Experience Notable Cases Court quashes Ford government’s “Student Choice Initiative”

Court quashes Ford government’s “Student Choice Initiative”

August 04, 2021

Government’s directive on student fees is “contrary to law”, says the Divisional Court

In a unanimous decision, three judges of the Ontario Divisional Court upheld a judicial review challenge brought by the Canadian Federation of Students (CFS) and the York Federation of Students (YFS), and quashed the Ford Government’s so-called “Student Choice Initiative.”

In its decision, the Court struck down the government’s attempt to require universities and colleges to prevent student associations from receiving student fees that had been democratically determined and supported by students.

Background

For decades student union fees, and other fees for student groups such as legal aid clinics, food banks, radio and newspapers have been determined through democratic processes by students, then collected by universities and remitted back to students. The Ford government’s attempt to override that democratic process posed a serious threat to democratic student government, and its financial viability, as well as the viability of other student levy groups across Ontario campuses.

On behalf of our clients, the CFS and the YFS, Goldblatt Partners challenged the Student Choice Initiative. We filed an application for judicial review, arguing that Cabinet and the Minister of Training, Colleges and Universities acted without lawful authority, and contrary to the statutory framework governing universities and colleges.

The decision

The Divisional Court agreed with the applicants.

With respect to universities, the Court recognized that for more than 100 years, Ontario universities have benefited from autonomy from political interference in their affairs. Moreover, the Court accepted that student government forms a core part of the affairs of the university, and that includes the collection of dues through democratic self-determined processes.

Against this backdrop, the Court held that both Cabinet and the Minister:

• lacked any authority to interfere with the internal affairs of universities or in the relations between universities and student associations
• lacked any authority to interfere with the collection of student union fees by universities on behalf of the student body
• lacked any authority to interfere with democratic decisions taken by students respecting their student association membership fees
• lacked any authority to interfere with arrangements between universities and student associations regarding the collection and remittance of student union fees

In its reasons, the Divisional Court found that the directives were “not authorized by law and are inconsistent with the autonomy granted universities, bedrock principles on which Ontario universities have been governed for more than 100 years.” The Court also recognized that “Inclusion of students in university governance is part of the autonomous internal workings of universities: students are important members of the academic community, with interests that require and are accorded representation.” As the Court concluded, “the University Guidelines are inconsistent with the intention to give universities autonomy over their governance,” and “are beyond the scope of the Crown’s prerogative power over spending because they are contrary to the statutory autonomy conferred on universities by statute.”

The Court also noted that, other than the Premier’s stated reasons for targeting student associations (i.e. that they “we all know what kind of crazy Marxist nonsense student unions get up to”), the government had failed entirely to explain why it concluded that “of all the components of ancillary fees charged to college and university students, only one – student association fees – was deemed by Cabinet to be non-essential.”

In addition, with respect to colleges, the Court held that the government lacked the authority under the Ontario Colleges of Applied Arts and Technology Act to issue the directives. That Act specifically guarantees the autonomy of student governing bodies and precludes any interference with the “normal activities” of student governing bodies. The Court held: “The impugned directives require colleges to interfere in the normal activities [of student associations] in the most fundamental and obvious of ways: by reducing or eliminating the funding used by student associations to carry out their ‘normal activities’.”

Read the decision here.

Update:

On August 4, 2021, the Ontario Court of Appeal dismissed the government’s appeal of the Divisional Court’s decision. You can read the Court of Appeal’s decision here.