Ontario Court of Appeal decision on stay application means a 25-ward election on Oct. 22 is likely

Ontario’s highest court has paved the way for a considerable cut to the size of Toronto’s city council just weeks from a municipal election.

Wednesday morning, a panel of three Court of Appeal justices stayed a lower court’s Sept. 10 ruling that struck down a provincial bill that would reduce the council from 47 to 25 members to align the city’s wards with provincial and federal electoral boundaries.

The decision, which freezes the lower court’s ruling for the time being, pending a formal appeal that’s underway, means city staff will immediately begin preparing for a 25-ward election Oct. 22. Further, it will allow the Progressive Conservative government to avoid invoking the controversial notwithstanding clause of the Constitution to achieve its intended cut to council size.

In its arguments earlier this week, the province’s legal team said the stay was necessary to provide certainty to the city clerk, who is responsible for upholding a fair election.

The timing and circumstances of the election were thrown into chaos when the PCs unexpectedly introduced the council-cutting legislation, Bill 5, after the campaign period had already begun. The city challenged it in Ontario Superior Court, and Judge Edward Belobaba ruled against the province, saying the legislation was unconstitutional because it violated freedom of expression rights for candidates and voters.

The Court of Appeal, however, disagreed with his assessment, calling it a “dubious ruling that invalidates legislation duly passed by the legislature.”

“While the change brought about by Bill 5 is undoubtedly frustrating for candidates who started campaigning in May 2018, we are not persuaded that their frustration amounts to a substantial interference with their freedom of expression,” it continued.

“Candidates had a reasonable expectation that they would be operating under a 47-ward platform … However, neither that platform nor that expectation was constitutionally guaranteed. Unfairness alone does not establish a charter breach.”

The appeal court rejected arguments from those opposed to the stay that the province was responsible for the chaos surrounding the election and thus shouldn’t be granted relief.

“We do not accept the respondents’ submission that, because Ontario exercised its legislative authority to enact Bill 5, it does not have ‘clean hands’ and should not be entitled to the equitable relief of a stay from this court,” the panel wrote.

Ontario Premier Doug Ford, in a media scrum in Washington, D.C., where he is being briefed on NAFTA talks, said he was pleased with the ruling.

“I’m feeling real positive and we’re going to move forward with it,” Ford said.