It's Toronto vs. Ontario as fight over council-slashing bill heads to appeals court

Premier Doug Ford's government will ask three Ontario Court of Appeal judges to stay a judicial ruling that blocked its initial legislation to cut Toronto city council nearly in half on Tuesday — even as it works day and night on a replacement bill.

Last week, Ontario Superior Court Justice Edward Belobaba deemed the Better Local Government Act, which would result in Torontonians electing 25 instead of 47 councillors this October, to be "unconstitutional" and "antithetical to the core principles of our democracy."

At 10 a.m., the government will argue Belobaba has it all wrong and overstepped his power by stopping it. Even if it loses, the Progressive Conservatives are poised to use their majority to push through the Efficient Local Government Act later this week, which includes the constitutional notwithstanding clause to override the concerns Belobaba raised.

But council candidates, citizens and the city, who successfully challenged the act (also known as Bill 5), will suggest the judges dismiss the appeal outright. 

The city clerk will also be in court — not to take sides in the fight, but to spell out exactly how dangerous this drawn-out process is for Toronto's Oct. 22 election.

Here's what each side is saying in their court filings:

Government's appeal hinges on 2 points

The province is seeking an urgent motion to stay Belobaba's decision, warning there will be "irreparable harm" if the city can't proceed with a 25-ward election on Oct. 22.

It says Belobaba's ruling erred because of two main reasons:

• First, the government will argue Bill 5 didn't "substantially interfere with the freedom of expression of candidates or any other person," even though it was introduced just days before the council nomination period ended. The Charter, the government states, ensures people can engage in political expression, but doesn't protect a right to "effective" expression.
• Second, the government will argue while the Charter does ensure the right to effective representation, that only applies at the provincial and federal level — not municipal.

"It is clear that all of these are serious issues to be adjudicated on appeal," the court filing states.

The case to uphold

Those who were elated by Belobaba's decision argue staying it would amount to giving the green light to legislation found to be "constitutionally infirm."

The group, which includes a number of candidates including Rocco Achampong, Chris Moise and Jennifer Hollett and private citizens, uses its appeal filing to lay out the case for keeping the 47-ward system — which was approved by city council following the lengthy ward boundary review process.

In a factum, the group argues Ford has not brought up the flaws Belobaba pointed out in his ruling, including the fact that a 25-ward system would result in some wards that have more than 100,000 people.

"The Premier decried the size, cost, and dysfunction of City Hall, but made no mention of voter parity or effective representation as being objectives of Bill 5," the applicants state.

The group also questions the timing of the appeal.

"Realistically, this court will not be able to entertain, let alone decide this appeal prior to ballots being cast," they state.

Meanwhile, city lawyers will argue that there will be irreparable harm if the province wins, not loses, this case and states the Ford government's actions are "not in the public interest."

What the clerk says

Watkiss, Toronto's city clerk, will be in court but won't take a position on the matter. Instead, her goal is to provide unbiased information about exactly how precarious the Oct. 22 election is at this point.

Last week, she told council unless she gets a firm direction soon it will be "virtually impossible" to conduct a fair election.

An affidavit from Fiona Murray, the deputy city clerk of Election Services, also lays out the complexity that staff are dealing with.

Toronto has more than two million eligible voters (991,754 actually voted in the 2014 election) and about 1,700 places for people to vote. This year, some 18,000 people will be hired to help run the election, all of whom will require training.

Watkiss and Murray had been planning for a 25- or 47-ward election in recent weeks, the court submission says, but that only works to an extent. For example, the clerk has determined that it is simply not feasible to print two separate sets of ballots (the city expects it will need 2.6 million ballots this year).

How much will all of this cost? Toronto's last election cost $8.3 million to run, and Watkiss told councillors last week that a cost for this year's vote will be presented to the next council.