A recent decision of the Manitoba Court of Queen’s Bench is an interesting exposition of the interpretation of a will clause which offered a large sum of money to the University of Manitoba. But for reasons which will become apparent, the University elected to go to court to get a legal imprimatur before accepting the gift.
On September 27, 1997, Dr. Esther G. Castanera passed away. Dr. Castanera had graduated in 1942 with a Bachelor of Science degree from the University of Manitoba. She went on to earn a Ph.D. from the University of California at Berkeley in biochemistry. At the time of her death she was a resident of Berkeley, California. Prior to her attendance at the University, she had attended the public high school in Steinbach, Manitoba.
In 1991Dr. Castanera had discussions with representatives at the University about the prospect of her establishing an award fund from a testamentary gift to support a scholarship for women graduates from her high school in Steinbach who enter a program of study in certain sciences. In due course she made her will which, left 50% of the residue of her estate to the University earmarked for women graduates of the “Steinbach Collegiate Institute”. The full bequest reads as follows:
I give, devise and bequeath the remaining fifty percent (50%) of my residuary estate to the UNIVERSITY OF MANITOBA, Winnipeg, Canada for scholarships at the University of Manitoba for needy and qualified women graduates of the Steinbach Collegiate Institute who will study for a Bachelor of Science degree with a major in one of the basic sciences of chemistry, physics, mathematics, biochemistry or molecular biology. This bequest shall be known as the “Esther G. Castanera Scholarship Fund.” It shall be administered upon such conditions as the governing body of the University of Manitoba shall prescribe.
The other 50% went for a similar scholarship at Berkley
The capital of the bequest is $270,120.33. By virtue of the lack of use to date of the fund as well as the return on its investment, as of January 9, 2015, it stood at $563,233.93.
At the time that the will was drafted (May 16, 1991) and the date the will became effective (September 27, 1997), the University had a policy entitled “Non-Acceptance of Discriminatory Scholarships, Bursaries or Fellowships”. It had been in place since 1979 and read:
As a matter of principle, the University of Manitoba will not administer any new scholarship, bursary or fellowship that discriminates on the basis of race, creed, political belief, colour, ethnic or national origin, sex, or age.
Any exceptions to this principle shall be made only with the consent of the unit concerned, the Senate Committee on Awards, and the Senate. A request for such exceptions shall be indicated by the Committee on Awards.
When Dr. Castanera’s gift became available, the Faculty of Science in late 1998 and early 1999 wrote to the Chair of the Senate Awards Committee recommending that an exception be granted from the policy on Non-Acceptance of Discriminatory Scholarships, Bursaries or Fellowships on the basis that in the four courses then available at the University, namely chemistry, physics, mathematics and biochemistry, “women are and have been almost consistently been, underrepresented in these academic disciplines”, submitting therefore that, “This exception constitutes an affirmative action.”
The request of the Faculty of Science for the exception was not approved by the Senate Awards Committee for mathematics and biochemistry, on the basis that the then most recent numbers of admissions in those disciplines suggested that women were no longer underrepresented. On March 29, 1999, the Associate Dean wrote once again to the Chair of the Senate Awards Committee resubmitting the faculty’s request for an exception, and based it upon a reworking of the numbers to reflect the percentage of women who actually graduated when compared to the percentage of men. In April 1999, the Senate Committee on Awards again sent the request back to the Faculty of Science requesting the Faculty to provide new support for its request to exempt all four disciplines from the policy.
In a sense the file went into a twelve year hiatus.
The University tried to get the court to “rewrite” the will by extending the grants to both men and women and broadening the area from which students could come as the Steinbach Collegiate Institute no longer existed.
The concerns of the University which prompted the request for the opinion of the court were two-fold:
(a) the will contemplated scholarships to graduates of “Steinbach Collegiate Institute”. The evidence before me indicates that “Steinbach Collegiate Institute” ceased to exist in the fall of 1972 at which time the Hanover School Division began operations of “Steinbach Regional Secondary School” as the Division’s Steinbach high school. Do graduates of “Steinbach Regional Secondary School” fall within the wording in the will respecting graduates of “Steinbach Collegiate Institute”?
(b) The will contemplated that the recipients of the scholarship monies would be women. The University at least initially expressed concern that given the increase in enrollment of women in the undergraduate programs in the Faculty of Science, restricting eligibility to women might be said to contravene the Human Rights Code, C.C.S.M. c. H175 (“the Code”), or alternatively to be in breach of public policy.
The regional issue was quickly resolved.
Mr. Justice Dewar said:
“In my opinion, the wording in the will relating to “Steinbach Collegiate Institute” should be varied to “Steinbach Regional Secondary School There is nothing untoward in equating Steinbach Regional Secondary School with Steinbach Collegiate Institute. Indeed, in order to give effect to the wishes of Dr. Castanera, they must be equated. To the extent there is any doubt, I am prepared to vary the trust accordingly to make it abundantly clear.”
He then gave detailed consideration to the issue of limitation by gender, a discussion well worth reading in full.
“There are two court decisions which yield different results but deal with different qualities of discrimination. The first case is the case of Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 1990 CanLII 6849 (ON CA), 74 O.R. (2d) 481 (C.A.), 1990 CarswellOnt 486, (sub. nom. Leonard Foundation Trust, Re) (the “Leonard Trust” case). 
The cautions expressed in the judgments found in the Leonard Trust case were observed by the court in University of Victoria v. British Columbia (Attorney General), 2000 BCSC 445 (CanLII), 185 D.L.R. (4th) 182, 2000 CarswellBC 529, a decision of Maczko J. of the British Columbia Supreme Court. In that case, the University of Victoria was named a trustee to administer what amounted to 1/10 of the residue of a testator’s estate, and as trustee was to observe the following conditions; namely the eligibility restriction of two gifts to Roman Catholic students was laid before the court for advice and direction as to whether those restrictions contravened the British Columbia Human Rights Code or public policy and if so, whether an application of the cy pres doctrine was available to salvage the gift.”
In a nutshell, the Court allowed the restrictions to stand.
After an extended discussion of the cases, Dewar said:
“I prefer to rest my conclusion on the case before me on the second of the grounds used by Maczko J. in reaching his decision in the University of Victoria case. Put very simply, the restrictions which drove the decision in the Leonard Trust case were motivated by a belief that white Anglo Protestant people were superior to all other people of different races and different creeds. It is this notion that a select group of people are superior to others simply because of who they are that makes the restrictions in the Leonard Scholarships so offensive. The restrictions contained in the Castanera Scholarship Fund are not motivated by superiority. If anything, they are motivated by a desire to promote women in a field which historically was a male-dominated field. There is no suggestion that women will make better scientists than men. There is only a suggestion that women should be encouraged to enter a discipline which Dr. Castanera appeared to have enjoyed, and which historically was not populated by women. The notion that these conditions can be construed as unreasonably discriminatory is simply not sustainable.
To the extent that one might perceive that limiting eligibility to women offends s. 13 of the Code, the Code itself provides for its exception. Section 13 contains the words “unless bona fide and reasonable cause exists for the discrimination.” A desire by a woman who has experience in a particular field to promote women in that field in which historically there has been an underrepresentation, in my view, is a bona fide and reasonable cause to direct her money to women only. Furthermore, where that purpose was not unreasonable at the time the gift was contemplated, it is not unreasonable for a University to administer such a gift even when progress towards equality has been achieved, unless the gift in the mind of the public has become so offensive as to require a variation.”
The decision is one which should be applauded as a victory for common sense. Even in this extended article we have not done justice to Dewar’s handling of the case but we can certainly strongly recommend, at least to the lawyers in our audience, reading the full set of reasons for the decision.
 This is the most famous and graound-breaking case on discriminatory scholarships.