In a unanimous decision, the Divisional Court of Ontario ruled in favour of student groups in a legal challenge over the Student Choice Initiative (SCI) — a directive from the province’s Ministry of Training, Colleges and Universities (MTCU) that allowed students to opt out of certain incidental fees. The Canadian Federation of Students–Ontario (CFS–O) announced today that its legal challenge of the SCI was successful, deeming the mandate unlawful.

In its application for judicial review, filed on May 24, the CFS–O and the York Federation of Students (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 YFS and the CFS–O, represented by Goldblatt Partners LLP, and the University of Toronto Graduate Students’ Union (UTGSU) as an intervenor, represented by Borden Ladner Gervais LLP, argued in front of the Divisional Court in October that the ministry was overstepping its authority in its implementation of the SCI and alleged that the initiative was specifically designed to target student associations.

The CFS–O also released a statement, saying: “Today the Ontario Divisional Court has confirmed what students already knew: The Student Choice Initiative is unlawful, and the Ford government acted beyond their authority.” Kayla Weiler, Ontario representative of the CFS, continues: “Doug Ford’s attempt to wipe out students’ unions under the guise of giving students ‘choice’ has been exposed for what it really was: an attempt to silence his opposition.”

The Varsity has reached out to the MTCU for comment.

This story is developing, more to come. 

Editor’s Note (November 21, 7:24pm): This article has been updated to reflect the UTGSU’s role and representation in the legal challenge, and the Ontario CFS’ statement.

The Canadian Federation of Students–Ontario (CFS–O), along with the York Federation of Students, launched a legal challenge against the Ontario government’s Student Choice Initiative (SCI) back in May. 

The SCI, originally announced in January by Merrilee Fullerton, the former Minister of Training, Colleges and Universities (MTCU), was part of a broad set of changes to postsecondary funding that requires universities to provide an opt-out option to students for non-essential incidental fees. 

Postsecondary institutions are required to implement the opt-out option for the upcoming fall semester or face a possible reduction in funding. U of T’s online opt-out system for non-essential incidental fees is live on ACORN, in compliance with the Ontario government’s guidelines.

In an email to The Varsity, Tanya Blazina, Team Lead, Issues Management and Media Relations for the MTCU, wrote, “as this matter is now before the courts, it would be inappropriate for us to comment at this time.”

The legal challenge

“The government, particularly, the Ministry of Training, Colleges and Universities doesn’t have the authority to impose a policy upon the memorandum of understanding between the student unions and the college and university administrations,” the National Executive Representative for the CFS–O, Kayla Weiler, said to the The Varsity in an interview.

Weiler also added that the collection and remittance of student society fees is determined democratically through student referenda and covered in the memorandum of understanding between the university administration and student associations.

Citing section seven of the Ontario College of Applied Arts and Technology Act, Weiler accused the provincial government of undermining the autonomy of student organizations through the SCI, which inhibits the ability of student governing bodies to collect fees. 

In addition, Weiler added that Fullerton misled students to believe that they would be able to save money by opting out of incidental fees, as the highest fees are still considered mandatory. 

At U of T, undergraduate Arts & Science students can opt-out of about 10 per cent of their total incidental fees, totalling around $50 to $70 depending on their college and campus.

What now?

In an interview with The Varsity, Nelson Wiseman, Director of the Canadian Studies Program and Professor of Political Science at the University of Toronto, expressed doubts about the CFS–O winning their legal challenge.

“My impression is that the students are going to lose this case.” 

However, Wiseman also added that the courts can make unexpected decisions, citing a judge in September that blocked Premier Doug Ford’s reduction of the Toronto City Council.

Multiple student organizations, including the University of Toronto Students’ Union and multiple college and student societies have also responded to the SCI by forming the ChooseUofT campaign at the St. George campus.

The Centre for Addiction and Mental Health (CAMH) has settled with U of T professor Kenneth Zucker over a 2015 report that erroneously described Zucker’s work at the centre. CAMH has also agreed to pay Zucker $586,000 in damages, legal fees, and interest.

The report in question detailed Zucker’s work as the former leader of the functional clinical and research team at the now-closed Child, Youth, and Family Gender Identity Clinic. The report falsely stated that he insulted a patient and practised conversion therapy on people who identified as transgender.

The external review, which included complaints against Zucker, was removed from the CAMH website in early 2016. Zucker was fired from CAMH after the review was published.

CAMH apologized “without reservation to Zucker for the flaws in the process that led to errors in the report not being discovered,” stating that the “the report contained some errors about Dr. Zucker’s clinical practice and interactions with patients.”

CAMH spokesperson Sean O’Malley offered the following statement via email to The Varsity:

“CAMH has reached a settlement with Dr. Ken Zucker following his departure from CAMH in 2015. CAMH stands by its decision to close the child and youth gender identity clinic following an external review which concluded the clinic was not meeting the needs of gender expansive and trans children and their families. We believe our modernized approach to delivering services to youth better supports diverse patients through best practice and timely care.”

In an interview with The Varsity, Zucker said that he “wasn’t able to speak publicly for three years” since the release of the report. He takes solace in the non-financial aspects of the settlement, particularly the public apology, which he claims has allowed him to be “vindicated and liberated” of false allegations.

The aim of Zucker’s work was to “reduce gender dysphoria” in children and youth, and he used one of three predominant approaches, which he refers to as “developmentally informed therapy,” to do so. Gender dysphoria and identifying as transgender are not the same thing — there is a misunderstanding of terminology that feeds the contentious debate in the field of gender dysphoria, according to Zucker.

Zucker expressed his concern with the relationship between his case and what he said is the broader political phenomenon in which academics cannot openly discuss their thoughts due to fear of retribution.

To Zucker, his case is an example of the “authoritarian scene we are creating.”

Disclosure: The Varsity’s reporting on the CAMH report was the subject of a legal complaint from Zucker in 2016, settled in 2017.

U of T’s community radio station, CIUT 89.5 FM, has been caught in the crosshairs of a dispute involving organizers from two major labour unions in Toronto: Unifor and Unite Here. Lisabeth Pimentel, former President of Unite Here Local 75 and current organizer at Unifor Local 7575, is suing CIUT for allegedly allowing defamatory content about her to be aired on its radio shows.

CIUT is one of many defendants in a case that started as an internal conflict within Unite Here Local 75, which has now escalated into a multi-party defamation lawsuit with $500,000 in damages on the line.

Unite Here and Unifor both represent workers in a variety of industries, including hospitality, airport industries, and manufacturing.

The lawsuit

The case stems from Pimentel’s claims that a number of her former colleagues at Unite Here made comments on air alleging that her leadership was plagued with “racism, discrimination, harassment and bullying.”

According to the court filings, the majority of the alleged defamatory comments were made on social media, including Facebook and Twitter. However, a few of the statements identified in the statement of claim, which commenced the lawsuit, were made as a part of interviews broadcasted by CIUT and posted on the internet as podcasts.

The lawsuit claims that on January 30, 2018, a U of T graduate and member of Unite Here was a guest on CIUT radio show WeAreUofT, during which she spoke about how she was assaulted by another staff member. The claim also alleges that this guest claimed on the air that Pimentel informed the assailant that the guest was accusing him of assault, putting her “into an even more vulnerable position.”

The claim further states that the guest further remarked on air that Pimentel “was going to such lows to dismiss the voices… of racialized people who had built the union. To not have to listen to them, to not have to listen to them question her leadership. That is how far she was willing to go.”

Rik Hockley, former member of the executive board of Unite Here Local 75, was also a guest on The Taylor Report, a CIUT radio show. The lawsuit claims that on February 21, 2018, Hockley alleged that there was a racial divide between white people and people of colour within the office and that some of the rank-and-file organizers were “being treated like criminals.”

Because these allegedly defamatory comments were broadcasted by CIUT on its radio programs, Pimentel is also seeking damages from the station.

“I filed this lawsuit because facts matter,” wrote Pimentel in an email to The Varsity. “The allegations that CIUT published are false.”

“There is a dispute about the takeover of a Canadian local union of hospitality workers by its US-based parent union. Instead of addressing the merits of this dispute, the supporters of the US parent union turned this into an unwarranted personal attack on me, and CIUT allowed itself to be used as their pawn,” wrote Pimentel.

She added that the case can end much more quickly if CIUT would “apologize and admit that… it failed in the most elementary of journalistic ethics by failing to contact me before it participated in an attack on my integrity.”

Pimentel also added that her lawyers have been in contact with CIUT’s lawyers since the lawsuit was filed.

The defendants’ responses

In the months following Pimentel’s lawsuit, the defendants hired lawyers themselves and announced their intentions to defend.

All of the defendants except for CIUT were represented by the same law firm, Cavalluzzo LLP, and filed a joint statement of defence in which they asked that the “action be dismissed with costs.”

The statement of defence included background allegations of what the defendants called the “chaos, dysfunction and bitter internal conflict” within Unite Here during Pimentel’s tenure.

The defendants claim that no defamation had occured on the grounds that some of what Pimentel claimed never happened. In addition, the statement of defence claims that Pimentel had harmed her own reputation through her actions, and that they were allowed to say what they did because of qualified privilege.

Qualified privilege is one of the defences for defamation in the Canadian judicial system and can be used in cases where a person has a legal or moral duty to give a defamatory statement because it is in the public interest. A statement protected by qualified privilege cannot be made with malicious intent.

The defendants claim that “they had a duty and an interest in communicating their respective views on the internal conflict.”

CIUT has likewise engaged lawyers and announced their intention to defend.

Legal background

According to Brett Caraway, a UTM Assistant Professor teaching internet law, Pimentel may have a good chance of winning her case against CIUT. “In Canada, and in Ontario specifically, the need to protect the reputation of individuals actually gets more weight than freedom of expression,” Caraway told The Varsity.

Inferences aligned with this can be found in both the Ontario Libel and Slander Act as well as in case law. In the 1995 case of Hill v Church of Scientology of Toronto, the Supreme Court of Canada decided to reject the American “actual malice” standard from precedence that gives more protection to broadcasters from being sued for defamation. Actual malice establishes whether broadcasters knowingly or with negligent disregard publish something that was untrue and defamatory; it also places the burden of providing this proof on the plaintiff.

Caraway also pointed to the fact that radio programs are treated as traditional broadcasters with a publishing role in the eyes of the law. According to Caraway, radio programs have the ability to edit their content in some capacities, and by way of actively engaging and interviewing people, radio shows have a degree of control over what they disseminate.

This set of conditions — Ontario’s tough defamation laws and the classification of radio shows as broadcasters — is why Caraway believes that Pimentel could have a strong case.

Defamation lawsuits have been on the rise since the advent of the internet. Some attribute this to a lack of public understanding that social media users are legally liable for their posts and comments.

Even though Caraway said that he does not “want to live in a world where people are scared to call racism out.” He warned that “if you’re going to [call out racism or prejudicial behaviour], I wouldn’t be flippant about it. And I would definitely take into consideration that you may end up in a courtroom.”

The Varsity has reached out to the guest who appeared on the January 30 show and Hockley for comment, but has been unable to secure a response. CIUT declined to comment.

Disclosure: The Varsity has previously engaged the services of Cavaluzzo LLP.

Editor’s Note (September 10): The online version of this article has been updated to protect the identity of the guest who appeared on WeAreUofT’s January 30 show. The guest appeared on the show anonymously — a recognized practice for sources discussing their personal experiences with assault. While the guest’s name is included in the court filings and is a matter of public record, The Varsity respects the importance of protecting the identity of those who come forward with allegations of assault.

Former University of Toronto Students’ Union (UTSU) Executive Director Sandra Hudson filed a lawsuit claiming $100,000 in damages against the union and its President Mathias Memmel while legal proceedings for a previous lawsuit filed against her were still taking place. Hudson alleged that the UTSU and Memmel breached a mediation agreement after Memmel disclosed information about the then-ongoing lawsuit at an April 29, 2017 Board of Directors meeting.

The UTSU’s lawsuit against Hudson, which was settled in October 2017, alleged civil fraud.

Hudson’s statement of claim, filed with the Ontario Superior Court of Justice on May 31, 2017, states that the two parties attended a mandatory mediation on October 6, 2016, after which the UTSU, Hudson, and other attendees signed a mediation agreement. Memmel, at the time serving as UTSU Vice-President Internal and Services, signed the Mediation Agreement on his own behalf.

This agreement contained a “confidentiality provision,” which states, “All written and oral communications made in the course of mediation will be treated as confidential and without prejudice.” All those who signed the mediation agreement were bound by the confidentiality provision, including Memmel.

At an April 29, 2017 Board of Directors meeting, a motion was passed to discuss whether or not to drop the union’s lawsuit against Hudson. Members of the Black Liberation Collective were present in the room to protest the lawsuit. When Memmel’s efforts to move the meeting in camera were met with protests, Memmel publicly went into detail about the lawsuit after consulting with the UTSU’s legal counsel, Andrew Monkhouse.

Hudson’s statement of claim alleges that Memmel breached the confidentiality provision in the mediation agreement when speaking in support of continuing the lawsuit. “In so doing, Memmel referred to the [UTSU’s allegations], and then proceeded to make selective disclosure of confidential discussions and offers allegedly made at the mediation… notwithstanding that members of the public were present and that the Meeting was being video recorded.”

The statement of claim further alleges that the information disclosed by Memmel was “highly prejudicial” to Hudson, and that Memmel tried to make it appear as though Hudson had committed the misconduct for which she was being sued.

“The malicious, high-handed, arrogant and outrageous conduct of the Memmel [sic] and UTSU warrants an award of punitive damages to ensure that they are appropriately deterred from such conduct in the future,” continues Hudson’s statement of claim.

The UTSU and Memmel, as joint defendants, filed a statement of defence in which Memmel denied having disclosed confidential discussions. The statement of defence states that the information disclosed at the meeting was in reference to non-confidential negotiations and therefore not protected by the mediation agreement.

The statement of defence further claims that Memmel’s answers to questions “were a direct result of a major protest, which was organized and encouraged by Ms. Hudson for the purpose of putting pressure on the UTSU executive regarding her other lawsuit.” The statement calls Hudson’s alleged encouragement of others to ask questions and subsequent decision to sue based on the answers to questions “inappropriate.”

“It’s always been our position that all of Hudson’s various claims were and are baseless, and that was clear from the start,” said UTSU Vice-President Internal Daman Singh. “They didn’t factor into our decision to settle, and they’ve all been resolved to our satisfaction.” Singh added that Memmel recused himself from negotiations and did not personally contribute to the union’s decision to settle or the terms around the settlement.

The Varsity has reached out to Hudson for comment.

Three lawsuits involving student clubs suing students’ unions, alleging they were improperly denied funding, were heard by Ontario Superior Court Justice Paul Perell on January 24 at Osgoode Hall. The eight-hour-long hearing included the suit against the University of Toronto Mississauga Students’ Union (UTMSU) by three members of UTM Students for Life (UTMSFL).

UTMSFL is an anti-abortion student group that filed a suit against the UTMSU in January 2016. Diane Zettel, Cameron Grant, and Chad Hagel are the three UTMSFL members listed as the applicants of the lawsuit.

The court simultaneously held hearings for two similar lawsuits. Speak for the Weak, another anti-abortion group at Durham College and the University of Ontario Institute of Technology (UOIT), is suing the Student Association of Durham College and UOIT, while the Ryerson Students’ Union (RSU) faces a suit from members of the Ryerson Men’s Issues Awareness Society.

Marty Moore is the lawyer representing the three clubs and is a staff lawyer with the Justice Centre for Constitutional Freedoms (JCCF), a non-profit advocacy organization tasked with “defend[ing] the constitutional freedoms of Canadians through litigation and education,” according to its mission statement. It has also represented Trinity Western University in its lawsuit against the Law Society of Upper Canada.

The UTMSU and RSU are being jointly represented by Alexi Wood and Jennifer Saville of St. Lawrence Barristers LLP. Woods and Saville previously represented the RSU in Grant v. Ryerson Students’ Union, 2015, another case involving a anti-abortion student club denied recognition from its student union. The judge sided with the RSU in that case.

Legal questions             

While defending the clubs, Moore spoke of the close relationship between student unions and the publicly funded universities to which they are attached.

“If the University of Toronto Students’ Union decided to adopt the Bahá’í Faith and expressly made it a part of its documents in accordance to its letters patent, I think we would understand that its relationship with the publicly funded institution would begin to have to jeopardy there,” argued Moore. “The reality is that public institutions and the common law, which applies to public institutions, should take into account the fundamental values that apply on that campus.”

“[These are] not the arguments that I’m putting forward today, but I do recognize that that is one of the possible approaches that a court could take,” said Moore. He cited Rakowski v. Malagerio, 2007, a case also presided over by Perell, in which it was decided courts had the authority to intervene in student union policies.

Saville told the judge that student unions are private corporations, regardless of the fact that they operate on public university campuses, citing the Grant v. Ryerson Students’ Union case, where the judge ruled that student unions aren’t subject to public law. Wood expanded on this, adding that all UTMSU members, including those involved in the UTMSFL, had the right to vote on or run for the UTMSU Board of Directors and shape the union’s policies if they disagreed with them.

Perell responded, “There are some things where democracy is not the answer. Hitler got elected, with due process.”

UTMSFL’s case

Moore forewent any allegations of ideological bias; the crux of his submission was the allegation that the three unions went against their own policies and bylaws.

The UTMSFL members allege that the UTMSU informed them that the club would not be granted official club status due to its anti-abortion stance. In his submission, Moore told the judge that the UTMSU subsequently changed its reasoning and attempted to deny the club for technical violations. It is alleged that the UTMSU told the club, which only had three executive members, that it needed four executives in order to qualify for official club status and that it had to amend its constitution to be compliant with the UTMSU’s requirements and elect a fourth executive at a general meeting.

“[Then-UTMSU Vice-President Campus Life Russ Adade] kept on coming up with new requirements, including, at the end, ‘I have to be present at your meeting when you vote.’ The applicants said, ‘Fine, come to our meeting. We’ll do a re-vote. We’ll re-enact our constitutional amendments,’” Moore told the judge.

The applicants also allege that Adade brought five people who were not members of UTMSFL to attend the meeting and vote against the election of the fourth executive.

Wood pointed out that in cross-examination, Adade denied allegations of stacking the deck at that meeting and actually tried his best to help UTMSFL meet the UTSMU’s requirements to qualify for clubs funding.

“We have an affidavit from Mr. Adade, who says he doesn’t do that, and we asked him on cross and he denied it on cross. He said that these members attended on their own,” Wood told the judge. “They had come to him, they had talked to him about [UTMSFL] and he said, ‘If you have issues with [UTMSFL], go to the meeting on the 23rd and talk to [UTMSFL] there.’”

Wood also told the judge that UTMSU-recognized clubs are required to be open to all UTMSU members and that all UTMSU members can therefore vote in the club elections. The only exception, Wood said, is if the club lays out different voting rights in its constitution. “[UTMSFL] did not put into their constitution any restrictions on who could vote,” she continued.

According to Wood, Adade sent an email to UTMSFL after the general meeting, explaining the next steps and expressing willingness to continue working with the club to get its club status approved. The student union board then received an email from Moore saying that UTMSFL was commencing legal proceedings.

It is unknown when the court will reach a decision, although the decision for Grant v. Ryerson Students’ Union came out nearly 10 months after the hearing.

The UTSU has decided against seeking a second legal opinion on the lawsuit involving former executive Sandy Hudson. The vote was prompted by the Black Liberation Collective (BLC), who demanded that the UTSU seek legal advice on the proceedings from a lawyer who identifies as Black.

Outcries against alleged racism toward Hudson have sparked much debate over her case. Some, like the BLC, perceive the lawsuit to be race-motivated, and by extension, anti-Black. Contrary to this perception, however, the UTSU made the right decision in light of the facts.

There have been many allegations of racism against Hudson, but there is no actual evidence to support them. No proof of discrimination against Hudson has been brought forward — neither within the lawsuit itself nor in general on the part of the UTSU.

Lacking this proof, there is no basis for seeking another legal opinion. Putting funding toward rectifying unsubstantiated allegations is not an effective use of student resources, especially given the extremely high costs associated with legal help. Additionally, involving a second lawyer only brings unneeded complication to the lawsuit. Although some might argue that hiring a Black lawyer would counteract the UTSU’s alleged racial bias, if that bias has not been shown to exist, there is nothing to counteract.

This already complicated lawsuit will not benefit from additional layers of analysis based on unfounded suspicion. The focus should be on the facts of the case itself; only then can matters be effectively resolved.

Andrea Tambunan is a first-year student at University College studying Life Sciences.

In September 2015, the University of Toronto Students’ Union (UTSU) began a lawsuit against its former President Yolen Bollo-Kamara, former Vice-President, Internal and Services Cameron Wathey, and former Executive Director Sandra Hudson. Since then, the story has taken a number of twists and turns.

The Legal History

The original statement of claim provided by the UTSU alleges that Bollo-Kamara and Wathey had “breached their fiduciary duty” by authorizing 2,589.5 hours of overtime pay for Hudson, that the three had “conspired to commit civil fraud,” and that their actions “constituted civil fraud” as the authorization of Hudson’s overtime pay entitled her to $247,726.40 as part of her severance package, despite the fact that Hudson had never claimed any overtime hours in the time she worked there. The claim also asks for $200,000 from the defendants for “punitive damages.”

Hudson’s position as Executive Director of the UTSU was terminated in April 2015, around the time Bollo-Kamara and Wathey’s terms as UTSU executives were coming to a close. The statement of claim alleged that Hudson was unhappy with the newly-elected Executive Committee and that Bollo-Kamara and Wathey agreed to dismiss Hudson. Wathey ran for President with the Change U of T slate and was defeated by Brighter U of T.

Hudson’s statement of defence, filed in November 2015, states that she was “subject to inappropriate conduct and unwelcome comments from UTSU directors. Some of the comments were in relation to Hudson’s perceived sexual orientation, gender, and race.”

Hudson also alleged that members of Brighter UofT conspired “to treat Hudson harshly” in order to “humiliate her,” while planning to terminate her employment that upcoming September. These claims have been refuted by members of the UTSU, including former President Ben Coleman.

Bollo-Kamara and Wathey filed their notices to defend in October 2015, and the UTSU was notified in November 2015 that Hudson intended to counter-sue the union for $300,000 in damages.

Hudson claimed that she had frequently worked overtime hours without filing those overtime hours. Additionally, she stated that the new executive would create a hostile work environment for her, and that it had violated the non-disparagement and confidentiality clauses of the termination. The UTSU denied this claim.

The UTSU settled its claim out of court with Bollo-Kamara in January 2016 and later did the same with Wathey. Both individuals signed affidavits stating that Hudson told them she had received advice from the UTSU’s legal representation at the time, DLA Piper, regarding her termination agreement.

A joint statement by Bollo-Kamara and the UTSU said that Hudson was able to convince Bollo-Kamara to sign her overtime cheques as a result of their close relationship. In his affidavit, Wathey said he relied on his understanding that the termination agreement was approved by the UTSU’s legal counsel and Hudson’s legal counsel. Both affidavits stated that Bollo-Kamara and Wathey did not financially benefit from the agreement.

On January 3, 2017, the UTSU amended its statement of claim against Hudson, the only remaining defendant from the original civil suit. The amendment alleged that Hudson operated the e-mail account operationsutsu@gmail.com, by which she forwarded all e-mails from UTSU accounts like executivedirector@utsu.ca. This meant that Hudson would have had access to confidential UTSU e-mails, which the amended statement describes as “a breach of her contract and the minutes of settlement she is seeking to uphold.”

The amended statement of claim also states that this information is sufficient to support Hudson’s termination “without contractual or statutory notice or severance payment,” meaning the UTSU would not have to pay the severance it allegedly owed Hudson.

The controversy

In October 2016, the U of T chapter of the Black Liberation Collective (BLC) staged a protest at the UTSU offices, claiming that Hudson is entitled to a severance payment and that the UTSU is racist for continuing the lawsuit. The BLC posted banners across the entrance to the UTSU building and entered the building to read a 3000-word statement outlining their claims that the UTSU is anti-Black.

The past few months have seen many UTSU board meetings disrupted by protests, with members of the BLC disrupting meetings in order to chant and share sentiments about Hudson.

A motion passed at the April 29, 2017 UTSU Board of Directors meeting that required the UTSU to seek a second legal opinion on their lawsuit. The motion stipulated that the second opinion must be sought from a lawyer who will “identify as Black, practice employment law, and have a background in equity work,” and that the BLC must be engaged in the selection process.

At the July 20, 2017 Board of Directors meeting, though, a motion to rescind the prior motion requiring the UTSU to seek a second legal opinion was proposed. This resulted in further protests from the BLC.

The UTSU and Hudson are heading to court on October 23 for a summary trial.