Appeal court to hear Catholic school funding case
REGINA A case that pits the provincial government and a Catholic school division against a public school division is set to be heard by the province’s highest court this week.
In April 2017, Queen’s Bench Justice Donald Layh issued a lengthy decision in a long-running case, finding non-catholic students should not be funded to attend Catholic schools in the province. He later ordered just over $960,000 be paid to Good Spirit School Division in legal fees and costs springing from the legal battle.
WHAT LED TO THIS POINT?
The case concerns St. Theodore Roman Catholic School, an elementary school in the village of Theodore, located 40 kilometres northwest of Yorkton. The school — known simply as Theodore School prior to 2003 when it was still within the public school division — was slated for closure.
As separate schools are protected under the Constitution, a group of Catholic community members asked the government to form Theodore Roman Catholic School Division, now part of Christ the Teacher.
That done, the school remained open as a Catholic school — even though approximately two-thirds of its students in 2003 were not Catholic. In the years that followed, the highest percentage of Catholic students attending the school was 39 per cent.
The public school division filed a complaint, first bringing the case before the court in 2005.
Once the trial was finally heard years later, Layh determined the Constitution does not allow for provincial funding of non-minority faith students within otherwise-funded separate schools.
“Section 17(2) of the Saskatchewan Act, which provides constitutional protection against discrimination in the distribution of monies payable to any class of school, only protects separate schools to the extent they admit students of the minority faith,” the judge wrote.
The decision adds the province is violating the Charter of Rights and Freedoms if funding non-minority faith students in separate schools as it has a duty of religious neutrality and an obligation to uphold equality rights under the Charter.
The decision — which was to become effective on government funding as of June 2018 — stood to affect far more than just the students attending the Theodore school. It would affect approximately 10,000 students, many attending schools in Saskatoon and Regina — about one-quarter of students attending Catholic schools.
GOVERNMENT, CATHOLIC SCHOOLS’ REACTION
A notice of appeal was filed by the province and the Saskatchewan Catholic School Boards Association the month after Layh’s decision.
But the government went a step further, invoking the notwithstanding clause to override Layh’s decision in relation to the Charter issues.
“We may agree with the court on a legal basis, but from a practical basis or from a Saskatchewan basis, that’s why the notwithstanding clause is in the Charter,” then-education minister Don Morgan said in May of 2017. “We would use the notwithstanding clause on an ongoing basis to ensure that those choices remained.”
The notwithstanding clause, if used, expires every five years and requires renewal — something the government said it planned on doing if it lost the legal battle.
Then-premier Brad Wall referred to the clause as a “proactive way” of protecting school choice in the province “notwithstanding what happens in the court process.”
“We support school choice including public, separate and faith-based schools,” Wall said in a news release in May 2017. “We will defend school choice for students and parents. By invoking the notwithstanding clause, we are protecting the rights of parents and students to choose the schools that work best for their families, regardless of their religious faith.”
The Supreme Court of Canada can overturn Saskatchewan’s use of the clause, because a province can only use it to strike down portions of the Charter over which it has authority.
WHAT HAPPENS NOW?
The case is set to be heard over two days at the Saskatchewan Court of Appeal.
Five judges — up from the usual three — will sit on the panel, and they will likely reserve decision at the conclusion of arguments. The case was originally set to be heard over three days, but the parties involved determined two was sufficient.
In addition to the three parties directly involved, five — from Alberta and Ontario — have been granted intervener status in the case. Representatives are expected to be present from the Alberta Catholic School Trustees’ Association (ACSTA), the Public School Boards’ Association of Alberta (PSBAA), the Ontario Catholic School Trustees’ Association (OCSTA), the Ontario English Catholic Teachers’ Association (OECTA) and the Association franco-ontarienne des conseils scolaires catholiques (AFOCSC).
In its request for intervener status — granted in December — OECTA argued it has a “genuine and significant interest in the issues raised in these proceedings, as the Court’s ruling could have significant implications on the public funding of Catholic schools in Ontario.”
“This, in turn, has the potential to affect the constitutional rights of thousands of Ontario students, parents and teachers — both Catholic and non-catholic alike,” OECTA’S notice of motion read.
OECTA noted Ontario and Saskatchewan share similar public funding regimes and “parallel constitutional provisions for education.”
ACSTA shares a similar concern, adding it is even more closely related to Saskatchewan.
According to court documents, the Catholic interveners’ intend to argue the judge didn’t address crucial questions and erred by not finding provincial funding of non-catholic students in Catholic schools is protected under the Constitution and does not contravene the Charter. Referencing a Supreme Court decision, AFOCSC argues “admission and funding of non-members of the minority can further the purpose of minority education guarantees.”
We would use the notwithstanding clause on an ongoing basis to ensure that those choices remained.
Meanwhile, PSBAA argues the appellants are looking for a “rehearing” of the case before the Court of Appeal — something typically outside the court’s standard of review. PSBAA says the court’s role is to consider questions of law, not the facts of a case — unless faced with a “palpable and overriding error.” Such an error is not present here, PSBAA argues.
Whatever the province’s highest court rules, there is an option for the affected parties to seek an appeal of the case at the Supreme Court of Canada.