Toronto’s fight with Queen’s Park over the province’s move to shrink city council just got a lot tougher, constitutional law experts say.
On Wednesday, the Ontario Court of Appeal granted the province a stay of an earlier court decision that had struck down the Ford government’s Bill 5 to slash council from 47 to 25 seats as unconstitutional. The stay means that the lower court decision by Justice Edward Belobaba will not take effect pending the outcome of the province’s appeal to overturn it, and the municipal election will be carried out Oct. 22 based on the 25-ward plan.
The city will still have the chance to argue its case in full when the province’s appeal to overturn Belobaba’s ruling is heard at the Court of Appeal, although it appears unlikely that will take place prior to the Oct. 22 election. (The province has argued an appeal hearing prior to election day would be virtually impossible.)
And the judges who granted the stay — who will likely not be the panel hearing the appeal — already indicated in their decision Wednesday that it would appear Belobaba erred in law and the province’s appeal will succeed.
In the meantime, one legal option that remains open would be for the city to ask the Supreme Court of Canada for permission to hear its argument that the stay of Belobaba’s ruling should be lifted.
The city did not immediately say whether it would attempt to fight the stay.
“Obviously the city lawyers do have council authority to take the steps that they believe are necessary,” Mayor John Tory said at city hall, when asked whether the stay would be challenged.
If the city loses after the full hearing at the Court of Appeal, it could try to appeal that decision to the Supreme Court.
Scott said it’s “well within the realm of possibility” that the country’s top court would agree to hear the case, and “I would hope so, given all the stakes.”
However, he cautioned, “the Supreme Court has disappointed many in the past about what they consider to be of sufficient national importance” for a case to be heard.
That said, the next council could instruct the city not to take any further legal action, including not seeking leave to appeal to the Supreme Court. The new council can reopen any matter decided by the previous council as long as the majority of councillors support it, according to the municipal code.
Councillor Gord Perks said he is confident that councillors will stick to the plan to uphold the “deep principles” of Toronto having the right to establish ward boundaries through a proper process and to conduct an election without the province interfering.
“These are still important, live issues we need to settle some day,” said Perks. “And it’s really important these issues get tested at the highest court of the land. Perhaps something in their decision will restrain the province.”
University of Ottawa law professor Errol Mendes believes the city may also still have a chance to re-argue some of the points it made before Belobaba in the lower court last month, points on which the judge did not rule.
These include the so-called “unwritten constitutional principles” of democracy and the rule of law, which the city argued the province had violated by “interfere(ing) with an ongoing democratic election,” according to the city’s factum filed as part of the hearing in Superior Court.
A decision in the city’s favour based on the unwritten constitutional principles could not be overridden by the “notwithstanding” clause, which applies only to certain rights enshrined in the Charter of Rights and Freedoms.
“Frankly, I don’t think it’s beyond the realm of the constitution for the lawyers for the councillors and the city to say, ‘OK let’s try and get another stab at this other part, which was not addressed by the judge,’” Mendes said.
Belobaba had found that the province’s Bill 5 violated section 2(b) of the Charter, which guarantees freedom of expression — specifically, the freedom of expression of the candidates and voters. He chose to base his decision on that alone, and did not deal with the unwritten constitutional principles or some of the other sections of the Charter raised by the parties.
“I am inclined to agree with the province that none of these additional submissions can prevail on the facts herein,” he wrote in his ruling. “However, I make no actual finding in this regard. The (other Charter) submissions, together with the rule of law and democracy submissions, may live another day, perhaps to be litigated in another court.”
And what happens to the 25-ward council should the province lose its appeal at the Court of Appeal after the Oct. 22 election?
Experts expect that the council would remain in place until a new election was held. The province had also argued before the Court of Appeal that if it loses its appeal, the court should not order that a 47-ward election be held, but rather give the legislature time to respond to the ruling through legislation.
“I don’t imagine the Court of Appeal would allow the city to not be governed,” said Greg Flynn, an assistant professor of political science at McMaster University. “I think they would probably allow that (25-ward) council to stay in place until a new election could be held.”
Scott said the new council would only be “illegitimate in the loose sense” if the province loses its appeal.
“We would know that they’ve been elected under a bill that’s unconstitutional, but it doesn’t mean it couldn’t be remedied,” such as by giving the legislature time to come up with legislation that complies with the court’s ruling, he said.
With files from David Rider
Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant
Samantha Beattie is a city hall reporter based in Toronto. Follow her on Twitter: @samantha_kb