Court hearing Ontario students' fight over opt-out of supplementary fees

The Ontario government's order that made certain student fees optional was a politically motivated attack on student unions and services that threatens university independence, Divisional Court heard on Friday.

In his submissions, a lawyer for the students said the Progressive Conservative government under Premier Doug Ford had no authority to implement its "Student Choice Initiative."

The change was arbitrary, court heard, and threatens student-led programs such as clubs, campus newspapers, food banks and other support services, as well as the provision of part-time jobs.

"The autonomy of universities is threatened," lawyer Mark Wright told the three-judge panel.

The Canadian Federation of Students and York Federation of Students are challenging an order from the minister of training, colleges and universities that makes optional some non-tuition fees.

Government: Directive enhances transparency

The government maintains students should have more choice as to which campus services they support. It also says the directive enhances transparency.

From the outset, the lawyer said, the minister targeted student associations. The government's list of what it considers essential fees students must pay is arbitrary and was made without consultation, Wright said.

He cited comments Ford made in February.

"Students were forced into unions and forced to pay for those unions," Ford said in a fundraising email at the time. "I think we all know what kind of crazy Marxist nonsense student unions get up to."

Full-time students in Ontario pay about $300 in fees each year, none of which goes to the institutions themselves. While student organizations say it's too early to tally the impact of the new rules on their services, court heard York University estimates 60 per cent of supplementary fees are now optional, costing its student union about $1.25 million.

The government has threatened to claw back operating grants to schools that don't abide by its directives.

'Attacking the students' right to unionize'

Wright said that condition violates legislation barring ministerial interference in the independence of university governance, and "normal activities" of elected student bodies should also be off-limits.

At one point, Justice David Corbett asked whether the government has a legitimate interest in keeping ancillary fees low as part of overall affordability. But the student groups' co-counsel Louis Century said the government has gone too far.

"If they can intrude on the existence of a student government to function on campus, why can't they intrude on tenure or anything else?" Century said.

New Democrat MPP Chris Glover called the government action politically motivated. The measures threaten services for Indigenous, LGBTQ and other vulnerable students, he said.

"The Ford Conservatives are attacking the students' right to unionize, to organize and to provide services," Glover said.

"There's a vast reduction of services, and some of these are actually vital to student life."

In support of the government, a lawyer for the Jewish human-rights group B'nai Brith Canada said the "measured"
initiative takes into account students who disagree with their elected associations.

Corbett was skeptical, asking why people would pay taxes if they didn't agree with the government.

The justice gave the government's lawyers a rough ride, pummelling them with questions about the rationale for a change they struggled to explain.

"There's no principled explanation other than, 'Cabinet said so,"' Corbett said at one point.

The justice also questioned whether Ontario was being candid about what prompted the measures.

Government lawyer Antonin Pribetic rejected suggestions of bad faith, saying the rules don't stop students from organizing.

Kayla Weiler, with the Canadian Federation of Students, said all students benefit from their union activity.

"Students are often targeted for major cuts," she said. "Even if you're a student that's never set foot on campus, you benefit from the advocacy."

The panel reserved its decision.