Following a Divisional Court of Ontario ruling in November, the University of Toronto has decided that all students will be required to pay the full incidental fees — both optional and mandatory — for the winter 2020 semester.

In its ruling, the Divisional Court found that the Ford government’s Student Choice Initiative (SCI) — the mandate for universities to implement opt-out options for certain incidental fees — impugns on their autonomy. In early December, The Globe and Mail reported that the Ford government would be seeking an appeal of the court’s decision.

The SCI’s tumultuous journey from the government’s executive action to the impending court appeal has played out over the past 12 months. It began with an announcement in January of last year, followed by multiple student-organized protests and confusion within universities regarding the government’s “essential” and “non-essential” fee categorization.

For the fall 2019 semester — the only semester where the SCI was implemented — students could opt out of an average $60 out of $850 of incidental fees, according to of fees across campuses and colleges.

Province appeals court decision

Honourable Justices Harriet Sachs, David Corbett, and Lise Favreau wrote in their decision to strike down the SCI: “Universities are private, autonomous, self-governing institutions. They are ‘publicly assisted,’ but not publicly owned or operated.”

As a direct admonishment of the government’s argument, the justices wrote that for over a century, “Ontario has had a legislated policy of non-interference in university affairs… conferring on university governing councils and senates the authority and responsibility to manage university affairs.”

A brief obtained by The Globe and Mail on the government’s appeal of the SCI outlined the province’s argument for its appeal of the Divisional Court’s decision, primarily hinging upon the court’s decision that the SCI had overstepped the province’s authority in the governance of universities.

As part of its appeal, the government is arguing that the autonomy of colleges and universities is not being violated: “Attaching conditions to government grants in no way interferes with university autonomy and independence.”

The government brief further stated, “Universities remain free to exercise their independence and autonomy through the choice to accept public funding, subject to whatever conditions are attached.”

Provincial operating grants make up 24.1 per cent of the university’s overall 2019–2020 revenue, with its core operating grant standing at $578.2 million per year. However, since 2017, the university has actually received more money from international student tuition than from the province.

“The decision on what financial barriers to education are sufficient to warrant a policy response is precisely the kind of value-driven determination for which elected decision-makers ought to be accountable to the public,” argues the government in its brief. “And should attract deference from a reviewing Court.”

In one of the few comments that Minister of Colleges and Universities (MCU) Ross Romano has publicly made since taking the MCU position from Merilee Fullerton — under whom the SCI was implemented — Romano remarked that “I’m not able to elaborate… but what I can say is that we have protected certain programs or certain services as essential,” as reported.

Downtown Legal Services (DLS) was among the many organizations that faced serious cuts from the Ford government. Lisa Cirillo, Executive Director at DLS, spoke to on what a government appeal could mean and look like.

“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,” Cirillo said.

Cirillo refers to a passage in the decision where the court rebuked the government’s argument that the SCI was outside of the court’s jurisdiction of review, saying that doing so “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.”

University suspends opt-out portal

“The University suspended access to the online site that enabled students to opt out of incidental fees for the winter term, following the decision of the Divisional Court regarding the Student Choice Initiative,” wrote a university spokesperson to The Varsity.

As the SCI was overturned, universities had the choice to independently continue or discontinue opt-out portals for their incidental fees. U of T has decided all students must pay fees for the winter 2020 semester, and has thus shut down the online opt-out portal on ACORN.

“Opt-out selections for the Winter 2020 term are not available. Students will be required to pay all optional and mandatory fees for the Winter 2020 term.”

The Varsity has reached out to the Ministry of Colleges and Universities for comment.