Update: This article has been updated to include a comment provided by Ryerson Students’ Union vice-president education Kwaku Agyemang, who was present at the court hearing.
By Emma Sandri
The decision by Premier Doug Ford’s government to make some student fees optional is an attack on universities’ independence and is in bad faith, an Ontario Divisional Court heard on Friday.
Lawyers for the Canadian Federation of Students (CFS) and the York Federation of Students (YFS) argued that the provincial government had no authority to implement a policy mandating that colleges and universities make some student fees “non-essential.”
“The autonomy of universities is threatened,” said Mark Wright, lawyer for the applicants, YFS and CFS.
The Eyeopener previously reported that the CFS and YFS filed a legal challenge against the Ontario government’s Student Choice Initiative (SCI), which was first announced in January by Merrilee Fullerton, former minister of training, colleges and universities.
The SCI gives post-secondary students the ability to opt-out of certain previously mandatory ancillary fees, which the government deemed “non-essential” in March of 2019.
Fees that were made non-essential include campus student groups, cultural associations, student unions and campus media organizations, such as radio stations and newspapers. That includes the Ryerson Students’ Union, the Continuing Education Students’ Association of Ryerson, Ryerson’s campus radio station CJRU and The Eyeopener, among others.
A legal challenge, also known as a judicial review, is a process where the court is asked to consider a decision by a tribunal or organization—like the provincial government—and to decide if the decision was appropriate.
In this case, lawyers of the CFS and YFS are asking the Divisional Court to quash an order of an administrative body made without jurisdiction—this is known as certiorari.
Lawyers representing the Ontario government, however, maintain that the SCI is a reflection of the government’s prioritization of affordability and transparency.
“[Students] are able to see…What exactly each and every service [they are charged for] is,” said Antonin Pribetic, a lawyer representing the provincial government.
Student life at Ryerson has already been affected by the SCI. The Oakham House Choir was told to disband by the end of the school year due to the lack of funding it received following the SCI’s implementation, and half of campus radio stations are at risk of closing down according to an NDP release.
Many campaigns have been taking place to protest the SCI directive and cuts to the Ontario Student Assistance Program (OSAP), such as the We The Students RU collective and the Ryerson Student Strike campaign.
The CFS represents over 350,000 students in Ontario, including the YFS.
“At its core, it’s union-busting, it’s anti-democratic—since it’s trying to supersede the student referenda that students had to participate in [and] vote [in] to establish these fees,” Kayla Weiler, the national executive representative of the CFS-Ontario, told The Eyeopener.
‘A direct attack’: Weiler
According to CFS and YFS lawyer Mark Wright, the government did not provide any reasoning in its guidelines for how it decided which student services were essential.
He alleged the changes made to ancillary fees were arbitrary and there was no consultation with student associations.
Wright told the court that students associations and groups were “targeted” by the SCI, and the ministry acted with “improper motive” and in “bad faith.”
“I think we all know that kind of crazy Marxist nonsense student unions get up to, so we fixed that,” said Ford in a fundraising email, read aloud by Wright.
According to Wright, Ford’s email—which was sent a month after the government announced they would implement the SCI—shows the purpose of the Ontario cabinet’s implementation of the SCI.
Louis Century, another lawyer for the CFS and YFS, alleged the SCI is an infringement on universities’ ability to make their own independent choices, and the policy forces universities to breach their own contracts with student governments—such as their collection of mandatory fees on behalf of the student unions.
“We see the [SCI] as a direct attack on ourselves because we’re the groups and organizations that hold the government accountable, and the administrations accountable,” Weiler said. “Whether it’s cuts to OSAP or sexual violence on our campuses, we do this work to both create safer spaces and to advocate for students’ rights.”
Lawyer for the Ontario government, Kisha Chatterjee, told the court that the ministry sent out a memo on the day the SCI was announced—Jan. 17—and that the ministry released a “Q&A” after it received questions from student associations and unions.
Chatterjee also said the ministry made subsequent refinements to the SCI, such as the inclusion of varsity teams as “essential fees” following concerns raised by universities and colleges.
“Student associations can continue to make payment of membership fees a requirement…what has changed [is] the mandatory collection of that fee [by postsecondary schools],” she said.
According to Weiler, the CFS was not consulted by Fullerton or the ministry of training, colleges, and universities before implementing the SCI. Rather, the CFS received a memo from the ministry inviting the organization to a press conference to ask questions about the SCI in January.
“Something like the [SCI] cannot be consulted in one day,” Weiler told The Eye. “If they had consulted us, we would have told them flat out that this is a bad policy because it’s not putting students first.”
The court also heard about colleges as a separate issue. According to lawyers from CFS and YFS, the Ontario government violated section 7 of the Ontario Colleges of Applied Arts and Technology Act, which states: “Nothing…restricts a student governing body of a college elected by the students…from carrying on its normal activities.”
Century alleged that the SCI prevented these student governments from “normal activities,” by taking their funding away.
‘Why is it the ministry’s business?’: justice
According to Pribetic, the SCI’s implementation cannot be reviewed by the court as the policy relates to funding of universities and colleges, which the provincial government has control over.
However, Wright said that student associations do not provide universities with any funding—all of their money is obtained by way of mandatory student membership fees.
Any university that doesn’t comply with the SCI may be required to reimburse students, said Wright. He added that if the universities cannot reimburse students, their provincial operating grants may decrease.
Approximately one-third of a university’s operating revenue comes from the provincial government, while the other two-thirds come from tuition, said Wright.
But according to Pribetic, the SCI gives students freedom of choice by allowing them to decide whether they want to pay for certain on-campus “services.”
“[The SCI] is not banning, prohibiting, or saying ‘You cannot be a part of a student union’,” said Pribetic.
Justice David Corbett, one of three justices present, asked Pribetic why citizens cannot opt-out of paying for the army or paying their taxes.
He also questioned Ontario’s motives for the SCI, asking, “is the government being candid about why they are doing this?”
Corbett noted that the SCI was introduced alongside cuts to OSAP, a program intended to aid students financially in their pursuit of post-secondary education.
“If the defence is affordability, how can you justify this [policy] with [cuts to] OSAP?” Corbett asked.
Since the cuts to OSAP, some students have reported receiving thousands of dollars less in provincial grants.
The Eyeopener has published articles surrounding how OSAP cuts have negatively affected students, such as students being forced to take time off from university to work, how the fight for OSAP has affected their lives and having difficulty affording their commute to school.
“Why is it the ministry’s business what is an essential or non-essential service [on campuses]?” asked Corbett.
According to Pribetic, the government wants to make tuition affordable to everyone, and by having the ability to opt out of one-third of student fees, it can be significant in helping struggling students.
A hopeful feeling
Weiler said she feels more confident about the legal challenge after seeing the courtroom full of students from across Ontario.
Students and representatives from the YFS, Ryerson Students’ Union (RSU) and the CFS filled the seats of the courtroom.
The RSU has been a member of the CFS since 1982.
“The arguments that were presented [today] just reaffirmed and reconfirmed that the [SCI] is a bad policy and it should be removed,” she said. “It’s doesn’t help students…Rather, [it’s] hurting students on our campuses. So [I’m] feeling a bit more optimistic.”
RSU vice-president education Kwaku Agyemang was present for the first half of the hearing on Friday.
In an email, Agyemang said that the legal challenge is an important step in “challenging the government’s harmful attacks” on student associations and unions, adding that the RSU stands in solidarity with the CFS and the YFS.
“Ryerson students should care about this as this is an important opportunity to repeal the SCI,” he said. “At face value, the SCI appears to save students money, however, the program actually diminishes the campus experience…It’s not fair that student associations, campus media and advocacy spaces that day in and day out work in the best interest for students have to restructure and limit their support due to this harmful directive.”
As a result of the SCI, the RSU can’t budget for “guaranteed student group and course union base funding,” said Agyemang. Instead, the RSU has had to adapt to a grant system in which student groups and course unions have to apply for grants.
While Ryerson students are no longer able to opt-in or opt-out of on-campus services this semester, approximately two-thirds of the fees they pay to student associations and unions are still mandatory.
The justices are reserving their decision for a later date, and may not return with a decision until after students are able to opt out of winter semester fees.
Correction: A previous version of this article stated that Weiler spoke during the hearing, when she did not. The Eyeopener regrets this error.