The Ontario Court of Appeal is set to rule Wednesday morning whether to grant the provincial government’s request to freeze a lower-court ruling and allow Toronto’s fall municipal election to proceed under Premier Doug Ford’s plan to cut the number of councillors nearly in half.
And, at a daylong hearing on Tuesday, a lawyer for the Ontario Attorney-General said if the three-judge appeal panel grants the province its requested stay order, Mr. Ford would not push ahead with his plan to use the Constitution’s notwithstanding clause to get his way – at least for now.
Robin Basu, the government’s lead lawyer on the case, said a stay that would impose Mr. Ford’s 25-ward map on the Oct. 22 vote would alleviate the confusion Toronto’s city clerk has said threatens the integrity of the election with each passing day.
But his surprise offer to hold off on using the notwithstanding clause, not included in any of the province’s written arguments, was quickly condemned by lawyers for the City of Toronto and candidates for council who have been challenging Mr. Ford’s move. They dismissed the offer as a “threat" and an “affront,” and warned they could appeal any such stay order.
City lawyer Diana Dimmer called it an attempt to avoid “the wrath of citizens across the country” outraged at the Premier’s proposed use of the notwithstanding clause, which allows governments to override provisions of the Charter of Rights and Freedoms. Lawyer Don Eady, acting for a group of council candidates, urged the appeal court to ignore the offer: “The chaos and confusion is of the government’s own creation. It’s not your job, with respect, to save them from themselves.”
The ruling on the stay, expected at 10 a.m., is the latest twist in the tangled battle between the city and Mr. Ford over his move to cut Toronto’s council to 25 members with the municipal election campaign well under way. The drama has prompted protests, condemnation from prominent politicians and calls for a new national discussion about the limited powers of city governments.
The Premier, asked about the issue while attending the International Plowing Match near Chatham-Kent, Ont., declined to comment, as the matter is before the courts.
Mr. Ford’s first attempt at cutting Toronto’s City Council, known as Bill 5, was passed into law on Aug. 14. But last week, Ontario Superior Court Justice Edward Belobaba ruled that Mr. Ford’s intervention in the middle of the city’s election campaign violated the Charter of Rights and Freedoms. Justice Belobaba quashed Bill 5 and ordered Toronto’s election to revert to its previous 47-ward map.
Within hours, that prompted the Premier to bluntly criticize the role of appointed judges, launch an appeal and pledge to reintroduce his legislation using the notwithstanding clause. He convened a midnight session of the Ontario Legislature in the early morning hours of Monday to speed its passage, which is not expected until later this week.
On Tuesday, the Court of Appeal heard arguments from the provincial government and from lawyers for the city and several candidates for council who challenged Mr. Ford’s intervention in the election. The province is seeking a stay that would suspend Justice Belobaba’s ruling, pending the ultimate outcome of its appeal.
Mr. Basu told the packed courtroom that to provide Toronto’s city clerk with certainty as she scrambles to prepare for the fall vote, the Ford government would stand down on its new legislation, known as Bill 31, if it won a stay in the case.
“If this court determines that a stay [is granted that allows the Oct. 22 election to proceed], the government will not bring its Bill 31 forward for a vote at this time,” Mr. Basu told the court, saying the government’s written submissions do not include this commitment because he had only just received instructions on it.
Mr. Basu also noted that the city’s lawyers intend to challenge the government’s use of the notwithstanding clause in Bill 31 itself, further adding to the confusion clouding the vote.
Lawyers for the city and other council candidates argued Tuesday that the province had not provided any evidence to back up its request for a stay, the legal test for which involves showing that a party could suffer “irreparable harm.”
The government is also asking for the court to include in its stay order a provision that would allow two more days for candidates to file their nomination papers. Mr. Ford’s government could pass Bill 31 as early as Thursday, pushing the extended nomination deadline, included in the bill, into the weekend.
With a report from Justin Giovannetti