As all of us know, neither war, tragedy nor travesty arrests the rise and fall of the sun. And so, we must still keep our eyes on the legal process which GAJE has launched against the Government of Ontario, even as the State of Israel defends itself against those who would destroy it and as the Jews of the world defend themselves against those who would harm, if not destroy, us also.
On August 20, Judge Eugenia Papageorgiou delivered a 46-page ruling that GAJE’s application for fairness in educational funding should proceed to a full hearing despite Ontario’s attempt to have it thrown out of court before such a hearing could take place.
Unhappy that the court had decided against it, Ontario filed a motion on September 5 to the Divisional Court seeking leave to appeal Judge Papageorgiou’s ruling. As of next week, the Attorney General for Ontario and GAJE have filed the documents that the Court will rely upon to rule upon the AG’s motion.
After Judge Papageorgiou’s decision was released, Allan Kaufman, the noted lawyer, lecturer, professor, labour arbitrator wrote a brief op-ed explaining the background to and the import of GAJE’s application to an unaware public. October 7 and its aftermath, and other considerations however, prevented a timely publication of Kaufman’s essay.
To bring GAJE’s lawsuit back into the communal spotlight, we now publish Kaufman’s article.
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“The Atlantic provinces of Canada refrain from providing government funding for any religious schools. I respect that point of view, and no court can force them to do otherwise. Quebec plus the four western Canadian provinces provide some funding to all of the religious schools in those five provinces. Ontario is an outlier. The Ontario government is the only province or state in all of North America that fully funds not only its public schools, but also the schools of only one religion (Catholic), but no other religion. When I tell my American friends about this anomaly, they think I must be making it up, since it is well established in law throughout North America that all governments must refrain from discriminating in favour of only one religious denomination.
How does Ontario get away with it? The Supreme Court of Canada ruled in the Adler case in 1996 that Ontario’s funding of Catholic schools, but no other religious schools, is legally justified under the Constitution of Canada. A condition of Ontario and Quebec joining Canada in 1867 was that the Canadian Constitution would require Quebec to protect its Protestant minority schools, and Ontario would protect its Catholic minority schools. In the Adler decision, many of the justices waxed eloquent about this “grand constitutional compromise,’ and how it must now be immune from any challenge under Canada’s antidiscrimination laws.
But then a funny thing happened. Less than a year after the Supreme Court of Canada had decided Adler, the Quebec government repealed the constitutional protection that its Protestant schools had enjoyed since 1867, and the Canadian parliament approved that constitutional amendment. That left the “grand constitutional compromise” (on which the Adler decision had been based) in tatters. That may mean Ontario’s refusal to extend funding to any religious schools other than the Catholics, can no longer be shielded from antidiscrimination and freedom of religion scrutiny.
As a result, an Ontario Jewish community group called Grassroots for Affordable Jewish Education (“GAJE”) has brought a recent court challenge. GAJE submitted a study to the court to show why Jewish day school education is essential for the long-term survival of the Jewish community. The Judge in the GAJE case pointed out that GAJE’s court case does “not seek any order or declaration which could adversely affect the funding of Roman Catholic schools. Rather [GAJE] seeks to obtain the same benefit the Roman Catholic schools and public schools receive…”
The Ontario government tried to knock the GAJE case out of court at its inception by asserting that GAJE had no reasonable prospect of success – since the Adler case had already decided the same issue back in 1996. That same argument had always been a winner for the previous McGuinty government of Ontario any time any religious group in Ontario had sought to challenge Ontario’s school funding. In the GAJE case, however, Justice Papageorgiou of the Ontario Supreme Court recently ruled that GAJE’s court case could proceed forward against Ontario for a final decision. Not only is the “grand constitutional compromise” that underpinned the Adler decision no longer in place, but after Adler had been decided the courts articulated a new doctrine where funding of only one religion would violate the principle of “state neutrality” on religions. The Adler decision may no longer be consistent with this new principle, wrote Justice Papageorgiou.
Furthermore, GAJE’s international law lawyer, David Matas, demonstrated in court that the funding of only Catholic schools to the exclusion of all of Ontario’s many other religious schools, is not in conformity with a number of international treaties signed by Canada that prohibit government discrimination in favour of any one religion. Justice Papageorgiou suggested in the GAJE case that Ontario may need to bring its laws into conformity with those international obligations. This point had never been considered when the Adler case was decided in 1996. This does not mean that Ontario needs to repeal its funding for Catholic schools, but instead to extend funding to all other religious schools – just as we have seen that the Provinces of Quebec and all four of the western Canadian provinces currently do.
All of the many other non-Catholic religion schools in Ontario, including the Protestant religious schools, have been relegated to second class status in Ontario for many decades. All of those other religious schools would benefit if the Jewish community is eventually successful in the GAJE court case. Since such a court decision would not threaten the funding of Catholic schools in Ontario, the Ontario government should do the right thing now by extending funding for all religious schools in the province before the courts end up dragging the province kicking and screaming into the 21st century.”
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As soon as GAJE receives the decision of the Divisional Court, we will report it to you.
Am Yisrael Chai. The People of Israel lives and will always.
Shabbat shalom
Grassroots for Affordable Jewish Education (GAJE)
November 24, 2023
Grassroots for Affordable Jewish Education 