An Ontario group advocating for government funding for Jewish day schools received a legal setback on Sept. 10 when a Divisional Court dismissed its lawsuit.
Grassroots for Affordable Jewish Education has mounted a legal challenge to a 1996 Supreme Court decision that permitted Ontario to continue to fund Catholic schools, but not other religious or private schools.
The group won a significant legal victory in August 2023, when a decision from the Ontario Superior Court ruled that the case could proceed and that the volunteer advocacy group had a reasonable expectation of success in the courts. Justice Eugenia Papageorgiou did not rule on the merits of the case.
The Ontario government appealed that decision and the case was dismissed by the Divisional Court.
The ruling by a three-judge panel found that GAJE’s arguments did not meet the legal tests required to re-open a Supreme Court decision.
“I agree with Ontario’s position and conclude that it was an error to find that the respondents had a reasonable prospect of succeeding. The issues and circumstances of this case do not justify revisiting Adler [the 1996 Supreme Court decision],” Justice Shaun O’Brien wrote in an eight-page decision on behalf of the three judges.
The advocacy group said it intends to continue its legal battle, despite the decision.
“We’re very disappointed that Ontario won’t do the right thing. They’re really a loner among the provinces that fund the schools of one religion. Even Quebec changed and got a constitutional amendment,” Jeffrey Stutz, a member of GAJE, told The CJN.
“Everyone agrees this arrangement we have now is discriminatory. The province’s lawyers acknowledged in court that it’s discriminatory,” Stutz said.
The agreement concerning government funding for minority religious schools dates back to Confederation in 1867. Over time, however, other provinces have partially funded a variety of independent schools.
The courts have not ruled on the key issues yet, Stutz pointed out. “The province is trying to prevent the arguments from even being fully heard in court.”
Circumstances have changed since the 1996 Adler decision the group has argued in court. Minority groups have more legal rights and there have been changes in the law since then.
“We think if we get our hearing in court, we have a shot at winning.”
GAJE will seek leave to appeal this last decision, but if that is not successful, it will “be difficult, but not impossible” to proceed, Stutz said.
“We’re determined to carry this through to the final legal endpoint. We really feel that we owe it the Jewish community, especially in these days when the Jewish community and Israel are under such enormous pressure and we’re facing a wave of antisemitism.
“If Jewish students ever needed a secure path to Jewish education, we need it now more than ever.”
