In Ontario (Education) v. Grassroots for Affordable Jewish Education Inc. decided on February 4, 2026, the Ontario Court of Appeal reaffirmed the constitutional framework governing the public funding of religious schools in Ontario. The decision reflects the high threshold that must be met to revisit binding precedent.
The appellants in the case included parents and grandparents of children who attend or attended Jewish day schools in Ontario and Grassroots for Affordable Jewish Education Inc., a non-profit organization which advocates on their behalf. The appellants brought an application seeking full funding for Jewish day schools on the basis that the government of Ontario’s failure to fully fund Jewish day schools in Ontario, as it does for Roman Catholic separate schools, breaches their right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms and section 15(1), which protects the right to equality.
The government of Ontario took the position that the appellants were seeking to reopen issues that had been definitively decided nearly three decades earlier in the Supreme Court of Canada’s 1996 decision in Adler v. Ontario.
In Adler, the Supreme Court of Canada held that section 93(1) of the Constitution Act, 1867 provides a comprehensive code governing denominational school rights and that the section 15(1) claim failed because the funding of Roman Catholic separate schools and public schools is within the contemplation of the terms of section 93 and, therefore, is not subject to scrutiny under the Charter.
The Ontario government moved to strike the new application, arguing that it was an impermissible attempt to relitigate issues already settled in Adler. It argued that the central legal issue before the Court of Appeal was whether the appellants could meet the test established in Canada (Attorney General) v. Bedford and Carter v. Canada, which outlines the limited circumstances in which a lower court may revisit binding precedent from a higher court.
Under the Bedford/Carter test, a trial judge can revisit binding precedent only if: (i) a new legal issue is raised, or new legal issues arise as a result of significant developments in the law; or (ii) there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.
The motion judge initially allowed the application to proceed, suggesting that evolving legal principles and new social evidence might, when viewed cumulatively, satisfy this demanding threshold. However, the Divisional Court set aside that order and dismissed the application, concluding that the appellants had not demonstrated a sufficient basis to reopen Adler. The Court of Appeal was asked to determine whether that dismissal was correct.
Writing for the Court, Justice Gillese dismissed the appeal and upheld the Divisional Court’s ruling. The Court found that the appellants had no reasonable prospect of meeting the Bedford/Carter test. With respect to the evidentiary record, the appellants argued that circumstances had materially changed since 1996, including concerns about the financial burden on families seeking religious education and the long-term sustainability of the Jewish community without public funding. The Court acknowledged the seriousness of these concerns but held that they were not new in the relevant legal sense. Similar evidence and arguments had been before the courts in Adler. While social and political contexts may evolve over time, the Court concluded that the changes identified did not amount to the kind of profound alteration required to displace binding precedent.
The appellants also relied on alleged legal developments since Adler, including the 1997 addition of section 93A to the Constitution Act, 1867, which removed denominational school protections in Quebec, as well as developments in international human rights law and broader evolution in Charter jurisprudence. The Court rejected these arguments. Section 93A applies exclusively to Quebec and does not alter the interpretation or operation of section 93 in Ontario. Moreover, the Court emphasized that international law principles cannot be used to invalidate an explicit internal constitutional provision reflecting a historic compromise. The entrenched nature of section 93 remains unchanged.
As part of the appeal, the appellants sought to introduce fresh evidence in the form of a 2025 report addressing antisemitism in Ontario’s publicly funded schools, particularly in the aftermath of October 7, 2023. The Court accepted that the report was credible and authored by a distinguished expert. However, applying the Supreme Court’s framework for admitting fresh evidence on appeal, the Court concluded that even if accepted, the report would not have changed the outcome. It did not fundamentally alter the constitutional analysis or undermine the binding effect of Adler. Accordingly, the fresh evidence was not admitted.
For charities and not-for-profits, the decision serves as a reminder of the structural limits of constitutional litigation. Where a government policy is rooted in an explicit constitutional provision, Charter-based challenges may face significant barriers. The case also reinforces the strength of vertical stare decisis in Canada’s legal system. Lower courts remain bound by the decisions of higher courts unless a new legal issue or a fundamental shift in circumstances can be demonstrated. Evolving social concerns, however compelling, would not likely suffice on their own.
In closing, the Court of Appeal confirmed that Adler remains binding law in Ontario. The constitutional protection afforded to the public funding of Roman Catholic in Ontario schools continues to be treated as a unique historical arrangement made at Confederation which is beyond the reach of standard Charter challenges.