Canada’s top court will say Friday if Doug Ford’s cutting of Toronto city council was legal. Here’s what you need to know

thestar.com
Oct. 1, 2021
Jennifer Pagliaro

Was Doug Ford’s decision to slash the number of Toronto councillors from 47 to 25 in the midst of the 2018 municipal election unconstitutional?

That’s the question the Supreme Court of Canada will answer Friday morning when it releases its long-awaited decision -- a legal judgment that could shape next year’s municipal election.

The top court’s finding will end one legal saga, but will likely leave unresolved longer-term questions about the future relationship between cities and provinces.

The Supreme Court, which releases written judgments only, is expected to release the council cut decision at 9:45 a.m.

Here’s what you need to know ahead of the decision:

How did we get to this point?

In July 2018, the city was moving ahead with the municipal election as planned.

After a years-long independent review and consultation, council had earlier voted to increase the number of wards to 47 from 44 in order to even out the population among wards and representatives.

The city was concerned that as the population grew unevenly across the city, the votes cast by those residents would not matter as much as those in another ward with fewer residents and that the decisions made by those representatives would not matter equally. The review considered traditional boundaries based on neighbourhoods, geographic features and tried to keep those places within a single ward where possible.

Then, after the municipal election campaign had begun and nominations for candidates had closed, Ford announced he would overrule that process and impose a 25-ward system that lined up with much larger provincial and federal ridings, with some 100,000 Toronto residents per ward.

It threw the election into chaos. Suddenly, candidates were nominated in wards that no longer existed. Incumbent councillors were forced to run against one another, and donations raised were rendered useless and doors knocked on a waste of time.

A group of candidates and voters got together to challenge the new legislation, Bill 5, in court. That’s how the legal saga began.

Didn’t that group win? Why is this still going?

Yes. That group of citizens and their team of lawyers were successful in their case at the Superior Court, the lowest rung in the legal system to deal with an issue like this.

Justice Edward Belobaba ruled Bill 5 was unconstitutional and struck it down. But the case wasn’t closed.

The province, through the Attorney General, appealed the decision to the next level, the Ontario Court of Appeal. At the same time, Ford threatened to use rarely accessed powers to overrule the court decision.

The province’s lawyers also asked for a stay of Belobaba’s decision until the appeal could be heard. The court granted a hearing on the stay and eventually sided in the province’s favour, effectively securing an election with just 25 wards less than two months before election day.

By the time the province’s actual appeal was heard in 2019, the election was already over and 25 councillors were elected. The court, a panel of five judges in a split 3-2 decision, agreed with the province in September 2019 and overturned Belobaba’s decision.

If you’re following along, that’s 1-1 in this fight.

But council directed its legal staff to take the fight to the highest level, and in November 2019 the city applied to the Supreme Court, asking them to hear the case. The court, which only hears a handful of cases each year, agreed. After a one-day hearing this March we’ve been waiting for the decision. That’s coming Friday.

There are no more appeal possibilities after this ruling, so this is the final say on the matter.

Did the council cut actually save the city money and time?

Though Ford claimed council would be more functional and cost the city less with fewer members, a Star analysis found that wasn’t the case.

Council increased its staff and office budgets following the cut to be able to handle the workload of larger wards -- something that remains in place -- and the city incurred several one-time costs related to the last-minute boundary changes, estimated at $1.95 million.

While the term isn’t over, the Star estimated the cut might save 43 cents per Toronto resident annually for a council that has less time to spend on individual residents or issues.

The length of meetings also haven’t decreased dramatically and a year into the new term, residents’ groups were concerned about a lack of face time with their representatives.

What could happen on Friday?

The city of Toronto applied to have the case heard, so it’s the city’s case to win or lose. The case is against the Attorney General of Ontario, the legal arm of the province.

If the city loses, not much will change. It will mean the court doesn’t believe the council cut was unconstitutional or infringed charter rights and the city will carry on holding elections with 25 wards that align with provincial and federal ridings.

If the city wins, the specifics of the decision will matter.

The court could rule on the narrow issue of the timing of the council cut -- the fact that it happened midelection and not outside of the campaign period.

If that’s the case, the legislation passed by the province, known as Bill 5 or the Better Local Government Act, could be struck down and Toronto city council could be free to hold an election with a ward structure of its choosing.

But that would also leave the door open for the province to pass new legislation outside of a campaign that does the exact same thing -- imposes 25 wards on Toronto. Whether the Ford government would be willing to do that politically is another question.

Council could also decide not to change the ward structure back to the planned 47 wards, which would see any returning members having to cut their current office and staffing budgets.

There is an outside possibility that the court will speak more broadly to the powers of cities and provinces.

The city has always been seen as a “creature” of the province and subject to it as an overlord on a variety of issues. like what taxes the city can levy on its own -- something advocates want to see changed. However, the city faced numerous questions during arguments presented to the Supreme Court about its claim that it has some of the same rights afforded provinces and other constitutional questions, so this kind of discussion in the judgment is not guaranteed.