Supreme Court Of Canada Upholds Reduction In Size Of Toronto's City Council

• Published date: 05 October 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele, Gavin Tighe and James R.G. Cook

In Canada's recent federal election, voters demonstrated a passion for democracy and were willing to stand in long line-ups to exercise their right to vote. Candidates seeking office are also passionate about their ability to win elected office. In 2018, this passion wound up in court when Premier Ford's newly elected provincial government amended legislation which reduced the size of Toronto's City Council from 47 to 25 councillors. Although the election was successfully held based on the amended legislation, and 25 councillors were duly elected, the City governed by those same 25 councillors launched a challenge to the Ontario Government's power to enact the legislation which ended up in the Supreme Court of Canada.

On October 1, 2021, in a split 5-4 decision, the Supreme Court of Canada upheld Premier Ford's amended legislation and found that it was constitutionally valid: Toronto (City) v. Ontario (AG), 2021 SCC 34 (CanLII).

Toronto's 2018 City Council election started on May 1, 2018, weeks before a provincial election. Under the then legislation, 47 councillors were to be elected. However, on July 27, 2018, the newly elected provincial government announced that it would be reducing the size of Toronto City Council to 25 elected councillors and eventually passed the Better Local Government Act, 2018 to implement the size reduction. The reduction in the size of City Council led to a constitutional challenge.

At first instance, the Ontario Superior Court of Justice struck down the amendments on the grounds that rights under section 2(b) of the Canadian Charter of Rights and Freedoms were infringed and that the government's action was not reasonably justified in a free and democratic society. The Ontario Court of Appeal, which had granted an interim order that preserved the impact of the amendments, reversed the lower court's ruling and upheld the legislation.

At the Supreme Court of Canada, the appellants sought to overturn the Ontario Court of Appeal's ruling even though by that point Toronto's City Council had functioned for more than two years under the reduced 25 councillor model. The appellants, which included the City itself, insisted that the provincial legislation was unconstitutional and that the enactment unreasonably infringed on the Charter rights of freedom of expression of candidates since it interfered with an election in progress.

For a majority of the Supreme Court, the appeal was not about Charter rights but whether and how Canada's...