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.1

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.

1. College, university, and student governance in Ontario

   Colleges are agents of the Crown.2 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.3

   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.4 This funding is contingent on universities' adhering to various provincial policies. For example, Ontario limits annual increases in domestic student tuition.4

   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".6 As such, while universities are subsidized by public funds and incorporated by statute,7 their internal administration is not subject to Charter review.8 As the Supreme Court of Canada has observed:

   Universities 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.9

   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.10

   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.

2. 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.11 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".12

   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.13

3. The Student Choice Initiative

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

   a binding policy directive for colleges (the "Policy Directive"); and 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...