Court Refuses to Amend Purpose of Charitable Trust

Court Refuses to Amend Purpose of Charitable Trust

 

Mulgrave School Foundation  2014 BCSC 1900 involves a case where for donors made gifts totaling $1.1 million to the petitioner school foundation, specifically to support the scholarship program. The Petitioner  school applied instead to use the funds toward a major construction project and sought relief under the provisions of the Charitable Purposes Preservation Act, section 3 (4) or alternatively under the inherent jurisdiction of the court.

The court declined to amend the purpose of the trust stating that there was no evidence before the court that the petitioner was “unwillingly or unable to continue to keep, administer and use the property to advance the discrete purpose” of the donations”.

 

The Court dismissed the application using the following language in its reasons for judgement:

 

[24]         The petitioner also relies upon s. 3(4) of the Charitable Purposes Act, which states:

3(4)      Without limiting subsection (3), if a charity holding discrete purpose charitable property is unwilling or unable to continue to keep, administer and use the property to advance the discrete purpose, the court may make whatever orders, including arrangements, it considers appropriate, including transferring the property to a new charity, so that the property is kept, administered and used to

(a)        advance the discrete purpose, or

(b)        advance another charitable purpose that the court considers is consistent with the discrete purpose.

[25]         At common law the court has the ability to direct a scheme or mechanism under the doctrine of the cy-pres when a charitable purpose becomes impossible or impracticable to perform.

[26]         There is no question that the Donated Funds have a charitable purpose, the advancement of education with the discrete purpose to fund scholarships.

[27]         The petitioner acknowledges that it has not adduced evidence that the Foundation is unwillingly or unable to continue to keep, administer and use the property to advance the discrete purpose.

[28]         Petitioner’s counsel, however, urges this court to adopt an expansive interpretation of the aforementioned section sufficient to allow a court to intervene and put in place a scheme which differs from the identified discrete purpose even when there is an absence of a charity being unable or unwilling to perform the discrete purpose.

[29]         I note as well that the petitioner has not adduced any evidence which indicates that there is impossibility or impracticability in carrying out the discrete purpose.

[30]         Petitioner’s counsel did not provide any authority which supported the expansive interpretation of the subject section; nor was any authority or principle that would allow the court to depart from the conditions set out under the doctrine of the cy-pres.

[31]         For the relief sought, an applicant must meet the aforementioned specified necessary conditions.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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