the theodore school litigation: overview and status report

M PHERSON LESLIEAC& TYERMAN LLP

LAWYERS

THE THEODORE SCHOOL LITIGATION: OVERVIEW AND

STATUS REPORT

www.mlt.com Regina | Saskatoon | Calgary | Edmonton

LAWYERS

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The Theodore Litigation: The Particular Facts

Theodore litigation relates to the closure of Theodore Public School by York School Division in 2003. Declining enrolment. Quality of Education.

Closure led to the formation of Theodore Roman Catholic School Division, and establishment of Theodore Roman Catholic School. Petition pursuant to The Education Act, 1995.

The Public Boards say the purpose was to save the community school, rather than to establish a school to educate Roman Catholic children. Students previously attended Theodore Public School. Students were neither Roman Catholic nor of Roman Catholic families.

The Public Boards saw this as a misuse of the denominational education provisions of the Constitution and The Education Act, 1995.


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The Theodore Litigation: History

Constitutional Reference Background information re: References. Discussions and Agreement re proposed Reference. Cancellation of proposed Reference.

Mediation Background information re: Mediation. Efforts to find a mediated resolution.

Documentary and Oral Discovery Background information re: Discovery. Status of Discoveries.

Preliminary Applications: Application to Strike/Stay the Action. Application to amend the Statement of Claim. Compelling responses to refused questions.


LAWYERS

The Theodore Litigation: The Issue

What is the scope of the “Confederation compromise”?

What are the limits to the exclusive right of Catholic and Protestant minorities to establish Denominational Schools? Does it extend to the admission and education of non-denominational students, and

to receive public funding for that purpose?

Justice Mills: “At its simplest, this case involves the ability of the Government of Saskatchewan to fund non-denominational students attending a denominational school.”

Public Boards: The size and shape of the separate school system impacts the ability of Public

Boards to access funds and deliver services. Thus, the Theodore case is about protecting the mandate of public boards.

The issues being advanced are consistent with the mandate of Public Boards to promote the values of equality and inclusion.

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McLachlin J. in Adler v. Ontario (1996): “Canada in general and Ontario in particular is a multicultural, multireligious society. A multicultural multireligious society can only work, it is felt, if people of all groups understand and tolerate each other. According to the Shapiro Report (Report of the Commission on Private Schools in Ontario (1985)), submitted in evidence, "the public school context represents ... the most promising potential for realizing a more fully tolerant society". Children of all races and religions learn together and play together. No religion is touted over any other. The goal is to provide a forum for the development of respect for the beliefs and customs of all cultural groups and for their ethical and moral values. The strength of the public secular school system is its diversity -- diversity which its supporters believe will lead to increased understanding and respect for different cultures and beliefs.”

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Does the enrolment and funding of Non-Minority Faith students, in Christ the Teacher RCSSD, infringe the Charter of Rights and Freedoms?

Preliminary Issue: Does the Charter apply at all? Constitutional Protection for Minority Faith Education.

We say, yes it does, in response to both questions.

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The Theory of the Case

Justice Mills: Reproduces the Plaintiff’s theory of the case (at para. 13).

The Charter applies to all laws enacted by Saskatchewan, including in relation to education: S. 32(1) of the Charter: “This Charter applies … to the legislature and government

of each province in respect of all matters within the authority of the legislature of each province”.

In the absence of the denominational education provisions of the Constitution, legislation providing for the establishment and funding of separate schools for one (or two) religious denomination(s) would be contrary to freedom of religion and equality rights under the Charter: Justice Estey in Reference re Bill 30: “It is axiomatic (and many counsel before this

Court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter of Rights.”

Exceptionally, the denominational education provisions permit discrimination, or legislation, that favours the minority.

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S. 93 of the Constitution Act, 1867: In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union.

S. 17of the Saskatchewan Act: Section 93 of the Constitution Act, 1867 shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:

(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.

The exception is not unlimited. It applies only to denominational aspects of separate schools.

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The Supreme Court of Canada in Mahe v. Alberta: “…the phrase "Right or Privilege with respect to Denominational Schools" in s. 93(1) of

the Constitution Act, 1867, means that the section protects powers over denominational aspects of education and those non-denominational aspects which are related to denominational concerns which were enjoyed at the time of Confederation. The phrase does not support the protection of powers enjoyed in respect of non-denominational aspects of education except in so far as is necessary to give effect to denominational concerns.”

Adler v. Ontario (1996); Hall v. Powers (2002).

We say that the ability to admit non-minority faith students, and to get funding for those students is a non-denominational aspect of education. Reference re Education Act (1993):

“The legislature can limit access to dissentient schools without infringing constitutionally protected rights. Accepting children from another denomination is not a right or privilege of a denominational nature. Even if attendance is considered in relation to financing, the admission of children of other denominations was not a necessary factor to the effectiveness of the constitutional guarantees and was not related thereto, in particular since in 1867 the trustees could only impose taxes on parents of the dissentient faith.”

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The purpose of the Denominational Education Provisions – OECTA v. Ontario (2001); Protestant School Board of Greater Montreal v. Quebec (1989).

Thus, the admission of non-denominational students to denominational schools, and the provision of funding for those students, is subject to Charter scrutiny and infringes the right to freedom of religion (of all citizens) and the equality rights (of religious minorities and non-adherents). Freedom of Religion – Imposes a “duty of religious neutrality” on the state, which

means that the state “neither favours not hinders any particular religious belief” and is “barred from enacting private legislation that favours one religion over another” – S.L. v. Commission scolaire des Chenes (2012).

Equality – Infringed whether the legislation in question, draws a distinction between the claimant and another group, if that distinction is discriminatory (i.e. perpetuates prejudice or stereotypes the claimant group).

Theodore Catholic School is not a separate school in that it has a majority, or substantial minority, of non-denominational students.

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Standing Application: Background

Christ the Teacher RCSSD argued that Good Spirit School Division lacks “Standing” to advance the Action.

Standing: Does the Plaintiff have “a sufficient stake in the outcome to invoke the judicial process”?

Christ the Teacher challenged Good Spirit’s Standing, and Good Spirit sought to justify its Standing, on two alternative grounds: Standing on the basis of “Exceptional Prejudice”. Discretionary Public Interest Standing.

Test for Public Interest Standing. Does the Action raise a serious legal question? Does the Plaintiff have a genuine interest in the resolution of the question? Is there another reasonable and effective manner in which the question may be

brought before the Court?


LAWYERS

Public Interest Standing: Justice Mills’ Ruling

Justice Mills recognized Good Spirit’s Standing on the basis of the discretionary Public Interest rule.

Found that a serious legal question had been raised. Good Spirit’s position was supported by the recent affirmation that the state was

under a Duty of Religious Neutrality. “In the context of this case, the provision of funding non-Catholic students to attend

a Catholic school where that denomination’s religious beliefs are advanced as part of its operational structure, could be said to favour that particular religious belief.”

Addressed the remainder of the test for Public Interest Standing.

Found that Good Spirit had a “self-evident”, genuine interest in the resolution of the question. Funding non-Catholic students attending Catholic schools could deny resources to

the Public School Division for the education of all non-denominational students. The collective effect of such funding had brought the constitutional issue into play. The Public School Division represented the collective interest on this issue.

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Found that there was no other reasonable or effective manner in which the question could be brought to Court. A proposed Constitutional Reference had been cancelled. The parents of the non-Catholic students attending Theodore, and the Separate

School Division, benefitted form the establishment of the Separate School Division, and thus had no incentive to bring any Claim to Court.

Action by individual plaintiffs was prohibitively expensive. Therefore: “[t]he Public School Division through its legislated mandate to provide

non-secular education to any student in Saskatchewan wishing to receive it is the only plaintiff as well as the most appropriate plaintiff to have an interest in bringing the action forward”.

Effectively dismisses Christ the Teacher’s position that only the beneficiaries of denominational rights may litigate the scope of those rights.

Concluded that the Separate School Division had failed to show that it was “plain and obvious” that the Public School Division did not have Standing.

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Commented that, if it had been necessary to (positively) determine whether the Public School Division had Standing for the purpose of the preliminary application, he would have found in favour of the Public School Division.

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Application to Amend the Claim

Brought by Good Spirit in order to update the Claim in order to reflect that new Funding Formulae implemented by Saskatchewan to replace the previous Foundation Operating Grant formula.

Advanced and heard at the same time as Christ the Teacher’s Standing Application.

Opposed by Christ the Teacher on the grounds that Good Spirit lacks standing.

Granted in light of the dismissal of Christ the Teacher’s Standing application.

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Proposed Appeal of Justice Mills’ Judgment

The Separate Division applied for leave (permission) to appeal on the grounds that Justice Mills had erred in finding that the Public Division has standing.

Test for leave (permission) to appeal: Is the appeal of sufficient merit to warrant the attention of the Court of Appeal? Is the appeal of sufficient importance to the proceedings, the law, or the

administration of justice, to warrant determination by the Court of Appeal?

Justice Cameron of the Court of Appeal dismissed the proposed appeal. The Separate Division had failed to demonstrate that the proposed appeal was of

sufficient merit and importance to warrant full review by the Court of Appeal. Justice Mills had correctly concluded that it was not “plain and obvious” that the

Public Division did not have standing on a preliminary basis. Clarified that Justice Mills’ decision should be confined to the preliminary

application to strike and should not be interpreted as foreclosing the issue of standing from being raised at trial.

the theodore school litigation: overview and status report

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