Ontario Court of Appeal grants stay for Bill 5 ruling

By Justin Ling September 19, 201819 September 2018

Ontario Court of Appeal grants stay for Bill 5 ruling

The high-paced legal drama around Doug Ford’s decision to slash the size of Toronto city council mid-election will end, not with a notwithstanding clause, but with a stay.

The Ontario Court of Appeal has ruled to set aside the lower court ruling on the matter.

On July 30, the Ontario legislature gave first reading to Bill 5, which would reduce the number of seats on Toronto city council from 47 to 25, and axe regional municipal bodies elsewhere in the province. The bill received royal assent just over two weeks later.

All this, even though the election period had already begun, under the 47 ward council, on May 1.

Council candidates mounted a constitutional challenge shortly after, arguing that Bill 5 breached their constitutional rights and those of electors.

The Superior Court of Ontario ruled on September 10 that the law was unconstitutional on grounds that it “interfered with the municipal candidate’s freedom of expression” and that the reduction in wards “substantially interfered with the municipal voter’s freedom of expression ... in particular her right to cast a vote that can result in effective representation.”

In setting aside Bill 5, the court threw the entire election into chaos. In response, Ford re-introduced new legislation, Bill 31, this time threatening to invoke the notwithstanding clause — which would be a first in Ontario’s history.

Among constitutional scholars critical of the move, the view was that the province could use the notwithstanding clause, but that it probably shouldn’t.

As the province recalled members for late-night and weekend sittings to get the new legislation passed, it applied to the Court of Appeal for a stay on the lower court decision.

On Wednesday morning, that request was granted.

“An immediate decision is required to permit the Toronto municipal elections to proceed on October 22,” the appeal court wrote. “That decision must be rendered now and, subject to further legislative intervention, our decision will determine whether the election proceeds on the basis of 25 or 47 wards. In these circumstances, greater attention must be paid to the merits of the constitutional claim and … we must ask whether there is a strong likelihood that the appeal will succeed.”

To that end, the panel wrote: “we have concluded that there is a strong likelihood that application judge erred in law and that the Attorney General’s appeal to this court will succeed.”

“That’s a very unusual scenario,” says Mike Pal, professor of law at the University of Ottawa. He says he was “surprised” the court decided to wade so deeply into the actual meat of what could be included in the full appeal. “This is one of the rare cases where you have to take the merits into account,” he says.

“I expected that the panel hearing the merits of the appeal would put forward reasons similar to these, it was far from a foregone conclusion that the panel hearing the stay motion would do so,” says Asher Honickman, a partner at Mathews Abogado. In the end, the court found “that the province would suffer irreparable harm if the stay were not granted.”

It also found that any harm done to the candidates contesting the election who found themselves wrong-footed once the council structure changed — indeed, money was spent, volunteers were recruited, jobs were put on hold — ”doesn’t rise to a constitutional problem,” according to Pal.

Pal says there is a chance the decision could be appealed all the way to the Supreme Court — but that seems unlikely, given the timeline before election day.

Honickman says that, based on today’s ruling, “it is basically a certainty that the court would rule in favour of the province on the merits.”

“I think it is more likely that once the new 25-member Council sets in, they will simply agree to the province's appeal on consent so that both sides can avoid further costly litigation.”

Indeed, the Superior Court ruling turned on the fact that the abrupt nature of Bill 5, introduced mid-election, is what infringed candidates’ constitutional rights, not the reduction of the number of seats itself. The claim that the larger wards would lead to less effective representation is not as time-specific, but was generally seen as a less-convincing argument to begin with. As the province argued, and as the courts have affirmed time and again, municipalities are creatures of the provinces.

The broader impact, legally, says Honickman, is that “there has been no impact.” Assuming Ford does, in fact, withdraw the new legislation, as he has promised to do, “Ontario's 36-year streak of not invoking the notwithstanding clause remains intact.”

Even so, Pal says the political precedent is cause for concern. “It’s that he’s open to using it again in the future,” he says.

He points specifically to the fact that Ontario was willing to use s.33 to overrule s.2(b) of the Charter. That, he contends, is so fundamentally different than using s.33 to protect language aimed at guarding the French language, as Quebec has done. Those situations, he says, “do not affect political accountability in the same way.”

By using it in the context of an ongoing election, there are “big potential consequences,” he says.  Section 33 could, he suggests, be invoked under the guise of a political election in a myriad of worrying, albeit purely hypothetical, ways. And if provincial governments are free to change the structure of the very elections that put them into power, free from the judgment of the courts, surely that raises fundamental problems.

“Not all uses of the notwithstanding clause are created equally,” Pal says. And now that the door is open, it’s hard to say how a future government from any province may take advantage.

Honickman is a bit more optimistic about s. 33’s 15-minutes of fame. “Many Ontarians have learned about this very important provision of our Constitution for the first time — what it means and why it is there,” he says.

“That is the silver lining to the uncertainty and legal chaos that has gripped this province, and especially the City of Toronto, over the last week,” he concludes. “An unintended consequence, perhaps, but a welcome one nonetheless.”


Photo: Some rights reserved by puroticorico

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