On Nov. 21, the Ontario Divisional Court struck down the Student Choice Initiative, a controversial directive introduced by the provincial government which required universities and colleges to allow students to opt-out of student fees deemed “non-essential.” Three judges unanimously ruled that the government did not have the legal authority to interfere with the autonomous and democratic decision-making process between universities and student unions.
On Jan. 17, 2019, Ontario’s Ministry of Colleges and Universities publicly announced the SCI alongside a series of changes to post secondary funding, including cuts to the Ontario Student Assistance Program. When students were given the opportunity to opt-out in September 2019, services deemed non-essential such as food banks, student societies and campus media became vulnerable to funding cuts.
On May 24, the Canadian Federation of Students-Ontario and the York Federation of Students launched a joint legal challenge against the provincial government’s SCI directive, claiming that the SCI was unlawful, proposed in bad faith and carried out in a way that was procedurally unfair. On the basis of the legality of the SCI, the Divisional Court of Ontario ruled in favour of CFS-O and YFS on Nov. 21.
The legal document explaining the judges’ decision cites previous Supreme Court rulings, which concluded that, while universities are regulated and funded by the government, “it by no means follows, however, that universities are organs of government … The fact is that each of the universities has its own governing body … The government thus has no legal power to control the universities even if it wished to do so.”
"Student unions can confidently budget again ... For students to access the services of their student unions" - CFSO Rep https://t.co/c3XO2R6LOZ
— The Silhouette (@theSilhouette) November 22, 2019
The Ontario government attempted to defend themselves by arguing that the SCI was a “core policy decision” not subject to judicial review, and that they were exercising their prerogative power over spending decisions. However, the Court’s legal documents state that, “with the exception of narrowly defined powers in the MTCU [Ministry of Training, Colleges and Universities] Act, policy-making and governance authority over a university is vested in its [university’s] Boards of Governors and Senates.”
THE DECISION
The Divisional Court found that by interfering with the agreement between student unions and universities, the SCI posed a threat to universities’ autonomy from the government.
Louis Century, an associate at Goldblatt Partners and lawyer for the CFS-O, sees the decision as proof of the importance of student unions.
“I would hope that student unions would read this decision as an affirmation of the central role that they play on campuses. That was a core part of the Court’s decision, is recognizing that . . . they’re actually core to what happens on campuses at universities, so much so that the government overriding their affairs is overriding the autonomy of the university generally,” he said.
“I would hope that student unions would read this decision as an affirmation of the central role that they play on campuses. That was a core part of the Court’s decision, is recognizing that . . . they’re actually core to what happens on campuses at universities, so much so that the government overriding their affairs is overriding the autonomy of the university generally,” said Louis Century, an associate at Goldblatt Partners and lawyer for the CFS-O.
The YFS and CFS-O also argued that the government had implemented the SCI in bad faith, on the basis of a politically-motivated attack on student unions. While the Court heard this evidence, it did not end up being a factor in determining the legality of the SCI.
In a fundraising email sent to the Conservative party in February, Premier Doug Ford wrote, “Students were forced into unions and forced to pay for those unions. I think we all know what kind of crazy Marxist nonsense student unions get up to. So, we fixed that. Student union fees are now opt-in.”
Kayla Weiler, the National Executive Representative of the Canadian Federation of Students-Ontario, believes that the SCI was about silencing the organizations critical of the Ford government that advocate on behalf of students.
“This was never about choice. It was always about the Ford government trying to silence the exact bodies that hold them accountable and challenge them to do better,” Weiler stated during a press conference on Nov. 22.
“This was never about choice. It was always about the Ford government trying to silence the exact bodies that hold them accountable and challenge them to do better,” Weiler stated during a press conference on Nov. 22.
Since its introduction, the SCI has been widely criticized. Student union representatives have argued that, while the purpose of the SCI was to allow students to decide where their money would go, student unions already have democratic procedures in place that allow students to decide which services to fund. At McMaster, for example, undergraduate students have the opportunity to vote on fees during annual general meetings, referenda and other processes.
Weiler believes that the implementation of the SCI was to question the validity of student unions as valid democracies and valid organizations.
“It’s about time for the government to recognize us as autonomous organizations. . .What we want is to be recognized as autonomous organizations that fight for student rights, and we don’t want to have government interference into our budgets or the work that we do and we don’t want the Premier to comment on the fact that we are crazy Marxists. What we want is legislation that protects us and not hurt us,” said Weiler.
“It’s important for these conversations to be held in a particular campus because Doug Ford is not a student in 2019. The Minister of Colleges and Universities is not a student in 2019 at Algoma University or the University of Windsor or George Brown College, so why are they making decisions for the students on these campuses?”
WHAT HAPPENS NOW?
Unless the decision is successfully appealed, the fee structure for student unions will return to normal.
“Any legal requirements that existed before this case was brought are now restored,” said Century.
The MSU, however, will not implement the results of the Court’s decision until the appeal period closes.
“Until we have the appeal period, and until we have that final decision, we do need to operate in the most financially stable way, which is assuming that those agreements are still in place,” said MSU president Josh Marando.
“Until we have the appeal period, and until we have that final decision, we do need to operate in the most financially stable way, which is assuming that those agreements are still in place,” said MSU president Josh Marando.
If the decision is upheld in Court, the results of the SCI will still be felt at universities and colleges across the province. Some Ontario student unions had to cut entire jobs and services this year as a result of SCI.
MSU general manager John McGowan pointed out that McMaster was lucky to be able to rely on reserve funds this year. However, student services have still felt the impact. With their budgets uncertain, services have had to hold off on hiring and long-term planning.
Furthermore, the MSU dedicated resources towards implementing the SCI and educating students about the process.
“There has been quite a bit of time and energy put into creating the fees, educating students on what those fees look like, as well as making sure that we're compliant with the framework and the new tuition and ancillary fee framework,” said Marando.
If the SCI decision is upheld in court, it will mean that an unlawful directive caused harm to campus services and student unions. Chris Glover, the MPP for Spadina–Fort York and the Ontario New Democratic Party’s postsecondary critic, noted that many campus services are currently struggling financially as a result of the SCI. Glover called on Ford to reimburse student services for the losses they incurred under SCI.
“I really think that the government should step up … Their actions were unlawful and now students are suffering, campus services are suffering, and the government should make up for this shortfall, Doug Ford should make up for this shortfall,” said Glover during a press conference.
If the student fee structure that existed before the SCI is restored, it is unclear how services and clubs whose funds have been negatively impacted may be compensated, if at all. Both CFS-O and YFS representatives emphasized that, at the very least, the Court’s decision should be a lesson as to the importance of engaging with and protecting the democratic processes at all universities and colleges.
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