Discrimination and the Private Law in Canada: Reflections on Spence v. BMO Trust Co.
Bibliographic record
Abstract
Discrimination has long been identified as detrimental to the basic functioning of multicultural countries like Canada. While governments have adopted constitutional law and passed human rights legislation to combat and control discrimination, these laws are inapplicable to a significant portion of Canadian law. Areas of private law, such as wills and trusts are therefore more vulnerable to use by individuals seeking to perpetuate discrimination. The main way that courts in Canada have dealt with this issue is through the use of the doctrine of public policy. As early as the 19th century, private law provisions viewed as restraining another’s freedom of religion or perpetuating discrimination on grounds such as race, ethnicity, or sexual orientation have been found contrary to public policy by Canadian courts and voided accordingly. While the uniquely Canadian jurisprudence in this area continues to evolve, until quite recently, its trajectory appeared to be one of expansion. However, the latest appellate level decision in this area, Spence v. BMO Trust Co., appears to have changed the course of this jurisprudence. In Spence, the Ontario Court of Appeal found that certain testamentary clauses, no matter how discriminatory in nature, can never be subject to a public policy review. This article argues that while the result of Spence was likely correct on its particular facts, the reasoning of that decision goes too far in its attempt to limit the doctrine’s applicability with respect to discrimination in the private law. Parts of the decision in Spence ignore the key message of past decisions in this area concerning the danger of uncensored discrimination in Canadian society. While reasonable people may disagree on the outcome of any given public policy inquiry, a point that should attract consensus is that the private law should never be an unexamined and impenetrable shelter for discrimination. However, Spence effectively creates an area of the private law immune to legal scrutiny by precluding the use of the common law doctrine that has been used to directly confront and censure discrimination in Canadian private law.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.009 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.004 |
| Science and technology studies | 0.051 | 0.019 |
| Scholarly communication | 0.013 | 0.004 |
| Open science | 0.003 | 0.004 |
| Research integrity | 0.016 | 0.015 |
| Insufficient payload (model declined to judge) | 0.005 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".