Earlier this month, the Ontario Divisional Court released its decision (by the Court) in Canadian Federation of Students v. Ontario, striking down the Ontario government’s “Student Choice Initiative” (SCI), which permitted students to opt out of certain ancillary fees that would otherwise have been collected by university and college student unions. The Canadian Federation of Students (CFS) (a national student organization, made up of student associations when students have given approval, that is student funded) and The York Federation of Students (YFS) sought judicial review to quash the directives. The Divisional Court decision had to address the government’s attempt to make some fees optional. In this the government was unsuccessful.
Near the end of its decision, the Court referred to the argument B’Nai Brith, an intervenor, made that the SCI was justified on the “liberty” argument, that it allowed students choice about the activies and services it wanted to support. The Court rejected the argument, but suggested it might be relevant under different circumstances. After reviewing the Court’s decision, I return to this point: are there circumstances under which a challenge based on the Canadian Charter of Rights and Freedoms would be successful?
The SCI took the form of “policy directives” for colleges (under section 4 of the Ontario Colleges of Applied Arts and Technology Act, 2002 (OCAAT Act), the Minister of Training, Colleges and Universities may issue “policy directives” to the colleges) and “guidelines” for universities (Div Ct, para.1 [unless otherwise noted, all citations are to the Divisional Court’s decision]). At the same time, the government, through Cabinet direction to the Minister, made changes to the Ontario Student Assistance Program to make it more sustainable and reduced tuition (and froze it for next year). The Minister announced the policies in January 2019.
The SCI affected “ancillary fees related to student associations, products and special services” (para. 58), dividing them into essential fees and non-essential fees. The former could be mandatory, the latter optional on an individual student basis. Membership fees for students associations were to be non-essential. After consultation, the fees for “certain transit passes”, fees related to varsity athletics and “certain technology fees” were deemed to be essential.
As the Court explained,
Under the impugned directives the following categories of services are deemed essential: athletics, career services, student buildings, health and counselling, academic support, student ID cards, transcripts, financial aid offices, and campus safety. Health and dental plan fees may be charged on a compulsory basis, with a provision for opt-out if a student provides proof of pre-existing coverage. Compulsory ancillary fees may also be charged for certain student transit passes and some technology fees. All other fees are deemed “non-essential”. (para. 63)
Only student association fees were identified as “non-essential” (para. 69).
According to the government, the purposes of the SCI were to reduce the cost of post-secondary education for students, provide transparency about fees, giving students choice about the services and activities they want to support and “promoting consistency and simplicity” in the opt-out process across schools (paras. 64-65). There was no explanation for limiting the non-essential fees to those allocated to the student associations, other than a fundraising letter in which the Premier 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'” (para. 67).
The government argued the directives were not justiciable because they were a “core policy choice” not subject to judicial review and an exercise of the Crown’s prerogative power over spending. The Court rejected these arguments: they “would undercut the supremacy of the legislature and open the door for government by executive degree, a proposition repugnant to the core principles of parliamentary democracy” (para. 5). The Crown’s prerogative power “may not be exercised contrary to laws enacted by the legislature” (para. 19). The legislative scheme actually at issue, in the Court’s view, is that prescribing college and university governance, a question that “lies at the very heart of the court’s public law mandate” (para. 6).
The Court held the government has no authority to intervene in the internal affairs of students associations, which are private not-for-profit corporations, and in which the universities have made membership mandatory (para. 9). Universities are private institutions, autonomous and self-governing. Ontario also has a “legislated policy of non-interference [by government] in university affairs”. Created by its own governing statute, a university has a body responsible for running it and a body responsible for academic matters, which together address “every aspect of university governance and operations” (para. 43), with the involvement of faculty and students (para. 48). (For the evolution of university autonomy and “democratization”, see paras. 35-48.)
Universities receive grants from government and are otherwise funded through tuition, plus ancillary fees paid by students for services provided by the university, such as athletic centres. Government has some impact on universities through its grants (for example, if tuition is higher than the government-determined cap or if the university charges ancillary fees that “violate” the Minister’s policies, it can reduce the grant [para. 56]), but it has no power to intervene in governance. Part of the enforcement of the SCI included reduction of the university or college’s operating monies if it failed to observe the SCI (para. 64).
Universities and student associations have a relationship involving the universities’ collection of student association fees in exchange for the associations’ adhering to democratic processes relating to the fees and accounting for their use.
Colleges are in a different situation, since they are public institutions, which, by virtue of the controlling legislation, are subject to government direction. But the students associations are private not-for-profit associations and while the government can direct the colleges to take particular actions, they cannot direct them to interfere with the student associations in order to restrict their “normal activities” (para. 14).
The student associations are funded through the student fees and receive no public money. In addition, student referenda at York have approved a number of other fees:
per-credit levies for other organizations and activities on campus, including (among other things) a community and legal aid services program ($0.15/credit), a student newspaper ($0.13/credit), membership in the Ontario Federation of Students/ Canadian Federation of Students ($0.24/credit), a sexual survivors support line ($0.07/credit), a centre for women and trans people ($0.10/credit) and a centre supporting and sponsoring refugee students ($0.03/credit), the Canadian Centre for Civic Media & Arts Development ($0.15/credit), Regenesis Environmental and Community Initiatives at York ($0.15/credit), Ontario Public Interest Research Group ($0.10/credit) and a college levy ($0.95/credit). (para. 27)
Students are automatically enrolled in health and dental plans, although they can opt out if they have alternate coverage and they then receive a refund of the relevant fees. They can also opt out of several other activities or services as a result of the original referenda: “the Ontario Public Interest Research Group, the Sexual Survivors Support Line, the Centre for Women and Trans People and the World University Service of Canada”.
The YSA engages in a range of other activities, such as membership on the university senate, and it employs students to run programs such as a wellness centre, photocopying services, an off-campus housing tool and a food support centre, among others.
With the SCI,
the following categories of services are deemed essential: athletics, career services, student buildings, health and counselling, academic support, student ID cards, transcripts, financial aid offices, and campus safety. Health and dental plan fees may be charged on a compulsory basis, with a provision for opt-out if a student provides proof of pre-existing coverage. Compulsory ancillary fees may also be charged for certain student transit passes and some technology fees. All other fees are deemed “non-essential”. (para. 63)
Only the student association fees were actually non-essential (62% of the YFS fee or $1.25 million of its $2 million revenue), making planning difficult, since the extent of “opt-out” for any given activity or service would vary from year to year. (For the impact on YFS’s and CFS’s abilities to provide services, see paras. 69-73.)
The Court did not have current evidence about the impact of the SCI, but it found that the reduction in fees would result in staff lay-offs and reduction in stipends for staff, thus making it more difficult for low-income students to serve in these positions, difficulties paying vendors and remitting fees to CFS, use of fees convincing students to opt-in to programs and services, failure to provide essential services “because of a reduction in their overall capacity”, among other effects (para.70). CFS could also have its services impaired through less revenue (para. 71).
It subsequently became clear (after the hearing, but prior to the release of the decision) that the impact of the SCI differed from school to school. A report in The Globe and Mail in late October stated that according to its vice-president of operations and finance at the Lakehead Student Union,
Lakehead has seen 60-65 per cent of students opt out of their fees. Some of the services affected include aboriginal programming and a campus daycare, which will see their funds cut by about 75 per cent on preliminary estimates, and services such as a food bank, which will likely lose about 65 per cent of its funding.
Universities referred to in the Globe article had opt-out rates ranging from Lakehead’s 60-65% to 17% for York. However, certain services or programs were higher. For example, Ryerson’s student newspaper had an opt-out rate of 55%. In addition, the associations had other decisions to make, such as whether students who pay fees should be treated differently from those who opt-out in and “[m]any student groups say they worry they’ll suffer a death of a thousand cuts, as each opt-out period results in progressively smaller revenues”.
The government based its argument of “core policy decision” on R. v. Imperial Tobacco Canada Ltd., in which the Supreme Court of Canada distinguished “core policy” and “operational decisions” in the context of negligence liability. It defined “core policy decisions” as involving social, economic and political considerations to determine a course of action, stating that this was the proper role of government, not the courts. In this case, however, the question relates to whether the directives conflict with the statutory regime determining the relationship between the government and the universities and colleges and student associations (paras. 76-81).
With respect to the government’s argument it was exercising a prerogative spending power, the Divisional Court relied on the comments by the United Kingdom Supreme Court in R. (on the application of Miller) v. The Prime Minister about the importance of parliamentary sovereignty, which the executive cannot infringe through its actions (paras. 94-96). In Ontario, the Crown exercised its prerogative power of spending in a way that was contrary to the legislative scheme governing colleges and universities. The colleges are governed by the OCAAT Act under section 4 of which the Minister has the authority to issue policy directives to the colleges; however, section 7 of the Act also states that colleges are not to restrict students associations from carrying out their normal activities (“Nothing in this Act restricts a student governing body of a college…from carrying out its normal activities and no college shall prevent a student governing body from doing so.”). Thus the Minister’s directive would require colleges to breach this provision and is therefore contrary to the legislative scheme. (paras. 98-106)
As for universities, statutes granting them self-governance means that they “‘occupy the field'” in relation to university governance; there is no room for a ministerial directive that would interfere with their autonomy. (paras. 108-119)
The Court issued an order in the nature of certiorari quashing the impugned directives (para. 132).
As already mentioned, towards the end of its decision, the Court referred to B’Nai Brith’s argument that “the impugned directives enhance autonomy and choice for individual students who may not agree with or wish to support their student associations”. The Court rejected this argument and among other reasons for doing so, noted that this “liberty argument” collides with “the right to take collective action”. It also pointed out that the directives were not “prescribed by law” and therefore would fail the first step of the analysis under section 1 of the Charter. (para. 122)
Let’s imagine for a moment two scenarios in which the Charter might be relevant: 1) the government does legislate making some student fees optional and 2) students who object to the current (mostly) mandatory scheme challenge it as infringing their freedom of association or expression under the Charter. What issues would arise if either of these applications were made, either by the government’s legislating directives or students challenging the mandatory fees, giving rise to an argument based on section 2(d) of the Charter, freedom of association? For this purpose, I take the Divisional Court’s findings of fact and conclusions as a given and suggest, in an abbreviated way, the Charter issues that are likely to arise in the two scenarios.
With respect to the first scenario, the Divisional Court’s analysis based on the relationship between the legislative regime and executive directives based on the prerogative power would not be applicable. Two points to note: the authority of the obligation to pay fees to the student association at York, for example, derives from a university regulation, not from legislation (paras. 23-26), and from student referenda (para. 27) and the authority of universities as self-governing institutions derives from their controlling statutes (see, for example, the York University Act, 1965). Colleges, on the other hand, are governed by the OCAAT Act, which, as already indicated, gives the Minister greater authority over the colleges than over the universities, as long as government intervention conforms to the Act.
Nevertheless, as the Divisional Court points out, section 7 of the OCAAT Act provides, “Nothing in this Act restricts a student governing body of a college elected by the students of the college from carrying on its normal activities and no college shall prevent the student governing body from doing so.” It appears that the Court’s consideration of the autonomy of the universities and the protection of student associations under section 7 of the OCAAT Act would apply under the circumstances of government legislation to accomplish the SCI. However, in universities, it is the university that “protects” the student association, while in colleges, it is the OCAAT Act that achieves the same objective. Thus universities could change regulations affecting the student associations to accord with legislation and the government could enact an override of the protection of student associations in the OCAAT Act.
A third option is that the government enacts legislation that governs student associations directly. In 2011, a private members bill (Bill 184) had as its objective to protect the autonomy of student associations; it did not go beyond first reading. Obviously, a government with different objectives could enact legislation designed to control the activities of student associations, including in relation to fees.
All of these legislative initiatives would be disruptive of the current legislative regime, particularly with respect to universities and student associations. However, the government has imposed a requirement that universities and colleges implement free speech policies, that some consider to be an intrusion on (at least) university autonomy, and all colleges and universities have complied (or argued that their current policies meet the requirements). (See the requirements, some views on the requirements as reported by Global News and the Higher Education Quality Council of Ontario 2019 free speech policy report.) The previous government also required post-secondary institutions to have sexual assault policies effective January 2017; see the statute here. These initiatives may be popular or unpopular, desirable or undesirable, but the point is that government appears able to impose this type of requirement regardless of university autonomy.
Would any of these legislative actions be susceptible to a Charter challenge? As long as the government legislates fee-related policies, it is vulnerable to a Charter challenge under section 2(d), unless it overrides it under section 33 of the Charter. Although freedom of association has been addressed primarily in the labour context, the situation is analogous. The student associations require (in the main) mandatory membership and fees because it is only through collective action that they are able to provide effectively the services and programs that benefit students in a variety of ways (that is, carry out their “normal activities”). (The Divisional Court alluded to this argument when it referred to “countervailing arguments” in response to B’Nai Brith’s “liberty” submission (para. 122). Under section 1, the government would be required to show that giving students a choice and thus decreasing association effectiveness was pressing and substantive. This might be a difficult test to meet, since in Canadian Federation of Students, the Divisional Court was not impressed by the government’s articulated purposes. Furthermore, the way the SCI was structured, it meant that the student association fees necessary to carry out the association’s mandate were not a minimal impairment. And the breakdown of the how the fees were allocated indicates that the benefits offered by the SCI did not outweigh the negative impact on the associations’ ability to provide services and programs.
The other scenario is that students who disagree with the mandatory fee requirements under the current system bring a challenge based on negative freedom of association, arguing that they should not be required to be members or to pay fees. (They might also argue their freedom of expression is being infringed by mandatory membership). This could pose an issue for associations at colleges, which are public bodies and subject to the Charter, although student associations themselves, which are private, are presumably not. Whether students could mount a Charter challenge to mandatory student association fees would depend on whether the actor responsible for the fees is the college (subject to the Charter because of government’s control over them) or the association: it appears to be the latter, since they are self-forming and not created by the colleges.
Student associations at universities are not created by the universities, but like those at colleges, are self-forming. Thus depending on the context, universities might be subject to the Charter (because they are in some way implementing government policy (here one thinks of the free speech and sexual assault policies referred to above) or exercising delegated powers: see an analysis of Charter application to universities by one appellate judge in Pridgen v. University of Calgary (Pridgen, paras. 78-99) or a summary by Professor Jennifer Koshan here). It is not clear that universities are subject to the Charter in these circumstances. Regardless, although universities arrange with student associations to collect the fees in exchange for democratic practices and accountability by the associations, they do not otherwise affect them. The Charter challenge would more properly be directed to the associations and, as private entities, they are not subject to the Charter.
This cursory review of the Charter‘s application to legislation enacting the SCI or to a student’s challenging the current mandatory scheme suggests a Charter challenge would not be successful in large part because the government, in the first instance, would have some difficulty in defending the legislation under section 1 of the Charter and, with respect to challenges to the current fee structure, student associations are private entities to which the Charter is not applicable. A more detailed consideration is necessary, of course, to develop a more definitive conclusion.