Public Schools of Saskatchewan appealing Theodore decision to Supreme Court of Canada

The Supreme Court of Canada is being asked to weigh in on the funding of non-Catholic students in Catholic schools in Saskatchewan.

Public Schools of Saskatchewan said Thursday it is seeking leave to appeal the Theodore decision to the highest court in the land.

In the April 2017 decision, the Court of Queen’s Bench found government funding of non-Catholic students in Catholic schools violated two sections of the Charter of Rights and Freedoms.

The Saskatchewan Court of Appeal unanimously overturned that decision on March 25, stating the case was about the constitutionality of funding.

Colleen MacPherson, chair of Public Schools of Saskatchewan, said it is asking the Supreme Court to hear the appeal due to differing opinions.

“For more than 15 years, we have pursued every avenue possible, including mediation with government and the organization representing Catholic school boards, to clarify the mandate of separate schools in this province,” MacPherson said.

“We were forced into the courts, and now, with two very different decisions, the Supreme Court of Canada must be the final arbiter.”

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The dispute started in 2003 when Yorkdale School Division, now Good Spirit School Division, closed its kindergarten-to-Grade-8 school in the town of Theodore, Sask., due to declining enrolment. The division planned to bus its 42 students to a nearby community.

Community members created their own Catholic school division and opened St. Theodore Roman Catholic School.

Good Spirit argued that as a result of the new school, the neighbouring school in Springside lost out on potential funding, and the creation of a new Catholic school compromised Good Spirit’s ability to close future schools in a similar situation.

That prompted Good Spirit School Division to launch the original lawsuit, claiming the creation of the new school division was not to serve Catholics in the community, but rather to prevent the students from being bused to a neighbouring town.

MacPherson said the case isn’t about whether separate schools have a right to exist in Saskatchewan.

“Separate schools are protected in the constitution; our concern is making clear who Catholic schools were set up to serve because when they admit, with the benefit of public funding, students not of the minority faith, they look more ‘public’ than ‘separate,’” MacPherson said.

Since the Theodore case began in 2005, the Catholic section has spent $1.6 million in legal costs, including $276,000 fundraised for the appeal, according to Tom Fortosky, executive director of the Saskatchewan Catholic School Boards Association.

“We’re saddened and disappointed but not surprised,” Fortosky said, referring to the public system’s plans to take the matter to the Supreme Court.

“We feel that our time, resources and energy could be better spent on our children and education in the province of Saskatchewan.”

According to Fortosky, parents and students have experienced varying levels of uncertainty as the case has made its way through the courts.

“The fact that the public section now wishes to appeal this further means that there is still some uncertainty out there,” Fortosky said.

At the time Saskatchewan’s Court of Appeal decision was released, Education Minister Gord Wyant said the province was pleased with the decision, and it is considering its options as well.

He noted the government has passed legislation allowing for the use of the notwithstanding clause, which could overrule a court’s ruling.

“We will continue to keep this legislation as an option,” Wyant said at the time.

On Thursday, Wyant said in a statement that he respects the public section’s right to appeal.

“We recognize that the overall outcome of this issue is important to the delivery of education in Saskatchewan, and await the Supreme Court of Canada’s decision on whether they will hear the case,” Wyant said.

With the matter before the courts, he added, the Saskatchewan government will have no further comment.

Catholic education is only publicly funded in three provinces: Saskatchewan, Alberta and Ontario.

Public Schools of Saskatchewan represents 15 public school boards in the province.