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With a loss, Ford could seek leave to appeal from Supreme Court

Clayton Ruby gives details of a civil lawsuit against Toronto Mayor Rob Ford during a media briefing in the Press Gallery on March 12, 2012.

Peter Power/The Globe and Mail

Mayor Rob Ford's legal options dwindle rapidly should he lose his conflict-of-interest fight Friday.

Most experts in municipal law agree that Mr. Ford could seek leave to appeal from the Supreme Court of Canada. However, persuading the court to hear his case could be an uphill struggle.

The Supreme Court requires two factors to be present before it will grant leave to appeal – a lower-court ruling must contain a potentially serious error in legal reasoning, and the case must raise a matter of national importance.

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"Getting leave to appeal is a huge long shot," said Clayton Ruby, the Toronto lawyer masterminding the legal strategy to unseat Mayor Ford on behalf of a citizen, Paul Magder.

The Supreme Court of Canada typically grants leave in just 70 of the 500 to 700 leave applications annually. It takes six to nine months before a case can be heard. However, Mr. Ruby said the court would probably speed up the process in order to resolve the Ford case.

"The Supreme Court is generally proud of their ability to expedite everything," Mr. Ruby said. "I would say it could be heard within a couple of months."

Toronto lawyer Morris Manning was also skeptical about whether the Supreme Court of Canada would agree to hear an appeal. "They would consider the fact that several judges have looked at the case already," Mr. Manning said.

John Mascarin, a municipal law specialist at Aird Berlis LLP, agreed. "Just because the case has gotten national and international attention, I don't think you can say it is of legal importance," he said.

The likelihood of an appeal request being granted rises if Friday's decision appears likely to create confusion in the conflict-of-interest field, Mr. Mascarin said. "But it would have to be something a bit extraordinary," he added.

As a rule, cases are not considered by the Supreme Court unless they have been decided by a provincial Court of Appeal. However, most experts believe that the wording of the Municipal Conflicts of Interest Act means appeals must be made straight to the Supreme Court.

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Mr. Ruby was adamant that Supreme Court represents the only route left. "The Court of Appeal itself has ruled that you cannot go to the Court of Appeal [in a conflict case]," he said.

Mr. Mascarin cited two recent Ontario Court of Appeal decisions that bolstered Mr. Ruby's conclusion. In one of them, he said, the court realized that it had mistakenly granted leave to appeal in a conflicts case and rescinded it.

If he loses in Divisional Court, Mayor Ford would face the immediate question of whether he can obtain a stay of the decision before being thrown out of office. Mr. Manning said the mayor stands a good chance of procuring one.

"Judges are not blind to the public's point of view," he said. "They don't want to cause city council to have to decide whether to hold a by-election with all the money that is going to cost."

But Mr. Mascarin was less sure. He noted that when Mr. Ford lost his case at trial, his appeal was just weeks away and there was a prevailing sense that it could throw Toronto's city council into chaos were Mr. Ford to immediately lose his job.

"I don't think it would be a slam dunk like it was last time," Mr. Mascarin said. "I think it will be much harder to get a stay this time."

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