Court to rule Wednesday morning on whether to allow 25-ward Toronto election

Thestar.com
September 19, 2018
Jennifer Pagliaro

A court decision on whether Toronto election preparations will continue with 47 wards or return to a smaller 25-ward scenario is set to be released Wednesday at 10 a.m.

But the effects of that decision may be fleeting --less than 48 hours --if the province plows ahead with plans to introduce new legislation that would enforce a cut to the size of city council.

At Tuesday's Court of Appeal hearing, the province is requesting a stay of a lower court ruling that its legislation upending Toronto's election and cutting the number of wards was unconstitutional.

Even then, the legal challenges won’t be over.

A panel of three Court of Appeal judges --Associate Chief Justice Alexandra Hoy, Justice Robert Sharpe and Justice Gary Trotter --heard arguments Tuesday at Osgoode Hall on whether they should put an earlier court ruling on hold and order the city to continue preparing an election with 25 wards.

Because of tight timelines leading up to the fast-approaching election on Oct. 22 and the expected legal challenges to the province’s new legislation, the Court of Appeal decision on the stay could permanently establish the ward structure for the election, making it a milestone in the ongoing council cut saga.

The hearing Tuesday, which again pitted the province and city’s legal teams against one another, began with an unexpected statement from Premier Doug Ford’s government. It came from provincial lawyer Robin Basu, who said he was given instructions to say newly-introduced legislation, Bill 31, would not be brought to a vote at Queen’s Park if the province got its way in court.

That was a troubling position for the province to take, city lawyer Diana Dimmer argued.

“It’s almost in the nature of a threat --if everybody doesn’t back off the province will continue with this chaos,” she said, adding --“the chaos that they’re responsible for.”

The hearing centred on whether the judges should grant a “stay” of a Sept. 10 decision from Superior Court Justice Edward Belobaba that deemed the province’s previous legislation, Bill 5, was unconstitutional.

Ford launched a double-pronged response after Bill 5 was struck down --an appeal in court and the introduction of the new Bill 31.

Before the appeal is heard, the province argued a stay should be granted, which would essentially allow Bill 5 to continue to be in force --meaning the notwithstanding clause would not need to be used --and the law of the land to still be a 25-ward election for Toronto.

Bill 31 is essentially a copy of Bill 5 with one important difference: Ford’s government took the unprecedented step of invoking the notwithstanding clause which would override many charter rights and insulate the new bill from certain legal challenges going forward.

Donald Eady, whose firm Paliare Roland is representing several candidates and community groups that intervened in the earlier court case, argued the onus is on the province to prove the stay is necessary and said on Tuesday they failed to do that.

Jennifer Pagliaro explains covering court and planning for the unexpected.
“They didn’t provide any evidence . . . as to the sorts of things that a court would normally require to grant the stay,” Eady said outside the courthouse. “Really, I think what they did was they held the court hostage --either you grant the stay or we’re going to bring in Bill 31; if you grant the stay then we won’t. We’ll see if the court buys that.”

The province argued Justice Belobaba erred in several ways in his decision and said not allowing the stay would cause “irreparable harm.”

Basu argued there is “only one path” forward for the clerk to have any certainty about which election to hold and that is allowing the stay and putting Bill 31 on the back burner.

In blistering remarks, Dimmer said the province has failed to make the case that it is acting in the public interest.

“The province hasn’t come forward with satisfactory evidence to justify what they’ve done,” she said. “The residents of Toronto deserve better.”

Howard Goldblatt, whose firm is representing a candidate, volunteer and community group, called the province’s last-minute submission on Tuesday an “affront.”

“The public interest is in protecting the integrity of the process,” Goldblatt said. That, he said, should prevail over “one government’s right to seek to enforce legislation which has been deemed to be unconstitutional.”

At the International Plowing Match west of Chatham, Ford was taking a wait-and-see approach to the decision on the stay request.

“Let’s see what the courts decide,” he told reporters. “I don’t want to jump ahead of things. We thought we were going to win last time, and we didn’t.”

The timelines in the ongoing saga are incredibly tight with the fast-approaching election.

The province could ultimately lose the appeal it has launched of Belobaba’s decision, but Basu and his team are arguing that hearing should not be held until after the Oct. 22 election to allow time for lawyers to prepare.

Bill 31, if it goes forward for a vote at Queen’s Park, is expected to pass Thursday following rare weekend and midnight sessions of the legislature.

Last week, council instructed the city’s legal team to challenge Bill 31 in court if it becomes law.

Winning the stay and not proceeding with the bill would allow Ford to avoid ongoing condemnation from protesters, legal experts and politicians of all stripes for his use of the notwithstanding clause.

The city’s ward boundaries have been a contentious issue for several years.

Council, which is currently made up of 44 councillors and a mayor, hired independent consultants to study ward boundaries in 2014. The problem then, as it is now, is that rapid growth in some parts of the city have created imbalanced ward populations and skewed the weight of votes. Council approved the recommended 47-ward structure in 2016. That decision survived earlier challenges at a provincial tribunal and later in divisional court.

Ford introduced Bill 5 on July 27 after his party came to power in a June election without warning or consultation. By then, the election campaign had already been underway for three months.

The city and others then successfully challenged that legislation in Superior Court.

If the city and the other legal teams opposing the province lose the stay request Wednesday, they could appeal that decision to the Supreme Court of Canada. It’s not clear if the court would consider the case or how quickly it could be heard.