By Charlize Alcaraz, Alexandra Holyk and Heidi Lee
To read about the next steps regarding the appeal, scroll to the bottom of the article for more information.
Student associations were “targeted” by the Student Choice Initiative (SCI) introduced by the provincial government in January 2019, justices from the Court of Appeal for Ontario heard on Tuesday.
The government, led by Premier Doug Ford, is seeking an appeal to overturn an Ontario Divisional Court’s unanimous decision that ruled that the SCI was “unlawful.”
The Canadian Federation of Students (CFS) Ontario and York Federation of Students (YFS) initially filed a legal challenge against the SCI, with the court ruling in their favour in November 2019. In their decision, the court stated that the directives underlying the initiative were “inconsistent with the legislation governing colleges and universities,” allowing the provincial government to act beyond the scope of its authority.
“The SCI was never about saving students money but was an attempt to defund student unions and groups,” said CFS-Ontario chairperson Sébastien Lalonde. “As a whole, that’s something that was outside of the authority of the Minister of Colleges and Universities.”
The SCI was implemented during the 2019-20 school year, giving students the ability to opt-out of certain fees that were previously mandatory in their tuition.
Ryerson groups that were impacted by the policy included the Ryerson Students’ Union and its equity centres, the Continuing Education Students’ Association of Ryerson, Ryerson’s campus radio station CJRU and The Eyeopener. Opt-in percentages ranged from 43 to 79 per cent.
After several hours in the virtual court of appeal, with arguments being made by the provincial government, the CFS and YFS’s legal team and several intervenor groups, it’s not yet clear when a decision will be made by Associate Chief Justice J. Michal Fairburn, Justice Grant Huscroft and Justice Katherine van Rensburg.
Ontario government’s arguments
Sunil Mathai, the appellant representing the Minister of Colleges and Universities in favour of the SCI, argued that when universities accept public funding they effectively consent to any conditions set out in the use of this funding.
“There is no legislative requirement that the Crown provide public funds to universities,” he said. “Universities have no legal right to these funds and the universities are not obligated by statute to accept the funds.”
If universities don’t want to follow conditions set out by the government then they could refuse public money and recuperate funds through other means, such as raising tuition or charging international students more, he continued.
After his argument, Justice Fairburn asked, “Mr. Mathai, can we just live in the real world for just a second here? Are you actually suggesting it’s a viable option for universities to say, ‘No, thank you. We won’t take your funding. But thanks anyway’?”
In response, Mathai said, “we can’t force the university to take our money. But when they do, they’re subject to our restrictions.”
Mathai argued that quashing the SCI would jeopardize other Ministerial policies, such as the 10 per cent tuition cut and freeze. He added that tuition caps and the SCI are similar, as both policies are forms of government intervention into a post-secondary institution’s decision-making.
“[Students] like tuition caps, they like tuition freezes…what they don’t like is ancillary fees,” Mathai said. “With great respect, if the court’s going to adopt an approach, it has to do an approach that is principled and not based on valuing one policy more than another policy.”
“Can we just live in the real world for just a second here? Are you actually suggesting it’s a viable option for universities to say, ‘No, thank you. We won’t take your funding. But thanks anyway’?”
In its submission, the respondents pointed out that student associations are being “targeted” by the government to be defunded; however, Mathai argued this isn’t the case and that there’s “no evidence” that the intent was to harm marginalized individuals.
“What [CFS/YFS] are really arguing is [the SCI] impacts student associations more than universities. That may be in fact the case, but that’s line drawing that the government is entitled to do,” he said. “The government is entitled to choose winners and losers. The government is entitled to benefit more than others.”
Fairburn questioned Mathai’s assertion, asking “Why do you say so definitively that there’s no targeting here? Why can’t you look at it in reverse and ask the question, ‘Who has this actually impacted?’ And if the answer to that were groups representing marginalized students…how is that not some evidence of potential targeting?”
Justice Fairburn also mentioned that some of the intervenors have “characterized” the groups representing marginalized students.
Six groups were granted intervenor status in the case: the B’nai Brith League for Human Rights, the University of Toronto Graduate Students’ Union; Start Proud and Guelph Queer Equality (collectively, the “LGBTQ+ Coalition”); the University of Ottawa, Queen’s University, the Governing Council of the University of Toronto, the University of Waterloo, and the University of Western Ontario (collectively, the “Universities”); the Association for Canadian Clinical Legal Education (ACCLE); and the Canadian Journalists for Free Expression, the Centre for Free Expression, the Canadian Association of Journalists, PEN Canada, World Press Freedom Canada, and the Canadian Association of University Teachers (collectively, the “Coalition”).
On behalf of the B’Nai Brith, David Elmaleh and Aaron Rosenberg argued that the SCI respects the freedom of choice for all students.
“If the court considers the alleged arbitrariness of the [SCI]…this court [should] also take into account the perspective of all the students and not just the students that support [student] associations,” Elmaleh said.
CFS/YFS arguments
Louis Century, representing the respondents CFS and YFS, centred his argument on defending the Divisional Court’s initial decision, saying “We believe the court’s ultimate conclusion and part of the court’s findings are factual findings, including expert evidence.”
Century also raised two new issues: that the SCI “was arbitrary and made for an improper purpose” and that the “Minister breached the duty of procedural fairness” by failing to notify or consult the respondents prior to establishing the directives, despite the fact that they were clearly targeted, the respondents’ factum reads.
While the CFS and YFS argued that the SCI was made in “bad faith” in their initial legal challenge, the Divisional Court did not rule on the argument.
Century said although the Crown has the power to fund universities and attach certain conditions, the power shouldn’t be used to interfere with decisions of the university and the autonomy of student government.
Since student governments and associations “are not created [nor] funded by Ontario or universities,” but belong to and are funded by students, it’s not up to the Ontario government to decide how funds should be allocated, according to the Divisional Court’s findings.
In response to the minister’s argument that tuition caps could be negatively impacted by upholding the SCI, Century noted that tuition caps don’t impose on university governance choices, whereas the SCI does.
Although the SCI and a tuition cap is similar in a way that it “saves students money,” the SCI centers around the Ontario government’s preferences of what is deemed essential and non-essential rather than the university’s.
“If the Crown is free to circumvent the [University Acts] through its spending power and to dictate those internal decisions through the backdoor, that would wholly frustrate the act,” he said, referring to the legislation that protects university autonomy.
Regarding the improper purpose of the SCI, Century cited the Divisional Court’s factual findings that questioned why certain programs were targeted and others were not. One example was that varsity athletics were considered essential and student government was not.
“The generic rationale of ‘student choice’ does not provide an even minimally plausible explanation for the Minister’s decision to impose an opt-in for democratic student fees, while keeping most institutional fees mandatory,” the respondents’ factum reads.
“If the Crown is free to circumvent the University Acts through its spending power and to dictate those internal decisions through the backdoor, that would wholly frustrate the act”
The intervenor group known as the “Coalition” was represented by Phil Tunley, who also questioned the SCI’s motives. He argued that the SCI not only targeted student association fees but campus newspapers, without a reasonable explanation from the premier.
“This policy initiative specifically targeted university and college student speech and democratic participation because of its political character and because the premier saw it as ‘crazy Marxist nonsense’,” Tunley said.
This was referring to a fundraising email the CFS/YFS submitted to the court in the initial legal challenge, in which Premier Ford bemoaned what he called “crazy Marxist nonsense” from student unions, adding that he “fixed that” by making student union fees optional.
The last intervenors to speak were Pam Hrick and Dragana Rakic on behalf of Start Proud and Guelph Queer Equality. Both Hrick and Rakic questioned why services and groups that support the LGBTQ2IA+ community are deemed non-essential under the SCI guidelines.
“The logic that a service is non-essential because not all students use it is not applied consistently under the SCI framework,” Rakic said, adding that not all students will use services that charge compulsory fees, such as athletics, career counselling or health counselling on campus.
What’s to come?
If the appeal is granted, the CFS will look to take the case to the Supreme Court of Canada, according to Lalonde.
If the appeal is dismissed, Lalonde said, “It’s really going to help us be able to assure student unions’ budgets going forward…the advocacy and the work that we do is going to be a little bit more secure and the rights of students will be defended.”
In a virtual town hall hosted by CFS on March 19, Century explained that the court’s decision is to be expected in the range of a few months and “certainly not within days or even weeks.”
Practically speaking, Century said student unions should be preparing for the possibility that the SCI will be enforced again, should the appeal be granted.
Lalonde, however, said that CFS-Ontario is “feeling quite confident” about their case.
“The Divisional Court ruling was a unanimous win on the first argument alone the first time, and so we’re hoping for another legal win,” he said.
“We are going to overcome the SCI, but we should never let our guards down”
Azinwi Kien, president of YSF, told The Eye the appeal demonstrates the government and the administration’s determination to silence students and undermine student efforts.
She said students are always the ones who speak against the administration and the oppressive policies, so the SCI is a tactic to silence the students by defunding their organizations.
“[Even if] we win this appeal, administrations and governments will come up with another way to silence students,” she said. “We are going to overcome the SCI, but we should never let our guards down.”
With files from Catherine Abes
Read more of our coverage of the Student Choice Initiative here.
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