The Ontario government’s “Student Choice Initiative” is heading to the province’s highest court

On November 21, 2019, in Canadian Federation of Students v. Ontario (Minister of Training, Colleges and Universities), a three-judge panel of the Divisional Court quashed the Ontario government’s “Student Choice Initiative” or “SCI”. The court ruled that the two policies that comprise the SCI were beyond the scope of the provincial executive’s legal authority.[i] 

The Divisional Court’s ruling identifies what the court held to be judicially enforceable limits on the province’s power to intervene in how colleges and universities administer themselves and how they regulate student governments. According to the panel, the SCI as implemented transgressed those limits. If Ontario wants to force universities to limit their students’ ability to tax one another, the court held, the province will need to find another way to do so.

On December 9, 2019, Ontario launched an appeal from the Divisional Court’s decision. The Court of Appeal for Ontario will now be asked to weigh in on the limits of provincial authority under the existing legislative scheme.

I. College, university, and student governance in Ontario

Colleges are agents of the Crown.[ii] Section 4 of the Ontario Colleges of Applied Arts and Technology Act, 2002 (“OCAAT Act”) gives the province extensive powers to regulate the functioning of a college. Section 5 of the OCAAT Act allows the Ministry to intervene directly in the governance of a college that does not comply with ministerial policy.[iii]

Universities in Ontario, by contrast, are quasi-public institutions. More than one third of Ontario universities’ funding comes from operating grants from the provincial government.[iv] This funding is contingent on universities’ adhering to various provincial policies. For example, Ontario limits annual increases in domestic student tuition.[v]

However, unlike colleges, universities manage their internal affairs independently from the Crown. This separation has roots in the “traditional nature” of universities as a “community of scholars and students enjoying substantial internal autonomy”.[vi] As such, while universities are subsidized by public funds and incorporated by statute,[vii] their internal administration is not subject to Charter review.[viii] As the Supreme Court of Canada has observed:

[U]niversities are autonomous, they have board of governors, or a governing council, the majority of whose members are elected or appointed independent of government. They pursue their own goals within the legislated limitations of their incorporation.[ix]

Ontario colleges and universities are home to various student governments, unions and associations (collectively “student governments”). These are fully private organizations, in the sense that they are entirely independent from government, both institutionally and financially.[x]

Colleges, universities, and student governments all levy fees from students. These are used for a variety of projects, services and roles, ranging from health services, to extra-curricular activities, to student journalism.

II. How the Student Choice Initiative came to be

On December 12, 2018, the Ontario Cabinet directed the Minister of Training, Colleges and Universities to draft policy that would require universities and colleges to allow students to opt-out of non-tuition fees related to student governments, products, and special services.[xi] On January 17, 2019, the province announced the Student Choice Initiative, which it described as “empower[ing]” students “to choose which students fees they wanted to pay and how that money will be allocated”.[xii]

After the announcement, the Minister started consulting with some colleges, universities, and affected groups. On March 19, 2019, draft versions of a ministerial directive were circulated to consultees. The Minister subsequently introduced additional exceptions for transit passes, varsity athletic teams, and technology that provides academic support.[xiii]

III. The Student Choice Initiative

On March 29, 2019, the Minister released the final SCI directives. These consisted of:

  1. a binding policy directive for colleges (the “Policy Directive”); and
  2. a guideline for Ontario universities (the “Fee Guideline”).

The Policy Directive and Fee Guideline distinguished between “essential” and “non-essential” programs. Only fees that support “essential” activities could be funded through a mandatory fee levy. Colleges, universities and student governments were required to give students the choice not to pay fees for “non-essential” programs.

“Essential” programs included: athletics and recreation; career services; student buildings; health and counselling; academic support; student ID cards; student achievement and records (prizes and transcripts); financial aid offices; and campus safety programs.[xiv]

Additionally, the SCI provided partial exceptions for existing student transit pass fee-levies, for health and dental plans, and for colleges’ fees for technology that could be used to provide students with academic support.[xv] All other fees were deemed “non-essential”.[xvi]

The SCI delegated the administration of these policies to colleges and universities. However, the SCI laid out various mechanisms that the Ministry could use to ensure compliance. For colleges, the SCI enabled the Ministry to implement the policy directly through the Minister’s powers under the OCAAT Act, and allowed the Ministry to reduce a non-compliant college’s operating grant.[xvii] Universities that did not comply with the policies could be required to reimburse students or, if this was not feasible, they could have their operating grants reduced.[xviii]

IV. Student governments challenged the SCI in court

The York Federation of Students (the “YFS”) and the Canadian Federation of Students (the “CFS”) brought an application challenging the SCI’s legality. The YFS is the undergraduate student government of York University. Its membership includes roughly 45,000 students.[xix] The CFS is a national student union. Any student whose student government has joined the CFS contributes to the CFS through their student government fees.[xx]

As the YFS and CFS brought their challenge as an application for judicial review, the Divisional Court heard the case at first instance.[xxi] The court struck a three-judge panel for the purpose. The parties argued the application on October 11, 2019.

Ontario’s position was that:

  1. the application raised issues that were not justiciable, because the SCI was a “core policy” decision of the Cabinet and thus was immune from judicial review; and
  2. in the alternative, the SCI represented a lawful exercise of the Crown’s power over public spending.[xxii]

V. The court struck down the SCI as unlawful

The court rejected the province’s argument, allowed the application, and quashed the SCI. The panel held unanimously that the question of the SCI’s legality was justiciable. The SCI could not be justified as an exercise of the Crown’s spending power as it contravened statutory and common law limits on the province’s ability to regulate colleges, universities, and their student governments.

1. Justiciability

The court held that the issue of the SCI’s legality was justiciable.[xxiii]

Ontario argued that the SCI was “core policy” made by Cabinet. It submitted that, pursuant to the principles laid out in R. v. Imperial Tobacco Canada Ltd., its legality was non-justiciable.[xxiv] The court disagreed, noting that:

While we accept that the court has no authority to assess the wisdom or effectiveness of the impugned directives, the court nevertheless has a role in ensuring that the Minister has the legal authority to require universities and colleges to comply with the directives.[xxv]

2. Spending Power

The court held that the province’s spending must be exercised within the boundaries of provincial statutes and common law. The court relied on the recent decision of the Supreme Court of the United Kingdom in R. (on the application of Miller) v. Prime Minister[xxvi]for the principle that the Crown’s prerogative powers may only be exercised within the confines of statutory authority.[xxvii]

The Divisional Court concluded that legislative supremacy requires courts to ensure that the executive exercises its powers, including the spending power, within the limits that the legislature has imposed on those powers. As such, the Crown’s powers can only be exercised within the bounds of statutes that define ministerial authority.[xxviii]

A. Colleges

The court pointed to section 7 of the OCAAT Act in holding that the SCI was unlawful. Section 7 provides:

Nothing in this Act restricts a student governing body of a college elected by the students of the college from carrying out its normal activities and no college shall prevent a student governing body from doing so.[xxix]

The court found that the word “nothing” applied to the Minister’s powers under section 4 of the OCAAT Act to regulate the administration of colleges. Accordingly, the court held that the SCI was an impermissible exercise of ministerial power, as the SCI required college administrations to restrict student governments’ ability to carry out their “normal activities”.[xxx] The court noted that Ontario had effectively conceded that the SCI would impede the “normal” functioning of student governments.[xxxi]

The province could not rely on the Crown’s spending powers to apply the SCI to colleges, the court concluded, because such an exercise of the spending power would run afoul of section 7 of the OCAAT Act. Since the legislation bars colleges from impeding student governments’ “normal” activities, the Minister could not legally direct them to do so – which is what the SCI purported to do, in the court’s view.

B. Universities

The court held that:

Nowhere in the [statutes that create Ontario’s universities] is any authority given to the Minister in particular, or the executive in general, to participate, to make directives or regulations or to interfere in any way in the governance of universities.[xxxii]

The court noted that the Supreme Court of Canada has held that the statutes that constitute universities in Ontario were designed to foster the autonomy of those institutions.[xxxiii] The court held that these statutes “occupy the field”, giving exclusive authority to universities to regulate their internal affairs. By attempting to require universities to force student associations to make their fees non-mandatory, the SCI was held to contravene this principle.[xxxiv]

Ontario consequently could not rely on the Crown’s spending power to apply the SCI to universities, the court concluded. Though the court identified no express legislated limitation on the Minister’s power over universities akin to section 7 of the OCAAT Act, the court held that the spirit of the university legislations as a whole imposed such a limitation just the same.[xxxv] Since universities enjoy greater statutory independence than colleges, the court stated that “it would be a strange result indeed to find the impugned directives are contrary to law for colleges, as they clearly are, but they are lawful for universities”.[xxxvi]

VI. What Now?

The Divisional Court quashed the SCI. As a consequence, the impugned directives will be of no force and effect unless the court’s decision is stayed or reversed on appeal, or until Ontario replaces the directive with legislative changes that accomplish the same policy objective.

Ontario launched an appeal of this decision on December 9, 2019. It will next fall to the Court of Appeal for Ontario to decide the extent to which, under existing legislation, the provincial executive may involve itself in the affairs of Ontario’s student governments.

Case Information

Citation: Canadian Federation of Students v. Ontario, 2019 ONSC 6658

Court File No.: DC 279/19

Date: November 21, 2019

[i]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶¶17, 132.

[ii]Ontario Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c. 8, Sched. F, s. 1; DIRM Inc. v. Dalton Engineering & Construction Ltd., [2004] O.J. No. 3524 (Sup. Ct), ¶26; Loyalist College of Applied Arts and Technology. v. The Municipal Property Assessment Corporation, 2014 ONSC 7152, ¶17; Hassum v. Contestoga College Institute of Technology and Advanced Learning, [2008] O.J. No. 1141 (Sup. Ct.), ¶¶8, 61.

[iii]Ontario Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c. 8, Sched. F, ss. 4, 5; Hassum v. Contestoga College Institute of Technology and Advanced Learning, [2008] O.J. No. 1141 8 (Sup. Ct.), ¶¶8-9, 59.

[iv] Ontario, Council of Ontario Finance Officers, Financial Report of Ontario Universities, 2017-2018 Highlights (March 2019), at p. 3.

[v] Ontario, Ministry of Training, Colleges and Universities, Tuition Fee Framework and Ancillary Fee Guidelines, (March 29, 2019), at pp. 4-5.

[vi]McKinney v. University of Guelph, [1990] 3 S.C.R. 229, ¶34, citing Harelkin v. University of Regina, [1979] 2 S.C.R. 561, ¶594.

[vii]The University of Toronto Act1971, S.O. 1971, c. 56; The University of Guelph Act, 1964, S.O. 1964, c. 120; Ryerson University Act, 1977, S.O. 1977, c. 47; Wilfred Laurier University Act, S.O. 1973, c. 86; The McMaster University Act, 1976, S.O. 1976, c. 98; Ontario College of Art and Design University Act, S.O. 2002, c. 8, Sch. E; University of Ontario Institute of Technology Act, S.O. 2002, c. 8, Sch. 0, Algoma University Act, S.O. 2008, c. 13; Nipissing University Act, S.O. 1992, c. Pr 52; University of Ottawa Act, S.O. 1965, c. 137; Laurentian University of Sudbury Act, S.O. 1960, c. 151; The Brock University Act, S.O. 1964, c. 127; Carleton University Act, S.O. 1952, c. 117; Lakehead University Act, S.O. 1965, c. 54; Trent University Act, S.O. 1962-63, c. 192; University of Waterloo Act, S.O. 1972, c. 200; University of Western Ontario Act, S.O. 1982, c. 163; York University Act, S.O. 1965, c. 143; The University of Windsor Act, S.O. 1962-63, c. 94

[viii]McKinney v. University of Guelph, [1990] 3 S.C.R. 229, ¶45.

[ix]McKinney v. University of Guelph, [1990] 3 S.C.R. 229, ¶41.

[x]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶14.

[xi] Cabinet also implemented changes to the Ontario Student Assistance Program, reduced tuition at publicly funded colleges and universities by 10%, and froze tuition for the 2020-2021 academic year. Ontario, Ministry of Training, Colleges and Universities, Tuition Fee Framework and Ancillary Fee Guidelines, (March 29, 2019), at pp. 4-5.

[xii] Ontario, Ministry of Training, Colleges and Universities, News Release: Government for the People to Lower Student Tuition Burden by 10 per cent (January 17, 2019).

[xiii]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶¶61, 62.

[xiv] Ontario, Ministry of Training, Colleges and Universities, Tuition Fee Framework and Ancillary Fee Guidelines, (March 29, 2019), at p. 17.

[xv] Ontario, Ministry of Training, Colleges and Universities, Tuition Fee Framework and Ancillary Fee Guidelines, (March 29, 2019), at p. 15; Ontario, Ministry of Training, Colleges and Universities, Tuition and Ancillary Fees Minister’s Binding Policy Directive: Colleges of Applied Arts and Technology Policy Framework, (March 29, 2019), at p. 17.

[xvi] Ontario, Ministry of Training, Colleges and Universities, Tuition Fee Framework and Ancillary Fee Guidelines, (March 29, 2019), at p. 16; Ontario, Ministry of Training, Colleges and Universities, Tuition and Ancillary Fees Minister’s Binding Policy Directive: Colleges of Applied Arts and Technology Policy Framework, (March 29, 2019), at p. 16.

[xvii] “Ontario, Ministry of Training, Colleges and Universities, Tuition Fee Framework and Ancillary Fee Guidelines, (March 29, 2019), at p. 23.

[xviii]; “Tuition and Ancillary Fees Minister’s Binding Policy Directive: Colleges of Applied Arts and Technology Policy Framework”, March 29, 2019, Ministry of Training, Colleges and Universities, at p. 25

[xix] York Federation of Students, “Members’ Services - York Federation of Students” (December 14, 2019), online: www.yfs.ca/servicesmain.

[xx] Canadian Federation of Students, “About Us” (December 14, 2019), online: www.cfs-fcee.ca/about/.

[xxi]Judicial Review Procedure Act, R.S.O. 1990, c J.1, ss. 2, 6(1).

[xxii] A prerogative power is a common law, rather than statutory, power of a legislature or executive. Notably, traditionally “it is not necessary for government to rely on its prerogative powers” to justify its power to “make executive decisions regarding the expenditure of public funds to which individual members of the public have no enforceable entitlement”, but rather this power is a reflection of the Crown’s capacity and powers as a natural person “to establish programs for public benefit and define or restrict the distribution of such benefit” see Pharmaceutical Manufacturers’ Association of Canada v. British Columbia (1997), 38 B.C.L.R. (3d) 175 (C.A.), ¶27, cited in Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶83.

[xxiii]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶81.

[xxiv]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶77, citingR v. Imperial Tobacco Canada Ltd., 2011 SCC 42, ¶¶74, 87.

[xxv]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶75.

[xxvi] In R. (on the application of Miller) v. Prime Minister the Supreme Court of the United Kingdom voided the British Prime Minister’s prorogation of Parliament amidst the ongoing negotiation of “Brexit”.

[xxvii]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶84; R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, ¶31.

[xxviii]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶85.

[xxix]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶99

[xxx]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶102.

[xxxi]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶104.

[xxxii]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶114.

[xxxiii]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶115-116; McKinney v. University of Guelph, [1990] 3 S.C.R. 229.

[xxxiv]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶117.

[xxxv]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶107.

[xxxvi]Canadian Federation of Students v. Ontario, 2019 ONSC 6658, ¶120.

Authors

Subscribe

Stay Connected

Get the latest posts from this blog

Please enter a valid email address