Court dismisses Student Choice Initiative appeal

'The ancillary fees framework conflicts with the legislation governing Ontario’s colleges and universities'

The appeal questioned whether Ontario could condition the receipt of funding on universities and colleges’ compliance with SCI ancillary fee framework. 
Journal File Photo

The Ontario Court of Appeal unanimously dismissed Ontario’s appeal to bring back the Student Choice Initiative (SCI) on Aug. 4.  

The SCI was introduced by the Ford provincial government in January 2019 to allow post-secondary students to opt out of previously mandatory ancillary fees deemed non-essential. Included in these non-essential fees were fees charged by student associations, which have been compulsory for many years and are necessary for the normal operation of these associations.

According to the appeal decision, the purpose of the initiative was to create a framework that enhances transparency regarding fee payment and give students “greater choice regarding the services and activities they wish to support.”

READ MORE: Student Choice Initiative struck down in divisional court

A collective of student groups, including the York Federation of Students (YFS) and the Canadian Federation of Students-Ontario (CFS-O), filed an application for judicial review of the SCI on May 24, 2019, denouncing the SCI as an overstep of the Ministry of Colleges and Universities’ (MCU) mandate.

Ontario’s Divisional Court quashed the SCI on Nov. 21, 2019. The SCI framework was deemed unlawful by the court because it was “inconsistent” with the Ontario Colleges of Applied Arts and Technology Act and the various University Acts, according to a court docket.

In March 2021, the MCU filed an application to reinstate the SCI on the grounds that the policy didn’t interfere with the operations of various student associations and it wasn’t the province’s intention to harm student associations.

READ MORE: Court hears appeal for Student Choice Initiative

The overarching question raised by the SCI appeal was whether the receipt of funding from the provincial government could be conditioned on compliance with a framework established by the Minister of Training, Colleges and Universities governing the payment of student ancillary fees—in other words, could Ontario condition the receipt of provincial funding on a college or university’s adherence to the SCI’s opt-out framework for ancillary fees.  

The Court of Appeal upheld the Divisional Court’s ruling that the SCI is unlawful.  

“In my view […] the [divisional] court reached the correct conclusion: the ancillary fees framework conflicts with the legislation governing Ontario’s colleges and universities and cannot be imposed upon them by the exercise of executive authority,” Justice Grant Huscroft wrote in a docket.

“Indeed, given the role played by student associations in university governance, the [SCI] framework is a profound interference in university autonomy—not a mere fettering of the universities’ discretion, as the Minister submits.”

The government was ordered to pay $20,000 in costs to the respondents of the appeal, the CFS-O and the YFS.

This story is developing and will be updated with more information.

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