In 46-pages of comprehensive analysis and reasoning, Judge Eugenia Papageorgiou, concluded that “there is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter”, i.e., to allow the courts to begin the process of re-assessing the full applicability of the 1996 Adler case to the broad societal and legal situation today.
It was the Supreme Court’s decision in Adler, readers will recall, that enabled Ontario to fund the religious education of the children of one religion to the exclusion of children of other religions. The court did not prohibit Ontario from funding the religious educations of children of other religions. Nevertheless, ever since then, Ontario has adamantly refused to provide any funding to independent schools or to the schools of other religions. All the western provinces and Quebec, on the other hand, do provide some funding to their independent schools.
This is important information, for reasons discussed below, to properly answer the question whether Ontario should or can do the same thing.
In arriving at her decision to grant GAJE the opportunity to begin the “Adler discussion” in court, Judge Papageorgiou created ten discrete stepping stones of evidence, logic and reasoning. The eighth stepping stone dealt with “the arguments presented by the Grassroots Applicants regarding social, political and legal developments in support of their position that they meet the test in Bedford and Carter.” This part of the judge’s reasoning comprised 20 of the 46 pages and was itself divided into eight categories of social, political and legal developments.
One of these categories (the fifth) was titled “Funding of religious schools by other provinces has not compromised the public school system.”
GAJE’s counsel provided information to the court on this subject as part of its application because it was an issue raised in the Adler case by the Supreme Court. Judge Papageorgiou noted that “the materials before the Supreme Court (in the Adler case) did include concerns that funding religious schools would adversely affect the objective of promoting a strong public school system.”
The following is excerpted from the decision. It is Judge Papageorgiou’s precise language on this issue:
“[167] The Grassroots Applicants’ affidavits, which must be taken as fact, state that there is no evidence that funding independent schools affects public school enrolment. The rate of enrolment in public schools in provinces that fund independent schools for the 2019/2020 school
year was 89.9 percent in Quebec, 95.7 percent in Saskatchewan, 91.3 percent in Manitoba, 93.7 percent in Alberta and 86.5 percent in British Columbia. Based on these numbers, funding of religious schools would arguably not impact the funding for public schools.
“[168] The concern that funding independent schools would “starve” the public school system has not materialized in these provinces. In fact, the materials filed by the Grassroots Applicants show that spending in public education has increased beyond what was required to account for enrolment and inflation. For instance, from 2014 to 2019, total spending on public schools increased by 15.4 percent in British Columbia. More importantly, since Adler was decided, the Supreme Court has found that “budgetary considerations in and of themselves cannot justify violating a Charter right”: Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 6.
“[169] I do note here that at the time of Adler, five provinces (Quebec, British Columbia, Saskatchewan, Alberta and Manitoba) did already provide partial funding to independent religious schools: see Adler, at para. 106. The evidence showed that such partial funding “resulted in a relatively low increase in the number of independent schools”: at para. 103. It is unknown based on the materials before me whether such funding has changed in these provinces and whether the data provided is based upon different funding models in these provinces.
“[170] As a result, I do not find this very significant. I do note that if this matter is argued on its merits, there will likely be richer data on the impacts of such funding on the objective of providing a strong public-school sector since there will be thirty years more data.”
In the past, and likely still today, opposition to even some public funds for independent schools has been anchored by individuals and organizations, for example, teachers’ unions, civil liberties proponents, and public-school advocates in general, who suggested that spending any public funds for independent schools would devastate the public school system. But this suggestion has proven to be baseless, a chimeral concern. Indeed, some experts contend that providing some funding for independent schools eventually improves the educational outcomes in the public schools and leads to cost savings and efficiencies.
The reason we have singled out this portion of Judge Papageorgiou’s decision is to provide an unambiguous rebuttal to those who warn that the extension of some funding to independent schools is a mortal threat to public schools. There simply is no evidence in Canada that this warning holds any danger whatsoever to public schools. None.
Indeed, as many observers have noted, the inclusion of independent schools, at least to some extent, within the public-school funding portfolio, provides opportunities for excellence and improved outcomes for all of the stakeholders in the provincial educational system.
If this is the case – and GAJE earnestly believes it is – why does the Government of Ontario persist in refusing to allow this discussion to go forward in court? As most readers of this update know, Ontario has brought a motion for leave to appeal Judge Papageorgiou’s decision.
If you are upset that Ontario is trying to shut down GAJE’s case before a hearing on its merits, we urge you to let your Member of the Provincial Parliament know.
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If you wish to support GAJE’s lawsuit, please click here.
For further information, please contact Israel Mida at: imida1818@gmail.com
Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.
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Shabbat shalom and gmar chatimah tovah.
Grassroots for Affordable Jewish Education (GAJE)
September 22, 2023
Grassroots for Affordable Jewish Education 