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Students shut out of Pocklington scholarships

Law school changes your way of thinking.  When I first read this newspaper article, I thought a discretonary trust or a charitable trust could be enforced. Below the cut is the article and brief legal analysis.

Back in 1997, Grade 9 student Boe Lefebvre received a handshake and a certificate from then Edmonton Oilers owner Peter Pocklington after attaining an 80-per-cent average at his inner-city school. The honour was more than ceremonial. Pocklington also made a promise to Lefebvre that day -- along with all his classmates who achieved an 80 -- that he would provide them with a scholarship when it was time to attend college or university. More than a decade later, Lefebvre says he has yet to receive any money from Pocklington despite several attempts to collect. His last contact was more than a year ago, when Pocklington wrote him a letter promising to make good in the form of stocks in a company called Sonartec. The stocks never came, and the company is now bogged down in a lawsuit.

"When you fulfil your end of the bargain and the other end falls through, it's like, 'What now?' " said Lefebvre, now 26. "I had made plans for the future based on that money."

Reached by phone Saturday, Pocklington said that when he left Edmonton, there was between $50,000 to $100,000 left in an account with the Alberta Treasury Branch, which was to be used to administer the scholarship program. The program was left in the hands of a person at ATB, whom he believes has since left the bank.

"That is the last I know about it. That was 13 years ago, and normally, there is an end to these type of things," he said.

Pocklington's involvement in the program, which began in 1995, was initially supposed to be anonymous, but officials at McCauley elementary and junior high school eventually convinced him to take credit. The Oilers owner said at the time he chose McCauley because he had volunteered there previously and knew many parents in the community could not afford college or university bills.

The terms of the program as it was set up in 1995 were fairly straightforward: Every Grade 9 student at McCauley who achieved an 80-per-cent average would receive a certificate that ensured Pocklington would pay their tuition throughout their post-secondary education. He vowed to keep awarding the certificates for 10 years.

Students were later informed they would not get full tuition coverage, but rather $2,000 for each year of their studies.

By the time Lefebvre reached his Grade 9 graduation in 1997, there were worries that Pocklington would have to withdraw the scholarships altogether due to debts he owed to Alberta Treasury Branches. But on a visit to the school that June, Pocklington dismissed such concerns and told the students he would live up to his word. It was believed the money was protected in a trust fund, which Pocklington was building up over the 10 years with annual $40,000 deposits.

(The Oilers owner years later told an Edmonton media outlet that he never agreed to a trust fund, but had instead promised a total expenditure of $400,000). Lefebvre said he remembers Pocklington's visit vividly. In addition to the scholarship certificate, all the winners from his class were given an Oilers jersey and met Oilers winger Dean McAmmond. "I was pretty overwhelmed. I couldn't believe someone was going to pay for me to go to school," he said.
"All throughout junior high, I knew I wanted to be on the list. For my parents, it was a huge weight off their back because there was no way they could pay for my education."

But as Lefebvre enrolled in Grant MacEwan College a few years later, there were more warnings about the scholarships.

Although some McCauley grads had received money, Lefebvre knew many others who were still waiting. Pocklington then told The Journal in January 2000 that he was cutting the program short due to his plans to leave Edmonton, adding that he would honour the scholarships he promised in the first five years. That meant the winners from 1995 to 1999 should have been safe.

"Actually, I can't think of anyone in my class who got anything from (Pocklington)," said Sam Ngai, who went to McCauley around the same time as Lefebvre.

"My brother was a year ahead of me and he didn't get anything either. I never attempted to find out what happened because everyone told me he went bankrupt."

Ngai said he had to work very hard in Grade 9 to attain an 80 average. "Because my parents were poor as heck," he said. "I wasn't so much mad as disappointed, but I guess that's life."

While others became resigned to the situation, Lefebvre remained unwilling to give up -- even though classmates and the public school board could offer him few answers.

After graduating with a digital arts diploma from MacEwan and accumulating $11,000 in student debt, he decided to send Pocklington a letter.

"I know you have no reason to fulfil this request other than simply for moral reasons, and I am prepared for disappointment," Lefebvre wrote.
"Thank you for everything. Please take some time to make an informed and sincere decision."
About six months later, a handwritten reply showed up in which Pocklington congratulated Lefebvre for his academic success and promised to send him $6,000 worth of stock in Sonartec, a golf equipment company.
When six more months passed with no sign of the stock, Lefebvre sent another letter.
"Thank you, thank you, thank you. I am without words," he wrote.
"I want you to know that I will be using your scholarship gift responsibly and respectfully. It will be used to reduce my student loan to a manageable amount. Of course, this is pending the certificates are processed and I am able to liquidate the stocks you are sending."
Lefebvre said he has not heard from Pocklington again.
Pocklington said he remembers receiving one letter regarding the scholarship two or three years ago, although he did not remember its details or who it was from.
But if he promised Lefebvre share certificates, he will honour that promise.
"I'll be happy to give him share certificates. Unfortunately, I have no idea who he is because I don't keep that kind of detail in my mind," Pocklington said.

Lefebvre is now married, trying to finish a communications degree and is running a fledgling photography business.

Deep down, he knows he should let his crusade go, but it still bothers him that Pocklington received positive publicity for the scholarship program.

He's not sure what his next move will be.

"I knew this was going to be a longshot from the get-go," he said. "But in my mind, it all comes down to principle."

It is not known how much money made it to students' hands, although Pocklington told The Journal in 2000 that he had distributed between $40,000 and $60,000.

While Pocklington may claim that there was no trust fund set up, a discretionary trust could be constructed from the facts. Pocklington was the settlor, providing the property. The bank would be the trustee to make the distributions to the students, and the students would be the beneficiaries. It would be a discretionary trust because the beneficiaries are students that got 80% or above in grade 9 and attended post secondary.  While Pocklington denies now, that there was a trust fund he did have intention to constitute a trust as provided in the above article. The intention can be gleaned from his statements and the act of putting the money into the account. There is certainty in subject matter, because there is an account especially created for this purpose and it was consituted because he put money in that account.

The quantum that the beneficiaries is either quantifable by the amount that tuition cost at the time they attended post secondary, or it could be $2000 as later stated by Pocklington. After Pocklington had constituted the trust by placing money into the account, he cannot revoke the trust unless he expressed revocation, which he did not because he has affirmed his committment through the promise of stocks.

If there was no trust constituted, the student could enforce the promise to consitute the trust. The student could argue under Law, that the certificate he was given was a promise under seal and could therefore get damages and the student was a party under the promise. Since the trust was not constituted, the student could sue for expectation damages for the breach of failure to constitute the trust.

An unorthodox legal analysis available is that when Pocklington promised scholarships, the trustee took the promise under trust for the beneficiary and beneficiary could enforce the promise.

Futhermore, one might be able to find a charitable purpose trust and therefore these "type of things do not come to an end" as Pocklington claims. This would be a charitable purpose trust because it falls within the four categories as stated in Statute of Elizabeth 1601 of advancement of education. If the court found that it was a charitable purpose trust, it cannot be revoked because once charitable, always charitable and the money must be distributed and the Attorney General could enforce it. 



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