TORONTO -- The next twist in the convoluted battle over the Ontario government's plan to cut the size of Toronto city council is expected Wednesday.
Three judges of the Court of Appeal for Ontario will decide whether to grant the province's request to stay an earlier court decision that ruled the government's attempt to drastically reduce the size of council in the middle of an election campaign unconstitutional.
After that ruling, Premier Doug Ford's Progressive Conservative government said it would invoke the notwithstanding clause of the Constitution to overrule the court's decision in a new piece of legislation.
In a hearing before the Appeal Court Tuesday, government lawyer Robin Basu said legislators would hold off voting on the new bill if the judges decide to stay the lower court ruling until after the October election.
That ruling reinstated the city's 47 wards, which the legislation had cut to 25.
"There is only one path available to assure the (Toronto city) clerk that she is in a position to proceed with an election with integrity and fairness on Oct. 22," Basu told the court. "It is simply not feasible to prepare for two elections at the same time."
Lawyers representing the City of Toronto, some municipal candidates and other parties argued the province is responsible for the chaos surrounding the election and therefore cannot seek legal relief for the problems it has caused.
They also said the government's proposal to stall the new bill if the court rules in its favour is almost akin to a threat.
"It's not your job to save them from themselves, to take the political heat off," lawyer Donald Eady, who represents a group that includes candidates, told the panel of three judges.
Last week Justice Edward Belobaba ruled that Bill 5, which slashed Toronto's council to 25 seats from 47 in the middle of an election campaign, violated freedom of expression rights for candidates and voters.
Ford has since reintroduced the bill, now known as Bill 31, and invoked the notwithstanding clause to forge ahead with the council-cutting plan.
The move has been condemned by the opposition parties, prominent politicians and hundreds of legal professionals, and has also sparked multiple protests, including a rally outside the legislature this week while politicians held a rare overnight debate on the bill.
The new bill won't be up for a final vote until Thursday at the earliest, and city staff have said the chances of running a fair election on Oct. 22 shrink with every day of uncertainty that goes by.
If the province is successful in securing a stay, city staff would then immediately start planning for an election based on the 25-ward model rather than the 47-ward approach that went back into effect with Belobaba's decision.
Granting the stay would eliminate any uncertainty, and the province's appeal of Belobaba's decision could be heard on an expedited timeline after the election and resolved before a new Toronto council is sworn in on Dec. 1, the province's lawyers said.
Howard Goldblatt, who represents a group that includes a candidate in the election, argued that if the province wants to restore stability, it can simply stop fighting Belobaba's ruling and allow the election to proceed with 47 wards.
"They can resolve the uncertainty," he said.
Lawyers for those opposing the stay argued the province has not presented any evidence to support its claims that allowing the judgment to stand would cause irreparable harm.
The city's clerk has said she could carry out an election with 47 wards, and the preparation process for that is "much further along" than for a 25-ward election, said Diana Dimmer, who represents the city.
What's more, Eady added, granting the stay "exacerbates and continues" the charter rights violations denounced in the lower court's ruling.
Ford, a former Toronto councillor and failed mayoral candidate, made no mention of his council-cutting plan during the province's spring election campaign. He has since argued that the move will make council more efficient and save taxpayers $25 million over four years.
