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The Ontario government is fighting to restore a provincial directive making many fees optional for college and university students that a court struck down last month.

The government has applied for leave to appeal the ruling that overturned the directive, dubbed the Student Choice Initiative.

A panel of Divisional Court judges ruled last month that the government had overstepped its authority by interfering with the autonomy of universities and student governments. The decision was greeted as an unexpected victory for the student movement, and the Canadian Federation of Students and the York Federation of Students, which brought the court action.

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The fees, which typically run into the hundreds of dollars for full-time students, support a range of activities from student unions to newspapers, radio stations, food banks and a wide range of clubs. In the first couple of months since it was enacted, many campus groups say they lost a large portion of their funding. Although results varied across the province, some lost at least 25 per cent of their previous revenue.

In a brief filed with the Court of Appeal, the government argues that the ruling restricts its authority to attach conditions to the funding given to public colleges and universities.

“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,” the government brief says.

The government provides more than $5-billion in funding annually to Ontario’s 21 publicly assisted universities and 24 colleges. It argues that attempts to address the cost of education are part of efforts to make postsecondary education accessible. The Divisional Court ruling was skeptical on that point, since ancillary fees are a relatively small portion of overall enrolment costs.

“The decision on what financial barriers to education are sufficient to warrant a policy response is precisely the kind of value-driven determination for which elected decision-makers ought to be accountable to the public, and should attract deference from a reviewing Court,” the government argues.

The SCI was enacted by a directive issued by cabinet, rather than through legislation, in March, 2019, and was in effect for September enrolment. Some universities have said they are reviewing whether fees will be optional for the winter term.

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