Province, Toronto square off at Court of Appeal
Queen’s Park’s actions to slash council ‘not in the public interest’
TORONTO — With the province facing off against the city in court for a second time on Tuesday over the size of city council, a decision from that hearing will determine the number of wards — at least for now.
In the ongoing battle that has riled up hundreds of protesters, brought into question the city’s autonomy and now reached the Court of Appeal, the city is making this blunt argument about the province: “Its actions are not in the public interest.”
On Tuesday, the province will argue in court for a “stay” of a Superior Court ruling. That ruling from Justice Edward Belobaba found the province’s original legislation, Bill 5, that cut the size of council to 25 wards, was unconstitutional. The Superior Court ruling effectively
cancelled the switch to 25 wards.
If granted, a stay would return the city to a 25-ward election with the province arguing in new material filed late Monday that their appeal must be heard after the election in order for there to be enough time to make arguments.
That would mean, the province argues, that if the city is allowed to continue preparing a 47-ward election and an appeal by the province is later successful, there would need to be a new election.
It’s unclear how quickly the court will make a decision on whether to grant a stay.
Because the scheduled election is 35 days away and there is little time to print ballots and make other preparations, how a panel of judges rules on the province’s request for a stay will effectively decide what ward structure is to be used, the city and others are arguing.
The city says the province has not met a legal test showing “irreparable harm” will come to the public interest if a stay is not granted, and is also questioning how the size of council could effect the province’s interests.
“Not only did the province fail to establish any pressing and substantial objective, Bill 5 actually undermined a genuine pressing and substantial concern in a free and democratic society: preserving the integrity of the election process,” the city says in written materials filed with the court.
“Why is it that the city’s council composition so adversely affects the province’s interests? Why is it that the province’s own interests will be so adversely affected if the city is simply allowed to continue on and conclude the election for a 47-ward council for 2018?”
Since Bill 5 was ruled not in force by the Superior Court, Premier Doug Ford’s government has taken rare and unprecedented steps to ensure a smaller council, including overriding Charter rights and holding weekend and midnight sessions of the legislature.
The court appeal is just one of two streams the province is using to try to shrink the size of council.
At the same time, the province is also churning through debate to pass new legislation, Bill 31, that is essentially copied and pasted from Bill 5 with one major
difference: it uses a rarely-invoked section of the Charter to insulate the bill from many Charter challenges. If the bill is passed, which could happen as early as Thursday, it would see a return to the 25-ward election regardless of the decision in the stay motion.
The province argues in written court materials that “allowing the 25-ward election to proceed would avoid cost, disruption and inconvenience, rather than cause it” and notes that the legislature has “determined” that Bill 5 would achieve better voter parity in 2018, make council “more effective and efficient” and save taxpayers money. Those assertions were dismissed by Justice Belobaba, who found the province brought little evidence to make that case.
Lawyers from Goldblatt Partners, representing a candidate, volunteer and community group, say going back to 25 wards would not be returning to the status quo, since the city is currently preparing a 47-ward election — the option that was approved by council in 2016 after years of study.
It was the province, with unconstitutional legislation, that “upended” the election, they argue, and granting a stay would return the city to an “unconstitutionally chaotic state of affairs.”
Lawyers from Paliare Roland, representing candidates and community groups who intervened in the earlier court challenge with their own evidence, say going back to the 25-ward structure now would cause harm.
Ford and his government have taken aim at the judiciary in recent days, saying Justice Belobaba is appointed, while they were elected to make law.
The court hearing begins at 10 a.m. at Osgoode Hall.