On November 21, the Divisional Court of Ontario unanimously ruled in favour of the Canadian Federation of Students–Ontario (CFS–O) and the York Federation of Students (YFS) in a legal challenge that repealed the provincial government’s Student Choice Initiative (SCI).

The SCI — which took effect at the beginning of the 2019–2020 academic year — was a controversial directive from the province’s Ministry of Colleges and Universities (MCU) that allowed postsecondary students to opt out of certain incidental fees deemed “non-essential.”

While student groups have been celebrating their victory over the Ford government in court, the specifics of the SCI’s demise remain in legal ambiguity.

Substantial funding changes for student groups

The SCI was created by the provincial government to direct colleges and universities to allow students to opt out of “non-essential” incidental fees, with guidelines for “essential” fees laid out by the province.

“Students are adults and we are treating them as such by giving them the freedom to clearly see where their fees are currently being allocated,” announced then-Minister of Training, Colleges and Universities Merrilee Fullerton at a press conference on January 17.

The policy was part of a broader set of sweeping changes to postsecondary education, including to domestic tuition and the Ontario Student Assistance Program (OSAP).

Despite multiple student associations organizing marches, and critics opposing the policy, the province went forward with its directive to universities and colleges, and categorized fees as “essential” and “non-essential.” The opt-out policy’s guidelines were officially released in March, and were implemented at the start of the 2019–2020 academic year.

During its Annual General Meeting in October, the University of Toronto Students’ Union (UTSU) revealed the opt-out rates for specific fees, and noted that it saw an average opt-out rate of 23.6 per cent. Substantial funding changes were made to student aid, clubs funding, and orientation as a result. The SCI also had an impact on other student groups, including college student societies, levy-funded groups, and campus media — including The Varsity.

The success of legal resistance

In their application for judicial review that was filed on May 24, the CFS–O and the YFS claimed that the MCU lacked the legal authority to implement the SCI, and was also in breach of procedural fairness as it failed to consult with or adequately notify student groups.

On October 11, Honourable Justices Harriet Saches, David Corbett, and Lise Favreau heard arguments from the applicants, the CFS–O and YFS; the province; and two intervenors: the University of Toronto Graduate Students’ Union (UTGSU) in favour of the CFS–O and YFS; and B’Nai Brith of Canada League for Human Rights, in favour of the government.

The Divisional Court of Ontario concluded on November 21 that “Ontario does not control [the relationships of student associations and universities] directly or indirectly.” It went on to note that the province’s cabinet and ministry had no authority to interfere in the internal affairs of student associations.

The court ruled that the application of certiorari — an appeal of legislation and court decisions — was granted and revoked the SCI.

Responses to the ruling

“I’m ecstatic about this,” said MPP for Spadina–Fort York, and the Ontario New Democratic Party’s postsecondary critic, Chris Glover, in an interview with The Varsity. Glover has been a vocal advocate against the SCI since its announcement. He joined CFS–O National Representative Kayla Weiler and YFS President Fatima Babiker at a press conference on November 22, announcing the end of the SCI.

“You cannot just undermine the legal rights of students and their unions and the services that they provide on campus,” said Glover. He also expressed his belief that the language of the court’s decision would impede any attempt by the province to reinstate a similar mandate. “So, this is a landmark decision.”

Glover also called on the Ford government to pay student groups the fees that were lost in the first opt-out period for the fall 2019 term.

CFS–O Chairperson Felipe Nagata is celebrating alongside Glover and his colleagues. Despite the CFS fee having one of the highest opt-out rates that the UTSU reported, Nagata is dedicated to a collective union: “Victories like this one today just show how much strength in numbers that we have.”

Michael Mostyn, CEO of the intervenor group B’nai Brith Canada, lamented the government’s loss in court and promised to intervene again if the government decides to appeal the decision: “There may also be a legislative solution to ensuring that Jewish students are no longer obligated to self-discriminate against themselves through mandatory student union dues, and we will be sharing our further thoughts in this regard with the Government of Ontario.”

In the past, B’nai Brith has criticized student groups, including the CFS, for supporting the Boycott, Divestment, and Sanctions Israel movement, which it calls anti-Semitic. B’nai Brith also led an opt-out campaign against the CFS under the SCI.

However, the UTGSU, the other intervener, called the decision a “historic victory not just for the UTGSU, but for students across the province and for the student movement broadly.” Branden Rizzuto, former Finance Comissioner of the UTGSU, writing on behalf of the UTGSU’s Legal Ad-Hoc Committee, agreed with the court’s ruling and recognized the SCI as an “attack on the democratic autonomy of Ontario student associations.”

“We don’t know the ramifications of this decision”

Other unions have expressed similar sentiments of relief at the court’s decision, although with some hesitation. UTSU President Joshua Bowman wrote that the union will continue to operate as if the ruling had not happened, and explained that this is “because we don’t know the ramifications of this decision, and because it is apparent that the university doesn’t either.”

Apprehensive of the court’s decision and action that could still be taken by the province — such as an appeal to the decision or legislation to enact similar policies — Bowman is skeptical of the real impacts of the SCI being overturned. “The underlying message of this decision is that the provincial government does not have the authority to circumvent student unions and university governance structures through ministerial action,” wrote Bowman. “This decision has not led to us being consulted further, or even being communicated with further.”

In response to the announcements in court, U of T preferred not to comment until a later date. “The University is aware of the decision of the Divisional Court and is evaluating the technical impact. There will be an update next week,” wrote a university spokesperson to The Varsity.

An MCU spokesperson also deferred commenting on the decision, writing to The Varsity that it is “currently reviewing the decision… We will have more to say on this at a later date.”

—With files from Hannah Carty.