Court hears appeal for Student Choice Initiative

Province appeals SCI on basis of public funding for universities

The court’s decision will be made in two to four months.
Journal File Photo

The Ontario Court of Appeal heard the appeal for the Student Choice Initiative (SCI) on Tuesday. 

The SCI was first introduced by the Ford government in January 2019 to allow students to opt-out of previously mandatory fees. It was struck down by the Ontario Divisional Court in November 2019, and Ontario announced its attention to appeal shortly after. 

The policy designates fees into essential and non-essential groupings, leaving those related to athletics, student cards, student buildings, career services, health and wellness programs, academic support, financial offices, and campus safety programs to be considered essential, whereas fees supporting student governments, legal aid, LGBTQ+ services, and sexual health services are deemed non-essential and subjected to opt-out.

READ MORE: Canadian Federation of Students to advocate for student groups in Student Choice Initiative Appeal

The Ministry of Colleges and Universities (MCU) filed an application to bring back the SCI on the grounds that the policy doesn’t interfere with the operations of various student associations and that the government didn’t intend harm towards student associations.

In the appellant’s presentation to the court, MCU attorney Sunil Mathai argued the SCI didn’t target student unions and raised the question of what is meant by “normal activities” carried about by student associations, which was a key argument presented by the Canadian Federation of Students (CFS) and York Federation of Students (YFS) in the initial quashing of the SCI. 

In his submission to the court, Mathai also said that because universities accept public funding from the Province, the Province has the ability to impose frameworks and restrictions on post-secondary institutions.

At various points during the appeal hearing, Justice Grant Huscroft noted the appellant’s arguments were “reaching a level of granularity that was difficult to understand.”

In a follow-up interview with The Journal, CFS National Executive Representative Kayla Weiler said the appellant’s presentation was difficult to follow due to the argument’s high level of detail. 

The CFS and YFS argued against the reimplementation of the SCI on the basis that the policy allowed the provincial government to overstep its authority by interfering with fees that have been democratically decided by students at their respective institutions. 

They also argued the provincial government confers decision-making power to universities and colleges with regards to how funding is distributed, and therefore shouldn’t interfere with that process. 

According to Louis Century, an attorney representing CFS and YFS, the SCI oversteps the authority of universities to determine how fees are spent. 

Century said each university has its own legislative structure within the institution that insulates its governance as a protective measure against provincial interference. 

READ MORE: Despite intervenor status, Queen’s “not taking sides” in Student Choice Initiative appeal

“This is a fundamental governance change to a core practice that has been part of the fabric of the university for more than 50 years,” Century said at the appeal hearing. 

In this argument, Century said the SCI attempts to undermine university funding and further target third party bodies, such as student unions, that are able to regulate their own use of funds.

Mark Wright, another attorney representing the CFS, argued the SCI legislation was in bad faith and exercised improper purpose by limiting the operations of student groups instead of improving the student experience through reduced fees. Wright argued this is contrary to the Ontario Colleges Act, as well as various university legislations. 

Wright said the SCI gave the provincial government the executive power to interfere with student unions that receive no funding from the Province.

According to Wright and Geetha Philipupillia, a third attorney representing CFS and YFS, the SCI poses an existential threat for student unions due to the designation of funding for these groups being deemed non-essential under the policy. 

The court also heard arguments from a number of intervenors who provided statements to either present an argument for or against the reimplementation of the SCI, or to contextualize the implications of the SCI on various institutional bodies. 

B’nai Brith of Canada League for Human Rights (“B’nai Brith”); University of Toronto Graduate Students’ Union; Start Proud and Guelph Queer Equality (collectively, the “LGBTQ+ Coalition”); the University of Ottawa, Queen’s University, the Governing Council of the University of Toronto, the University of Waterloo, and Western University (collectively, the “Universities”); the Association for Canadian Clinical Legal Education (“ACCLE”); and the Canadian Journalists for Free Expression, the Centre for Free Expression, the Canadian Association of Journalists, PEN Canada, and World Press Freedom Canada, and the Canadian Association of University Teachers (collectively, the “Coalition”) were granted intervenor status in the appeal. 

In a statement on behalf of the Universities, Rob Centa told the court the Universities weren’t taking sides in the appeal, but instead spoke to provide insight into the issue of university autonomy.

The self-governance of universities gives no jurisdiction for the Province to intervene in university affairs and internal operations, according to Centa.

Centa also said university autonomy safeguards and nurtures academic freedom. He said student government and societies, campus press, and legal clinics all contribute to university campus cultures.  

Following the court hearing, Weiler told The Journal despite the court’s decision not being due for another two to four months, she is hopeful for SCI to be struck down again. 

“Overall, we were glad to hear the arguments of all parties involved, and especially the supporting arguments from our intervenors. It was great to see that we had so many different groups support us,” she said.

“We were happy to see that our legal team was able to present their arguments. It was a long time coming to hear this appeal.”

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