The first legislative breakthrough was Alberta’s Municipal Government Act of 1994 which, among other things, authorized municipalities to act within broad spheres of jurisdiction rather than be limited to a specific laundry list of powers. Similar changes then occurred in a majority of Canada’s provinces, with Ontario making major amendments to its Municipal Act in 2001 and 2006. In addition, the Ontario Government also passed in 2006 a new City of Toronto Act, giving that municipality additional general powers and enhanced sources of revenue. The governing principles of this legislation (listed below) are especially pertinent to the issue under discussion.
1 (1) The City of Toronto exists for the purpose of providing good government with respect to matters within its jurisdiction, and the city council is a democratically elected government which is responsible and accountable.
(2) The Province of Ontario endorses the principle that it is in the best interests of the Province and the City to work together in a relationship based on mutual respect, consultation and co-operation.
(3) For the purposes of maintaining such a relationship, it is in the best interests of the Province and the City to engage in ongoing consultations with each other about matters of mutual interest.
These advances in legislation were accompanied by a series of court decisions (including by the Supreme Court of Canada), that gave greater recognition to municipalities as democratic governments with a mandate to take action on behalf of their communities. The Supreme Court observed that modern municipalities need greater flexibility in fulfilling their statutory responsibilities, in dealing with unforeseen and changing circumstances, and in addressing emerging issues in their communities.
The Ontario Court of Appeal Ruling
The Ontario Court of Appeal, by a vote of 3 to 2, upheld the decision to cut the size of Toronto’s council, while acknowledging that the timing of the Premier’s action disrupted campaigning and candidates’ expectations. The majority held that the City’s objection, based on section 2(b) of the Charter (which sets out the fundamental freedoms “of thought, belief, opinion and expression, including freedom of the press and other media of communication”) was asking for judicial intervention into what is essentially a political matter. The majority also noted that municipalities are creatures of the province according to the constitution. In what I find a surprising and disturbing view, the majority also observed, in para 86, that “even if this court were to conclude that the Act is in some way inconsistent with the principles of democracy and the rule of law – something that … the respondents have not established – there would be no legitimate basis for this court to invalidate the Act based on this inconsistency.”
The two dissenting judges issued an opinion that Ford’s action was unconstitutional, that cutting the size of council in half and changing ward boundaries in mid-election interfered with the freedom of expression of candidates in an unwarranted fashion. They also noted that, under an agreement between the province and the city, Ontario is supposed to consult Toronto on “any proposed change in legislation or regulation that, in Ontario’s opinion, will have a significant financial or policy impact on the city.”
The split decision will probably increase the likelihood of this issue being appealed to the Supreme Court of Canada – and it should be if we value the continuation of a healthy level of local government.
Other Grounds for Appeal
In my view, it is unfortunate that the objection to, and decision on, Ford’s action focused on the Charter issue. I would have thought (as one who is NOT a lawyer, I hasten to add) that a case can be made that Ford’s action – and its underlying rationale – fail any test of natural justice and procedural fairness. It is well established that those affected by a government decision must be given adequate advance notice, enough information to participate in the decision-making process, and an opportunity to present their point of view and to respond to facts presented by others. Obviously none of these conditions were met for the candidates or voters with Ford’s snap decision to cut the size of Toronto council in half with the election campaign already well underway.
In addition, procedural fairness is violated when the decision maker is biased or when past conduct and statements provide a reasonable apprehension of bias. Doug Ford’s strong dislike of Toronto city councillors, especially what he saw as left-leaning downtown councillors, is widely known and extensively documented. There was no underlying rationale for the action that Ford took, no research, no consultation of any sort. It was strictly Ford settling scores. The same petty motivation was readily apparent in his companion decision to cancel direct election of the regional chairs of York and Peel Regions. Once again, we see a petulant Ford, this time targeting former Liberal cabinet minister Steven Del Duca, running for chair of York Region, and ousted Conservative Party leader Patrick Brown, running for chair in Peel – and extending the direct election cancellation to Niagara and Muskoka did nothing to hide that reality.
The cover story to explain this Ford decision was pathetically weak. We were told that the province was “taking a pause” with respect to the governing arrangements in York, Peel, Niagara, and Muskoka, but that “the more mature (emphasis added] regional governments that were in place in Durham, Halton, and Waterloo” would not be affected by this change. Since York, Niagara, and Muskoka were established before Durham, Halton, and Waterloo, one wonders why they failed to mature and on what basis this was determined. Even more mysterious is what happened in the side-by-side regional governments of Peel and Halton (both created January 1, 1974) that caused Halton to mature while Peel did not.
The Importance of This Case
In my view, it is vitally important the City of Toronto challenge of Ford’s action be appealed to the Supreme Court of Canada. If a municipality with a population of three million (larger than six of Canada’s provinces), vested with additional powers in its own governing statute, a statute that endorses a relationship with the province based upon “mutual respect, consultation, and cooperation,” can be treated in such a capricious, arbitrary, and undemocratic manner, all the progress municipalities have made in recent decades for greater recognition of their status and role will be at risk. It is too late, obviously, to avoid the reduction in councillors for the term now well underway, but a successful appeal to the Supreme Court of Canada could be an important precedent for protecting municipalities from future actions by predatory provincial premiers.