Supreme court won't hear Theodore funding case
Long-running dispute ends over support for non-catholic kids in Catholic schools
The Supreme Court of Canada won't hear an appeal of a Saskatchewan court ruling that upheld public funding for non-catholic students attending Catholic schools, putting an end to a long legal battle between the province's public and separate boards.
In a decision published on Thursday, the nation's highest court rejected Good Spirit School Division's application for leave to appeal in what's come to be known as the Theodore case.
That spares the provincial government from using the constitution's notwithstanding clause to protect the funding, as it had promised to do.
Tom Fortosky, executive director of the Saskatchewan Catholic School Boards Association, said Catholic educators are “relieved and reassured by this decision.”
“We believe it can be considered a victory for both religious and parental rights and freedoms,” he said in a statement.
Premier Scott Moe welcomed the Supreme Court's decision to dismiss the appeal for providing “certainty for thousands of families in our province.”
But Norm Dray, executive director of Public Schools of Saskatchewan, was left surprised and disappointed.
“I'm not having the greatest day today,” he said. “We're really deeply disappointed by the decision. We thought that we had a good chance of being heard by the Supreme Court.”
The dispute runs back almost two decades. It stems from a 2003 decision to shutter a public school in the village of Theodore, where residents formed a separate school division to buy back the building and operate it as a Catholic school. Yet fewer than one-third of the students there were Catholic.
What's now Good Spirit School Division challenged the move in court. But far more was at stake than the fate of a single school, as public divisions made arguments that would tear apart the funding framework for Catholic education across the province.
In 2017, a lower court found that the constitution only protects funding for Catholic schools “to the extent they admit students of the minority faith.” Indeed, Justice Donald Layh found that paying Catholic schools for non-catholic students violates “the state's duty of religious neutrality.”
Both the government and Catholic divisions defended the current system, saying it gives parents school choice.
Last year, the Saskatchewan Court of Appeal unanimously struck down Layh's decision, saying Good Spirit wasn't in a position to bring the case at all. It found the existing funding system was a valid exercise of constitutionally-protected powers, and no Charter violation in the way the province doles out the money.
As is customary, the Supreme Court did not provide reasons for dismissing the application to hear the appeal.
Fortosky noted that “a significant amount of time and money” was spent on the case. He thanked donors for funding the costs so Catholic boards could defend their funding without spending money intended for the classrooms.
Dray also acknowledged that public schools had sunk resources into the case. But he felt the matter was so important for education in Saskatchewan that it needed to be heard.
“We acknowledge the constitutional right of Catholic schools to exist, but we don't think there should be competing systems for government money,” he said.
“We think that Catholic schools should serve Catholic students, and the rest of the students should be well served in public schools.”
But Moe said the provincial government still “strongly supports parent and student choice in education, including Saskatchewan's public, separate and faith-based schools.”