Provincial Control of Student Relationships

Post-secondary education is about more than just obtaining a degree.

The critical thinking skills, and insights into new areas, comes about not only through the formal coursework that students enroll, but in the activities that occur on campus. In fact, those students who exclusively focus on their coursework, to the exclusion of other experiences, rarely develop many of the skill sets and perspectives that are necessary for their careers and the rest of their lives.

However, post-secondary education is also expensive, and the provincial government in Ontario introduced a number of reforms to try to make it more affordable. One of these was the Student Choice Initiative, which allowed ever student to choose which student fees they want to pay.

Merrilee Fullerton, who was Minister of Training, Colleges and Universities at the time, said,

Student fees in Ontario can range as high as $2000 per year and, too often, force students to pay for services they do not use and organizations they do not support. We will ensure students have transparency and freedom of choice regarding the campus services and organizations which get access to their money.

By making postsecondary education more affordable through historic reforms, refocussing supports to the families who need it most, and empowering students to choose how their fees are spent, we are restoring accountability, affordability and access to postsecondary education while giving more of our students opportunities to find a job and build a career right here in Ontario.

As many student groups pointed out at the time, universal student fees (or “ancillary fees”) were necessary for many of the programs at campuses across Ontario, irrespective of whether all students used them. A challenge to the Student Choice Initiative in Canadian Federation of Students v. Ontario before the Divisional Court recently concluded that they were beyond the scope of the Crown’s prerogative power, as they are contrary to the autonomy that universities enjoy through statute.

The province’s main arguments were that these directives are a core policy choice, and therefore not subject to review by the courts. They also argued that the directives are part of the Crown’s exercise of prerogative power over spending. The court rejected both of these arguments,

[5] …Neither argument justifies exempting the impugned directives from judicial review for legality. To hold otherwise would undercut the supremacy of the legislature and open the door for government by executive decree, a proposition repugnant to the core principles of parliamentary democracy.

Central to the court’s position was that student associations are not funded directly or indirectly by the province, and there is no statutory authority for the Cabinet or the Minister to interfere with their internal affairs. Membership in these organizations are mandatory, but spending is determined by a democratic process.

Although universities receive public assistance, they are not publicly owned or operated, and have enjoyed a legislated autonomy for over a century. This autonomy is fundamental to academic freedom, and part of that autonomy is the arrangements universities have with student associations.

Around the turn of the century, concerns arose around the use of the University of Toronto by the province for political patronage and partisan politics, which would undermine its ability to develop as an academic institution. Premier Whitney announced the creation of Ontario’s Royal Commission on the University of Toronto in 1905, also known as the “Flavelle Commission,” after the name of the Chair.

The main conclusion of the Commission was that universities should be autonomous. This became the model for nearly every university in Canada, which were created by a unique statute with a special responsibility for governing their own affairs.

Even though colleges are public institutions which are subject to the direction of government under s. 4(1) of the Ontario Colleges of Applied Arts and Technology Act, s. 7 precludes interference with student associations, especially in ways that would prevent them from carrying out their normal activities.

The relationship between universities and students largely changed after WWII, as many of the new students were older, more mature, and had more diverse socio-economic backgrounds than previous generations. Mandatory student association fees were introduced in the 1960s, and played an important role in the following decades about student needs and preferences. Student associations today still focus much of their advocacy efforts within their own universities and campuses.

Provincial grants comprise approximately a third of all income for Ontario universities, currently about $5 billion a year. The remainder is largely from tuition. The mandatory student fees are paid on top of this tuition.

As part of the province’s funding formula, there are limits to the amount of tuition that a university can charge, with a reduction in funding if this is exceeded. The province also prohibits tuition-related ancillary fees, and has conditions on any non-tuition related ancillary fees, including consultation with student governments. Violation of the Minister’s policies can result in a reduction in funding.

Although the government has the power to impose conditions on the use of funds, the evidence in this case suggested the amounts were very small relative to the overall cost of education. The exercise of Crown prerogatives is still subject to precedence by statute,

[108] All universities in Ontario are constituted by legislation (collectively referred to as the “University Acts”). The University Acts set out the governance structure for each university in Ontario, which, as described above, generally consists of a Board of Governors and a Senate. Together, the Board and the Senate are meant to govern all the internal affairs of the university.

[114] Nowhere in the University Acts is any authority given to the Minister in particular, or the executive in general, to participate, to make directives or regulations or to interfere in any way in the governance of universities.

[117] In our view, 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.

The initiatives by the province were deemed to be a significant incursion into the ability of universities to govern their own affairs in an autonomous manner,

[119] … The issue is not whether the University Guidelines will have the effect of interfering with student government, but rather whether the imposition of the opt-out, including the classification of some programs as essential and other as non-essential, is itself a form of interference with university autonomy. Given the legislative scheme, in our view the University Guidelines are inconsistent with the intention to give universities autonomy over their governance.

This decision confirms what appears to be an emerging pattern in Ontario, of an executive government that is hasty to enact change, without abiding by or changing the underlying legislative framework.

For example, it would be entirely within the purview of the province to modify and change the statutes that are in place for colleges and universities. They could reduce their autonomy, and even hearken back an era of political patronage and partisan politics for post-secondary educations.

However, changing statutes, even in a majority government, takes some time. A full frontal attack on post-secondary educational institutions in that manner would likely give rise to significant political opposition.

The nucleus of that opposition would likely be in the student groups that already exist on campus. That might explain the real policy reasons behind the Student Choice Initiative, and why it was attempted through Ministerial directive and not legislative reform.

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