Megacity fight against province left legal lessons for city of Toronto

Thestar.com
August 1, 2018
Jennifer Pagliaro

Toronto has been here before.

A judge once described the surprise restructuring of a city, not unlike what is now being considered at the urging of Premier Doug Ford, as “megachutzpah.”

Torontonians who opposed amalgamation believed their charter rights were being violated for a number of reasons. A judge disagreed.

In a different time, under a different provincial government, the plan suddenly imposed on what is now the city of Toronto was amalgamating six municipalities into one.

When former Progressive Conservative premier Mike Harris moved to form the megacity under Bill 103 -- the City of Toronto Act -- in 1997, there was little consultation. It had not been raised by the PC party in the preceding 1995 election. There was a call for a referendum (which later found three out of four Metro Toronto voters rejected the plans).

Sound familiar?

Now, more than two decades later, the newly elected PC government under Ford plans to thrust a 25-ward structure on Toronto, cutting the number of wards nearly in half, in the middle of an election. It has left the city and its citizens again considering their legal options.

In 1997, a court challenge was launched against Bill 103 by some of the affected governments, including the borough of East York, and a large group of organized citizens, led by former mayor John Sewell. They argued that the charter rights of many citizens would be violated by the creation of a megacity on several grounds, including that the ratio of politicians to electors would be decreased and result in worse representation. They also argued there had not been proper consultation.

But in July 1997, Ontario Court Judge Stephen Borins dismissed the case.

Yes, he found in his decision, the province had not specifically studied the need to restructure before introducing the bill, nor was anyone really consulted about it before it was introduced for first reading in the legislature -- later government committee hearings, he acknowledged, were “too little, too late.” And, he accepted, “Bill 103 came as a surprise to most inhabitants” since the idea of a megacity and how it would be governed was “not included specifically in the government's 1995 election platform.”

“Such, however, is the prerogative of government,” Borins ruled.

“It may be that the government displayed megachutzpah in proceeding as it did, and in believing that the inhabitants of Metro Toronto would submit to the imposition of the megacity without being given an opportunity to have a real say in how they were to live and be governed,” he wrote. “However, the question for the court is not the government’s political posture, but rather its legal and constitutional authority to proceed as it did.”

He continued: “In any event, the charter does not guarantee an individual the right to live his or her life free from government chutzpah or imperiousness.”

Borins was clear that a case that the megacity infringed charter rights, as presented, did not exist, including that the charter does not guarantee the ratio of politicians to electors, nor did citizens and the city have a “constitutionally protected right to be consulted with respect to proposed provincial legislation.”

And that was that.

Though the applicants advanced their cases to the Court of Appeal and separately to the Supreme Court of Canada in late 1997, the Appeal Court upheld Borins’ decision, while the Supreme Court refused to hear the application. Two of the judges on the Court of Appeal panel who made that decision now sit on the Supreme Court bench.

Since then, the City of Toronto Act has been amended to include language that the province “endorses the principle that it is in the best interests” of the city to “work together in a relationship based on mutual respect, consultation and co-operation.”

That language stems from an agreement made between the city and the province, which the city’s website notes has been renewed in recent years, including in 2011 by the Liberal minister of municipal affairs at the time and then mayor Rob Ford.

The front page of the Toronto Star on March 4, 1997, after a referendum on the creation of a megacity.

The agreement outlines that the province will consult the city on “any proposed change in legislation or regulation that, in Ontario’s opinion, will have a significant financial or policy impact on the city.”

Peter Hogg, a leading constitutional law scholar currently in residence at Blake, Cassels & Graydon LLP, said the Constitution Act gives the province an “exclusive” power over cities that can’t be overruled, even by the federal government.

“The reality is that the provincial legislature has the power to do what Premier Ford proposes,” Hogg said. “The absence of advance notice to or consultation of the people of the province of such a radical move does not make the legislation invalid if it is duly enacted by the legislature.”

Municipal lawyer John Mascarin, who co-authored a legal guide to the City of Toronto Act published in 2008, explained the city wanted the obligation to consult enshrined in the amended act, as did other municipalities as it relates to the Municipal Act, which now includes the same principle about consultation.

“Constitutionally there’s no requirement to consult, however the province agreed with Toronto that they would consult with them and co-operate and they haven’t done any of that,” Mascarin said, adding the new language on consultation has not been tested in court, to his knowledge

He added there may be an administrative argument to ask for an injunction if the city can make the case they may not be able to logistically carry out the election in the time allowed.

Sewell, a lawyer, told the Star on Monday he doesn’t think there are any legal options available to the city now.

“The legal action’s not going to go anywhere,” Sewell said. He also said a referendum is pointless unless there is an “extraordinary public eduction” campaign like the one Citizens for Local Democracy launched in 1997, which included meetings of thousands of people in places like St. James Cathedral and Massey Hall and handing out broadsheets on subway platforms to explain what was at stake.

“We had a meeting every Monday night. We didn’t fool around.”

The best remedy now, he said, would be for ordinary citizens to pressure the province to scrap the proposed changes. He noted hundreds showed up to speak against the megacity at committee hearings on Bill 103.