The local level of government was not given any separate recognition or status in the Canadian constitution. Under the BNA Act of 1867 passing laws respecting municipal institutions was listed as one of the powers that provincial governments could exercise, sandwiched between their powers to manage asylums and to license saloons. Municipalities were creatures of the province, limited to whatever specific powers their provincial government saw fit to delegate to them. Under what became known as a “laundry list” approach, the courts held that unless municipalities could point to specific authority for a particular action then they could not undertake it or would risk a legal challenge (almost always successful). This very strict interpretation reflected “Dillon’s Rule,” as set down by John H. Dillon, an Iowa Supreme Court Judge in the 1860s, who viewed municipalities as analogous to business corporations, with both of them limited to the powers expressly granted through their incorporation.
Broader Legislative Authority Reinforced by the Courts
It wasn’t almost the end of the 20th century that provincial governments began to introduce a more positive legislative framework for municipalities. The new approach moved away from Dillon’s Rule and the laundry list approach and instead authorized municipalities to take action on behalf of their residents within broad spheres of jurisdiction. The first major change occurred with the Municipal Government Act in Alberta in 1994 and Ontario followed suit in 2001 with a new Municipal Act authorizing municipalities to exercise natural person powers and governmental powers within 10 general spheres of jurisdiction. Major amendments to the Ontario legislation in 2006 gave all municipalities a blanket power to provide any service or thing considered necessary or desirable for the public. That same year, the City of Toronto received its own separate legislation (City of Toronto Act) not only giving Toronto the new blanket power but also additional revenue raising powers. This increased recognition of municipalities as elected governments authorized to take action on behalf of their citizens was reinforced by a series of court decisions, including by the Supreme Court of Canada. In these decisions, 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.
Ford’s Fiat
Two months after campaigning began for this October’s municipal elections in Ontario, and one day before the deadline for filing to run in that election, new Ontario Premier Doug Ford suddenly announced his plan to cut Toronto City Council in half and to cancel direction election of the regional chairs in four of Ontario’s regional governments. These major initiatives were never discussed during the immediately preceding provincial election campaign, nor was there any apparent consultation with the municipal governments involved or their constituents. The rationale offered for the draconian Toronto proposal was that it would improve the efficiency of council and save money. Much the same erroneous argument was used by a previous Conservative Premier, Mike Harris, in forcing amalgamations on Ontario municipalities. But at least the Harris-led amalgamations – as top-down and arbitrary as they were – followed studies and opportunities for public consultation and response.
Prior Consultation Established by Convention and Legislation
Studies and time for consultation were also evident in all previous reforms involving the governing arrangements in Toronto – from the creation of an upper tier metropolitan government in 1953, through lower tier amalgamations in 1967, a new council composition in 1988, and the merger creating the “Unicity” in 1998. The latter municipality began with a council of 57 members, subsequently reduced to 44. The planned increase in the size of the Toronto council from 44 to 47, in recognition of an increasingly diverse population of 2.7 million, was also based on extensive study.
Moreover, the City of Toronto Act of 2006 is quite explicit concerning the powers of the city council with respect to its governing arrangements. Among the things that section 2 of the Act specifies that the City must be able to do to provide good government is to “determine the appropriate structure for governing the City.” This legislation also commits the provincial government to maintain a respectful relationship with the City that features cooperation and consultation.
Municipal Gains of Recent Decades at Risk
There is no precedent for the action taken by Ford. If he is able to make such an arbitrary and fundamental change in the governing structure of a city of close to three million people long after its local election campaign was underway, the increased municipal autonomy of the past couple decades means nothing. If Ford isn’t just settling scores by trying to punish inner city representatives, if he really believes that a smaller city council would be beneficial, he should be prepared to let this matter be studied and to consult with the affected parties – in accordance with the consultation convention established during more than half a century of reforms affecting Toronto’s governing structures and as specified in the City of Toronto Act. Any changes that arise from these consultations can then be introduced in ample time for the subsequent municipal election (2022). If Ford does not yield on this matter, his assault on municipal autonomy must be challenged in the courts and be rejected there.