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Court denies challenge to Ontario Catholic school funding system

'Taxpayers do not have a privileged position to challenge state action' says judge

Reva Landau, the Toronto woman who launched the challenge last year.
The Ontario Superior Court of Justice has denied a Toronto woman’s court challenge that argued the province’s funding of a separate Catholic school system is discriminatory.
 
Reva Landau, a non-practising lawyer, argued last year that the government should completely stop funding Catholic secondary schools and reduce funding for Catholic elementary schools to the funding levels they were entitled to in 1867.
 
After almost a year, Justice David Corbett issued a ruling on Oct 2 denying Landau standing to move forward with her case. (Read the full decision here.)
 
Corbett, agreeing with the motion from the provincial government, dismissed the case because he said Landau’s standing as a taxpayer is not a sufficient reason to challenge the government. He also said the Supreme Court of Canada and the Ontario Court of Appeal had already ruled on the issue.
 
“Ms Landau’s emphasis on her status as a taxpayer is, in my view, misplaced,” he writes in his decision. “Taxpayers do not have a privileged position to challenge state action . . . If Ms Landau’s position on private interest standing is correct, then there would be no need for public interest standing. Virtually everyone would have standing to challenge the constitutionality of virtually any government action.”
 
But Corbett also makes it clear that this decision should not stand in the way of future similar legal challenges that have sufficient standing. “If someone with standing was to bring a fresh case, it would still be open to them to try to show that there have been significant changes in the evidentiary landscape that cast these issues in a new light,” Corbett writes.
 
Corbett states that he didn’t deny the case because the arguments were invalid, so Landau is offering to partner with, or hand over her legal research to, any group willing to keep it going. “I think [Corbett] was trying very hard to say that someone else with better standing could take this forward,” she says.
 
A group with sufficient legal standing could include a teachers’ union, a student group or a community group that has been a public school supporter and has an interest in challenging the province’s public funding for separate school education, Landau says.
 
“A group could make the argument that funding is being used to discriminate against queer youth, maybe,” she says. “It would depend on how closely they have been involved with education.”
 
Nick Mulé, chair of Queer Ontario, tells Xtra that he plans to discuss Corbett’s ruling with other group members and ask them to consider picking up the case. The organization has spent years advocating for queer youth who face discrimination in Ontario schools, pushing for sexual health education and playing a major role in the drafting of language in the Accepting Schools Act, passed last year, which mandates gay-straight alliances in every school. 
 
“We are certainly open to looking at this,” he says. “It would make sense for us to meet [with Landau] and discuss the possibility to work together on this.”
 
But Mulé is also frustrated that Corbett rejected the case on the basis that “a taxpayer” does not have sufficient legal standing. “It raises questions for me about the power of an individual to advocate in our society and effect change,” he says. “So a case always must be affiliated with a group? I believe in groups, but I also believe in the right of individuals to advocate and have a voice in our democracy. Does being a taxpayer not count for anything?”
 
Landau now has 30 days to decide if she will appeal the decision to a higher court. She says her legal arguments still stand, noting that she finds it upsetting that all Ontario taxpayers are forced to contribute to Catholic education.
 
Landau also argued that past challenges to Section 93 of the Constitution, which guarantees Catholic education, did not take into consideration a 1999 statement from the United Nations that Ontario’s funding of Catholic schools to the exclusion of all other faiths is a violation of international human rights law. 
 
“That’s important,” Landau says. “Most residents of Ontario don’t like to think of themselves as a country or a province that offends international human rights laws.”
 
The previous rulings also did not take into account rulings in Quebec in 1988 and Newfoundland in 1997, both of which terminated separate school funding in those provinces. 
 
Corbett’s decision, however, states that the Constitution could be changed in Ontario the same way it was in Quebec and Newfoundland. The change would simply involve a constitutional amendment agreed upon by the Ontario government and the federal government. 
 
Political will is the only thing holding Ontario back from ending the funding of Catholic schools, Landau says.
 
“So when politicians say it’s a complicated constitutional issue, the reply should be that it’s been done in Newfoundland, it's been done in Quebec, and it could be done here. It is actually not a complicated constitutional issue,” she says. “It’s entirely within the power of the province to abolish it if it wants to.
 
“Politics are holding them back. That’s what holds anyone back from doing anything if they are in power. The majority wants this.”
 
The number of Ontarians opposed to the funding of Catholic schools continues to grow. A February Forum Research poll about the issue found that 54 percent of Ontarians support merging the two school boards to create one secular school system for each official language.
 
Landau points out that studies have examined the potential financial savings to Ontario if it were to stop funding Catholic schools. “Some estimate that there will be savings of $1 billion to $1.5 billion [annually] by going to one publicly funded two-language school system,” she says.
 
Landau says she disagrees with many Catholic teachings — including the church’s position on gay rights — and she thinks forcing taxpayers to pay for this violates the fundamental equality rights of non-Catholics.
 
“Why keep funding a discriminatory and wasteful system?” she asks. “There are young teachers that are graduating that can’t get a job because the jobs in the separate schools system are closed to them. If you are a Catholic teacher, you can work in either system.”
 
Corbett apologized for the long delay in releasing his decision, citing an extended medical leave following a heart attack last year.