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Funding for Non-Catholic Students Attending a Catholic School

24-Apr-17

By Teresa Haykowsky, David Risling and Tom Ross

On April 20, 2017, Justice Donald Layh of the Saskatchewan Court of Queen’s Bench issued a 242 page decision (“Decision”) finding that St. Theodore Roman Catholic School Division (St. Theodore) does not have a constitutional right to admit and receive funding from Saskatchewan for non-Catholic students. The Court also concluded that Saskatchewan’s funding of non-Catholic students attending Catholic schools is in violation of its duty of religious neutrality and equality under the Charter.

Factual Backdrop
In reaction to the 2003 school closure of the public community school in Theodore, Saskatchewan, and after several unsuccessful efforts to keep their school open, a minority group of Roman Catholic parents formed St. Theodore, which opened 1 school with 42 students, 13 of whom were Catholic. (When the trial was held, there were 24 students enrolled at the school, 9 of whom were Catholic.)
During the 11 weeks of evidence put forward by the parties, the plaintiff’s evidence highlighted the net funding loss occasioned by the two public schools affected by the formation of St. Theodore.

Historical Constitutional Documents
In reaching its judgement, the Court had to interpret the applicable Constitutional documents including the 1867 BNA Act, the 1905 Saskatchewan Act, the 1901 NWT School Ordinance and the 1901 NWT School Assessment Ordinance (“the Relevant Constitutional Documents”). The 1867 historical constitutional compromise within Canada’s Constitution protects the constitutional rights of the minority Protestant and Catholic mill rate payers. Similar protections were constitutionally provided in 1905 in Saskatchewan and Alberta when these provinces were carved out of the NWT as new provinces. Alberta’s legislation on this issue mirrors Saskatchewan’s.

Arguments at Trial

  1. Argument of the plaintiff public school division
    The plaintiff public school board argued that the 1901 Ordinances do not provide St. Theodore the right to admit and receive commensurate funding for non-Catholic students, and if such a right existed under the 1901 Ordinances it was neither a denominational right nor a non-denominational right of Catholic school jurisdictions.
     
  2. Argument of the defendant Catholic school division
    St. Theodore argued that the right to admit and fund non-Catholic students was protected as a denominational right under the 1901 Ordinances. St. Theodore also argued that the funding of non-Catholic students is protected by the Constitution because it is necessary for its operation, allowing it to provide equivalent educational opportunity to its students.

Court Decision
After interpreting the Relevant Constitutional Documents, the Court concluded that Catholic separate schools do not have the constitutional right to admit and receive funding for non-Catholic students.
The Court Decision is stayed until June 30, 2018. This means the Decision will not be implemented until then as the Court appreciated that the Decision would cause significant repercussions in Saskatchewan (i.e. without funding for non-minority faith students in separate schools, enrolment in Saskatchewan’s 119 Catholic schools and 1 Protestant school would be dramatically affected).

Anticipated Questions if the Matter is Appealed
We anticipate the following questions will be included for consideration on Appeal:

  • The scope of the constitutional rights of a Catholic school jurisdiction to attract, enrol, and receive government funding for non-Catholic students.
  • Whether the Court properly interpreted the Relevant Constitutional Documents.
  • Whether and how the Charter applies to the interpretation of the Relevant Constitutional Documents.
  • What, if any, consideration should be given to increasingly secular and diverse 21st century societal attitudes in the interpretation of historical constitutional documents.

This decision is not binding in Alberta. At this time it is "business as usual" for Alberta school jurisdictions, but given the identical legislative framework in Saskatchewan and Alberta, there is little doubt that this Decision will have significance in Alberta as it is considered by higher courts. The St. Theodore Decision creates uncertainty and will lead to future funding challenges.

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