CITATION: Ontario (Minister of Health) v. Grassroots for Affordable Jewish Education Inc., 2024 ONSC 4905
DIVISIONAL COURT FILE NO.: 521/23
DATE: 20240910
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Lococo and O’Brien JJ.
BETWEEN:
His Majesty the King in Right of Ontario as represented by the Minister of Education and the Minister of Health
Appellant
– and –
Grassroots For Affordable Jewish Education Inc., Stephen Mitchell, Mordechai Ben-Dat, Zac Kaye, Ron Gersh, Ashleigh Segal-Eskin, Ronnen Lederman, Miri Schneiderman, Karen Goldenberg, Howard Price, and Sara Dobner
Respondents
Maia Stevenson and Yashoda Ranganathan, for the Appellant
Jillian Siskind and Sarah Jamshidimoghadam, for the Respondents
HEARD at Toronto: June 11, 2024
O’Brien J.
REASONS FOR DECISION
Overview
[1] The respondents are members of the Jewish community who seek public funding for Jewish day schools in Ontario. They argue that, given the public funding for Roman Catholic separate schools, the failure to fund Jewish day schools breaches their freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms[^1] and their right to equality under s. 15(1) of the Charter.
[2] This appeal raises the question of whether these issues have already been decided. Ontario brought a motion to strike the respondents’ application because it had no reasonable prospect of success. Ontario argued Adler v. Ontario, 1996 148 (SCC), [1996] 3 S.C.R. 609 had definitively decided the issues the respondents had raised. The motion judge, Papageorgiou J., dismissed the motion: Grassroots For Affordable Jewish Education Inc. v. Ontario (Minister of Education), 2023 ONSC 3722 (“the Decision”). She concluded the respondents had a reasonable prospect of meeting the test established by the Supreme Court of Canada for revisiting binding precedents.
[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.
[4] There is no doubt that Adler directly determined the issues raised in the application. The dispute between the parties is whether there is a reasonable prospect that Adler can be revisited due to changes in the law and circumstances. The test for revisiting binding precedent is set out in two Supreme Court of Canada cases: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. According to the Bedford/Carter test, a trial judge may revisit binding precedent when (1) new legal issues are raised, or (2) there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
[5] The motion judge concluded the respondents had a reasonable prospect of satisfying the Bedford/Carter test for several reasons. She cited developments in the facts and circumstances that, though none individually met the test, she found were together relevant to satisfying the test as part of the overall matrix of changes. She also relied on what she considered to be developments in the law related to ss. 2(a) and 15(1) of the Charter and to principles of international law. Finally, she considered the addition of s. 93A to the Constitution Act, 1867 constituted a development in the law that had a reasonable prospect of meeting the Bedford/Carter test.
[6] Ontario submits it was an error to conclude the respondents had a reasonable prospect of meeting Bedford/Carter. It submits the wrong test was applied in considering whether developments in the facts and circumstances underpinning the application could reasonably meet the Bedford/Carter test. It also submits the motion judge erred in the treatment of Adler, particularly by relying on the Adler dissenting opinions, in the treatment of principles of international law and in the understanding of s. 93A of the Constitution Act, 1867. In Ontario’s submission, these errors led to the wrong conclusion that developments in the law could reasonably meet the test.
[7] 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. I would allow the appeal and dismiss the application.
Was it an error to rely on facts and circumstances that were not new?
[8] Ontario submits that it was an error to rely on facts that were not new and not relevant to the reasons in Adler. I agree. The motion judge herself recognized the facts and circumstances relied on were not new. It therefore was an error to find, as the Decision did, that they were “relevant” to meeting the Bedford/Carter test.
[9] The respondents put forward two types of facts and circumstances they considered new. They first submitted evidence of the threat to the long-term survival of the Jewish community. Their evidence emphasized the importance of Jewish day school education to Jewish religious practice and cultural identity and that the cost of attending Jewish day school had increased substantially. Second, the respondents relied on what the motion judge described at para. 159 as a “growing recognition of the benefits of supporting diversity.”
[10] There is no doubt these facts and circumstances, if accepted, are important to the Jewish community. But, starting with the significance of Jewish day school, the motion judge acknowledged that these facts, on their own, could not satisfy the Bedford/Carter test with respect to the alleged Charter breaches. She concluded, instead, that they had “some relevance” as they formed “part of the overall matrix of changes alleged”: para. 125.
[11] The motion judge also acknowledged that the argument about diversity was not strong on its own since Adler referenced changes in demographics and Canada’s multiculturalism. But, she stated, they supported the respondents’ “overall argument when considered in combination with other changes asserted”: para. 165.
[12] In short, while acknowledging the evidence and circumstances did not on their own meet the Bedford/Carter test, the Decision concluded that, taken together with all the other arguments, they were “relevant.” Respectfully, this was an error.
[13] The Bedford/Carter test is strict. The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system and, in particular, to guaranteeing certainty in the law: Carter, at para. 44; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 26. The Supreme Court in Comeau underscored that the “new evidence exception to vertical stare decisis” is limited, stating:
Not only is the exception narrow – the evidence must “fundamentally shif[t] the parameters of the debate” – it is not a general invitation to reconsider binding authority on the basis of any type of evidence. As alluded to in Bedford and Carter, evidence of a significant evolution in the foundational legislative and social facts – “facts about society at large” – is one type of evidence that can fundamentally shift the parameters of the relevant legal debate. That is, the exception has been found to be engaged where the underlying social context that framed the original legal debate is profoundly altered. [Citations omitted.]
[14] The evidence and circumstances presented here not only failed to fundamentally shift the parameters of the debate but replicated the circumstances in Adler. There, the lower courts had accepted the appellants’ evidence that education of their children in accordance with their religious practices and beliefs was essential to their membership in the religious community and to the “very survival” of the community: Adler, at para. 82, per L’Heureux-Dubé J. (dissenting). The importance of diversity was also squarely at play in Adler. In her dissenting reasons at paras. 84-85, for example, Justice L’Heureux Dubé emphasized that preserving and enhancing the multicultural heritage of Canadians, as set out in s. 27 of the Charter, was integral to interpreting freedom of religion.
[15] On a motion to strike, it is not the court’s task to finally conclude whether the record discloses such a fundamental shift or profound alteration, but the court must at a minimum identify where there is a reasonable prospect it will be found in the record. In this case, it was acknowledged that the circumstances were not substantially different from those in Adler. It is not enough to identify small shifts in various facts and circumstances, which is what the Decision appeared to find here. The framework must be “profoundly altered.” It therefore was an error to find the evidence and circumstances relied on by the respondents were “relevant” to the conclusion that there was a reasonable prospect of meeting the Bedford/Carter test.
Was it an error to question the force of the majority analysis in Adler?
[16] Second and more importantly, none of the evidence or circumstances relied on by the respondents, and none of the alleged developments in the law, had any reasonable prospect of meeting the Bedford/Carter test because they were irrelevant to the Adler analysis. This was overlooked in the Decision because it relied on the Adler dissenting opinions to question the force of the majority analysis in Adler.
[17] In addition to what the motion judge considered to be “relevant” facts and circumstances as described above, the Decision found the following developments in the law had a reasonable prospect of meeting the Bedford/Carter test:
a. Freedom of religion had arguably been expanded by the adoption of the principle of state neutrality: see paras. 126-41 of the Decision.
b. The law had developed to impose a positive obligation to legislate in some contexts: see paras. 171-75 of the Decision.
c. There was now a “presumption of conformity” in international law, which held that courts should employ an interpretation consistent with international law obligations unless the words clearly required a different interpretation: see paras. 176-231 of the Decision.
[18] In my view, none of these legal principles or developments had a reasonable prospect of justifying revisiting Adler. I start by explaining why the proposed development of the principle of state neutrality (relevant to the s. 2(a) analysis) and of the positive obligation to legislate (relevant to the s. 15(1) analysis) were not relevant to the Adler majority reasons. In the next section, I address the Decision’s reliance on international law.
[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 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.
[22] The Decision relied on the dissenting opinions in Adler to question the majority interpretation of s. 93. The motion judge stated that she did not accept s. 93 together with s. 29 of the Charter could bear no other interpretation “when four of the nine most senior jurists at the time concluded otherwise, even if their interpretation did not carry the day at the time”: Decision, at para. 111. I agree with Ontario that this was an error. The Decision did not point to any subsequent decisions of the Supreme Court of Canada or any court of appeal relying on and further developing any of the dissenting analyses. In these circumstances, the majority analysis must be taken as binding.
[23] The error in questioning the majority analysis in Adler led to incorrectly considering the proposed developments in s. 15(1) and s. 2(a) as potentially justifying revisiting binding precedent. Given the conclusions in Adler about the proper interpretation of s. 93, the proposed legal developments could not be relevant to meeting the Bedford/Carter test unless there had been a significant development in the law relating to s. 93 suggesting that s. 93 may no longer constitute a comprehensive code with respect to denominational school rights. But that has not occurred. I discuss below why I disagree that the proposed development here, s. 93A, raised such a prospect. In the absence of a significant development in the interpretation of s. 93, the Adler analysis precludes consideration of developments in the law related to s. 15(1) and s. 2(a). Similarly, even if the social context underpinning s. 2(a) or 15(1) claims had profoundly changed, this would have no bearing on the conclusion that neither provision can be relied on to demonstrate infringements in relation to rights protected under s. 93.
[24] A related error was the Decision’s treatment of the Court of Appeal’s reasons in Adler. The Decision concluded the merits of the Charter claims were relevant because although the Supreme Court did not consider them, the Court of Appeal did. The Decision stated that, to succeed in this case, the respondents would have to meet the Bedford/Carter test with respect to the Court of Appeal’s analysis of the Charter breaches because that decision “has not been overturned”: para. 117. This was an error. A judge hearing the underlying application would be bound by the Supreme Court of Canada decision in Adler, which found the Charter analysis to be inapplicable in view of s. 93. If there was a basis to reconsider the interpretation of s. 93, the Court of Appeal’s analysis could be relevant, but currently there is no reasonable prospect of revisiting Adler’s interpretation of s. 93.
Was it an error to conclude that developments in international law had a reasonable prospect of meeting the Bedford/Carter test?
[25] The Decision’s treatment of international law principles was also a separate error. As stated above, the Decision found that the “presumption of conformity” in international law was new and could impact the interpretation of ss. 2(a) and 15(1) as well as s. 93 of the Constitution Act, 1867 and s. 29 of the Charter.[^2]
[26] Leaving aside whether the “presumption of conformity” constitutes a development in the law, it was an error to state that courts must apply the presumption of conformity at the start of the interpretive process: Decision, at para. 197. The Supreme Court of Canada has explained that the proper approach to constitutional interpretation is the purposive approach adopted in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295. It must begin with the text of the provision but also be conducted by reference to the historical context, the larger objects of the Charter and, where applicable, the meaning and purpose of associated Charter rights: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at paras. 7-8.
[27] While international law can play a role, 9147-0732 Québec Inc., at para. 28, made clear that role is limited:
This Court has recognized a role for international and comparative law in interpreting Charter rights. However, this role has properly been to support or confirm an interpretation arrived at through the Big M Drug Mart approach; the Court has never relied on such tools to define the scope of Charter rights. [Emphasis in original.]
[28] It was therefore an error to say that the presumption of conformity is applied at the start of the interpretive process. Instead, it is used to confirm or support an interpretation arrived at using the Big M Drug Mart approach.
[29] Using this approach, the proposed developments in international law could have no reasonable prospect of meeting the Bedford/Carter test. Adler’s interpretation, based as it was on Canada’s history and, in particular, the historical compromise at Confederation, found s. 93 constituted a complete code. This does not leave room for the international instruments and other sources cited in the Decision. The motion judge relied on those sources primarily for statements about the right to education without discrimination. But just as s. 15(1) cannot be used to find laws protected by s. 93 discriminatory, neither can international principles. Since the Supreme Court has consistently stated that one part of Canada’s own Constitution (i.e., s. 15(1) of the Charter) cannot be used to invalidate another provision (s. 93), there is no reasonable prospect that international sources could do so.
Was it an error to conclude the addition of s. 93A had a reasonable prospect of meeting the Bedford/Carter test?
[30] Finally, I disagree with the Decision’s conclusion that the addition of s. 93A to the Constitution Act, 1867 constituted a development in the law that raised a reasonable prospect of meeting the Bedford/Carter test. In my view, the interpretation of s. 93A was in error by leaving open the possibility that it could result in a change to the interpretation of rights and privileges of Ontario residents.
[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.
[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.
Disposition
[38] The appeal is allowed. It is evident from the foregoing reasons that the application has no reasonable prospect of success and must be dismissed. In accordance with the agreement of the parties, no costs are ordered.
___________________________ O’Brien J.
I agree. ___________________________ Backhouse J.
I agree. ___________________________ Lococo J.
Date: September 10, 2024
DIVISIONAL COURT FILE NO.: 521/23
DATE: 20240910
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lococo and O’Brien JJ.
BETWEEN:
His Majesty the King in Right of Ontario as represented by the Minister of Education and the Minister of Health
Appellant
– and –
Grassroots For Affordable Jewish Education Inc., Stephen Mitchell, Mordechai Ben-Dat, Zac Kaye, Ron Gersh, Ashleigh Segal-Eskin, Ronnen Lederman, Miri Schneiderman, Karen Goldenberg, Howard Price, and Sara Dobner
Respondents
REASONS FOR DECISION
O’Brien J.
Date: September 10, 2024
[^1]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^2]: Section 29 of the Charter provides: “Nothing in this Charter abrogates or derogates from any rights or privileges by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.”