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Faith in Funding - Will an Ontario Court Extend the Constitutional Right to Public Funding to Non-denominational Schools?

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Litigation and Dispute Resolution Bulletin

The Ontario Superior Court has held that a Charter challenge related to the funding of Catholic schools in Ontario can proceed, dismissing the Ontario government’s motion to strike out the case. The court found that Supreme Court caselaw immunizing Ontario in this context may no longer be good law, citing changes in Canadian society and law since those cases were decided in the 1990s. One such change is the heightened importance of international law in interpreting Canada’s Constitution.

Since Confederation, Ontario has had a constitutional obligation to fund Catholic schools. Last year, Grassroots for Affordable Jewish Education Inc.  a non-profit organization  along with parents and grandparents of children in Jewish day schools, sued the Ontario government over this funding. They did not ask that the funding of Catholic schools be taken away. Rather, they argued that the same funding should be extended to other faith-based schools. These arguments were based on the rights to freedom of religion and equality set out in the Charter.

Ontario moved to strike out the parents' and grandparents' case.[1] It argued that the issues raised had already been decided in binding caselaw — including in Adler v. Ontario, a 1996 decision of the Supreme Court of Canada.[2] Ontario asked the court to dismiss the application, arguing that it was immunized under this caselaw from Charter challenges relating to the funding of non-denominational schools.

On a motion to strike, the test is whether it is “plain and obvious” that the case will fail. The Grassroots applicants argued that it was not plain and obvious that Adler and related decisions were still good law; instead, a court could find that they had been overtaken by significant changes in Canadian society. Justice Papageorgiou of the Ontario Superior Court agreed,[3] citing numerous social, political, legislative, and legal developments in recent decades, including growing threats to the long-term survival of the Jewish community and the growing recognition of minority rights and diversity.

Of particular interest, Justice Papageorgiou accepted that the “presumption of conformity” could factor into this calculus, as a significant legal change since Adler. The presumption of conformity intersects with the “living tree” doctrine, the framework that permits our understanding of the Constitution to grow and evolve. It presumes that domestic constitutional protections are at least as great as those in Canada’s modern-day obligations under international law. If the presumption of conformity had been available at the time Adler was decided, the Grassroots applicants argued, it may have impacted the Supreme Court’s analysis, as Canada’s international obligations include commitments to non-discrimination in education.

The presumption of conformity has practical significance for how constitutional provisions are interpreted. Previously, courts would consider the wording of a statute and only consider international law if the interpretive issue could not be resolved based on the words themselves. Now, courts must apply the presumption at the start of the interpretive exercise, and the presumption of conformity applies unless the words of the statute rebut it. As a result, the “living tree” doctrine not only permits, but presumes, an evolution in the interpretation of Canada’s Constitution along with Canada’s modern international legal obligations.

Given the potential implications of the Grassroots decision, we are monitoring for any appeals. If an appeal is unsuccessful, the application will proceed, and a court will consider the merits of the Grassroots applicants’ claims — including whether Ontario continues to be immune to Charter challenge in the context of non-denominational funding.

[1] The federal government was also a party. However, the court allowed its motion to strike on the basis that the federal government has no constitutional educational funding obligations in Ontario.

[2] 1996 CanLII 148 (SCC).

[3] Grassroots v. His Majesty the King, 2023 ONSC 3722.

Contact the Authors

To learn more about this case and the potential implications for your organization, please contact
Kimberly Potter and Tom Macintosh Zheng.

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