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Toronto Star

Court to rule Wednesday morning on whether to allow 25-ward Toronto election

Sep 18, 2018 8:00:00 AM

city hall city province in court again this morning in council cut fight 18 09 2018 toronto election news thestar dam content  https:

A court decision on whether Toronto election preparations will continue with 47 wards or return to a smaller 25-ward scenario is set to be released Wednesday at 10 a.m.

But the effects of that decision may be fleeting — less than 48 hours — if the province plows ahead with plans to introduce new legislation that would enforce a cut to the size of city council.

Even then, the legal challenges won’t be over.

A panel of three Court of Appeal judges — Associate Chief Justice Alexandra Hoy, Justice Robert Sharpe and Justice Gary Trotter — heard arguments Tuesday at Osgoode Hall on whether they should put an earlier court ruling on hold and order the city to continue preparing an election with 25 wards.

Because of tight timelines leading up to the fast-approaching election on Oct. 22 and the expected legal challenges to the province’s new legislation, the Court of Appeal decision on the stay could permanently establish the ward structure for the election, making it a milestone in the ongoing council cut saga.

The hearing Tuesday, which again pitted the province and city’s legal teams against one another, began with an unexpected statement from Premier Doug Ford’s government. It came from provincial lawyer Robin Basu, who said he was given instructions to say newly-introduced legislation, Bill 31, would not be brought to a vote at Queen’s Park if the province got its way in court.

That was a troubling position for the province to take, city lawyer Diana Dimmer argued.

“It’s almost in the nature of a threat — if everybody doesn’t back off the province will continue with this chaos,” she said, adding — “the chaos that they’re responsible for.”

The hearing centred on whether the judges should grant a “stay” of a Sept. 10 decision from Superior Court Justice Edward Belobaba that deemed the province’s previous legislation, Bill 5, was unconstitutional.

Ford launched a double-pronged response after Bill 5 was struck down — an appeal in court and the introduction of the new Bill 31.

Before the appeal is heard, the province argued a stay should be granted, which would essentially allow Bill 5 to continue to be in force — meaning the notwithstanding clause would not need to be used — and the law of the land to still be a 25-ward election for Toronto.

Bill 31 is essentially a copy of Bill 5 with one important difference: Ford’s government took the unprecedented step of invoking the notwithstanding clause which would override many charter rights and insulate the new bill from certain legal challenges going forward.

Donald Eady, whose firm Paliare Roland is representing several candidates and community groups that intervened in the earlier court case, argued the onus is on the province to prove the stay is necessary and said on Tuesday they failed to do that.

“They didn’t provide any evidence . . . as to the sorts of things that a court would normally require to grant the stay,” Eady said outside the courthouse. “Really, I think what they did was they held the court hostage — either you grant the stay or we’re going to bring in Bill 31; if you grant the stay then we won’t. We’ll see if the court buys that.”

The province argued Justice Belobaba erred in several ways in his decision and said not allowing the stay would cause “irreparable harm.”

Basu argued there is “only one path” forward for the clerk to have any certainty about which election to hold and that is allowing the stay and putting Bill 31 on the back burner.

In blistering remarks, Dimmer said the province has failed to make the case that it is acting in the public interest.

“The province hasn’t come forward with satisfactory evidence to justify what they’ve done,” she said. “The residents of Toronto deserve better.”

Howard Goldblatt, whose firm is representing a candidate, volunteer and community group, called the province’s last-minute submission on Tuesday an “affront.”

“The public interest is in protecting the integrity of the process,” Goldblatt said. That, he said, should prevail over “one government’s right to seek to enforce legislation which has been deemed to be unconstitutional.”

At the International Plowing Match west of Chatham, Ford was taking a wait-and-see approach to the decision on the stay request.

“Let’s see what the courts decide,” he told reporters. “I don’t want to jump ahead of things. We thought we were going to win last time, and we didn’t.”

The timelines in the ongoing saga are incredibly tight with the fast-approaching election.

The province could ultimately lose the appeal it has launched of Belobaba’s decision, but Basu and his team are arguing that hearing should not be held until after the Oct. 22 election to allow time for lawyers to prepare.

Bill 31, if it goes forward for a vote at Queen’s Park, is expected to pass Thursday following rare weekend and midnight sessions of the legislature.

Last week, council instructed the city’s legal team to challenge Bill 31 in court if it becomes law.

Winning the stay and not proceeding with the bill would allow Ford to avoid ongoing condemnation from protesters, legal experts and politicians of all stripes for his use of the notwithstanding clause.

The city’s ward boundaries have been a contentious issue for several years.

Council, which is currently made up of 44 councillors and a mayor, hired independent consultants to study ward boundaries in 2014. The problem then, as it is now, is that rapid growth in some parts of the city have created imbalanced ward populations and skewed the weight of votes. Council approved the recommended 47-ward structure in 2016. That decision survived earlier challenges at a provincial tribunal and later in divisional court.

Ford introduced Bill 5 on July 27 after his party came to power in a June election without warning or consultation. By then, the election campaign had already been underway for three months.

The city and others then successfully challenged that legislation in Superior Court.

If the city and the other legal teams opposing the province lose the stay request Wednesday, they could appeal that decision to the Supreme Court of Canada. It’s not clear if the court would consider the case or how quickly it could be heard.

With files from Rob Ferguson

Jennifer Pagliaro is a Toronto-based reporter covering city politics. Follow her on Twitter: @jpags

Is Toronto council inefficient? Maybe not compared to other levels of government

Sep 18, 2018 1:21:50 PM

city council is toronto council inefficient maybe not compared to other levels of government 13 09 2018 toronto election news thestar dam content  https:

Soon after Toronto council passed a construction dust bylaw and dog tag pilot project, the provincial government considered 14 bills about zebra mussels.

The zebra mussel bills account for about half the legislation considered in the first session under the Progressive Conservative majority government that began July 11.

The NDP’s Gilles Bisson introduced the zebra mussel bills, naming almost every lake and waterway in Ontario as needing to be investigated to determine the extent of the problem, to try and stall Premier Doug Ford’s Bill 5 legislation in August that proposed cutting the number of Toronto wards to 25 from 47.

Despite the apparent inefficiency of his own legislature, Ford has stuck to the assertion that cutting the size of Toronto’s city council mid-election is necessary to ensure the city can get more done faster. It’s a justification Ford used when invoking the notwithstanding clause to override a judge’s ruling that the unexpected ward cuts were unconstitutional, and when holding a midnight session Monday to ram through revised ward-cutting legislation, Bill 31.

The Star took a look at what council was able to achieve in the past two years with 44 councillors, and how that compares to another major Canadian city, and the provincial and federal governments.

Toronto council

From Sept. 2016 to Aug. 2018 there were:

  • 56 days of regular council meetings

  • 3,565 items approved

  • 64 items approved per meeting day on average

These numbers from the City of Toronto don’t include decisions made by the four community councils on items such as fence bylaw exemptions and appointments to local boards and business improvement areas.

Items city council considers range in their impact. One day councillors could be voting on relatively mundane items like adjusting street parking rules, permitting pedestrian crosswalks, or protecting heritage properties.

Next, they could be debating items with broad implications, such as the future of the Gardiner Expressway or how best to expand transit.

Read more:

Province says Bill 31 vote won’t go forward if stay is granted as council cut court fight continues

Philip Cross | Opinion: Is Toronto better off with 25 councillors? Yes

Tories’ Toronto council bill clears hurdle after lively all-night debate

Vancouver council

From Sept. 2016 to Aug. 2018 there were:

  • 32 days of regular council meetings

  • 561 items approved

  • 18 items approved per meeting day on average

Vancouver, with a population of about 631,000, has 10 councillors. Each councillor represents on average roughly 63,000 residents, similar to Toronto’s current 44 councillors who represent more than 62,000 residents. In a 25-ward system, Toronto councillors would be responsible for more than 109,000 residents on average.

The figures come from the City of Vancouver and Statistics Canada’s 2016 census.

Queen’s Park legislature

From Sept. 2016 under former Liberal premier Kathleen Wynne to Aug. 2018 under PC Premier Doug Ford there were:

  • 193 days of sessions

  • 306 bills carried

  • 1.6 items carried per session day on average

Not all of the 306 bills were passed into law, but were at the very least successfully introduced into the legislature for further debate. At Queen’s Park, bills have to be carried, or approved, through three readings, the second and third of which include debate. If the majority of MPPs vote in favour of the bill after the third reading and debate, it is presented to the lieutenant-governor for royal assent.

Many of the 306 bills did receive royal assent, while others were only read once or twice, or deferred to a committee. These numbers come from to the Legislative Assembly of Ontario, and do not include private members’ bills.

With a population of 13.6 million, the province’s laws in theory impact more people than bylaws passed by the city with a population of 2.8 million. For example this summer, an MPP successfully introduced a bill to allow municipalities to ban the sale of handgun ammunition, and the legislature carried a bill through its second reading to end the cap and trade program.

On the other hand, there are the zebra mussel bills, and another bill intended to require organizations to securely attach movable soccer nets to the ground.

As a comparison, the Star also looked at the efficiency of the provincial government when the PCs last held a majority, under former premier Mike Harris. During his first term in office, from September 1995 to May 1999, there were:

  • 342 days of sessions

  • 377 bills carried

  • 1.1 items carried per session day on average

House of Commons

Since Prime Minister Justin Trudeau was elected in 2015 there were:

  • 324 days worth of House sessions

  • 64 bills passed by the House

  • 0.2 items approved per session day on average

Some of the bills passed by the House are currently at the Senate for consideration, or have been passed into law. Bills have to go through three readings before they go to the Senate for final approval. These numbers were provided by a House of Commons spokesperson.

Trudeau’s Liberals operate at a slower pace than when the Conservatives were in power, with the current government passing half the number of bills in its first two years as the government under former prime minister Stephen Harper.

These often sweeping laws, such as amending the Criminal Code to legalize marijuana, take longer to draft, debate and get approved than many provincial laws, or city bylaws.

Trudeau’s government has also passed less complicated bills to do things like respect National Sickle Cell Awareness Day and to recognize Charlottetown, P.E.I., as the birthplace of confederation.

Correction — Sept. 18, 2018: This article was edited from a previous version that mistakenly said Vancouver has 10 councillors representing 10 wards. In fact, the councillors are elected at large.

Samantha Beattie is a city hall reporter based in Toronto. Follow her on Twitter: @samantha_kb

A look at what might happen next in the battle over the cuts to Toronto council

Sep 18, 2018 6:11:04 PM

court of appeal a look at what might happen next in the battle over the cuts to toronto council 18 09 2018 toronto election news thestar dam content  https:

Last week, Superior Court Justice Edward Belobaba ruled that the province’s Bill 5 — which cut Toronto’s wards to 25 from 47 — was unconstitutional, and that the Oct. 22 municipal election should proceed with the original 47-ward system.

The province turned to Ontario’s highest court, the Court of Appeal, on Tuesday asking a panel of three judges for stay of Belobaba’s ruling. A stay, if granted, essentially means that Belobaba’s ruling would not take effect pending the outcome of the province’s appeal.

The judges will return with their decision on the stay at 10 a.m. Wednesday.

Read more:

Province says Bill 31 vote won’t go forward if stay is granted as council cut court fight continues

Will there be 25 or 47 wards? Toronto city clerk at the centre of electoral storm

The cost of fighting Ford? Good question

In the meantime, the government has also introduced in the legislature Bill 31, which would allow the election to take place with 25 wards, but which overrides the rights that Belobaba said were infringed in Bill 5. That bill has not yet been passed.

City of Toronto clerk Ulli Watkiss has intervener status at the stay hearing, but takes no position on the outcome.

What happens if the province is granted a stay of Belobaba’s ruling at the Court of Appeal?

Bill 5, with its 25-ward structure, will stand, and the clerk will be expected to hold an election on Oct. 22 accordingly. The province’s lawyer said in court that if the stay is granted, it will not proceed with Bill 31.

The question then becomes when will the province’s appeal of Bill 5, which could overturn Belobaba’s ruling, be heard?

The province has argued it would be virtually impossible for an appeal to be heard before the Oct. 22 municipal election.

It has said in its factum with the Court of Appeal that it would agree to an expedited appeal hearing, as early as the first week of November, before the new council is sworn in.

From the province’s point of view, if the appeal is heard and allowed, the province argues that nothing further needs to be done, as the 25-ward election will have already happened.

If the appeal is dismissed, the province argues the court should give the legislature time to respond to the ruling through legislation, but says the court should not order that a 47-ward election be held. The province argues that Belobaba’s order for a 47-ward election “was an inappropriate exercise of the remedial jurisdiction of the court.”

It would also be open to the province to seek leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada.

From the city’s point of view, if the Court of Appeal grants the province’s request for a stay, the city could ask the Supreme Court for permission to hear its argument that the stay be lifted before the election.

Alternatively, if the stay remains in place through the Oct. 22 election and the province wins its appeal, the city could ask the Supreme Court to hear its argument to overturn it.

Current councillors’ term of office ends at midnight Nov. 30. If there has been no election by that point, the province can step in and appoint councillors, according to the city’s lawyer.

What happens if the province is not granted a stay of Belobaba’s ruling?

The province has said it will move to pass Bill 31, which creates a 25-ward municipal election.

The clerk has said she will continue to prepare for both 25- and 47-ward elections until Bill 31 passes. This is because Belobaba’s ruling, ordering a 47-ward election, will remain in effect until Bill 31 passes.

Should Bill 31 pass, that will establish a 25-ward election. But it remains unclear whether that will take place on the Oct. 22 municipal election date, as it could be open to challengers including the city to ask a court for an injunction suspending Bill 31, as the province acknowledges in its factum with the Court of Appeal.

The city has said it will mount a legal challenge to Bill 31 should it pass.

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

Samantha Beattie is a city hall reporter based in Toronto. Follow her on Twitter: @samantha_kb

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