Ontario court agrees that a case about funding for religious schools should proceed

A Jewish group advocating for government funding for religious schools in Ontario cleared a major legal hurdle on its path to a court hearing.

A decision by the Ontario Superior Court issued this week ruled that the lawsuit launched by Grassroots for Affordable Jewish Education can proceed, over the Ontario government’s objections.

The 46-page decision from Justice Eugenia Papageorgiou issued Aug. 21 stated the Jewish volunteer advocacy group had a reasonable case which should be heard in court.

In an April 20 hearing, GAJE argued that the 1996 Supreme Court of Canada decision called Adler, which allowed Ontario to continue funding Catholic schools but not other private or denominational schools, is outdated and needs to be re-opened. The group’s attempts to take the case to court had been opposed by the federal and Ontario governments.

The recent decision allows the case against the provincial government to proceed, but halted the suit concerning the Canadian government.

“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,” Justice Papageorgiou wrote.

“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.”

The decision was welcomed by GAJE, which can now move to scheduling a date to have the case heard in Ontario Superior Court, said Mordechai Ben-Dat, a co-founder of the group.

“We said things have changed and it’s now time to re-examine whether Adler should still stand as law and she agreed. She not only agreed, but she wrote 46 pages,” Ben-Dat said in an interview with The CJN.

“It’s not simply a slam dunk for people who said ‘no, no, Adler closes the door.’ The judge not only put her foot in the door, she kind of threw it open for people to have this legal debate.”

Religious schools in other provinces receive partial government funding. Ontario remains the only hold out in refusing to fund only public and Roman Catholic schools.

“The founding agreement of 1867 protected the minority rights in Upper Canada and Lower Canada,” Ben-Dat said. “Now 100-some odd years later, the province of Ontario refuses to act on the same basis of that founding agreement, namely to protect minorities. It’s just ironic.”

GAJE expects that other independent schools will join as the case proceeds to a hearing on its merits. Still a final resolution is “months if not years away,” Ben-Dat said. Even if the group is successful in court, Ontario would almost certainly appeal the decision, he said.