Costs by all parties in Theodore case could hit $5M: province
Government estimates total costs by all parties in Theodore case at $5 million
Legal fees associated with a controversial court ruling on Catholic student funding in Saskatchewan have surpassed $4.3 million and are expected to climb further as the ruling is appealed at the provincial level and likely makes its way to the Supreme Court of Canada.
The case concerns St. Theodore Roman Catholic School, the Catholic elementary school in Theodore, 40 kilometres northwest of Yorkton. Prior to 2003, it was a public school known as Theodore School.
Separate schools have protection under the Constitution, so when the school was on the closure list by the pre-amalgamation Yorkdale School Division, a minority group of Catholics in the community petitioned the government to form the Theodore Roman Catholic School Division, which is now part of the Christ the Teacher division.
The new division purchased the school building and opened St. Theodore School. In 2003, 13 of its 42 students were Catholic — 31 per cent. In the years since, the highest was 39 per cent.
The trial surrounding the issue wrapped in 2016 and the judge’s 242-page ruling was released in April, but the process has been unfolding for more than a decade. In simplest terms, Justice Donald Layh’s ruling found the province is violating the Charter of Rights and Freedoms by funding non-minority faith students in Catholic schools.
So far, Saskatchewan’s 15 public school divisions have paid about $3 million and its eight Catholic divisions have spent about $1.357 million on the case since 2004 and 2005; the cost is split between divisions based on student population.
Good Spirit has served as the public divisions’ representative, and Christ the Teacher has represented the Catholic divisions.
Larry Huber, executive director of Public Schools of Saskatchewan, said the spending on the proceedings was necessary because public education is critical and the case will have wide-reaching effects on education in Saskatchewan and across Canada.
“We’ve always felt it was an important matter,” he said.
“You just have to look at Justice Layh’s decision … he really found that the government — for funding non-Catholics in Catholic schools — he found that was unconstitutional and that it violated the duty of religious neutrality that provinces and states have in Canada and it discriminated against other religions.”
His organization feels “that this whole matter should be of concern to the citizens of Saskatchewan, specifically the supporters of public education, because funds that should have been going to public schools, didn’t,” he added.
Huber said the public divisions made efforts to ensure the issue stayed out of court, noting costs associated with the issue would have been “significantly less” if the then-NDP government had followed through with a constitutional reference on the issue in May 2005.
Background information provided by Huber said the reference would have clarified and confirmed “the constitutional, legal and financial responsibilities of government” regarding the definition of a minority faith school and the registering and funding of nonminority faith students in minority faith schools.
The reference was cancelled in June 2005, and attempts by the public divisions to have it reexamined in 2008 after the Saskatchewan Party government was elected were unsuccessful. Between 2008 to 2011, mediation efforts took place between the public and Catholic sections, the Saskatchewan School Boards Association and the Government of Saskatchewan, but ended without resolution.
Although a statement from the provincial government indicated a “comprehensive summary of expenses incurred by the divisions to litigate the Theodore court case has not been tabulated,” the province estimates total costs by all parties have reached $5 million.
Catholic School Boards Association executive director Ken Loehndorf said the Catholic section, as the defendant, feels it had no choice but to defend itself through litigation.
“It would be safe to say that the eight Catholic boards associated with our association were disappointed that they would have to spend this kind of dollars with this court case,” he said. “They recognized that this is money that can well be spent on kids in classrooms, but at the end of the day, there’s simply no choice but to defend the constitutional entitlement of Catholic education in the province.”
The Catholic association has now started a fundraising campaign in an attempt to raise $250,000 to ensure the appeal at the provincial level and a potential appeal at the federal level don’t use provincial funds earmarked for students.
“We are, as a group of eight Catholic boards, we’re very concerned about ensuring the constitutional entitlement of Catholic education in this province remains and that Catholic education is in a position to continue to thrive,” Loehndorf said.
In a prepared statement, the Ministry of Education indicated it has requested that education funding “be directed toward the classroom and not the courtroom,” noting the government doesn’t expect any additional costs from the appeal, besides salary costs for employees — like lawyers and administrative staff — working on the case.
“Boards of Education across this province continue to be treated fairly and equitably and the Government of Saskatchewan is providing no additional funding to the Boards of Education, public or Catholic, as it pertains to this litigation,” the statement added.
At the end of the day, there’s simply no choice but to defend the constitutional entitlement of Catholic education in the province.