Province flexes its muscle by slashing Toronto City Council seats | John Mascarin and Monica Ciriello
Wednesday, August 01, 2018 @ 11:05 AM | By John Mascarin and Monica Ciriello
A bombshell was dropped on the eve of municipal nomination day: Toronto City Council would be slashed from 47 members to 25 — not for future elections but for the upcoming election in 2018. Then on nomination day newly elected Premier Doug Ford called Toronto’s council “the most dysfunctional political arena in the country” and announced that his government would introduce a series of reforms to alter the structure of local government in Toronto.
The
Better Local Government Act, 2018 was introduced on July 30, 2018, to amend the
City of Toronto Act,
2006 and the
Municipal Elections Act, 1996 to reduce the number of council members and wards in Toronto to align with the federal and provincial electoral boundaries. This announcement was neither specifically mentioned during the provincial election campaign nor in the Progressive Conservative Party platform.
Provincial constitutional authority
The premier’s announcement left many asking how the province could step in and fundamentally change municipal governance. However, it is clear that the province has the authority to do so under s. 92(8) of the
Constitution Act, 1867. It is well known that municipalities are merely creatures of provincial statute. Constitutionally, the province has the power and jurisdiction to do precisely what it intends to.
Previous provincial intrusion
There is a precedent. Twenty years ago the provincial government enacted the
City of Toronto Act, 1997 that involuntarily amalgamated the six local municipalities within Metropolitan Toronto to create the mega-city of Toronto (mandating a mayor and 44 ward councillors). The provincial government of the day proceeded with the amalgamation despite a referendum and vehement public opposition to it.
The constitutional validity of the
City of Toronto Act, 1997 was unsuccessfully challenged in
East York (Borough) v. Ontario (Attorney General) at both the General Division and the Court of Appeal. Both times, the courts upheld the constitutional power of the province to amend municipal structures and functions without their consent,and reinforced that the province has a very broad authority to enact legislation that affects municipal institutions.
Does a smaller council equal cost savings?
Ford has proffered that fewer councillors will save money and increase much needed efficiency in the City of Toronto. There is an unsubstantiated claim that $25 million in cost efficiencies will result from the decrease in elected representatives.
Despite the evidence, the province knows best
The City of Toronto recently underwent a two-year ward boundary review. An independent consultant conducted extensive public consultation. City staff fully reviewed the work and put forward their own reports and professional advice. The review was amply debated and discussed at various committee and council meetings. New ward boundaries and an increase in the number of wards from 44 to 47 were approved by City Council. An appeal was considered by the former Ontario Municipal Board, which upheld the City Council decision. A further appeal was dismissed by the Ontario Divisional Court.
What has the province brought forward? No studies, no reports, no consultation, only the aforementioned unsupported claim that cost efficiencies of $25 million will result and that provincial and federal riding boundaries already exist. The lack of thoughtful consideration and study is alarming.
Lack of statutorily mandated consultation
In addition, the province does not appear to have abided by its commitment under s. 1 of the
City of Toronto Act, 2006 that it work together with the City of Toronto with “mutual respect, consultation and cooperation.” All three lofty attributes appear to be missing in action.
Effective representation
At present, local council representation by population in Toronto is comparable to other larger municipalities in Canada, including Montreal, Calgary and Vancouver. Reducing the size of elected local representatives by nearly half will eradicate the principle of fairness and effective representation. The Supreme Court of Canada held in
Reference Re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, that the right to vote in s. 3 of the
Canadian Charter of Rights and Freedoms includes “effective representation.”
Timing
The formal announcement was made
on nomination day and Bill 5 was introduced
after the close of nominations. How fair is this to people who had put aside other worthwhile pursuits to study the playing field, file nomination papers, mobilize their supporters, fundraise for their campaigns and, in some cases, take a leave of absence to do all this? Furthermore, the truncated timeline jeopardizes the already enormous burden on city election staff to ensure that a fair, effective and secure election takes place.
Referendum
Having probably received advice that its legal options to challenge the
Better Local Government Act, 2018 were limited, Toronto City Council voted in favour of an emergency motion requesting that the province conduct a binding referendum on the legislation before proceeding with it. An ineffectual response if there ever was one.
The surprising and rather untimely move by the premier has stunned Toronto City Council and its electorate. If anything, the
Better Local Government Act, 2018 manifests a clear demonstration of the broad authority the province has over its municipalities. Isn’t it ironic that the former unsuccessful mayoral candidate now holds more power over the City of Toronto than he would have if he had been elected as its head of council in 2014?
John Mascarin is a partner and Monica Ciriello is an associate with Aird & Berlis LLP in Toronto.
