Last month, GAJE filed its application in the Supreme Court of Canada for leave to appeal the decision in February of this year by Ontario’s Court Appeal that upheld the Divisional Court decision in September, 2024 overturning Judge Eugenia Papageorgiou’s decision in August 2023, allowing our application to proceed to a full hearing in court.
Ontario’s Attorney General filed its material in response to GAJE’s application. Our legal team has filed our Reply.
For GAJE’s application at least to be given a hearing, the court must agree to re-open or reconsider the legal validity today of the Adler case of 1996. It was this case in which the Supreme Court ruled that Ontario’s decision in the 1980’s refusing to fund other denominational or private schools apart from Catholic schools, was constitutional.
The Government of Ontario states that no legal, social or other changes have occurred to warrant overturning the applicability of the 1996 case. GAJE argues the opposite. There have indeed been sufficiently weighty and relevant developments in the law and in societal circumstances since 1996, to warrant opening the door to allow the court to look at the Adler case in light of those developments.
In brief summary, the following is Ontario’s argument: (Taken from the Response filed with the SCC by the Ontario Attorney General.)
• Ontario argues that the ruling of 1996 “turned on the unique constitutional protection afforded to Roman Catholic schools in Ontario.” This “unique constitutional protection” is a reference to the historical bargain of 1867 between Quebec and Ontario which facilitated the founding of the country and which is enshrined in s. 93(1) of the Constitution. (The fact that Quebec departed from the historical bargain in 1997 and thus cast aside the “unique constitutional protection’ for its minority Protestant community was deemed not factually germane by Ontario, the Divisional Court and the Court of Appeal.)
• As a result, Ontario further argues, s.93(1) is exempt from scrutiny of any legal or other developments, even evolving Charter rights and freedoms – s.2 protection of freedom of conscience and religion and s.15 equality provisions. Ontario states that “what is protected by ss. 2(a) and 15 of the Charter is irrelevant because Section 93 of the Constitution Act, 1867 forms a ‘comprehensive code with respect to denominational school rights….This “cannot be changed without a constitutional amendment.”
In reply to Ontario’s position, GAJE argued: (Taken from the Reply filed with the SCC by GAJE.)
• The substantial developments in the law and society that have developed over the last thirty years “are relevant to an interpretation of section 93, as well as the interplay between sections 29 (guaranteeing the rights and privileges of denominational schools in the Constitution) and 93…, which do not preclude funding of other denominational schools. However, this (GAJE’s) Application also seeks a ruling on the issues not raised in Adler and for which Adler is not a precedent.”
• While “[c]ourts must afford some leeway to the legislator in the Charter balancing exercise,” there is, to the fullest extent possible and subject to reasonable limits, an obligation to respect and adhere to Charter values within that exercise…In the context of funding religious schools, the question is how to balance “robust protection for the values underlying religious freedom with the values of a secular state” while also upholding the principle affirmed by this Court in Loyola that “a secular state [cannot] support or prefer the practices of one group over those of another.”
• The Respondent (GAJE) concedes that this Court in Adler did not determine whether the Applicants’ rights under sections 2(a) and 15 of the Charter were violated. To suggest that
consideration of the developments in the scope of the rights under sections 2(a) and 15 is
thereafter irrelevant, is to ask this Court to ignore three decades of jurisprudence. During
that time, the protection from infringement of those sections has been developed and become part of the constitutional fabric. We also seek this Court’s constitutional interpretation in light of the living tree doctrine.
• GAJE also asks the court to weigh other significant developments in the law and society since Adler was decided in relation to the question of the impermeability of S. 93. “A modern review
of the issues raised…particularly for those issues raised that were neither raised nor addressed in Adler, is warranted in light of these significant developments and changes in the law and society since 1996.
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Now, we await the SCC’s ruling.
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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Chag Shavuot samayach
Shabbat shalom
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