Court File and Parties
CITATION: Metropolitan Preparatory Academy Inc et al. v. Ontario, 2022 ONSC 3979
DIVISIONAL COURT FILE NO.: 324/21
DATE: 20221003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Matheson and Kristjanson JJ.
BETWEEN:
METROPOLITAN PREPARATORY ACADEMY INC, CAMBRIDGE DISTRICT ASSOCIATION FOR CHRISTIAN EDUCATION operating as WOODLAND CHRISTIAN HIGH SCHOOL, and TORONTO CHEDER
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF EDUCATION (ONTARIO) and the MINISTER OF FINANCE (ONTARIO)
Respondent
– and –
B’NAI BRITH OF CANADA LEAGUE FOR HUMAN RIGHTS
Intervener
COUNSEL:
Aaron Rosenberg and David Elmaleh, for the Applicants
Eunice Machado and Joanna Chan, for the Respondent
Thomas Gelbman and Carly Fidler, for The Intervener
HEARD at Toronto (by videoconference): August 9, 2021
REASONS FOR DECISION
BY THE COURT:
[1] The applicants are private schools seeking judicial review of Ontario’s spending of the federal “Safe Return to Class Fund”. Ontario directed this money to public schools and not to private schools.
[2] The applicants argue that Ontario ought not to have excluded private schools from a share of the federal funds. Ontario disagrees and raises two preliminary issues: (i) this application was commenced out of time; and (ii) that the issues raised are not justiciable.
[3] We agree with Ontario that the issues raised by the applicants are not justiciable and for that reason we dismiss the application.
Background
[4] Ontario is responsible for education within the province and exercises this jurisdiction primarily through the Education Act, R.S.O. 1990, c. E.2. Health and safety are also provincial government responsibilities.
[5] While the applicants refer to themselves as independent schools, this is not a term of art in Ontario law. The Education Act defines “school” to include schools under the jurisdiction of a school board or authority and schools operated by Ontario. All other schools are defined in the Act as “private schools”. The applicants are “private schools” within the meaning of the Act.
[6] Private schools are private businesses or non-profit organizations, independent of the Ministry of Education. The Education Act has limited requirements for these schools. Under s. 16, they must (i) submit a Notice of Intention to Operate a Private School, (ii) provide periodic statistical data, and (iii) allow inspections in specified circumstances.
[7] Private schools are privately funded. For example, students at the applicant Metropolitan Preparatory Academy pay annual tuition of $23,000 (for local students) or $31,000 (for international students).
The Federal Funding
[8] On August 26, 2020, the Prime Minister of Canada announced up to $2 billion in support for provinces and territories to combat the COVID-19 pandemic’s impact on “local schools” through the Safe Return to Class Fund. The Prime Minister stated that provinces and territories would have “the flexibility to spend the fund in accordance with their education sector’s priorities.” Ontario received $763.34 million of the Fund, which was disbursed by Canada to Ontario in two installments of $381.67 million.
[9] The Ontario Ministry of Education developed a plan to allocate the federal funding to areas of public education. In August 2020, the Ministry submitted its formal request to the Ontario Treasury Board for approval of its proposed allocation of the first tranche of federal funding. Treasury Board approved the proposal and sent it to the Ontario Cabinet, which approved the proposed allocation. The allocation of funds did not include any funds for private schools.
[10] In August 2020, the Minister of Education publicly announced Ontario’s plan for the disbursement of the first tranche of funds.
[11] To ensure transparency and accountability in the use of federal public funds, Canada required the provinces and territories to report back after the first tranche. To receive the second tranche, Ontario was obliged to report on how the first installment had been spent and to report on additional measures that would be funded from the second tranche. Ontario did so. No concerns were expressed by Canada about Ontario’s allocation decisions.
[12] The same process was followed to develop and approve the allocation of the second tranche of federal funds. Again, none of the federal funding was allocated to private schools.
Timing
[13] Ontario’s allocation of the first tranche was announced publicly on August 26, 2020. The allocation of the second tranche was announced on February 1, 2021. This application was commenced on April 23, 2021.
[14] Under s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, an application for judicial review must be brought within 30 days of the impugned decision, subject to the court’s discretion to extend the time. Ontario therefore submits that this application is too late in respect to both spending decisions and should not proceed.
[15] The applicants submit that the release of the provincial budget on March 24, 2021, is the relevant starting point for the deadline to commence proceedings, and that their application was brought within 30 days of that date.
Justiciability
[16] The applicants argue that Ontario’s funding decision is justiciable because it was within Ontario’s prerogative spending power, or alternatively, it was pursuant to Ontario’s statutory authority under s. 8(1) (21) of the Education Act to allocate and distribute federal grants.
[17] Ontario argues that this application seeks to challenge a core policy choice respecting spending powers and that the impugned decisions specifically, and management of public funds generally, are not subject to review in this court.
Analysis
[18] “[R]esponsibility for the management of public funds rests with the government and not the court…” (Bowman v. Her Majesty the Queen, 2019 ONSC 1064, para. 40). Expenditures of public funds are discretionary public policy decisions made by government pursuant to the Crown’s common law spending powers: Pharmaceutical Manufacturers Association of Canada v. British Columbia (Attorney General) (1997), 1997 4597 (BC CA), 149 DLR (4th) 613, paras. 27-29 (BC CA).
[19] Policy considerations at Cabinet are not reviewable in this court absent jurisdictional error, a constitutional challenge, bad faith or irrationality: Dixon v. Canada (Governor in Council), 1997 6145 (FCA), [1997] 3 FC 169, para. 17 (CA); Thorne’s Hardware Ltd. v. R., 1983 20 (SCC), [1983] 1 SCR 106, para. 9; Ontario Federation of Anglers and Hunters v. Ontario (2002) 2002 41606 (ON CA), 211 DLR (4th) 741 (Ont. CA); Brazeau v. Canada (Attorney General), 2020 ONCA 184, para. 61; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 61, paras. 25-26.
[20] The applicants begin by focusing on the health and safety objectives of the Fund and the general language in the federal government’s announcements and “term sheet” in relation to the Fund. The announcements did not distinguish between public and private schools and the term sheet referred generally to the “education sector”. Those documents are general. They speak about the objective of the Fund – specifically, to provide provinces and territories with additional resources to facilitate safe return to class and to protect students and staff.
[21] The applicants further rely on the fact that the funding was apportioned by Canada among provinces and territories based on the number of school children in each province or territory, proportions that were not refined to focus on public school children only.
[22] The applicants further rely on a general communication from the Ontario Minister of Education to Ontario parents about making new and significant investments in school safety and a healthy school environment in response to COVID-19. Some of those communications refer to the aim of “reopening all schools” and getting “all schools open”. “All schools”, the argument goes, includes both publicly funded and private schools.
[23] Enforcement of Canada’s requirements for the use of federal funds by Ontario is a matter between Canada and Ontario. This is well-trod ground, constitutionally. Even if it could be said that Ontario was not abiding by terms imposed by Canada for receipt of the funds, the applicants would not have standing to challenge that non-compliance. In the case at bar, in any event, there is no non-compliance with Canada’s requirements. The applicants cite no law or regulation of Canada they say has been breached by Ontario’s allocation of the federal funds.
[24] While it may have been within Ontario’s discretion to allocate some of the funds to private schools, the Prime Minister was explicit that the provinces and territories had “the flexibility to spend the fund in accordance with their education sector’s priorities.” Enforcement of this requirement was through the reporting requirement for receipt of the second tranche of funds. These arrangements are consistent with Canada’s interest in seeing that the funds were allocated on the basis on which they were provided to Ontario, and Ontario’s interest in having its jurisdiction over matters of education and health respected.
[25] The basis used by Canada to apportion funds among provinces and territories did not create a legal obligation for Ontario to provide funding to private schools. Governments, at all levels, were struggling to address an apprehended public health crisis. Use of a particular data set by Canada in this context is not a basis on which to imply legal restrictions on Ontario’s exercise of its own sovereignty over education and health matters within the province – a sovereignty acknowledged and respected by “the flexibility [afforded Ontario] to spend the fund in accordance with their education sector’s priorities.”
[26] The applicants characterize Ontario’s funding allocation decision as an “abuse of power”, “unlawful”, “unreasonable”, “arbitrary” and “disproportionate” without describing a basis, in law, to support these characterizations. It was none of these things.
[27] Ontario has no obligation to fund private religious schools: Cooper v. Ontario (Attorney General) (2009), 2009 92113 (ON SCDC), 99 OR (3d) 25, para. 10 (Div. Ct.); Adler v. Ontario, [1996] 3 SCR 60. This principle being clear, the applicants have not identified any basis on which they had any right to receive funding, let alone a right that has been denied them in an unlawful or arbitrary manner. The authorities relied upon by the applicants afford them no assistance on this point. The arbitrary distinction in Tesla Motors Canada ULC v. Ontario (Ministry of Transportation), 2018 ONSC 5062 was drawn between private manufacturers, not between publicly funded institutions and private businesses and non-profit entities. The unlawful decision in Re Doctors Hospital and Minister of Health et al., 1976 739 (ON SC), [1976] 12 O.R. (2d) 164 (Div. Ct.) was a decision made without jurisdiction to close an existing publicly funded hospital. The distinction drawn in this case – between publicly funded schools and private schools, is entrenched in Ontario law.
[28] Finally, we note that the applicants and their employees were eligible to seek funding under several programs targeted at businesses and as support for working people to relieve some financial consequences of public health measures taken in response to COVID-19. There is no unfairness in Ontario taking different approaches to addressing issues arising in the private sector and issues arising in publicly funded institutions.
Order
[29] For all of these reasons we conclude that the issues raised in this application are not justiciable, and the application is therefore dismissed. We decline to address any of the other issues raised on the application in these circumstances.
[30] As agreed by the parties, there shall be no order as to costs.
Justice D. L. Corbett
Justice W. Matheson
Justice F. Kristjanson
Released: October 3, 2022
CITATION: Metropolitan Preparatory Academy Inc et al. v. Ontario, 2022 ONSC 3979
DIVISIONAL COURT FILE NO.: 324/21
DATE: 20221003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Matheson and Kristjanson JJ.
BETWEEN:
Metropolitan Preparatory Academy Inc., Cambridge District Association For Christian Education operating as Woodland Christian High School, and Toronto Cheder
Applicants
- and -
Her Majesty the Queen in right of Ontario as represented by the Minister of Education (Ontario) and the Minister of Finance (Ontario)
Respondents
- and -
B’nai Brith of Canada League for Human Rights
Intervener
REASONS FOR DECISION
D.L. Corbett J.
Released: October 3, 2022