Toronto’s On Again, Off Again Election To Proceed Notwithstanding Provincial Interference
September 19th, 2018
Shortly after his election in June 2018, Ontario Premier Doug Ford convinced his colleagues in the Ontario Legislature to pass Bill 5, a law reducing the size of Toronto City Council from 47 wards to 25 to match Provincial and Federal ridings. The Toronto municipal election scheduled for October 22, 2018 would proceed with the reduced number of wards.
Premier Ford was formerly a Toronto City Councillor. With the election well underway when Bill 5 was passed, many parties objected to the perceived changing of the rules midway through the election. They further posited that the Premier was motivated by his ill feelings towards his former Toronto City Council colleagues. The Premier said that the changes were necessary to improve the efficiency of a dysfunctional Toronto City Council. Too many Councillors, he said, couldn’t reach decisions in a timely fashion.
Bill 5 was challenged in the Superior Court of Justice, mainly on the basis that it infererred with rights guaranteed under the Canadian Charter of Rights and Freedoms, specifically with fundamental freedoms guaranteed by the Charter:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
In his ruling, the application judge set aside Bill 5 on the basis that by changing Toronto’s ward structure well after candidates had been nominated and had commenced campaigning, the Province violated the s. 2(b) freedom of expression rights of both the candidates and the voters. In his view, changing the ward structure midelection “substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters” and “undermined an otherwise fair and equitable election process”. He also found that by increasing the population size of the wards from an average of 61,000 to an average of 110,000, the Province denied the “voter’s right to cast a vote that can result in effective representation.” The application judge ordered the October 22nd election to proceed with 47 wards.
The Province appealed the decision and sought an expedited stay of the application judge’s decision that reverted the election to 47 wards.
The Court of Appeal disagreed with the application judge and stayed his decision pending a full hearing of the appeal, meaning the Toronto election would proceed with 25 wards and not 47. A unanaimous decision of a panel of three judges held that it was not in the public interest to permit the impending election to proceed with 47 wards on the basis of a “dubious ruling that invalidates legislation duly passed” by the Ontario Legislature.
Using the Canada-wide test for injunctions enunciated by the Supreme Court of Canada decision in RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311, the Court of Appeal required the Province to show that there was a serious issue to be tried; that the Province would suffer irreparable harm if the stay was not granted; and that the balance of convenience favours a stay pending the disposition of the appeal.
The bar for the first part of the test – a serious issue to be tried – is usually a low one. Only clearly deficient appeals will fail at this stage of the analysis on the basis that a stay of a judgment is only temporary. However, where the rights of the parties will be determined by the outcome of the stay motion, a more exacting standard should be used , namely, whether there is a strong likelihood that the appeal will succeed. The Court of Appeal opted to use the more exacting standard on the application for a stay in these circumstances.
On that basis, the Court of Appeal held that the application judge’s decision blurred the demarcation between two distinct provisions of the Charter: the protection of expressive activity in s. 2(b) and the s. 3 guarantee of the democratic rights of citizens to vote and be qualified for office. On the Section 2 analysis, the Court of Appeal held that Bill 5 did not limit or restrict any message the candidates wish to convey to voters for the remainder of the campaign. Nor did it erase messages conveyed earlier. While frustrating for candidates, the Court of Appeal agreed, Bill 5 did not substantially interfere with their freedom of expression. The Court of Appeal held that candidates were and are still free to say what they want to say to the voters. Candidates had no constitutionally guaranteed right to the 47-ward platform.
With respect to the increase in size of wards as limiting voters’ rights to freedom of expression, the Court of Appeal disagreed. There was no such protection for voters in the Charter. Whether wards of 61,000 or 110,000 are required to ensure effective representation is a debatable issue that cannot be determined by reference to the right to freedom of expression. However, the Section 3 guarantees (to vote and be qualified for office) only apply to Federal or Provincial elections, not municipal ones, and had no application in this case.
The Court of Appeal found that the Province had a strong prima facie case on appeal on the “strong likelihood of success” standard. Having reached the decision the judgment under appeal was probably wrongly decided, the Court of Appeal had no doubt that the Province would suffer irreparable harm on the second prong of the RJR-MacDonald test. On the third prong, given the Court of Appeal’s conclusion that Bill 5 was likely not unconstitutional, it had no hesitation in finding that the balance of convenience favours granting a stay.