Court of Appeal dismisses city's constitutional challenge of Ford's cut to size of council

The Ontario Court of Appeal has dismissed the City of Toronto’s constitutional challenge of the Ford government’s cut to the size of city council.

The court ruled 3-2 in favour of the constitutionality of Bill 5, otherwise known as the Better Local Government Act.

In the decision, Justice Bradley Miller concluded that “none of the arguments advanced by the City of Toronto” supported a constitutional challenge.

“Although it is framed as a matter of protecting freedom of expression in the context of a municipal election, in reality the applicants' complaint concerns the timing of the legislature's decision to change the composition of City Council - a change that is undeniably within the legitimate authority of the legislature,” the judge wrote in the decision released Thursday.

“The applicants' complaint has been clothed in the language of s. 2(b) of the Charter to invite judicial intervention in what is essentially a political matter. There is no legitimate basis for the court to accept this invitation.”

Bill 5, which passed in August 2018, reduced the size of Toronto city council from 47 wards to 25 just months before last year’s municipal election.

Premier Doug Ford argued that a smaller council would be more effective and save $25 million in savings over four years, savings that were effectively wiped out after council voted to double staffing budgets for individual members.

Opponents argued that the decision to slash the size of council was “anti-democratic” and “reckless,” changing the rules of the game in the middle of an election campaign.

The city challenged the bill in court and was initially successful when Superior Court Justice Edward Belobaba ruled that the legislation was unconstitutional.

Belobaba ruled that the election would continue with 47 wards but the Oct. 22 election proceeded with 25 wards after the province appealed the decision and a stay was granted.

Justice Miller noted in the decision that while the change brought about by the Ford government “disrupted campaigning and the candidates' expectations,” the question before the court is not about whether Bill 5 is “good or bad policy” or was “fair or unfair.”

“The question is whether it violates the Charter or is otherwise unconstitutional,” he wrote.

He argued that Belobaba’s interpretation of section of the Charter which guarantees freedom of expression “exceeded the bounds of legitimate interpretation” and “amounted to a re-authoring of that provision.”

“Additional arguments raised by the City of Toronto and supporting interveners- drawing on unwritten constitutional principles and jurisdictional limits inherent in the division of powers- are similarly erroneous and unsupported by constitutional jurisprudence,” the judge wrote.

A spokesperson for Ontario's attorney general issued a brief statement following the release of the decision on Thursday morning.

"We are pleased that the Court of Appeal for Ontario allowed Ontario’s appeal in this matter. The Court accepted Ontario’s position that the Better Local Government Act, 2018 (“Bill 5”) did not infringe the Charter s. 2(b) freedom of expression rights of either municipal voters or candidates [or was justified under Charter s. 1 as a reasonable limit on freedom of expression]," the statement read.

"As this matter is still within the appeal period, it would be inappropriate to comment further."

In a statement released Thursday afternoon, Mayor John Tory said that while the "majority opinion ruled" that the bill was constitutional, the judgment included "strong dissenting opinion."

"(The decision) noted this change imposed by the province was 'extensive, profound, and seemingly without precedent in Canadian history.' It noted that the legislation was brought forward without consultation more than halfway through the legal election period," Tory's statement read.

He said he continues to oppose the province's actions.

"Council gave clear direction in January that the City solicitor should pursue a leave to appeal application to the Supreme Court of Canada in the event the Province was successful at the Court of Appeal. We gave this direction because the way the province went about changing the size of Toronto's council was – and remains – wrong," Tory said.

"I believe this case continues to be important as a means of helping to limit future intrusions of a similar nature in the absence of constitutional change. It has already produced some reasoning which will help to better frame future discussions about the important role of municipal government as we collectively try to modernize the relationship between cities and other orders of government."

City of Toronto spokesperson Brad Ross said the city's legal staff is now "reviewing the decision in detail" and will report to council on the ruling in October.