Province submits fresh evidence in ongoing court fight over Toronto council cut

Thestar.com
November 5, 2018
Jennifer Pagliaro

With the Toronto election over and new councillors soon to take their place in the chamber at city hall, preparations for the next stage of the ongoing fight over the number of wards in the city are just beginning.

The province filed fresh evidence last week in an appeal of a judge’s decision that Premier Doug Ford’s council-cutting legislation, Bill 5, was unconstitutional. That appeal will be heard starting June 10.

Even though Toronto went ahead with a 25-ward election in October, the court battle over the number of wards isn’t over.

Though Superior Court Justice Edward Belobaba ruled Sept. 10 that the legislation tabled by the rookie premier and former city councillor without any prior notice should be stuck down, the province was successful in convincing a higher court to stay that decision -- essentially putting the court ruling on hold until the appeal could be heard.

That set the stage for the Oct. 22 election to go ahead with a smaller, 25-ward race instead of the planned 47 wards approved by council years earlier. What’s next in the court fight is the June hearing at the Court of Appeal.

In a new motion filed with the court, Crown lawyers representing the province are asking that they be allowed to submit new evidence -- which is typically not permitted at the appeal stage. They argue that Belobaba did not give the province enough time to bring experts, conduct cross-examinations or prepare materials in defence of Bill 5.

“The result was a failure of procedural fairness to Ontario,” the motion says, also noting several experts declined their requests to participate because of the time frame for the earlier August hearing.

The new evidence the province wants to submit includes that of two experts.

The first expert is political scientist and University of Chicago professor Anthony Fowler, who specializes in elections and representation. He provided analysis of the most recent and previous elections.

Meet the people challenging Premier Doug Ford’s Toronto ward cuts in court

By looking at the makeup of the newly-elected council and that of previous elections, Fowler concluded that “the representation of historically under-represented groups -- as a proportion of the overall council -- did not decrease.”

He noted that 16 per cent of newly elected council members are visible minorities, compared to 9 to 11 per cent in the previous four elections. As well, the number of women elected was maintained at 32 per cent of council. There is still only one openly LGBTQ member on council.

Fowler also argued that under a 47-ward system there was unlikely to be a greater proportion of minority representatives elected, largely because the distribution of minority residents across wards is similar in each of the different ward systems.

Though Fowler determined incumbency advantage -- the likelihood a sitting councillor will be re-elected -- was significantly reduced in the most recent election, he noted there were a number of head-to-head incumbent battles and likely looser ties between incumbents and their constituents given the expanded wards.

The expert evidence comes as a response to arguments made earlier from the opposite side of the courtroom -- candidates, community groups and campaign volunteers represented by teams of lawyers who opposed Bill 5, saying it infringed their charter rights to freedom of expression, freedom of association and equality.

A second expert who provided evidence for the province was political science professor emeritus, Andrew Sancton, who taught at the University of Western Ontario.

Sancton, who also provided evidence during an earlier dispute at a provincial tribunal over ward boundaries brought by two city councillors, argued in his affidavit that among other issues he sees with more wards is that having 47 councillors “is a recipe for exceptionally long meetings . . . general disorganization, and a focus on parochialism rather than the best interest of the city as a whole.”

In the coming months, those who fought Bill 5 will respond with materials and the province’s written arguments will be filed in court.

The June appeal will be heard by a rare five-member panel of the Court of Appeal after the request for a stay was heard by a three-member panel of judges.

If the court overrules Belobaba and Bill 5 remains intact, the other parties could appeal to the Supreme Court of Canada. First that court would have to agree to hear the case, before a hearing would take place in Ottawa -- often a years-long process.

If Belobaba’s earlier ruling that Bill 5 is unconstitutional is upheld, it’s not clear what remedy the court would allow. The province has indicated it would want time to craft new legislation or an alternative solution in place of Bill 5.