BREAKING: Ontario Court of Appeal upholds SCI as ‘unlawful,’ rejects Ford government appeal

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By Thea Gribilas and Sarah Tomlinson

The Court of Appeal for Ontario has unanimously upheld a Divisional Court ruling declaring that the Student Choice Initiative (SCI) is unlawful and an attack on universities’ independence, rejecting the Ford government’s appeal to reinstate the policy.

“In my view…the [Divisional Court] reached the correct conclusion: The ancillary fees framework conflicts with the legislation governing Ontario’s colleges and universities and cannot be imposed upon them by the exercise of executive authority,” said Justice Grant Huscroft in the decision released Wednesday.

According to Kayla Weiler-Fox, a national executive representative for the Canadian Federation of Students — Ontario (CFS-O), the SCI constituted an assault on democratic processes and students unions which was “unnecessary and unlawful.” 

“Student unions exist on campuses around the world to provide students with a united voice, advocate for change and operate essential support services,” said Weiler-Fox.

“Ontario’s students deserve the same and it is not the place of the premier or minister to interfere with long-standing democratic processes,” Weiler-Fox added.

In the judgment, Justice Huscroft said universities must be self-governing in order to achieve the goals outlined in the various University Acts and called the SCI “a profound interference in university autonomy.” Justice Michal Fairburn and Justice Katherine van Rensburg agreed with his remarks.

“Mandatory fees for student associations—collected by universities and remitted to the student associations—have been in place since the 1960s,” said Huscroft. “This funding structure has permitted student associations to play important roles in university governance.” 

Huscroft went on to clarify that this autonomy exists because the Legislature has chosen not to regulate universities, instead establishing them as autonomous entities free from government interference in matters of internal governance.

“Universities have exercised their authority to establish a mandatory fee system in order to promote student associations and their participation in university governance,” the decision reads. 

Huscroft concluded that the SCI’s framework of ancillary fees is inconsistent with the established mandatory fee system and cannot be imposed through executive authority.

“We hope in the future the Ontario government will begin to prioritize funding and safety precautions needed during this pandemic, rather than taking democratic student organizations to court and wasting public money”

A press release from the CFS-O reaffirmed the essential nature of student unions and services throughout the COVID-19 pandemic, including equity centres for marginalized groups, food banks and other services students rely on.

“The SCI was never about saving students money, it was an attempt to silence and defund students’ unions and groups that are critical of and hold the government accountable,” CFS-O stated. 

The CFS also urged the province to respect the decisions of the Divisional Court and Court of Appeal and refrain from taking the issue to the Supreme Court. 

“We hope in the future the Ontario government will begin to prioritize funding and safety precautions needed during this pandemic, rather than taking democratic student organizations to court and wasting public money.”

The government was also ordered to pay CFS $20,000 in order to cover the costs of the appeal, including legal fees.

History of the SCI

Introduced in January 2019 and implemented for the 2019-20 academic year, the SCI allowed post-secondary students to opt-out of ancillary fees deemed “non-essential,” which were previously a mandatory part of tuition fees. These fees funded campus student groups, cultural associations, student unions and campus media organizations such as radio stations and newspapers.

Ryerson groups that were impacted by the policy included the Ryerson Students’ Union and its equity centres, the Continuing Education Students’ Association of X University, Ryerson’s campus radio station CJRU and The Eyeopener. Opt-in percentages ranged from 43 to 79 per cent.

Many other student groups in Ontario faced significant reductions to their operating budgets as a direct result of the SCI, such as the University of Ottawa, which lost roughly $155,000 in funding for student life and organizations on campus. These cuts also resulted in permanent staff layoffs and some groups disbanding entirely.

​​The CFS and York Federation of Students initially filed a legal challenge against the SCI in May 2019, with the court ruling in their favour months later in November. 

In March 2020, the government sought an appeal to overturn an Ontario Divisional Court’s unanimous decision ruling the SCI as “unlawful.” 

With files from Tyler Griffin, Catherine Abes, Madi Wong and Emma Sandri

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