Queen's Park, the seat of the Ontario government. DINA DONG/THE VARSITY

Earlier today, the Canadian Federation of Students–Ontario (CFS–O) and the York Federation of Students (YFS) concluded the first hearing in their court proceedings against the Ontario government on the Student Choice Initiative (SCI), with the justices choosing to deliver a decision at a later date. The case launched against the Ministry of Training, Colleges and Universities (MTCU) argues that the government overstepped their authority by enacting the SCI.

The SCI requires Ontario postsecondary institutions to allow students the option to opt out of certain incidental fees that are deemed “non-essential.” At U of T, the CFS–O’s fees were deemed non-essential. 

The CFS–O and YFS launched their application in the Divisional Court, a branch of the Superior Court of Justice and the main judicial channel to review government action in Ontario. If this case fails to come to a final conclusion at this level of the judicial system, it can be appealed before the Court of Appeal of Ontario — with the next highest court being the Supreme Court of Canada.

In its application for judicial review, filed on May 24, the CFS–O and YFS claim that the MTCU breached the legal principles of procedural fairness and natural justice by failing to meaningfully consult student groups on the SCI. 

The Honourable Justices Harriet E. Sachs, David L. Corbett, and Lise G. Favreau heard the oral arguments of all parties involved in the legal battle; however, they chose to render a decision at a later date, possibly after the U of T winter opt-out period begins on November 1.

The applicants

Lawyers representing the CFS–O and YFS argued that the MTCU not only lacked the authority to impose the SCI on universities, but also alleged that the province intentionally structured the policy to target student associations. 

The University of Toronto Graduate Students’ Union joined the legal challenge as interveners. Their representatives gave a brief supporting argument. 

In the midst of intense scrutiny from the judges, student groups asserted that the SCI interfered with the autonomy of universities. They asserted that the MTCU has no statutory authority to impose the SCI on agreements between the university and student groups — citing historical and legal precedent for the autonomy of universities and student unions.

The Minister’s operational jurisdiction is set out in the MTCU Act, the content of which CFS–O and YFS claim provides no authority for the province, specifically Premier Doug Ford and his cabinet, to force universities to comply with the SCI. 

In addition to a host of concerns about the way the SCI has changed the funding and future operations of student associations, these groups see Ford as having a personal animus against them. In a fundraising letter sent to Progressive Conservative party supporters, Ford wrote that student unions are engaged in “crazy Marxist nonsense.” While there was some debate about the admissibility of Ford’s campaign letter, the court decided to hear all arguments first.

The applicants point to the letter as evidence that the SCI isn’t truly aiming to give students a choice, but rather to “marginalize and silence student groups which are perceived as critics of the governing party,” as they wrote in their application for judicial review.

The respondents

Lawyers representing the MTCU argued that the SCI is about promoting choice. The respondents also noted that the SCI is reflective of the overarching policy of this provincial government which deals with “affordability, accountability, … transparency, … autonomy, and freedom of choice.”

Addressing whether the SCI constitutes an overextension of power, the respondents said that the government is “interested in making the postsecondary experience affordable for everyone,” and that they are entitled to a degree of influence over these institutions.

The respondents faced a slew of questions from the bench, including an inquiry into why the government would present the SCI as a tool to promote affordability while simultaneously cutting student aid and reducing funding for organizations that defend student accessibility, “all in the name of financial accessibility for students.”

The respondents further explained that the SCI focuses on incidental fees itself, not on the specific student associations. This was in response to the applicants’ assertion that the categorization of essential and non-essential fees was arbitrary and unfairly targeted toward student associations. They also noted that some student association fees may be declared essential, and that the government did provide notice to student organizations. 

The government’s counsel claimed that notice was given to student organizations regarding the SCI on January 17 and that a period of questions and answers followed this notice.

In closing remarks, the applicants responded that January 17 was the same day the SCI was announced to the public and that the memo to student associations merely asked if groups had any questions regarding the policy. 

B’nai Brith Canada, an organization committed to “defend[ing] the State of Israel…[and] combatting antisemitism,” according to their website, supported the respondents in the hearing. They believe that the SCI is “measured” and “balanced.”

The organization has been an outspoken critic of the CFS for its endorsement of the Boycott, Divestment, and Sanctions movement, a campaign that calls for sanctions against Israel in response to alleged human rights abuses in Palestine.

Responses to the Hearing

The Varsity caught up with Kayla Weiler, National Executive Representative for the CFS–O, to ask about how a delayed judicial decision might affect campuses, especially as student associations may have to contend with another semester of reduced funding. 

Weiler said that in regards to the fall semester’s opt-out period, “there was still a lot of confusion between administration, student unions, student organizations, and the students as their members… I think we’re going to see more of that happen in the winter semester.”

The MTCU wrote to The Varsity that since the courts have not issued their ruling it would be inappropriate for them to comment at this time.

The Varsity has reached out to U of T Media Relations for comment.

The story is developing, more to come.

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