Since January of this year, student governments have been under attack from the Ontario government, specifically the Ministry of Training, Colleges, and Universities. This is not hyperbole or opinion. It is a submission made to the Ontario Divisional Court on October 11, 2019 by the Canadian Federation of Students (“CFS”) and the York Federation of Students (“YFS”) which the panel of judges seemed to accept.
Before they reviewed the legal issues, the bench wanted to know how much students paid in 2018-2019 and how much they could “save” now by opting out. While the answer for CFS and YFS was unclear, the answer for us is evident: last academic year, the fee for the Legal & Literary Society (“Legal and Lit”) was $37.85 and this year, $34.10 of that fee was deemed Non-Essential, allowing students to choose whether or not they wanted to pay that sum. Disappointingly for those of us on Legal & Lit and those who rely on our funding, 22% of Osgoode’s student body chose to opt-out this year.
Legal and Lit provides a myriad of services to students. Tangible services are the agenda, provided free to all students, and the yearbook, provided free to all graduating students. Legal and Lit also maintains a website which hosts the 1L and Upper Year summary databases, our meeting minutes, and information about all Osgoode’s clubs and their events. We host events like the upcoming Mental Health and Wellness Week, Ski Trip, as well as the end-of-year formals. With reduced student fees, Legal and Lit has had to make tough decisions about where to cut costs in these services.
Legal and Lit is also student government. Besides the services we provide, we also advocate on behalf of the entire student body, alongside our counterpart Student Caucus. From the president to the equity officer to the year reps, we work on your behalf to ensure your time at Osgoode is as well spent outside of the classroom as it is inside of it.
What brought the parties to court in the first place? Premier Ford directed then-Minister of Training, Colleges and Universities Merrilee Fullerton to implement a three pronged approach to universities: cut tuition by 10%, implement significant changes to OSAP including the elimination of the interest-free grace period and free tuition schemes, and implement the Student Choice Initiative (SCI). The SCI sees previously mandatory student fees placed into two categories (Essential and Non-essential), and students are given the opportunity to opt-out if they so choose (“Directive”). The SCI is the core and controversial element that was the motivation for taking this case to court last week.
Issues
We’re in law school right? So let’s take a look at the issues the Court was being asked to decide.
1. Is the Directive inconsistent with legislation?
2. Was the Directive made for an improper purpose and in bad faith?
As a remedy, CFS asked for a writ of certiorari that the SCI be quashed and any unlawful parts of the Directive be set aside.
Inconsistency with Legislation
The key to determining if the Directive was inconsistent with legislation was in determining the lawful autonomy of universities and the student governments within them. The Appellants relied on plain readings of various pieces of legislation which clearly designate university Senates and Boards with ultimate powers to determine how their institutions spend their money and function. In ordering the universities to implement the opt-out process, universities were forced to go against the directions of their Senates which had previously allowed for collection of mandatory student fees. The Appellants also relied on the affidavit of a Professor Jones, who wrote about the history and function of student governments and the introduction of democratically mandated student fees. These fees, which are subject to referenda when determining the amount charged, have historically been exempt from the government oversight that affects other ancillary fees. Looking both historically and jurisprudentially, the Directive is inconsistent with legislation and forced universities to compromise their own Acts in order to comply with it.
The Respondents challenged the admissibility of Professor Jones’s testimony, but did not otherwise respond to this issue.
Improper Purpose
The Appellants alleged the clear target of the SCI was student associations. A fundraising email from Premier Ford himself actually confirmed this, calling student governments “Marxist institutions”, though the judges declined to weigh in on whether the email was admissible. Even without the email, the main arguments were about the justiciability and the substance of the SCI. Even if substance of the Directive, argued the Appellants, was Crown prerogative, it’s still unlawful and limited by statute. To support this notion, they brought up the recently decided stopping of the prorogation of UK parliament to give context in how Minister can’t circumvent legislation when it inconveniences them. The Respondents simply replied that the issue is not justiciable because it was a decision related solely to spending, which is within the purview of the Minister.
On the matter of substance, the Appellants delved into a discussion of the historical function of student associations. There is no definition of what a student association is, but they have existed in some form for as long as universities have been around, and have been charging student fees since at least the 1960s. Corbett, J. in one of his questions, likened student fees to taxes. Any person who is a student at a university is a member of these student associations, therefore, a student fee to those organizations can be considered a tax in exchange for representation and services. The York Federation of Students (of which we at Osgoode are all members) has a by-law which allows for compulsory collection of student fees.
The Appellants noted the arbitrariness of the decision: the government acted with improper motive, targeted student associations, and created a regime which had a transformative effect on those organizations and their student bodies. Preventing a reliable source of funding turns student associations from autonomous organizations to on-campus retailers. Since the government didn’t save any money from this decision, its hard to see how spending is the possible alternative motive.
Again and again, as the Respondents made their submissions, the bench kept asking the government to justify its actions, either by providing the process by which services were designated essential and non-essential (to disprove the Appellants’ submission that student associations were targeted) or to explain how mandatory student fees are not equivalent to a governmentally required tax on its citizens. The Respondents kept coming back to the government policy around making higher education more affordable, allowing students a freedom of choice, and forcing greater transparency. Corbett, J. in particular took issue with the idea that causing student fees (which range from $200 – $2000 depending on the institution) to be voluntary would positively affect students, given that the Directive drastically cut student aid and OSAP as well. The main crux was that, with services being unbundled, there would be greater transparency of where student fees are spent and that would allow students to make more informed choices of what their money was being used to support. Again, Corbett, J. took issue, asking if he should not be forced to pay taxes on roads he doesn’t use or ambulances he doesn’t take.
Final Comments
While the court elected not to make a decision on the day of the hearing, the panel clearly seemed to favour the submissions from CFS. If the court decides in favour of CFS, the SCI may be quashed. However, the justices noted several times through the hearing that the province has legislative power over the universities, and if it wanted to, it could attempt to amend legislation to achieve the same ends as the SCI in allowing student fees to be voluntary rather than mandatory.
Both the Appellants and Respondents made other submissions and arguments. The decision is due to be released before the end of the year.