CITATION: Ontario (Education) v. Grassroots for Affordable Jewish Education
Inc., 2026 ONCA 70
DATE: 20260204
DOCKET: COA-25-CV-0298
Gillese, Pepall and Roberts JJ.A.
BETWEEN
His Majesty the King in Right of Ontario as represented by the
Minister of Education and the Minister of Health
Respondent/Moving Party/Appellant
(Respondent)
and
Grassroots for Affordable Jewish Education Inc., Stephen
Mitchell, Mordechai Ben-Dat, Zac Kaye, Ron Gersh, Ashleigh
Segal-Eskin, Ronnen Lederman, Miri Schneiderman, Karen
Goldenberg, Howard Price, and Sara Dobner
Applicants/Responding Parties/Respondents
(Appellants)
Jillian Siskind, Lawrence Greenspon and Victoria Pileggi, for the appellants
Josh Hunter and Maia Stevenson, for the respondent
Heard: November 21, 2025
On appeal from the order of the Divisional Court (Justices Nancy L. Backhouse,
Richard A. Lococo and Shaun O’Brien) dated September 10, 2024, with reasons
reported at 2024 ONSC 4905, setting aside the order of Justice Eugenia
Papageorgiou of the Superior Court of Justice, dated August 21, 2023, with
reasons reported at 2023 ONSC 3722.
Page: 2
Gillese J.A.:
I. OVERVIEW
[1] The appellants brought an application seeking public funding for Jewish day
schools from the Ontario government.
1 Ontario moved to strike the application on
the basis it was an attempt to relitigate the Supreme Court of Canada decision in
Adler v. Ontario, [1996] 3 S.C.R 609 (the “Motion”).
[2] The appellants responded to the Motion by arguing there was a reasonable
prospect the court would revisit Adler, based on the test set out in Canada
(Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and Carter v.
Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (the “Bedford/Carter
test”). Under the Bedford/Carter test, a trial judge can revisit binding precedent if:
(i) a new legal issue is raised or new legal issues arise as a consequence of
significant developments in the law; or (ii) there is a change in the circumstances
or evidence that “fundamentally shifts the parameters of the debate”: Bedford, at
para. 42.
[3] The motion judge found the appellants had a reasonable prospect of
satisfying the Bedford/Carter test and dismissed the Motion.
1 They also commenced their application against the Attorney General of Canada. The motion judge struck
the application and the appellants did not appeal that decision.
Page: 3
[4] Ontario successfully appealed to the Divisional Court, which dismissed the
application.
[5] In the appeal now before this court, the appellants challenge the Divisional
Court decision and ask that their application be permitted to proceed.
[6] I would dismiss the appeal. Adler directly determines the issues raised on
the application and, for the reasons of the Divisional Court, I see no reasonable
prospect that, pursuant to the Bedford/Carter test, Adler can be revisited by the
lower court.
II. BACKGROUND
[7] The individual appellants are parents and grandparents of children who
attend or attended Jewish day schools in Ontario; the appellant Grassroots for
Affordable Jewish Education Inc. is a not-for-profit organization that advocates on
their behalf (together, the “Appellants”).
[8] The Appellants brought an application (the “Application”) in which they
sought full funding for Jewish day schools by His Majesty the King in Right of
Ontario as represented by the Minister of Education and the Minister of Health
(“Ontario”). They contend that Ontario’s failure to fully fund Jewish day schools in
Ontario, as it does for Roman Catholic separate schools, breaches their right to
freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms
Page: 4
and their right to equality under s. 15(1) of the Charter. Sections 2(a) and 15(1) of
the Charter are set out in Schedule A to these reasons.
[9] Ontario brought the Motion to strike the Application pursuant to r. 21.01(1)(b)
of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It maintained that the
issues raised in the Application had been definitively decided in Adler. Adler was
brought by parents who sent their children to private religious schools, including
Jewish day schools. The parents sought a declaration that non-funding of Jewish
day schools in Ontario violated ss. 2(a) and 15(1) of the Charter. The Supreme
Court held the s. 2(a) claim failed because s. 93(1) of the Constitution Act, 1867,
is a comprehensive code of denominational school rights. It held the s. 15(1) claim
failed because the funding of Roman Catholic separate schools and public schools
is within the contemplation of the terms of s. 93 and, therefore, is immune from
Charter scrutiny. Section 93 of the Constitution Act, 1867, is set out in Schedule A
to these reasons.
[10] In their Application, the Appellants put forward evidence of two types of facts
and circumstances they contended were new. First, they submitted evidence of
the threat to the long-term survival of the Jewish community. This evidence
emphasized the importance of Jewish day school education to Jewish religious
practice and cultural identity. Second, the Appellants relied on what the motion
judge described as “a growing recognition of the benefits of supporting diversity”.
Page: 5
[11] The motion judge acknowledged that this evidence, on its own, did not
satisfy the Bedford/Carter test. However, she stated, when considered together
with the Appellants’ other arguments, the evidence had “some relevance” to
whether that test had been met. The Appellants’ other arguments were based on:
developments in the law related to the Charter; the addition of s. 93A to the
Constitution Act, 1867; and, developments in international law. The motion judge
concluded that when the evidence of social, political, and legislative changes was
considered together, the Appellants had a reasonable prospect of satisfying the
Bedford/Carter test. Accordingly, she dismissed the Motion and allowed the
Application to proceed.
[12] In allowing Ontario’s appeal, the Divisional Court noted there was “no doubt”
Adler directly determined the issues raised in the Application; rather, the dispute
between the parties was whether Adler could be revisited pursuant to the
Bedford/Carter test. The Divisional Court concluded the motion judge erred in
finding the Application had a reasonable prospect of satisfying that test for the
following reasons.
[13] First, given that the motion judge acknowledged that the facts and
circumstances in the Application were not new and found they did not on their own
satisfy the Bedford/Carter test, she erred in treating that evidence as relevant when
deciding whether the Application met the Bedford/Carter test. The Divisional Court
found the evidence presented on the Application “not only failed to fundamentally
Page: 6
shift the parameters of the debate but replicated the circumstances in Adler”. In so
finding, it noted that in Adler, the lower courts had accepted the Appellants’
evidence that education of their children in accordance with their religious practices
and beliefs was essential to their membership in the religious community and the
survival of that community. The importance of diversity was also “squarely at play”
in Adler. Consequently, the small shifts in various facts and circumstances on the
Application were insufficient to “profoundly alter” the framework in Adler.
Accordingly, it was an error on the part of the motion judge to find that evidence
was relevant to a determination of whether there was a reasonable prospect the
Application would satisfy the Bedford/Carter test.
[14] Second, the Divisional Court found that none of the evidence of alleged
developments in the law on which the Application rested had any reasonable
prospect of meeting the Bedford/Carter test because they were irrelevant to the
Adler analysis.
[15] The alleged developments in law were found to be irrelevant for a number
of reasons, a key one of which is that the motion judge wrongly relied on dissenting
opinions in Adler to question the force of the majority analysis. Developments in
the law related to ss. 2(a) and 15(1) of the Charter were irrelevant because Adler
holds that Charter analysis is inapplicable in light of the unique constitutional
protection afforded to Roman Catholic separate schools in Ontario under s. 93(1)
of the Constitution Act, 1867. In terms of developments in international law, the
Page: 7
Divisional Court made two observations of note. First, Adler’s interpretation was
rooted in Canadian history – in particular, the historical compromise made at
Confederation – and did not leave room for the international instruments and other
sources cited by the motion judge. Second, even if the presumption of conformity
did constitute a development in the law, international principles cannot be used to
invalidate Canadian constitutional provisions. If one part of Canada’s own
Constitution cannot be used to invalidate another provision within the Constitution,
there is no reasonable prospect that international sources could do so.
[16] Finally, the Divisional Court held the addition of s. 93A had no reasonable
prospect of meeting the Bedford/Carter test because it does not apply to Ontario
and does not affect how s. 93 is to be interpreted in this province. The amendment
was authorized under the amending formula in s. 43 of the Constitution Act, 1982,
by Quebec and Canada and, therefore, affects only residents of Quebec. Thus,
the motion judge erred in finding that s. 93A gave rise to a reasonable prospect
that the Application could meet the Bedford/Carter test.
III. THE ISSUES
[17] The Appellants ask that the following three questions be decided on this
appeal. Did the Divisional Court err:
- in applying the wrong test for determining a motion to strike under r. 21;
Page: 8 - in law, in concluding that the Bedford/Carter test could not be met by
considering the cumulative effect of a number of changes in facts and
law; and - in finding that s. 93 of the Constitution Act, 1867, was a complete bar to
the Application’s success, despite the changes brought by s. 93A,
changes in international law, and the evolution of Charter rights since
1996?
IV. THE FRESH EVIDENCE MOTION
[18] The Appellants moved to introduce fresh evidence on this appeal. The
proposed evidence consists of a report published in July 2025 (the “Report”) and
a corresponding affidavit of its author (the “Affidavit”). The Report and Affidavit
address the nature and extent of antisemitism in Ontario’s schools from
kindergarten to grade 12. Among other things, the Report shows widespread
antisemitism in that population in both public and Catholic schools. Further, the
Affidavit states that the situation facing Jewish schoolchildren attending Ontario
publicly-funded schools has “worsened substantially since 2000, with the most
dramatic change being the period post-October 7, 2023”.
[19] The Appellants submit the proposed evidence should be admitted because
the Divisional Court decision “was predicated on its conclusion that the
circumstances raised in the Application ‘replicated’ those circumstances that
Page: 9
existed in Adler”. They maintain the proposed evidence establishes that finding is
“demonstrably wrong”.
A. The Principles Governing the Admission of Additional Evidence on
Appeal
[20] The requirements governing the admission of additional evidence on appeal
were revisited in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517. As
stated at para. 29 of Barendregt, appellate courts have the discretion to admit
additional evidence to supplement the record on appeal when the proposed
evidence:
(i) could not, by the exercise of due diligence, have been obtained for
the lower court;
(ii) is relevant, in that it bears upon a decisive or potentially decisive
issue;
(iii) is credible, in the sense it is reasonably capable of belief; and
(iv) is such that, if believed, could have affected the result in the lower
court.
[21] The admission of additional evidence on appeal “will be rare” because, as
the case proceeds up the appellate ladder, the matters in issue between the parties
should narrow, rather than expand: Barendregt, at para. 31. To treat additional
evidence otherwise would blur the distinction between the roles of trial and
Page: 10
appellate courts, with trial courts being responsible for making factual findings and
appellate courts being responsible for reviewing trial decisions for errors:
Barendregt, at para. 40.
[22] Barendregt also addresses the differences between “new” evidence on
appeal, as opposed to “fresh” evidence. Evidence is “new” if it pertains to facts that
occurred after trial; evidence is “fresh” when it occurred before trial but, for some
reason, could not be put before the lower court: Barendregt, at para. 48. However,
all four requirements set out above apply to additional evidence tendered on
appeal, regardless of whether it is fresh or new: Barendregt, at paras. 34, 55.
B. Analysis
[23] I have concluded that the proposed evidence does not meet the fourth
requirement and, accordingly, I would not admit it. Before giving my reasons for so
concluding, I will briefly address the first three requirements.
i. The first requirement
[24] The first requirement is that the proposed evidence could not, with the
exercise of due diligence, have been obtained for the lower court. In this appeal,
neither the Report nor the Affidavit were in existence at the time of the proceedings
below. Nonetheless, as Barendregt explains, the due diligence requirement is
“sufficiently flexible” to adapt to concerns raised by evidence arising after trial: at
para. 58. However, to find the first requirement satisfied simply because the
Page: 11
evidence was not in existence at the time of the lower court proceeding would do
away with the due diligence requirement. Instead, the first requirement requires
the court to consider the conduct of the litigant seeking to adduce the proposed
evidence. The court must determine whether that party could – with due diligence
– have acted in a way that would have rendered the evidence available for trial:
Barendregt, at paras. 56-61.
[25] In this case, when considering the first requirement, it is useful to consider
whether the proposed evidence is new or fresh. The Report is new, in my view, for
two reasons. First, it was published in 2025, after the Motion and appeal to the
Divisional Court were decided. Second, it was based on a study that was
conducted from late January to early April 2025 and covered incidents taking place
specifically between October 2023 and January 2025. Neither the Report nor the
information it contains could have been available earlier in this proceeding with the
exercise of due diligence. Therefore, in my view, the due diligence requirement is
met with respect to the Report.
[26] Determining whether the due diligence requirement is met in respect of the
Affidavit is not as straightforward. Consider, for example, the affiant’s opinion that
“antisemitism faced by children in public schools has worsened substantially since
2000, with the most dramatic change being the period post-October 7, 2023”.
Given the lengthy period between 2000 and the bringing of the Application, the
affiant’s reference to worsening circumstances since 2000 suggests that evidence
Page: 12
supporting that opinion could, with due diligence, have been obtained and put
before the motion judge. This consideration weighs against the admission of at
least some of the additional evidence. However, the affiant’s reference – in the
same sentence – to the “most dramatic change” having arisen in the period
between October 2023 and January 2025, shifts the calculus in favour of admitting
the proposed evidence, including the Affidavit, because again that information
could not have, with due diligence, been put before the court in the earlier
proceedings.
[27] Thus, the question becomes, how is the court to decide whether to admit
proposed additional evidence that appears to consist of both fresh and new
evidence? Even accepting that the due diligence requirement is met, such a
determination is unnecessary because of my conclusion that the Appellants’
motion to adduce fresh evidence is best decided on the fourth requirement. I leave
a deeper exploration of how to treat evidence that consists of both fresh and new
for a case in which that determination is critical.
ii. The second requirement
[28] To satisfy the second requirement, the proposed evidence must be relevant,
in that it “bears upon” a decisive or potentially decisive issue. One of the decisive
issues in this appeal is whether the evidence on the Application has a reasonable
prospect of satisfying the second prong of the Bedford/Carter test. To do so, that
evidence must establish a change in circumstances that fundamentally shifts the
Page: 13
parameters of the debate in Adler. The proposed evidence does bear on whether
there has been a change in circumstances from those in Adler. However, as I
explain in my analysis of the fourth requirement, the proposed evidence does not
have a reasonable prospect of fundamentally shifting the parameters of the debate
in Adler.
iii. The third requirement
[29] To satisfy the third requirement, the proposed evidence must be “credible”,
in the sense it is reasonably capable of belief. In my view, it is unquestionable that
the proposed evidence is credible. The author of the Report is a distinguished
expert on antisemitism in Canada. Furthermore, the commissioned study was
conducted under the purview of the Government of Canada (Department of
Canadian Heritage, Ministry of Canadian Identity and Culture).
iv. The fourth requirement
[30] The fourth requirement for admission of additional evidence is that, if
believed, the proposed evidence could have affected the result in the lower court.
In my view, the proposed evidence does not satisfy this requirement.
[31] The primary factual circumstance in Adler was the threat to the long-term
survival of the Jewish community. While the proposed evidence offers further
insight into the challenges to the long-term survival of the Jewish community, that
additional insight does not amount to a change in circumstance that has a
Page: 14
reasonable prospect of “fundamentally shift[ing] the parameters of the debate”.
Therefore, if admitted, the proposed evidence could not be expected to have
affected the result below. Accordingly, the proposed evidence does not satisfy the
fourth requirement for the admission of additional evidence.
[32] For essentially the same reason, I do not accept the Appellants’ assertion
that the Divisional Court decision is predicated on it having concluded that the
circumstances raised in the Application “replicated” those in Adler. In making that
statement, I understand the Divisional Court to simply be saying that the evidence
adduced on the Application was similar in nature to that which was before the
Supreme Court in Adler and, therefore, did not have a reasonable prospect of
fundamentally shifting the parameters of the debate.
Issue 1 No error in the application of the rule 21.01(1)(b) test
[33] The Appellants submit the Divisional Court failed to properly apply the test
for a motion to strike under r. 21.01(1)(b). They contend that instead of asking
whether there was a reasonable prospect the Bedford/Carter test would be met on
a full evidentiary record, the Divisional Court engaged in a substantive analysis of
the arguments and asked whether the Application would succeed.
[34] I do not accept this submission.
[35] The Divisional Court expressly recognized that Ontario brought the Motion
to strike under r. 21.01(1)(b) on the basis the Application had no reasonable
Page: 15
prospect of success. It also expressly recognized that, on the Motion, the court
had to determine whether there was a reasonable prospect the Appellants could
satisfy the Bedford/Carter test for revisiting binding precedent. And, the Divisional
Court correctly articulated the Bedford/Carter test.
[36] There is nothing in the Divisional Court reasons to indicate that, as the
Appellants allege, the court then determined whether the Appellants would
succeed, rather than whether the evidence raised a reasonable prospect it would
satisfy that test. That the Divisional Court properly applied the test is evident from
para. 15 of its reasons, where it instructs itself as follows:
On a motion to strike, it is not the court’s task to finally
conclude whether the record discloses such a
fundamental shift or profound alteration, but the court
must at a minimum identify where there is a reasonable
prospect it will be found in the record.
[37] On a full and fair reading of its reasons, that is precisely what the Divisional
Court did. Accordingly, in my view, this ground of appeal fails.
Issue 2 No reasonable prospect the Bedford/Carter test could be met
[38] The Appellants submit that the Divisional Court erred when it concluded
there was no reasonable prospect that the Application could satisfy the
Bedford/Carter test. They argue that the Application raises several new legal
issues that were not raised in Adler and, thus, the court is not bound by Adler in
relation to those issues. They also contend that the reasons of the Divisional Court
Page: 16
indicate that a single solitary issue must shift the parameters of the debate, rather
than a consideration of the cumulative effect of numerous changes in facts and
law.
[39] I do not accept this submission. The evidence adduced on the Application
was similar in nature to that which was before the court in Adler. I echo the
Divisional Court’s reliance on R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342,
at para. 26, which highlights the strictness of the Bedford/Carter test. The doctrine
that lower courts must follow the decisions of higher courts is fundamental to our
legal system and to guaranteeing certainty in the law. Thus, the new evidence
exception to vertical stare decisis is limited. That exception has been found to be
engaged “where the underlying social context that framed the original legal debate
is profoundly altered”: Comeau, at para. 31.
[40] For the reasons of the Divisional Court, I also reject the submission that the
Application raised new legal issues that have a reasonable prospect of satisfying
the first prong of the Bedford/Carter test.
[41] Finally, I see nothing in the argument that the Divisional Court found that a
solitary issue was needed to shift the parameters of the debate. It dealt with the
Appellants’ submissions, both separately and cumulatively, before finding that
none posed a reasonable prospect of satisfying the Bedford/Carter test.
Page: 17
Issue 3 No error in the treatment of s. 93 of the Constitution Act, 1867
[42] I see no error in the Divisional Court’s analysis of s. 93 of the Constitution
Act, 1867, as summarized above.
V. DISPOSITION
[43] For these reasons, I would dismiss the appeal. In accordance with the
parties’ agreement, I would make no order as to costs of the fresh evidence motion
or the appeal.
Released: February 4, 2026
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•••
Shabbat shalom
Grassroots for Affordable Jewish Education (GAJE)
February 6, 2026
Grassroots for Affordable Jewish Education 