The fate of how Toronto’s 2018 election will be run rests in the hands of Superior Court Justice Katherine Swinton.
On Friday, in a sunlit courtroom on the second floor of Osgoode Hall just steps away from city hall, the judge heard arguments about whether the court should consider an appeal of the city’s new ward boundary structure.
In what may be an unprecedented move, the case contesting a city council decision, which was confirmed by a provincial tribunal, was brought by a sitting city councillor and a local resident.
A decision will be given at a later date.
Swinton’s judgment will be pivotal to how the municipal election on Oct. 22 will be run.
But there are pressing timelines. The nomination period for candidates to sign up and run for a council seat opens May 1 — just two months from now.
The city approved a 47-ward structure recommended by independent consultants in 2016, which would increase the number of councillors by three. That decision was affirmed by the Ontario Municipal Board, a provincial tribunal that has the final say in land-use disputes, in December. That came just before a deadline to have those ward boundaries take effect for the 2018 election.
There are now two issues that have been raised in court: Firstly, whether the court should hear an appeal of the OMB decision, and secondly, how the 2018 election should be run.
The legal team for Councillor Justin Di Ciano, who represents Ward 5 (Etobicoke Lakeshore) and Tony Natale, a real estate broker who lives in the Davenport area, argued Friday the OMB erred in its decision.
An appeal can only be heard on the basis that there has been a specific error in law.
The city’s lawyers argued that was not the case and that leave to appeal should not be granted by the court. They also argued the OMB’s decision was not appealable to the court at all.
Lawyer Bruce Engell, representing Di Ciano and Natale, also argued that the city failed to pass a bylaw confirming the number of councillors on council, which he says creates a “legal vacuum” where 47 wards could be in place but only 44 councillors elected. Toronto council is currently made up of 44 councillors and the mayor.
City lawyer Glenn Chu responded saying a bylaw confirming one councillor be elected per ward has already been passed. The city has asked the court to confirm how the election should be run: With 47 ward seats up for grabs.
None of those issues have been decided.
Di Ciano and Natale argue that a 25-ward structure, which follows federal electoral districts, is superior to the council-approved 47-ward structure.
The OMB earlier agreed with the city’s position that there were no “clear and compelling reasons” to overturn the council-approved 47-ward option.
Those arguments were rehashed in court on Friday.
“There’s no reason to doubt its correctness or reasonableness,” city lawyer Brendan O’Callaghan said of the OMB’s decision.
The 47-ward structure would see the area where Di Ciano’s family home is located cut out of the ward he currently represents. On Friday, he said that did not factor into his decision to appeal the decision. He said he believes the 47-ward option was based on a flawed methodology.
A candidate does not have to live in the ward they wish to represent, they only have to be a resident of the city. Di Ciano won with 54 per cent of the vote in 2014.
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