THE ADVOCATE 879
VOL. 77 PART 6 NOVEMBER 2019
By the Honourable David Eby, Q.C.*
LESSER-KNOWN PUBLIC INTEREST RESPONSIBILITIES OF B.C.’S ATTORNEY
Before taking on this job I was certainly aware of the Attorney General’s
constitutional responsibility to enforce public rights vested in the Crown;
however, I was less familiar with some of the lower-profile subspecies of the
public interest role of B.C.’s Attorney General until getting into the trenches
in Victoria. While the following situations may not come up frequently for
counsel in day-to-day practice, it may be helpful for lawyers in the province
to know that in some unexpected situations the Attorney General’s office
may come calling by right—whether invited or not.
The Attorney General’s Role with Respect to Charitable Trusts, Including in the
For lawyers who remember taking a law school trusts course (so much of
law school is hazy for so many) the “cy-près doctrine” will ring a bell. Cy-près
allows a court, on application, to vary the purposes of a charitable trust
where the original intention of the trust is no longer possible to achieve.
This common law doctrine is modified in B.C. for municipalities by s. 184
of the Community Charter. This section replicates cy-près review by courts
for municipalities, but with a twist: courts may hear applications to vary
where the terms of the trust are “no longer in the best interests of the
municipality”, and the court can fashion a remedy if it is possible to do so
in a way that furthers both the intention of the donor and the best interests
of the municipality.
The Attorney General has parens patriae standing to appear in order to
represent and protect the charitable interest, which cannot speak for itself,
* The Honourable David Eby, Q.C., is British Columbia’s Minister of Justice and Attorney General.