Ontario Superior Court of Justice Sets Aside Provisions of Legislation Cutting Toronto City Council in Half in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151.

Written by and on September 11, 2018. Posted in Air, noise, odour, Environmental laws

In July 2018, merely one month into his new role as Ontario Premier, Doug Ford announced his intention to reduce the number of Councillors in the City of Toronto by almost 50%.  Bill 5, Better Local Government Act (“Bill 5”), which received Royal Assent on August 14, 2018, reduced the number of seats of Toronto’s City Council from 47 to 25, thereby radically redrawing Toronto’s electoral districts.

The widely publicized controversy concerning Bill 5 stemmed largely from the fact that the legislation was introduced right in the middle of Toronto City Council’s election period, which had begun on May 1, 2018. Shortly after the province announced its intention to introduce Bill 5, the Council for the City of Toronto held a special meeting that culminated in a vote in favour of launching a legal challenge against Bill 5.

Despite the City’s commitment to legal action, its likelihood of success remained far from certain, as section 92(8) of the Constitution Act, 1867 clearly grants the provinces exclusive jurisdiction to legislate in relation to “Municipal Institutions in the Province”. Moreover, previous case law has emphasized the province’s broad power over municipalities, which, unlike the provinces, are mere creatures of statute and lack constitutional status. For example, in its 1997 decision in East York (Borough) v. Ontario (Attorney General), 104 O.A.C. 69, 153 D.L.R. (4th) 299, the Ontario Court of Appeal affirmed the provinces’ broad power to legislate under section 92(8) in relation to the Mike Harris government’s amalgamation of Etobicoke, North York, Scarborough, Toronto and York and the Borough of East York to form the “mega-city” of Toronto. In East York, the Court of Appeal held that there were no Constitutional conventions or norms that required the Province to obtain the consent of the municipalities for the amalgamation.

Toronto’s applications challenging Bill 5 were heard by the Honourable Justice Edward Belobaba at the Superior Court of Justice on August 31, 2018, and the Court’s decision was released on September 10, 2018 in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151. To the surprise of some legal commentators, the Court struck down the impugned provisions of Bill 5, holding that the legislation’s reduction of councillor seats in the middle of an election period was unconstitutional. In the words of Belobaba J., “the enactment of provincial legislation radically changing the number and size of a city’s electoral districts in the middle of the city’s election is without parallel in Canadian history”, and the province’s enactment of the impugned legislation had “clearly crossed the line”.

According to Belobaba J., the impugned provisions of Bill 5 infringed both voters’ and candidates’ constitutional right to freedom of expression as guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms. In its reasoning, the court found the following with respect of the freedom of expression of the candidates:

When Bill 5 took effect on August 14, mid-way through the election campaign, most of the candidates had already produced campaign material such as websites and pamphlets that were expressly tied to the ward in which they were running. A great deal of the candidate’s time and money had been invested within the boundaries of a particular ward when the ward numbers and sizes were suddenly changed

According to the Court, “the candidates’ efforts to convey their political message about the issues in their particular ward were severely frustrated and disrupted” by the legislation, leading some candidates to drop out entirely.

With respect to the infringement of voters’ freedom of expression, the Court held that imposing a 25-ward structure with an average population size of 111,000 impeded voters’ ability to cast a vote that could result in any meaningful or effective representation.

Ontario to invoke Section 33 of the Charter of Rights and Freedoms

On September 10, 2018, just hours after the Superior Court’s decision was released, the office of the premier officially announced its intention reintroduce the Better Local Government Act with the invocation of section 33- the “notwithstanding clause”- of the Charter. Section 33 of the Charter allows provincial and federal governments to enact legislation that is exempt from the Charter for a period of five years. Ontario’s invocation of section 33 would allow Ontario to enact the Better Local Government Act “notwithstanding” its infringement of section 2(b) of the Charter. According to the Ford government, the Better Local Government Act will be preserved in time for the October 22, 2018 municipal election.

Constitutional Implications for Environmental law

The Court’s constitutional analysis in 2018 ONSC 5151 leads one to query how this decision will affect Ontario’s intervention in Saskatchewan’s constitutional challenge of the federal Greenhouse Gas Pollution Pricing Act (the “federal carbon tax”). Does Belobaba J’s holding in 2018 ONSC 5151 reflect a judicial trend towards using the Charter to limit the broad jurisdictional powers of governments? Could the Charter be similarly used to challenge the federal government’s imposition of the carbon tax if the federal government is found to be within its constitutional jurisdiction to legislate such a regime? The Charter represents Canada’s highest law and all other laws must confirm to it. Moreover, questions as to whether the right to a healthy environment needs to be enshrined in the Charter are currently being considered in the legal community. The short and long-term consequences of the Court’s constitutional interpretation are yet to be determined, but will be interesting to behold.