When Equality Trumps Reason And Law- The disturbing trend toward irrational conduct from some judges and courts.

By Adam Parachin
HuffPost Canada Media
Mar 19, 2016

Last week the Ontario Court of Appeal in Spence v BMO Trust overturned a lower court's decision to set aside the will of the late Mr. Eric Spence on the ground that the will was discriminatory and thus against public policy. In so doing, the Court of Appeal gave expression to the self-evident proposition that Mr. Spence was not legally obligated to benefit in his will persons he was not legally obligated to benefit. The most astounding aspect of the appeal judgment is that it was necessary in the first place.

Predictably, the case is being discussed in terms of what it reveals about "testamentary freedom," which is the freedom to dispose of one's property on death as one sees fit. But there is a bigger story here.

The lower court's unprecedented decision to set aside Mr. Spence's will is about as poorly reasoned a legal decision as one is likely to encounter. Its thin reasoning is symptomatic of an emerging convention whereby we seem increasingly willing to suspend reason (and sometimes even law) to reflexively embrace anything couched as a defence of equality.


A bit of context will help to illustrate the point. The case was centred on Mr. Spence's decision to leave nothing to one of his adult daughters. Mr. Spence's will stated that this was due to an extended lack of communication. But the lower court accepted evidence -- an affidavit from a family friend -- indicating that the real reason was because Mr. Spence disapproved of his daughter having had a child with a Caucasian man.

Not entitled can only mean one thing -- not entitled. 

Reasoning that such a discriminatory motive offended "not only human sensibilities but also public policy," the lower court took the astonishing and unprecedented step of setting aside the entire will.

The difficulty, of course, is that Ontario law does not obligate parents to leave inheritances to their children who are not dependants. The lower court did not explain how there could possibly exist an improper basis for Mr. Spence to withhold an inheritance from an adult daughter not entitled to one.

This is no small problem. The excluded daughter's lack of a protected legal right to share in her father's estate rendered Mr. Spence's motive for excluding her both legally and logically irrelevant. It is impossible for Mr. Spence's motive for not benefiting a daughter he was not obligated to benefit to violate public policy. Not entitled can only mean one thing -- not entitled.

The lower court alleged its decision was supported by previous cases. But none of the cases cited by the lower court actually supported the decision to set aside the will.

In fact, one of the cases relied upon by the lower court explicitly stated that it should not be applied in the context of family disputes over wills.

Meanwhile, a long line of precedents -- not acknowledged by the lower court -- supported Mr. Spence's freedom to determine who would and who would not share in his estate.

And what of the fact that the will itself provided a non-discriminatory explanation for Mr. Spence's decision to exclude one of his daughters? The lower court simply disregarded this.

None of this was lost on the Court of Appeal, which reversed the lower court's decision and upheld Mr. Spence's will. But we are left with a disturbing question. How did the lower court manage to reach a conclusion so unsupported by established law?

Once striking Mr. Spence's will could be explained as a defence of equality, it evidently no longer mattered that doing so lacked any foundation in law or logic. Over a century's worth of precedent was summarily dispensed with based on nothing more than a superficial appeal to the ideal of equality. And with that the well-established freedom under Ontario law to choose one's estate beneficiaries was suspended in favour an unprecedented form of judicially imposed forced heirship.

It should concern us that any court would exhibit such a blatant disregard for precedent. This goes to the very heart of the judicial function, which is to apply the law, not revolutionize it in order to give effect to a legally and logically baseless equality claim.

A concern to uphold and promote equality is, of course, a proper ambition of the law and a hallmark of a just society. But an unthinking commitment to the fundamental goodness of equality can become a harmful fundamentalism when it stands in the way of asking intellectually honest questions about implausible equality claims.

Increasingly, it seems that asking such questions is viewed as an affront to the very ideal of equality. This is unfortunate because it breeds cynicism and frustrates intelligent conversations about equality.

Acknowledging that some equality claims are misplaced does not reveal bigotry but rather judgment. Conversely, a failure to do so reveals a lack of judgment.

As for Mr. Spence's will, we might not approve of his alleged discriminatory motives. However, that is irrelevant to its formal legal validity. It is astounding that the opposite conclusion was reached. The Court of Appeal was right to intervene.