No ‘obvious path’ to fighting Doug Ford’s council cut, says city solicitor’s report
The city’s legal team has put forward options for council to fight Ontario Premier Doug Ford’s plan to slash the number of wards from 47 to 25 — but says there is no “obvious path” to challenge the province’s controversial legislation.
CBC Toronto viewed in full the confidential report from city solicitor Wendy Walberg on Monday amid a special council meeting that’s being held to discuss the city’s legal options.
During the morning session, attended by roughly 200 Toronto residents opposing the cuts, councillors were divided over a motion from Coun. David Shiner calling for the report to be released to the public. It eventually failed, 11-30.
In that document, Walberg recommends the city either begin an application to challenge Bill 5 — the province’s Better Local Government Act — or simply take no action. She also notes that even with “expedited court proceedings,” it would be very challenging for the city clerk to revert back to a 47 ward model in time for the October 22 municipal election.
If the city does put up a fight, Walberg writes that even though there is no clear “constitutionally recognized obligation” on the part of the province to consult with Toronto and its residents before making this kind of sweeping change, there is a strong argument that provisions in the City of Toronto Act “set out an inter-governmental consultation framework that in good faith should have been followed.”
“The enactment of Bill 5 at this time is contrary to basic expectations around democratic processes,” Walberg continues in her analysis. “However, it is not clear whether these expectations form a right in law.”
She also writes that there is a potential argument that the province’s legislation has “infringed the freedom of expression” of Toronto residents, noting that Bill 5 came into force amid an election period, and just over two months before voting day.
“Bill 5 raises difficult issues, both legal and practical,” she concludes. “While there are grounds that could be argued to challenge the legality of the Province’s actions, arguments would be made in the face of an ongoing election process and involve novel arguments that primarily focus on the manner in which the Province has acted, rather than the substance of the legislation.”
That being said, she continued, there are “legitimate concerns” about the way in which these changes to council have been imposed, including the timing.
Mayor John Tory is among those on council who plan to back a possible court challenge, even in the face of the report’s lukewarm conclusions.
“I have been very clear about my position on this unprecedented move by the provincial government. The process by which this monumental change was made was wrong and unacceptable,” said Mayor Tory.
However, others say the move will streamline council, including longtime Coun. Jim Karygiannis, who told CBC Toronto he doesn’t believe the city stands a chance at fighting the legislation.
“Let’s get a city that’s working, let’s get less talking heads,” he said.
On Monday, city staff told council that staff have been working 18-hour days for several weeks to prepare for the switch to 25 wards.
The change is also costing an estimated $2.5 million beyond the approved election budget of $14.9 million, due to the “magnitude, size and complexity,” council heard.
Following a full discussion, council will vote today whether it will instruct the city’s legal team to fight the province in court.
There’s already one legal challenge in the works: A judge has granted lawyer Rocco Achampong, a candidate in Ward 13, Eglinton-Lawrence, leave to challenge the legislation in court after his request for an injunction at the Toronto division of Ontario Superior Court was denied.
A hearing is set for Aug. 31.
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