The Court of Appeal for Ontario has granted the province’s request to stay a lower court judge’s decision that set aside a law slashing the size of Toronto city council.
By granting a stay, there will be 25 wards instead of 47 in the upcoming municipal election on Oct. 22 as originally set out in Bill 5, the Better Local Government Act.
The decision was released Wednesday morning after a three-judge panel heard submissions for and against the request from lawyers representing the provincial government, the city of Toronto and several 2018 election candidates on Tuesday at Osgoode Hall.
“It is not in the public interest to permit the impending election to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the legislature,” the three-judge panel wrote.
Superior Court Justice Edward Belobaba set aside Bill 5 in a ruling on Sept. 10. He 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.”
However, the appeals court ruling released on Wednesday stated otherwise, and the bill did “not limit or restrict any message the candidates wish to convey to voters for the remainder of the campaign.”
“The application judge was understandably motivated by the fact that the timing of Bill 5 changed the rules for the election mid-campaign, which he perceived as being unfair to candidates and voters. However, unfairness alone does not establish a Charter breach,” the court decision stated.
Premier Doug Ford, who has argued the changes will improve decision-making and save $25 million over four years, announced hours after Belobaba’s decision that his government would file an appeal in court and retable the law in the Ontario legislature while invoking the notwithstanding clause.
Ford spoke with Global News while in Washington, D.C., during NAFTA talks. He said he feels vindicated by the Court of Appeal’s ruling on the stay application.
“I think the Court of Appeal said it a lot better than I would ever say it and said it a lot stronger than I would ever say it,” Ford said.
Ford said he wasn’t shocked by the court decision on Tuesday since the government “vetted this upside down and sideways,” adding they spoke with constitutional experts and retired judges.
Municipal Affairs and Housing Minister Steve Clark said on Wednesday that provincial staff would work with City of Toronto staff to help administer the election.
“It is time to put the political games behind us,” he said.
Mayor John Tory said during a news conference that the court of appeal decision now provides certainty for the upcoming election.
“I have opposed and continue to oppose the provincial government’s actions. They are unfair, they are unnecessary and they are unprecedented. You just don’t change the rules of an election in the middle of the election.”
Tory said the city’s lawyers have been directed by council to continue to fight Bill 5, but that the focus now is making sure the election is run fairly and as smoothly as possible.
“I believe that our clerk and our hard-working city staff will run the election. They’ve done a lot of preparing for an election and I believe they will end up running the election now that we’re certain as to the nature of that election with 25 wards,” Tory said.
What happens with Bill 31?
In court on Tuesday, Robin Basu, a lawyer for the province of Ontario, said the government wouldn’t vote on Bill 31 (the Efficient Local Government Act) if the court quashed Belobaba’s decision.
Minister Clark confirmed the province’s position on Bill 31 on Wednesday.
“We will continue with our appeal of Justice Belobaba’s original decision, which we continue to believe was wrongly decided,” Clark said in a statement.
“In the meantime, the Court of Appeal’s decision eliminates the urgent need to move forward with Bill 31 and we will instead be moving on to other priorities.”
Basu argued the 25-ward model proposed under both bills 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 staff to plan one election scenario versus two.
Opponents argued 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.
“The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional,” the three-panel judge wrote.
“On that crucial question, we have concluded that there is a strong likelihood that application judge erred in law and that the Attorney General’s appeal to this court will succeed.”
After Tuesday’s hearing, some of the lawyers representing candidates floated the possibility of appealing a stay decision to the Supreme Court of Canada. However, it’s unclear how quickly an application would be heard by the court.
Legal battle not over, constitutional lawyer
Asher Honickman, a Toronto lawyer who specializes in constitutional law, told Global News Radio 640 Toronto that once the Oct. 22 election is over, the challenge will focus on proceeding with an appeal of Bill 5 which can go either way.
“The three-member panel court of the Ontario Court of Appeal, did not say that the judge was definitely wrong, only that he was probably wrong. And so, arguably, the appeal on the merits still needs to be heard,” Honickman said.
“And the reason it still needs to be heard is because Justice Belobaba didn’t just say that the timeliness of this election was unconstitutional, he said that, but he also said that any election based on this number of councillors, or citizens per councillor, would be unconstitutional. It doesn’t allow for effective representation.”
However, Honickman questions how the future panel of the Court of Appeal is going to disagree with these three judges who just said the decision is almost certainly wrong.
“So, I think what might happen is that after the election’s over, you’ll get these 25 new councillors and they’ll probably agree to consent to the province’s appeal and just will sort of get a rubber stamp on that,” he said.
Critics said there would likely be more legal challenges to the council-cutting plan despite the stay.
“There is a question of legitimacy hanging over the Toronto election even with the Court of Appeal decision on Bill 5,” Green Party Leader Mike Schreiner said in a statement.
“Even though Bill 5 might be legal, it is not right. The premier made a choice to manufacture a crisis rather than respect the people of Toronto by following a proper consultation process to determine the proper size of council.”
City hall reaction to court of appeal decision
City councillor Janet Davis told reporters at city hall following the decision that she expects the battle to shrink the size of council will continue long after next month’s election.
“This is not over yet and that is the chaos that is swirling around these elections that was created by the Ford government,” Davis said.
“There will be appeals of the stay, the appeal itself of Bill 5 is going to go ahead. We have no idea how long that will take. Will there have to be another election?”
Mayoral candidate Jennifer Keesmaat maintains it was Mayor John Tory’s lack of decisive action against the premier’s plan to cut council that resulted in the present election scenario.
“This is not a normal provincial government. It’s simply not. As a result, a status quo approach is not going to be effective,” Keesmaat said.
“We need to have strong local democracy in this city. That’s what the residents of this city expect and a strong mayor is required to deliver that.”
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Candidates have until Friday afternoon to register
In an update released late Wednesday afternoon, the City of Toronto said it will reopen the nomination period for city councillor and school board trustee candidates in accordance with the Court of Appeal’s decision.
Candidates not registered must attend the elections office at city hall or at 89 Northline Rd. between 8:30 a.m. and 4:30 p.m. on Thursday or Friday.
The City said candidates who filed on or before July 27 under the 47-ward model and want to run in the October election are required to file a change of ward form. Staff said the forms must be submitted in person and have original signatures by Friday at 4:30 p.m.
Certified candidates who don’t advise the city clerk of their intent to run in the election by Friday at 5:30 p.m. will be withdrawn from the race and their names won’t be on the ballot.
For the latest information on the filing process, who’s running, and the 25 wards, the City of Toronto encouraged people to check its website.
— With files from The Canadian Press