The decision last week by Ontario’s Court of Appeal not to allow GAJE a hearing in court on the merits of our application for fairness in educational funding was devastating.
Despite the court’s ruling, we admire and respect the Canadian judiciary, whose members bring integrity, their best judgment and earnest labour to the process which, by its nature, pleases and disappoints in the same result. It is because of our high regard for the court that its decision was so deeply disheartening.
The court had to decide whether GAJE had satisfied the test for revisiting a binding – in this case, SCC – precedent. The Court articulated the test: (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”.
The test is disjunctive. The applicant need satisfy one, not both, of the two elements.
We will not parse the decision. Too many are the issues; too lacking is our ability to tackle the intricacies of the legal analysis, and too inadequate is this space in any event. However, this week and next we shall offer brief comment on the outcome.
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To try to persuade the court, in the words of the second prong of the legal test, that there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate, GAJE attempted to file fresh evidence in the form of an affidavit sworn by Prof. Robert Brym that attested to the unprecedented toxic atmosphere and increase in acts of antisemitism in Ontario public schools since October 7, 2023. Prof. Brym had been commissioned in April 2025 by Deborah Lyons, then Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism to report upon the nature and the extent of antisemitism in Ontario public schools.
In his affidavit, Prof. Brym concluded:
“In my view, the above data demonstrate unequivocally that antisemitism is widespread in Ontario’s K-12 public and Catholic schools, especially English public schools; the data demonstrate that school authorities have failed to address the problem in any meaningful way; and the data demonstrate that barriers of access and cost prevent many Jewish students from enrolling in Jewish schools, where, protected from antisemitism, they would enjoy the safe and supportive environment that all schoolchildren are promised and deserve.
“[I]t is my view that the antisemitism faced by children in public schools has worsened substantially since 2000, with the most dramatic change being the period post-October 7, 2023. Based on the data, I characterize the situation as a crisis of antisemitism in which Jewish schoolchildren are being put at significant emotional and physical risk when attending non-Jewish publicly funded schools.” (Our emphasis).
The Court, however, concluded that “[T]he proposed evidence does not have a reasonable prospect of fundamentally shifting the parameters of the debate in Adler.” (The 1996 SCC decision that GAJE is trying to have re-assessed in light of the developments of the past 30 years.)
The Court was of the view that “if believed, the proposed evidence could not have affected the result in the lower court….”
“The primary factual circumstance in Adler was the threat to the long-term survival of the Jewish community. While the proposed evidence [Prof. Brym’s affidavit] 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 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.” (To accept fresh evidence on an appeal, the document must satisfy a four-pronged test.)
“I understand the Divisional Court to simply be saying that the evidence adduced on the Application (by GAJE) 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.
The Court of Appeal ascribed no legal significance to the evidence by Prof. Brym. In the result, it adopted the Divisional Court’s characterization that the evidence adduced on the Application (by GAJE) was similar in nature to that which was before the court in Adler. (Our emphasis)
The Court failed to grasp the gravitas of what Prof. Brym termed “a crisis of antisemitism” for Jewish children in public schools. Thus, the Court failed to see the post-October 7 world for Jews and their children in Ontario, as “fundamentally shifting the parameters of the debate” about fairness in educational funding. The Court, in effect, said that there was antisemitism in 1996. Indeed, there has always been antisemitism. The antisemitism facing Jews today is simply more of the same. At any level, the court simply does not “get it”. It did not grasp that the Jews of Ontario did not feel in 1996, the worry and the disquiet that so many feel today. The Court did not grasp that the hostility to Jewish children in public schools, worsens considerably an already back-breaking burden for Jewish families regarding the Jewish education of their children.
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GAJE has promised to continue the legal battle for fairness in educational funding until the very end. We have not reached the end. The next option is to seek leave from the Supreme Court of Canada to appeal the Court of Appeal’s decision. We harbour no illusions about the chances of success. But nor do we harbour any sense of “quit”. As we wrote last week in this space, we are compelled forward out of an obligation to our forebears, our children and our grandchildren. In truth, we are also compelled out of an obligation to preserving the values and virtues of Ontario society for which we once held the highest hope.
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If you wish to contribute to GAJE’s lawsuit to achieve fairness in educational funding, please click here. Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of helping to underwrite the costs of the lawsuit. For further information, please contact Israel Mida at: imida1818@gmail.com Thank you, in advance, for considering doing so.
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Shabbat shalom
Grassroots for Affordable Jewish Education (GAJE)
February 13, 2026
Grassroots for Affordable Jewish Education 