Court battle over the Toronto council cut is back on. It’s about ‘democracy,’ city says

Thestar.com
June 11, 2019
Jennifer Pagliaro

The court battle between Toronto and the province over the cut to the size of council during the 2018 election resumed Monday, with the city arguing the heart of the case comes down to democracy and democratic elections.

The decision, to be rendered by a rare five-judge panel of the Court of Appeal, could overrule the decision by Premier Doug Ford’s provincial government to bring mid-election changes without consultation in July 2018.

The panel heard from lawyers from both the city and province Monday in a scheduled two-day hearing over Bill 5, the Better Local Government Act, which forced the city to run a 25-ward election last October when a 47-ward one was already underway.

“This case is about democracy and democratic elections” and the country’s democratic values when it comes to those processes, said city lawyer Glenn Chu in his opening statement at Osgoode Hall’s courtroom one on Monday.

“Once you’ve given us the statutory right to a democratic election, it should be democratic.”

The city spent Monday arguing the province’s mid-election interference infringed the charter right to freedom of expression of candidates and voters when it, as Justice James MacPherson, who is chairing the panel, put it, “blew up” the election three months in. It also, the city says, infringed an unwritten constitutional principle of democracy -- a murkier concept that has yet to, on its own, strike down any legislation.

With the election now over, the city is asking Bill 5 be made invalid for the 2022 election, which would allow the city -- subject to any new provincial rules -- to hold a regular election with as many wards as it choose.

The province has asked that Bill 5 be upheld and that their legal costs be paid by the city.

“When Bill 5 came into force on August 14, the City’s election was past the halfway mark. Bill 5 caused unprecedented disruption to candidates, voters and the City,” the city’s written arguments say.

For candidates, the city said, it created both “confusion and uncertainty” about where to run, attracting financial support and “caused candidates to spend more time on doorsteps addressing the confusing state of affairs than relevant political issues.”

The city’s arguments were reflected in Superior Court Justice Edward Belobaba’s decision last September when he found the province’s Bill 5 was unconstitutional and struck it down.

Bill 5 was introduced in the legislature on July 30 and became law on Aug. 14.

The provincial changes came after the city spent several years considering a ward boundary change, including hiring an independent consultant who ultimately recommended, and council approved, the 47-ward model.

But after the province imposed a 25-ward system, some candidates, volunteers and residents, along with the city, took the Ford government to court. Belobaba’s ruling was a victory for them.

The province appealed that decision to the Court of Appeal, saying Belobaba had erred in law. At the same time they requested the court grant a “stay” of Belobaba’s decision -- essentially that it be put on hold until the appeal itself could be heard.

The province emerged victorious in that decision, with a three-judge panel granting the stay and effectively ensuring a 25-ward election given the timing of the vote.

Now, the five-judge panel -- including Justices MacPherson, Alison Harvison Young, Bradley Miller, Ian Nordheimer and Michael Tulloch -- is considering the province’s appeal on its merits, which will involve reviewing the decision their colleagues made as well as that of Belobaba.

The province began by arguing a “procedural fairness” issue in not having enough time to cross-examine witnesses whose evidence the city and others had earlier relied on.

Speaking to provincial lawyer Robin Basu, Justice MacPherson said: “It’s hard to hear you use the words “procedural fairness” when it was your client that enacted legislation really, really late in an election process.”

Basu argued Monday the legislature is “entitled” to act quickly and they did so as soon after the provincial election as possible to carry out their “policy” goals. He also argued the city is not entitled to consultation, despite what the City of Toronto Act says about it being in the best interest of both parties.

Of the candidates, the province’s written arguments said: “The record demonstrates that the candidates continued to engage in meaningful public discussion with respect to the election after Bill 5’s enactment.”

The province also suggested in court the claim of mid-election interference is now moot because the election has passed.

Basu said smaller ward sizes and more residents reveal the “dark side of parochialism in Toronto ward politics,” arguing councillors are not suited to be the point of contact for residents and serve “customer complaint” needs like potholes in front of their homes.

That evidence might surprise Premier Ford, who as a city councillor for Etobicoke North saw the Ford brand solidified by his brother, former mayor Rob Ford, who solicited residents to contact him with even trivial needs which he would try to answer by phone and sometimes in person.

The hearing continues Tuesday.