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Independent schools file suit over COVID funding

TORONTO — An Ontario court is poised to determine whether private schools are entitled to pandemic support from the province after three schools launched a legal challenge over the government's allocation of federal COVID-19 funding.

The schools -- two in Toronto and one in Kitchener, Ont. -- argue that in doling out the provincial portion of the federal Safe Return to Class Fund, the Ontario government left out some 1,500 independent institutions and the more than 150,000 children who attend them.

In an application that has not yet been tested in court, they allege the funding was withheld for "no justifiable reason" given that independent schools have been subject to the same health restrictions and closures as publicly funded ones.

"Independent schools are not immune from COVID-19. They have shuttered their doors, suffered outbreaks, and expended significant funds to protect their students and staff," the document reads. 

"Regarding matters other than the Safe Return to Class Fund, Ontario has rightfully treated independent schools in a similar manner as publicly funded schools regarding the pandemic... and likewise, independent schools including the applicants legitimately expected equal funding from the Safe Return to Class Fund."

The schools are asking the Divisional Court to overturn the provincial decision and order that the funding be distributed to independent schools on the same pro-rata basis as publicly funded schools.

They're also seeking a declaration that the province breached procedural fairness in failing to notify and "meaningfully consult" them or other affected parties.

The province, meanwhile, argues private schools such as those behind the application have "no legal right" to funding from the Ministry of Education, which does not regulate, license or oversee them.

In its filings with the court, the government notes Ottawa explicitly gave provinces discretion in allocating the funding "in accordance with their education sector's priorities."

The government acted within its authority in making a policy decision on how to spend public funding, it argues in the document.

"Every budgetary decision can be viewed as unfair by  some portion of the population and that is not a legitimate basis for judicial review," it says.

"Further,  the courts have held that Ontario can elect not to fund private schools and that students in private schools may be validly barred from the same services provided to students in public schools. Simply put, the applicants have no entitlement to any portion of the fund."

The application was brought by Toronto Cheder, an Orthodox Jewish day school, Metropolitan Preparatory Academy, a non-denomination middle and high school, and Woodland Christian High School in Kitchener. It is set to be heard on Aug. 9.

The Safe Return to Class Fund was announced last summer as part of various pandemic supports provided by the federal government.

The amount given to provinces under the fund was calculated based on the number of children between the ages of four and 18, with a $2 million base sum given to each jurisdiction.

The maximum amount Ontario could receive through the program was $763.34 million.

This report by The Canadian Press was first published July 28, 2021.

Paola Loriggio, The Canadian Press

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