Document Type
Article
Publication Date
2020
Source Publication
Canadian Journal of Comparative and Contemporary Law, Vol. 6, pp. 305-359
Abstract
When courts have considered when and why discrimination renders an institution ineligible for charitable status, they have resorted to the doctrine of public policy to explain the non-charitableness of discrimination. Public policy is not, though, up to the task. It is undisciplined, inspires courts to consider irrelevant factors and offers no principled explanation as to when and why discrimination should and should not vitiate charitable status. A better approach would be to address this issue using the traditional analytical tools of charity law — charitable purposes, charitable activities and public benefit. But this is a deceptively difficult task, which perhaps accounts for the appeal of public policy to courts. Nonetheless, this paper looks inward to the law of charity, developing an “in-house” rule against discrimination grounded in the internal logic and values of charity law. Specifically, this paper discovers in the public benefit requirement an inclusive ethic through which charity law affirms the equal worth, value and dignity of others. Discrimination is non-charitable when it fails this standard through stigmatizing rejection. But not all differential treatment under charitable trusts contradicts the inclusive ethic of charity law.
Repository Citation
Parachin, Adam, "Why and When Discrimination is Discordant with Charitable Status: The Problem with “Public Policy”, The Possibility of a Better Solution" (2020). Articles & Book Chapters. 3347.
https://digitalcommons.osgoode.yorku.ca/scholarly_works/3347