Divisional Court rules that Ontario government’s directions on student association fees is subject to judicial review

  • December 24, 2019
  • Christopher Wirth and Shamim Fattahi

The Supreme Court of the United Kingdom was asked recently to rule on the justiciability of the question  as to whether the Prime Minister’s advice to the Queen to prorogue Parliament was lawful. The court held in Miller that the issue was justiciable—as it concerned the extent of the prerogative power, rather than the mode of exercise of the prerogative power within its lawful limits.

Since Miller, it has been widely discussed as to what extent will Canadian courts adopt its reasoning. In Canadian Federation of Students v. Ontario, 2019 ONSC 6658, the Superior Court of Justice of Ontario (Divisional Court) became one of the first courts to consider Miller and its impact on Canadian law.


In December 2018, the Ontario government approved a direction for the Minister of Training, Colleges and Universities, requiring colleges and universities to allow students to opt-out of ancillary fees related to student associations. The Minister implemented this direction in March 2019 by way of “policy directives” for colleges and “guidelines” for universities in Ontario (collectively, the “impugned directives”). The applicants—two student associations—brought an application for judicial review to Divisional Court seeking to quash the impugned directives.

Divisional Court Decision

The central argument of the applicants was that the impugned directives were inconsistent with the statutory schemes regulating colleges and universities in Ontario. The respondent, Ontario (Minister of Training, Colleges and Universities), argued that absent bad faith or irrationality, the issues raised in the application were not justiciable because the impugned directives were either “core policy decisions” of Cabinet based on social, economic and political considerations, or were exercises of the prerogative power over public spending.

In response to Ontario’s argument that the impugned directives were not justiciable as they reflected a core policy decision, the court held that the question of the lawfulness of the impugned directives had a sufficient legal component to warrant judicial intervention.

In addressing Ontario’s submissions that the impugned directives were not justiciable as they involved an exercise of the prerogative power to spend, the court reviewed the analysis in Miller. In Miller, the United Kingdom Supreme Court identified two distinct issues that arise in the context of prerogative powers: “The first is whether a prerogative power exists, and if it does, its extent. The second is whether, granted that a prerogative power exists, and that is has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis.” The court in Miller held that the first of those questions is clearly justiciable, while the second “may raise issues of justiciability” and the answer “would depend on the nature and subject matter of the particular prerogative power being exercised” (Miller, para. 35).

The Divisional Court noted that the justiciability of decisions based on the exercise of prerogative powers has also been confirmed by courts in Canada. The court determined that there was no question in this case that the Crown’s prerogative spending power does exist. Rather, the question was whether the impugned directives fell within the limits of that power. The court held that this was a question of legality and was justiciable.

The court held that there exist recognized limits on the exercise of prerogative powers and that those limits were determinative in this case. Specifically, the Crown cannot exercise its prerogative powers in a manner contrary to legislation, or where legislation has effectively displaced the Crown’s prerogative power. The court noted that this principle is based on Parliamentary sovereignty, as explained in Miller: “that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply” (para. 95).

The Divisional Court also cited Canadian case law confirming that legislation takes precedence over the exercise of prerogative powers, which can be limited or displaced by statute once a statute “occupies the field” formerly occupied by the prerogative. The court concluded that the question in this case was, therefore, whether the impugned directives were inconsistent with legislation or whether legislation had occupied the field addressed by the directives.

In that regard, the court held that the impugned directives were inconsistent with the legislation governing colleges and universities. The impugned directives were contrary to the autonomy conferred on universities by the private legislative Acts which occupy the field in relation to university governance and student activities by conferring authority on university governing councils and senates to manage university affairs. The wording of the legislation under which colleges are established by regulation precludes interference with student associations in any way that would restrict those associations from carrying out their “normal activities”. The impugned directives required colleges to interfere in the normal activities of student associations by reducing or eliminating their funding. For these reasons, the court held that the impugned directives were not a lawful exercise of the Minister’s authority.

As a result, the court granted the application for judicial review and issued an order quashing the impugned policy directives.


These cases are important as they hold that every prerogative power has its limits and that it is the function of the court to determine what those limits are.

On the facts of Miller, the limits on the prerogative power at issue were determined by the common law and the fundamental principles of constitutional law, such as Parliamentary sovereignty and Parliamentary accountability. 

On the other hand, in Canadian Federation of Students, the limits at issue were decided in light of the applicable statutory framework. The Divisional Court acknowledged that the exercise of prerogative powers is also subject to the common law and the constitution. While those issues were not argued on the facts of that case, the court’s reasons should not be taken to suggest that the exercise of prerogative powers is restricted only by statute.

Accordingly, it still remains to be seen whether Canadian courts in the future will follow Miller and take a less restrictive approach than they traditionally have on the issue of justiciability in the context of the exercise of prerogative powers.

Christopher Wirth is a Partner and Shamim Fattahi is an Articling Student at Keel Cottrelle LLP.