COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842

DATE: 20201223

DOCKET: M52004, M52008, M52013, M52021, M52034 & M52035 (C68262)

Fairburn A.C.J.O. (Motion Judge)

BETWEEN

The Canadian Federation of Students and the York Federation of Students

Applicants (Respondents)

and

Ontario (Minister of Colleges and Universities)

Respondent (Appellant)

Sunil S. Mathai, Kisha Chatterjee, Ananthan Sinnadurai and Brent Kettles, for the appellant

Mark Wright, Louis Century and Geetha Philipupillai, for the respondents the Canadian Federation of Students and the York Federation of Students

David Elmaleh and Aaron Rosenberg, for the proposed intervener B’nai Brith of Canada League for Human Rights

Ewa Krajewska, Teagan Markin and Mannu Chowdhury, for the proposed intervener University of Toronto Graduate Students' Union

Pam Hrick and Dragana Rakic, for the proposed interveners Start Proud and Guelph Queer Equality

M. Philip Tunley and Jennifer P. Saville, for the proposed interveners Canadian Journalists for Free Expression, Centre for Free Expression, Canadian Association of Journalists, PEN Canada, World Press Freedom Canada and Canadian Association of University Teachers

Robert A. Centa and Lauren Pearce, for the proposed interveners the University of Ottawa, Queen’s University at Kingston, the Governing Council of the University of Toronto, the University of Waterloo, and the University of Western Ontario

Danny Kastner and Vinidhra Vaitheeswaran, for the proposed intervener the Association for Canadian Clinical Legal Education

Heard: in writing

REASONS FOR DECISION

[1] Pursuant to Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, six moving parties seek leave to intervene as friends of the court in a pending appeal from the Divisional Court’s decision in Canadian Federation of Students v. Ontario, 2019 ONSC 6658. The appeal is scheduled to be heard on March 23 and 24, 2021.

[2] In December 2018, the Ontario Cabinet required the Minister of Training, Colleges and Universities to direct publicly-funded colleges and universities to allow students to opt out of ancillary fees related to student associations, products and special services. In March 2019, the Minister issued the “Student Choice Initiative”, which was incorporated in policy directives for colleges and guidelines for universities. The Initiative categorized student fees into either essential mandatory fees or non-essential optional fees. At its core, the Initiative allows students to opt out of many fees relating to student associations, products and special services.

[3] The respondents on appeal brought an application for judicial review to the Divisional Court seeking to quash the directives underlying the Initiative. The Court granted the application and quashed the directives on the basis that they are inconsistent with the statutory scheme respecting the governance of universities and colleges.

[4] Ontario has been granted leave to appeal that decision. The issues on appeal are whether the Divisional Court erred in law by concluding:

i. that the various university statutes “occupy the field” such that they displace or limit the Crown’s spending power; and

ii. that s. 7 of the Ontario Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c. 8, prohibited the Minister from issuing the directive concerning colleges.

[5] The motions to intervene are brought by:

i. B’nai Brith of Canada League for Human Rights (“B’nai Brith”);

ii. University of Toronto Graduate Students’ Union (“UTGSU”);

iii. Start Proud and Guelph Queer Equality (collectively, the “LGBTQ+ Coalition”);

iv. the University of Ottawa, Queen’s University, the Governing Council of the University of Toronto, the University of Waterloo, and the University of Western Ontario (collectively, the “Universities”);

v. the Association for Canadian Clinical Legal Education (“ACCLE”); and

vi. the Canadian Journalists for Free Expression, the Centre for Free Expression, the Canadian Association of Journalists, PEN Canada, World Press Freedom Canada, and the Canadian Association of University Teachers (collectively, the “Coalition”).

[6] The appellant, Ontario, consents to the motions for leave to intervene brought by B’nai Brith and UTGSU. Ontario takes no position respecting the proposed interventions by the LGBTQ+ Coalition, the Universities and ACCLE. Ontario opposes the proposed intervention by the Coalition. It does so on the basis that the Coalition seeks to raise what Ontario describes as a new issue on appeal.

[7] The respondents, Canadian Federation of Students and the York Federation of Students (“Student Federations”), do not oppose any of the motions to intervene.

[8] I will now explain why I have decided that intervener status should be granted to each of the proposed interveners.

[9] B’nai Brith and UTGSU intervened as friends of the court before the Divisional Court. In light of their prior contributions to this case and the parties’ positions, I would grant B’nai Brith and UTGSU intervener status as friends of the court in accordance with the terms set out at the end of these reasons.

[10] Turning to the balance of the proposed interventions, multiple criteria are considered when deciding whether to grant leave to intervene as a friend of the court. These considerations include the general nature of the case, the issues that arise in the case, and the contribution that the intervener can make to those issues without doing an injustice to the parties: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22. As Dubin C.J.O. put it in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[11] In my view, this appeal raises issues that have a far-reaching impact on all publicly-funded universities and colleges in Ontario, as well as the student organizations within those institutions and the student body that attends them. Therefore, the resolution of this appeal will affect a wide array of interests, extending beyond the parties involved.

[12] Additionally, each proposed intervener has an interest that is engaged in the pending appeal: (a) the LGBTQ+ Coalition and the ACCLE claim they have already experienced a serious reduction in funding as a result of the Initiative; (b) the Universities claim an impact on their autonomy arising from governmental interference; and (c) the part of the Coalition’s membership, including 72,000 post-secondary personnel, has a mandate that includes improving the quality of post-secondary education in Canada, something that they say could be seriously adversely impacted by the Initiative.

[13] I am satisfied that each of the proposed interveners have useful and important contributions to make on appeal and will provide perspectives that will not be offered by the parties. Regarding the proposed interveners in relation to which Ontario does not take a position, they have the following important perspectives to offer:

i. The LGBTQ+ Coalition is well-positioned to provide the court with the perspective of LGBTQ+ students and how the Initiative impacts their student organizations.

ii. The Universities can provide insight into the relationship between institutional autonomy, government accountability and academic freedom within the specific legislative context at issue on appeal.

iii. The ACCLE will bring the perspective of student legal clinics and the impact of reduced funding on the sustainability of these services and the detrimental effects on students that could arise from the decrease in these services.

[14] In my view, each of these proposed interveners is well-positioned to make an important contribution to the resolution of the issues on appeal. As reflected in the parties’ positions respecting the proposed interventions of the LGBTQ+ Coalition, Universities and ACCLE, no injustice to the parties will result from the motions being granted. Each proposed intervener has undertaken to not raise any new issues or adduce new evidence on appeal. Accordingly, I would grant each of them leave to intervene as a friend of the court on the terms set out at the end of these reasons.

[15] This leaves the motion to intervene brought by the Coalition. Ontario opposes this motion while the respondents do not oppose it.

[16] The Coalition contends that it has a distinct perspective to bring to the appeal. The Coalition wishes to ask this court to use s. 2(b) of the Charter of Rights and Freedoms, and the values underlying this provision, as an interpretative aid in resolving the issues of statutory interpretation that are engaged by this appeal. The Coalition would argue that, when viewed through the lens of the free expression values and purposes that underlie Ontario’s legislative scheme for the governance of universities and colleges, the Divisional Court’s interpretation of the applicable legislation is correct and should be upheld. In advancing this argument, the Coalition recognizes that it may not add new legal issues beyond those in relation to which this court granted leave to appeal. Accordingly, the Coalition acknowledges that it may not raise an issue as to whether the rights and freedoms protected by s. 2(b) of the Charter are directly infringed by the Initiative.

[17] Ontario argues that the Coalition’s motion to intervene should be dismissed because the Divisional Court did not characterize the governing legislation as ambiguous, nor did it use s. 2(b) of the Charter as an interpretative aid. Ontario emphasizes that Charter values may only be used as an interpretive aid where there is a genuine ambiguity in the legislation: Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at paras. 20-25. As the Divisional Court did not find ambiguity in the legislation, and neither party has argued that an ambiguity exists, the Coalition’s s. 2(b) argument reflects a new issue on appeal. Permitting the Coalition to raise this argument at this late stage will, according to Ontario, work an unfairness to the parties.

[18] I do not agree. The appeal squarely raises the issue of the proper interpretation of legislation affecting the governance of universities and colleges. The appropriateness of using s. 2(b) as an interpretive tool is not a new legal issue, but rather is a new argument being introduced to support the Divisional Court’s interpretation of the applicable legislative provisions.

[19] This court may conclude that the relevant provisions are ambiguous even though the Divisional Court did not, and even though the parties are not arguing that the legislation is ambiguous. Were the court to reach this conclusion, it is not beyond the realm of possibility that s. 2(b) of the Charter could be considered as an interpretative tool to resolve the ambiguity. While the Coalition’s argument that the legislation is ambiguous may not ultimately be found persuasive, in my view, the Coalition’s submissions may be of assistance to the court in conducting the interpretative exercise demanded by this appeal. Moreover, since the parties will have an opportunity to respond to the Coalition’s arguments, no prejudice will result from its participation as a friend of the court.

[20] Accordingly, each of the proposed interveners is granted intervener status as a friend of the court on the following terms:

i. Each of the interveners may file a factum of no more than 15 pages in length.

ii. The interveners shall not raise new issues or adduce new evidence.

iii. There shall be no costs awarded for or against any of the interveners on these motions or the appeal.

iv. The intervener factums are to be served and filed no later than January 22, 2021.

v. The appellant and respondents may file a factum responding to the interveners’ arguments of no more than 25 pages in length. This is an increase from the order previously made, that the parties could file responding factums of 15 pages length.

vi. The parties’ responding factums must be served and filed no later than February 19, 2021.

vii. Oral argument for the interveners, if any, will be determined after their factums have been filed and considered.

“Fairburn A.C.J.O.”