Student Choice initiative counter to legislation governing colleges and universities: Court

Ruling confirms executive authority subject to judicial review, constrained by legislation: lawyer

Student Choice initiative counter to legislation governing colleges and universities: Court
Geetha Philipupillai, Louis Century, Ewa Krajewska

Ontario’s Minister in charge of universities and colleges must align its policies with the legislation governing those institutions and cannot interfere with the democratic governance of student unions, the Court of Appeal recently confirmed in its ruling on the Ontario Government’s Student Choice Initiative.

Through the initiative, the Minister of Training, Colleges and Universities sought to condition provincial funding on schools allowing students to opt out of paying certain student fees. The fees in question cover non-academic services, such as student associations.

In Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553, the Court of Appeal confirmed the Divisional Court’s finding that the initiative is inconsistent with the University Acts and the Ontario Colleges of Applied Arts and Technology Act (OCAATA).

“This ruling confirms that the Minister must exercise policy-making functions in accordance with the statutory backdrop governing Ontario universities and colleges,” says Geetha Philipupillai, who acted for York Federation of Students (YFS) and Canadian Federation of Students (CFS) in the case. “… It’s not surprising or controversial that the Court of Appeal confirmed that the supremacy of the legislature trumps ministerial authority. All six judges of the Court of Appeal and Divisional Court who have heard this case have agreed on this point.”

“It’s an important principle in a parliamentary democracy,” says Ewa Krajewska, who acted for the University of Toronto Graduate Students’ Union. “It confirms that executive authority is subject to review by the courts and is constrained by legislation.”

Through a revision of college directives and university guidelines, the Minister in 2019 required a 10 per cent reduction in tuition fees and established the Student Choice Initiative, which made optional the payment of fees for services deemed non-essential. Through the initiative, “every individual student in Ontario will be empowered to choose which student fees they want to pay and how that money will be allocated,” said the Ministry at the time.

Universities and colleges which did not allow students to opt out of fees for non-essential services would risk reductions in operating grants.

“The decision also demonstrates that just because the government provides significant funds to universities and colleges does not mean that it can use that spending power or funding power to control universities and colleges and specifically their relationship with third parties,” says Krajewska.

The YFS and CFS applied for judicial review, seeking to quash the initiative. The student unions argued it was inconsistent with the statutory framework regulating colleges and universities and was made out of improper purpose, in bad faith and in breach of the requirements of procedural fairness.

At the Divisional Court, the case turned on whether the Minister had the legal authority to require universities and colleges to comply. The court found the initiative restricted student associations in a manner counter to the OCAATA, and that the independent governance structure given universities by the University Acts precluded the Minister implementing the initiative’s guidelines.

The Minister appealed, arguing the court erred in law in finding the OCAATA prohibited the Minister from carrying out the initiative and that the University Acts displace or limit the Crown’s spending power.

The Court of Appeal affirmed that University Acts give decision-making authority to boards and senates to insulate universities from “intrusion and interference in their internal affairs” by the province, says Louis Century, a civil litigator at Goldblatt Partners LLP, who also acted for the YFS and CFS.

“This model of governance dates back to the early 20th century and the Court relied on expert evidence describing the history and purpose of autonomous university governance,” he says. “Given the important role that student unions play in university governance, Ontario’s directions were inconsistent with the governance autonomy enshrined in the University Acts.”

Similarly, the OCAATA gives legislative rights to student governments to ensure their autonomy in colleges, says Century.

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