The final decision on whether or not to remove the Ontario government’s Student Choice Initiative (SCI) will be released four to six months after the appeal was heard in late March, meaning the ruling should be released before the end of summer. There may be additional delays due to COVID-19.
The SCI has been controversial since its conception and was quickly challenged by the Canadian Federation of Students–Ontario (CFS-O) and the York Federation of Students (YFS). In a previous statement to The Varsity, the government has defended the SCI as a promotion of “affordability and transparency for Ontario students.” U of T has declined to comment on the case while it is ongoing.
History of the court case
The SCI is a policy which requires postsecondary institutions to allow their students to opt out of certain incidental fees considered “non-essential.” It was first enacted in the 2019 and it faced heavy opposition from student groups in Ontario.
The CFS-O and YFS contested the policy by applying to the Divisional Court for a judicial review of the case, when a three-judge panel was tasked with determining whether the government’s decision was “fair, reasonable, and lawful.”
The SCI was initially struck down by the court, who agreed that the government’s directions were not consistent with legislation that allows postsecondary institutions to make their own decisions regarding services and fees. The government later appealed the decision, and the case appeared before a panel of three judges in the Court of Appeal for Ontario this March.
Interveners for the case
Associate Chief Justice J. Michal Fairburn, who is a judge of the Ontario Court of Appeal, allowed interested parties to intervene in the case. Interveners are meant to offer diverse perspectives and useful contributions to the court, which can be helpful in understanding the wider extent of a case’s impacts rather than solely focusing on how it affects the main parties.
Fairburn allowed interveners for various reasons. He wrote that the appeal has raised issues that have “a far-reaching impact on all publicly funded universities and colleges in Ontario, as well as the student organizations within those unions and the student body that attends them.”
One of the interveners, B’nai Brith, is in favour of the SCI, writing in a previous press release that some fees students must pay “include funding for organizations that do not align with the values of many Jewish students.”
However, many of the other interveners have raised concerns about the policy.
Teagan Markin, one of the interveners representing the University of Toronto Graduate Students’ Union (UTGSU), wrote to The Varsity that the case raises important questions about the government’s power in regulating universities. She wrote that the UTGSU hopes that the court will “uphold student associations’ freedom to determine their own membership fees and operational priorities through democratic processes.”
Similarly, M. Philip Tunley, an intervener for the Canadian Journalists for Free Expression, called the SCI “an attack on student democracy and the freedom of students to determine and express themselves together on issues of common interest and collective concern.” Moreover, Tunley considers the reduction in funding for campus news and radio services as “a politically motivated and targeted attempt to silence [them]… just because they have been vocal critics of the Premier’s government and its policies.”
Two interveners for Start Proud and Guelph Queer Equality, Dragana Rakic and Pam Hrick, also noted that the SCI reduced fee collection for many LGBTQ+ organizations and adovcacy efforts. “By way of example, Guelph Queer Equality itself saw a 35% decrease in funding,” wrote Rakic in an email to The Varsity.
The opt-out created confusion for universities over what fees were deemed “essential” and what was “non-essential.” Student associations and campus media were considered to be “non-essential” fees.
In an email to The Varsity, Vinidhra Vaitheeswaran, one of the two inteverners representing the Association for Canadian Clinical Legal Education, claimed that the terms “essential” and “non-essential” were “arbitrary and inconsistent with the ability of universities and student associations to govern themselves and determine funding priorities.”
Kayla Weiler, a representative for the CFS-O, felt it was important to acknowledge the success that the case has represented for students thus far. “This case reaffirmed the strength of the student movement to fight short sighted and regressive policies,” Weiler wrote in an email. “It has continued to bring students together in a united voice.”
David Elmaleh and Aaron Rosenberg, who are the interveners representing B’nai Brith of Canada League for Human Rights, declined to comment.
Robert A. Centa and Lauren Pearce, the interveners for the University of Ottawa, Queen’s University at Kingston, the Governing Council of the University of Toronto, the University of Waterloo, and the University of Western Ontario, also declined to comment.