City running out of legal options to challenge cuts

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 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.

“Technically that’s possible, but good luck,” said Osgoode Hall law professor Craig Scott. “The legal process timelines alone are enough for the court to say ‘We’re not going to touch this.’”

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 disappoint- ed 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 council 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 interference.

“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.”

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.