Protection of Local Democracy

The recent actions of the Government of Ontario to change the governance structure of a municipality in the middle of an election campaign, then threatening to use the notwithstanding clause when its first Bill was ruled unconstitutional, is an unprecedented assault on local democracy, the respect for the rule of law, and citizens’ rights to fair representation and expression.

The dispute between the City of Toronto and the Government of Ontario affects all municipalities large and small, as it is a demonstration of one order of government interfering with the other without consent or consultation.  It also sets a counter-productive and bad precedent to all current and future provincial governments in how they should work with municipal governments and citizens.

Brief History of the Situation in Toronto: On July 27, 2018, the last day for candidates to register in the Toronto municipal election, Ontario Premier Doug Ford introduced the Better Local Government Act, also known as Bill 5. The legislation required that the Toronto city council align its wards with federal and provincial electoral ridings, thus reducing the size of Toronto's council from 47 to 25 wards. Bill 5 received Royal Assent on August 14, 2018.  Bill 5 took immediate effect in the middle of August, by which point some 509 candidates for the October 22, 2018 election had been certified and the candidates were in the midst of their campaigns with the City Clerk’s preparations for a 47-ward election well underway. The City of Toronto, along with several interveners, took the Government of Ontario to court.

On September 10, 2018, after listening to arguments from both the City of Toronto and the Government of Ontario, Bill 5 was struck down as unconstitutional by Superior Court Justice Edward Belobaba, ruling that larger wards infringed on citizens' rights "to cast a vote that can result in effective representation", and that unilaterally changing electoral boundaries in the middle of a campaign infringed on candidates' freedom of expression. He explained that "passing a law that changes the city's electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy", and questioned the province's intent and timing of the legislation.

“Never before has a Canadian government meddled with democracy like the Province of Ontario did when, without notice, it fundamentally altered the City of Toronto’s governance structure in the middle of the City’s election.” - City of Toronto opening line of its legal factum.

The Government of Ontario introduced the Efficient Local Government Act, also known as Bill 31, on September 12, 2018. The bill invokes Section 33 of the Canadian Charter of Rights and Freedoms, to implement the effects of Bill 5 in defiance of the court ruling. If passed, it will be the first time that the notwithstanding clause has ever been invoked in Ontario.

On September 13, 2018, the Toronto City Clerk told Council that uncertainty over whether there will be 25 or 47 wards has her at a “tipping point,” unsure if she can still organize a legal vote on Oct. 22. Toronto City Council then voted 29-7 to instruct the city lawyer to exhaust all avenues to defeat the provincial legislation and to ask the federal government to invoke their constitutional power of disallowance of provincial legislation should it pass.

At a Liberal Party caucus retreat in Saskatoon, Prime Minister Justin Trudeau stated that he would not contribute to the discussions surrounding the sizes of municipal governments in Ontario, as it was "[not] a role that the federal government needs to take on". 

On September 13, 2018, Federation of Canadian Municipalities Big City Mayor’s Caucus Chair, Mayor Don Iveson, in a statement offered his full support to the City of Toronto and called for a constructive, nationwide debate about municipalities’ role in the Canadian Federation and called for a summit.

The Government of Ontario requested a stay of the September 10, 2018 court decision and this matter went before the Ontario Court of Appeal on September 18, 2018.  The stay was granted by the Court on Wednesday, September 19, 2018.  Bill 5 is now in effect and the election will procced with 25 wards.  The Government of Ontario stated they would not pass Bill 31 if Bill 5 was granted a stay, meaning that they will not invoke the notwithstanding clause. 

On September 19, 2018, speaking to reporters at city hall after the court decision, Toronto Mayor John Tory called the situation "deeply regrettable" and said that much ill will could have been avoided if the province had sought a mandate to reduce the size of council and consulted with residents. Tory said the city's legal team has been ordered to continue fighting the province using any means available, though he did not elaborate on what options may still remain on the table. In his remarks Tory said the provincial government had set an "extraordinarily bad precedent" by threatening to pass legislation including the notwithstanding clause.

On September 19, 2018, the City of Montreal declared its support for the City of Toronto by a unanimous motion of council.  Mayor Valerie Planet stated: "No city is safe from such interference . . . This is exactly why we need to stand up and say loudly, 'No. It doesn't work that way. . . We want respect. We don't want to have agendas imposed on us by other levels of government.”

High Level Summary of the role of Intervener in a Court Case: An intervener is a person or organization who does not have a direct interest in a court proceeding, but is granted intervener status through a procedural device on a discretionary basis because their involvement would be helpful to the determination of the issues.

The intervener’s participation rights are determined by the court judge and are generally more limited than those of a party. For example, intervention is widely used by specialized organizations and advocacy groups to present submissions before courts and tribunals on issues of public interest within their expertise.  The rules governing interventions in the Supreme Court of Canada form a separate regime different from those in other courts or jurisdictions.  This requires a test to see if an applicant will be allowed to intervene and may consider many factors such as:

• whether the proposed intervener has a direct interest in the decision and should instead be added as a party;
• whether the proposed intervener has a genuine interest in the issues raised;
• whether the proposed intervener will bring different and valuable insights and perspectives on the issues compared to the parties;
• whether the issues on which the proposed intervener seeks to participate are justiciable, in the sense that they are capable of being decided in accordance with the law (e.g. as opposed to a political question);
• whether granting intervener status would be in the interest of justice, e.g. due to the particular importance, complexity or public interest nature of the issue;
• whether granting intervener status would be inconsistent with the objective of ensuring the “just, most expeditious and least expensive” determination of the case on its merits, and whether those objectives may be met by imposing limits on the proposed intervener’s participation.

References Used:

Toronto Star Toronto city council votes to challenge province’s ward cuts in court Thu., Sept. 13, 2018 - https://www.thestar.com/news/toronto-election/2018/09/13/toronto-city-council-holding-emergency-meeting-after-province-revives-bill-to-cut-council.html

Toronto Star Province says Bill 31 vote won’t go forward if stay is granted as council cut court fight continues Tue., Sept 18., 2018 - https://www.thestar.com/news/toronto-election/2018/09/18/city-province-in-court-again-this-morning-in-council-cut-fight.html

CBC Ontario’s highest court paves way for major cuts to size of Toronto city council Sept. 19, 2018 - https://www.cbc.ca/news/canada/toronto/ford-court-toronto-council-1.4829250

CBC City of Montreal declares support for Toronto council as Ford prepares to push through cuts Sept. 19, 2018 - https://www.cbc.ca/news/canada/montreal/montreal-solidarity-toronto-1.4829151

CTV A timeline of events in the Toronto council-cutting saga Sept. 19, 2018 - https://www.ctvnews.ca/canada/a-timeline-of-events-in-the-toronto-council-cutting-saga-1.4100772

Alice Woolley – Where is Ford’s respect for municipal government – the heart of the rule of law? - https://www.theglobeandmail.com/opinion/article-where-is-fords-respect-for-municipal-government-the-heart-of-the/

Bill 5 - https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-5

Bill 31 - https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-31

City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 (CanLII)
http://www.ontariocourts.ca/search-canlii/scj/scj-en.htm

Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761 (CanLII)
http://www.ontariocourts.ca/search-canlii/scj/scj-en.htm

Intervening in the Supreme Court of Canada
http://supremeadvocacy.ca/articles/intervening-in-the-supreme-court-of-canada/
https://www1.canada.ca/en/sst/rdl/chairguidad10.html