This week we reproduce another aspect of Judge Papageorgiou’s decision that warrants reiteration and even emphasis.

In her 46-page judgement Judge Papageorgiou concluded that “there is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter.” (That is: the legal test that must be met to allow the courts to begin the process of re-assessing the full applicability of the 1996 Adler case to the societal and legal situation today).

It was the Supreme Court’s decision in Adler, readers will recall, that enabled Ontario to fund the religious education of the children of one religion to the exclusion of children of other religions. The court did not prohibit Ontario from funding the religious educations of children of other religions. Nevertheless, ever since then, Ontario has adamantly refused to provide any funding to independent schools or to the schools of other religions. Yet, all the western provinces and Quebec, do provide some funding to their independent schools.

In arriving at her decision to allow GAJE the opportunity to begin the “Adler discussion” in court, Judge Papageorgiou created a reasoned path of ten discrete stepping stones of evidence and logic. The eighth stepping stone dealt with “the arguments presented by the Grassroots Applicants regarding social, political and legal developments in support of their position that they meet the test in Bedford and Carter.” This part of the judge’s reasoning comprised 20 of the 46 pages and was itself divided into eight categories of social, political and legal developments. The second category of developments was: “The principle of state neutrality”.

It is the judge’s discussion of this development that we draw to readers’ attention this week.

The following is excerpted from Judge Papageorgiou’s decision.

•••

“[126] Since Adler, the breadth of freedom of religion has arguably been expanded by the Supreme Court’s adoption of the principle of “state neutrality.”

[127] In S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, the Supreme Court grappled with the fact that freedom of conscience and religion involves the rights of those who have religious beliefs as well as those who do not. It referenced the work of the author R. Moon and discussed the challenges faced by the state in trying to achieve religious neutrality: the more religion is excluded from public life, the more it appears that the secular is “less neutral and more partisan”: at para. 30 [Emphasis added]. This supports the reason why both McLachlin and L’Heureux-Dubé JJ. found a breach of s. 15 in Adler in their dissents: at paras. 208-209, per McLachlin J.; at paras. 67-68, per L’Heureux-Dubé J.

[128] The Court proceeded to define the concept of state neutrality as a state posture that “neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected”: at para. 32.

[129] In Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, the Supreme Court elaborated on these principles. In that case, an individual complained about a mayor’s recitation of a prayer prior to public meetings at a municipal council. He argued that this violated his freedom of conscience and religion pursuant to the Quebec Charter of Human Rights

and Freedoms, C.Q.L.R., c. C-12 (the “Quebec Charter”). He asked for an Order that the prayer stop and all religious symbols be removed from council chambers. The Human Rights Tribunal granted the application, finding that the prayer was religious and the mayor showed a preference for one religion over another in violation of the principle of state neutrality. The Quebec Court of Appeal allowed an appeal, and a further appeal was made to the Supreme Court.

[130] In its opening paragraph, the Supreme Court explained:

The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right that is protected by the Quebec Charter of Human Rights and Freedoms, CQLR, c. C-12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (‘Canadian Charter”). Its corollary is that the state must remain neutral in matters involving this freedom. The interplay between freedom of conscience and religion, on the one hand, and this duty of neutrality, on the other, is sometimes a delicate one.

[131] It subsequently held that “[s]ponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination” because it “imports a disparate impact that is destructive of the religious freedom of the collectivity”: Mouvement, at para. 64. It further pointed out that neither the Quebec Charter nor the Charter expressly imposed a duty of religious neutrality on the state but that “[t]his duty results from an evolving interpretation of freedom of conscience and religion”: at para. 71.

[132] The Court further provided an analysis of the importance of religious beliefs in the context of the duty of state neutrality, which is consistent with L’Heureux-Dubé J.’s dissent in Adler. It adopted the following view, at para. 73: In “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C.L. Rev. 497, at p. 507, Professor R. Moon points out that a religious belief is more than an opinion. It is the lens through which people perceive and explain the world in which they live. It defines the moral framework that guides their conduct. Religion is an integral part of each person’s identity. When the state adheres to a belief, it is not merely expressing an opinion on the subject. It is creating a hierarchy of beliefs and casting doubt on the value of those it does not share. It is also ranking the individuals who hold such beliefs.

[133] And, at paras. 75-76, it writes, “[t]he state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others” and “[i]t is prohibited from adhering to one religion to the exclusion of all others.”

[134] There has not yet been any consideration of how the duty of “state neutrality” interacts with the legislative and constitutional provisions in question. The Moving Parties concede that both religious neutrality and multiculturism play an important role in the interpretation of the Charter provisions in question. Their answer to this issue is essentially that the duty of state neutrality is not relevant since their actions are immune from Charter scrutiny. But the point is, the Adler Majority came to that conclusion without considering the duty of state neutrality, as it is now expressed in the above cases.

[135] The Moving Parties also argue that even if not expressly addressed in Adler, the concept of state neutrality was implicitly part of the jurisprudence at the time of Adler because s. 27 of the Charter mandates that Charter rights be interpreted in a manner which preserves and enhances Canada’s multicultural heritage.

[136] This may be an arguable position, but so too is the argument that the principles in S.L. v. Commission scolaire and Mouvement are new, and the principle of “state neutrality” broadens the scope of freedom of conscience and religion, from a guarantee that the state will not coerce or hinder any particular beliefs to a broader obligation to act in a manner that is respectful of people’s religious beliefs in all public spaces. There is a reasonable argument that the current funding scheme provides a benefit to those who have no religious beliefs which cannot be accessed by those with strong religious beliefs and that this violates the duty of neutrality.

[137] The Moving Parties also reference the Supreme Court’s comments at para. 71 of Mouvement, where it quotes LeBel J. in Congrégation des témoins de Jéhovah de St-Jérôme- Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650 that “[o]ur Court has recognized this aspect of freedom of religion in its decisions, although it has in so doing not disregarded the various sources of our country’s historical heritage.”

[138] This is likely a reference to Reference Re Bill 30 and Adler, although this is not specifically set out. While it may be arguable that the Application herein, if successful, would result in the disregard of our country’s historical heritage, I suggest that this is not necessarily so. Even if Charter challenges of the nature sought here were permitted to proceed, anyone seeking to do so would still have to establish a Charter breach and any such breach would still be subject to s. 1. Furthermore, even if successful on all grounds, there is no guarantee that any funding would be permanent as there could be circumstances raised by Ontario in the future that are sufficient to allow it to stop such funding, pursuant to s. 1; these are hurdles which Roman Catholics would still never have to jump over as funding for Roman Catholic separate schools is constitutionally guaranteed. Thus, Canada’s heritage would not be disregarded even if the Grassroots Applicants’ case meets the threshold issue and even if they ultimately fully succeed in this Application.

[139] I add that following the statement in para. 71, the Supreme Court in Mouvement further stated that “[i]f the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality”: at para. 78.

[140] And it expressed its disagreement with the Quebec Court of Appeal on the following point, at para. 134: As understood by that court, neutrality would in the instant case require tolerance for the state’s profession of a clearly identified religious belief on the basis of tolerance for its history and culture. I do not believe that this is the sense of true state neutrality with respect to freedom of conscience and religion.

[141] Even though Ontario must fund Roman Catholic schools because of s. 93, the principle of state neutrality still exists; there is a reasonable argument, or at least a novel one, that in order to act in accordance with this principle in the circumstances, it must extend funding to other faith- based schools.”

•••

We have provided this extensive quotation from Judge Papageorgiou’s decision because, as she clearly pointed out, the doctrine of a “duty of state neutrality” did not exist in 1996, at the time the Supreme Court decided the Adler case. GAJE suggests that nearly 30 years after the Supreme Court decided Adler, the courts ought to consider whether this “new” important, legal doctrine should be applied to the facts that we have raised in our application. If they do, they might arrive at a different decision than they did in 1996.

Judge Papageorgiou agrees with GAJE’s suggestion decision.

•••

If you are upset that Ontario is trying to shut down GAJE’s case before we have had a hearing on the merits of the case, we urge you to let your Member of the Provincial Parliament know.

And if you wish to support GAJE’s lawsuit, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom and chag Succot samayach.

Grassroots for Affordable Jewish Education (GAJE)

September 29, 2023

In 46-pages of comprehensive analysis and reasoning, Judge Eugenia Papageorgiou, concluded that “there is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter”, i.e., to allow the courts to begin the process of re-assessing the full applicability of the 1996 Adler case to the broad societal and legal situation today.

It was the Supreme Court’s decision in Adler, readers will recall, that enabled Ontario to fund the religious education of the children of one religion to the exclusion of children of other religions. The court did not prohibit Ontario from funding the religious educations of children of other religions. Nevertheless, ever since then, Ontario has adamantly refused to provide any funding to independent schools or to the schools of other religions. All the western provinces and Quebec, on the other hand, do provide some funding to their independent schools.

This is important information, for reasons discussed below, to properly answer the question whether Ontario should or can do the same thing.

In arriving at her decision to grant GAJE the opportunity to begin the “Adler discussion” in court, Judge Papageorgiou created ten discrete stepping stones of evidence, logic and reasoning. The eighth stepping stone dealt with “the arguments presented by the Grassroots Applicants regarding social, political and legal developments in support of their position that they meet the test in Bedford and Carter.” This part of the judge’s reasoning comprised 20 of the 46 pages and was itself divided into eight categories of social, political and legal developments.

One of these categories (the fifth) was titled “Funding of religious schools by other provinces has not compromised the public school system.”

GAJE’s counsel provided information to the court on this subject as part of its application because it was an issue raised in the Adler case by the Supreme Court. Judge Papageorgiou noted that “the materials before the Supreme Court (in the Adler case) did include concerns that funding religious schools would adversely affect the objective of promoting a strong public school system.”

The following is excerpted from the decision. It is Judge Papageorgiou’s precise language on this issue:

“[167] The Grassroots Applicants’ affidavits, which must be taken as fact, state that there is no evidence that funding independent schools affects public school enrolment. The rate of enrolment in public schools in provinces that fund independent schools for the 2019/2020 school

year was 89.9 percent in Quebec, 95.7 percent in Saskatchewan, 91.3 percent in Manitoba, 93.7 percent in Alberta and 86.5 percent in British Columbia. Based on these numbers, funding of religious schools would arguably not impact the funding for public schools.

“[168] The concern that funding independent schools would “starve” the public school system has not materialized in these provinces. In fact, the materials filed by the Grassroots Applicants show that spending in public education has increased beyond what was required to account for enrolment and inflation. For instance, from 2014 to 2019, total spending on public schools increased by 15.4 percent in British Columbia. More importantly, since Adler was decided, the Supreme Court has found that “budgetary considerations in and of themselves cannot justify violating a Charter right”: Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 6.

“[169] I do note here that at the time of Adler, five provinces (Quebec, British Columbia, Saskatchewan, Alberta and Manitoba) did already provide partial funding to independent religious schools: see Adler, at para. 106. The evidence showed that such partial funding “resulted in a relatively low increase in the number of independent schools”: at para. 103. It is unknown based on the materials before me whether such funding has changed in these provinces and whether the data provided is based upon different funding models in these provinces.

“[170] As a result, I do not find this very significant. I do note that if this matter is argued on its merits, there will likely be richer data on the impacts of such funding on the objective of providing a strong public-school sector since there will be thirty years more data.”

In the past, and likely still today, opposition to even some public funds for independent schools has been anchored by individuals and organizations, for example, teachers’ unions, civil liberties proponents, and public-school advocates in general, who suggested that spending any public funds for independent schools would devastate the public school system. But this suggestion has proven to be baseless, a chimeral concern. Indeed, some experts contend that providing some funding for independent schools eventually improves the educational outcomes in the public schools and leads to cost savings and efficiencies.

The reason we have singled out this portion of Judge Papageorgiou’s decision is to provide an unambiguous rebuttal to those who warn that the extension of some funding to independent schools is a mortal threat to public schools. There simply is no evidence in Canada that this warning holds any danger whatsoever to public schools. None.

Indeed, as many observers have noted, the inclusion of independent schools, at least to some extent, within the public-school funding portfolio, provides opportunities for excellence and improved outcomes for all of the stakeholders in the provincial educational system.

If this is the case – and GAJE earnestly believes it is – why does the Government of Ontario persist in refusing to allow this discussion to go forward in court? As most readers of this update know, Ontario has brought a motion for leave to appeal Judge Papageorgiou’s decision.

If you are upset that Ontario is trying to shut down GAJE’s case before a hearing on its merits, we urge you to let your Member of the Provincial Parliament know.

•••

If you wish to support GAJE’s lawsuit, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom and gmar chatimah tovah.

Grassroots for Affordable Jewish Education (GAJE)

September 22, 2023

The setting of the sun this evening brings the rising of the New Year 5784.

We greet the new year with festivity, celebration. And the new year greets a period of 10 days of personal, deliberative soul-searching and focused reflection on who we truly are. Not a few prayers during the next days will be uttered for our children – for all children. For their own sake, of course, if not foremost, and for the sake of the ancient-modern Jewish people whose unfolding history we hope our children will happily join.

It thus cannot be a coincidence that our Sages established Torah and Haftarah readings on Rosh Hashanah that specifically relate to children. The wise rabbis understood that soul-searching necessarily points an emotional compass towards our children. And so, they aimed our thoughts and aspirations to images of children – our children.

As we wrote last year in this space, the late Rabbi Jonathan Sacks described the essence of Rosh Hashana as thinking about, securing and building the future. That future, he emphasized, depends squarely upon Jewish education. We secure the Jewish future by bringing as many youngsters as possible into the sustaining domain of affordable Jewish education.

Helping build the Jewish future through access to affordable Jewish education, has been and remains the promise of GAJE to the community.

For the first time since GAJE was formed in 2015, we say happily though still very tentatively, that we have a step, finally, on which we can stand more firmly toward fulfilling the promise.

Readers of this weekly update know, one of the key ways to making Jewish education affordable is by bringing about change to the Ontario’s unfair educational funding.  The Supreme Court decision of 1996, in the Adler case, ruled that Ontario could legally fund the education of Roman Catholic children to the exclusion of all other religions. The Court did not prevent Ontario from extending funding to other, independent, denominational schools. Nor, has Ontario ever suggested that its policy is fair to non-Catholic children seeking to attend their own religious schools. Rather, Ontario simply believes it is immune from being legally compelled to change its policy. 

Thus, as readers again know, GAJE launched an applicaiton asking the Court to reassess the applicability of the 1996 Adler decision to the circumstances of Ontario in 2023.

Ontario has tried to prevent GAJE from pleading its case on the merits. The government brought a motion to dismiss our case on a summary basis. The government lost.

In a remarkable decision of 46 pages, Judge Eugenia Papageorgiou ruled that GAJE should have the opportunity to make its case in court. She wrote:

“There is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter (the rules for reassessing Supreme Court decisions). In that regard, there is a reasonable chance that an application judge may find that the Grassroots Applicants have raised: i) new circumstances or evidence which have fundamentally shifted the parameters of the debate; and/or ii) new legal issues as a result of significant developments in the law which support the revisitation of binding precedent.

“My finding in this regard is not based upon one single argument raised by the Grassroots Applicants; it is based upon the combined effect and totality of the new circumstances (social, political and legislative) and developments in the law they have raised.”

But Ontario is still determined to block GAJE’s path to a hearing on the merits of our case, Ontario is seeking leave to appeal Judge Papageorgiou’s decision. We are dismayed at the government’s tactics, but no longer shocked.

Queen’s Park treats the 150,000 children who attend independent schools in this province as educational pariahs. The western provinces and Quebec wisely and appropriately extend funding to children who attend independent schools. After all, the provinces correctly reason, independent school children are also children of their respective provinces. The provinces understand that it is in the best interest of the province – let alone in the best interest of the children and their families – that independent school children too have access to the best education the province can reasonably facilitate for them. 

If Rosh Hashanah truly concerns “thinking about, securing and building the future,” as Rabbi Sacks wrote, then the eve of Rosh Hashanah is a fitting moment for GAJE to restate its promise of doing all we can to help.

The four most important words of Jewish inspiration and motivation were spoken by the Prophet Ezekiel and re-tooled for modern times: “Od loh avdah tikvateinu.” (We have not yet lost our hope.) GAJE very much takes those words to heart.

The late Prof. Michael Brown, one of the Jewish world’s pre-eminent historians and educators counselled against feelings of despair or helplessness that often accompany worried thoughts for an uncertain Jewish future.  “The future has not yet been written”, he reminded us.

It falls to us – all of us for whom Judaism and its people are precious – to write that future. This is our generation’s opportunity to try to end the funding discrimination that exists in Ontario. If we do not try, who will? And if not now, then when? Perhaps 5784 will be different?

•••

If you share our view, we urge you to let your Member of the Provincial Parliament know of your disappointment that Ontario is intent on blocking GAJE from even having a day in court to argue the merits of our case.

•••

If you wish to support GAJE’s lawsuit, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom and l’shana tovah techatevu v’techatemu.

Grassroots for Affordable Jewish Education (GAJE)

September 15, 2023

Last week we reported that Ontario has advised GAJE that it will seek leave to appeal the decision of the Superior Court allowing GAJE to plead its case for fairness in educational funding.

We remind our supporters that Judge Eugenia Papageorgiou did not decide upon the merits of GAJE’s application for fair educational funding. That was not her purpose for the motion brought by the governments of Ontario and Canada. Her role, rather, was to decide whether the governments of Ontario and Canada were right to try to prevent GAJE from being heard at all to convince a court of the merits of our case.  Indeed, she “released” the federal government from the lawsuit.

In 46 pages of reasoning, Judge Papageorgiou explained why she decided that GAJE’s application deserves a hearing. Ontario’s Ministry of Education, however, disagrees. The ministry is determined to prevent GAJE from having a full hearing on whether the Supreme Court’s decision in 1996 would be or should be decided in the exact same way today, nearly three decades later.

In seeking permission to appeal Judge Papageorgiou’s decision, the Ministry of Education is apparently unmoved by the sheer labour, detail, logic, and comprehensive sweep of her reasoning.

Ontario’s decision is far more than disappointing. It is baffling, and an unsubtle contradiction, if not also rebuke, of its own values.

In 2009, then Minister of Education, Kathleen Wynne, introduced Ontario’s new equity and inclusive education strategy” as a way of “realizing the promise of diversity”.  She eloquently wrote: “If we are to succeed, we must draw on our experience and on research that tells us that student achievement will improve when barriers to inclusion are identified and removed and when all students are respected and see themselves reflected in their learning and their environment.” (Our emphasis)

(See: https://files.ontario.ca/edu-equity-inclusive-education-strategy-2009-en-2022-01-13.pdf)

GAJE agrees with those sentiments. Indeed, Minister Wynne at the time, was applying the very same logic for allowing public funds to follow students to the schools of their parents’ choice where children would very definitely see themselves reflected in the learning environment that best matches the child’s overall, comprehensive needs.

In 2017, and then updated in 2022, the Secretary to Cabinet, Steve Orsini, published the government’s roadmap for addressing systemic barriers and building diverse and inclusive workplaces with equitable outcomes for all in the Ontario Public Service.

Secretary Orsini referred to the roadmap as creating a workplace that harnesses the richness and strength of our diversity.

(See:   https://www.ontario.ca/page/ops-inclusion-diversity-blueprint)

Why are the foundational values of equity, diversity and inclusiveness appropriate for building an excellent Public Service, but not for educating all of Ontario’s children from the ages of 4-18?

Why does Ontario not allow the Ministry of Education’s foundational values of equity, diversity and inclusiveness to be applied for the education all Ontario children ages 4-18?

If Ontario cannot recognize and acknowledge this inconsistent application of the important values of EDI, then it cynically converts the Equity, Diversity and Inclusiveness into mere platitudes, and ultimately into empty, valueless assertions of purported lofty ideals. We cannot imagine that is the Ontario of which the government wishes us to be proud. There may indeed be equity, diversity, and inclusiveness in Ontario. But not for everyone.

•••

If you wish to support GAJE’s lawsuit, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom.

Grassroots for Affordable Jewish Education (GAJE)

September 8, 2023

Last week we reported that Judge Eugenia Papageorgiou of the Ontario Superior Court of Justice decided that GAJE should be allowed to plead its case for fairness in educational funding.

Judge Papageorgiou did not decide upon the merits of our case. That was not her role. Her role, rather, was to decide whether the government was right to try to prevent GAJE’s application from being heard at all on its merits.  

In 46 pages, Judge Papageorgiou explained why she agreed that our case deserves to be heard in court. We reproduced the essence of her ruling in our update last week.

“There is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter (the rules for reassessing Supreme Court decisions). In that regard, there is a reasonable chance that an application judge may find that the Grassroots Applicants have raised: i) new circumstances or evidence which has fundamentally shifted the parameters of the debate; and/or ii) new legal issues as a result of significant developments in the law which support the revisitation of binding precedent.

“My finding in this regard is not based upon one single argument raised by the Grassroots Applicants; it is based upon the combined effect and totality of the new circumstances (social, political and legislative) and developments in the law they have raised.”

It seems clear from the depth of Judge Papageorgiou’s reasoning and from her comprehensive marshalling of the arguments, she believes the underlying issue in the case is of sufficient public policy importance to warrant a hearing.

But the Government of Ontario believes otherwise. The government does not want a hearing on the merits of GAJE’s application. Ontario has advised us that it will seek leave to appeal Judge Papageorgiou’s decision.

Ontario has 30 days from the date of the decision of August 21, 2023 to file its notice of leave to appeal. Of course, GAJE must and will respond to the material in that Notice.

The decision by the Government of Ontario is disappointing. Given the extensive and even exhaustive canvas of the past and present legal terrain by Judge Papageorgiou in her Reasons for Judgement, the decision by the government is almost surreally vindictive as well. The effect of the government’s desire to appeal the ruling will be to delay further an ultimate decision on the merits of the Application.  And alas, it will also increase the expense for GAJE in trying to present our case in court.

We urge supporters of our cause to express their disappointment to their elected Members of the Legislature. The government’s tactics are aggressive and unwarranted in a society that aspires to live by a rule of law that pays more than cliched lip service to a foundational respect for human rights and an equally foundational abjuring of unfairness and injustice within the law.

GAJE is seeking the opportunity merely to plead our case in court. Ontario is trying to deprive us of even this fundamental right.

•••

If you wish to support GAJE’s lawsuit, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom.

Grassroots for Affordable Jewish Education (GAJE)

September 1, 2023

This past week the Ontario Superior Court of Justice rendered its decision on the motions by the governments of Ontario and Canada to strike GAJE’s application for fairness in educational funding.

Judge Papageorgiou decided that the application against the Government of Ontario should proceed while the application against the Government of Canada should not.

We cannot overstate the importance of the decision. It means that GAJE will continue to the actual Application stage of legal argument with the Government of Ontario.

It is important to remember that Judge Papageorgiou did not decide upon the merits of our case. That was not her role in the proceedings before her. Her role was to decide upon the attempt by the governments to deny GAJE the opportunity to present the merits of our case in court. We understand now why it took her four months to hand down the decision. Judge Papageorgiou delivered 46 pages (!) of written reasons that were thoroughly researched and tightly reasoned.

Judge Papageorgiou agreed that our case raises sufficiently important legal matters of constitutional interpretation and development and of public policy to warrant a full airing in Court. Her thoughtfully written reasons explain to the governments, GAJE, to subsequent judges hearing the case and to the public exactly why.

To successfully compel Ontario to change its educational funding, GAJE must first persuade the courts to re-assess the 1996 Supreme Court decision, known as the Adler case. Ontario clings to the Adler case as the its legal authority for continuing with its current educational funding practices. In the Adler case, the Supreme Court ruled that Ontario did not violate the Constitution by providing educational funding to members of one religious group only. It is that ruling GAJE seeks the courts to revisit. Of course, the rule of law requires lower courts to follow the decisions of higher courts when similar facts in similar situations are being litigated. However, the Supreme Court itself has propagated rules for allowing itself and lower courts to revisit, or reopen, or reassess, its decisions when circumstances warrant.

It was the application of those rules – to allow the Courts to reassess the 1996 Adler case – that formed the heart of the motion before Judge Papageorgiou. (Space does not permit us to quote extensively from the judge’s decision. Over the coming week(s) we will familiarize readers with excerpts from Judge Papageorgiou’s reasons.)

However, we shall reproduce the essence of the court’s ruling:

“There is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter (the rules for reassessing Supreme Court decisions). In that regard, there is a reasonable chance that an application judge may find that the Grassroots Applicants have raised: i) new circumstances or evidence which have fundamentally shifted the parameters of the debate; and/or ii) new legal issues as a result of significant developments in the law which support the revisitation of binding precedent.

“My finding in this regard is not based upon one single argument raised by the Grassroots Applicants; it is based upon the combined effect and totality of the new circumstances (social, political and legislative) and developments in the law they have raised. “

•••

We thank the exceptional work of our team of lawyers – David Matas, Jillian Siskind, Sarah Teich and Carina Rider – who advocated so effectively and so persuasively, with determination, skill, purpose and integrity – on behalf of the cause of fairness and justice in educational funding. Their success was a big deal. Indeed, this decision is a big deal. We realize we are still at the beginning of the process. But because of our team of counsel, we have a beginning.

Some in our community were (and alas, remain) skeptical of the possibility of the success of our cause. We urge skeptics to rethink their skepticism. Put it aside. Please. We urge you to stand with us and our many supporters in demanding the Government of Ontario to change its unjust and unfair educational practices. Judge Papageorgiou has ruled that this issue should be heard in court. We urge you to help us ensure that the issue is also heard in the Legislature.

•••

Shabbat shalom

Grassroots for Affordable Jewish Education (GAJE)

August 25, 2023

It appears Ontario’s public education system is once again heading toward crisis and disruption.

As reported in the news this week, the unions representing elementary and secondary school teachers are respectively in various stages of preparing for a strike vote. The unions are unhappy with the nature and the pace of their collective bargaining with the Ministry of Education.

We offer no opinion on the substantive issues being bargained by the teachers and the Ministry. Nor do we find any detriment or fault in the right to collectively bargain conferred upon teachers’ unions. Indeed, employees’ rights are sacrosanct in a system such as ours that extolls the virtue and protects the dignity for everyone in honest labour.

We do point out however, that some weeks ago, Minister of Education Stephen Lecce announced the introduction of new legislation and regulations aimed at “getting back to the basics of education.” Indeed, he touted the measures as proof that the government had listened to the priorities of parents “putting common sense at the centre of our education system.”

And yet, despite the self-congratulations by the Minister in his announcement, something clearly has gone wrong. The possibility of further educational disruption for our children following relatively closely upon the sustained, harmful Covid-related disruptions not so long ago, is untenable. It suggests a dysfunction in the overall system.

Against this background of apprehended educational disruption, we point to an op-ed published one year ago in the Ottawa Citizen by David Hunt, education director at Cardus, entitled Instead of strikes, how about ‘human scale’ schools in Ontario?

Hunt’s article was not a polemic against unions or teachers’ rights. Rather, it was a plea to all the educational stakeholders to bring new thinking to the delivery of education to our children. “We’re used to a model of schooling designed for a long-gone industrial era,” Hunt wrote. “The size, architecture and structure of our schools still reflect industrial-age thinking. Worse, Ontario’s education system has been steadily and intentionally bureaucratized, increasing the distance between the policy room and classroom.”

He suggests modernizing the system along the lines already undertaken throughout most of the Western world. “We need “human scale” schools that close the gap between those who set teachers’ salaries and those affected by their decisions, including students and their families…..  why not design schools that put students first, while rewarding teachers — and respecting parents?”

Hunt points to “Ontario’s nearly 1,600 independent schools, which are designed from the bottom-up”, as a possible model for part of the change that could be incorporated into our current publicly-funded education system.

“It may sound surprising,” Hunt continued, “but funding all students, regardless of school attended, is the norm in the advanced world — especially in Europe. In the Netherlands, for example, there are 36 different education systems, with a seemingly endless variety of school types that students can access using public funds….

“Imagine how this would improve the work environment for teachers. I favour paying teachers more, but I also hear regularly from teachers whose greatest challenges are not remuneration but classroom management. Imagine the change in behaviour that would result from students attending the school where they learn and fit in best.”

Hunt concludes his article by casting a challenge for multilateral cooperation and fresh thinking in which no-one feels assaulted or considers their interests threatened. “Rather than close schools again, let’s look for win-win solutions and reimagine education on a human scale.”

GAJE commends Hunt’s approach. It not only brings independent schools into the definition of publicly-funded schools, it also and more importantly brings our publicly-funded schools into the modern age of the most advanced, student-centred, best practices that are more likely to achieve the highest educational results for our children and that will eliminate, finally, the discrimination and unfairness that are shameful hallmarks of Ontario’s current educational funding system.

The Hunt article is available at:                           

https://ottawacitizen.com/opinion/hunt-instead-of-strikes-how-about-human-scale-schools-in-ontario

•••

If you wish to support GAJE’s quest for fairness, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom

Grassroots for Affordable Jewish Education (GAJE)

August 18, 2023

GAJE still awaits the decision of Judge Papageorgiou on the motion brought by the governments of Ontario and Canada to strike our application for fairness in educational funding in Ontario. As soon as we know her decision, we will share it with you.

It has been nearly four months since the case was argued in court on April 20. Of course, the wait is frustrating. Our frustration, however, does not stem from the length of time it is taking Her Honour to present her decision. We are certain Judge Papageorgiou is working with discipline and with wisdom to bring her best judgment to bear upon the issues she heard in her court.

Our frustration, rather, stems from the approach of the governments of Ontario and Canada toward our application. The sole purpose of the governments’ April 20 motion was actually to prevent our case from being decided on its merits. The governments do not wish the courts to consider if and/or how societal circumstances and the law may have evolved since 1996 (the year of the Supreme Court’s Adler decision) to warrant a new look at the fairness of the current system of educational funding in Ontario.

Educational and public policy experts of all political stripes suggest that Ontario’s educational funding is anachronistic. It flies in the face of the best practices evidenced in other provinces and throughout the western world. One would hope that the government would seek those best practices and to implement the best public policy on behalf of all its citizens and residents. Isn’t this the very purpose of government? It should be. Inexplicably, stubbornly, and almost petulantly, Ontario absolutely refuses even to hold a discussion on the subject.

Ontario’s educational funding also flies in the face of the plain meaning of the language in Ontario’s own Human Rights Code. It is perhaps this contradiction that deflates and pains non-Catholic religious and other minority communities the most.

The provisions of the code are concise, unambiguous and quite ennobling. The Preamble sets the tone.

“And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

“And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario; (Our emphasis)

“Section 1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.  R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1.

Is not the government’s opposition to our application, let alone to fairness in educational funding, the very opposite of the intention underpinning the language of the Preamble that it is desirable to revise and extend the protection of human rights in Ontario.?

Section 19(1) of the Code requires the Code not to be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act. But GAJE seeks fairness for non-Catholic communities. GAJE does not nor has it ever asked the government to diminish or derogate, in any way. the rights and privileges of the children attending Roman Catholic schools.

In sum, the governments’ hardscrabble campaign to shut down any discussion of the fairness and aptness of its educational funding harms the system. It also harms the other religious and other minority communities by entirely excluding them from receiving any public funding for the education of their children.

•••

If you wish to support GAJE’s quest for fairness, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom

Grassroots for Affordable Jewish Education (GAJE)

August 11, 2023

Earlier in the week, Ontario’s Minister of Education, Stephen Lecce, announced that his ministry had implemented the first set of regulations pursuant to The Better Schools and Student Outcomes Act.

The legislation and the regulations are aimed at enabling the government “to set binding priorities on school boards that focus on boosting student achievement focused on reading, writing and math.”

GAJE applauds this objective. Boosting student achievement is obviously a key aspiration of the province’s education system.

Minister Lecce said that the legislation and the regulations are also aimed at “getting back to the basics of education”.

GAJE also applauds this objective. The basics of education are essential, life-long instruments in every child’s tool box for contending with life’s inevitably many and constant challenges.

Minister Lecce added that “boosting student achievement focused on reading, writing and math sends a clear signal to Ontario’s school boards we’ve listened to the priorities of parents putting common sense at the centre of our education system.”

GAJE applauds this objective as well. How can common sense not be at the centre of all integrated, complex systems, let alone the education system?

Our plaudits for these stated purposes of the Minister stand without contingency or abatement. However, they evoke pointedly aching questions that settle heavily in our hearts. The questions beg to be asked. And answered.

• In the year 2023, how can the Minister of Education be wilfully opposed to extending “the basics of education” to the approximately 150,000 children who attend independent schools?

• In the year 2023, how can the Minister of Education be wilfully opposed – as a matter of common sense if not of conscience and fairness – to extending at least some public funding for the approximately 150,000 Ontario children attending independent schools?

Minister Lecce rightly touts his objectives. But inexcusably, he continues to block their implementation for the children attending independent schools.

The minister’s “back to basics” and “common sense” in education, are indeed for some, but not for all. Shame.

•••

We still await the decision of Judge Papageorgiou on the motion brought by the governments of Ontario and Canada to strike our application for fairness in educational funding in Ontario. As soon as we know her decision, we will share it with you.

If you wish to support GAJE’s lawsuit, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom

Grassroots for Affordable Jewish Education (GAJE)

August 4, 2023

From time to time, we point to educational public policy research by Cardus, a public policy think tank, that relates to the heart of the cause that GAJE is pursuing. In this week’s update, we turn readers’ attention to an open letter to Alberta business leaders written last month by Michael Van Pelt, the president and CEO of Cardus.

Entitled The Business Stake in K–12 Education, Van Pelt points out that the business community in Alberta (and in Canada) decries the lack of “workers who have the necessary non-technical skills, in such areas as communication, basic numeracy, interpersonal skills, management and leadership ability, and character attributes such as integrity and work ethic.”

He then points to research that proves that the very qualities businesses seek more earnestly in their workforce, are hallmarks of the students who graduate from independent schools.

“Independent schools, in particular, play a positive role in inculcating the knowledge, skills, and habits that animate lifelong democratic participation… Most of the skills for effective democratic participation apply equally to effective performance in the workplace. Ten years of Cardus Education Surveys have likewise demonstrated that independent schools produce graduates with the interpersonal and character skills that translate to success in the workplace….. Independent schools are also seedbeds of innovation and the entrepreneurial spirit in education.”

Van Pelt provides a reasoned, principled case to show why it is in the best interests of the business community to be more attentive to fashioning a provincial educational system that best responds to the needs of businesses and the private sector – not only in Alberta, but in all of Canada. Such a school system, Van Pelt unequivocally contends, is one that incorporates a critical mass of independent schools.

Van Pelt places a critical mass figure at 20-25 percent enrolment outside the government-run schools. And he explains why. “We would have, in effect, true choice and real accountability. Multiple school options produce more innovation, creativity, and accountability within each system…. The most effective, perhaps the only, way to create the outcomes that we need in K–12 education in Alberta lies in significant growth in educational choice. …. An increasingly robust reality of educational choice in Alberta will directly contribute to producing high school graduates with the knowledge and skills that Alberta needs. This is because choice creates healthy competition among schools and sectors, leading to better outcomes overall—and at a lower cost.”

Van Pelt writes forcefully and persuasively.

Educational choice, he says, improves all schools. Indeed, on a broader basis, Van Pelt unsubtly implies, educational choice improves society. To be sure, it gives the economy a better chance to flourish. But so too, the values of a caring, humane, civic-minded, democratic society.

Cardus has proven in other empirical research studies, the cost of integrating true educational choice within a province-wide educational system is a matter of political priority not of financial affordability. This is especially true in Ontario. (See: Funding All Students: A Comparative Economic Analysis of the Fiscal Cost to Support Students in Ontario Independent Schools, David Hunt, Anointing Momoh, and Deani Van Pelt, September 2021).

Van Pelt’s opinion piece is a well-researched, deeply footnoted, tightly argued, pragmatic plea for bringing independent schools into the public educational realm. There is also an argument to be made outside of pragmatics, based on fairness and on conscience.

The fact that Ontario – in this day and age – continues to fund the education of only one religious community to the exclusion of all others, adds injustice and unfairness to its rigid indifference to producing the best educational system possible. Why?

Van Pelt’s study is available at:

The Business Stake in K–12 Education

•••

We still await the decision of Judge Papageorgiou on the motion brought by the governments of Ontario and Canada to strike our application. As soon as we know her decision, we will share it with you.

If you wish to support GAJE’s lawsuit for fairness in educational funding, please click here.

For further information, please contact Israel Mida at: imida1818@gmail.com

Charitable receipts for donations for income tax purposes will be issued by Mizrachi Canada. Your donations will be used for the sole purpose of underwriting the costs of the lawsuit.

•••

Shabbat shalom

Grassroots for Affordable Jewish Education (GAJE)

July 28, 2023