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Education - Constitutional (Non-Charter). Ontario (Minister of Health) v. Grassroots for Affordable Jewish Education Inc.
In Ontario (Minister of Health) v. Grassroots for Affordable Jewish Education Inc. (Div Court, 2024) the Divisional Court allowed a civil Crown appeal against an order that refused a motion to quash an application seeking public funding for Jewish schools, here on grounds that the SCC had "had definitively decided the issues" in Adler v Ontario (SCC, 1996):[3] Adler was a challenge by parents who sent their children to private religious schools, including Jewish day schools. They sought among other things a declaration that the non-funding of Jewish day schools in Ontario violated ss. 2(a) and 15(1) of the Charter. The Supreme Court of Canada found the appellants’ s. 2(a) claim failed because s. 93(1) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) is a “comprehensive code” of denominational school rights. The s. 15(1) claim failed because the funding of Roman Catholic separate schools and public schools was within the contemplation of the terms of s. 93 and therefore immune to Charter scrutiny.
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[19] Adler tells us that s. 93 establishes a comprehensive code with respect to denominational school rights that cannot be used to expand the content of s. 2(a). It represents a historical compromise that was a crucial step leading to Confederation: Adler, at para. 29; see also Reference re Bill 30, An Act to Amend the Education Act (Ontario), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, at pp. 1173-74. The historical compromise entrenched certain rights with respect to public funding of religious education but limited those rights to those that were enjoyed at the time of Confederation.
[20] As Justice Iacobucci for the majority explained at para. 30, “as a child born of historical exigency, s. 93 does not represent a guarantee of fundamental freedoms.” Instead, it can be usefully analogized to the minority language guarantees contained in s. 23 of the Charter in that both sections grant special status to particular classes of people. Although this special status does not necessarily sit comfortably with the concept of equality embodied in the Charter, it must be respected: Adler, at para. 33; Reference re Bill 30, at p. 1197. Therefore, as Iacobucci J. concluded at para. 35, s. 93 is a comprehensive code that s. 2(a) cannot be used to enlarge.
[21] The funding of religious schools guaranteed by s. 93 also was immune from Charter review under s. 15(1). Here, Iacobucci J. relied on the analysis of Wilson J. in Reference re Bill 30. In that case, Wilson J. addressed whether Ontario’s funding of Roman Catholic separate schools but not other religious schools contravened s. 15(1). She found that the impugned legislation, Bill 30, was “immune” from Charter review because of the protections found in s. 93. Iacobucci J. adopted Wilson J.’s conclusion that one part of the Constitution cannot be used to interfere with rights protected by a different part of the same document: Adler, at para. 38.
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[31] In 1997, Canada and Quebec agreed to add s. 93A to the Constitution Act, 1867 pursuant to a bilateral amendment. Section 93A states that “Paragraphs (1) to (4) of section 93 do not apply to Quebec.”
[32] The amendment was made using the bilateral amending formula prescribed by s. 43 of the Constitution Act, 1982. Section 43 provides that any constitutional amendment applying to one or more, but not all, provinces must be “authorized by resolution of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.” In other words, s. 93A was authorized by Canada and by Quebec and only applies to Quebec.
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[33] The respondents argued before the motion judge, as they did in this court, that the historical compromise that formed the basis for s. 93 no longer exists as it did in 1867 because Quebec is no longer subject to it. The Decision accepted the respondents’ position that there was a reasonable argument the s. 93A amendment was relevant to the interpretation of s. 93.
[34] In my view, this was an error. The motion judge and the respondents recognize that s. 93A does not apply to Ontario. The Decision’s explanation for how s. 93A might affect the interpretation of s. 93 relies on the need to consider Canadian law and history, which it stated now arguably included the subsequent amendment: Decision, at para. 146.
[35] This was incorrect because the history of Confederation and the wording of s. 93 remain the same as when Adler was decided. All that has changed is Quebec has exempted itself from the compact using an amending formula that by its terms would only apply the amendment to Quebec. Ontario has not. It would be open to Ontario to pursue an amendment politically, as Quebec did. But unless or until that happens, it is incorrect to say the addition of s. 93A could mean Ontario is no longer bound by the terms of s. 93.
[36] Myers J. addressed the same issue in Havercroft v. Ontario, 2022 ONSC 6651, 519 C.R.R. (2d) 351. In that case, the applicants claimed that Ontario, by providing public funding for non-Roman Catholic students to attend Roman Catholic separate schools, was unfairly reducing funding for the public school system in violation of ss. 2(a) and 15 of the Charter. Myers J. dismissed the application under r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. In doing so, he addressed the argument that the addition of s. 93A constituted a profound change that would justify revisiting binding precedent. In addition to noting that s. 93A only applies to the residents of Quebec, Myers J. made the following points, with which I agree:• If the elimination of Quebec from s. 93 were to affect how s. 93 is to be interpreted for Ontario residents, that would mean Quebec and the federal government were able to change the constitutional rights and privileges of residents of Ontario without any input or assent from Ontario. As Myers J. stated: “That cannot be correct”: Havercroft, at para. 56.
• The amending formula, s. 43, was added in 1982. Despite whatever agreement was in place in 1867, from that point forward, all provinces knew that the amending formula allowed provinces to alter the constitutional rights of their own residents without affecting those of other provinces: Havercroft, at para. 57. [37] In other words, all provinces have known since 1982 that a change to the agreement could be made, but only by each province instituting that change for its own residents. It was therefore an error to find there was a relevant change to the compact or that s. 93A could be interpreted as changing the impact of s. 93 on Ontario residents. . Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court briefly considers the 'education' constitutional head of powers [The Constitution Act, 1867, s.93]:[94] We likewise reject Ontario’s submission that the TGEWA is properly classified under the province’s power over education in s. 93. The authorities interpreting s. 93 have almost uniformly addressed “education” in the sense of routinized instruction in a school setting: see e.g., Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 S.C.R. 409; Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609.[7] This makes sense given that s. 93 represents a compromise on the rights of denominational schools: Adler, at paras. 29-35. . Kandaharian (Litigation Guardian of) v. York Catholic District School Board
In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court canvassed the history of the constitutional status of separate (catholic) schools [Constitution Act, 1867, s.93], and some relevant cases [paras 11-37].
. Kandaharian (Litigation Guardian of) v. York Catholic District School Board
In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court considered an interesting non-Charter constitutional issue where a separate school board objected to a non-Catholic student holding a school trustee position [para 38-50].
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