This past week the Ontario Superior Court of Justice rendered its decision on the motions by the governments of Ontario and Canada to strike GAJE’s application for fairness in educational funding.
Judge Papageorgiou decided that the application against the Government of Ontario should proceed while the application against the Government of Canada should not.
We cannot overstate the importance of the decision. It means that GAJE will continue to the actual Application stage of legal argument with the Government of Ontario.
It is important to remember that Judge Papageorgiou did not decide upon the merits of our case. That was not her role in the proceedings before her. Her role was to decide upon the attempt by the governments to deny GAJE the opportunity to present the merits of our case in court. We understand now why it took her four months to hand down the decision. Judge Papageorgiou delivered 46 pages (!) of written reasons that were thoroughly researched and tightly reasoned.
Judge Papageorgiou agreed that our case raises sufficiently important legal matters of constitutional interpretation and development and of public policy to warrant a full airing in Court. Her thoughtfully written reasons explain to the governments, GAJE, to subsequent judges hearing the case and to the public exactly why.
To successfully compel Ontario to change its educational funding, GAJE must first persuade the courts to re-assess the 1996 Supreme Court decision, known as the Adler case. Ontario clings to the Adler case as the its legal authority for continuing with its current educational funding practices. In the Adler case, the Supreme Court ruled that Ontario did not violate the Constitution by providing educational funding to members of one religious group only. It is that ruling GAJE seeks the courts to revisit. Of course, the rule of law requires lower courts to follow the decisions of higher courts when similar facts in similar situations are being litigated. However, the Supreme Court itself has propagated rules for allowing itself and lower courts to revisit, or reopen, or reassess, its decisions when circumstances warrant.
It was the application of those rules – to allow the Courts to reassess the 1996 Adler case – that formed the heart of the motion before Judge Papageorgiou. (Space does not permit us to quote extensively from the judge’s decision. Over the coming week(s) we will familiarize readers with excerpts from Judge Papageorgiou’s reasons.)
However, we shall reproduce the essence of the court’s ruling:
“There is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter (the rules for reassessing Supreme Court decisions). In that regard, there is a reasonable chance that an application judge may find that the Grassroots Applicants have raised: i) new circumstances or evidence which have fundamentally shifted the parameters of the debate; and/or ii) new legal issues as a result of significant developments in the law which support the revisitation of binding precedent.
“My finding in this regard is not based upon one single argument raised by the Grassroots Applicants; it is based upon the combined effect and totality of the new circumstances (social, political and legislative) and developments in the law they have raised. “
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We thank the exceptional work of our team of lawyers – David Matas, Jillian Siskind, Sarah Teich and Carina Rider – who advocated so effectively and so persuasively, with determination, skill, purpose and integrity – on behalf of the cause of fairness and justice in educational funding. Their success was a big deal. Indeed, this decision is a big deal. We realize we are still at the beginning of the process. But because of our team of counsel, we have a beginning.
Some in our community were (and alas, remain) skeptical of the possibility of the success of our cause. We urge skeptics to rethink their skepticism. Put it aside. Please. We urge you to stand with us and our many supporters in demanding the Government of Ontario to change its unjust and unfair educational practices. Judge Papageorgiou has ruled that this issue should be heard in court. We urge you to help us ensure that the issue is also heard in the Legislature.
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Shabbat shalom
Grassroots for Affordable Jewish Education (GAJE)
August 25, 2023
Grassroots for Affordable Jewish Education 