As readers of this weekly update know, the Court of Appeal, in February, decided that GAJE’s case did not warrant proceeding in court to a full hearing on its merits. The Court agreed with the Government of Ontario that the issues raised in our application had already and definitively been decided in 1996 by the Supreme Court in the Adler case. It therefore threw out our application.
Intent on pursuing every legal avenue to obtain a full hearing for our case, GAJE recently filed an application comprising more than 100 pages, with the Supreme Court, for leave to appeal the decision by the Court of Appeal.
The following are a few short excerpts from the concluding sections of the application GAJE filed with the court. We wish supporters to know the nature and purpose of our plea.
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• “The Adler case was decided thirty years ago….While Adler was based on caselaw and legal principles that existed in 1996, the decision is no longer an accurate reflection of the changes in the law, the evolution of Charter values, and Canadian society at large. The social considerations animating the decision are no longer relevant. Notably, even the Adler court was sharply divided.
• In Adler, this Court was concerned about the historical compromise at Confederation between Upper and Lower Canada. A year later, Quebec then exited this compromise through a constitutional amendment, which became section 93A, such that Quebec would no longer fund its Protestant schools while Ontario continued its constitutional obligation to fund its Catholic schools.
• The Court in Adler was concerned about the impact of funding of public schools if funding was extended to Jewish day schools, however, the evidence demonstrates that in the provinces that now fund independent schools (Quebec, Manitoba, Saskatchewan, Alberta and British Colombia), the public school systems remain healthy.
• …Since the Adler decision, the courts have recognized the duty of state neutrality and the principle of conformity with international law has been firmly entrenched. These concepts ought to inform and enlighten the interpretation of Ontario’s education funding obligations in order to end its discriminatory funding model.
• Section 93 of the Constitution Act does not need to be, and should not be, interpreted as the Adler court interpreted it. Section 93(3) allows for Ontario to make decisions in relation to the funding of other denominational schools. Thus, in light of the advancements resulting from s. 2 and 15 of the Charter, Ontario’s decision not to fund other schools ought to be subject to Charter scrutiny and yield to Charter challenge.
• This Court found … that the absence or failure to legislate can found a Charter breach. The Charter is offended not only by positive acts, but also by failure to act to address an inequality. Ontario is failing to address the inequality created by its refusal to extend funding to Jewish day schools equal to that extended to Roman Catholic schools. The proposed fresh evidence makes it clear that Jewish students are at risk in Ontario’s non-Jewish schools. Inequality of funding, combined with rampant antisemitism, results, as the Court of Appeal accepted, in real challenges to the long-term survival of the Jewish community. This result should not be blindly accepted solely because of discussions that were had between Upper and Lower Canada in 1867.
• As the majority explained in Adler at paragraph 48,
One thing should, however, be made clear. The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by s.93(1). Section 93 grants to the province of Ontario the power to legislate with regard to public schools and separate schools. However, nothing in these reasons should be taken to mean that the province’s legislative power is limited to these two school systems. In other words, the province could, if it so chose, pass legislation extending funding to denominational schools other than Roman Catholic schools without infringing the rights guaranteed to Roman Catholic separate schools under s. 93(1). (Our emphasis)
• Considering the shift in societal values and the doctrine of state neutrality, and in light of the recognition by this Court … that a Charter breach can come from the absence of legislation, the continued failure of the Ontario government to provide funding for Jewish day schools equal to that of Roman Catholic schools, perpetuates a prima facie act of preference for one religious group over all others at a time when this should no longer be acceptable.
• The Application does not ask for sections 2(a) or 15 of the Charter to enlarge the protection in section 93 of the Constitution. Rather, it questions the continuation of an exclusive and historical discriminatory funding model from 1867, when it does not need to be interpreted this way in 2026. With today’s values, the funding scheme in the Education Act ought to be interpreted in light of the advancements in the law and society present today in order to end the discrimination in education funding perpetuated by Ontario.
• Several of the key issues raised in this Application were never raised nor decided upon by the Court. ….. in Adler, therefore, Adler cannot be an authority for those issues…
• It is submitted that it is important to the public of Ontario to consider whether section 93 should still operate as a sealed, impenetrable, locked iron door preventing even the most fundamental of Charterrights from applying to the people of Ontario. The reasoning set out in Adler is obsolete. The public interest demands that it be tested against the new reality.
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If the Supreme Court grants GAJE the right to appeal the decision of the Court of Appeal, our case stays alive. We are hopeful.
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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)
April 24, 2026
Grassroots for Affordable Jewish Education 