Executive Summary: Key Legal and Evidentiary Issues

• Whether the application for public funding of Jewish day schools could proceed in light of the Supreme Court of Canada’s binding decision in Adler v. Ontario.
• Application of the Bedford/Carter test to determine if new evidence or legal developments justified revisiting the Adler precedent at the trial level.
• Assessment of whether alleged changes in social facts, including threats to the long-term survival of the Jewish community and the value of diversity, fundamentally shifted the parameters of the debate decided in Adler.
• Consideration of developments in Charter jurisprudence, international law, and the addition of s. 93A to the Constitution Act, 1867, and whether they created genuinely new legal issues.
• Evaluation of the proper use of rule 21.01(1)(b) (motion to strike) and whether the Divisional Court applied the correct “no reasonable prospect of success” standard.
• Determination of whether new evidence of increased antisemitism in Ontario schools could be admitted on appeal and, if so, whether it could have affected the result below.

Background and parties
The litigation arose from a constitutional challenge brought by Grassroots for Affordable Jewish Education Inc. and a group of parents and grandparents whose children attend or attended Jewish day schools in Ontario. They sought to compel the province, represented by His Majesty the King in Right of Ontario as represented by the Minister of Education and the Minister of Health, to provide public funding for Jewish day schools on a footing comparable to the funding provided to Roman Catholic separate schools. The applicants framed their claim under the Canadian Charter of Rights and Freedoms. They alleged that Ontario’s failure to fully fund Jewish day schools violated their freedom of religion under s. 2(a) and their equality rights under s. 15(1). They argued that Jewish day school education is central to both Jewish religious observance and cultural identity, and that the differential treatment compared to publicly funded Roman Catholic separate schools amounted to discriminatory and rights-infringing state action. Ontario responded that the application was essentially an attempt to relitigate Adler v. Ontario, where the Supreme Court of Canada had already rejected similar constitutional challenges to the non-funding of private religious schools, including Jewish day schools.

The earlier Supreme Court framework in Adler
In Adler, parents of children attending private religious schools, including Jewish day schools, sought declarations that Ontario’s refusal to fund those schools breached ss. 2(a) and 15(1) of the Charter. The Supreme Court held that s. 93(1) of the Constitution Act, 1867, is a “comprehensive code” governing denominational school rights. It concluded that the Charter did not apply to the funding regime created under s. 93(1), because that regime was itself constitutionally entrenched. On the freedom of religion claim, the Court found that non-funding of non-Catholic religious schools did not violate s. 2(a) in light of the structure of s. 93. On equality, it held that funding for Roman Catholic separate schools and public schools was “within the contemplation” of s. 93 and thus immune from Charter review. This meant that any claim seeking to invalidate or expand the s. 93 denominational school compromise via the Charter was barred at the threshold. Adler therefore operates as a controlling precedent on attempts to use the Charter to challenge Ontario’s school funding system.

The new application and the motion to strike
In this case, the applicants brought a new application seeking full public funding for Jewish day schools, alleging that Ontario’s current funding model violated ss. 2(a) and 15(1) of the Charter in light of contemporary social and legal developments. Ontario responded with a motion to strike under rule 21.01(1)(b) of the Rules of Civil Procedure, arguing that the application disclosed no reasonable cause of action because Adler was binding and dispositive. Ontario maintained that the substance of the claims, parties, and constitutional framework were the same as in Adler, and that lower courts were bound by that precedent under vertical stare decisis. The applicants countered by invoking the Bedford/Carter test, arguing that there was at least a “reasonable prospect” that a trial court could revisit Adler because of new evidence and legal developments. They relied heavily on evidence of the current and evolving threat to the long-term survival of the Jewish community, emphasizing the centrality of Jewish day school education to religious practice and communal continuity. They also pointed to what the motion judge later described as a “growing recognition of the benefits of supporting diversity” in Canadian society, suggesting that this social context differed materially from that in place when Adler was decided.
Alleged changes in facts, social context, and law
The applicants’ evidentiary record focused on two main factual themes. First, they advanced social-science and community evidence that Jewish day school education plays an essential role in preserving Jewish religious observance and identity, and that the absence of funding poses a serious risk to the viability of those schools and, by extension, to the long-term survival of the Jewish community in Ontario. Second, they relied on broader social and political developments, which they characterized as a deepened societal recognition of the benefits of supporting cultural and religious diversity, including through education. On the legal side, the applicants argued that there had been significant developments in Charter jurisprudence since Adler concerning the interpretation of ss. 2(a) and 15(1). They also invoked the addition of s. 93A to the Constitution Act, 1867, which removes the application of s. 93 to Quebec, as evidence that the original denominational school compromise could be revisited or re-understood. Finally, they relied on developments in international law and the presumption of conformity with international instruments to argue that Canada’s constitutional framework should be interpreted in a way that better accommodates minority religious education.

The Bedford/Carter test and the motion judge’s decision
Central to the parties’ arguments was the Bedford/Carter test, drawn from Canada (Attorney General) v. Bedford and Carter v. Canada (Attorney General). Under this doctrine, a trial judge may depart from binding precedent from a higher court in two narrow situations: when a new legal issue is raised, including one that arises due to significant developments in the law, or when a change in the circumstances or evidence “fundamentally shifts the parameters of the debate.” The applicants contended that both branches of the test were potentially engaged: their evidence on the survival of the Jewish community and the increased emphasis on diversity, along with new antisemitism-related evidence, were said to represent a fundamental change in social facts, while new Charter jurisprudence, international law developments, and the enactment of s. 93A were said to create new legal issues. The motion judge accepted that, when considered cumulatively, these factual and legal developments gave the applicants a reasonable prospect of meeting the Bedford/Carter test. Although she acknowledged that the factual record alone did not independently satisfy the test, she considered the evidence to have “some relevance” when combined with the legal arguments. On that basis, she dismissed Ontario’s motion to strike and allowed the application to proceed to a full hearing on the merits.

The Divisional Court’s reversal
Ontario appealed to the Divisional Court, which allowed the appeal and dismissed the application. The Divisional Court agreed there was “no doubt” that Adler directly governed the issues raised. The central question was not whether Adler was correct, but whether there was a reasonable prospect, under Bedford/Carter, that a lower court could revisit it. The Divisional Court found that the motion judge had erred in treating evidence that was, in substance, the same as that before the courts in Adler as capable of satisfying the Bedford/Carter test. It noted that in Adler, the lower courts had already accepted evidence that educating children in accordance with religious practices was essential to both individual religious membership and the survival of the religious community; similar evidence was now simply being re-advanced. The Divisional Court held that the new record did not “fundamentally shift the parameters of the debate” but instead largely “replicated the circumstances in Adler.” The Court further concluded that the alleged developments in law did not assist the applicants. It held that reliance on dissenting opinions in Adler could not undermine the binding force of the majority. It also found that developments in Charter case law on ss. 2(a) and 15(1) were effectively beside the point, because Adler held that Charter analysis was inapplicable where the impugned funding decisions were authorized by s. 93(1). With respect to international law, the Divisional Court observed that Adler’s interpretation rested on Canadian constitutional history, particularly the denominational school compromise at Confederation, leaving little room for external international instruments. It added that international principles cannot be used to invalidate Canadian constitutional provisions, just as one part of the Constitution cannot be used to invalidate another. On s. 93A, the Divisional Court held that the amendment had no bearing on Ontario because it applied only to Quebec, having been enacted under the regional amending formula in s. 43 of the Constitution Act, 1982. Accordingly, s. 93A could not reasonably support a conclusion that Adler might be revisited in Ontario. Combining these points, the Divisional Court concluded that the application had no reasonable prospect of meeting the Bedford/Carter test and should be struck.

The motion to admit fresh evidence at the Court of Appeal
Before the Court of Appeal, the appellants sought to introduce additional evidence: a 2025 report and an affidavit by its author concerning antisemitism in Ontario schools from kindergarten to grade 12. The report described widespread antisemitism in both public and Catholic schools and stated that antisemitism faced by Jewish children in publicly funded schools had “worsened substantially since 2000,” with the most dramatic change after October 7, 2023. The appellants argued that this evidence showed that the Divisional Court was wrong to say the circumstances simply “replicated” Adler, and that the new material supported a fundamentally different factual context. Applying the well-established four-part test for new or fresh evidence on appeal, drawn most recently from Barendregt v. Grebliunas, the Court of Appeal considered whether the proposed evidence could have been obtained with due diligence, whether it was relevant to a decisive issue, whether it was credible, and whether, if believed, it could have affected the result below. The Court accepted that the report itself was “new,” as it post-dated the lower-court proceedings and dealt with incidents between October 2023 and January 2025, and that both the report and affidavit were clearly credible, given the author’s expertise and the study’s government sponsorship. It also accepted that the evidence was, in a general sense, relevant to the question of whether there had been a change in circumstances since Adler. However, the Court focused on the fourth requirement—whether the evidence could have affected the result—and concluded that it could not. It held that the primary factual circumstance in Adler already centred on the threat to the long-term survival of the Jewish community. While the new report might deepen understanding of those threats, it did not transform the factual matrix in a way that would “fundamentally shift the parameters of the debate.” The Court therefore refused to admit the proposed evidence.

The Court of Appeal’s analysis of the rule 21 test
On the merits of the appeal, the appellants argued first that the Divisional Court had misapplied the rule 21.01(1)(b) test by effectively deciding the ultimate merits of the application rather than asking whether there was a “reasonable prospect” that the Bedford/Carter test could be met on a full evidentiary record. They suggested the Divisional Court conflated the screening function of a motion to strike with a final merits determination. The Court of Appeal rejected this argument. It noted that the Divisional Court had correctly identified the applicable standard on a motion to strike and had properly framed the question as whether there was a reasonable prospect that the application could meet the Bedford/Carter threshold. The appellate reasons observed that the Divisional Court explicitly reminded itself that, on a motion to strike, it was not to conclusively determine whether the record disclosed a “fundamental shift” or “profound alteration,” but rather to determine whether there was a reasonable prospect of such a finding on the record. The Court of Appeal held that, read fairly and as a whole, the Divisional Court had done just that, and had not strayed into deciding the ultimate merits of any future trial.

The Court of Appeal’s treatment of the Bedford/Carter test and s. 93
The appellants also argued that the Divisional Court erred in holding that the Bedford/Carter test could not be satisfied by the cumulative effect of multiple smaller changes in facts and law, and that it had wrongly assumed that the parameters of the debate could only be shifted by a single, discrete change. Further, they argued that the Divisional Court was wrong to treat s. 93 of the Constitution Act, 1867, as an absolute bar despite s. 93A, international law developments, and the evolution of Charter jurisprudence since 1996. The Court of Appeal dismissed these arguments. It emphasized the strictness of the Bedford/Carter exception, citing R. v. Comeau for the proposition that departures from vertical stare decisis are reserved for circumstances where “the underlying social context that framed the original legal debate is profoundly altered.” The Court accepted the Divisional Court’s finding that the evidence supporting the application was essentially similar to the evidence in Adler and did not demonstrate such a profound alteration. The Court also held that the Divisional Court had, in substance, considered the cumulative impact of the applicants’ arguments—factual, legal, and international—before concluding that none, individually or collectively, showed a reasonable prospect of meeting the Bedford/Carter test. Finally, the Court endorsed the Divisional Court’s interpretation of s. 93 and s. 93A: s. 93 remains a comprehensive and entrenched code for denominational school rights in Ontario, immune from Charter-based attack on the structure of the funding compromise, and s. 93A, enacted only for Quebec under the regional amending procedure, does not alter the interpretation or application of s. 93 in Ontario.

Overall outcome and successful party
The Court of Appeal concluded that the Divisional Court had properly applied the rule 21.01(1)(b) standard, had correctly assessed the strict limits of the Bedford/Carter exception to vertical stare decisis, and had properly treated Adler and s. 93 as fully governing the applicants’ attempt to secure public funding for Jewish day schools. It therefore dismissed the motion to admit additional evidence, held that there was no reasonable prospect that a lower court could revisit Adler on the record presented, and affirmed that the application properly stood struck. As a result, the appeal was dismissed and Ontario’s position was upheld. The successful party on the appeal was His Majesty the King in Right of Ontario as represented by the Minister of Education and the Minister of Health, and the Court of Appeal made no order as to costs or any other monetary relief, so no total amount of costs, damages, or other monetary award can be determined from this decision.