Constitutionality of Reconstituting the City of Toronto

On Oct. 20, 2018, the City of Toronto its 86th municipal election, the largest city in Canada, with the 6th largest government in the country and nearly 8% of the entire country’s population. On July 27, 2018, just a few months before this election, the new Premier of Ontario, Doug Ford, announced that he will reduce the number of city council seats from 44 to 25.

There have been calls supporting and opposing this exact change, years before Premier Ford won the provincial election this year. Other cities around the world have effectively functioned with similar numbers in representation. The question many people are asking is, can he actually do that?

Lord Durham’s pre-Confederation report of 1839 identified the need for municipal institutions to be enshrined in the constitution. A failure to do so would result in improper funding for municipal institutions, and stiffly the ability of people to be properly involved in their local problems.

Instead, the Constitution Act, 1867 established two levels of government under the distribution of legislative powers, with exclusive Legislative Authority provided to the Federal government under s. 91. The exclusive powers of provincial legislatures were established under s. 92, including s. 92(8) providing exclusive responsibility for laws relating to municipal institutions, making local municipal governments subordinate to provincial governments.

Although the Federation of Canadian Municipalities attempted to gain some constitutional recognition during the constitutional negotiations during the 70-80’s, and this proposal was even considered by Prime Minister P. E. Trudeau, approval from the provincial legislatures proved an insurmountable obstacle.

Further provincial power is provided under s. 92(2) to impose direct taxation for provincial purposes, meaning the only authority and revenue available to municipalities under the Constitution Act are those provided to them by provincial legislation.

Reliance on property taxes for more than half of their services is also the reason why municipalities in Ontario have been struggling to make ends meet. Even this source of revenue is by convention alone, and there is no constitutional prohibition of taxation of real property by either head of government.

In reality, the reduction of council seats was originally intended by past conservative Premier Mike Harris, but this goal became politically unfeasible. Like Premier Ford, the Harris government at the time made no reference to municipal restructuring during the election.

The province attempted amalgamation of the municipalities with the passage of Bill 26, The Savings and Restructuring Act, on November 29 1995, and a commission was contemplated to impose new boundaries and structures. Significant opposition to amalgamation resulted in the enactment of Bill 103, The City of Toronto Act, on April 23, 1997. During a non-binding vote on March 3, 1997, over 3/4 of Toronto residents indicated they were against amalgamation, but the province proceeded regardless. 

A constitutional challenge was raised almost immediately in East York (Borough) v. Ontario (Attorney General) by the various municipalities and concerned citizens, on the basis that Bill 103 violated by ss. 2(b), (d), 7, 8 and 15(1) of the Charter, and that the legislature exceeded the exceeded the powers conferred on it by s. 92(8) of the Constitution Act, 1867 due to a failure to consult effectively. At the time of the hearing of this case on July 24, 1997, municipal elections were scheduled for November 10, 1997, a situation remarkably mirroring the current one.

Justice Borins ruled that the claims of Charter infringements were unfounded, as there is nothing in the Charter that provides municipalities constitutional status. The democratic rights indicated under s. 3 of the Constitution Act refer to provincial and federal powers, not municipal ones, and the Supreme Court of Canada has ruled in Haig v. Canada that other aspects of the Act does not apply to municipalities.

He rejected the applicants’ claim that the municipal council of 56 members decreased the ratio of representatives to electors, and would therefore freedom of expression,

The activity which is regulated by the Act is municipal governance, and, in particular the territorial boundaries of the new city, the boundaries of each of the 28 wards from each of which two councillors will be elected, and the composition of the municipal council. The Act does not regulate voting, or the communication of citizens with their elected representatives. Citizens remain free to vote and communicate with their councillors. There is nothing in s. 2(b) that guarantees, or elevates to constitutional status, the number of members on a municipal council relative to the number of electors: Reference re Electoral Boundaries Commission Act (Saskatchewan), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158 at p. 184, 5 C.R.R. (2d) 1 at p. 10. …Thus, it has not been established that either the purpose, or the effect, of the Act infringes, or denies, the freedom of any elector to express himself or herself in an election for the mayor and councillors of the new city.

[emphasis added]

He further indicated that there is no constitutional requirement on the part of government to consult electors prior to fundamentally restructuring Toronto, as this is a valid exercise of powers under s. 92(8). Requiring community consultation would be empowering citizens to exercise their own majoritarian rights through the courts rather than through the legislature. The appropriate means of expressing this discontent was through the democratic process, and not through the courts.

The Ontario Court of Appeal dismissed the appeal,

There is, in our view, no merit in the appellants’ submission that the provincial government exceeded its jurisdiction under s. 92(8) of the Constitution when it promulgated the City of Toronto Act, 1997. The division of powers between federal and provincial governments found in ss. 91 and 92 of the Constitution, allocated responsibility over “municipal institutions” to provincial governments. The appellants argued alternatively that this authority was circumscribed by implicit constitutional conventions (before Borins J.), or by implicit constitutional norms (before us) not to effect change to a municipal institution without its consent.

There is, with respect, no evidence of the existence either of a constitutional norm or of a constitutional convention so restricting provinces. When altering municipal institutions, there are undoubtedly sound political reasons for a provincial government to exercise great care in the process of consultation and, ultimately, of reform. The expressions of public disapproval with the methodology employed prior to the passage of the City of Toronto Act, 1997 confirm this truism. However, courts can only provide remedies for the public’s grievances if those grievances violate legal, as opposed to political proprieties. What is politically controversial is not necessarily constitutionally impermissible.

[emphasis added]

The question is whether the current political controversy over Premier Ford’s changes give rise to novel constitutional questions since amalgamation. Alexandra Flynn notes that since City of Toronto Act was enacted in 2006, different legislative considerations are at play.

This act is unique in the province, providing a broad, permissive legislative framework that supplements the Municipal Act, 2001, with section 1 of the City of Toronto Act providing a governance structure for the city that acknowledges explicitly that consultation between the province and the city is “in the best interests” of both. Changes to wards, including division or dissolution of wards, is covered by s. 128. A special override power exists in s. 4, which allows the City to exercise its powers for the changing or dissolving of wards, or for any changes to the composition of city council.

It would appear that Premier Ford would need to first introduce legislation or amendments before implementing his proposed changes. This is exactly what is expected tomorrow with The Better Local Government Act.

Because of the unique legislative scheme governing Toronto, courts could hold that some deference should be provided to the city for decisions that fall within their legislative scheme and delegated powers. The Court in Nanaimo (City) v. Rascal Trucking Ltd. stated,

35 In light of the conclusion that Nanaimo acted within its jurisdiction in passing the resolutions at issue, it is necessary to consider the standard upon which the courts may review those intra vires municipal decisions. Municipal councillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts.  The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions. The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard.

[emphasis added]

Where this argument may have some traction is in the position that it may not even be possible to reconstitute an election so soon which is already underway. Global News reports,

During a city council meeting on Friday, city staff said there will be logistical challenges in getting everything in order for the Oct. 22 election date.

“We cannot run an election with a nomination day that ends on September 14th and be ready to have an advance vote on October 6th,” Toronto City Clerk Ulli Watkiss told members of council, adding extensive ballot machine testing and ballot printing deadlines won’t make that timeline.

Watkiss said major projects that will need to be done by city staff include developing a communications plan to inform Toronto residents about the changes, working with provincial officials to revise the preliminary voters list, updating all voting technology to process the ward boundaries, reviewing vendor contracts and implementing enhanced training for election workers.

She also cautioned that if staff can’t change all the voting tabulators in time, elections staff may need to count ballots by hand.

What any new challenge to Premier Ford’s plan would have to provide is that there is clear evidence that the new structure will reduce the democratic access to the municipal decision-making process and impact effective representation, something the applicants in the amalgamation challenge were unable to do 20 years ago. Given the constitutional framework this would be challenging, and speculation of Toronto seceding from Ontario by mayoral candidates is nothing more than fantasy.

Justice Borins’ comments two decades ago, also preceding an election that same year, are still most closely on point,

It is not the role of the court to pass on the wisdom of the legislation… The role of the court is to decide whether the Act infringes or denies certain rights or freedoms guaranteed by the Charter, or whether in enacting the legislation the province exceeded the power to legislate in respect to municipal institutions conferred by s. 92(8) of the Constitution Act, 1867.

…In reality, the concerns of the applicants are political concerns which raise the issue of government accountability to the electorate. There is, of course, the traditional way for the electorate to give expression to such concerns. Although the applicants have been very critical of the process adopted by the government in the introduction and passage of the legislation, the court is unable to interfere with the Act absent its failure to adhere to constitutional norms.

I do not believe that I can improve on what was said, almost a century ago, by Chancellor Boyd in Smith v. London (City), (1909), 20 O.L.R. 133 (Div. Ct.), at pp. 160-61:

However, the Legislature, instead of letting the people vote again on the changed by-law, have in effect assumed or declared that no vote is necessary, and (that being so) no Court can change the situation. This legislative action is, no doubt, a violation pro tanto of the principle of local self-control, and is somewhat of a reversion to an older type of paternal or autocratic rule. But, whatever be its character or effect, the investigation is not for the Courts, but for the politician or the elector. The propriety of any interference with these rights of local self-government is a matter of legislative policy and ethics — not of constitutional law.

[emphasis added]

What that means is that the only recourse that discontent citizens may have of these changes is the next provincial election, likely in 2022. The new 25 city councillors in Toronto may have a thing to say between now and then.