Court battle over Ford government's mid-election council cuts sparks concern about 'constitutional crisis'

Legal experts say case raises questions about whether municipalities need seat at the table

Cbc.ca
June 12, 2019
Lauren Pelley

With another court battle on the books over Ontario Premier Doug Ford's mid-election Toronto city council cuts, the case is sparking concerns about a "constitutional crisis" -- and raising questions about whether municipalities should get a seat at the table alongside the provinces and federal government.

Two days of proceedings at Ontario's Court of Appeal wrapped up Tuesday afternoon after a panel of judges heard arguments from lawyers for both the province and city over the ramifications of Bill 5, the Better Local Government Act.

Partway through the 2018 municipal election campaign, the controversial legislation cut Toronto's council from a planned 47-ward system to 25 seats, prompting protests, court challenges and a scathing lower court ruling against the province that led to this week's appeal.

"We were given a megaphone," said city lawyer Glenn Chu during the Court of Appeal proceedings. "And then they smashed it."

Candidates' and voters' freedom of expression rights under the Canadian Charter of Rights and Freedoms were a key area of discussion, and in his closing remarks, Chu stressed there was only one election with a "continuum" of expressive activity happening from beginning to end.

That means the disruption of Bill 5 was surely unconstitutional, he argued.

The province's legal team, in contrast, said both candidates and voters had free speech through the entire election process, both before and after Bill 5. Once it came into force in August, finally clarifying a flip-flopping ward structure, there were still nine weeks until the October election.

"What is wrong with a nine-week election?" said lawyer Robin Basu in his closing statement.

Basu said the province is also seeking $500,000, which the attorney general's office said is meant to "recover costs" after the Court of Appeal's initial September stay decision prior to this week's appeal. Basu said it matches what the Ford government would have paid if using an outside legal team instead of in-house staff.

Province can do 'whatever it wants'

Throughout the court battles, the province has maintained that cutting the size of a city council, regardless of the timing, falls squarely under its purview, with municipalities merely being creatures of the legislature, according to the Canadian Constitution.

As it stands, the province does have the right to "whatever it wants to do," said Mitchell Kosny, interim director of the school of urban and regional planning at Ryerson University.

But that's only from a constitutional and legal perspective. "It almost seems like we have a bully up there from a political perspective," Kosny said. "You don't wield power like a dictator; we are in a partnership here."

Leo Longo, a municipal law expert and partner at Aird and Berlis LLP, agreed the province's treatment of Toronto was not "politically wise."

And he said there is growing recognition that it may be problematic for large municipal governments to have no seat at the table alongside provinces and the federal government.

"Until -- and if ever -- that vacuum is addressed in the Constitution, you will always have this ongoing debate between the province and the municipalities it establishes," Longo said. "Large, urban governments should have more recognition than they currently enjoy -- which is none."

April Engelberg, a lawyer who ran as a council candidate before and after the cuts, ultimately coming in second for votes in her downtown ward, said it's clear the province has taken steps to make Toronto's council "powerless and redundant."

"This is a constitutional crisis that should, and likely will, go to the Supreme Court of Canada," she said.

A decision from the Ontario Court of Appeal could take months, and should the panel of judges rule in the province's favour -- the expected outcome predicted by many legal experts -- the city has backed taking the fight all the way through the court system.

Engelberg believes that's a necessary step, with the Ford government's lawyers essentially arguing the province's powers over municipalities are "limitless."

"It's not just the province of Ontario; it could apply nationally," she said. "If it goes to the Supreme Court … this ruling could be cited."