Last week we reminded readers that GAJE awaits a ruling from the Divisional Court on a motion by Ontario seeking permission to appeal the 46-page decision of Judge Eugenia Papageorgiou that allowed GAJE’s case to proceed through the courts to a hearing on its merits.
In the document it filed with the Divisional Court, Ontario argues in various iterations that Judge Papageorgiou misapplied the principles of law that governed Ontario’s attempt to throw GAJE’s case out of court before it could be heard on the merits.
In response, of course, GAJE’s legal team argues that it is Ontario, NOT Judge Papageorgiou, that incorrectly applies the legal principles that determine whether GAJE should be allowed to argue its case in all of the circumstances of 2023.
The following is excerpted from the Overview of the argument presented to the court by GAJE’s lawyers in response to the Attorney General of Ontario. It explains, in broad terms, why Ontario is wrong in impugning the correctness of Judge Papageorgiou’s decision.
“2. Ontario brought a motion to strike the application, arguing that it was plain and obvious the Applicants had no reasonable prospect of success. Justice Papageorgiou dismissed Ontario’s motion. In her decision, [Justice Papageorgiou] found that it was not plain and obvious that the Applicants could not meet the test set out by the Supreme Court of Canada…..based on the overall combined impact of a number of changes in circumstances as well as developments in the law since the decision in Adler v. Ontario.. was released. Accordingly, [Justice Papageorgiou] found that there is a reasonable argument to be made that the factors raised by the Applicants fundamentally shifts how jurists would understand a number of legal issues including:
a) Whether section 93 of the Constitution and section 29 of the Charter should be interpreted so as to immunize government action from Charter scrutiny in light of international treaty obligations, the duty of state neutrality, and the section 93A amendment;
b) Whether the failure to fund other faith-based schools violates the Applicants’ freedom of religion in light of the principle of state neutrality, increased existential threats to the Jewish community, increased emphasis on diversity and minority rights, and the Vriend decision;
c) Whether the failure to fund other faith-based schools violates the Applicants’ equality rights in light of international treaties which engage the principle of non-discrimination in education, the principle of conformity as well as other advancements in international law;
d) If there is a basis to revisit (a), and the scope of Charter rights, and if a violation is found to occur, the analysis under section 1 of the Charter will be much richer now than it was in 1996 when Adler was released.
3. The decision of [Justice Papgeorgiou] involved a careful analysis of the Supreme Court precedents referred to by Ontario, including an analysis of the application of the…. tests to the facts and law presented in this case. Rather than contradicting these precedents, [Justice Papageorgiou] applied these principles. The discussion regarding the application of international law and the corresponding principles of interpretation will all be weighed and determined by the judge on the Application. Justice Papgerorgiou’s decision merely suggests that the Application is not doomed to fail on these grounds – that it is not plain and obvious that the Application will fail.”
It is important to bear in mind: Judge Papageorgiou was not asked to make a decision about the fairness of Ontario’s educational funding policies. She was asked to decide whether GAJE should be allowed the opportunity to argue in court that Ontario’s educational funding policies are unfair and thus, possibly, illegal in the year 2023. And she determined, indeed, GAJE should be allowed that opportunity.
The shocking, unfolding aftermath of hatred toward Jews and Israel on the streets of Canada since October 7, makes quite clear that the long-term, permanent stakes involved in GAJE’s application are very high.
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Am Yisrael Chai. The People of Israel lives and will always.
Shabbat shalom
Grassroots for Affordable Jewish Education (GAJE)
December 1, 2023
Grassroots for Affordable Jewish Education 