The Court of Appeal for Ontario will announce Wednesday morning if it is staying a lower court judge’s decision that set aside a provincial law slashing the size of Toronto city council.
The decision, which will be released electronically at 10 a.m., comes after Associate Chief Justice Alexandra Hoy along with Justices Robert Sharpe and Gary Trotter heard submissions all day on Tuesday from lawyers representing the provincial government, the City of Toronto and several 2018 election candidates.
Superior Court Justice Edward Belobaba set aside Bill 5, the Better Local Government Act, in a ruling on Sept. 10. The law sought to cut the number of wards in Toronto to 25 from 47 in the Oct. 22 municipal election.
Belobaba found the government interfered with the right to freedom of expression for both candidates and voters when the province passed the law last month. Belobaba found the reduction of wards in the middle of the Toronto election substantially interfered with municipal voters’ freedom of expression and the “right to cast a vote that can result in effective representation.”
Hours after the ruling, Premier Doug Ford announced his government would appeal the decision in court.
Robin Basu, a lawyer for the Province of Ontario, told the court Tuesday morning that the Doug Ford government wouldn’t vote on Bill 31 (the Efficient Local Government Act), which invokes the notwithstanding clause for the first time in Ontario’s history, if the court would quash Belobaba’s decision.
READ MORE: Majority of Torontonians against Doug Ford’s use of notwithstanding clause, poll finds
Basu argued the 25-ward model proposed under both bill achieves voter parity in the 2018 election. However, the City of Toronto’s ward boundary review found creating wards with voter parity won’t be realized until the 2026 election. He argued a stay would allow City of Toronto staff to plan one election scenario versus two.
“There is only one path available to assure the (Toronto city) clerk that she is in a position to proceed with an election with integrity and fairness on Oct. 22,” Basu said.
“It is simply not feasible to prepare for two elections at the same time.”
Howard Goldblatt, who is representing Toronto election candidate Chris Moise, argued before the three-judge panel that the Ontario government’s move to pass Bill 5 midway through the Toronto election nomination period affected candidates’ abilities to communicate with voters in an effective way, therefore affecting freedom of expression under the Canadian Charter of Rights and Freedoms.
Lawyers for those opposing the stay argued the province has not presented any evidence to support its claims that allowing the judgment to stand would cause irreparable harm.
Rocco Achampong, who first challenged Bill 5 in August and is registered to run in the 47-ward model, told reporters after Tuesday’s proceedings that he was hopeful.
“They had no questions of us with respect to irreparable harm and the balance of convenience, which to me signals to us that we made our case,” he said.
He said if Bill 31 is passed, he and other will explore filing an application after Royal Assent is received.
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If Belobaba’s decision is stayed, Bill 5 will come into force and Toronto will have 25 wards. However, that would affect several incumbents and candidates who didn’t register. The appeal would still work its way through the court, but it’s unclear what would happen if the existing election date remains — something the court was asked to look at on Tuesday.
Lily Cheng, who is registered as a council candidate under Toronto’s 47-ward model, said she hopes the process causes residents to be more involved.
“We just can’t take these things for granted. It’s emotional because for any candidate, we put a lot on the line,” she said.
READ MORE: Confusion and chaos plague municipal election in Toronto, candidates say
“It’s even harder when we continue to live in limbo. Even with Thursday (and) Bill 31 if goes through, there will be a court case against that — so there’s no end in sight.”
The Ontario legislature held a rare overnight session on Monday to debate the bill. If passed, the law would reduce the number of council seats as proposed under Bill 5. Candidates would have two days after the bill receives royal assent to run under the 25-ward model.
Diane Dimmer, a lawyer for the City of Toronto, said the city clerk has stated she could carry out an election with 47 wards, and the preparation process for that is “much further along” than for a 25-ward model.
At Thursday’s council meeting, city clerk Ulli Watkiss said she has retained independent legal counsel to ask if she has the ability to delay the Oct. 22 election date.
“Every day that goes by creates greater uncertainty,” Watkiss said, adding it’s becoming “virtually impossible” to hold a fair and accessible election on Oct. 22.
“The faster we get certainty … the better off we will be.”
Watkiss said city staff are working on contingency plans to accommodate a 25- or 47-ward model, including producing two sets of voter cards. However, they said voting locations are pretty much set regardless of the outcome.
With the changing deadlines, staff have had to reduce the number of advance voting days and won’t be able to hold an advance vote during Thanksgiving.
Adding to the confusion for election candidates, city staff said candidates who aren’t registered to run under the 47-ward model cannot raise money or canvass.
— With files from The Canadian Press
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