Adler et al. v. Ontario et al., (1994) 73 O.A.C. 81 (CA)

• Judge: Dubin, C.J.O., Brooke, Houlden, Doherty and Weiler, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 06, 1994
• Jurisdiction: Ontario
• Citations: (1994), 73 O.A.C. 81 (CA)

Adler v. Ont. (1994), 73 O.A.C. 81 (CA)

MLB headnote and full text

Susie Adler, Mark Grossman, Paula Kezwer, Marcy Rapp and Riky Young (applicants/appellants) v. Her Majesty The Queen in Right of Ontario, The Minister of Education and The Minister of Health (respondents/respondents) and The Metropolitan Toronto School Board, Ontario Public School Boards' Association, Canadian Civil Liberties Association, The Ontario Federation of Independent Schools, Manohar Singh Bal, Dwarka Doobay, Albert Dreise, The Islamic Society of North America and Citizens for Public Justice (intervenors)

(C12914)

Leo Elgersma, Harry Pott, Raymond Dostal, Harry Fernhout and Ontario Alliance of Christian School Societies (applicants/appellants) v. The Attorney General for Ontario, The Minister of Education and The Minister of Health (respondents/respondents)

(C12975)

Indexed As: Adler et al. v. Ontario et al.

Ontario Court of Appeal

Dubin, C.J.O., Brooke, Houlden, Doherty and Weiler, JJ.A.

July 6, 1994.

Summary:

In two separate applications, parents who sent their children to private religious based independent schools claimed the denial of public funding under the Education Act violated their right to freedom of religion and their equality rights under ss. 2(a) and 15 of the Charter of Rights and Freedoms.

The Ontario Court, General Division, in a judgment reported 9 O.R.(3d) 676, held that the absence of public funding violated ss. 2(a) and 15 of the Charter, but was a rea­sonable limit prescribed by law under s. 1. The court also held that the failure to pro­vide school health support services to private schools (as provided to public schools) violated ss. 2(a) and 15, but was also a reasonable limit prescribed by law. The parents appealed.

The Ontario Court of Appeal, Weiler, J.A., dissenting in part, dismissed the appeals. The court held that neither the absence of public funding for private religious based independent schools nor the failure to provide health support services to private schools violated s. 2(a) or 15 of the Charter.

Civil Rights - Topic 303

Freedom of conscience and religion - Scope of right - The Ontario Court of Appeal stated that the right to freedom of conscience and religion under s. 2(a) of the Charter of Rights and Freedoms "involves the freedom to pursue one's religion or beliefs without government interference, and the entitlement to live one's life free of state-imposed religions or beliefs. It does not provide, in my view, an entitlement to state support for the exercise of one's religion. Thus, in order to found a breach, there must be some state coercion that denies or limits the exercise of one's religion." - See paragraph 20.

Civil Rights - Topic 390.1

Freedom of conscience and religion - Infringement of - Schools - Funding and services - The Ontario Court of Appeal held that the absence of public funding for private religious based independent schools did not violate the right to freedom of conscience and religion under s. 2(a) of the Charter - Section 21 of the Education Act mandated compulsory education, but not compulsory school attendance at a nondenominational school - Parents chose to educate their children in private schools because of their religious convictions - The Act accommodated religious freedom rather than interfered with it - It permitted parents to send their children to private schools of their choice even if that school was not within the jurisdiction of the school boards and not run by the Ontario government - There was no government action compelling parents to send their children to private religious based independent schools - See paragraphs 19 to 55.

Civil Rights - Topic 390.1

Freedom of conscience and religion - Infringement of - Schools - Funding and services - The Ontario Court of Appeal held that the absence of public funding for private religious based independent schools did not violate the right to freedom of conscience and religion under s. 2(a) of the Charter - The Court stated that "it is not necessary in this case to determine whether it would be open to the government, in the absence of specific constitutional authority (such as s. 93 of the Constitution Act, 1867) to provide public funding for all private religious based independent schools - See paragraph 50.

Civil Rights - Topic 390.1

Freedom of conscience and religion - Infringement of - Schools - Funding and services - Publicly funded school health support services were provided to special education students in public schools - Similar services were not available to students in private religious based independent schools - The Ontario Court of Appeal held that, assuming that in this case there was a sufficient factual foundation to challenge the constitutionality of the absence of services, the absence of such services in private schools did not infringe freedom of religion or equality rights under ss. 2(a) and 15(1) of the Charter - The program was not merely health services, but was inextricably tied to the educational services provided for handicapped children - The program ensured access to public schools to students who could not otherwise attend - See paragraphs 97 to 129.

Civil Rights - Topic 5669.5

Equality and protection of the law - Schools - Funding and services - Roman Catholic separate schools were publicly funded, whereas private independent schools of other religions were not (e.g., Jewish schools) - The Supreme Court of Canada upheld the constitutionality of separate schools funding under the Constitution Act, 1867 - The Ontario Court of Appeal stated that "I agree ... that in light of what was stated by the Supreme Court of Canada ... the funding of Roman Catholic separate schools, in the absence of similar funding for private religious based independent schools, is not a basis for holding that the Education Act contravenes s. 15 of the Charter" - The court stated that "no claim based on alleged unequal treatment under s. 15(1) may be asserted by an individual in the protected areas of minority language education rights and denominational education rights" - See paragraphs 58 to 66.

Civil Rights - Topic 5669.5

Equality and protection of the law - Schools - Funding and services - Parents sent their children to private religious based independent schools because of religious convictions - Unlike public schools, these schools received no public funding - The Ontario Court of Appeal held that the absence of public funding did not violate equality rights under s. 15(1) of the Charter - If the absence of funding was a distinction, it was not one based on religion - The Education Act did not draw any distinction based on religion, nor did it impose obligations or deny benefits based on religion - The public school system was solely secular and could not found a claim of discrimination because it did not provide public funds for religious education under private auspices - The Education Act did not provide public funding for any private school, be it denominational or otherwise - See paragraphs 56 to 80.

Civil Rights - Topic 5669.5

Equality and protection of the law - Schools - Funding and services - [See third Civil Rights - Topic 390.1 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Ontario Court of Appeal stated that if the absence of public funding violated the right to freedom of religion or equality rights under ss. 2(a) and 15(1) of the Charter, the absence of such funding would constitute a reasonable limit prescribed by law under s. 1 of the Charter - See paragraphs 81 to 82.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - The Ontario Court of Appeal stated that "assuming that the absence of funding for private religious based independent schools infringed the appellants' freedom of religion and their right to equal benefit of the law without discrimination, and assuming further that such breaches could not be justified under s. 1 of the Charter, I, nevertheless, would hold that it would be inappropriate for the court to grant the remedy proposed by the appellants [ie., public funding]" - The court stated that "extending public school funding to private schools, which are not universally accessible and which are managed, operated and funded by private agencies, would be completely inconsistent with the objectives of the current legislation and could impair or thwart those objectives" - The remedy sought would completely change the nature of the Education Act and impose a heavy financial burden upon taxpayers - Those changes should be made by the legislature, not the courts - See paragraphs 83 to 96.

Education - Topic 2625

Schools - Private religious based schools - Funding and services - The Ontario Court of Appeal held that the absence of public funding for private religious based independent schools did not violate freedom of religion or equality rights under ss. 2(a) and 15(1) of the Charter of Rights and Freedoms - Further, the failure to provide school health support services to other than public schools did not violate s. 2(a) or 15(1).

Cases Noticed:

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 21].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 26].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 33].

Edwards Books and Art Ltd. v. R. - see R. v. Videoflicks Ltd. et al.

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Zylberberg et al. v. Board of Education of Sudbury et al. (1988), 29 O.A.C. 23; 65 O.R.(2d) 641 (C.A.), refd to. [para. 33].

Brusca v. Missouri (1971), 332 F.Supp. 275, affd. 405 U.S. 1050; 92 S.Ct. 1493, refd to. [para. 55].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321; 40 D.L.R.(4th) 18; 36 C.R.R.(3d) 305, refd to. [para. 58].

Education Act Amendment Act, Reference Re - see Reference Re Roman Catholic Separate High Schools Funding.

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

Mahé et al. v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 64].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 73].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321; 52 O.R.(2d) 799; 9 C.C.E.L. 185; 17 Admin. L.R. 89; 86 C.L.L.C. 17,002, refd to. [para. 76].

Norwood v. Harrison (1973), 413 U.S. 455, refd to. [para. 79].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 94].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250; 73 D.L.R.(4th) 686, refd to. [para. 111].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R. (4th) 385, refd to. [para. 112].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [para. 140].

McNeil v. Board of Censors (N.S.), [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 55 D.L.R.(3d) 632; 32 C.R.N.S. 376, refd to. [para. 140].

Borowski v. Canada (Minister of Justice and Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, refd to. [para. 140].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 140].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 106 N.R. 161; 67 O.A.C. 81, refd to. [para. 140].

Hy and Zel's Inc. v. Ontario (Attorney General) - see Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 143].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 145].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 177].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.), (1987), 67 Nfld. & P.E.I.R. 16; 206 A.P.R. 16; 44 D.L.R.(4th) 501 (Nfld. C.A.), refd to. [para. 177].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 306, refd to. [para. 177].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 177].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 331; 19 C.R.R. 308, refd to. [para. 184].

Irwin Toy Ltd. v. Quebec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 191].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 1; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 191].

Board of Education (Protestant) of Greater Montreal et al. v. Québec (Procureur général), [1989] 1 S.C.R. 377; 92 N.R. 327; 20 Q.A.C. 241, refd to. [para. 192].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 5]; sect. 2(a) [para. 19]; sect. 15(1) [para. 55]; sect. 23 [para. 64]; sect. 24(1) [para. 197].

Constitution Act, 1867, sect. 29 [para. 183]; sect. 93 [para. 50]; sect. 93(1), sect. 93(2), sect. 93(3) [para. 61].

Constitution Act, 1982, sect. 52 [para. 197].

Criminal Code, R.S.C. 1985, c. C-46, sect. 2(b), sect. 2(d), sect. 2(e), sect. 7(4) [para. 169].

Education Act, R.S.O. 1990 c. E-2, sect. 1(1) [paras. 24, 99]; sect. 11(1) [para. 44]; sect. 11(1)5, sect. 11(1)6 [para. 99]; sect. 16(1), sect. 16(2), sect. 21(1), sect. 21(2) [para. 24]; sect. 35(1), sect. 35(2), sect. 70(1) [para. 99].

Education Act Regulations (Ont.), Reg. 262/80, sect. 28(1) [para. 44].

Health Insurance Act, R.S.O. 1990, c. H-6, generally [para. 101].

Health Insurance Act Regulations (Ont.), Reg. 552/90, sect. 13 [para. 102]; sect. 14 [para. 101].

Immunization of School Pupils Act, R.S.O. 1990, c. I-1, sect. 1 [para. 188].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), p. 377 [para. 143].

Magnet, Joseph Eliot, The Charter's Official Language Provisions: The Implications of Entrenched Bilingualism (1982), 4 S.C.L. Rev. 163, p. 175 [para. 67].

Ontario, Legislative Debates, Official Report (Hansard), Fourth Session, 31st Parliament (1980), per Hon. B. Stephenson (Minister of Education), pp. 2135, 2136 [para. 156].

Ontario, Legislative Debates, Official Report (Hansard), March 1, 1974, p. 56, March 26, 1974, pp. 445 to 469 [para. 165, footnote 1].

Ontario, Ministry of Community Services, Challenges and Opportunities: Community Living for People with Developmental Handicaps (1990), p. 7 [para. 159, footnote 1].

Welch, Robert, Community Living for the Mentally Retarded in Ontario, generally [para. 164].

Williston, Walter B., Present Arrangements for the Care and Supervision of Mentally Retarded Persons in Ontario, generally [para. 163].

Counsel:

John I. Laskin and Edward M. Morgan, for the appellants, Susie Adler, Mark Grossman, Paula Kezwer, Marcy Rapp and Riky Young;

Robert E. Charney and Hart Schwartz, for the respondents, Her Majesty the Queen in Right of Ontario, the Minister of Education and the Minister of Health;

Brian A. Kelsey, Q.C., and William S. Challis, for the intervenors, the Metropolitan Toronto School Board and the Ontario Public School Boards' Association;

Larry Taman and Clare E. Burns, for the intervenor, Canadian Civil Liberties Association;

John A. Olthuis and Roger Townshend, for the intervenor, the Ontario Federation of Independent Schools;

Peter B. Jervis and David Conklin, for the intervenors, Monahar Singh Bal, Dwarka Doobay, Albert Dreise, The Islamic Society of North America and Citizens for Public Justice;

David M. Brown and Katherine L. Kay, for the appellants, Leo Elgersma, Harry Pott, Raymond Dostal, Harry Fernhout and Ontario Alliance of Christian School Societies.

These appeals were heard on September 7-10, 1993, before Dubin, C.J.O., Brooke, Houlden, Doherty and Weiler, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was released on July 6, 1994, and the following opinions were filed:

Dubin, C.J.O. (Brooke, Houlden and Doherty, JJ.A., concurring) - see paragraphs 1 to 132;

Weiler, J.A., dissenting in part - see paragraphs 133 to 205.