How critics plan to challenge Doug Ford's council-cutting bill in court on Friday
City is among those participating in Superior Court hearing to challenge Bill 5
Critics of Premier Doug Ford's legislation to slash Toronto's city council are gearing up for a fight this Friday.
The city is among those taking part in a Superior Court hearing on Aug. 31 to challenge the province's Bill 5, or Better Local Government Act — which slashes the number of council seats in Toronto from the planned 47 wards down to 25 to match federal and provincial ridings.
It's a move Ford and his supporters have touted as a way to reduce "dysfunction" and "political gridlock" at city hall, though others see the changes — in motion just two months before the Oct. 22 election — as an affront to democratic processes.
Who's challenging the legislation?
The first legal challenge came from city council hopeful Rocco Achampong, who applied for an injunction at the Toronto division of Ontario Superior Court in July in hopes of suspending the legislation.
Then on Aug. 20, Toronto city council voted 27-15 to also launch a court challenge. Councillors voted to exhaust all legal avenues, including appealing any rulings, and to seek to postpone the upcoming municipal election if a delay becomes needed to continue the legal fight.
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That same day, Toronto-based law firm Goldblatt Partners announced an additional court challenge on behalf of former Toronto District School Board trustee and current council hopeful Chris Moise, Ish Aderonmu, an elector, and Prabha Khosla, an elector and member of Women Win TO, an organization helping diverse Toronto women enter municipal politics.
The Toronto District School Board has also been granted intervenor status in the city's application, a spokesperson for the board told CBC Toronto on Monday. That means the court is allowing the board to participate in the Friday hearing.
The Board has previously raised concerns about the lack of public consultation, and earlier this month, trustees passed a motion to support the city's consideration of legal action, while not ruling out legal action of their own at a later date.
How are various groups arguing against the council cuts?
The team from Goldblatt Partners intends to argue that the council cuts violate unwritten constitutional principles and the Charter of Rights and Freedoms, according to their court application.
The council cuts limit political speech and restrict political expression "by virtue of their timing, mid-way through the 2018 campaign period," reads the application. The legislation also has an "adverse impact" on women, racialized and LGBT candidates "who are already underrepresented in local government," it continues.
"For me being a gay, black man, addressing some of the inequities at the school board, I've helped to change policy. I was hoping to do the same thing at city hall," said Moise, one of the three applicants. "The current council doesn't reflect the community."
The city's application — which was filed last week — also paints Bill 5 as a potential breach of the Canadian Charter of Rights and Freedoms.
The document notes that, in accordance with the City of Toronto Act of 2006, the city and province agreed that the province would consult with Toronto on "matters of mutual interest, including provincial legislation that will have a significant financial or policy impact on the City and on broad policy matters where the two may have mutual interests."
The application stresses a nearly four-year review process led to the division of the city's 44 wards into the 47 wards — but there was "no prior consultation" with the city before the council cuts were introduced in the legislature.
Could a legal challenge be successful?
Many of those hoping to overturn Bill 5 have expressed optimism at the potential outcome in court, but an outside municipal law specialist believes there's less than a 50/50 chance the challengers will be successful on Friday.
"The province is holding all the constitutional cards over the creation of municipalities and the regulation of municipal election," said Leo Longo, a partner at the law firm Aird & Berlis LLP.
A similar legal challenge was launched after former Premier Mike Harris created the "megacity" of Toronto through amalgamation in 1996 — and it failed, he noted.
"The court found there was no constitutional requirement that the province had to consult with municipalities before it chose to alter their legal status," Longo said. "Because the province — in essence — created the municipalities, the province had the right to dissolve them."
The legal argument with the highest chance of success right now is one which focuses on the timing piece, since the province changed the rules after the "game had started," he said.
"In my view, that is the more interesting one that could catch the court's attention," Longo said.
The court, he noted, may ask provincial lawyers if the timing was "fair and appropriate."