ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

Applicants (Responding Parties)

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF EDUCATION AND THE MINISTER OF HEALTH

Respondent (Moving Party)

• and –

THE ATTORNEY GENERAL OF CANADA

Respondent (Moving Party)

Sarah Teich, David Matas and Jillian Siskind, for the Applicants (Responding Parties)

Yashoda Ranganathan and Maia Stevenson for His Majesty the King in Right of Ontario, Respondent (Moving Party)

Elizabeth Koudys for the Attorney General of Canada, Respondent (Moving Party)

HEARD: April 20, 2023

papageorgiou j.

A. Overview

[1] Publicly-funded faith-based education is only available in Ontario for Roman Catholics. Ontario also funds public schools.

[2] The applicants are members of the Jewish community who send their children to Jewish day schools and a community organization whose goal is to advocate for public funding (collectively, “the Grassroots Applicants”). They say that the statutory scheme set out in Ontario’s Education Act, R.S.O., 1990, c. E.2 which fails to extend funding to other independent faith based schools is discriminatory and violates their rights to freedom of religious and equality enshrined in the Canadian Charter of Rights and Freedoms. They also allege that Ontario’s failure to extend funding for COVID safety measures to independent faith based schools violates these rights.

[3] They say that publicly-funded education is a public good which they cannot access because of their religious beliefs. They argue a diverse society which respects minority and individual rights requires accommodation of their beliefs and, as such, requires public funding for faith-based education. Finally, they assert there is an inherent inconsistency in jurisprudence that holds dear the concepts of state neutrality and Charter rights in most matters, but tolerates public funding for education which does not take into account diversity and religious beliefs.

[4] The Grassroots Applicants have brought an application (the “Application”) against the governments of Ontario and Canada (the “Moving Parties”). They do not seek any orders or declarations which would adversely affect the funding of Roman Catholic schools. Rather, they seek to obtain the same benefit that Roman Catholic schools and public schools receive, calculated in the same manner, based upon a per student formula.

[5] The Moving Parties argue that the Application has no reasonable prospect of success. They have brought a motion to strike it out before it is considered on its merits.

[6] They argue that the Application is a clear attempt to relitigate decisions made by the Supreme Court of Canada in Reference Re Bill 30, An Act to Amend the Education Act (Ont.), 1987 65 (SCC), [1987] 1 S.C.R. 1148, and Adler v. Ontario, 1996 148 (SCC), [1996] 3 S.C.R. 609 (“Adler”), which were then followed by the Ontario Court of Appeal in Bal v. Ontario (Attorney General) (1997), 1997 4473 (ON CA), 34 O.R. (3d) 484, (C.A.), leave to appeal refused [1997] S.C.C.A. No. 547, and other lower courts.

[7] In particular, these cases considered Canada’s Constitution Act, 1867, which delegated to the provinces the power to make laws in relation to education. In 1867, there were primarily two distinct religious minorities, Roman Catholics in Ontario and Protestants in Quebec. In order to protect the existing educational rights that these religious minorities had at that time, and to moderate religious conflicts, s. 93 of the Constitution Act, 1867 directed that “nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union.” The courts held that s. 93 was a necessary bargain without which the Union would not have happened.

[8] Together, Reference Re Bill 30, Adler and Bal held that because of s. 93, Ontario’s decisions with respect to the funding of all denominational schools are immune from Charter scrutiny. In essence, the courts held that s. 93 is part of Canada’s history and heritage which makes it impossible to treat all religious minorities the same in Ontario, despite the existence of the Charter since 1982.

[9] Canada raised the additional argument that it does not have any responsibility to provide educational funding; therefore, there is no basis for any claim against Canada even in the absence of Reference Re Bill 30, Adler and Bal.

[10] In response, the Grassroots Applicants rely on other binding Supreme Court decisions in 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, which permit the revisitation of binding precedents in certain rare circumstances. The Grassroots Applicants say this Application should be permitted to proceed because there is a reasonable prospect that they will be able to meet the test set out in Bedford and Carter. They also rely upon binding precedent which directs that Canada’s Constitution is not fixed in stone; rather, the “living tree” doctrine permits an evolving interpretation of the Constitution. They say that there have been significant changes in Canadian society as well as our jurisprudence since Reference Re Bill 30, Adler and Bal which support a revisitation of this issue.

[11] They also argue that as a community-based claim, this Application will have far-reaching consequences for the larger Jewish community in Ontario. By striking it at this early stage, rather than allowing the court an opportunity to review the evidence and the current evolution of the legal landscape, it will compound the continuing negative impacts on the ability of the Jewish community to provide sufficient educational opportunities to their children. They argue that this broad impact is significant and warrants a full review and full argument.

[12] Neither Moving Party raise any issues about standing or argue that it is plain and obvious that the remedy sought cannot be granted. Further, as I will explain, the primary argument made by the Moving Parties relates to the constitutional immunity afforded by Reference Re Bill 30 and Adler, and not the underlying merits of the claimed Charter breaches. This is likely because of their view of the incontrovertibility of the threshold argument as well as the fact that the Supreme Court did not consider the underlying merits in Adler.

[13] Nevertheless, because the Court of Appeal in Adler did consider the underlying merits, and because the Grassroots Applicants raised changes related to all issues in response to this motion, I have addressed whether the Grassroots Applicants have a reasonable prospect of satisfying the Bedford and Carter test with respect to all issues including the underlying merits.

B. The Issues

[14] The issues which I must decide are as follows:

• Is it plain and obvious that the Grassroots Applicants have no reasonable prospect of satisfying the test in Bedford and Carter, which permits binding precedents to be revisited in certain limited situations?

• Can a claim be advanced against Canada given that it does not have any responsibility for educational funding, given that it has not made any decisions or taken any actions with respect to educational funding?

C. Decision

[15] For the reasons that follow, I am satisfied that it is plain and obvious that the Grassroots Applicants’ case against Canada has no reasonable prospect of success.

[16] However, as against Ontario, it is not plain and obvious that the Grassroots Applicants are bound to fail. There is a reasonable chance that the Grassroots Applicants will be able to satisfy the test in Bedford and Carter. In that regard, 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.

[17] 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.

[18] The changes cited by the Moving Parties are significant. The most important are:

• A jurisprudential change in the importance of international law to the interpretation of Canadian laws, which now includes a presumption of conformity that did not exist at the time of the binding authority. The Grassroots Applicants argue that interpreting the Constitution and the Charter in such a way as to render government action immune from scrutiny is inconsistent with the presumption of conformity; had this principle been present at the time of the binding precedents, it would have affected the outcome. International law obligations include an obligation to not discriminate with respect to education and so international law, and how it has been applied, is also arguably relevant to the underlying s. 15 Charter claim.

• An amendment to s. 93 which occurred after Adler whereby the constitutional protection afforded to the Protestant minority in Quebec was removed. The Grassroots Applicants assert that Quebec and the federal government walked away from the constitutional compromise and that this is a significant change relevant to the interpretive exercise in a number of ways.

• Developments in the scope of religious rights since Adler, including the principle of state neutrality. This arguably enlarges the scope of the inquiry into whether religious and equality rights have been violated.

[19] Because I find that the Application has a reasonable chance with respect to the main issue, the non-funding of Jewish day schools, I have not addressed the separate issue of Ontario’s failure to extend funding for COVID safety measures to such schools because this issue is subsumed in the former.

[20] To be clear, I am not deciding that the Grassroots Applicants actually meet the test in Bedford and Carter. That issue is to be decided based upon the evidence, not the pleadings. The ultimate determination of whether the Grassroots Applicants meet the test in Bedford and Carter will be up to the application judge after Ontario files evidence. Then, if the application judge decides that there are grounds to revisit the applicable binding precedents on the basis of the full evidentiary record, the application judge will consider whether there has been a Charter breach.

D. Analysis

Issue 1: Is it plain and obvious that the Grassroots Applicants have no reasonable prospect of satisfying the test in Bedford and Carter?

[21] As set out above, I find that it is not plain and obvious that the Grassroots Applicants have no prospect of satisfying the Bedford and Carter test. My decision is based upon a chain of reasoning which involves the analysis of the following legal and/or factual issues, which I will discuss in greater detail, in the following order:

I. The well-established principles for striking out a claim;

II. The principle of stare decisis;

III. The principles of constitutional interpretation, including the “living tree” doctrine;

IV. The test for revisiting a binding precedent set out in the cases Bedford and Carter;

V. The constitutional framework;

VI. The reasons in Reference Re Bill 30, Adler and Bal and in particular, a consideration of whether all of these binding precedents must be revisited if the Grassroots Applicants’ case is to succeed. As I will explain, this Application does not require any revisitation of Reference Re Bill 30 which held that the funding of Roman Catholic schools is immune from Charter scrutiny. The decision which must be revisited is Adler which extended the reasoning in Reference Re Bill 30 to hold that Ontario’s funding decisions with respect to other religious schools are also immune from Charter scrutiny. As Bal followed Adler, if there is a basis to revisit Adler, there is a basis to revisit Bal;

VII. The relevance of the Supreme Court’s division in Adler on whether Ontario is immunized from Charter claims, and if so, how these other views are relevant to the issue before me;

VIII. The arguments presented by the Grassroots Applicants regarding social, political and legal developments in support of their position that they meet the test in Bedford and Carter;

IX. Whether horizontal stare decisis mandates that this Application be dismissed; and

X. The relevance of the fact that many courts, including the Supreme Court, have referenced Adler over the last thirty years, and even recently.

I. The Principles for Striking out a Claim

[22] Under r. 21.01(1)(b) of the Rules of Civil Procedure, a pleading may be struck out on the ground that it fails to disclose a reasonable cause of action. The test on a motion to strike is whether it is plain and obvious that the proceeding has no reasonable prospect of success: R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R 45, at para. 17.

[23] Rule 14.09 makes r. 21.01 applicable to applications: National Steel Car Limited v. Independent Electricity System Operator, 2018 ONSC 3845, at para. 5, aff’d 2019 ONCA 929, 451 D.L.R. (4th) 516, at para. 24.

[24] It is agreed by all parties that for the purposes of a motion to strike, the facts and evidence plead in the Notice of Application are assumed to be true unless they are “patently ridiculous” or “incapable of proof”: Castrillo v. Ontario (Workplace Safety and Insurance Board), 2017 ONCA 121, 136 O.R. (3d) 654, at para. 14; Barbra Schlifer Commemorative Clinic v. Canada (Attorney General), 2012 ONSC 5271, at para. 41.

[25] The Grassroots Applicants emphasize McLachlin C.J.’s comments in Imperial Tobacco, at para. 21, that motions to strike must be used with care as “[t]he law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed.” They also emphasize the Court of Appeal’s direction in MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874, 88 O.R. (3d) 269, at para. 20: “If the claim has some chance of success, it must be permitted to proceed”; and in Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, 123 O.R. (3d) 161, at para. 49, that motions to strike “should not be used … as a tool to frustrate potential developments in the law.”

[26] The Moving Parties emphasize that while courts have been reluctant to strike claims on the basis of novel or unsettled legal issues, a claim ought to be struck where the legal basis for the claim has been definitively resolved: Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551, at paras. 9 and 11.

[27] They argue that it is critical to the viability of civil justice and public access that claims, including novel claims, which are doomed to fail are disposed of at an early stage in the proceedings: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at para. 19.

[28] All of the above principles are applicable, and I have taken them into account.

II. Stare Decisis

[29] It is a basic tenet of our justice system that lower courts must follow the decisions of higher courts. In R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 26, the Supreme Court reaffirmed the important role of “vertical stare decisis” which guarantees “certainty in the law” and ensures that the law is not subject to “shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.” At the same time, the Supreme Court acknowledged that vertical stare decisis is “[s]ubject to extraordinary exceptions.”[^1]

[30] Recently, in the case R. v. Sullivan, 2022 SCC 19, at para. 65, the Supreme Court addressed the issue of horizontal stare decisis. It held that while courts in the same jurisdiction are not bound by horizontal stare decisis, courts should follow decisions of courts within the same jurisdiction “as a matter of judicial comity, as well as for the reasons supporting stare decisis generally” (citations omitted). However, there is still more room for a judge to depart from horizontal precedents than vertical precedents: R. v. Kirkpatrick, 2022 SCC 33, at para. 179.

III. Constitutional Interpretation and the Living Tree Doctrine

[31] Courts must interpret the Constitution in a broad and purposive manner, beginning with the written text which has “primordial significance”: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 11 (“Quebec v. 9147”).

[32] However, the words are not “the sole consideration”: Quebec v. 9147, at para. 11. The purposive approach includes consideration of legislative context, historical context, and the larger objects of the Constitution: Quebec v. 9147, at paras. 7 and 13. The principles of “federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law” should be taken into account. Further, all of the words of the Constitution are also relevant and not merely the words in the section in question: Reference Re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at paras. 25-26.

[33] Further, the “living tree” doctrine permits the interpretation of Canada’s Constitution to change and evolve over time while still acknowledging its original intention. In Reference Re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 22, the Supreme Court applied the “living tree” doctrine to the definition of marriage as it stood in 1867, holding that “frozen concepts” run contrary to the doctrine and courts ought to employ a progressive interpretation, accommodating and addressing the realities of modern life.

[34] At para. 23, the Supreme Court in Reference Re Same-Sex Marriage further stated:

A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document. By way of progressive interpretation our Constitution succeeds in its ambitious enterprise, that of structuring the exercise of power by the organs of the state in times vastly different from those in which it was crafted.

[35] In the more recent case of Kirkpatrick, at para. 265, the Supreme Court reaffirmed that “[u]nlike statutes, the meaning of a constitutional provision is ‘capable of growth’ and may be revisited on the basis of societal change.”

IV. The test for revisiting a binding precedent set out in Bedford and Carter

[36] As set out in Bedford, at para. 147, there are circumstances in which a judge may revisit binding authority.

[37] It is important to understand how the Supreme Court came to its conclusion in Bedford and what that case was about to appreciate the threshold for revisiting a binding precedent.

[38] Two former sex workers brought an application seeking declarations that provisions of the Criminal Code, R.S.C., 1985, c. C-46, which criminalized prostitution, infringed their rights pursuant to s. 7 of the Charter.

[39] There had been a previous decision in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123 (the “Prostitution Reference”), which upheld the laws in question. The issue nevertheless proceeded to trial. Himel J. concluded that the Prostitution Reference did not prevent her from reviewing the constitutionality of the same provisions because s. 7 jurisprudence had evolved considerably since 1990.

[40] First, the existing case law at the time of the Prostitution Reference did not consider the doctrines of arbitrariness, overbreadth and gross disproportionality because these doctrines had not yet been developed in the case law. As well, these doctrines had not been argued. Second, there was research before her which had not been available at the time of the Prostitution Reference; therefore, the evidence before her was “richer”. Third, there were “social, political and economic assumptions” which formed the basis for the previous case which might no longer be sound. Fourth, the expression at issue was not the same as that in the Prostitution Reference: see Bedford, at para. 17, for a summary of Himel J.’s conclusions.

[41] The Supreme Court in Bedford stated, at para. 42:

In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

However, the Court emphasized, at para. 44, that “the threshold for revisiting a matter is not an easy one to reach.”

[42] The issue arose again in Carter. That case involved a terminally-ill individual who challenged provisions of the Criminal Code, which provisions prohibited assisted dying, on the basis of s. 7 of the Charter. A previous decision, Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, upheld a blanket prohibition on assisted suicide. The majority in Rodriguez held that the prohibition deprived a person of security of the person, but that it could be justified in accordance with the principles of fundamental justice.

[43] In concluding that the trial judge was entitled to revisit Rodriguez, the Supreme Court in Carter reiterated the test from Bedford, noting at para. 44 that “stare decisis is not a straitjacket that condemns the law to stasis.”

[44] The Supreme Court held that the applicant had satisfied the test. First, there had been changes in both the legal framework for s. 7 as well as the evidence on controlling the risk of abuse associated with assisted suicide since Rodriguez was decided. Second, the parties’ argument also involved a different legal conception of s. 7. Third, the principles of “overbreadth and gross proportionality” had advanced since Rodriguez. Fourth, the “matrix of legislative and social facts” in the case differed: Carter, at paras. 45-47.

[45] In Comeau, at para. 34, the Supreme Court further clarified that for a binding precedent from a higher court to be revisited, the new evidence must “‘fundamentally shif[t]’ how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question.”

[46] To understand this direction, it is important to take into account the arguments made in that case.

[47] Comeau involved an appeal of a trial judge who departed from a binding precedent on the meaning of s. 121 of the Constitution Act, 1867 by accepting an expert’s opinion on the drafter’s motivation for including this section in the Constitution. The Supreme Court concluded that this did not constitute any evolution in the legislative or social facts which could constitute a fundamental shift; rather, this was simply one expert’s assessment of the historical information. If accepted, this would result in substituting the historian’s opinion for the opinion expressed by the binding appellate court, which was not in accordance with the test in Bedford. The Court explained, at paras. 31 and 33:

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…

This focus on shifting legislative and social facts is conceptually linked to Lord Sankey’s famous “living tree” metaphor, which acknowledges that interpretations of the Constitution Act, 1867 evolve over time, given shifts in the relevant legislative and social context: Edwards v. Attorney-General for Canada, 1929 438 (UK JCPC), [1930] 1 D.L.R. 98 (P.C.), at pp. 106-7.

V. The Constitutional Provisions Framework

[48] The Moving Parties’ main argument is that the legislative intention expressed in s. 93 is so clear that it can bear no interpretation other than one which immunizes them from Charter claims related to the funding of all religious schools. Thus, the changes alleged by the Grassroots Applicants are irrelevant because Courts are constrained by those words which cannot be interpreted in any other way.

[49] Thus, before reviewing Reference Re Bill 30, Adler and Bal, it is important to set out the constitutional provisions at issue as they form the backdrop for the Moving Parties’ argument in this regard.

[50] As set out above, at the time of Confederation, there were primarily two distinct religious minorities depending upon the province in which they lived: Roman Catholics and Protestants. Although s. 93 of the Constitution Act, 1867 granted the provinces the power to legislate regarding education, it prohibited them from enacting laws which would compromise educational rights held by these religious minorities at the time of the Union.[^2]

[51] It is clear from the case law that the legislative intention at the time was not to prefer Roman Catholics and Protestants above all other religious groups. Rather, the legislative intention was to protect minority religious rights; at the time, those religious minorities happened to primarily be Protestants and Catholics.

[52] The Constitution Act, 1867 was amended in 1982 to enshrine a Charter of Rights and Freedoms. The Charter guarantees freedom of conscience and religion in s. 2(a) as well as equality rights in s. 15.

[53] Section 29 of the Charter provides that:

29 Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution in respect of denominational, separate or dissentient schools.

VI. Reference Re Bill 30, Adler and Bal

[54] Multiple cases have considered the impact of the Charter on s. 93.

[55] It is my view that it is only Adler which addresses the specific issue raised by the Grassroots Applicants.

[56] While Reference Re Bill 30 is relevant, its finding that Ontario’s funding of Roman Catholic schools is immune from Charter scrutiny does not have to be revisited for the Grassroots Applicants to succeed because they do not seek to affect the funding of Roman Catholic schools. I agree with the Grassroots Applicants that the only Supreme Court of Canada authority which must be revisited is Adler, which held that Ontario’s decisions with respect to the funding of other religious schools is also immunized from Charter scrutiny.

a) Reference Re Bill 30

[57] Bill 30’s purpose was to implement a policy of full funding for Roman Catholic separate high schools in Ontario. Prior to this, the Ontario government had only funded Catholic schools up until Grade 10. The issue in Reference Re Bill 30 was whether the Act was consistent with the Constitution, including ss. 2(a) and 15 of the Charter: at para. 18.

[58] The Supreme Court explained that “[t]he protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities”: at para. 27.

[59] At para. 28, the Court further explained:

The compromise or, as Duff C.J. in the Reference Re Adoption Act, 1938 2 (SCC), [1938] S.C.R. 398 at p. 402, termed it, “the basic compact of Confederation”, was that rights and privileges already acquired by law at the time of Confederation would be preserved and provincial legislatures could bestow additional new rights and privileges in response to changing conditions. [Emphasis added.]

[60] The Court ultimately concluded that Bill 30 was protected from Charter review because it was either permissible pursuant to s. 93(3), which allowed provincial governments to expand the funding granted to denominational schools, or because there was already an entitlement to full funding at the time of Confederation. Therefore, Bill 30 returned rights to Roman Catholics which they already had and which were protected under s. 93(1).

[61] The advent of the Charter in 1982, in particular s. 29, did not assist the applicants. The Charter could not be interpreted to render a distinction permitted in one part of the Constitution unconstitutional pursuant to other parts of the Constitution.

[62] It is true that the Supreme Court stated that Bill 30 was “insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”: at para. 63. But the context for this statement was its analysis of the specific issue it was addressing: legislation which was argued to have expanded the rights Roman Catholics had at Confederation. This is not the issue raised by the Grassroots Applicants. As the Supreme Court held in Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 15, citing Quinn v. Leathem, [1901] A.C. 495 (H.L.), at p. 506, “a case is only an authority for what it actually decides”.

b) Adler

[63] In Adler, the applicants were parents and grandparents of children in Jewish day schools and parents of children in Christian schools. They sought declarations that the non-funding of Jewish schools and of independent Christian schools in Ontario was discriminatory and violated their right to freedom of religion and equality under ss. 2(a) and 15 of the Charter. They also made a claim relating to Ontario’s failure to provide school health support services to children with disabilities in these independent schools. This is similar to the Grassroots Applicants’ claim about Ontario’s failure to provide funding for COVID-19 health measures to independent schools.

[64] This is almost identical to the case the Grassroots Applicants raise here. Because the Grassroots Application seeks to revisit the Adler decision, it is important to understand fully the basis for the decision at all stages.

The Application Judge’s Decision: Adler v. Ontario (1992), 1992 7401 (ON SC), 9 O.R. (3d) 676 (Gen. Div.) (“Adler (Gen. Div.)”)

[65] At first instance, the application judge concluded that the funding scheme in Ontario’s Education Act, R.S.O. 1990, c. E.2 violated the equality guarantee in the Charter because public education was provided to some children but denied to those who had to attend religious schools because of their beliefs: Adler (Gen. Div.), at p. 31. However, he concluded that the legislation was saved under s. 1.

[66] It is noteworthy that there was never any motion to strike the claim on the basis of Reference Re Bill 30. Further, neither the Court of Appeal nor the Supreme Court indicated that the application judge had erred by failing to follow the binding precedent in Reference Re Bill 30 when they overturned his finding on the Charter breach.

The Court of Appeal’s Decision: Adler v. Ontario (1994), 1994 1451 (ON CA), 19 O.R. (3d) 1 (C.A.) (“Adler (ONCA)”)

[67] The Court of Appeal majority concluded that there was no violation of ss. 2(a) or 15.

[68] With respect to s. 2(a), freedom of religion involves the freedom to pursue one’s religion without government interference. Therefore, there must be state coercion which limits the exercise of this right: Adler (ONCA), at p. 12. The Education Act did not make school attendance compulsory because children could be educated at home. Thus, while education was compulsory, school attendance was not: at p. 15. As such, there was no government action which interfered with religious freedoms; rather, any burdens were imposed by the religion itself: at p. 23. The Court of Appeal quoted Dixon J.’s decision in R. v. Big M. Drug Mart, 1985 69 (SCC), [1985] 1 S.C.R. 295, where he stated that the state is not normally under a duty to “take affirmative action to eliminate the natural costs of religious practice”: at p. 24. The Court of Appeal further stated, at p. 27, that “[w]hat is really complained of in this case is not government action, but government inaction which in the circumstances of this case cannot be the subject of a Charter challenge” (emphasis added).

[69] With respect to s. 15, the funding of Catholic schools but not other religious schools was not a basis to find a violation of s. 15 because the funding of Roman Catholic schools was constitutionally mandated by s. 93(1): at p. 37. Further, it could not be said that the Education Act failed to provide an equal benefit of free education to the applicants, who contended they could not access it because of their religious beliefs. The distinction created by the legislation was not based on religion; rather, anyone could access public education “without regard to religious beliefs or conviction”: at p. 39. Therefore, the legislative scheme did not “impose burdens or obligations not imposed on others, or withhold benefits available to others” by reason of the applicants’ religion: at p. 39. The fact that the applicants could not access public education was not because of the legislative scheme, but because of their religion: at p. 41.

[70] The Court of Appeal also concluded that even if there were any violation, such violation would be justified pursuant to s. 1 for the reasons given by the application judge, which the Court of Appeal adopted in full. The application judge found that the objective of providing an education system to meet the needs of a pluralistic society was sufficiently pressing and substantial to justify overriding a Charter right. Further, he determined the measures used were rationally connected to the objective. The application judge cited government concerns and evidence that funding of independent schools would be “inimical to the public school system in many ways”: Adler (Gen. Div.), at p. 49. He further noted that there was no evidence that the funding scheme was “arbitrary, unfair or based on irrational considerations”: at p. 53. He concluded that the “degree of impairment… [was] within permissible limits”: at p. 55. In doing so, however, the application judge acknowledged that the proportionality in this case was one largely of opinion as there was no evidence readily available: at p. 56.

[71] Weiler J.A. dissented in part with respect to the denial of school support services to children with disabilities. She concluded that this constituted a breach of s. 15 which could not be justified under s. 1.

The Supreme Court Decision

[72] There were four sets of reasons at the Supreme Court in Adler.

[73] Because of the Moving Parties’ arguments that there is no possible interpretation other than an interpretation which immunizes government action with respect to the legislative scheme, it is important to set out the basis for each of the four sets of reasons.

The Majority Decision (Lamer C.J. and La Forest, Gonthier, Cory and Iacobucci JJ.)

[74] Like in Reference Re Bill 30, the five-member majority in Adler (the “Adler Majority”) concluded that s. 93 was a compromise intended to moderate conflicts with Roman Catholics in Ontario and Protestants in Quebec, which “threatened the birth of the nation.” Further, “without this ‘solemn pact’, this ‘cardinal term’ of Union, there would have been no Confederation”: at para. 29.

[75] It held that the only constitutional guarantee of denominational school rights was in s. 93(1); if rights claimed were not found there, other sections of the Constitution, in particular provisions of the Charter, could not be used to expand the scheme for public funding of denominational schools: at para. 28.

[76] The Adler Majority then referenced s. 29 of the Charter, which exempts from Charter challenge all rights and privileges guaranteed in the Constitution in respect of denominational schools. Even though there was no challenge to the funding of Roman Catholic denominational schools, this also applied to arguments that Ontario’s failure to fund other religious schools violated the Charter.

[77] In other words, since today’s minority religions were not granted equal protection at the time of Confederation, they do not form part of the “comprehensive code” under s. 93.

[78] The Adler Majority reasoned that relying on the Charter to expand the protection given to Roman Catholic schools to other religious schools would amount to holding that one part of the Constitution violated another part of the Constitution: at para. 35. To do so would contradict the express language of s. 29 of the Charter, which explicitly exempts from Charter challenge all rights and privileges “guaranteed” under the Constitution in respect of denominational, separate or dissentient schools: at para. 38.

[79] It also held that public schools are impliedly contemplated by s. 93 because at the time of the Union, denominational school rights were set out in ordinary legislation and were equated with the rights of public schools. Therefore, public schools were part of the comprehensive code set out in s. 93 even though public schools were not constitutionally entrenched, resulting in protection against constitutional or Charter attacks: at paras. 40-50.

Sopinka and Major JJ.’s Reasons

[80] Justices Sopinka and Major concurred in the result but concluded that nothing about the language of s. 93 nor its purpose suggested that it was meant to accomplish anything more than protect the rights of religious minorities at the time of Confederation. They agreed that based upon Reference Re Bill 30, s. 93 is a complete answer to complaints that funding Roman Catholic schools creates a distinction and inequality that violates the Charter: Adler, at para. 123.

[81] However, they disagreed that s. 93 was a “complete code” which immunized Ontario from Charter claims regarding the exercise of its plenary powers: at para. 124. In that regard, while s. 93 provides protections for minority education rights determined at the time of Confederation, it does not otherwise take away the plenary powers given to Ontario to provide funding to other schools within the province: at para. 136. If a province were free to pass legislation extending funding pursuant to its plenary power as the Adler Majority noted, then s. 93 could not be said to be a comprehensive code: at para. 136. Further, the extension of funding to other religious schools would not affect any right or privilege of the Protestant or Catholic minority.

[82] With respect to arguments about whether s 93(1) could be interpreted to extend constitutional protection to public schools as well as denominational schools, Sopinka J. wrote, at para. 125:

(1) The compromise which is embodied in s. 93 had as its purpose the protection of the religious schools of the minority, primarily Protestants in Quebec and Roman Catholics in Ontario. The majority schools needed no protection.

(2) Section 93 makes no mention of protection of the rights and privileges of the public schools.

(3) No decision of this Court or of any other court can be cited to support this proposition and all the authorities support the opposite conclusion.

(4) If s. 93 protects the rights and privileges of public schools, then all rights and privileges enjoyed at Confederation must be included. There is no basis for concluding that while all rights and privileges of denominational schools are protected, the only privilege protected relating to public schools is funding.

(5) Entrenching rights and privileges of public schools relative to a benchmark of 1867 places the province in a straitjacket which impedes the progressive reform of educational institutions.

[83] Therefore, nothing in the wording of s. 93 or its purpose immunizes legislation that funds public schools but not religious-based schools from Charter scrutiny: at para. 165.

[84] However, they ultimately concluded that the failure to fund other denominational schools was not a breach of the Charter.

[85] With respect to s. 2(a), the Education Act did not compel the applicants to act in any way which infringed their freedom of religion: at para. 171. Although there was a distinction between Roman Catholics and the applicants, it was constitutionally mandated. Further, failure to act to facilitate the practice of a religion could not be considered state interference with freedom of religion: at paras. 174-175.

[86] With respect to s. 15, Sopinka and Major JJ. found that the Education Act did not draw a distinction between the applicants and others based on personal characteristics. The only distinction was between public institutions, which receive funding, and private institutions, which do not. Since no private schools, religious or secular, receive funding, no religion is preferred within the system: at paras. 179-188.

McLachlin J.’s Reasons

[87] Justice McLachlin agreed with Sopinka and Major JJ. that s. 93 of the Constitution does not constitute a complete code which ousts the Charter. She wrote, at para. 194:

Neither its language nor its purpose suggests that it was intended to do more than guarantee school support for the Roman Catholic or Protestant minorities in the two provinces respectively. Provinces exercising their plenary powers to provide education services must, subject to this restriction, comply with the Charter.

[88] She concluded that the facts presented did not demonstrate a violation of s. 2(a) because s. 2(a) does not entitle one to state support for one’s religious practices: at para. 200. With respect to s. 15, she concluded that unequal funding as between Roman Catholic schools and other religious schools could not constitute a violation of s. 15 because of the constitutional protection afforded to Roman Catholic schools by s. 93: at para. 203.

[89] She did conclude that s. 15 was infringed by the unequal funding as between public schools and other religious schools: at para. 209. In that regard, she reasoned that while the Education Act appeared facially neutral, its effect was not because “[t]he essence of s. 15 is that the state cannot use choices like the choice of religion as the basis for denying equal protection and benefit of the law”: at para. 208.

[90] Since the applicants’ religious beliefs meant that they could not send their children to public school, they were adversely affected by the failure of the government to “provide funding consistent with their religious beliefs”: at para. 209.

[91] However, this violation could still be justified by s. 1. Here, McLachlin J. agreed that Ontario’s objective of “foster[ing] a strong public secular school system attended by students of all cultural and religious groups” to support an “increased understanding and respect for different cultures and beliefs” was a pressing and substantial objective: at paras. 212 and 215. She also concluded that its effect was proportionate, even though it was unknown whether a less intrusive measure, like partial funding, might achieve the same objective with less infringement: at para. 221.

[92] She concluded that the objective of achieving multiracial harmony was significant enough to justify the impairment: at para. 224.

L’Heureux-Dubé J.’s Reasons

[93] Justice L’Heureux-Dubé was also of the view that s. 93 did not provide an answer to the Charter claim. She reasoned, at para. 57:

While s. 93 requires the provinces of Ontario and Quebec to provide funding for schools serving the Roman Catholic and Protestant minorities, respectively, this is the only school support which is constitutionally guaranteed under that section. Where provinces otherwise exercise their plenary powers to provide education, they must, subject to this requirement, comply with the Charter.

[94] With respect to s. 2(a), she agreed that there was no breach. She reasoned that for a court to find that there has been a denial of religious freedom, there must have been coercive state action. Since the Education Act includes an accommodation exempting religious groups from attending public schools, L’Heureux-Dubé J. concluded that this serves to avoid such coercion: at paras. 74-75.

[95] However, she found a breach of s. 15 for the following reasons. Parents of the religious communities in question had established that to act in accordance with their faith, they must educate their children in a manner consistent with this faith and therefore outside publicly-funded schools: at para. 68. Further, this was essential to their continuation as communities.

[96] Justice L’Heureux-Dubé wrote, at para. 71: “What might be termed an objective choice of a particular religion from the court’s point of view, will, from the religious adherent’s perspective, entail a moral imperative.” Because the Education Act distinguished between those who could access public schools and those who could not, for religious reasons, “[t]his distinction results in the total denial of the equal benefit of funded education for the appellants on the basis of their membership in an identifiable group, a group made up of small religious minority communities”: at para. 69.

[97] She further stated that the denial of funding “constitutes not only a financial prejudice, but also a complete non-recognition of their children’s educational needs and the children’s and parents’ fundamental interest in the continuation of their faith”: at para. 83. This “strikes at the very heart of the principles underlying s. 15”: at para. 86.

[98] With respect to s. 1, she agreed that the objective of the legislation was pressing and substantial: at para. 101. She also agreed that the evidence established that full funding risked the outflow of students from the public system, which could impact this objective fundamentally. However, she concluded that the evidence did not establish that the means used resulted in the least infringement, because Ontario could have provided partial funding, as had been done in other provinces where the societal goal is “no less pressing”: at paras. 105-108.

c) Bal

[99] In 1990, the Ontario government enacted a regulation and put in place a policy directing that all boards of education in the province must not be religiously indoctrinational and must not give preference to any particular religion.

[100] Members of minority religious groups (Sikh, Hindu, Muslim, Mennonite and Christian Reform) had sought to bring their minority religious schools under the rubric of the previous public school board in order to obtain funding. They challenged the regulation and policy on the basis that these violated their religious and equality rights in the Charter.

[101] The Ontario Court of Appeal found that Adler was determinative and dismissed the appeal: Bal, at para. 5.

[102] While the Bal decision will have to be revisited if the Grassroots Applicants are to succeed, Bal essentially followed Adler; therefore, if there is a basis to revisit Adler, there will be a basis to revisit Bal. Notably, Bal was decided before Bedford and Carter. Further, the variety of arguments made before me as to why Adler should be revisited were not made with regard to Bal.

VII. The relevance of the Adler Court’s divided reasons on whether Ontario is immunized from [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) claims relating to its decision to not fund other religious schools

[103] I requested submissions on whether the existence of the divergent views in Adler with respect to the interpretation of s. 93 of the Constitution and s. 29 of the Charter was relevant to the issue before me.

[104] Ontario referenced Kirkpatrick, where the concurring reasons of Côté, Brown, and Rowe JJ. and Wagner C.J. explained that the existence of dissenting views is not relevant to the “precedential weight of a decision”. Further, it does not matter how many judges signed onto a majority decision: Kirkpatrick, at para. 257.

[105] Clearly, the majority decision in Adler is the binding precedent irrespective of the views of the other members of the Supreme Court; that is not the issue here. The issue is whether the Grassroots Applicants have raised a reasonable case that they meet the test in Bedford and Carter, such that there is a basis to revisit the majority decision.

[106] The Supreme Court in Kirkpatrick did not alter the principles in Bedford and Carter. Rather, it affirmed that constitutional precedents “must remain workable and responsive to the realities of contemporary society”, and that the meaning of constitutional provisions must be “capable of growth” and may be “revisited on the basis of societal change”: at para. 265.

[107] Furthermore, the Court stated that “[d]issenting reasons may assist future panels to identify unworkability or foundational erosion”: Kirkpatrick, at para. 257. Even so, the Court directed that courts do not have “an unbridled licence to reinterpret the Constitution” and that any interpretation “must be anchored in the historical context of the provision in issue and the natural limits of the text”: at para. 266.

[108] Throughout the history of the Supreme Court, dissenting opinions have become the basis for majority decisions in later years, even on issues involving the interpretation of the Constitution.[^3] This makes sense because the Supreme Court in Comeau referenced the basis for the exception set out in Bedford and Carter as being linked to the “living tree” doctrine “which acknowledges that interpretations of the Constitution Act, 1867 evolve over time, given shifts in the relevant legislative and social context”: at para. 33.

[109] In her article, “The Dissenting Opinion: Voice of the Future?” (2000) 38 Osgoode Hall L.J. 3 at p. 505, Justice Claire L’Heureux-Dubé stated thus:

[D]issenting opinions are often intended more for the legal minds of tomorrow than for those of today. It is important for courts and judges to be able to speak to future generations, and to suggest that it is possible for the law to evolve internally, at least “interstitially,” as well as through legislative reform…

Dissenting opinions have the potential, therefore, to lay the foundations of future decisions, to be gradually constructed by people who are interested in developing new approaches to existing law… [T]hey are always helpful to the courts and to the legal community, and are often cited in the decisions of the Supreme Court…

In constitutional law, dissenting opinions may play a particularly useful role with respect to human rights issues, for example, as dissents tend to facilitate the development of a rich jurisprudence capable of evolution over time.

[110] Therefore, the different viewpoints in Adler on the interpretation of s. 93 are relevant for two reasons.

[111] First, these differing views address the specific argument raised by Ontario and Canada that s. 93 of the Constitution and s. 29 of the Charter can bear no interpretation other than one which immunizes them from all Charter claims related to the funding of all religious schools. I cannot agree with the Moving Parties in that regard 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. I also note that the Adler Majority did not indicate in its decision that it thought the wording could bear no other interpretation; nor did it base its decision only on the wording. These reasons show that there were two possible interpretations, with the Adler Majority favoring one over another.

[112] Second, if the Grassroots Applicants are ultimately correct that there have been significant changes in circumstances (social, political and legislative) and/or in the law, these different viewpoints may provide a workable way of addressing these issues without doing violence to the words used in s. 93.

VIII. The Arguments presented by the Grassroots Applicants in support of their position that they meet the test in Bedford and Carter

[113] Even though the Grassroots Applicants referenced changes which have occurred since Adler which related to the threshold issue as well as the underlying merits, the Moving Parties did not argue in any significant way that the Grassroots Applicants could not establish a Charter breach if they could demonstrate a reasonable basis to revisit the threshold issue. They did not argue at all that the Grassroots Applicants could not meet the Bedford and Carter test with respect to the underlying Charter breaches.

[114] Their primary argument was that the Supreme Court’s decision in Adler made the underlying merits as well as any changes related to them, irrelevant.

[115] For example, the grounds set out in Ontario’s Notice of Motion stated that “it is well settled by Supreme Court of Canada jurisprudence that s. 29 of the Charter and s. 93(1) of the Constitution Act, 1987 prohibit the success of this Application.” It further references the fact that “Adler did not turn on the specific evidence in that case. Rather, the decision turned on the interpretation of s. 93 of the Constitution Act, 1867 and s. 29 of the Charter and the conclusion that the distinction made between Roman Catholic schools and other religious schools is constitutionally mandated and immune from Charter attack.” The argument before me was also primarily on this basis.

[116] Canada’s Notice of Motion and oral submissions were similar, with the additional ground being that Canada could not be responsible because of the division of powers and the fact that education is a provincial matter.

[117] However, in my view, all the changes raised by the Grassroots Applicants are relevant because even though the Supreme Court in Adler did not consider the underlying merits, the Court of Appeal did. The Adler (ONCA) decision on the underlying merits is binding on the issue of the Charter breaches. To succeed in this case, the Grassroots Applicants will have to meet the Bedford and Carter test with respect to that decision as well because it has not been overturned. Indeed, as I have said the Grassroots Applicants referenced circumstances and legal argument relevant to these issues.

[118] I find that it is not plain and obvious that the Grassroots Applicants will be unable to satisfy the Bedford and Carter test on all issues based upon the following facts, circumstances and developments in the law, which I find to be significant.

a) Threats to the long-term survival of the Jewish community

[119] Mr. Modechai Ben-Dat established Grassroots for Affordable Jewish Education Inc. (“Grassroots”) in 2015. Its primary mission is to obtain funding for Jewish day schools. He says:

The living stream that carries and has carried our religion through time and place is memory. Collective memory is what we transmit from one generation to the next. And the instrument of transmitting such memory is education.

Education is reinforced in the home, but it is Jewish schools that provide the foundation of Jewish knowledge, traditions, and values to the next generation.

Jewish education has long been a pre-eminent value. Since ancient times, the Jewish people have had an organized system of public education. As a community, we have long understood that to sustain Judaism, we need an educational system transmitting faith, rules, laws and the values underlying them.

[120] The Notice of Application, which must be taken as fact, asserts that:

• “Jewish day school education is central to Jewish religious practice and to ensuring that Jewish children maintain a strong and meaningful cultural and national identity.”

• “Ontario’s failure to provide funding to Jewish day schools has had a significant negative impact on individual families, and upon the Jewish community as a whole.”

• “The ongoing group and collective interests of the Jewish community requires that religious schools receive adequate public funding.”

[121] The Grassroots Applicants’ affidavit evidence, which must also be taken as fact, shows that for many members of the Jewish community, attending a public school does not allow for the full expression of their cultural and religious identity, an identity which is critical to the long-term survival of the community and their faith. Each of the Grassroots Applicants describe the financial struggles they have endured to send their children to a Jewish day school, and each relate their profound disappointment in the Ontario and Canadian governments for their continued failure to provide faith-based educational funding.

[122] Mr. Howard Lawrence Price states that he has experienced discrimination in his life “and this feels exactly the same.”

[123] E. Robert Weinerman, a member of Grassroots and an actuary, assembled data and performed calculations which support these assertions as follows:

• An Environics Institute survey conducted in 2018 assessed the degree to which attending a Jewish day school guarded against assimilation. It showed that nine or more years of attending a Jewish day school increases a person’s affiliation with the Jewish community and thus helped to ensure the cohesiveness and longevity of the Jewish community. These are the comparisons it found:

Belief

Those who did not attend a Jewish day school

Those who attended a Jewish day school for 9 years or more

Percentage difference

Belief that being a part of a Jewish community is an essential part of being Jewish

34%

58%

24%

Belief that celebrating Jewish holidays with family is an essential part of being Jewish

58%

67%

9%

Belief that caring for Israel is an essential part of being Jewish

40%

49%

9%

Likelihood of being a synagogue member

55%

66%

11%

Likelihood of having a Christmas tree in one’s house

13%

5%

8%

Likelihood of marrying a non-Jew

23%

16%

7%

• The cost of a family with two children attending a Jewish day school has steadily increased both in absolute terms and in terms of the portion of a median family’s income. In absolute terms, the average increase from 2000 to 2018 was $8,577 (from $7,954 in 2018 to $16,531 in 2018). The relative increase, taking into account median increases in income was 36.5 percent. At the same time, housing costs have increased dramatically and this places a significant burden on young families.

• As would be expected, the lower the cost of Jewish day school tuition, the higher the enrollment. For example, in 2017, after the Community Hebrew Academy of Toronto received a $14 million donation to reduce tuition by a third for five years, enrolment in Grade 9 increased as follows:

Year

Enrolment

March 2017

175

September 2017

200

September 2020

320

September 2021

355

• Over the years when tuition costs have increased, enrolment in Jewish day schools has decreased and four branches closed altogether.

[124] Given L’Heureux-Dubé and McLachlin JJ.’s findings in Adler, the Grassroots Applicants’ assertions about the existential threat posed by the absence of funding is not an entirely new circumstance. However, the facts asserted do provide a difference in degree since a fair reading of the materials supports the conclusion that the existential threat has increased.

[125] I would not find that these facts, on their own, could satisfy the Bedford and Carter test regarding the Charter breach. However, they do demonstrate the importance of the issues raised by the Grassroots Applicants. They also provides some support for the argument that Adler is “no longer responsive to the realities of contemporary life.” Recall that in Kirkpatrick, the Supreme Court reiterated that constitutional precedents must remain so, and can be revisited if they are not: at para. 265. Thus, these facts have some relevance, as part of the overall matrix of changes alleged.

b) The principle of state neutrality

[126] Since Adler, the breadth of freedom of religion has arguably been expanded by the Supreme Court’s adoption of the principle of “state neutrality.”

[127] In S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, the Supreme Court grappled with the fact that freedom of conscience and religion involves the rights of those who have religious beliefs as well as those who do not. It referenced the work of the author R. Moon and discussed the challenges faced by the state in trying to achieve religious neutrality: the more religion is excluded from public life, the more it appears that the secular is “less neutral and more partisan”: at para. 30 [Emphasis added]. This supports the reason why both McLachlin and L’Heureux-Dubé JJ. found a breach of s. 15 in Adler in their dissents: at paras. 208-209, per McLachlin J.; at paras. 67-68, per L’Heureux-Dubé J.

[128] The Court proceeded to define the concept of state neutrality as a state posture that “neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected”: at para. 32.

[129] In Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, the Supreme Court elaborated on these principles. In that case, an individual complained about a mayor’s recitation of a prayer prior to public meetings at a municipal council. He argued that this violated his freedom of conscience and religion pursuant to the Quebec Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12 (the “Quebec Charter”). He asked for an Order that the prayer stop and all religious symbols be removed from council chambers. The Human Rights Tribunal granted the application, finding that the prayer was religious and the mayor showed a preference for one religion over another in violation of the principle of state neutrality. The Quebec Court of Appeal allowed an appeal, and a further appeal was made to the Supreme Court.

[130] In its opening paragraph, the Supreme Court explained:

The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right that is protected by the Quebec Charter of Human Rights and Freedoms, CQLR, c. C-12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (‘Canadian Charter’). Its corollary is that the state must remain neutral in matters involving this freedom. The interplay between freedom of conscience and religion, on the one hand, and this duty of neutrality, on the other, is sometimes a delicate one.

[131] It subsequently held that “[s]ponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination” because it “imports a disparate impact that is destructive of the religious freedom of the collectivity”: Mouvement, at para. 64. It further pointed out that neither the Quebec Charter nor the Charter expressly imposed a duty of religious neutrality on the state but that “[t]his duty results from an evolving interpretation of freedom of conscience and religion”: at para. 71.

[132] The Court further provided an analysis of the importance of religious beliefs in the context of the duty of state neutrality, which is consistent with L’Heureux-Dubé J.’s dissent in Adler. It adopted the following view, at para. 73:

In “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” (2012), 45 U.B.C.L. Rev. 497, at p. 507, Professor R. Moon points out that a religious belief is more than an opinion. It is the lens through which people perceive and explain the world in which they live. It defines the moral framework that guides their conduct. Religion is an integral part of each person’s identity. When the state adheres to a belief, it is not merely expressing an opinion on the subject. It is creating a hierarchy of beliefs and casting doubt on the value of those it does not share. It is also ranking the individuals who hold such beliefs.[^4]

[133] And, at paras. 75-76, it writes, “[t]he state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others” and “[i]t is prohibited from adhering to one religion to the exclusion of all others.”

[134] There has not yet been any consideration of how the duty of “state neutrality” interacts with the legislative and constitutional provisions in question. The Moving Parties concede that both religious neutrality and multiculturism play an important role in the interpretation of the Charter provisions in question. Their answer to this issue is essentially that the duty of state neutrality is not relevant since their actions are immune from Charter scrutiny. But the point is, the Adler Majority came to that conclusion without considering the duty of state neutrality, as it is now expressed in the above cases.

[135] The Moving Parties also argue that even if not expressly addressed in Adler, the concept of state neutrality was implicitly part of the jurisprudence at the time of Adler because s. 27 of the Charter mandates that Charter rights be interpreted in a manner which preserves and enhances Canada’s multicultural heritage.

[136] This may be an arguable position, but so too is the argument that the principles in S.L. v. Commission scolaire and Mouvement are new, and the principle of “state neutrality” broadens the scope of freedom of conscience and religion, from a guarantee that the state will not coerce or hinder any particular beliefs to a broader obligation to act in a manner that is respectful of people’s religious beliefs in all public spaces. There is a reasonable argument that the current funding scheme provides a benefit to those who have no religious beliefs which cannot be accessed by those with strong religious beliefs and that this violates the duty of neutrality.

[137] The Moving Parties also reference the Supreme Court’s comments at para. 71 of Mouvement, where it quotes LeBel J. in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650 that “[o]ur Court has recognized this aspect of freedom of religion in its decisions, although it has in so doing not disregarded the various sources of our country’s historical heritage.”

[138] This is likely a reference to Reference Re Bill 30 and Adler, although this is not specifically set out. While it may be arguable that the Application herein, if successful, would result in the disregard of our country’s historical heritage, I suggest that this is not necessarily so. Even if Charter challenges of the nature sought here were permitted to proceed, anyone seeking to do so would still have to establish a Charter breach and any such breach would still be subject to s. 1. Furthermore, even if successful on all grounds, there is no guarantee that any funding would be permanent as there could be circumstances raised by Ontario in the future that are sufficient to allow it to stop such funding, pursuant to s. 1; these are hurdles which Roman Catholics would still never have to jump over as funding for Roman Catholic separate schools is constitutionally guaranteed. Thus, Canada’s heritage would not be disregarded even if the Grassroots Applicants’ case meets the threshold issue and even if they ultimately fully succeed in this Application.

[139] I add that following the statement in para. 71, the Supreme Court in Mouvement further stated that “[i]f the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality”: at para. 78.

[140] And it expressed its disagreement with the Quebec Court of Appeal on the following point, at para. 134:

As understood by that court, neutrality would in the instant case require tolerance for the state’s profession of a clearly identified religious belief on the basis of tolerance for its history and culture. I do not believe that this is the sense of true state neutrality with respect to freedom of conscience and religion.

[141] Even though Ontario must fund Roman Catholic schools because of s. 93, the principle of state neutrality still exists; there is a reasonable argument, or at least a novel one, that in order to act in accordance with this principle in the circumstances, it must extend funding to other faith-based schools.

c) The Constitutional Amendment: s. 93A

[142] As noted by Myers J. in Havercroft v. Ontario, 2022 ONSC 6651, 519 C.R.R. (2d) 351, at paras. 55-57, there was a change in the amending formula in 1982 such that all provinces could alter the constitutional rights of their own residents without affecting anyone elsewhere by agreement between that province and the federal government. This is set out in s. 43 of the Constitution Act, 1982.[^5]

[143] In April 1997, just months following the Adler decision, Quebec repealed the constitutional protection afforded to Protestant schools in Quebec: see Constitution Amendment, 1997, (Québec), SI/97-141 (the “Quebec Amendment”).

[144] The federal government readily agreed to this amendment and on December 19, 1997, the Constitution Act, 1867 was then amended by adding s. 93A, which states, “subsections 93(1) to (4) do not apply to Quebec.”

[145] Therefore, the provision interpreted by the Supreme Court in Adler was different than the current s. 93 of the Constitution. The Grassroots Applicants argue that if the purposive approach begins with the language of the provision in question, then it is plain that courts must consider the whole of the Constitution, including this amendment, as part of the interpretive exercise.

[146] Further, the Supreme Court has indicated that while the primary interpretative approach is one that begins with the text, it also takes into account Canadian law and history: Quebec v. 9147, at paras. 7-8. That law and history arguably includes Quebec’s subsequent decision to amend s. 93, supported by the Canadian government, to remove half of the bargain that was made at Confederation.

[147] The Grassroots Applicants argue that the historical compromise no longer exists in the same way it did in 1867 or at the time of the Adler decision in 1996. They assert that Quebec and the federal government walked away from the compromise when they authorized the 1997 constitutional amendment. They argue that it is no longer possible to shield Ontario’s failure to fund other religious schools by relying on a historical compromise that has already been amended with the Canadian government’s consent to reflect modern social and political realities.

[148] Ontario argues that the Adler Court was aware of Quebec’s proposed amendment and implicitly took it into account because Sopinka and Major JJ. referenced an “upcoming amendment”: Adler, at paras. 164-165. This appears to be what Myers J. also understood in Havercroft.

[149] However, Canada’s submissions on the issue indicates that prior to Adler, it was Newfoundland that was pursuing a constitutional amendment to Term 17 of the Terms of Union between Newfoundland and Canada, which applied “in lieu of section 93”: see Constitution Amendment, 1998 (Newfoundland Act), SI/98-25 (the “Newfoundland Amendment”).

[150] Canada says that it was shortly thereafter that Quebec initiated an amendment to s. 93 which became s. 93A.

[151] It is not entirely clear on this record whether the Adler Court was aware of the upcoming Quebec Amendment or the Newfoundland Amendment. It seems to me that it is unlikely that it was aware of s. 93A because the decision focusses so heavily on the constitutional bargain involving Quebec and Ontario. Had Quebec been about to walk away from that bargain, in my view, this would have been reflected in the decision.

[152] Therefore, based on the record before me, there is a reasonable argument that the Adler Court did not take into account s. 93A in its interpretation of s. 93.

[153] There is also a reasonable argument that the above changes made by Quebec and Newfoundland, with the federal government’s consent, demonstrate their collective acknowledgement that the constitutional bargain made in 1867 is no longer reflective of current social and political realities in Canada. These changes are relevant to the “living tree” analysis because the Supreme Court has reiterated that changes in social facts and legislation can shape the development of constitutional analysis: Comeau, at para. 33.

[154] The Moving Parties also argue that the interpretation of s. 93 cannot be affected by an amendment that only affects one province. I agree with the Grassroots Applicants’ position that there is nothing in s. 43 of the Constitution that states any such amendments do not affect the interpretation of s. 93. Indeed, since such amendments require the consent of the federal government, there is a reasonable argument that they are relevant to the interpretation of the Constitution.

[155] The Moving Parties also point out that s. 93A has been referenced in other cases without any change in interpretation. However, none of these cases considered the arguments made by the Grassroots Applicants here, in the context of the specific case and issue advanced by the Grassroots Applicants.[^6]

[156] While these cases may have relevance if the matter is argued on its merits, they are not binding precedents which have decided that the amendment in s. 93A is irrelevant to the overall interpretive exercise. There is a reasonable argument that the amendment in s. 93A, as well as the social and political changes that led to it, are relevant to the interpretation of s. 93.

[157] Finally, there is a legitimate question as to why Ontario should continue to be immunized given the amending formula which gives Ontario almost full control over s. 93, in light of all the changes asserted by the Grassroots Applicants, and the principle of state neutrality in particular.

d) Increasing recognition of the importance of minority rights and diversity

[158] Since at least Adler, Canada and Ontario have been multicultural and multireligious: Adler, at para. 212.

[159] The Grassroots Applicants argue that since Adler, there has been an even greater influx of minority groups as well as a growing recognition of the benefits of supporting diversity. There were not many facts in the materials to support this argument, but I think I could take judicial notice of the increased importance of diversity as a norm. One need only consider the federal government’s recent emphasis on diversity in judicial appointments to see that the norm of diversity has become significantly more important since Adler. The Grassroots Applicants argue that due to ongoing changes since 1996, the considerations that were relevant from 1867 to 1996 are no longer relevant in the same way. Canadian society, they say, has evolved well beyond the special and exclusive recognition for the rights of the founding colonial nations.

[160] The Notice of Application, which must be taken as fact, states that “other provinces have recognized the necessity of providing funding for Jewish day schools, and have provided such funding.” The Grassroots Applicants further argue that Ontario is now the only Canadian province that continues to fully fund one faith based school while providing no funding to other religious schools.

[161] The increasing importance of diversity is also reflected in the case law the parties cited.

[162] In S.L. v. Commission scolaire, at para. 1, the Supreme Court acknowledged the changed conditions with respect to the recognition of minority rights since 1867:

The societal changes that Canada has undergone since the middle of the last century have brought with them a new social philosophy that favours the recognition of minority rights. The developments in the area of education that have taken place in Quebec and that are at issue in this appeal must be situated within this larger context. Given the religious diversity of present-day Quebec, the state can no longer promote a vision of society in public schools that is based on historically dominated religions.

[163] In S.L. v. Commission scolaire, the Supreme Court noted the significant increase in the diversity of religious beliefs over the past decades, citing the 2001 Census which showed that more than 23 percent of Canadians had non-Christian religions or no religion: at para. 11. It also recognized a “growing sensitivity to the multicultural makeup of Canada and the protection of minorities”: at para. 21.

[164] In Mouvement, the Supreme Court referenced the need to interpret the Charter (and presumably the Constitution by extension) “with a view to promoting and enhancing diversity”: Mouvement, at para. 74.

[165] While this argument is not strong on its own (since the Supreme Court in Adler did reference changes in demographics and Canada’s multiculturism), the ongoing growth of diversity as an important norm supports the Grassroots Applicants’ overall argument when considered in combination with other changes asserted. As well, if they are ultimately able to prove that the failure to fund Jewish day schools is an existential threat, this failure then also threatens the important norm of diversity.

e) Funding of religious schools by other provinces has not compromised the public school system

[166] Although the Adler Majority did not proceed to consider whether a Charter breach had occurred, based on L’Heureux-Dubé and McLachlin JJ.’s dissents, the materials before the Supreme Court did include concerns that funding religious schools would adversely affect the objective of promoting a strong public school system.

[167] The Grassroots Applicants’ affidavits, which must be taken as fact, state that there is no evidence that funding independent schools affects public school enrolment. The rate of enrolment in public schools in provinces that fund independent schools for the 2019/2020 school year was 89.9 percent in Quebec, 95.7 percent in Saskatchewan, 91.3 percent in Manitoba, 93.7 percent in Alberta and 86.5 percent in British Columbia. Based on these numbers, funding of religious schools would arguably not impact the funding for public schools.

[168] The concern that funding independent schools would “starve” the public school system has not materialized in these provinces. In fact, the materials filed by the Grassroots Applicants show that spending in public education has increased beyond what was required to account for enrolment and inflation. For instance, from 2014 to 2019, total spending on public schools increased by 15.4 percent in British Columbia. More importantly, since Adler was decided, the Supreme Court has found that “budgetary considerations in and of themselves cannot justify violating a Charter right”: Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 6.

[169] I do note here that at the time of Adler, five provinces (Quebec, British Columbia, Saskatchewan, Alberta and Manitoba) did already provide partial funding to independent religious schools: see Adler, at para. 106. The evidence showed that such partial funding “resulted in a relatively low increase in the number of independent schools”: at para. 103. It is unknown based on the materials before me whether such funding has changed in these provinces and whether the data provided is based upon different funding models in these provinces.

[170] As a result, I do not find this very significant. I do note that if this matter is argued on its merits, there will likely be richer data on the impacts of such funding on the objective of providing a strong public school sector since there will be thirty years more data.

f) The Supreme Court’s decision in Vriend

[171] Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493 is a decision which post-dates Adler. In Vriend, the applicant alleged a Charter breach because the province had not included sexual orientation as a prohibited ground of discrimination in human rights legislation. The Supreme Court held that this breached the applicant’s right to equality. At para 60, the Supreme Court agreed with an author, Dianne Pothier, that “the Charter will be engaged even if the legislature refuses to exercise its authority.” It concluded that “the application of the Charter is not restricted to situations where the government actively encroaches on rights”. The Court left open the consideration of the broader issue of whether there might be “other contexts” where “the Charter might impose positive obligations on the legislatures or on Parliament such that a failure to legislate could be challenged under the Charter”: at para 64.

[172] The Grassroots Applicants’ argument in this case is not an “in the air” claim that the state has a responsibility to fund any systems or structures which support their religious beliefs. I agree that there is no obligation on the state to provide financial support to enable Canadian citizens in this regard.

[173] Rather, the Grassroots Applicants’ position is a nuanced claim grounded in the Education Act which specifically omits funding for most faith based schools while providing funding to public secular and Roman Catholic schools. They say that this failure to legislate to provide the same benefit violates their Charter rights, in all the circumstances.

[174] Although Ontario’s Notice of Motion states that case law has consistently held that “Ontario’s funding of public and separate school boards to the exclusion of other religious schools is required by the Constitution Act, 1867” [emphasis added], the Supreme Court in Reference Re Bill 30 specifically noted that while the compromise at Confederation preserved rights and privileges already acquired at that time, “provincial legislatures could bestow additional new rights and privileges in response to changing conditions”: Reference Re Bill 30, at para. 28. In Adler, it further set out that Ontario could, if it wanted to, exercise its plenary power to provide funding to other religious schools: at para. 48.

[175] The Grassroots Applicants have a reasonable argument that this might be another context where a positive obligation to legislate exists; in any event, this is a novel argument which builds upon Vriend.

g) Developments in international law

Introduction to the international law perspective

[176] The Grassroots Applicants reference international law principles of equality in education. They cite treaties entered into by Canada and other international law sources.

[177] The Moving Parties argue that even if Adler did not expressly consider international law, the wording of s. 93 is so clear that international law principles could not have altered the outcome. I have already addressed why I do not find this argument persuasive.

[178] The Moving Parties further argue that these treaties and conventions were in existence at the time of Adler; therefore, the Supreme Court must have implicitly taken these international law principles, treaties and conventions into account.

[179] As I will explain, I do not find this argument compelling either. Even though these international law obligations existed at the time of Adler, the importance of such obligations in terms of statutory interpretation has evolved significantly since then.

[180] There is now a “presumption of conformity”, which holds that when interpreting any legislation, courts should employ an interpretation which is consistent with international law obligations unless the words clearly require a different interpretation. As I will explain further, the “presumption of conformity” was fully adopted by the Supreme Court only after the decision in Adler.

[181] Before considering whether the specific treaties and international law sources are new issues relevant to whether a court should revisit Adler, it is important to understand the place of international law.

The place of international law: the presumption of conformity, international law as an interpretive aid and the uses of various types of international law

[182] The Moving Parties argue that the Supreme Court’s decision in Quebec v. 9147 serves as a reminder that the purposive approach to constitutional interpretation begins with the text of the provision: at paras. 8-9. Because the Charter was “made in Canada”, the provisions must primarily be interpreted using Canadian law and history: Quebec v. 9147, at para. 20. I reiterate that this history arguably includes the Quebec Amendment which the federal government then supported as required by s. 43.

[183] The Moving Parties also emphasize the Supreme Court’s comments at paras. 22 and 28 of Quebec v. 9147, where it states the following:

22. While this Court has generally accepted that international norms can be considered when interpreting domestic norms, they have typically played a limited role of providing support or confirmation for the result reached by way of purposive interpretation.

23. 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.

[184] However, the Supreme Court had much more to say about international law than that. The Court’s overall meaning and direction must take into account the entire decision, not merely two sentences.

[185] Following the above statements, the Supreme Court set out a comprehensive framework for the uses of international law that shows the “limited role” it was referencing above was with respect to “international norms” as opposed to treaties to which Canada has acceded.

The presumption of conformity with respect to Canada’s treaty obligations

[186] The majority in Quebec v. 9147 begins by discussing the fact that there are many different sources of international law, including binding and non-binding instruments, and decisions of tribunals and foreign courts. Each play a different role in the analysis and should receive different weight.

[187] The Supreme Court then referenced and affirmed the “presumption of conformity” which presumes that Charter protections are at least as great as those in international instruments that Canada has ratified. The following quote from Quebec v. 9147, at para. 31, begins with a reference to Dickson C.J.’s dissenting opinion in Reference Re Public Service Employee Relations Act (Alta), 1987 88 (SCC), [1987] 1 S.C.R. 313:

Continuing, Dickson C.J. then clarified that not all of these sources carry identical weight in Charter interpretation, stating that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified”: p. 349 (emphasis added). This proposition has since become a firmly established interpretive principle in Charter interpretation, the presumption of conformity. [Underlining in original; italics added.]

[188] The Court explained that the presumption of conformity “operates principally as an interpretive tool”, is rebuttable and does not “overthrow clear legislative intent”: Quebec v. 9147, at para. 34.

[189] There is a question as to whether the presumption of conformity existed at the time of Adler. In my view, it did not.

[190] Although some courts have been referencing Canada’s treaty obligations since before Quebec v. 9147, the cases that the Supreme Court cites for the proposition that the presumption of conformity has become firmly established all post-date Adler.[^7]

[191] Indeed, the term “presumption of conformity” does not appear in any decisions until the Supreme Court’s decision in R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53.

[192] In Hape, the Supreme Court references Daniels v. White, 1968 67 (SCC), [1968] S.C.R. 517, at p. 541, where Pigeon J. indicates that there is “a rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law”. While the word “presumed” was used, it was a negative presumption. He indicated that this rule of construction was “not often applied because if a statute is unambiguous, its provisions must be followed even if they are contrary to international law”.

[193] Taking all of the law on this issue that the parties have cited into consideration, the jurisprudence shows that: 1) interpreting legislation in conformity with Canada’s treaty obligations was previously a rule of construction which was not always applied; 2) as of 2007, the presumption of conformity was “well established”; and 3) the presumption only became “firmly established” sometime afterwards, as explained in Quebec v. 9147.

[194] I add that in Hape, the Supreme Court explained that the presumption of conformity was based on a “rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result”: at para. 53.

[195] Therefore, since the presumption is not primarily or only based upon a search for legislative intention, there is a reasonable argument that it should apply even though Canada entered into the treaties discussed below after the Constitution was written in 1867. The “living tree” doctrine further supports an interpretation of the Constitution which takes into account treaty obligations entered into post-Confederation. Finally, the Adler Majority based its conclusions at least in part on s. 29 of the Charter, which was enacted in 1982 and which postdates the binding treaties to which Canada has acceded. Therefore, at a minimum, there is a reasonable argument that the now well-established presumption of conformity should be considered when interpreting the combined effect of s. 93 of the Constitution and s. 29 of the Charter as they apply to the arguments raised by the Grassroots Applicants.

[196] At the very least, this is a novel issue which has never been considered by any court.

[197] I accept the Grassroots Applicants’ argument that the shift also has important practical significance. Previously, courts would first consider the wording of a statute. If an interpretive issue could be resolved based upon the words, there was no need to consider international law. Now, courts must apply the presumption at the start. It may be that the wording of a statute rebuts the presumption, but if the words do not have this effect because there is a lack of clear legislative intent, the presumption stands.

[198] Therefore, I reject the Moving Parties’ argument that the Adler Majority implicitly considered the presumption of conformity with respect to Canada’s international law commitments. First, there is no caselaw that demonstrates that there was any such firmly-established presumption at that time. Furthermore, if it had been taken into account, but the Adler Majority still concluded the words could have no other meaning, then the decision would have referenced the presumption of conformity and that it was rebutted. As well, had the presumption existed at the time of Adler, the four members of the Supreme Court who disagreed with the Adler Majority’s interpretation would also likely have referred to it as supportive of their views.

Relevance of treaties Canada has not ratified

[199] The Supreme Court in Quebec v. 9147 also explained that the presumption of conformity does not apply to international instruments which Canada has not ratified, but that these instruments are still relevant and persuasive: at paras. 35-36.

Relevance of decisions of foreign tribunals

[200] Similarly, decisions of foreign tribunals and international courts are relevant and persuasive: Quebec v. 9147, at para. 43.

Discussion of specific international law sources

[201] With the role of international law now clarified, I turn to the specific international treaties and other instruments and decisions referenced by the Grassroots Applicants.

[202] While none of these instruments existed and/or had been ratified by Canada at the time of the Constitution Act, 1867, it is not plain and obvious that they could have no relevance to an evolving interpretation of the Constitution or Charter rights; the “living tree” doctrine as well as Bedford and Carter permit an evolving interpretation of the Constitution based on changes in circumstance, which may include social, political and legislative changes that transpired after the Constitution was drafted. Both the international development of these instruments and Canada’s ratification of them arguably constitute such changes.

[203] At a minimum, whether such changes can be taken into account as part of the “living tree” doctrine is a novel issue which no court has yet considered.

The International Covenant on Economic, Social and Cultural Rights

[204] On May 19, 1976, Canada acceded to the United Nations International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 13 (entered into force 3 January 1967) (the “ICESCR”).

[205] Article 2(2) of the ICESCR provides that “States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to…religion”.

[206] Article 13 asserts a right to education.

[207] The Grassroots Applicants have an arguable case that the presumption of conformity means that an interpretation of s. 93 of the Constitution and s. 29 of the Charter that is in accordance with the ICESCR is to be preferred if more than one interpretation is possible. In other words, it is arguable that an interpretation which immunizes the state from Charter breaches is not in conformity with the ICESCR.

The International Covenant on Civil and Political Rights

[208] The International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976) (the “ICCPR”) has been ratified by Canada and contains guarantees of equality in art. 2 and freedom of religion in art. 18. Article 26 further provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as…. religion.

[209] Again, the Moving Parties argue that the ICCPR is not relevant because Canada had already ratified it two decades prior to Adler and as such, it was implicitly part of the factual matrix when Adler was decided; therefore, it cannot constitute a new legal issue or fundamental change in circumstance.

[210] However, again, the presumption of conformity was not firmly established at the time of Adler. Additionally, in Quebec v. 9147, the Supreme Court made specific reference to the ICCPR being binding on Canada and “triggering the presumption of conformity”: at para. 39. And, in Ktunaxa Nation, the Supreme Court referenced the ICCPR and other international law sources with respect to the interpretation of s. 2(a) of the Charter: at para. 65.

[211] This is completely new.

[212] I make the same point set out in paragraph 205 above.

The Waldman decision

[213] After Adler, in 1999 the United Nations Human Rights Committee (“UNHRC”) released its decision in the case of Waldman v. Canada, Comm. 694/1996, U.N. Doc. A/55/40, Vol. II, where it held that Ontario’s funding of Roman Catholic schools, to the exclusion of other religious schools, was a violation of art. 26 of the ICCPR.

[214] The facts in Waldman were similar to the facts in Adler – the applicant challenged Ontario’s funding of Roman Catholic schools to the exclusion of other religious schools.[^8]

[215] In its decision, the UNHRC wrote, at para. 10.4:

The Committee begins by noting that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective. In the instant case, the distinction was made in 1867 to protect the Roman Catholics in Ontario. The material before the Committee does not show that members of the Roman Catholic community or any identifiable section of that community are now in a disadvantaged position compared to those members of the Jewish community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party's argument that the preferential treatment of Roman Catholic schools is nondiscriminatory because of its Constitutional obligation.

[216] In accordance with Quebec v. 9147, Waldman would be a persuasive authority. And I note again the Waldman was based upon the ICCPR which the Supreme Court has held triggers the presumption of conformity.

[217] Thus, it is arguable that equality rights in the Charter should be interpreted in the same way as they were in Waldman, even taking into account s. 93. At a minimum, the Court’s analysis in Waldman should be considered by a Canadian court with respect to these issues. This is something that has never been done.

Adoption of General Comment 9 in respect of the ICESCR

[218] On December 1, 1998, Canada adopted General Comment No. 9: The domestic application of the Covenant, U.N. Doc. E/C.12/1998/24 (1998) from the UN Committee on Economic, Social and Cultural Rights (“General Comment 9”) to the above-described ICESCR.

[219] General Comment 9 provides as follows, at para. 15:

It is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a State's international legal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretation of domestic law that would place the [S]tate in breach of the [ICESCR] and one that would enable the State to comply with the [ICESCR], international law requires the choice of the latter. Guarantees of equality and non-discrimination should be interpreted, to the greatest extent possible, in ways which facilitate the full protection of economic, social and cultural rights.

[220] General Comment 9 had not been adopted as of the Adler decision; therefore, it is a significant development in international law and the Grassroots Applicants have an arguable case that it may be relevant to the interpretation of the constitutional provisions, for the same reasons cited above.

The recommendation of the United Nations Educational, Scientific and Cultural Organization’s Convention Against Discrimination in Education

[221] Sometime after 1997, Canada indicated that it would follow the recommendation of the United Nations Educational, Scientific and Cultural Organization’s (“UNESCO”) Convention Against Discrimination in Education 1960, 14 December 1960 (the “Convention”), although it is not an actual party and has not ratified or accepted it.

[222] The Convention addresses the principle of non-discrimination in education. In its preamble, it states that discrimination in education is a violation of the non-discrimination rights enunciated in the Universal Declaration of Human Rights (the “UDHR”). The UDHR was accepted, with Canada voting in favour, by the UN General Assembly as Resolution 217 in December 1948.

[223] This is a new development since Adler.

[224] Pursuant to the framework in Quebec v. 9147, the Convention may be relied upon as a persuasive source and is arguably relevant for the same reasons I have set out with respect to the other instruments.

Vienna Convention on the Law of Treaties (1969)

[225] Article 27 of the Vienna Convention on the Law of Treaties (1969), 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) (the “Vienna Convention”) states that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

[226] The Vienna Convention was acceded to by Canada in 1970. There is a reasonable argument that pursuant to the presumption of conformity, art. 27 means that the Constitution Act, 1867 should not be used to immunize the Moving Parties from international obligations with respect to equality in education.

The Federal Government’s Views on international obligations

[227] After Waldman, the Canadian Standing Committee on Human Rights addressed the issue of Ontario’s failure to fund religious schools in Promises to Keep: Implementing Canada’s Human Rights Obligations (Ottawa: Senate, 2001), at s. III(E), as follows:

[P]roblems arise for the federal government when provincial laws or policies threaten to place Canada in a position of non-compliance with its treaty commitments.

Internationally, such internal jurisdictional divisions do not excuse a country from fulfilling its legal obligations.

The recent decision of the United Nations Human Rights Committee on the Waldman complaint illustrates the problem. Provincial laws and policies in Ontario that provide for the public funding of Roman Catholic schools, but not those of any other religious denomination, were successfully challenged under the International Covenant on Civil and Political Rights. Canada, as the responsible State Party, was held by the treaty body to be in breach of the Covenant. All the federal government could apparently do was urge provincial compliance. Ontario has refused. As was indicated to us, this type of situation is unacceptable and harmful to Canada's international reputation on human rights.

As Professor Bayefsky observed: '[i]f the provinces are able to say that they have no obligation to adhere to those international obligations, and the federal government is able to say that it has no obligation to do more than encourage them, what does our ratification mean?’ [Emphasis added.]

[228] The Senate Committee then returned to this issue in November 2005 and recommended that “the federal government provide adequate funding for effective implementation of Canada’s international human rights treaties”: Standing Committee on Human Rights, Who’s in charge here? Effective implementation of Canada’s international obligations with respect to the rights of children (Ottawa: Senate, 2005), at p. 6.

[229] The Canadian government’s own views expressed here constitute another change in circumstance that may contribute to how jurists would understand the legal question posed by the Grassroots Applicants, and which may fundamentally change the parameters of the debate.

[230] Apart from relevance to the impact of international law on these issues, these views support the argument that there has been a new and emerging political awareness of the importance of diversity and minority rights in education and that the current legislative scheme, which Ontario has the power to change, is not reflective of these developments.

Conclusion re International Law

[231] Thus, there is an arguable case that developments in international law (in particular the principle of conformity) raise new issues which are relevant to the interpretation of and interplay between s. 93, as amended, of the Constitution and s. 29 of the Charter, as well as the interpretation and application of ss. 2(a) and 15 if the Grassroots Applicants are permitted to move beyond the threshold issue.

IX. Horizontal Stare Decisis: Cooper, Havercroft & Landau

[232] In Cooper v. Ontario (Attorney General) (2009), 2009 92113 (ON SCDC), 99 O.R. (3d) 25 (Div. Ct.), the Divisional Court applied Adler and found that Ontario’s failure to extend special education benefits to children attending private, faith-based schools was not a violation of ss. 2(a) or 15 of the Charter. It held that the applicants’ argument was “foreclosed” by Adler: Cooper, at para. 6.

[233] While relevant, the arguments made by the Grassroots Applicants here were not considered in Cooper. Indeed, there could not have been a request to reconsider Adler on the basis of Bedford or Carter, since those cases were not decided until after Cooper. Therefore, I do not consider this case to be a binding precedent that I should follow.

[234] In Landau, the applicant sought to eliminate the public funding for Catholic separate high schools in Ontario and to reduce funding for Catholic primary grades. There are a number of reasons why this is not a precedent that I should follow. First, the applicant sought to affect the funding of Roman Catholic schools, which is not the case before me. Second, while the applicant in Landau did raise the ICESCR and the decision in Waldman, Corbett J. dismissed the application on the basis that the applicant did not have standing. Therefore, his comments on the relevant issues were made in obiter. As well, he did not have the benefit of the Supreme Court’s decision in Quebec v. 9167 which clarified the uses of international law several years later.

[235] Even on those facts, Corbett J. was clear that he was not deciding whether a case like the one before him should be permitted to proceed to a full hearing based upon a full factual record if an applicant had standing: Landau, at paras. 25, 46 and 47.

[236] Havercroft involved an application by two individuals who argued that the funding of Roman Catholic schools, as well as the funding of students who attend such schools and who are not Catholic, violated ss. 2(a) and 15 of the Charter.

[237] The first applicant was a teacher who was not Roman Catholic and therefore could not be employed in the separate school system. She argued that this decreased the number of public schools and therefore the teaching opportunities available to her. The second applicant was a parent of two children who wanted his children educated in a French-language school. The nearest public school was too far, and he argued that if the Ontario government did not fund Roman Catholic schools, this would result in greater funds available to the public school system, resulting in the government having enough money to open a French-language school near his family.

[238] This is not a decision I should follow for the following reasons.

[239] The applicants did not make and so the court did not consider the variety of changed circumstances raised by the Grassroots Applicants here. For example, the decision makes no reference to changes in international law, the principle of conformity or the principle of state neutrality. Rather, the “fundamental changes asserted” by the applicant were not changes at all but instead new evidence about what was actually happening at the time of Confederation. The applicants filed an affidavit from a history professor “to try to set the historical record straight”: at para. 47.

[240] I agree fully with Myers J.’s conclusion that “[c]hanging views of history then are not a basis to depart from a binding precedent.” This is the exact type of argument that the Supreme Court said could not satisfy the Bedford and Carter test: Comeau, at paras. 31-34. It is not the kind of argument raised here.

[241] Furthermore, as in Landau, the applicants in Havercroft sought to affect the funding received by Roman Catholic schools, which is not the issue before me. Indeed, the wording of s. 93 is so clear with respect to the constitutional protection of such funding, I cannot conceive of changes in circumstance which would undermine Roman Catholic funding in any event; a constitutional amendment would be required.

X. The relevance of the fact that appellate courts, including the Supreme Court, have made reference to Adler over the last thirty years

[242] The Moving Parties make the broad overall argument that many courts have followed or referenced Adler since 1996, including the Supreme Court; thus, they argue that Adler has been reaffirmed continually. I note, however, that none of the cases they cite considered the arguments made by the Grassroots Applicants here in the context of the specific challenge raised or took into account the variety of changes that the Grassroots Applicants allege here.[^9] Therefore, while perhaps relevant, they are not binding precedents for the issue of whether or not the Grassroots Applicants have a reasonable chance of meeting the test in Bedford and Carter.

• Conclusion re Issue 1: Is it plain and obvious that the Grassroots Applicants have no reasonable prospect of satisfying the test in Bedford and Carter?

[243] I am satisfied that it is not plain and obvious that there is no reasonable prospect that the Grassroots Applicants will be able to meet the test in Bedford and Carter with respect to these issues.

[244] I base this not on one single argument made by the Grassroots Applicants, but the overall combined impact of all of the following pleaded changes in circumstances (social, political and legislative) and legal developments:

• Growing threats to the long-term survival of the Jewish community;

• Developments in the principle of state neutrality;

• The growing recognition of minority rights and diversity;

• The amendment in s. 93A whereby Quebec and the federal government arguably walked away from the constitutional compromise;

• The fact that Ontario could, if it wanted, provide funding to other faith-based schools;

• The Vriend decision and the argument that this is a situation where a positive obligation to legislate should exist;

• Significant developments in Canadian law as to the proper uses of international law, including the presumption of conformity, which was neither considered in Adler nor fully established until after Adler;

• Various treaties which engage the principle of non-discrimination in education to which the principle of conformity applies; and

• The federal government’s own views that Ontario’s failure to fund religious education in Ontario while funding Roman Catholic education violates international treaties.

[245] The changes and arguments raised are of the same scope as those raised in Bedford and Carter. They involve legal doctrines that have evolved since Adler as well as changes in the “matrix of legislative and social facts”: Carter, at para. 46; Bedford, at para. 17.

[246] There is a reasonable argument to be made that all these changes fundamentally shift how jurists would understand the following legal questions:

• The threshold issue: Whether s. 93 of the Constitution and s. 29 of the Charter should be interpreted so as to immunize government action from Charter scrutiny in light of treaty obligations to which the presumption of conformity applies, the duty of state neutrality, and the amendment in s. 93A;

• Religious freedoms: Whether the failure to fund other faith-based schools violates the Grassroots Applicants’ freedom of religion in light of the principle of state neutrality, increased existential threats to the Jewish community, increased emphasis on diversity and minority rights, and Vriend;

• Equality rights: Whether the failure to fund other faith-based schools violates the Grassroots Applicants’ equality rights in light of international treaties which engage the principle of non-discrimination in education and the principle of conformity, as well as other persuasive sources of international law. Here, state neutrality and Vriend may also be relevant; and

• Section 1: If there is a basis to revisit the threshold issue and the scope of the Charter rights, then there is also a basis to revisit the s. 1 analysis of the application judge adopted in Adler (ONCA), if required. This is because the proportionality analysis takes into account the degree of impairment of the right in question compared to the objective in question: Mouvement, at para. 90. The degree of impairment cannot be determined without consideration of the scope of the right in question. As well, because there is now an additional 30 years of data, the evidence regarding s. 1 will be much richer.

Issue 2: Have the Applicants demonstrated a reasonable case as against Canada?

[247] For the reasons that follow, there is no reasonable cause of action raised against Canada.

[248] I agree with Canada’s argument that the making of laws in relation to education is a matter that falls exclusively to the provinces and that the statutory scheme challenged is a provincial statute.

[249] Canada has undertaken no action or law with respect to the funding of Roman Catholic schools, or any other religious schools in Ontario.

[250] While Canada’s international obligations may be of assistance in interpreting s. 93 of the Constitution, as amended, and s. 29 of the Charter, and in considering whether the Grassroots Applicants have a reasonable prospect of meeting the Bedford and Carter test, Canada’s international obligations cannot be enforced upon it domestically through this proceeding.

[251] International treaties that have not been incorporated into Canadian law are not directly enforceable in Canadian courts: see Capital Cities Comm. v. C.R.T.C., 1977 12 (SCC), [1978] 2 S.C.R. 141, at pp. 172-173; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 69.

[252] I agree that the manner in which Canada decides to implement its international treaty obligations is a matter for Parliament, and not for the courts to decide. As stated by the Supreme Court of Canada, barring a domestic statutory provision, “the task of dealing with international treaty obligations is for the political authorities, and is performed by the Ministers and departments in the course of fulfilling their appropriate mandates”: McVey v. United States of America, 1992 48 (SCC), [1992] 3 S.C.R. 475, at p. 519.

E. Conclusion

[253] As against Canada, it is plain and obvious that the action has no reasonable prospect of succeeding. However, as against Ontario it is not plain and obvious that the Application is bound to fail.

[254] I reiterate that the Grassroots Applicants’ success does not require any revisitation of Reference Re Bill 30, and based upon the Application materials before me, arguably poses no threat to Canada’s heritage or the constitutionally-guaranteed funding of Roman Catholic separate schools.

[255] Finally, I am not deciding that the Grassroots Applicants will succeed in their arguments, such that a court who hears them will decide that it is appropriate to revisit the issues decided by Adler.

[256] To use the words of Corbett J. in Landau, I am merely deciding that this is “one of those rare cases where the parties should be permitted to develop a full record” so that an application judge can then determine whether it is appropriate to revisit the issues decided in Adler, as per the Supreme Court’s directions in Bedford and Carter.

[257] This is not to ignore binding precedent, but to follow it.

[258] If the parties cannot agree on costs, the parties may make submissions no longer than 10 pages as follows: a) the Grassroots Applicants within 7 days; and b) the Moving Parties within 7 days thereafter.

Papageorgiou J.

Released: August 21, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

Applicants (Responding Parties)

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF EDUCATION AND THE MINISTER OF HEALTH

Respondent (Moving Party)

• and –

THE ATTORNEY GENERAL OF CANADA

Respondent (Moving Party)

REASONS FOR JUDGMENT

Papageorgiou J.

Released: August 21, 2023

[^1]: See also Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 S.C.R. 477, at para. 26, in this regard.

[^2]: Section 93 provides:

93 In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:

1. Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;

2. All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada [now Ontario] on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec;

3. Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education;

4. In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

[^3]: See for example, the dissenting opinions of McLachlin and L’Heureux-Dubé JJ. in Rodriguez, which were picked up in the majority decision in Carter. See also Laskin J.’s dissenting opinion in Murdoch v. Murdoch, 1973 193 (SCC), [1975] 1 S.C.R. 423, which became the majority decision in Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436, and was later adopted again in Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, See also La Forest J.’s dissenting opinion in Canadian National Railway Co. v. Norsk Pacific Steamship Co., 1992 105 (SCC), [1992] 1 S.C.R. 1021, on pure economic loss which was then applied in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85, and Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 307 (SCC), [1997] 3 S.C.R. 1210. See also de Grandpre J.’s dissenting judgment in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 S.C.R. 369 regarding the test for reasonable apprehension of bias which was adopted by the majority in R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484.

[^4]: I note that in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 64, the Supreme Court provided an explanation of religious beliefs which was also consistent with L’Heureux-Dubé J.’s dissent in Adler. It wrote that “an essential ingredient of the vitality of a religious community is the ability of its members to pass on their beliefs to their children, whether through instruction in the home or participation in communal institutions.”

[^5]: Section 43 states:

An amendment to the Constitution of Canada in relation to any province that applies to one or more, but not all, provinces…may be made by…Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

[^6]: Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470 (“OECTA”): This case did not involve a challenge by non-Catholic religious groups to the system of funding in Ontario, but rather was a challenge by separate school supporters and public-school supporters to changes to the Education Quality Improvement Act, 1997, S.O. 1997, c. 31 (the “EQIA”), which amended the Education Act to create a new governance and funding model for both public and separate (denominational) boards. The Supreme Court stated that the issue before it was whether the EQIA interfered with a right or privilege attached to denominational schools: at para. 39. As such, the case was about whether the protections afforded to denominational schools in s. 93 had been impacted. The case brought by the Grassroots Applicants here is not about this issue. The Supreme Court did reference the Quebec and Newfoundland Amendments in the opening paragraphs as part of the background summary of s. 93, but it does not appear that any argument was made or that the Court considered whether such amendments affected the precise issue which the Grassroots Applicants have raised here; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678: This case involved the issue of whether British Columbia’s system of funding penalized the official language minority. The Supreme Court made brief reference to s. 93A in a footnote for the statement at para. 65 that “in Canada, laws relating to education are made at the provincial level as a result of s. 93 of the Constitution Act, 1867.” There was no substantive analysis of s. 93A; S.L. v. Commission scolaire: This case involved a challenge to an Ethics and Religious Culture Program that was mandatory in Quebec schools and which replaced Catholic and Protestant programs of religious and moral instruction. Two parents’ requests that their children be exempted were denied. The parents turned to the courts to seek a declaration that this program infringed their children’s right to freedom of conscience and religion. The factual circumstances the Supreme Court analyzed were different and there was no argument made about s. 93A and whether it had changed the landscape in terms of the way in which Ontario currently funds education; Potter c. Québec (Procureur général), /fr/qc/qccs/doc/1998/1998canlii9495/1998canlii9495.html, [1999] R.J.Q. 165 (C.S.), aff’d 2001 20663 (QC CA), [2001] R.J.Q. 2823 (C.A.), leave to appeal refused, 305 N.R 395: This case also did not involve any consideration of the issues raised by the Grassroots Applicants. Rather, after the Quebec Amendment, Potter brought a proceeding alleging that the amendment to s. 93A could only be implemented with the agreement of either all six provinces to which it directly or indirectly applied, the founding provinces, or at least Ontario. The Court rejected this argument essentially because s. 43 expressly permitted this amendment by way of unilateral provincial amendment together with agreement of both Houses of Parliament: at paras. 47-48. The Court did not address whether the amendment in s. 93A affected the overall interpretation of s. 93; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282: This case involved an allegation that the Yukon government had failed to sufficiently provide for the provision of minority language education rights contrary to s. 23 of the Charter. Not only is the issue not the same issue here, the only reference to s. 93A was in a footnote where the Supreme Court noted that s. 93 “applies directly to Ontario” and while it applies to Quebec, ss. 93(1)-(4) do not because of the Quebec Amendment: at footnote 2; Hogan v. Newfoundland (Attorney General), 2000 NFCA 12, 183 D.L.R. (4th) 225, leave to appeal refused, [2000] S.C.C.A. No. 191: This case involved a challenge to the Newfoundland Amendment. The Court of Appeal adopted the Supreme Court’s reasoning in Adler, but in doing so confirmed that the Supreme Court had not grappled with any issue related to a constitutional amendment: at paras. 89-90.

[^7]: See for example Ktunaxa Nation, v. British Columbia (Forests, Lands, and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, at para. 65, where the Supreme Court states that it adopted Dickson C.J.’s views in Reference Re Public Service Employee regarding the presumption of conformity in cases that only date back as far as 2007.

[^8]: The ICCPR provides that individuals living in states who are parties can bring a claim to the United Nations Human Rights Committee.

[^9]: Saskatchewan v. Good Spirit Division No. 204, 2020 SKCA 34, 445 D.L.R. (4th) 179, at paras. 8-9, 46, 49 and 61, was primarily resolved on the basis that the applicant did not have standing. The Saskatchewan Court of Appeal’s additional analysis was obiter. In any event the issue in this case was a challenge raised by parents against the government related to the opening of a new Catholic school. The applicants argued that the funding of non-Catholic students to attend Catholic schools breached ss. 2(a) and 15. As such, the issue related to a significantly different issue as the applicants were seeking to affect funding granted to denominational schools which was constitutionally protected by s. 93. The Court of Appeal found that s. 93 and the protection afforded to separate schools is not discriminatory because the rights under s. 93 were “as much a part of the Constitution of Canada as is the Charter…. This does not mean that separate schools are Charter-free zones, but it does mean that funding them is not inherently discriminatory” (emphasis in original): at para. 9; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238, involved a challenge to the Charter of the French language, R.S.Q., c. C‑11, which limited the individuals who could access English language instruction in Quebec to certain classes of people. The applicants sought an order that all children in Quebec have access to English language education. The Supreme Court referenced Adler with approval and compared the constitutionally-entrenched rights of religious minorities to the constitutionally-entrenched language rights set out in s. 23 of the Constitution. Notably, the precise issue was different and the applicants in that case did not seek a revisitation of Adler on the basis of Bedford and Carter. Indeed, it would not have been possible since Bedford and Carter were decided many years later; Zutcher v. Ontario (Education), 2021 HRTO 49, is an administrative tribunal decision which is not binding on this court; Weatherley v. Canada (Attorney General), 2021 FCA 158, did not involve allegations of discrimination in education, but allegations related to sexual discrimination related to the way in which survivor benefits are dealt with under s. 65(6) of the Canada Pension Plan, R.S.C., 1985, c. C-8. While the case did reference Adler, Bal and Gosselin, at para. 65, it was to assert the principle that the Charter does not displace or amend the exclusive assignment of legislative power in the Constitution, and it did not address international law; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 505 (Eng.) (C.A.), did not involve education rights but rather language rights, in particular whether a health services commission’s restructuring directions would destroy the ability of Ontario’s sole francophone hospital to provide truly francophone medical services. In rejecting an appeal from a Divisional Court decision setting aside these directions, the Court of Appeal references both Reference Re Bill 30 and Adler, at para. 101, and concludes that where special rights are granted to special groups in the Constitution, those rights cannot be expanded or diminished using the Charter. The issues in that case were not the same as those herein, nor does the court reference the international law arguments made by the Grassroots Applicants here.