Court ruling could shake up Alberta Catholic schools

If upheld, a Saskatchewan court decision about funding Catholic education could have profound ramifications for Alberta schools, a constitutional law expert says.

Saskatchewan Catholic schools have no constitutional right to public funding to educate non-Catholic students, Saskatchewan Court of Queen’s Bench Justice Donald Layh ruled Thursday after a 12-year legal battle.

Alberta and Saskatchewan have equivalent laws granting Catholics and Protestants the right to create separate, publicly funded school boards, said University of Alberta associate professor of law Eric Adams.

If the case heads to the Supreme Court of Canada, Alberta’s schools could be in for a shakeup.

“The stakes are enormous in that sense,” Adams said. “In the short term, nothing much will change.”

Alberta, Saskatchewan and Ontario are the only provinces with fully publicly funded Catholic schools.

The case stemmed from a 2003 dispute in the village of Theodore, Sask., where parents fought to keep open a public K-8 school of 42 students, rather than have them bused 17 kilometres to another town. When the public school division closed the school, local families formed a new Catholic school division for the area, which then bought and reopened the school. The majority of students were not Catholic.

At the time, the Saskatchewan education ministry saw the move as a “misuse of the constitutional provisions” for religious education, an internal document said. The public school division then sued the Catholic school division and the Saskatchewan government.

In the complex, 242-page decision, Layh ruled the Saskatchewan government is violating the Charter of Rights and Freedoms by paying for non-Catholic students to attend Catholic schools.

The result, Layh said, is that some provisions of Saskatchewan’s Education Act and accompanying regulations are “of no force and effect.”

The judge gave the government until June 2018 to find a fix.

The Saskatchewan government hasn’t yet decided whether to appeal, Education Minister Don Morgan told a news conference Friday in Saskatoon.

If the decision holds, non-Catholic students in Saskatchewan will have to move to public schools by fall 2018, which could put a major strain on that province’s public system, Morgan said. It could also take a bite out of Catholic school funding.

“If I was a parent, I would have some angst,” he said.

Adams expects the parties to appeal the decision. The Alberta government may seek intervener status, given its stake in the outcome, he said.

“If it’s unconstitutional in Saskatchewan, and that analysis is constitutionally valid, then it’s unconstitutional in Alberta,” Adams said.

The ruling has “no impact on the Alberta education system,” Alberta Education Minister David Eggen said in an email Friday.

“Any student in Alberta can enrol in the school of their choice, provided there is sufficient space and resources,” Eggen said.

An Edmonton Catholic school trustee said at a March board meeting some crowded south Edmonton schools have asked to see

If it’s unconstitutional in Saskatchewan, and that analysis is constitutionally valid, then it’s unconstitutional in Alberta.

students’ baptismal certificates before enrolment.

The Alberta Catholic School Trustees Association’s lawyer is studying the Theodore ruling closely for Alberta implications, association president Adriana LaGrange said. There are subtle legal differences between the two provinces’ definitions of a Catholic student, she said.

She doesn’t know how many students enrolled in Alberta’s 18 Catholic and four francophone districts are non-Catholic, and said the association may need to assemble that data now.

“Historically, Catholic schools have always accepted students that were of other faiths.”

She had hoped the court would rule in favour of her Saskatchewan Catholic colleagues.

The association did not provide any money to its Saskatchewan counterpart to help with legal costs, she said.