It’s now up to Court of Appeal to decide if Ford government’s Toronto council cut will stand

Thestar.com
June 12, 2019
Jennifer Pagliaro

A rare five-judge Court of Appeal panel will now decide whether the province improperly interfered in Toronto’s 2018 election when it slashed the size of council without consultation more than three months into an ongoing campaign.

The outcome of the case could have implications, not only for future Toronto elections but, if it’s ultimately heard by the Supreme Court of Canada, on the rights of all cities and their residents when it comes to democratic elections.

On Tuesday, after a second day of the hearing in a second-floor Osgoode courtroom, the Court of Appeal panel chaired by Justice James MacPherson reserved its decision until a later, unspecified date. That could come in weeks or months.

The province is asking Bill 5 be upheld and for the city pay $500,000 in provincial legal costs.

Before they retired for the day, the city’s lawyer Glenn Chu made this final comment to the panel:

“If you had been asked to go to a country with a burgeoning democracy and teach what democracy is and they asked you: ‘Was what happened back in (August 2018) to the city of Toronto’s municipal election, is that what democracy is about?’ What would this panel say?” Chu asked.

“We suggest to you that the answer to that question be: It wasn’t right.”

Premier Doug Ford’s Ontario PC government first introduced Bill 5, the Better Local Government Act, in July 2018 to cut the size of council to 25 wards from the planned 47 wards matching provincial and federal ridings.

That move led to the city and groups of candidates and residents challenging that legislation in Superior Court, where Justice Edward Belobaba agreed the bill infringed candidates’ and voters’ charter right to freedom of expression.

The province in turn appealed that ruling and successfully had a three-judge panel pause -- or “stay” -- the lower-court ruling, effectively allowing the 25-ward election desired by the province to proceed.

The hearings this week were to argue the issues in the appeal itself and for the now-five-judge panel to make a determination on whether the lower court and Justice Belobaba erred in law when he made his decision to strike down Bill 5.

On Tuesday, several intervening groups, including the Federation of Canadian Municipalities, made arguments about the constitutional issues at play -- the status of cities and unwritten democratic principles -- as well as regarding the charter arguments made by the city.

The federation said in its written arguments before the court: “In this case of first impression, it is the timing of Bill 5, the unprecedented upheaval of an active electoral process, and the resulting constitutional violation that call out for judicial scrutiny and justification by Ontario. To quote the Supreme Court of Canada on the rule of law: ‘courts will not permit the Constitution to be used to cause chaos and disorder.’ ”

There is at least a strong chance the Court of Appeal’s decision will be further appealed to the Supreme Court of Canada.

In August 2018, Toronto council, in a 25 to 17 vote, instructed their legal team to “exhaust all legal avenues, including the appeal of any further judicial ruling(s).” It followed petitions signed by more than 28,000 residents asking council to fight Bill 5 in court.

“This is an affront to democracy, so today we take a stand,” Councillor Josh Matlow, who moved the motion at council, said then. “We fight back at the courts. We take this to the Supreme Court if necessary.”

It is up to the Supreme Court whether it would hear an appeal of the Ontario Court of Appeal decision, whatever it is. According to its mandate, the Supreme Court’s role is to deal with cases of public importance, which may have national significance in terms of the questions of law.

There are aspects of the case several parties noted during the hearing apply outside Toronto, including the status of municipalities under the constitution and the rights of their residents as they relate to democratic elections free from interference.