TORONTO — Ontario’s top court has sided with the provincial government in a legal battle over the size of Toronto’s council, firmly establishing a reduced 25-ward electoral map for the city’s looming municipal vote.
In suspending what it called a “dubious” lower court ruling that found the province’s move to cut council unconstitutional, the Court of Appeal for Ontario also did away with the Progressive Conservative government’s need to rush through reintroduced legislation on the matter.
That new legislation has drawn heavy criticism for invoking a constitutional provision known as the notwithstanding clause to ensure its passage, but the government said it now won’t move forward with the bill.
“It is time to put the political games behind us,” said Municipal Affairs Minister Steve Clark. “We will continue working with the Toronto city clerk to provide every support possible to help with the administration of the election on Oct. 22.”
The province had argued that a stay — which allows city staff to abandon the 47-ward council model revived by the lower court ruling — was necessary to eliminate uncertainty surrounding the upcoming election.
The Court of Appeal agreed.
“It is not in the public interest to permit the impending election to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the legislature,” the three-judge panel wrote.
The appeal court rejected arguments from those opposed to the stay that the province was responsible for the chaos surrounding the election and thus shouldn’t be granted relief.
“We do not accept the respondents’ submission that, because Ontario exercised its legislative authority to enact Bill 5, it does not have ‘clean hands’ and should not be entitled to the equitable relief of a stay from this court,” the panel wrote.
An Ontario judge last week found that the province’s Bill 5, which reduced Toronto city council to 25 seats from 47 in the middle of the election campaign, violated freedom of expression rights for candidates and voters.
Premier Doug Ford contested the ruling and took the unprecedented step of invoking the notwithstanding clause in reintroduced legislation to push through with his plan.
The new bill won’t be up for a final vote until Thursday at the earliest, but the province said it would “instead be moving on to other priorities” in light of the stay.
The province is also appealing the lower court ruling and lawyers said the case could be heard on an expedited basis in order to resolve the issue before a new council is sworn in on Dec. 1.
In their decision Wednesday, the judges weighing the stay said they believe the lower court decision to strike down Bill 5 will likely be overturned on appeal.
“The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional,” they wrote. “On that crucial question, we have concluded that there is a strong likelihood that application judge erred in law and that the Attorney General’s appeal to this court will succeed.”
The province’s plan “unquestionably” disrupted campaigns already underway, but did not restrict the messages candidates could convey in the remaining time before the election, nor did it cancel the messages they expressed earlier, though it may have reduced their effectiveness, the judges said.
“While the change brought about by Bill 5 is undoubtedly frustrating for candidates who started campaigning in May 2018, we are not persuaded that their frustration amounts to a substantial interference with their freedom of expression,” they said.
“The candidates were and are still free to say what they want to say to the voters.”
Critics said there would likely be more legal challenges to the council-cutting plan despite the stay.
“There is a question of legitimacy hanging over the Toronto election even with the Court of Appeal decision on Bill 5,” Green Party Leader Mike Schreiner said in a statement.
“Even though Bill 5 might be legal, it is not right. The premier made a choice to manufacture a crisis rather than respect the people of Toronto by following a proper consultation process to determine the proper size of council.”
Paola Loriggio, The Canadian Press