Law Times

Law Times • sepTember 24, 2018 Page 3 www.lawtimesnews.com Legal battle culminates in stay Fight not over on city council cuts BY ANITA BALAKRISHNAN Law Times T oronto city council is on track for a 25-ward elec- tion on Oct. 22, after a court decision granted the province of Ontario's mo- tion to stay an earlier decision over the constitutional validity of a bill that would cut the size of city council. The province successfully ar- gued last week that the Ontario Court of Appeal should allow the 25-ward election described in Bill 5 to move forward and should set aside Justice Edward Belobaba's decision. Belobaba's decision quashed Bill 5, the province's initial ef- fort to cut Toronto's city council down from 47 wards. In the Sept. 10 decision, City of Toronto et al v. Ontario (At- torney General), 2018 ONSC 5151, Belobaba said the prov- ince's approach to cutting city council was unconstitutional and violated a Charter-protected right to freedom of expression, a win for the city. The City of Toronto and gov- ernment of Ontario then faced a fresh court battle last week on the issue before a panel of judges at the Court of Appeal, which included Justice Alexandra Hoy, associate chief justice of the Court of Appeal for Ontario, and justices Robert Sharpe and Gary Trotter. But the Court of Appeal's ruling was a win for the province, since Belobaba's decision will be set aside until after the election, with Bill 5 left in place. Now that the stay is in place, the parties will discuss how to conduct the appeal on the merits of the earlier decision by Beloba- ba, says Donald Eady, a partner at Paliare Roland Rosenberg Roth- stein Barristers LLP, who repre- sented some interveners, includ- ing city council candidates. Eady says lawyers are prepar- ing for what's next in terms of filing deadlines and scheduling. "We were disappointed by the decision, but it's a decision of the Court of Appeal that we all have to respect," Eady says. The province's appeal of Be- lobaba's decision — which could overturn the Charter issues raised by Belobaba and undo the precedent of his decision — con- tinues to move forward. At the Court of Appeal hear- ing Sept. 18, lawyer Diana Dim- mer, representing the City of To- ronto, argued that the onus was on the province to provide evi- dence to support the request for a stay and for cutting city council. "The province hasn't come forward with satisfactory evi- dence to justify what they've done," Dimmer said at the hear- ing. "It's their legislation. Why can't they come forward with evidence to justify it? Why is that so hard? . . . The Toronto ward boundary review was not a secret. It started in 2013. It start- ed when Rob Ford was mayor. Doug Ford was a councillor." Howard Goldblatt, a Toronto lawyer at Goldblatt Partners LLP, who also represented ap- plicant members of Women Win TO, argued at the hearing against the province's request for the stay, saying that electoral strategy is part of candidates' ex- pressive right. "We are talking about funda- mentally upending and funda- mentally altering the electoral process," Goldblatt said. "Any child on a playground will tell you that changing the rules in the middle of the game is unfair, [but] that doesn't mean it's constitutionally wrong to do so. But I think that, [with] all due respect, you have to take a look at what the platform is in context." Hoy and Sharpe questioned Goldblatt as to whether the gov- ernment's interference in the election — even if deemed unfair or disruptive to electoral strat- egy — rose to the level of being unconstitutional or prohibiting freedom of expression. Ultimately, they sided with the province. "The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional. On that crucial question, we have concluded that there is a strong likelihood that application judge erred in law and that the At- torney General's appeal to this court will succeed," the judges wrote in the decision, granting a victory to the province. "It is not in the public interest to permit the impending elec- tion to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the Legislature." In the decision granting the stay, the judges wrote that it does not follow that the Charter is vio- lated by "government measures which do not prevent candidates from attempting to persuade vot- ers, but have the effect of making those attempts less effective." "The decision of the Legis- lature to change it during the campaign was unexpected and perhaps alarming. But candi- dates have no constitutionally guaranteed right to the 47-ward platform, and Bill 5 does not deprive them of their constitu- tional right to say whatever they want to say about civic issues," the judges wrote. The judges also cited Be- lobaba's decision that the prov- ince's Bill 5 violated freedom of expression protections under s. 2(b) of the Charter. "While rights can overlap and a limit on the scope of one right should not be used to narrow the scope of another right, it does not follow that doctrines per- taining to s. 3 can be imported to expand the reach of s. 2(b)," the Court of Appeal judges wrote. At the hearing at Osgoode Hall in Toronto, Crown lawyer Robin Basu offered several sce- narios of outcomes of the court motion. Basu argued that if the court did not grant a stay of Be- lobaba's decision, the city clerk would face too much uncertain- ty amid challenges of Bill 31 and Bill 5. He added that the Crown had no meaningful opportunity to respond to expert evidence or the "lightning rod" issues of constitutionality amid an un- sustainable schedule. Belobaba overshot the rem- edy needed to address the issues of representation in the election, Basu said, and said the province could provide policy solutions such as a city hotline, compensa- tion for campaign funds, more resources or even appointing two representatives per ward. He noted that companies com- plain "all the time" about wasted spending when the law changes but that a right to free speech doesn't necessarily protect against speech becoming less worthwhile or effective. Basu also said in court that the province may withdraw Bill 31 — which was set for second reading in the legislature on Thursday and would enforce the 25-ward election by invoking the notwithstanding clause — if the court agreed to stay the Sept. 10 decision that nixed Bill 5. Bill 31 would have had the same effect as Bill 5, cutting the number of Toronto city coun- cil wards to 25, down from 47 wards. But Bill 31 invoked the rarely used notwithstanding clause in s. 33 of the Canadian Charter of Rights and Freedoms to override eligible Charter protections. Lawyers arguing against the province's motion for a stay were critical of Basu's revelation about the withdrawal of Bill 31. Gold- blatt said it was an "affront" to raise the issue of Bill 31 and the notwithstanding clause before the court. Eady says Basu's comments about Bill 31 were "shocking" and "arrogant." The judges wrote in the Court of Appeal decision on the stay that the proposed with- drawal of Bill 31 played no role in the court's outcome. "Short of a Charter breach, the city is the legislature's crea- ture and it has the authority to remove or change the delegation at its pleasure, and there's nothing wrong with that," Basu said. LT NEWS The Tallest Poppy OCTOBER 9 TH 2018 5030/50-*7&8&#*/"3 +PJOVTBTXFCSJOHUPHFUIFSMFBEJOHFYQFSUTUPEJTDVTTUIFTVSWFZSFTVMUT JOEFQUIBOETUBSUUIFDPOWFSTBUJPOPOIPXUPTPMWFUIJTJTTVF Register today at www.hrreporter.com/tallest-poppy-event Untitled-6 1 2018-09-19 12:32 PM Howard Goldblatt says a move by the prov- ince to cut the size of Toronto's city council meant 'fundamentally upending and fun- damentally altering the electoral process.' CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online The province hasn't come forward with satisfactory evidence to justify what they've done. Diana Dimmer

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