On November 21, the Divisional Court of Ontario struck down the Student Choice Initiative (SCI), leaving postsecondary institutions and student associations uncertain about how to proceed. Downtown Legal Services (DLS) Executive Director Lisa Cirillo told The Varsity that any plans by the province to repeal the decision or introduce legislation will be difficult.

While stakeholder groups struggle to make sense of the future, U of T has removed its incidental fee opt-out portal online as it “evaluate[s] the technical impact of the Divisional Court’s decision,” wrote a university spokesperson. The Ministry of Colleges and Universities (MCU) wrote to The Varsity that it “is currently reviewing the decision.”

Background of the SCI

In January, the SCI was announced as a provincial mandate to Ontario universities and colleges that opt-out options be provided for certain incidental fees that were deemed “non-essential,” with the government outlining the criteria for mandatory fees. In May, the York Federation of Students (YFS) and the Canadian Federation of Students–Ontario (CFS–O) launched a legal challenge against the SCI, requesting that the court quash the initiative.

Following a court hearing in October, the Honourable Justices Harriet Sachs, David Corbett, and Lise Favreau ruled in favour of the YFS and the CFS–O, finding that the province was acting illegally by interfering in the relationship between postsecondary institutions and student associations.

Downtown Legal Services on the effects of decision

DLS is a legal aid clinic that is partially funded by student levies; it felt the effects of the SCI first hand. At its Annual General Meeting earlier this year, the University of Toronto Students’ Union announced that DLS had 19 per cent of students opt out of its fees.

Cirillo believes that while the government has the ability to appeal the decision or use the legislature to expand the powers of the province, the path ahead will be difficult for the province. “The court has laid out really firmly: this is the territory of universities and student unions within the universities, and we don’t believe that you can encroach on that.”

Recapping the court’s decision and the arguments presented by both sides, Cirillo said: “The court granted the application on the basis of the first [argument], they said that these directives were illegal and inconsistent with the legislative schemes… And they found they didn’t have to go to the other two arguments because they could decide the case on the basis of the first one.”

“The government had no legal basis to issue this directive, but I think it leaves us in such an interesting place because the universities and colleges had to comply,” Cirillo said. “[But] they’ve all created this enormous new electronic registration infrastructure that provides opportunities to opt out.”

On what quashing the directive will entail, Cirillo says that universities, independent from the government, could continue to open their opt-out portals, but whether that would be the case is up to the institutions themselves.

Cirillo points out a particular passage that summarizes the court’s answer to the province’s argument that the SCI couldn’t be struck down by the courts: “Neither argument justifies exempting the impugned directives from judicial review for legality. To hold otherwise would undercut the supremacy of the legislature and open the door for government by executive decree, a proposition repugnant to the core principles of parliamentary democracy.”