



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 Bnai 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, Queens 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
    Courts 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 Crowns 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.

Bnai Brith of Canada League for Human Rights
    (Bnai 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, Queens 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 Bnai 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]

Bnai 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 Bnai 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), 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), 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 Coalitions
    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 Ontarios legislative scheme for the governance of
    universities and colleges, the Divisional Courts 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 Coalitions 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 Coalitions 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 Courts 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 Coalitions argument that the legislation
    is ambiguous may not ultimately be found persuasive, in my view, the
    Coalitions 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 Coalitions 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.


