Two weeks ago, the Ontario’s Court of Appeal (COA) upheld a ruling by the Divisional Court not to allow GAJE to proceed with our application for fairness in educational funding.
The COA had to decide whether GAJE had satisfied the test enabling the revisiting of a binding legal precedent. The Court articulated the test. It contains two parts: (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.
The COA, ruled that GAJE had failed to meet either of the two prongs of the test.
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In last week’s update, we commented upon the court’s finding regarding the second prong. The COA 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. In effect, the COA found that there was antisemitism in 1996 and that the antisemitism facing Jews since “October 7” is simply more of the same. The court did not grasp that Jews in Ontario in 1996 did not feel the worry and the disquiet that so many feel today. It 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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This week, we comment on the court’s reasoning regarding the first prong. GAJE had to show that a new legal issue was raised or new legal issues arose as a consequence of significant developments in the law. We shall only identify the legal developments and legal issues we raised. Space does not permit us to delve into the layered detail of each.
GAJE pointed to three new developments in the law after 1996, the year that the Adler precedent was decided. Two were judicial; one was statutory.
• The Supreme Court of Canada (SCC) has articulated a doctrine by which Canadian law must conform with international treaties to which Canada is a signatory.
• The SCC has developed the principle of State Neutrality by which the state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. The state must neither favour nor hinder any particular religious belief. The state must show respect for all postures towards religion.
• Less than a year after the Adler case was decided, Quebec and Canada agreed that Quebec would opt out of the “historic agreement” with Ontario in 1867 in which both provinces promised to protect minority denominational educational rights in their respective provinces. This new arrangement for Quebec was enshrined as S.93A of Canada’s Constitution Act.
The COA adopted the reasoning of the Divisional Court rejecting Judge Eugenia Papageorgiou’s original findings that these legal developments as well as the new circumstances since 1996 warranted a fuller examination by the courts on the correctness of the Adler reasons in 2026.
“Developments in the law related to ss. 2(a) [Freedom of Conscience and Religion] and 15(1) [Equality Rights] of the Charter were irrelevant because Adler (the 1996 SCC decision) 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 presumption of conformity), the 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.”
“Finally, the Divisional Court held the addition of s. 93A (Enshrining Quebec’s leaving the 1867 agreement) had no reasonable prospect of meeting the Bedford/Carter test (for revisiting legal precedent) because it does not apply to Ontario and does not affect how s. 93 is to be interpreted in this province.
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The test for revisiting a legal precedent requires, in part, the examination of new legal developments. The two SCC-developed presumption of conformity and doctrine of state neutrality arose after the Adler case was decided. Yet, the COA paid them no heed because they refused to depart from the legal reasoning that the historic agreement of 1867, as encapsulated in S. 93(1) of the Constitution, was legally impenetrable and could not be affected by post-1996 legal decisions.
The COA dismissed the legal or factual relevance of the fact Quebec abandoned the historical 1867 agreement with Ontario and Quebec shortly after the 1996 decision. The court reasoned that the S.93A constitutional amendment that enshrined Quebec’s departure from the 1867 compromise, had no legal bearing upon Ontario.
The ironies in the COA decision are many, ironic, and cruel.
• The purpose of the 1867 historical bargain between Ontario and Quebec was to ensure each province educationally protected their respective religious minorities. In 1997, Quebec found a more educationally modern way to protect its Protestant and other minorities. Ontario, on the other hand, relies upon the 1867 agreement to staunchly and unyieldingly maintain its unequal educational funding treatment of the minorities who have settled in the province since 1867.
• Of course, Ontario was not a party to the S.93A amendment. One might think, however, that the fact of the agreement’s abrogation by one of the original parties, would compel the court to consider whether the steadfast, unchanging application of the terms of the 1867 agreement by Ontario was still reasonable, let alone conscionable, in light of profound societal changes in the ensuing 159 years. Should the courts have no say in the refusal by Ontario to extend full Charter rights and freedoms to all the people in Ontario?
• GAJE has never sought to set aside or disable the operation of the funding rights under the S.93 historical agreement. Rather, GAJE has only ever sought to have the courts examine whether S.93 should continue to stymy the extension to non-Catholic denominational minorities, of the equality rights and fundamental freedoms in the Charter. There is no prohibition in S.93 preventing Ontario from funding, to some extent at least, non-Catholic denominational schools.
• The court ruled that S.93 is unassailable. Yet wasn’t the Bedford/Carter exercise explicitly created by the SCC to enable reconsideration of a decision’s continued unassailability? The SCC has long maintained that the Constitution is a “living tree”. It must be allowed to evolve to suit modern times and demands in accordance with the values and virtues that underpin it.
GAJE did not ask The COA to decide our application on the merits. We asked the court for the opportunity to have a full legal exploration on the correctness of the Adler decision today, 30 years after it was decided. Should the Adler ruling preventing equality and fundamental freedom for non-Catholic minorities in 1996 still stand as the law in 2026?
The COA would not grant GAJE this opportunity. Inequality and the denial of fundamental freedom still stand.
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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”. We have an obligation to our forebears, our children and our grandchildren. We also have an obligation to try to make Ontario society Charter-observant for all Ontario children.
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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 20, 2026
Grassroots for Affordable Jewish Education 