Ford government’s cut to the size of Toronto city council can stand, appeal court rules

Thestar.com
Sept. 20, 2019
David Rider and Francine Kopun

Premier Doug Ford’s 2018 mid-election slashing of the size of Toronto city council was constitutional, the Ontario Court of Appeal has ruled, overturning a lower-court decision.

But Mayor John Tory and some city councillors hope to keep fighting the Ford government’s unprecedented intervention at the Supreme Court of Canada. Some legal experts say there is a good chance the top court will agree to hear the case.

In its 3-2 decision, the appeal court said Thursday there is no doubt Ford’s move to slash the size of city council months after the start of the election “disrupted campaigning and the candidates’ expectations.”

But no arguments advanced by the City of Toronto -- in support of a September ruling by a Superior Court judge that Ford’s move violated Torontonians’ charter rights -- are valid, Justice Bradley Miller wrote in the majority opinion.

“The applicants’ complaints have been clothed in the language of (sections 2b) of the Charter to invite judicial intervention in what is essentially a political matter,” wrote Miller in the opinion also signed by Justice Michael Tulloch and Justice Alison Harvison Young.

“There is no legitimate basis for the court to accept this invitation.”

Two judges issued a strong dissenting opinion, finding Bill 5, which cut the size of city council from a planned 47 wards to 25, unconstitutional and invalid.

Justice James MacPherson wrote that “by reducing the size of City Council from 47 to 25 wards and changing the boundaries of all city wards mid-election, the Act interfered in an unwarranted fashion with the freedom of expression of candidates in a municipal election.”

The Ford government “left a trail of devastation of basic democratic principles in its wake,” he wrote in the opinion also signed by Justice Ian Nordheimer.

“By extinguishing almost half of the city’s existing wards midway through an active election, Ontario blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates,” and the violation of their charter rights was “extensive, profound, and seemingly without precedent in Canadian history.”

In a statement Tory noted the shrunken Toronto council previously instructed city lawyers to seek leave to appeal an appeal court loss to the Supreme Court. He also noted the “strong dissenting opinion” by two appeal judges.

“I have opposed and continue to oppose the provincial government's actions on this matter -- they were unfair, unnecessary and unprecedented. As I have said many times, you don't just change the rules of an election in the middle of an election.

“Council gave clear direction in January that the city solicitor should pursue a leave to appeal application to the Supreme Court of Canada in the event the province was successful at the Court of Appeal.

“We gave this direction because the way the province went about changing the size of Toronto's Council was -- and remains -- wrong.”

At Queen’s Park, Attorney General Doug Downey’s office expressed satisfaction with the ruling.

“We are pleased that the Court of Appeal for Ontario allowed Ontario’s appeal in this matter,” said Downey’s press secretary Jenessa Crognali.

“The Court accepted Ontario’s position that the Better Local Government Act, 2018 (“Bill 5”) did not infringe the Charter s. 2(b) freedom of expression rights of either municipal voters or candidates.

“As this matter is still within the appeal period, it would be inappropriate to comment further.”

Toronto Coun. Joe Cressy (Ward 10 Spadina Fort--York), said the decision makes it clear it’s time for Toronto to seek charter city status, which would give it more control over its affairs.

“We cannot continue to operate under the thumb of a provincial government that, subject to elections and personalities, can interfere not only with our governance … but also our housing and transit policies,” said Cressy.

Coun. Josh Matlow (Ward 13 Toronto--St. Paul’s), moved the motion at council to take the Ford government to court and agrees it’s time for Toronto to seek charter status.

“Cities like Toronto need to be empowered to be able to make decisions about their own finances, land use planning and elections, as residents would expect them to do,” he said.

Coun. Jim Karygiannis pointed out that the city lost a similar legal challenge when the province ordered Toronto to amalgamate with its adjoining boroughs, which it did in 1998.
“It was a waste of money that could have been used elsewhere -- on kid’s programs, fixing potholes, fixing roads,” said Karygiannis (Ward 22 Scarborough-Agincourt).

“How many times do we need to be told: You are a creature of the province.”

Lawyers say the Supreme Court will generally only grant leave to cases that raise issues of national importance. The court’s own website indicates it receives about 600 leave applications every year, and agrees to hear about 80 cases.

There are good chances the court will want to hear the council cuts case, said Osgoode Hall law professor Bruce Ryder.

“It raises distinct issues that hadn’t previously been considered by our courts,” he told the Star. “It implicates fundamental issues about democracy, freedom of expression, and the rights to vote and run for office.

“The significance of the dissent is that it shows how contested the issues raised by Bill 5 are. The dissent makes it clear there’s a pressing need to clarify the applicable principles.”

But the novelty of the situation and the unlikelihood of a provincial government interfering midway through a municipal election in the future could also make it unlikely that the Supreme Court will want to hear the case, said Greg Flynn, political science professor at McMaster University.

“I think the Ford government’s decision was so motivated by irrelevant policy factors that it’s hard to see any government ever doing it again,” he said. “And on that basis I can’t see the Supreme Court saying this is such a critical issue that it warrants consideration.”

Ford’s government introduced Bill 5, cutting council to 25 wards from a planned 47 in the middle of an election, July 30, 2018. A bombshell that shocked city staff and council candidates when the Star first revealed Ford’s plan, the bill became law Aug. 14.

Ford’s move trashed the city’s 47-ward model, an increase from 44 selected by city council after several years of public consultations, debate and the hiring of an independent consultant who recommended the new boundaries to equalize increasingly disparate ward populations.

Some candidates, volunteers and residents, successfully challenged Bill 5 in court, with Superior Court Justice Edward Belobaba ruling it unconstitutional and invalid.

“Once the province has entered the field and provided an electoral process, it may not suddenly and in the middle of this electoral process impose new rules that undermine an otherwise fair election and substantially interfere with the candidates’ freedom of expression,” Belobaba wrote.

“The Supreme Court has stated time and again that ‘preserving the integrity of the election process is a pressing and substantial concern in a free and democratic society.’ Passing a law that changes the city’s electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy.”

With the 47-ward race seemingly back on, Ford made national headlines threatening to use the notwithstanding clause to override the ruling.

That became moot when the province appealed that decision to the Court of Appeal and won a temporary freeze on the Belobaba’s ruling, allowing the Oct. 22, 2018 election of a new 25-ward council to proceed.

Full arguments on the appeal were heard over two days last June by five judges.

City lawyer Glenn Chu told them: “This case is about democracy and democratic elections. Once you’ve given us the statutory right to a democratic election, it should be democratic.”

He argued Ford’s mid-election interference infringed the charter right to candidates’ and voters’ freedom of expression, and created “confusion and uncertainty” for them.

The city asked the court to city rule Bill 5 invalid for the 2022 civic election, allowing the city to -- subject to any new provincial rules -- hold a regular election with as many wards as it chooses.

The Ontario government urged the judges to rule Bill 5 valid and to order the City of Toronto to pay the province’s $500,000 legal bill. No costs were awarded.

The council cut did not tarnish the October election, provincial government lawyer Robin Basu argued, saying the smaller race “continued to engage in meaningful public discussion with respect to the election after Bill 5’s enactment.”

The province also suggested the claim of mid-election interference became moot after the election, and that smaller ward sizes would reveal the “dark side of parochialism in Toronto ward politics” with local councillors, not city staff, more involved in handling resident complaints.