Student Legal Clinics in Limbo as Divisional Court Strikes Down Student Fee Policy, Province Appeals

On November 21, the Divisional Court struck down the so-called “Student Choice Initiative” of the Ontario Government. This program ordered universities and colleges to allow students to “opt-out” of certain fees related to student administration and other ancillary fees.

Certain “essential services” were exempted from the program. Varsity sports were considered to be an essential service for students. Student legal clinics were not.

The two main income sources for student legal clinics in Ontario’s law schools are Legal Aid Ontario, and student fees. In spring 2019, student legal clinics suffered a retroactive 10% cut in funding from Legal Aid Ontario, their main funder. The Student Choice Initiative threatened their other key funding source.

After the smoke cleared in this fall, as a whole about 20% of university students opted out of paying student fees for student legal clinics. For my clinic at Western Law, it was an additional cut of 4%. We have had to cut back on our services to low income persons.

Many Slaw readers worked in their law school clinics. They know the great work our students do for low income persons in our communities. The work they do makes them better lawyers, and impresses on them the importance of helping those in need. Student clinics also play a significant role in access to justice in their communities.

With legal aid cuts to duty counsel, community clinics, and student clinics, more self-represented persons have been appearing in the courts and tribunals. While trying to defend themselves, through no fault of their own, they clog up the system, slowing it down and raising the costs of justice.

Studies in the US, UK, and Australia show that for every dollar invested in legal aid, governments save on average $6 in the costs of justice, health care, social assistance, and other spending envelopes.

With all of this in mind, the York Federation of Students and the Canadian Federation of Students, along with intervenor University of Toronto Graduate Students Union, sued the Province of Ontario, claiming there was no authority for the government to implement the policy.

The Divisional Court agreed, stating that student associations are private not-for-profit associations, and there was no statutory authority for the government to interfere with their operations. Similarly, universities and colleges are autonomous institutions that are publicly assisted with funding. They were created by private legislation in which their governance is prescribed. Once again, there is no statutory authority for the province to interfere with their internal affairs.

The Ministry of Training, Colleges, and Universities took the position that:

1. The Student Choice Initiative was a “core policy choice” not subject to review;
2. The program was an exercise of the Crown’s prerogative power over spending.

The Divisional Court made short shrift of the government’s position, stating that if accepted,

… [it] would undermine the supremacy of the legislature and open the door for government by executive decree, a proposition repugnant to the core principles of parliamentary democracy.

While the Court granted certiaori, ruling the program illegal, it did not grant any specific remedy. It left open the question of who would cover the shortfall suffered by student legal clinics and other groups.

A few weeks later, the Ministry announced it was seeking leave to appeal the decision. In the meantime, student legal clinic funding is in limbo, our courts are bogged down, costs are rising, and too many Ontarians cannot obtain justice.