An Ontario judge has thrown out a case that challenged funding for Catholic schools. Photo by Michael Swan

Ontario court sides with Catholic schools over public funding challenge

  • January 12, 2023

The Ontario Superior Court of Justice has tossed out an attempted Charter challenge to publicly funded Catholic schools in Ontario.

“It is plain and obvious that this application under the Canadian Charter of Rights and Freedoms cannot succeed,” Justice Fred Meyers wrote, putting a stop to the Hovercroft v. Ontario appeal, which asked the court to rule Catholic school funding a violation of equality rights guaranteed in the Charter of Rights and Freedoms.

Meyers’ Dec. 28 decision won’t be appealed, said the OPEN (One Public Education Now) nonprofit pressure group that financed the suit.

“Our lawyers thought we had grounds for appeal, but we were not confident we could raise the money for the appeal, and for further legal proceedings if we won the appeal,” the organization said on its website. 

OPEN is on the hook for $10,000 in costs awarded by the court, plus its own lawyers’ fees. 

The suit was brought last year in the name of Adrienne Hovercroft, a non-Catholic teacher who claimed discrimination because Catholic boards wouldn’t hire her, and James Sutton, a non-Catholic francophone parent who claimed it was unfair his children had to travel about two hours a day by bus to reach the closest non-Catholic French language school.

Myers ruled that Ontario Catholic education rights are entrenched in the Constitution, by way of Section 93 of the British North America Act, and that the Charter cannot be used to overthrow another part of the Constitution. The constitutionality of minority education rights was settled in a 1987 reference decision by the Supreme Court of Canada.

“The Supreme Court of Canada advised the government that the proposed law was constitutionally permissible. It is principally this holding that stands in the way of the applicants’ lawsuit today,” Meyers wrote. “The issues raised in this application are not new. There has been no change in circumstances that fundamentally shifts the parameters of the legal debate.”

Just winning court cases, however, is not enough to insulate publicly funded Catholic education from possible defunding, Ontario Catholic School Trustees’ Association president Pat Daly told The Catholic Register. Both Quebec and Newfoundland deleted minority education rights by direct appeal to Parliament in Ottawa. Section 93 is one part of the Constitution that can be changed without involving other provinces.

“We never, ever take for granted support or the need to celebrate the amazing things that are happening in Catholic schools across Ontario every day,” Daly said. “We have very strong relationships with the provincial parties in Ontario, the current government. We work hard at that.”

While some polls have shown popular support for merging school systems (a DART & Maru/Blue Voice Canada Poll found that 71 per cent in Ontario support the idea of merging the Catholic and public school systems), Catholics can make a strong argument in favour of the diversity and parental choice offered by separate schools, Cardus think tank education program director David Hunt said.

“There is good evidence that whether we’re looking at civic outcomes and civic engagement — mitigating things like political polarization — or whether we’re looking at hard metrics — reading, writing and arithmetic — when students are in a school with a good fit, especially when the culture and the world view of that school matches what it is at home,  you do see statistically significant improvements in all those key metrics,” said the education expert.

Cardus’ own polling through the Angus Reid Institute shows broader and more nuanced support for publicly funded religious school systems, Hunt said. While only one-third of respondents across the country support full funding on the Ontario model, partial funding as in British Columbia, Alberta, Saskatchewan, Manitoba and Quebec gets a thumbs up from 61 per cent.

But Hunt isn’t relying on polling majorities to defend minority rights. Funding separate schools is a matter of principle, he said.

“If we’re going to have religious freedom, that requires educational freedom to preserve and pass on the faith. If we believe in religious freedom here in Canada, that religious freedom needs to extend through all legitimate faith communities,” he said.

Hunt argues that the minority education rights of Catholics should be extended to Muslims, Jews, Evangelicals and others wherever numbers warrant. Hunt and Cardus produced an economic analysis that showed such an expansion of religious education rights would cost the Ontario treasury a 0.3- to 0.8-per-cent increase in the provincial budget.

Fully funded Catholic, Jewish, Muslim and Evangelical schools would improve educational outcomes, Hunt argues. It would also mean more families invested in protecting faith-based public education.

“The reason we fund any schools is because the education of my neighbour’s kids or the lack thereof is going to have a profound impact on, not just that immediate family, but the entire community. That’s why we fund education, because it is a social good that impacts all of us,” he said. 

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