Apr 15, 2020

Keywords: Catholic Schools; Public Funding; s. 93 of the Constitution Act, 1867; s. 17(2) of the Saskatchewan Act


There is one publicly funded elementary school in Theodore, Saskatchewan. For budgetary reasons, the public school division decides to close the school and bus the students to a neighbouring town. Parents request a Catholic school take the place of the soon to be closed school instead. The requested Catholic school opens under the jurisdiction of the separate school division. It is funded by the Saskatchewan Government.

The Good Spirit School Division No. 204 brings an action against the Attorney General for Saskatchewan and Christ the Teacher Roman Catholic Separate School Division No. 212. Good Spirit seeks a declaration that,

  • the Catholic School is not a valid separate school; and
  • that the Government’s funding of non-Catholic students to attend Catholic schools breaches s. 2(a) and s. 15 of the Charter and is unconstitutional.

Although the Trial Judge finds the Catholic school is a valid separate school, he also declares that providing funding for non-Catholic students to attend Catholic schools contravenes s. 2(a) and s. 15 of the Charter and is unconstitutional. Further, the Trial Judge determines that the applicable funding legislation cannot be saved under s. 1 of the Charter.

On appeal, a five-judge bench of the Saskatchewan Court of Appeal (with 17 counsel of record appearing, one also called Theodore,* after the name of the village in question) finds three “fundamental errors of law” in the Trial Judge’s reasons. (See paras. 7-9). The appeal is allowed and the Trial Judge’s declarations of constitutional invalidity set aside.


The decision of the Court of Appeal is a significant statement on the constitutionality of religious freedoms in s. 93 of the Constitution Act, 1867 and s. 17(2) of the Saskatchewan Act. Also significant in terms of its size and span at 314 paragraphs and 136 pages long (even the Table of Contents is over three pages, depending on how you print). Doing a summary is a challenge, though the three-page Table of Contents helps navigate the depth and nuance of its analysis.

If the intervention of Alberta and Ontario Catholic school associations is any indication, the issues in this case are of wide interest to Catholic school boards and trustees across Canada, as well as of course, non-Catholic students attending Catholic schools. Will all of the issues herein be of further interest to the Supreme Court of Canada (i.e. would our Supreme Court be “of the opinion” this matter should be heard before them)?

Brief Summary of “Fundamental Errors of Law” Identified by the Court of Appeal

As noted, the Court of Appeal identified three “fundamental errors of law” underlying the Trial Judge’s declaration that providing funding for non-Catholic students to attend Catholic schools contravenes s. 2(a) and s. 15 of the Charter. Although there is much further detail to be discovered in the Court of Appeal’s decision, what follows is an examination of the Court’s own “broad overview” of its reasons. (See para. 6).

First, the Court of Appeal noted that, in Saskatchewan, The Education Act, 1995, SS 1995, c E-0.2 and The Education Funding Regulations, RRS c E-0.2 Reg 20 “confer a right on any child resident in any school division to attend any publicly funded school within that division” – this is the case whether one is dealing with the public or “separate” system. (See para. 7). For the Court of Appeal “[t]his parallelism underpins the province’s approach to education and must be considered in its entirety to determine whether the Legislative Framework offends the Charter.” (See para. 7).

For the Court, the Trial Judge did not adequately take this into account, resulting in an error of law. Specifically, the Court of Appeal took issue with the Trial Judge defining “the case so narrowly”, indicating this matter is not simply about the constitutionality of “funding non-Catholics in Catholic schools”. (See para. 7). Thinking about the case in these terms “understates” what the Court of Appeal described as the “interconnectivity of the constitutional protection afforded to separate schools and the legislative scheme at play.” (See para. 7).

Second, citing Adler v Ontario, 1996 CanLII 148 (SCC), the Court of Appeal also indicated that private religious schools “…as a matter of law, cannot mount a claim under the Charter on the basis of a comparison to the public school systems, whether secular or separate, for full funding.” (See para. 8).

Finally, for the Court of Appeal, s. 93 of the Constitution Act, 1867 and s. 17(2) of the Saskatchewan Act do not create inequality under the Charter – contrary to the Trial Judge’s contra declaration. Significantly, the Court of Appeal has here affirmed that “the constitutional protection granted to separate schools in Saskatchewan is as much a part of the Constitution of Canada as is the Charter.” Consequently, the Court of Appeal determined that the public funding of Catholic schools is not “inherently discriminatory”. (See para. 9).

And as for costs (what lawyer is not naturally interested in costs?), the Court of Appeal allowed the appeal from the Costs Decision, writing:

Given that the fundamental source of funding for all parties – Good Spirit, Christ the Teacher and the Government – comes from the taxpayers of this province, we would make no order as to costs either for or against any party in either Court with respect to the applications and the appeal. (See para. 340).

And, ever Saskatchewan-gracious, the Court of Appeal ends (in para. 341) by saying,

We had the benefit of full and able arguments by all counsel who were involved in this appeal. We thank them for this assistance.

Counsel for the Government of Saskatchewan: Sharon Pratchler, Q.C., Tom Irvine, Q.C., and Theodore Litowski (Minister of Justice, Constitutional Law Branch) Regina

Counsel for the Christ the Teacher Roman Catholic Separate School Division: Collin Hirschfeld, Q.C., and Curtis Onishenko (McKercher LLP) Saskatoon

Counsel for the Good Spirit School Division: Khurrum Awan, Roger Lepage and Brian Lunde (Miller Thomson LLP) Regina

Counsel for the Ontario English Catholic Teachers’ Association: Paul Cavalluzzo and Adrienne Telford (Cavalluzzo LLP) Toronto

Counsel for the Alberta Catholic School Trustees’ Association: Simon Elzen-Hoskyn and Cristina Wendel (Dentons Canada LLP) Edmonton

Counsel for the Ontario Catholic School Trustees’ Association: Daniel Santoro and Zahra Shariff (Doucette Furgiuele Ruffo) Toronto

Counsel for the Association franco-ontarienne des conseils scolaires catholiques: Jennifer Klinck and Audrey Mayrand (Juristes Power Law) Vancouver & Ottawa

Counsel for the Public School Boards’ Association of Alberta: Kirk Lambrecht, Q.C. (Shores Jardine LLP) Edmonton

*One of my Uncles in Scotland was called Théodore; his mother, my Grandmother, was French, from Normandy. She married (at 16, in Scotland) a soldier she met in WWI, my Grandfather. She “tried to be Scottish” she told me, but gave her four kids French names (Madeleine, Bernadette, Thérèse, et Thédore; Bernadette was my mother) & all raised, like her, Catholic. She had a dog – a French poodle of course. Guaranteed, at that time, the only one in the country. I’d walk that dog (“Suzette”, of course) & everybody wanted to know “what is that?” Was like being on Venus walking around with a Martian. My Uncle Théodore was a Spitfire pilot in WW2; he survived.