstances.
Provided that the testator has chosen an option within this
    range, the will should not be disturbed.  Only where the testator has chosen an
    option which falls below his or her obligations as defined by reference to
    legal and moral norms, should the court make an order which achieves the
    justice the testator failed to achieve
.
In the absence of other
    evidence

a will should be seen as reflecting the means chosen by the
    testator to meet his legitimate concerns and provide for an ordered administration
    and distribution of his estate
in the best interests of the persons and
    institutions closest to him.
It is the exercise by the testator of his
    freedom to dispose of his property and is to be interfered with not lightly but
    only in so far as the statute requires
. [Emphasis added.]

[37]

I
    note at this point that, unlike the legislation addressed in
Tataryn
,
    in Ontario there is no statutory duty on a competent testator to provide in her
    will for an adult, independent child, whether based on an overriding concept of
    a parents alleged moral obligation to provide on death for her children or
    otherwise: see
Verch Estate v. Weckwerth
, 2013 ONSC 3018, at paras.
    4344, affd 2014 ONCA 338, at paras. 5-6, leave to appeal to S.C.C. refused,
    [2014] S.C.C.A. No. 288.  Adult independent children are not entitled to
    dependants relief protection under the
SLRA
because they do not meet
    the definition of dependant under that statute.  Ontario law accords
    testators the freedom to exclude children who are not dependants from their
    estate distribution.

[38]

Notwithstanding
    the robust nature of the principle of testamentary freedom and its salutary social
    interest dimensions, the courts have recognized that it is not an absolute
    right.  Apart from limits imposed by legislation, it may also be constrained by
    public policy considerations in some circumstances.

[39]

Canada
    Trust
is instructive in this regard.
Canada Trust
involved a
    charitable trust, established in 1923, that provided educational scholarships. 
    By the express terms of the trust instrument, both the eligibility of students
    to receive scholarships and that of educational institutions to serve as places
    of study for scholarship students were subject to overt discriminatory
    conditions based on race, religion and gender.  For example, the terms of the
    trust stipulated that the scholarships were available only to white,
    Protestant, British subjects and that no more than 25 percent of the
    scholarship funds could be allocated annually to female students.

[40]

The
    trusts operated in conformity with these conditions for about 65 years. 
    However, when the Ontario Human Rights Commission challenged the trust in the
    1980s, the trustees sought directions from the court as to the trusts
    validity.  The issues before the court were whether the terms of the trust were
    contrary to public policy and, if so, whether the trust law cy-près doctrine could
    be applied to preserve the trust.  In the Supreme Court of Ontario, the trust
    was upheld in its entirety.  On appeal to this court, this decision was
    reversed unanimously.

[41]

Justice
    Robins of this court, Osler J. (
ad hoc
) concurring, took account of
    the Supreme Court of Canadas admonition in
Re Millar
, [1938] S.C.R. 1,
    at p. 7, that public policy should be invoked only in clear cases, in which
    harm to the public is substantially incontestable, and does not depend on the
    idiosyncratic inferences of a few judicial minds.  He noted the public or
    quasi-public nature of the trust and held that there are cases where the
    interests of society require the courts intervention on the grounds of public
    policy (at p. 495).  In Robins J.A.s view, the terms of the trust were antithetical
    to Canadian values and its continued operation was against the public interest.
    He reasoned, at p. 496:

The settlors freedom to dispose of his property through the
    creation of a charitable trust fashioned along these [discriminatory] lines
    must give way to current principles of public policy under which all races and
    religions are to be treated on a footing of equality and accorded equal regard
    and equal respect.

[42]

Justice
    Robins explained that the foundation for the courts intervention on public
    policy grounds rested on the unique terms of the trust. He emphasized, at pp. 496-97,
    that the trust was valid and not contrary to public policy when created in
    1923.  However, with changing social attitudes, public policy had also changed. 
    As a result, the continuation of the trust as originally contemplated was no
    longer in the community interest. Rather, it had become impracticable to carry
    it on in the manner originally planned by the settlor.

[43]

Justice
    Robins was satisfied that the settlor of the trust intended the whole of the
    trust property to be devoted to the educational purpose of the charitable
    trust.  In these circumstances, in his view, the trust should not fail. 
    Instead, it was appropriate to apply the cy-près doctrine and to invoke the
    courts inherent jurisdiction to bring the trust into conformity with public
    policy so that the settlors general charitable trust intent to advance
    education or leadership through education could be continued.  Consequently, he
    struck the offending conditions of the trust indenture, leaving the charitable
    trust intact and the trust administrators to carry on the trust without regard
    to its original discriminatory stipulations.

[44]

In
    his separate, concurring reasons, Tarnopolsky J.A. also concluded that the discriminatory
    trust provisions were void as contravening public policy.  He, too, at pp. 514-15,
    endorsed the proposition that, as [i]mportant as it is to permit individuals
    to dispose of their property as they see fit, it cannot be an absolute right.

[45]

Importantly,
    Tarnopolsky J.A. also stressed the distinction between private trusts and public
    charitable trusts.  He stated, at p. 515:

A finding that a charitable trust is void as against public
    policy would not have the far-reaching effects on testamentary freedom which
    some have anticipated.
This decision does not affect private, family trusts. 
    By that I mean that it does not affect testamentary dispositions or outright
    gifts that are not also charitable trusts.  It is [the] public nature of
    charitable trusts which attracts the requirement that they conform to the
    public policy against discrimination
.
Only where the trust is a
    public one devoted to charity will restrictions that are contrary to the public
    policy of equality render it void
.    [Emphasis added.]

[46]

Thus,
    Tarnopolsky J.A. viewed the public nature of the charitable trust as central to
    the determination whether interference with testamentary freedom was warranted on
    public policy grounds in light of the explicit discriminatory provisions of the
    trust indenture.  In the end, like the majority, he agreed that the charitable
    trust should not fail, that the trust could be applied under the doctrine of
    cy-près, and that the offending discriminatory provisions should be deleted
    from the trust instrument.

[47]

The
    scope of testamentary freedom and the courts role in limiting that freedom in
    light of
Tataryn
and
Canada Trust
are central issues in this
    case.

[48]

BMO
    Trust submits that Erics gift of the residue of his estate and his
    disinheritance of Verolin are unambiguous, unequivocal and unconditional and
    that clause 5(h)  the disinheritance clause of the Will  contains none of
    the unsavoury or patently discriminatory provisions of the type at issue in
Canada
    Trust
.  Additionally, Erics bequest of the residue of his estate is of a
    private, rather than a public, nature.  In these circumstances, BMO Trust says,
    the application judge erred by unjustifiably interfering with Erics
    testamentary freedom in circumstances where Verolin and A.S. have no legal
    right to share in Erics estate.

[49]

Verolin
    and A.S. counter that the courts have jurisdiction to assess whether
    testamentary bequests should be set aside as offending public policy.  They
    contend that there was admissible evidence before the application judge
    establishing that Erics motive for disinheriting Verolin and benefiting Donna
    and her sons was racist.  Since racial equality is firmly embedded in the
    public policy of Canada and the destructive force of racism is contrary to
    Canadian public policy, the application judge did not err in setting aside the Will
    on grounds of public policy.

[50]

I
    turn now to consideration of these arguments.

(3)

Unavailability of a Public
    Policy-Based Inquiry

Regarding the
    Validity of the Will

[51]

Three factual aspects of this case are especially significant.  First,
    as I have already emphasized, under Ontario law Verolin and A.S. have no legal
    entitlement to share in Erics estate.  This is not a case like
Tataryn
,
    where a statutory constraint on a testators testamentary freedom is in play. 
    In order to share in her fathers estate, Verolin must succeed in setting aside
    the Will.

[52]

Second,
    this is not a wills construction case.  The terms of the Will gifting the residue
    of Erics estate to Donna and her sons and disinheriting Verolin are unequivocal
    and unambiguous.  No interpretive question arises concerning the meaning of the
    Will.

[53]

Third,
    unlike
Canada Trust
, the Will imposes no conditions that offend public
    policy.  It provides unconditionally for the distribution of the residue of
    Erics estate to Donna and her sons and states, at clause 5(h), that no
    provision was made for Verolin because she has had no communication with me
    for several years and has shown no interest in me as a father.  Although this
    may reflect the sentiments of a disgruntled or bitter father, it is not the
    language of racial discrimination.  The application judge held that clause 5(h)
    of the Will does not, on its face, offend public policy.  I agree, and would
    add that the same may also be said of clause 5(f) of the Will, the residual
    bequest provision.

[54]

In
    these circumstances, was a public policy-based inquiry regarding the validity
    of Erics Will available?  Was judicial interference with his testamentary
    freedom warranted?  I conclude that they were not, for the following
    reasons.

[55]

The
    fact that Erics residual bequest imposes no conditions or stipulations is significant. 
    The courts have recognized various categories of cases where public policy may
    be invoked to void a conditional testamentary gift.  These include cases
    involving: i) conditions in restraint of marriage and those that interfere with
    marital relationships,
e.g.
, conditional bequests that seek to induce
    celibacy or the separation of married couples;
[3]
ii) conditions that interfere with the discharge of parental duties and
    undermine the parent-child relationship by disinheriting children if they live
    with a named parent;
[4]
iii) conditions that disinherit a beneficiary if she takes steps to change her
    membership in a designated church or her other religious faith or affiliation;
[5]
and iv) conditions that incite a beneficiary to commit a crime or to do any act
    prohibited by law.
[6]


[56]

The
    pivotal feature of these cases is that the conditions at issue required a
    beneficiary to act in a manner contrary to law or public policy in order to
    inherit under the will, or obliged the executors or trustees of the will to act
    in a manner contrary to law or public policy in order to implement the
    testators intentions.  In these circumstances, the courts will intervene to
    void the offending testamentary conditions on public policy grounds.

[57]

In
    this case, however, no such condition appears in Erics Will.  Erics residual beneficiaries
    are not obliged to act in a manner contrary to law or public policy in order to
    inherit the residue of his estate.  Nor is BMO Trust required to act in a
    manner contrary to law or public policy in order to implement Erics
    intentions.  This case, therefore, is markedly different from those in which
    judicial interference with a testators wishes has been justified on public
    policy grounds.

[58]

Verolin
    and A.S. rely heavily on the recent decision of the New Brunswick Court of
    Queens Bench in
McCorkill v. McCorkill Estate
, 2014 NBQB 148, affd
    2015 NBCA 50, leave to appeal to S.C.C. requested, to argue, in effect, that
    the courts have overarching authority to examine the validity of a testamentary
    residual bequest on public policy grounds.  On their argument, this authority
    extends to cases where the terms of the bequest do not include discriminatory
    conditions but evidence is tendered that a testators alleged motive in making
    the bequest offends public policy.  I see no support in the established jurisprudence
    for the acceptance of such an open-ended invitation to enlarge the scope of the
    public policy doctrine in estates cases.

[59]

In
McCorkill
, the testator left the residue of his estate to the National
    Alliance, a neo-Nazi organization in the United States.  The testators sister,
    supported by numerous interveners, challenged the validity of the will, arguing
    that the residual bequest was void as illegal and/or contrary to public
    policy.  The executor and another intervener defended the bequest.  They
    argued that only facially repugnant testamentary conditions could be set aside
    on public policy grounds and that the nature or quality of the intended
    beneficiary was irrelevant.

[60]

The
    application judge disagreed.  In his view, the worthiness of the residual
    beneficiary was a central consideration.  On the basis of extensive extrinsic
    evidence regarding the residual beneficiary, much of it generated by the
    beneficiary itself, he held, at para. 75, that the National Alliances entire
    purpose was contrary to the public policy of Canada because it stood for
    anti-Semitism, eugenics, discrimination, racism and white supremacy.  The
    effect of the testators gift to such an organization was to finance hate
    crimes, contrary to s. 319 of the
Criminal Code of Canada
, R.S.C.
    1985, c. C-46 and Canadian human rights legislation and international
    commitments.  As a result, the application judge held, at para. 89, that
    voiding the gift was justified on the ground of illegality, as well as public
    policy, because the beneficiarys 
raison dê
tre
is contrary
    to public policy.  In so holding, the application judge expressly accepted
    that voiding the residual bequest based on the character of the beneficiary
    is, and will continue to be, an unusual remedy.

[61]

The
    Court of Appeal for New Brunswick, in brief reasons, upheld the application
    judges ruling, stating that it was in substantial agreement with the
    essential features of his reasons:
Canadian Association for Free
    Expression v. Streed
, 2015 NBCA 50, at para. 1.
[7]

[62]

The
    decision in
McCorkill
is significant in at least two respects.  First,
    prior to
McCorkill
, public policy-based justification for judicial
    interference with a testators freedom to dispose of her property had been
    advanced only in respect of conditional testamentary gifts.  In
McCorkill
,
    as in this case, the testators residual gift was absolute, not conditional.

[63]

Second,
    before
McCorkill
, Canadian law recognized two kinds of unworthy
    heirs: i) beneficiaries who claimed entitlement to a testators property after
    having killed the testator; and ii) terrorist groups who, contrary to ss. 83.02
    and 83.03 of the
Criminal Code
, sought to benefit from a testators
    financial support.
McCorkill
, however, recognizes a third kind of
    unworthy heir: a beneficiary whose self-declared reasons for existence
    involve activities that constitute offences under Canadian criminal law and run
    contrary to Canadian public policy against discrimination.

[64]

McCorkill
has been the subject of academic scrutiny and some criticism.  Professor Bruce
    Ziff, in an article entitled 
Welcome the
    Newest Unworthy Heir
(2014) 1 E.T.R. (4th) 76, argues that
McCorkill
is but the latest judicial attempt to find the proper demarcation between
    acceptable and intolerable discriminatory private conduct. He suggests that
    the extension of public policy to void absolute gifts is warranted in certain
    circumstances,
e.g.
when, as in
McCorkill
, it would be
    illegal to donate money to an unworthy heir because of its status as a hate
    organization.

[65]

However,
    Professor Ziff also acknowledges that, even in unworthy heir cases like
McCorkill
,
    the invocation of public policy considerations to void an unconditional
    testamentary bequest may overreach the proper ambit of the public policy
    doctrine.  He observes:

The more challenging problem with McCorkill is that it may
    be overbroad.  That is so because this gift, uniquely, was invalidated even
    though it involved an unqualified and absolute transfer of legal and beneficial
    title.  As noted above, all previous cases in which the doctrine of public
    policy was applied involved terms embedded in the granting document
.

Fixing on such stipulations is important for several reasons. 
    Such terms expressly recite the discriminatory preferences and thereby provide
    cogent proof of the predilection.  The stipulations also give the stated
    preferences teeth, for failure to comply can have legal consequences. 
    Moreover, as an incidental effect, a focus on such stated terms will
    necessarily limit the number of cases in which challenges can be brought; the

litigation

floodgates do not open. [Emphasis added.]

I agree.

[66]

In
    this case, relying on
McCorkill
, the application judge held, at para.
    44, that notwithstanding the clear terms of the Will, the matter bears further
    scrutiny.  She went on to conclude, at para. 49, that in view of the Extrinsic
    Evidence, Erics motive for disinheriting Verolin was based on a clearly
    stated racist principle that violated public policy as well as human
    sensibilities.

[67]

With
    respect, the application judges reliance on
McCorkill
for this
    purpose was misplaced.
McCorkill
must be understood in the context of
    its unique factual circumstances.  In
McCorkill
, the implementation of
    the testators intentions would have facilitated the financing of hate crimes,
    contrary to Canadas criminal and human rights laws, by funding an organization
    dedicated to such illegal and discriminatory ends  an unworthy heir.  In
    contrast, nothing in this case indicates that Erics residual beneficiaries are
    unworthy heirs, or that they would use their bequest for purposes contrary to
    law. Verolin and A.S. do not suggest otherwise.

[68]

Further,
    I underscore that the Will does not require BMO Trust to engage in
    discriminatory or unlawful conduct in order to carry out Erics testamentary
    intentions.  In
Canada Trust
, this courts interference with the
    settlors right to dispose of his property as he saw fit was triggered by blatantly
    discriminatory conditions in the trust indenture that required the trust
    administrators, in carrying out the settlors intentions concerning the
    operation of a public charitable trust, to engage in discriminatory conduct in the
    selection of scholarship candidates and eligible academic institutions.  It was
    this requirement for discriminatory action on the part of the trust
    administrators in the operation of a public charitable trust that triggered the
    public policy-based intervention of the court.

[69]

Similarly,
    in
Peach Estate (Re)
, 2009 NSSC 383, an estate trustee would have been
    required to take affirmative steps in violation of provincial human rights
    legislation in order to carry out the testators intentions regarding the sale
    of his property.  On this basis, the court held that the relevant condition in the
    testators will regarding the class of persons to whom his property might be
    sold was of no force or effect.

[70]

These,
    and analogous cases, confirm that Canadian courts will not hesitate to intervene
    on the grounds of public policy where implementation of a testators wishes
    requires a testators executors or trustees or a named beneficiary to act in a
    way that collides with public policy.

[71]

That
    is not this case.  Unlike
Canada Trust
and
Peach Estate (Re)
,
    where implementing the settlors or testators intentions required discriminatory
    acts in contravention of public policy, carrying out Erics gift of the residue
    of his estate does not require discriminatory conduct by BMO Trust or by Donna
    and her sons.  Nor, in contrast to
Canada Trust
, does it involve the
    creation or operation of a public charitable trust or other public entity so as
    to require conformity to the public policy against discrimination.

[72]

And
    this leads, in my view, to a second, pertinent consideration.  As I have said,
    Erics Will does not facially offend public policy.  But what if it did?  Was
    it open to Eric to disinherit Verolin in his Will on discriminatory grounds,
    that is, on the express basis that the father of her son was a white man,
    without triggering review by the courts on the grounds of public policy?

[73]

This
    question lies at the very heart of Erics exercise of his testamentary
    freedom.  It must be remembered that the bequest at issue is of a private,
    rather than a public or quasi-public, nature.  Recall Tarnopolsky J.A.s
    caution in
Canada Trust
, at p. 515, that it was the public nature of
    charitable trusts which attracts the requirement that they conform to the
    public policy against discrimination.  Here, assuming that Erics testamentary
    bequest had been facially repugnant in the sense that it disinherited Verolin
    for expressly stated discriminatory reasons, the bequest would nonetheless be
    valid as reflecting a testators intentional, private disposition of his
    property  the core aspect of testamentary freedom.

[74]

In
    these hypothetical circumstances, neither Ontarios
Human Rights Code
,
    R.S.O. 1990, c. H.19 nor the
Charter of Rights and Freedoms
would
    apply to justify court interference with the testators intentions.  The
Human
    Rights Code
, of course, ensures that every person has a right to equal
    treatment with respect to services, goods and facilities without discrimination
    based on race and other enumerated grounds.  The
Charter
pertains to
    state action.  Neither reaches testamentary dispositions of a private nature.

[75]

Absent
    valid legislative provision to the contrary, the common law principle of
    testamentary freedom thus protects a testators right to unconditionally
    dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory
    grounds.  To conclude otherwise would undermine the vitality of testamentary
    freedom and run contrary to established judicial restraint in setting aside
    private testamentary gifts on public policy grounds.

[76]

Verolin
    and A.S. rely on
Fox v. Fox Estate
(1996), 28 O.R. (3d) 496 (C.A.), to
    resist this conclusion.  I do not think that
Fox
assists Verolin and
    A.S.

[77]

The
    central issue in
Fox
was whether an executrixs decision to disinherit
    a beneficiary on allegedly discriminatory grounds was against public policy.  In
Fox
, a testator had bequeathed his wife a 75 percent life interest and
    their son a 25 percent life interest in the residue of his estate.  On the
    wifes death, the son was to receive the residue of the estate.  The will gave
    the wife, as the testators sole executrix, wide power to encroach on the
    capital of the estate for the benefit of the testators grandchildren.  The
    testators son had two children, both born after the testators death.  Also
    after the testators death, the son divorced and subsequently re-married a
    woman who did not share his faith (Judaism).  His mother was upset and
    responded by making a new will of her own in which she disinherited the son. 
    She later exercised her discretionary encroachment power under the testators
    will to transfer all the residue of the testators estate to her grandchildren
     the sons children.

[78]

The
    son challenged his mothers exercise of discretion in encroaching on the
    capital in this fashion, alleging, in part, that it was driven by a
    discriminatory purpose.  The trial judge found that, by exercising her power to
    encroach on the capital of the estate in favour of the grandchildren and to the
    exclusion of the son, the wife acted properly and within the parameters of the
    powers given to her under the will.

[79]

On
    appeal, this court dealt directly with the sons public policy-based attack on
    his mothers exercise of her discretionary encroachment power.  Justice Galligan
    was of the view that, on the trial judges findings, the only reason the wife
    transferred the residue of the estate to her grandchildren was to disinherit
    the son because he had married a gentile  a clearly discriminatory purpose.  He
    stated, at pp. 501-502:

It is abhorrent to contemporary community standards that
    disapproval of a marriage outside of ones religious faith could justify the
    exercise of a trustees discretion.  It is now settled that it is against
    public policy to discriminate on grounds of race or religion.

[80]

Justice
    Galligan concluded, at p. 502, that the wifes exercise of her discretion was
    improper and must be set aside:[I]t would be contrary to public policy to
    permit a trustee effectively to disinherit the residual beneficiary because he
    dared to marry outside the religious faith of his mother.

[81]

However,
    it was the wifes exercise of discretion in her capacity as executrix and trustee
    of her late husbands estate that attracted judicial scrutiny and condemnation. 
    Justice Galligan reasoned, at p. 502, that, just as public policy restrained the
    settlor in
Canada Trust
from disposing of property in a manner that
    required discriminatory action by the trust administrators, public policy also
    prohibit[ed] a trustee from exercising her discretion for racial or religious
    reasons.  He elaborated, at p. 503:

It is of course a given, assuming testamentary capacity,
    that a person is entitled to dispose of property by will in any fashion that he
    or she may wish.
The exercise of a testators right of disposition is not subject
    to supervision by the court.  But a trustees exercise of discretion is subject
    to curial control.  Admittedly, because he would not be subject to judicial
    supervision, [the testator] if alive, could have disinherited [his son] for
    reasons which would have contravened public policy.  [The testators wife],
    while acting as trustee, on the other hand is subject to judicial control
and that control can and must prevent her from exercising her discretion in a
    fashion which offends public policy. [Emphasis added.]

[82]

In
    separate, concurring reasons, McKinlay and Catzman JJ.A. agreed in the result. 
    Justice McKinlay accepted that if the wife had exercised her discretion as
    executrix because of her religious bias, her exercise of discretion was
    unsustainable.  However, she also viewed the wifes actions as reflecting the
    wifes erroneous belief that she was free to deal with her husbands assets as
    if they were her own, without regard to the terms of his will.  Because it was
    the obvious intent of the husband that the son have a life income from his
    estate and the remainder outright following his mothers death, all the wifes
    encroachments on capital constituted breaches of trust.

[83]

Justice
    Catzman agreed with the latter conclusions, but disagreed that the trial judge
    had clearly found that the wifes encroachment on capital was driven solely by
    a prohibited, discriminatory purpose.  In his opinion, the trial judges
    reasons could be read as indicating that the wife had dual purposes for the exercise
    of her discretion, one legitimate (concern for the financial welfare and
    security of her grandchildren) and one illegitimate (her displeasure with her
    sons choice of spouse).  He therefore declined to dispose of the appeal on
    public policy grounds.

[84]

Fox
is of limited application to this case. First, and most obviously, unlike
Fox
,
    this case does not involve a trustees exercise of discretionary authority. As
    stated above, Erics residual bequest to Donna and her sons is unconditional.
    Second, in
Fox
, the will created an entitlement; the son was entitled to
    a life income and, on the death of his mother, to the residue of his fathers
    estate. Here, Verolin and A.S. have no entitlement to any part of Erics estate,
    whether under the terms of the Will or as a matter of law.

[85]

I
    conclude that to apply the public policy doctrine to void an unconditional and
    unequivocal testamentary bequest in cases where, as here, a disappointed
    potential heir has been disinherited absolutely in favour of a different,
    worthy heir, would effect a material and unwarranted expansion of the public
    policy doctrine in estates law.  Absent valid legislative provision to the
    contrary, or legally offensive conditional terms in the will itself, the desire
    to guard against a testators unsavoury or distasteful testamentary
    dispositions cannot be allowed to overtake testamentary freedom. The need for a
    robust application of the principle of testamentary freedom is especially
    important, in my opinion, in the context of a testators central right to choose
    his or her residual beneficiaries.

[86]

It
    follows that, on the facts of this case, there was no foundation for the public
    policy-driven review undertaken by the application judge.  With respect, she erred
    by going behind the testators expression of his clear intentions regarding the
    disposition of his property.

[87]

This
    conclusion is dispositive of this appeal regardless of the admissibility of the
    Extrinsic Evidence.  However, as the admissibility of that evidence was fully
    argued before this court, I will address this issue.

(4)

Admissibility of the Extrinsic Evidence

[88]

The
    Extrinsic Evidence was the lynchpin of the application judges ruling.  Yet, in
    relying on it to set aside the Will, the application judge failed to consider
    whether it was properly admissible.  In fairness, it appears that BMO Trust may
    not have put the admissibility of the Extrinsic Evidence in issue before the
    application judge.  Regardless, its proper admission was a pre-condition to its
    use by the application judge.  And without the Extrinsic Evidence, there was
    nothing to ground the claim that Verolins disinheritance was racially-motivated.

[89]

In
    my view, the application judge erred by admitting the Extrinsic Evidence.  I
    say this for the following reasons.

[90]

As
    a general rule, extrinsic evidence of a testators intentions is not admissible
    when the testators will is clear and unambiguous on its face.  On the initial
    application in
Rondel,
reported at
    2010 ONSC 3584
, the court considered whether a testator really
    intended to revoke a previous will, despite a standard revocation clause in the
    will.  Affidavit evidence was tendered regarding the testators intentions in
    executing the second will.  The application judge ruled, at paras. 45-46, that
    the evidence was not admissible and that, absent any suggestion of a drafting
    error, the court could not rectify a clear and unambiguous will based on
    extrinsic evidence, stating that to do so would be a significant change in the
    law.

[91]

This
    court upheld the application judges ruling, noting, at para. 23, that while
    the fundamental purpose of the law of wills is to give effect to the
    testamentary intentions of the testator for the distribution of her estate,
    the court will determine those intentions from the words used in the will, and
    not from direct extrinsic evidence of intent.  The court warned, at para. 27:

The law properly regards the direct evidence of third parties
    about the testators intentions to be inadmissible.  There would be much
    uncertainty and estate litigation if disappointed beneficiaries like Dr. Rondel
    could challenge a will based on their belief that the testator had different
    intentions than those manifested in the will.

[92]

There
    are, however, exceptions to the general rule against the admission of extrinsic
    evidence offered in proof of a testators intentions.  In
Rondel
, this
    court recognized two such exceptions.  First, direct extrinsic evidence of
    intention may be admissible where a will is equivocal, that is, where the words
    used in the will may be read as applying equally to two or more persons or
    things.  Second, evidence of the testators circumstances or the circumstances
    surrounding the formation of a will may also be admissible in cases where the
    will is or may be ambiguous.

[93]

These
    exceptions are concerned with assisting in the construction of a will.  James
    Mackenzie expresses the principle succinctly in
Feeney, The Canadian Law of
    Wills
, loose-leaf (Rel. 4011/2012), 4th ed. (Toronto: LexisNexis
    Butterworths, 2000) at 10.30: [I]ndirect extrinsic evidence may be used as an
    aid in construction when the nature and effect of that evidence is to explain
    what the testator has written, but not what he or she intended to write.

[94]

This
    is not a wills interpretation case and the application judge was not sitting as
    a court of construction.  Here, it is accepted that the terms of the Will are
    unambiguous and unequivocal.  Consequently, the established exceptions to the
    general exclusionary rule regarding evidence of a testators intentions are not
    engaged.

[95]

I
    acknowledge that the Extrinsic Evidence may be said to be of a different
    character than that recognized under the established exceptions to the general
    exclusionary rule concerning evidence of a testators intentions.  As Verolin
    and A.S. point out, the Extrinsic Evidence bears on Verolins relationship with
    Eric and his reasons for making his testamentary dispositions of his property,
    rather than what testamentary dispositions he intended to make.  Precisely
    because it is not evidence of the testators intentions, but rather the
    testators motives, Verolin and A.S. argue that
Rondel
and other
    intention cases are irrelevant.  They contend that there is no bar to the
    admission of extrinsic evidence of motive seeking to establish that a
    testators reason for a testamentary bequest offends public policy,
e.g.
where the proffered extrinsic evidence indicates that the testators motive was
    racially-motivated.

[96]

I
    think that this proposition must be soundly rejected.

[97]

It
    need hardly be said that public policy in Canada precludes discrimination on
    the basis of race and other discriminatory characteristics.  The public policy
    against discrimination is reflected in the
Charter
and the human
    rights legislation of every province in Canada, including Ontarios
Human
    Rights Code
.

[98]

But
    the desirability of affirming the public policy against discrimination does not
    lead to the conclusion that third-party extrinsic evidence of a testators
    alleged discriminatory motive is admissible to challenge the validity of a will
    where, as here, the testators residual bequest to a private beneficiary is absolute,
    unequivocal and unambiguous.  Quite the opposite.  If, as
Rondel
holds, extrinsic evidence is not admissible to establish
what
a
    testator intended, still less should it be admissible to question
why
the testator made a particular bequest.

[99]

In
Rondel
, this court identified various dangers that would arise from
    relaxation of the general exclusionary rule regarding the admission of
    extrinsic evidence of a testators intentions.
Rondel
warns, for
    example, that the admission of such evidence would lead to increased estates litigation
    and create uncertainty where uncertainty does not otherwise exist.

[100]

The same
    concerns arise regarding extrinsic evidence of a testators alleged motive in
    disposing of her property.  As with evidence of a testators intentions, where
    the testators wishes are neither ambiguous nor equivocal, the admission of third-party
    extrinsic evidence about a testators alleged motive would undercut faithful
    implementation of a testators intentions as expressed in her written will.  It
    would also encourage disappointed beneficiaries to seek an estate distribution
    different from that intended by the testator based on extrinsic evidence of
    alleged improper motive by the testator, thereby fostering unnecessary
    litigation and leading inevitably to confusion, uncertainty  and indeterminacy
    in estates law. Where possible, such mischief must be avoided.

[101]

Rondel
also
    cautions that third-party evidence of a testators intentions gives rise to
    both credibility and reliability issues.  As Juriansz J.A. explained, at para.
    37, credibility issues arise because would-be beneficiaries can, without fear
    of contradiction by the deceased, exaggerate their relationship and fabricate
    the promises of bequests.  Reliability issues arise because testators are not
    obliged to write their wills to accord with the sincere or mendacious
    assurances they may have given to those close to them.  Thus, the evidence of
    third parties, who cannot directly discern the mind of the testator, is
    logically incapable of directly proving the testators intent.

[102]

These comments
    are apposite to third-party evidence of a testators motive.  Consider that
    would-be beneficiaries can, without opportunity for rebuttal by the testator,
    exaggerate or fabricate the testators predilections or utterances and conduct during
    life in an effort to ground a discriminatory motive claim.  Just as a would-be
    beneficiary cannot directly discern the intentions of a testator, so too is a
    would-be beneficiary unequipped to directly discern a testators true motive
    in making  a particular bequest.  The law does not require a testator to
    explain, let alone to defend, her reasons for her testamentary dispositions.  Indeed,
    in my view, the privacy of those reasons is inherent in the principle of
    testamentary freedom.

[103]

Nor do the
    applicable authorities support the admission of third-party evidence of a
    testators motive for the purposes urged here.  In
Fox
, the testators
    motive was not in issue.  Only the wifes motive in exercising her encroachment
    discretion was relevant to whether she had improperly exercised her discretion and
    failed to discharge her obligations as trustee.

[104]

Moreover, I do
    not read
McCorkill
as endorsing the admission of third-party evidence
    of a testators alleged motive to support a public policy-based attack on a
    testators will.  Although extensive extrinsic evidence was admitted and
    considered by the
McCorkill
court, it was not directed at the
    testators motive in naming the National Alliance as his residual beneficiary. 
    Rather, it bore on the nature of the National Alliance organization and its
    communications and activities in support or rebuttal of the claim that it was a
    known, right-wing extremist group that engaged in racist, white supremacist and
    hate-inspired activities.  In other words, the extrinsic evidence in
McCorkill
was focused on the quality of the residual beneficiary and its illegal
    purposes, rather than on the testators motive.

[105]

In these
    circumstances, the application judge held in
McCorkill
, at para. 72:
    While the jurisprudence on voiding bequests on the grounds of public policy
    tends to deal with conditions attached to specific bequests, in my opinion the
    facts of this case are so strong that they render this case indistinguishable
    from those.  He elaborated, at paras. 76-77:

The evidence before the court convinces me that in the case of
    the [National Alliance] the purpose for which it exists is to promote white
    supremacy through the dissemination of propaganda which incites hatred of
    various identifiable groups which they deem to be non-white and therefore
    unworthy.
Those purposes and the means they advocate to achieve them are
    criminal in Canada and that is what makes this bequest repugnant
.

It is also what makes this situation comparable, in my
    view, to a gift to a trustee for a purpose that is contrary to public policy
.
The law of wills is concerned with the intent of the testator and

from
    the very fact that Mr. McCorkill left his entire estate to the [National
    Alliance] I infer that he intended it to be used for their clearly stated,
    illegal purposes
. [Emphasis added.]

[106]

Thus, it was the
    illegality of the prospective use of the residual bequest and the unlawful nature
    of the residual beneficiarys communications and activities that drove the
    decision in
McCorkill
.  These critical considerations are simply not
    in play here.

[107]

Verolin and A.S.
    also point to
Canada Trust
as authority for the proposition that the
    courts will consider evidence of a testators motive when a public policy-based
    challenge to the testators disposition of property is mounted.  I disagree.   
    In my view,
Canada Trust
does not stand for this proposition.

[108]

In
Canada
    Trust
, this court took account of the recitals in the challenged trust
    indenture, even though they might be characterized as going only to the
    settlors motive in establishing the charitable trust, because they afforded an
    explicit reason for the establishment of the trust and gave meaning to its
    restrictive criteria:
Canada Trust
, at para. 35.  But the settlors
    motive was expressed in the trust indenture itself.  Evidence of motive was
    relevant in
Canada Trust
because it formed part of the trust deed at
    issue.

[109]

In this case, the
    Will expressly discloses Erics motive, at clause 5(h).  That clause provides an
    explanation, from the testator himself, for his decision to exclude Verolin from
    the Will, namely, that she has had no communication with me for several years
    and has shown no interest in me as her father.

[110]

Viewed in this fashion,
    the purpose of the Extrinsic Evidence was not to establish Erics motive for
    the residual bequest in his Will but, rather, to contradict the lawful motive
    for the bequest disclosed by the plain language of the Will and to substitute,
    in its stead, a different and allegedly unlawful motive.  I see no basis at law
    for the admission of wholly contradictory, extrinsic evidence of motive for
    this purpose.  In my view, the courts should be loath to sanction such an
    indirect attack, which the deceased cannot challenge, on a testators expressed
    motive and testamentary choices.

[111]

As I have indicated
    in these reasons, the scope for judicial interference with a testators private
    testamentary dispositions is limited.  So, too, is the reach of the public
    policy doctrine in estates cases.  And for good reason.  The courts power to interfere
    with a testators testamentary freedom on public policy grounds does not
    justify intervention simply because the court may regard the testators
    testamentary choices as distasteful, offensive, vengeful or small-minded.  As
    the court observed in
Thorsnes v. Ortigoza
, 2003 MBQB 127, 174 Man. R.
    (2d) 274, at para. 14, a person has the right, subject to fulfilling specific
    legal obligations to dependants, to dispose of his or her estate in an absurd
    or capricious manner, whatever others may think of the fairness or
    reasonableness of the dispositions.

[112]

The application
    judges decision in this case implicitly endorses a general supervisory role
    for the courts in policing a testators unqualified and legitimate choice of
    her heirs on the ground of enforcing the public policy against discrimination. 
    This proposition, if accepted, would significantly erode and arguably displace
    meaningful testamentary freedom.

(5)

Other Grounds of Appeal

[113]

I have concluded
    that the application judge erred by embarking on a public policy-based review
    of the impugned terms of Erics Will and that she further erred by admitting
    the Extrinsic Evidence tendered in this case.  It follows that I would allow
    the appeal.  As a result, I do not reach BMO Trusts other grounds of appeal.

IV.     Disposition

[114]

For the reasons
    given, I would allow the appeal.

[115]

At the appeal
    hearing, the parties informed the court of their agreement that the parties
    costs should be paid out of Erics estate.  The court was also informed that
    the value of the estate is slightly less than $400,000, that the parties costs
    of the proceeding before the application judge, which were also ordered to be
    paid by the estate, totalled approximately $31,500, and that the parties
    claimed costs of the appeal total about $71,000.  Accordingly, payment by the
    estate of all awarded or claimed costs associated with this litigation,
    including the costs of the appeal, would reduce the value of Erics estate by
    approximately 25 percent.

[116]

In these
    circumstances, the court would benefit from further written submissions by the
    parties regarding the costs of the appeal, including with respect to the
    relevance in this case of this courts decision in
McDougald Estate v.
    Gooderham
(2005), 255 D.L.R. (4th) 435
. 
    BMO Trust shall deliver its brief written costs submissions by March 24, 2016
    and Verolin and A.S. shall deliver their responding brief submissions by April
    8, 2016, to the Registrar of this court.

Released:

MAR -8 2016                                    E.A.
    Cronk J.A.

EAC                                                I
    agree K. van Rensburg J.A.

Lauwers
    J.A. (Concurring):

[117]

I agree with my
    colleague that the appeal should be allowed for the reasons she gives, which I
    wish to supplement briefly.

[118]

The respondents
    submit that public policy supports the decision under appeal on the basis that:
    equality of the races forms part of the public policy of Canada, and cite in
    support particularly s.15 of the

Canadian Charter of Rights and Freedoms
,
    and s.1 of the
Human Rights Code
.

[119]

In this case the
    respondents ask this court to expand the public policy exception to
    testamentary freedom, by subjecting Mr. Spences will to the test of whether it
    is discriminatory in its motivation or intention, because there was no bequest
    to Verolin.

[120]

Would such a
    judicial move by this court be warranted? In my view, it would not, for two
    basic reasons.

[121]

I begin with the
    slippery slope argument, not because it is the most important reason for
    refusing to create a new public policy exception, but because it shows the full
    scope of the respondents proposal.

[122]

Although the respondents
    expressly confine their submissions to racist motivations and intentions, there
    is no logical reason to limit the reach of the proposed new exception to racial
    discrimination alone. The true scope and extent of this proposed expansion of
    the public policy exception is much larger.

[123]

There is
    therefore considerable merit in BMO Trust Companys argument that allowing the
    application judges decision to stand would increase uncertainty in estates law
    and open the litigation floodgates. The respondents proposal would greatly
    extend both the courts jurisdiction and its burden, and would disrupt estates
    law, which now functions smoothly to pass property from one generation to the
    next.

[124]

Second, I
    address the proposed extension of the public policy exception to testamentary
    freedom as a matter of principle. There is no law in Ontario that entitles
    Verolin to share in her fathers estate. No law has deprived her of any right.
    The
Charter
value of equality that she asserts does not afford her
    such an entitlement. Ontario could choose to legislate to give effect to the
    value of equality in estates, but it has not done so.

[125]

In that regard,
    it is instructive to recall that the
Charter
exists to control the
    activities of government, as provided in s. 32, in order to protect personal
    autonomy and freedom from governmental activities. The
Charter
does
    not reach or seek to affect the private conduct of individuals in their
    relations with each other. See

Dolphin Delivery Ltd. v. R.W.D.S.U.,
    Local 580
, [1986] 2 S.C.R. 573, at pp. 598-99.

[126]

Similarly, the
    reach of the
Code
is limited. The
Code
does not regulate the
    actions of individuals unless they are supplying services, goods [or]
    facilities as provided in s.1, or accommodation under s.2, in the market. Individuals
    are otherwise free to hold and to act on their prejudices, however unsavoury,
    so long as they do not breach the criminal law. The
Code
obliges them
    to act rightly only in the market, whatever their private thoughts might be.
    Putting it differently, it is not the
Code
s purpose to force people
    to think and act rightly everywhere and at all times.

[127]

Finally, I
    address Mr. Cherniaks submission that a
Charter
hook is available
    under s.32 as a means for this court to interfere with Mr. Spences will. He
    argues that by probating Mr. Spences will under the
Estates Act
,
    R.S.O. 1990 c. E.21, the court is a state actor, and is therefore obliged
    to expand the public policy exception to testamentary freedom in accordance
    with
Charter
values.

[128]

I reject this submission
    for two reasons. First, what is being attacked is Mr. Spences will, which
    is a quintessentially private act of personal expression. There is no doubt
    that Mr. Spences act is not itself state action caught by the
Charter
or the
Code
, neither of which interferes with the bequests of
    testators.

[129]

Second, in
    probating Mr. Spences will there is no state action that engages the
Charter
in the relevant sense. The courts jurisdiction in matters of probate in
    Ontario is narrow, as described by Cullity J. in

Otis v. Otis
,
    [2004] O.J. No. 1732. The basic probate question is whether the will itself is
    formally valid, the testator was of sound mind, and the will was not made in
    suspicious circumstances. In probating a will the court is not concerned about
    the validity of specific bequests and does not require proof that bequests in a
    valid will are non-discriminatory. The court neither condones nor approves of
    particular bequests.

[130]

For these
    concurring reasons, in addition to those advanced by my colleague, I would
    allow the appeal.

P.
    Lauwers J.A.





[1]
On March 25, 2015, Huscroft J.A. of this court, sitting in chambers, approved
    the Office of the Childrens Lawyers (the OCLs) abandonment of its appeal
    from the application judges decision. The OCL did not participate in this
    appeal.



[2]
The
Wills Variation Act
has since been replaced in British Columbia by
    the
Wills, Estates and Succession Act
, S.B.C. 2009, c. 13.  Section 60
    of that statute affords the courts the same authority as previously set out in
    s. 2(1) of the
Wills Variation Act
.



[3]
See
Waters Law of Trusts in Canada
, 4th ed. (Toronto: Carswell 2012)
    at pp. 335, 338.



[4]
See for example,
Re Thorne
(1922), 22 O.W.N. 28 (H.C.);
Waters
    Law of Trusts in Canada
, at p. 341



[5]
See
Murley Estate v. Murley
(1995), 130 Nfld. & P.E.I.R. 271 (S.C.
    (T.D.)).  These cases must be contrasted to those involving charitable bequests
    that simply restrict the class of eligible beneficiaries to members of a
    particular religious faith.  Cases in the latter category have been held not to
    offend public policy: see for example,
University of Victoria Foundation v.
    British Columbia
, 2000 BCSC 445;
Ramsden Estate, Re
(1996), 139
    D.L.R. (4th) 746 (P.E.I. T.D.) (In Chambers).



[6]

Re Elliot
, [1952] Ch. 217; Francis Barrow et al., ed.,
Williams on
    Wills
, 9th ed., vol. 1 (London, UK: LexisNexis Butterworths, 2002), at
    34.12.



[7]
As at the date of these reasons, the leave application to the S.C.C. in
McCorkill
remains pending.


