No ‘obvious path’ to fighting the province’s cut to council, City of Toronto legal team says

Thestar.com
August 15, 2018
David Rider

The city’s legal team says there is no “obvious path” to successfully challenge the province’s move to cut the size of Toronto council, according to a new, secret report going to council next week.

The city solicitor also presented a possible complication by saying that while it’s now believed that a 25-ward election can be held in the time allotted, with the election day still set for Oct. 22, it would be “very challenging” to go back to holding a 47-ward election if the city is successful in court.

“Bill 5 raises difficult issues, both legal and practical,” says the report, viewed in full by the Star, referring to the provincial legislation. “While there are grounds that could be argued to challenge the legality of the province’s actions, arguments would be made in the face of an ongoing election process and involve novel arguments that primarily focus on the manner in which the province has acted rather than the substance of the legislation.

“That being said, there are legitimate concerns about the way in which significant changes to council have been imposed upon the city of Toronto.”

What the city should do next will be up for debate at a special meeting called for Monday, when council will decide whether to instruct the city’s legal team to fight the province and Premier Doug Ford in court.

The city solicitor, Wendy Walberg, is not recommending any specific course of action, saying if they are instructed to mount a legal challenge, her office “will represent the city’s interests with vigour and tenacity presenting reasoned, persuasive arguments.”

On Thursday, the city clerk outlined a new election that she is now obligated to administer after Bill 5, known as the Better Local Government Act, was passed in the legislature this week by the Progressive Conservative government. It means there will be only 25 council wards based on federal and provincial ridings, reduced from 47. Nominations for councillors and school board trustees in that revised election will open Monday. Nominations in the mayor’s race will remain closed.

The Superior Court has set a day to hear arguments challenging the legislation on Aug. 31.

According to the city legal report, the city could argue that “the enactment of Bill 5 at this time is contrary to basic expectations around democratic processes,” and that it violates what are known as unwritten constitutional principles such as democracy and rule of law that were outlined by the Supreme Court of Canada in a 1998 case.

“However,” the report says, “it is not clear whether these expectations form a right in law.”

That case is one legal experts have told the Star could and should be pursued, though it would be difficult to argue.

“There is no clear bright line test for whether and how unwritten constitutional principles may be used to shape the manner in which legislative authority is interpreted,” the report says.

Walberg said that because the City of Toronto Act, before it was amended, ensured that the city could not change ward boundaries or council composition in an election year --which were surely “common-sense limits” to avoid interference with the electoral process --it could be argued that the act, along with a signed city-provincial agreement focused on co-operation and consultation, enshrined “constitutional limits of legislative action related to an ongoing election,” meaning the province could be found to be improperly interfering in the election.

That kind of argument is not supported by any case law the city could find, the report notes.

“Essentially, Toronto would be asking a court to accept and apply these principles in a new and unique context.”

The report says the clerk has told the city’s legal team it is now “practically possible” to prepare the 25-seat election because of the help currently being received from Elections Ontario and the Municipal Property Assessment Corp. Last month, the clerk said it may not be possible.

“The clerk has indicated that even expedited court proceedings make it very challenging in the short time available to revert to a 47-ward model” before the Oct. 22 election,” the report says. “I am recommending that council consider the impact of a decision to initiate a court application on the clerk’s capacity to administer an election in a manner that upholds the principles of governing elections under the Municipal Elections Act.”

The city’s lawyers considered several other potential legal challenges that they dismissed as having little chance of success in court, including that the province was obligated to first consult the city or the public; that the province acted in bad faith by legal standards; that the legislation violates charter rights; or that there were flaws in the actual wording of the legislation and related regulations (the city legal team noted none).

In a separate report, the solicitor, Walberg, noted: “There have been very few occasions when my office has been asked to report on a matter that will have such a profound impact on the City and its governance.”

None of the councillors contacted by the Star would discuss the contents of the report, citing its confidentiality.

But Councillor Paul Ainslie would say that nothing in the report has changed his opinion that the city of Toronto should fight the Ford government’s unilateral cutting of council seats.

“I still think the city should challenge Bill 5,” Ainslie said in an interview. “We are dealing with something that’s never happened before, and I look forward to getting a more fulsome report from the city solicitor and understanding how she made some of her decisions.”

His colleague Jim Karygiannis, however, said the report hasn’t changed his mind that fighting Queen’s Park would be a waste of time and money.

“Let’s get on with the election. The province has the constitutional right of 1867 to do this,” he said, referring to the seat reduction. “The city is a creature of the province. Let’s stop whining and get a move on with this.”

Don Peat, a spokesman for Mayor John Tory, said the report also hasn’t shifted the mayor’s earlier position that the provincial process was “absolutely wrong” and that council should look at possible at legal action.

Shortly after the legal advice became public Thursday, several hundred people, including mayoral candidate Jennifer Keesmaat, packed a sweltering Queen St. E. church to rally against the council cut.

“Bill 5 is an attack on our city, on our democracy and on our values,” TDSB trustee Jennifer Arp told the crowd, urging them to stand united against it.

“The only thing they can’t cut down is progressives who are united and stand together.”

Scarborough New Democrat MPP Doly Begum said Toronto rejected Ford in the 2014 mayor’s race and in the June Ontario election.

“Bill 5 is actually his revenge --a shameless attack on our local democracy,” she said.