Lawyers representing Christ the Teacher (Catholic) and Good Spirit (public) school divisions, the Saskatchewan government and other intervenors wrapped up their arguments March 13 in the appeal of Justice Donald Layh’s April 2017 ruling in the Theodore, Sask.,  school case that public funding of “non-minority faith students” in the Catholic system is unconstitutional and violates the state’s duty of religious neutrality. 

The appeals court has reserved its decision. It’s not clear when the five judges who heard the appeal will render their decision, but Tom Fortosky believes the Catholic board presented a good argument to have Layh’s ruling overturned.

“I’m cautiously optimistic,” said Fortosky, executive director of the Saskatchewan Catholic School Boards’ Association (SCSBA), who spent two days in court listening to both sides argue their case. “I think we got a good hearing.”

The Catholic board’s most compelling argument, said Fortosky, centred on Section 17.2 of the Saskatchewan Act, which brought the province into Confederation. Under 17.2, there is a constitutional provision stating that in funding separate and public schools, “it shall not discriminate in the provision of these funds,” he said. It was clear in the argument that the trial judge found the school was “properly formed as a separate school,” he said.

“We had a school that was being run as a Catholic school, it was properly constituted, it should receive funding without discrimination,” said Fortosky.

The court case dates back to 2005 when the York School Division (now Good Spirit) filed a complaint against what is now Christ the Teacher School Division. The Catholic division was created after the public school was closed in the town of Theodore in central Saskatchewan due to a lack of enrolment. Its 42 students were to be bused 17 kilometres to a school in Springside until local parents rallied to save the school by becoming part of the Catholic system, renaming it St. Theodore Roman Catholic School. 

The public board argues Catholics make up a small proportion of the school population and that the mandate of Catholic education should be limited to educating Catholic students.

It wasn’t until 2015 that the case was heard in a Yorkton courtroom, pitting the public board against its Catholic counterpart and the provincial government. After Layh’s decision in favour of the public board, the Saskatchewan Party government of then-Premier Brad Wall sided with the Catholic board and promised to invoke the notwithstanding clause to overrule the decision. The government passed the legislation with all-party support but has yet to implement it. When implemented, that option would remain on the books for a five-year period before it would need to be renewed.

By appealing, the Catholic entities are seeking a permanent solution so they don’t have to rely on the notwithstanding clause.   

In the most recent hearing, lawyers for the public board, the Good Spirit School Division, continued the argument that Catholic schools were created to educate Catholic students in a Catholic environment, and that St. Theodore’s School was not religiously neutral as a select group of non-Catholics were having their education fully funded while non-Catholics who sought faith-based education somewhere other than in a Catholic school weren’t entitled to similar benefits.

The Catholic board responded by saying Good Spirit was only concerned about maintaining “market share” and the corresponding dollars that would accompany that.

The case could have national implications as Saskatchewan is one of only three provinces where Catholic education rights are enshrined in the constitution, along with Ontario and Alberta. 

The SCSBA has been seeking donations to help fund its fight. It raised more than $300,000 to get to this stage, said Fortosky.

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