Province intends to argue municipalities are 'creatures of the legislature' amid council cuts legal battle

Premier Doug Ford's provincial government intends to defend its controversial Toronto city council cuts by arguing municipalities are simply "creatures of the legislature," according to new court documents.

On Wednesday, the Attorney General's office filed its factum for Friday's Superior Court hearing, including a response to the city's legal challenge which paints the province's Bill 5 as a potential breach of the Canadian Charter of Rights and Freedoms.

• How critics plan to challenge Doug Ford's council-cutting bill in court on Friday

In response, the province's factum states there are no Charter breaches because a reduced number of wards and council seats "does not prevent anyone from running, campaigning or voting" in the October election.

There is "no merit" to any of the challengers' claims over a lack of consultation from the province, because the legislature "does not owe a duty of procedural fairness or to consult," the factum reads.

"Municipalities are creatures of the Legislature which is free to delegate power to them, and to amend or withdraw the delegation," it continues.

As for concerns about the changes' impact on women and minority candidates, the factum argues that there is no evidence that Bill 5, or its timing, has any adverse effect — and stresses that other factors not tied to the legislation were raised as barriers, such as "incumbency, the lack of term limits, socio-economic conditions, and the lack of political parties at the municipal level."

"Bill 5 only means that the goal of winning an election under the 47-ward model is no longer legally available," the factum states.

Ford has called the planned cuts a cost-saving measure and a way to fix the "dysfunctional" nature of Toronto city council.

A spokesperson for the Attorney General's office said the Ministry can't comment further because "the matter is before the courts."

'No prior consultation' with city

In an earlier filing, the city's lawyers argue the decision to reduce the size of council midway through a municipal election — from a planned 47-ward system to 25 wards, to match the federal and provincial system — is "discriminatory and arbitrary."

The city's court filings also note 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.

Various other groups are participating in Friday's hearing, including city council hopeful Rocco Achampong, who was the first person to take legal action in July. 

On Wednesday, after being served with the province's factum, Achampong said "notice has always been a function" of the democratic process, and said it is "absurdity" if the province can change the rules mid-election as it sees fit.

Toronto-based law firm Goldblatt Partners also 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.

Ford claims changes will save $25 million

Several parties were granted intervenor status in the case, allowing them to participate in Friday's hearing, including the Toronto District School Board, which has raised concerns about the lack of public consultation.

The Canadian Taxpayers Federation will be attending as well, and supports the council cuts as a potential cost-saving measure. So far the organization is the only intervenor in favour of the legislation.

Christine Van Geyn, the non-partisan organization's Ontario director, said she's concerned about the arguments being brought forward that the province's legislation could be invalidated by unwritten constitutional principles.

"This is a democratically elected government that was elected to save taxpayers money, and that's what they're doing with this legislation," she said.

Ford has claimed the move will save taxpayers at least $25 million over four years. 

Meanwhile, Toronto city staff estimate the switch to 25 wards could cost an additional $2.5 million beyond the approved election budget of $14.9 million for the municipal election — which is still scheduled for Oct. 22.

The provincial legislation also cancels planned elections for the head of council position in the regional municipalities of Muskoka, Peel, York and Niagara, turning them into appointed roles.