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The Globe and Mail

Toronto Mayor Rob Ford will stay in office while awaiting appeal

Mayor Rob Ford speaks to media at city hall following a court decision granting him a stay in Toronto, Ontario Wednesday, December 5, 2012. The decision allows him to remain in office while lawyers argue his appeal.

Kevin Van Paassen/The Globe and Mail

Rob Ford will keep his job until at least early next year, putting any determinations about the future of Toronto's mayoralty on ice until well after the holiday season.

A judge's decision on Wednesday to grant a stay in Mr. Ford's case is expected to cool temporarily – but not halt – council's jockeying and speculating about who should replace the mayor or run against him if his appeal fails.

Councillor Doug Ford, the mayor's brother, still favours a by-election in that event, despite the estimated $7-million price tag.

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"There isn't a price you can put on democracy," the councillor said. "We've said we believe in democracy. The people elect our leaders. Judges do not elect our leaders. We are going to bring it to the people if this appeal does not go through."

The decision means that the mayor keeps his job until his appeal is heard and decided.

The appeal hearing is scheduled to begin Jan. 7, with a decision expected weeks later.

Madam Justice Gladys Pardu of the Divisional took only 30 minutes to render her decision, after a brief presentation by the mayor's lawyer Alan Lenczner.

In her decision, Judge Pardu concluded it was "clear" that Mr. Ford would suffer irreparable harm if she denied him a stay.

She also noted the uncertainty that would arise if Mr. Ford was kicked out of office, but later won his appeal.

"If the judgment is not stayed, then a by-election must be called, or council must appoint another person to act as mayor. If these steps are undertaken, but the appeal is allowed, and the appellant restored to his position as mayor, significant uncertainty will result, and needless expenses may be incurred if a by-election is called," she said.

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The unusual speed with which the appeal hearing was scheduled also played a part in Judge Pardu's ruling. "Given the important issues at stake, a stay which was so lengthy as to negate the effect of the application judge's order, should it be upheld on appeal, would be detrimental to the interests of the community. The respondent concedes that this is an appropriate case for a stay pending the appeal, given that the appeal will be heard shortly."

Clayton Ruby, the lawyer for the citizen who brought the case against Mr. Ford, did not contest the stay.

Mr. Ruby addressed the court for only a few minutes, saying his client believed it was in the "public interest" to let Mr. Ford remain in office while his appeal is heard.

Mr. Ford did not attend the hearing at Osgoode Hall. Shortly after the ruling, a relieved Mayor Ford emerged from his office where he had huddled with his brother, Councillor Doug Ford, and advisors, awaiting news of the decision.

"I can't wait for the appeal," he told a crush of reporters. "I'm going to carry on doing what the people elected me to do. They voted for me to be mayor to get this city back on a financial footing, which we have done. I've got a lot of work to do and I am going to keep doing it to the best of my ability."

While most expected the mayor to get his stay, Mr. Ford said he was braced for the ruling to go either way. "You have to always, always be prepared for the worst," he said. "I'm just very glad that I got the stay today and I can't wait for the appeal and I am moving forward and returning calls and meeting with people and running the city just like the people elected me to do."

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Councillor Ford said the court battle has taken its toll. "Stress is an understatement, but we are going to move forward for the people of Toronto. That's who elected us," he said.

Asked if the mayor will change his ways after several controversies that even many of his supporters agree were self-inflicted, he suggested that will happen. "I think everyone changes, everyone matures in their position and I think Rob is maturing in the position of being mayor. And yes, there's things we  have to do a little differently," he said.  "Everyone changes a little bit. You get hit over the head with a sledgehammer – let's call facts facts – and you do things a little differently. "

Legal experts had expected the mayor to win a stay of the decision, especially because Mr. Ruby and the citizen who brought the original conflict-of-interest case against Mr. Ford agreed not to oppose a temporary suspension of the Ontario Superior Court's Nov. 26 ruling.

A little more than a week has passed since Mr. Justice Charles Hackland concluded Mr. Ford violated the Municipal Conflict of Interest Act when he spoke and voted in favour of letting himself off the hook for personally repaying $3,150 in improper donations to his football foundation.

Expulsion from office is the mandatory penalty for breaking the MCIA. Judge Hackland suspended his ruling for 14 days to allow Mr. Ford and the city to deal with the administrative fallout of the stunning decision.

In the meantime, the mayor has vowed to fight his ouster. The stay will let him stay in office until his appeal, which a three-judge panel of the Divisional Court will hear beginning Jan. 7, with a decision expected weeks later.

The mayor's legal team had to satisfy a three-fold test to win a stay of the decision.

Mr. Lenczner had to successfully argue that there is a serious issue to be tried at appeal; that refusing a stay would cause Mr. Ford irreparable harm; and that a balance of convenience and public interest considerations favour putting the punishment on hold.

In a factum filed last week, Mr. Lenczner asserted that Mr. Ford's situation meets every prong of the test. He raised several perceived legal weaknesses in Judge Hackland's ruling, providing hints of the case he will make at appeal. Mr. Lenczner also argued that firing Mr. Ford before the appeal would result in irreparable harm for his client.

"Failing to grant a stay vacates the mayoralty seat, a seat which the moving party/appellant won through the democratic process by more than 90,000 votes. Removing the moving party/appellant as mayor is a loss of position, not compensable by money," he wrote.

He offered much the same argument on the question of public interest considerations.

With the stay granted, Toronto city council's formal business will continue as usual until the appeal decision comes down.

If Mr. Ford wins, he remains mayor. If he loses, council will have to decide whether to call a $7-million by-election or appoint a replacement to serve until the next general election on Oct. 27, 2014.

Councillor Adam Vaughan, a Ford opponent who is considering his own run at the mayoralty, said he agreed with the court's decision today.

"I think this was a wise decision by the judge," he said. "Because there is an automatic appeal, to plunge the city into more chaos, I think, would be unwise by the courts, and I think they made the right call here."

The temporary suspension of the lower court decision means that councillors, including Mr. Vaughan, now have until at least early next year to decide whether to appoint a replacement for Mr. Ford or call a by-election if his appeal is not successful.

They also have more time to weigh their own ambitions for higher office.

"We're all going to have really interesting Christmas parties," Mr. Vaughan said, laughing. "Maybe one of the things the holidays ought to give us is a bit of a holiday from all the speculation."

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