Ontario Trying to Reinstate Unlawful Directive

The SCI

The SCI is a directive issued by the Ontario Cabinet, first introduced in early 2019. It was sold as a way to save students money, part of a three-pronged initiative to improve affordability and access to publicly-assisted universities and colleges. The SCI classified certain previously-mandatory fees as “non-essential” and gave students the choice to opt out of paying these fees.

In late November — thanks to much effort from the Canadian Federation of Students (CFS) and the York Federation of Students (YFS) as well as their lawyers from Goldblatt Partners LLP — the Ontario Divisional Court ruled the initiative was unlawful and that the government had overreached with its directive.

When the news broke that the court had unanimously voted to quash the SCI, it was regarded as a win for CFS, YFS, and students everywhere, but the big question that remained after all the “we won” articles were published — the question that remains and is being echoed again and again by student groups and those affected by the SCI — is: What happens now? 

 

 

This fall semester, 8,556 undergraduate students at the University of Guelph opt-ed out of at least one fee that the SCI had reclassified as non-essential. This represented approximately 35 per cent of students and resulted in a loss of $537,000 that would have normally gone to supporting student groups and organizations.

Students at the University of Guelph have recently completed their second opt-out period, this time for fees for the winter semester. The window to opt out of non-essential fees was Oct. 28 to Nov. 17, 2019, meaning the court’s decision came almost immediately after. 

The Varsity reported that the University of Toronto removed its online non-essential fee opt-out portal as the university wanted to “evaluate the technical impact of the Divisional Court’s decision,” but for Gryphons, that window had already closed. As of writing this, the U of G webpage about the SCI is still active. How the court’s decision will affect winter fees and fees for later in 2020 is not yet clear. There has been some discussion among campus groups about what will happen with student fees in the winter semester, but it seems unlikely that the university will reverse any decisions students have already made.

Response From The University

The funds that students groups are concerned about are not insubstantial. On a per-student level, the amounts are small, just a few dollars, but collectively these fees represent a significant amount of money. How the University of Guelph and the other affected universities now choose to respond to the court’s decision and this latest news regarding the appeal, can dramatically change how student groups plan for 2020 and beyond. So again we come back to the original question: What happens now? 

The Ontarion has reached out to Carrie Chassels, Vice-Provost Student Affairs, and her office several times since Nov. 21 with specific questions. 

We wanted to know the following:

1.   What does this ruling mean for current UofG students?
2.   Now that the courts have deemed the SCI unlawful, does U of G plan on returning to the previous (pre-SCI) way of handling student fees? If so when would that take effect?
3.   Does the university have any plans to address the lost funding from this year? Likewise, does the university have any plans to help or assist groups that faced significant changes to staffing or operations due to funds lost as a result of the SCI?
4.   Now that the SCI is deemed unlawful, are students going to be asked to repay fees they opted out of?
5.   When the court gave its ruling on Nov. 21, what point in the billing timeline were we in? The opt-out period had ended, but had students received invoices? Had they actually paid their fees?
6.   Given (5), would the university be able to bill at 100 per cent for student fees (as if there was no SCI)?
7.   If the university were to bill at 100 per cent, what would the process look like?
8.   Should Ontario be granted its leave to appeal and if this case is still unresolved by Fall 2020, will the university uphold the SCI or revert to the old way given that it has been deemed unlawful?

The responses from Student Affairs have been positive, expected, and unhelpful.

“Hopefully we will have more information in the coming weeks.” (Nov 22, 2019)
“As soon as we have information to share, we will definitely connect with you.” (Nov 25, 2019)
“We are still trying to figure out the best way forward. We hope to know more by the end of this week.” (Dec 10, 2019)

While we appreciate that the university is working to come to some solution regarding the SCI and while we appreciate that the issue is ongoing, student groups are currently in the dark as to what’s going on while receiving little communication from the university. The Ontarion is eager to hear back from Student Affairs when they finally decide what will happen. But for now, I guess we wait.

I want to be clear that I, The Ontarion, and (I’m sure) all the affected student groups do understand the difficult position the university is in trying to coordinate the student fees and university operations given both the sheer number of students and the seemingly ever-shifting discussion around the SCI. That said, what the university does now and the position they take affects us all, and we need to know what is going to happen.

Dear Ontario (and The Globe),

The SCI represents a gross abuse of power by the government. The court found it to be that the government had overstepped by enacting a directive that compromised the autonomy of universities by requiring them to make some student fees optional. In the court decision released on Nov. 21 the three judges wrote:

“University and college student associations are private not-for profit corporations. Ontario does not fund these associations directly or indirectly. Ontario does not control these associations directly or indirectly. There is no statutory authority authorizing Cabinet or the Minister to interfere in the internal affairs of these student associations.” 

Ontario has responded to this, per the article in the Globe, by saying: “Attaching conditions to government grants in no way interferes with university autonomy and independence. Universities remain free to exercise their independence and autonomy through the choice to accept public funding, subject to whatever conditions are attached.” This is, of course, utter nonsense, and should (even if read charitably) be understood as an attempt at strong-arming. The two main sources of income for Ontario universities are government grants and tuition. The government provides more than $5 billion annually to Ontario’s publicly assisted universities and colleges, about one-third of their overall operating revenue, and this statement says, in essence, if you want that money, you’ll listen and fall in line.

Ontario argued that giving students the option to opt out of certain fees was done to save students money. This, too, the court rightly took issue with.

“One of the obvious flaws in this argument is that, based on the evidence before us, the amounts at issue for each student are very small relative to the overall cost of an education. In addition, the distinction between essential and non-essential fees seems arbitrary if the actual objective behind the SCI and directives is to lower the financial burden on students: athletic fees, which are roughly ten times greater than student association fees, are deemed “essential” but student association fees are not: no principled basis for this distinction was offered in the record before us or in argument.”

From the beginning, those affected by the changes to funding — notably student organizations such as student unions, campus newspapers and radio stations, and an assortment of student groups and societies that offer services that support marginalized individuals — saw the SCI for what it is: An attack on the ability of students to organize.

This has been pointed out many times, including in prior reporting by The Ontarion. 

“This was never about choice,” said Kayla Weiler, the Ontario CFS representative and a former U of G student, “[the SCI was] about the Ford government trying to silence the exact bodies that hold them accountable.” 

Because of this, it should come as no surprise that this government is attempting to appeal the court’s ruling.

I will not argue that efforts to save students money are not good — they are good. University is too expensive. And for many, it is simply inaccessible. However, as the court pointed out, if the SCI was really about saving money, the way it was implemented would have been different. The SCI does save students money, but it’s pennies on the dollar. The few bucks saved by opting out of supporting the Menstrual Hygiene Product Initiative is nothing compared with the overall costs of tuition. 

The SCI was not, and has never been, about saving students money. There are other and better ways to make education more accessible and the government knows this. 

It is for this reason that I find much of the reporting on the SCI, much from authoritative news sources, to be so frustrating. 

The Globe and Mail, who initially reported the news that the government was seeking to appeal, is just one example. 

Their article, “Ontario government fighting to restore directive that made many fees optional for post-secondary students,” was straightforward and informative, but it fails, in my opinion, in it’s framing of this as an Ontario issue rather than a student one. This is not a slight against their reporting, which is fine, but their approach to this issue struck me as inappropriate. 

As discussed above, the SCI is not about money; it is a way to impede students’ ability to organize, operate, and provide services that (whatever the government says) are not and should not be spoken about as optional. This discussion, which has largely been led by student newspapers and students themselves — students like those at CFS and YFS who have worked so hard to challenge the SCI — needs to remain centred on students, and framing this as a thing which the government is fighting to restore, misses the key point: The government is not trying to restore a cost-saving directive, but rather trying to reimplement an unlawful and harmful rule that targets students under the guise of penny-pinching. We should call it what it is.

 

So What Happens Now?

In a previous article about this topic, I wrote the nearly the same heading followed by three points:

The court’s decision is a win for students, but exactly what happens now remains unclear.
The question as to whether the Ford government will appeal the court’s decision remains.
Goldblatt Partners stated, “Given the unanimous decision of the Divisional Court, it is to be hoped that the Government will respect the decision and not pursue any appeals.”

In the weeks that have followed, that first and most essential question remains unanswered. 

To the second point, it seems we have an answer. However disappointing and whatever our hopes were, it is no surprise that this government is pursuing an appeal. Equally as disappointing and unsurprising, it seems that, as before, this matter falls to students and universities to weather.

One comfort remains: The SCI has already been defeated once. Should this appeal be granted, it will be defeated again.