Province in court today seeking stay of ruling that found initial legislation was unconstitutional

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 last week. That ruling from Justice Edward Belobaba found the province’s original legislation, Bill 5, which cut the size of council from 47 to 25 wards for this fall’s election, 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.

The province also argues that if it lost the appeal, Queen’s Park should be allowed to come up with a legislative cure instead of an automatic return to 47 wards. For example, the province says, electing two people per ward in a 25-ward election, or 50 councillors — six more than the 44-ward council Ford has called “dysfunctional” and inefficient and three more councillors than the 47-ward option approved by the city.

It’s unclear how quickly the court will make a decision on whether to grant a stay.

Because the scheduled election on Oct. 22 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 affect 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.

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 of Rights and Freedoms to insulate the bill from many charter challenges.

If the new bill is passed, which could happen as early as Thursday, it would see a return to the 25-ward election regardless of the court’s decision in the stay motion.

The province argues in written court materials that “allowing the 25-ward election to pro- ceed 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 47ward 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 “unconstitution- ally chaotic state of affairs.”

Meanwhile, city clerk Ulli Watkiss, who is responsible for administering the election, is taking an unusual step to intervene with her own lawyers in the court case Tuesday.

“Without clarity on the structure of the election, the clerk is rapidly reaching a point at which she will be unable to conduct an election on Oct. 22, 2018, in accordance with the requirements of the (Municipal Elections Act) under either a 25- or 47-ward structure,” her filings, submitted by independently retained lawyers from Stikeman Elliott, say.

That undermines the province’s assertion that it would be better to go back to 25 wards, relying on the clerk’s earlier comments that she may not be able to carry out a 47-ward election if Bill 5 were struck down.

The court hearing Tuesday begins at 10 a.m. at Osgoode Hall.