Government, Catholic board ordered to pay $960,000
Judge says defendants should cover some of public section’s legal fees and expenses
The Government of Saskatchewan and a school board representing the province’s Catholic schools have been ordered to pay more than $960,000 in costs associated with a contentious court case around Catholic education in the province, pending an appeal.
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.
“We’re pleased with the decision,” said Norm Dray, executive director of Public Schools of Saskatchewan. “We think that Justice (Donald) Layh has made a logical and reasonable decision given the facts he was presented with.”
Dray said the public section believe Layh’s initial decision was “very solid” as well, noting the group will defend the ruling through the appeal process.
“This is just another step in the process. It’s not the end of the process, it’s just another step in the process,” he said.
Separate schools have protection under the Canadian constitution, so when the Theodore School was on the closure list of 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 trial surrounding the issue concluded 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 the simplest terms, Layh’s ruling found the province is violating the Charter of Rights and Freedoms by funding non-minority faith students in Catholic schools.
The ruling now faces an appeal by the government and the Catholic section, but on Jan. 24, Layh ruled the defendants should cover partial costs associated with legal fees, expert witnesses and other expenses incurred by the public section, represented by Good Spirit School Division, pending the results of the appeal.
In the 41-page ruling, Layh cited numerous factors for awarding costs, including an indication that the provincial government may have prolonged proceedings around the case. He also noted many of the questions around the funding of non-faith students in Catholic schools could have been answered through a constitutional reference, which, if executed, would have clarified the constitutional, legal and financial responsibilities of the government.
The NDP government at the time was set to start the reference, formulating specific questions, but changed its position after the Catholic section of the Saskatchewan School Boards Association said it would not support the reference.
“A constitutional reference would have obviated the need for a Queen’s Bench trial,” Layh wrote in his decision.
The government’s decision to abandon the constitutional reference “had a direct consequence,” Layh wrote. “The need for the Public Section to choose a plaintiff and a defendant to bring forward an action to answer the broad questions proposed” in the original reference.
“Had the constitutional reference proceeded, constitutional answers most assuredly would have been forthcoming without the expense of years of litigation in the Court of Queen’s Bench.”
Layh also said the defendants adopted strategies to block Good Spirit’s ability to raise constitutional questions that the parties were trying to address.
“A government opposing a specific party’s standing to bring forward a constitutional issue might be understandable in certain circumstances,” Layh wrote. “But where the Government, of its own initiative and on record, formulates important questions for constitutional adjudication and then changes its mind and attempts to deny a party access to the court to raise those constitutional questions is, at best, puzzling.”
He also noted the onus was on government to “mount a cogent argument that continued funding of non-minority faith students is justifiable in a free and democratic society,” an argument he said “was largely absent.”
“We’re disappointed in the result, but I can’t say we’re surprised,” said Tom Fortosky, executive director of the Saskatchewan Catholic School Boards Association (SCSBA). “In any litigation, the winners of the trial are awarded the cost. It’s all part of the litigation process.”
Representing Saskatchewan’s Catholic section, Fortosky said lawyers with the SCSBA are reviewing the ruling on costs and are preparing to appeal. He said the SCSBA’s focus is on the initial appeal, because if it succeeds, it’s likely there would be a reversal on which parties would have to cover costs.
In a statement sent to the Saskatoon StarPhoenix in response to the ruling, the Ministry of Justice declined to discuss the case because it is “still open to appeal and as such, still before the Court.”
Layh ruled the costs — which included $810,087 in legal fees, $57,573 in expert fees and $92,416 for all other disbursements — should be covered by both defendants, with the government responsible 70 per cent and Christ The Teacher responsible for 30 per cent, or for costs to be split in a proportion that is mutually agreeable.
Costs outlined in the ruling are not payable until 60 days after the results of the initial appeal have been rendered.
We think that Justice (Donald) Layh has made a logical and reasonable decision given the facts he was presented with.