Top court to hear council cuts appeal
On eve of 2018 election, Conservatives halved number of T.O. wards
The country’s highest court has agreed to hear the city’s appeal of Premier Doug Ford’s decision to cut the size of council during the 2018 municipal elections.
The Supreme Court of Canada released its decision on the city’s application for leave to appeal on Thursday morning.
The city applied to the top court in November as the final step in a case that has pinged back and forth between legal decisions — the provincial move was first overturned by a lower court judge who was later overruled by the Court of Appeal in the province’s favour.
The Supreme Court of Canada hears only a select number of cases each year, typically on issues of significant public and national interest. In its application, the city argued the constitutional questions raised in the case “transcend the specific election … and can affect any election in the country.”
In 2018, as Toronto was in the midst of its municipal election for members of council and school boards, Ford’s PC government announced it was slashing the number of wards in Toronto from 47 to 25 without any consultation.
Ford’s government at the time claimed the change would save taxpayers money and create efficiencies at city hall, which did not materialize as promised.
The decision, the city has argued, caused “widespread disruption and confusion,” including pitting incumbent councillors against one another and dividing wards in new ways with about double the population. It also meant the city clerk, responsible for administering elections, was forced to prepare voting machines, ballots and more for an entirely different election in a short time.
A legal challenge to the new legislation was launched by a group of candidates, volunteers and voters. Superior Court Justice Edward Belobaba agreed with them in September 2018 that Bill 5 was unconstitutional and struck it down.
The judge said the government bill violated voters’ charter rights by creating larger wards that led to worse representation and that of candidates’ who used the 47-ward structure to decide how and where to run and express themselves politically.
When the province appealed, the Court of Appeal granted a stay of Belobaba’s decision — essentially allowing the election to proceed under the new ward structure with 25 wards.
Later, a rare five-judge panel overruled Belobaba’s ruling in favour of the province. That appeal court ruling, however, was split, with three judges in favour and two against.
Writing the dissenting opinion, the panel’s chair Justice James MacPherson wrote that “by reducing the size of City Council from 47 to 25 wards and changing the boundaries of all city wards mid-election, the Act interfered in an unwarranted fashion with the freedom of expression of candidates in a municipal election.”
It’s not clear when a hearing might be scheduled in Ottawa, with hearings that were set in the coming months currently delayed until June due to the COVID-19 outbreak in Ontario.
Osgoode Hall law professor Bruce Ryder, an expert in constitutional issues, said he is pleased the Supreme Court decided to take on the questions in the case. He said it’s not about rehashing what happened in the 2018 election.
“The importance of the Supreme Court taking it on is about the future, and whether there are any ways in which the integrity of local democracy is protected from provincial interference by the constitution,” he said.
The case raises issues about freedom of expression and voting rights and the relationship between the two, he said.
“It’s not a question of whether the municipality is a creature of the province, as the province keeps arguing — of course that’s true,” he said. “It’s once you’ve created and delegated democratic powers to a subordinate powers, can you then mess with the nature of and the fairness of the electoral process that constitutes that government?”
He said he finds that an “astonishing proposition” made by the Ontario government and glad it will be considered by the top court.
Mayor John Tory thanked the city’s legal team for advancing the city’s interests in the application.
Jennifer Hollett, who ran in a downtown ward in 2018 and was one of the original applicants challenging the Ford legislation, said she was buoyed by the decision Thursday.
“It just gives me faith that despite all the new concerns and priorities right now we have to stand up and fight for democracy.”
“The fight continues.”