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Toronto argues Doug Ford’s council reduction violates ‘constitutional principles’

Toronto's City Hall council chambers is photographed on Monday, August 20, 2018. (Christopher Katsarov/The Globe and Mail)

Christopher Katsarov

Ontario Premier Doug Ford’s move to reduce Toronto’s city council almost in half is “arbitrary and discriminatory” and violates “unwritten constitutional principles of democracy and the rule of law,” lawyers for the city will argue in court on Friday.

In court documents, the city lays out the basis of its legal challenge against Mr. Ford’s Better Local Government Act, which redraws Toronto’s local ward boundaries to reduce the number of city councillors to 25 from 47 – even though this year’s election campaign was already under way. City council voted to take the province to court last week.

The city’s lawyers want the province’s act struck and the city’s 47-ward structure restored for the coming Oct. 22 vote, despite warnings from Toronto’s city clerk last week that reversing Mr. Ford’s changes now could “severely” compromise her ability to properly administer the election as planning for voting stations and the like has already been changed to try to prepare for a 25-ward system.

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Opinion: Toronto is right to fight Doug Ford on cutting city council size

Mr. Ford has said the move would make Toronto city council’s decision-making more efficient and save taxpayers money.

Toronto’s lawyers say Mr. Ford’s council cut reneges on pledges in the City of Toronto Act and in a co-operation agreement with the city to consult it on major policy changes that affect it.

But the city’s central argument is that the changes violate the Constitution.

“The unwritten constitutional principles of democracy and the rule of law, and the principles underlying the right to vote in [Section 3] of the Charter of Rights and Freedoms all limit Ontario’s power ... and do not permit Ontario to interfere with an ongoing democratic election” by changing ward boundaries in a way that does not provide for “effective representation,” the city’s application reads.

The city argues the act also violates the Charter’s guarantee of freedom of expression and that the government’s “treatment of the City and its residents ... is discriminatory and arbitrary.”

John Mascarin, a specialist in municipal law with Toronto law firm Aird & Berlis LLP, said he thinks the city’s arguments have a “minimal chance” of success: “I think they are all good arguable points. But ultimately, I don’t think they are going to win the day.”

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The city also submitted an affidavit from the consultant who oversaw the four-year process that saw the city add three new wards and approve a 47-ward structure for this year’s vote.

Gary Davidson says in his affidavit that Mr. Ford’s 25-ward structure results in an average of 110,000 people a ward, a figure much larger than the 61,000 average under the 47-ward system and three times the size of the average municipal ward in other Ontario cities. The 25-ward plan also fails to account for population growth in the downtown, he says, and will result in declining voter parity across the city.

Former interim city manager Giuliana Carbone argues in an affidavit submitted by city lawyers that the smaller 25-member council will result in negligible cost savings, as councillors will likely need to double their office staff to deal with the workload that comes with up to twice as many constituents.

The Toronto District School Board, whose boundaries for the fall election of its school trustees were also thrown into disarray by the province’s changes, was named an intervenor in the city’s challenge on Monday. In its court submissions, the board argues the provincial government’s move had given it no time to consult with parents, rendering years of public outreach “meaningless.”

The Canadian Taxpayers Federation has also won intervenor status in the case. In its submissions, the lobby group says the core principles of democracy, largely a citizen’s right to run for office and vote, are not being threatened by Mr. Ford’s plan to cut the size of Toronto’s council.

The Ontario government is expected to file its response this week. More detailed written legal arguments from both sides will also be filed ahead of Friday’s hearing, before Ontario Superior Court Justice Edward Belobaba. One lawyer involved in the case, acting for three candidates for council and two residents' associations, expects Justice Belobaba to issue a decision promptly.

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“Everyone got the strong sense from being in court with him that he’s going to be no-nonsense," said Donald Eady of Paliare Roland Rosenberg Rothstein LLP. “He isn’t going to wait four months and issue a lengthy decision after the election.”

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