Province rams election bill through
One level of government messing around in another level of government’s jurisdiction and operations almost always ends badly. Nonetheless, Ontario has chosen this path to force its Bill 5 through the Legislature. The bill’s two operative parts:
- Cancels region-wide elections for the influential post of Chair of Peel Region. The same cancellation affects York, Niagara and Muskoka regions;
- Imposes a 25-member city council on the City of Toronto, negating a thorough process that chose a 47-ward system for that city.
Bill 5 was time-allocated to truncate debate in the Legislature. It was not referred to a Legislative standing committee to hear outside output. No amendments were sought or were accepted. The government did not campaign on the bill, and its introduction came halfway through the municipal election period.
From time to time, the Province does step into matters of local government. Most recently in Peel Region, it happened when the Dufferin-Peel Catholic District School Board was manifestly unable to resolve serious deficiencies. After months of effort to work with the Board and its trustees, Ontario sent in a supervisor to head the Board. Within a bit more than a year, the Board had been handed back to its trustees for governance. When the Province has historically stepped into local governance, it has been for a strong reason, and to fix something that had visibly gone wrong, and then only when no other option would work.
A federal or provincial Bill becomes law once it has cleared third reading. Bill 5 has passed at third reading. After this, the Governor General (for federal bills) or Lieutenant Governor (provincial bills) must ‘proclaim’ the Bill in the name of the Queen. At this point, the bill is law.
What has never been made clear, however, is how the bill itself will work. This ‘nitty-gritty’ detail comes in the form of regulations which specify how the bill’s provisions will work. What are the regulations that govern Bill 5? Not published as of August 14.
Cities are ‘creatures of the Province.’ This means that the legal basis on which cities operate is dictated by provincial legislation, mostly the Ontario Municipal Act and the Ontario Municipal Elections Act. The City of Toronto has its own specific act: the City of Toronto Act. It is sensible for Ontario’s 400 + municipalities to operate on a common framework, and for each municipality to choose its council in a manner compatible to other provincial towns and cities.
Canadian courts are properly cautious about a challenge to a bill passed (regardless of what you think of the government or its process) by a provincial legislature or by our federal Parliament. As such, the threshold for a court to strike down legislation is a steep one.
But is it possible?
The City of Toronto is considering a challenge. The candidates for the position of Chair in the four affected regions lack the financial resources to do so. Here are some considerations the courts may be asked to weigh:
- Consent of the Governed: Those affected by laws are expected to have a say in what those laws are, and how they work. The Premier never mentioned the measures in Bill 5 while seeking his party’s leadership. The measures in Bill 5 were never mentioned by the government in its election. Affecting municipal elections was not part of the government’s Throne Speech (its legislative agenda). No opportunity to offer input at committee was available. The affected parties were not merely unsupportive, but solidly opposed to the proposals in Bill 5. Will the courts accept an argument that Bill 5 does not have the ‘Consent of the Governed?’
- Arbitrariness: Nowhere else in Canada are municipal ward (or provincial riding) boundaries drawn on the same population basis as federal ridings. Were such a looney idea widespread, the Atlantic provinces would each have about two dozen provincial representatives. Halifax would have a mayor and four city councillors. Montreal, with its urban community of nearly two dozen cities and 1.75 million people, would be governed by a mayor and about 18 councillors. The population size of federal ridings is a one-size that may fit the federal government, but is impractical at every other level. Cities themselves, and not their upper-tier governments, need to be able to choose how many people it takes to operate as effective and responsive organizational entities;
- Unworkability: May a government use its legally-elected majority to redefine how an election proceeds when it is half over, and do so by means unspecified in the legislation? How do candidates switch wards (in Toronto), or wind up campaigns already well underway? How are expenses reconciled and reimbursed?
- Outside Provincial scope: The Province was not asked by any city to undertake this reorganization initiative. Ontario (and the other provinces) may properly undertake to ensure that municipalities function, and elect their representatives, according to the accepted terms of a level playing field. But the Province is indisputably interfering in an independent level of government’s functioning, and doing so in a manner that will cause maximum confusion, and very possibly, injustice.
Perhaps there are other legal considerations that Toronto – or other plaintiffs – may user to challenge the Province.
The precedent created by Bill 5 would allow, for example, the Province to declare that Mississauga would, after 2022, be governed by a mayor and six councillors; Brampton by a mayor and five councillors; and Caledon by a mayor and one councillor. The Province could, as the original author of the various regional acts, arbitrarily dissolve entire regions without consultation, and create megacities modelled on federal riding boundaries. That, in fact, was actually done by the Harris government in the late 1990s. When federal riding boundaries change in the future, would this then cascade into changes in municipal boundaries?
By cancelling the election of the chairs of four Ontario regions (Peel, York, Niagara and Muskoka) while allowing regional chair elections in other regions (Halton, and others), is the Province saying that it alone reserves the right to change the terms of those regional elections as well, or simply to take upon itself the power to appoint all regional chairs? The various acts governing cities and the regions don’t envision this possibility, but don’t preclude or forbid it either.
Bill 5 is both bad legislation, and dangerous legislation.
How Ontario legislation passes
The Ontario Premier, in a Friday morning news conference, declared an intention to introduce legislation that would, if passed, nearly cut in half the number of seats on Toronto city council, and cancel regional chair elections in Peel, York, Niagara and Muskoka; all within 90 days of the 2018 municipal election on October 22, 2018.
Such legislation would open the Ontario Municipal Act; the Ontario Municipal Elections Act; and the City of Toronto Act, and perhaps other acts as well. In other words, it is not a small undertaking.
The earliest that such an act can be introduced to the Legislature (“First Reading”) is Monday July 30, 2018. Presuming the near-certainty that one opposition party tables a “reasoned amendment,” the Speaker will not allow debate on the bill to start the day it is introduced. As well, the government will almost certainly table a “time allocation bill” to truncate the debate time for the bill. However, a time allocation bill is itself debatable, so it will take time to pass the time allocation bill before its provisions can shorten whatever bill that affects the municipal elections.
This likely means that Second Reading of the bill in the Legislature will continue through the second week of August. The government has not said whether the bill will be referred to a Legislative standing committee for consideration, as bills should be. If so, it will require at least a day in committee, with perhaps another day for proposed amendments to be submitted. Then the committee considering the bill must meet for “clause-by-clause” consideration of the various amendments submitted. Only after this may the bill, perhaps amended, go back to the Legislature for “Third Reading.” Third Reading normally takes a day or two of debate. The vote after Third Reading passes the bill, which must then be subsequently “proclaimed” on behalf of the Queen by the Ontario Lieutenant Governor.
That takes the process likely to late in the third week of August, at the earliest, and depends on:
- Absolutely nothing unplanned happening during debate;
- No substantive or procedural delays during debate;
- No court proceedings interrupting or delaying the process of consideration of the bill.
It would not be prudent to assume passage, without opposition or delay, on a debate that opens three or more such substantive provincial acts. In short, stuff happens.
It is impossible to know if anything in a bill that has not yet been written (or introduced) can be challenged in court. Given the absence of any advance consultation; the fact that no municipality asked the Province to affect the 2018 municipal elections; and the inexperience of the new government, the odds of all or part of the proposed (and as yet unseen) act being flawless and sailing through the legislative process may not be strong.
A legal challenge that delays the process of passage of the act, in effect, would neuter the act in the 2018 elections.
In short, unless something definitive successfully happens in sufficient time to cancel the elections for the four regional chairs, they are on. Similarly, unless something definitive is passed in time to change the configuration of Toronto City Council, it too will proceed to the 2018 elections with 47 seats, as is the case now.
The Ford government never mentioned interfering with Ontario municipal elections in its 2018 election campaign. The proposed changes to the structure of Toronto City Council and to the election of regional chairs in Peel, York, Niagara and Muskoka were never mentioned in the government’s Speech from the Throne (i.e. where it sets its agenda for the session of the current Parliament).
Peel Region is an economic and population entity larger than the entire Province of Manitoba! Having one, single elected representative of all its 1.4 million people – the Regional Chair – is actually a good idea. The Province ought to be encouraging this check-and-balance of having an elected representative to work with the regional staff, and not trying to revert to having Peel Regional Council appoint the Chair.
Moving on with life
My former MPP Constituency Office in Meadowvale closed in late June of 2018. We have returned the keys to our landlord. The Legislature has taken back its property. If you are looking at this site to reach the new Member of Provincial Parliament for Mississauga-Streetsville, the Constituency Office address and telephone number may have changed.
My former staff and I have, for the past 15 years, enjoyed the privilege and responsibility of serving our neighbours in Lisgar, Meadowvale and Streetsville. Life continues. We thank the many friends we made during our years of service for their contributions to making our northwest corner of Mississauga a better and stronger community.
I listened to suggestions, and am considering some options during a short breather after the hectic life I lead as the local Member of Provincial Parliament for Lisgar, Meadowvale and Streetsville.
Please do not send e-mail to our former Constituency Office e-mail addresses any longer. My former MPP e-mail address no longer works. I welcome your e-mails and letters. To get the postal address for personal mail to Bob Delaney, please request Bob’s postal address at the e-mail address below.
You can still reach former MPP Bob Delaney by e-mail at firstname.lastname@example.org.