Last week, Superior Court Justice Edward Belobaba ruled that the province’s Bill 5 — which cut Toronto’s wards to 25 from 47 — was unconstitutional, and that the Oct. 22 municipal election should proceed with the original 47-ward system.
The province turned to Ontario’s highest court, the Court of Appeal, on Tuesday asking a panel of three judges for stay of Belobaba’s ruling. A stay, if granted, essentially means that Belobaba’s ruling would not take effect pending the outcome of the province’s appeal.
Bill 5, with its 25-ward structure, will stand, and the clerk will be expected to hold an election on Oct. 22 accordingly. The province’s lawyer said in court that if the stay is granted, it will not proceed with Bill 31.
The question then becomes when will the province’s appeal of Bill 5, which could overturn Belobaba’s ruling, be heard?
The province has argued it would be virtually impossible for an appeal to be heard before the Oct. 22 municipal election.
It has said in its factum with the Court of Appeal that it would agree to an expedited appeal hearing, as early as the first week of November, before the new council is sworn in.
From the province’s point of view, if the appeal is heard and allowed, the province argues that nothing further needs to be done, as the 25-ward election will have already happened.
If the appeal is dismissed, the province argues the court should give the legislature time to respond to the ruling through legislation, but says the court should not order that a 47-ward election be held. The province argues that Belobaba’s order for a 47-ward election “was an inappropriate exercise of the remedial jurisdiction of the court.”
It would also be open to the province to seek leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada.
From the city’s point of view, if the Court of Appeal grants the province’s request for a stay, the city could ask the Supreme Court for permission to hear its argument that the stay be lifted before the election.
Alternatively, if the stay remains in place through the Oct. 22 election and the province wins its appeal, the city could ask the Supreme Court to hear its argument to overturn it.
Current councillors’ term of office ends at midnight Nov. 30. If there has been no election by that point, the province can step in and appoint councillors, according to the city’s lawyer.
What happens if the province is not granted a stay of Belobaba’s ruling?
The province has said it will move to pass Bill 31, which creates a 25-ward municipal election.
The clerk has said she will continue to prepare for both 25- and 47-ward elections until Bill 31 passes. This is because Belobaba’s ruling, ordering a 47-ward election, will remain in effect until Bill 31 passes.
Should Bill 31 pass, that will establish a 25-ward election. But it remains unclear whether that will take place on the Oct. 22 municipal election date, as it could be open to challengers including the city to ask a court for an injunction suspending Bill 31, as the province acknowledges in its factum with the Court of Appeal.
The city has said it will mount a legal challenge to Bill 31 should it pass.
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