Challenges to Ontario
Government's Anti-Social Agenda
Court Rules Government Violated Autonomy of Post-Secondary Institutions
- Mira Katz -
 Demonstration in Toronto, January
18, 2019, opposing cuts to OSAP and
the
Student Choice Initiative.
On November 21, Justices Sachs, Corbett and
Favreau of the
Divisional Court of Ontario's Superior Court of Justice ruled
against
the Ontario government's Student Choice Initiative (SCI). The SCI
made certain public funding to post-secondary institutions
conditional upon the institution making membership fees in
students' unions and some ancillary fees for services these
unions provide optional (i.e. students can opt out of paying
them), while arbitrarily defining other student ancillary fees as
mandatory.[1]
The Justices
ruled that the government's initiative violated both the autonomy
of universities and the Ontario Colleges
of Applied
Arts and Technology Act and went beyond the government's
prerogative powers. The case against the government was brought
forward by the Canadian Federation of Students and the York
Federation of Students. Intervening in the case in favour of the
students' unions was the University of Toronto Graduate Students'
Union, while intervening in support of the government's directives
was B'nai Brith Canada, a Jewish advocacy group and "staunch
defender of the state of Israel."
 The government
claimed that the purpose of its initiative,
which came alongside a phony 10 per cent tuition reduction and
cuts to student loans, was to improve affordability and access to
publicly-assisted universities and colleges. The government
further argued that its directives were based on "core policy
decisions" made by Cabinet, and that "they are therefore beyond
the scope of the court's jurisdiction to review." It also argued
that the directives were made pursuant to the Crown's prerogative
spending power and that the court has no jurisdiction to
interfere with government spending decisions.
Concerning the government's purpose, the court
noted the
applicants' evidence of a fundraising letter sent by the Premier
to his supporters which stated: "I think we all know what kind of
crazy Marxist nonsense student unions get up to. So, we fixed
that. Student union fees are now opt-in." In its decision,
however, the court did not make the issue the purpose of the
directives, but rather ruled on whether they were within the
government's prerogative powers. The court "has a role in
ensuring that the Minister has the legal authority to require
universities and colleges to comply with the directives," the
ruling stated.
The court noted that the question before it "is
whether the
SCI and the directives fall within the limits of the Crown's
prerogative spending power." The court pointed out that "[o]ne of
the obvious flaws in [the government's argument that the
directive is within its prerogative powers over spending power]
is that the amounts [of ancillary fees] at issue for each student
are very small relative to the overall cost of an education. In
addition, the distinction between essential and non-essential
fees seems arbitrary if the actual objective behind the SCI and
directives is to lower the financial burden on students: athletic
fees, which are roughly ten times greater than student
association fees, are deemed 'essential' but student association
fees are not: no principled basis for this distinction was
offered in the record before us or in argument."
The court also raised serious questions about what
the
government was attempting to do with its directive and future
cases which may come against it. "This case could raise a
legitimate issue regarding the scope of the Crown's prerogative
spending power: can attached conditions be irrelevant or
immaterial to the purpose for which the funding is provided? Can
conditions go so far as to interfere with the financing and
activities of third parties, such as the student associations in
this case, that receive no funding from Ontario? However, this
issue was not squarely raised by the Applicants or addressed by
Ontario, and there appears to be little case law on the scope of
the Crown's prerogative spending power. We do note that there are
no cases like this one where a court has addressed the issue of
whether the Crown has the authority to use its spending power in
a manner that affects the self-funding and activities of a third
party."
 The court pointed
out that the Ontario Colleges of Applied
Arts and Technologies Act specifically states that "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." The court pointed out that by
requiring colleges to make student union fees voluntary, "the
Minister is ordering colleges to take steps that will restrict
student governing bodies from carrying out their normal
activities, something that s. 7 expressly prohibits."
With respect to universities, whereas each
university is
governed by its own Act that does not explicitly delineate the
role of students' unions, the court cited rulings of the Supreme
Court of Canada upholding the autonomy of the universities and expert
testimony on the history of autonomy in Canadian universities,
and ruled that "the University Acts 'occupy the field' when it
comes to university governance, including student activities.
Requiring that universities allow students to opt out of student
association fees and other 'non-essential' services is
inconsistent with the universities' autonomous governance."
In addition to the government's arguments, the
court also
noted the arguments made by the sole intervenor in the case on
the side of the government, B'nai Brith Canada. B'nai Brith
argued in favour of the government's initiative claiming that it
enhances "autonomy and choice for individual students who may not
agree with or wish to support their student associations," or
what the court labelled the "liberty argument." The court did not
enter into a debate about the validity of B'nai Brith's arguments
but instead dismissed them on the basis that they presented no
evidence on the record to support their claims and instead
presented evidence that was not on the record for the court,
something which no intervenor is permitted to do. The court did
note that the so-called liberty argument collided "with the right
to take collective action (which may be included in the freedom
of association)."
Besides ruling against the government's
directives,
the court
ordered that the government pay the applicants' costs in the
amount of $15,000.
Government Intends to Appeal
Reports indicate that the Ford government will
appeal the
ruling on the basis that its directive does not interfere with
university or college autonomy as the institutions are free to
decide whether to implement the directive or not and, on this
basis, free to decide whether or not to have their public funding
reduced if they decide not to implement the directive. A
government brief filed in the Court of Appeal reportedly reads:
"Universities remain free to exercise their independence and
autonomy through the choice to accept public funding, subject to
whatever conditions are attached. Attaching conditions to
government grants in no way interferes with university autonomy
and independence."[2]
Notes
1. Canadian
Federation
of
Students v. Ontario, 2019
ONSC
6658
2. See article
from the Charlatan here.
This article was published in
Volume 49 Number 31 - December 14, 2019
Article Link:
Challenges to Ontario
Government's Anti-Social Agenda : Court Rules Government Violated Autonomy of Post-Secondary Institutions - Mira Katz
Website: www.cpcml.ca
Email: editor@cpcml.ca
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