



COURT OF APPEAL FOR ONTARIO

CITATION: Toronto (City) v. Ontario (Attorney General), 2018
    ONCA 761

DATE: 20180919

DOCKET: C65861 (M49615) and (M49624)

Hoy A.C.J.O., Sharpe and Trotter JJ.A.

BETWEEN

City of Toronto

Respondent (Respondent by Appeal)

and

Attorney General of Ontario

Applicant (Appellant by Appeal)

AND BETWEEN

Rocco Achampong

Respondent (Respondent by Appeal)

and

Ontario (Hon. Doug Ford,
    Premier of Ontario), Ontario (Attorney General)

Applicants (Appellants by Appeal)

and

City of Toronto

Respondent (Respondent by Appeal)

AND BETWEEN

Chris Moise, Ish
    Aderonmu, and Prabha Khosla, on her own behalf and on behalf of all members of
    Women Win TO

Respondents (Respondents by Appeal)

and

Attorney General of
    Ontario

Applicant (Respondent by Appeal)

and

Jennifer Hollett, Lily
    Cheng, Susan Dexter, Geoffrey Kettel and Dyanoosh Youssefi

Respondents (Respondents by Appeal)

Robin Basu, Yashoda Ranganathan and Audra Ranalli, for
    the appellant Attorney General of Ontario

Diana W. Dimmer, Cory Lynch and Philip Chan, for the
    respondent City of Toronto

Rocco K. Achampong, Gavin Magrath and Selwyn A. Pieters,
    for the respondent Rocco Achampong

Patrick G. Duffy and Emma Romano, for intervener the
    City Clerk of the City of Toronto

Howard Goldblatt, Daniel Sheppard and Louis Century, for
    the respondents Chris Moise, Ish Aderonmu and Prabha Khosla, on her own behalf
    and on behalf of all members of Women Win TO

Donald K. Eady, Caroline V. (Nini) Jones and Jodi
    Martin, for the interveners Jennifer Hollett, Lily Cheng, Susan Dexter,
    Geoffrey Kettel and Dyanoosh Youssefi

Derek J. Bell and Ashley Boyes, for the intervener The
    Canadian Taxpayers Federation

Patrick Cotter, for the intervener Toronto District
    School Board

Heard: September 18, 2018

By the Court:

[1]

Given the urgency of this matter, an immediate decision on this stay
    motion is required to ensure that the Toronto municipal elections, set for
    October 22, 2018, proceed in as orderly a manner as possible. In the unusual
    circumstances of this case, we have decided to announce our decision without
    delay and with briefer reasons than otherwise might be expected for a matter of
    this importance.

[2]

The issue before us is whether to grant the Attorney Generals motion
    for a stay pending an appeal to this court of the order of the Superior Court
    of Justice that the relevant provisions of Bill 5, the
Better Local
    Government Act, 2018
, S.O. 2018, c. 11, infringe s. 2(b) of the
Canadian
    Charter of Rights and Freedoms
and are therefore of no force and effect:
City
    of Toronto et al. v. Ontario (Attorney General)
, 2018 ONSC 5151.

[3]

The election period for the 2018 City of Toronto municipal elections,
    based on the Citys by-laws providing for a 47-ward structure, began on May 1,
    2018. Bill 5, introduced on July 30, 2018 and given Royal Assent on August 14,
    2018, changed the course of the elections by imposing a 25-ward structure.
    Three proceedings were quickly brought to challenge the constitutionality of
    Bill 5, leading to the order at issue on this motion.

[4]

The constitutional challenges raised several grounds, but the basis for
    the application judges decision was the argument that Bill 5 infringed the s.
    2(b) freedom of expression rights of both the candidates and the voters. That
    was also the focus of this stay motion and, accordingly, will be the focus of
    our reasons. Like the application judge, we are of the view that this was the
    strongest argument the respondents advanced.

[5]

The application judge found that, although the province has plenary
    power to govern the affairs of municipalities (including municipal elections),
    by changing Torontos ward structure well after candidates had been nominated
    and had commenced campaigning Bill 5 violated the s. 2(b) freedom of expression
    rights of both the candidates and the voters. In his view, changing the ward
    structure mid-election substantially interfered with the candidates ability
    to effectively communicate his or her political message to the relevant voters
    and undermined an otherwise fair and equitable election process: paras. 32,
    34. The application judge found that Bill 5 infringed municipal voters freedom
    of expression rights by interfering with their right to vote. He characterized
    the right to vote as an expressive activity falling within the protection of
    s. 2(b) which, in his view, includes the right to effective representation: paras.
    40, 47. He found that increasing the population size of the wards from an
    average of 61,000 to an average of 110,000 denied the voters right to cast a
    vote that can result in effective representation: para. 60.

[6]

The application judge rejected the Attorney Generals submission that
    any infringement of s. 2(b) could be justified as a reasonable limit under s. 1
    and accordingly declared parts of Bill 5 to be of no force and effect.

[7]

The Attorney General has appealed the application
    judges order to this court and asks this panel to stay that order pending
    appeal. If granted, the effect of the stay would be to leave Bill 5 in place
    and require the election to proceed on the basis of a 25-ward structure.

[8]

In oral argument, counsel for the Attorney General
    stated that he had been instructed to advise this court that if a stay were
    granted, the government would not take Bill 31, the
Efficient Local
    Government Act, 2018
, currently before the Legislature, to a final vote at
    this time. Bill 31 would replace Bill 5 and include an override declaration
    pursuant to s. 33 of the
Charter
. We note that
    this undertaking was given, but add that it plays no part in our decision.

[9]

The three-part legal test for when an appellate court
    should grant a stay of a lower court decision pending an appeal is set out in
    the Supreme Court of Canadas decision in
RJR-MacDonald Inc. v. Canada
    (Attorney General)
,
[1994] 1 S.C.R. 311. Ordinarily,
the
    applicant must demonstrate that there is a serious issue to be tried; that it
    will suffer irreparable harm if the stay is not granted; and that the balance
    of convenience favours a stay pending the disposition of the appeal.

[10]

The
    minimal serious issue to be tried component of that test assumes that the
    stay will operate as a temporary measure and that the rights of the parties
    will be finally resolved when the appeal proper is heard. However,
RJR-MacDonald

recognizes
that in cases where, as a practical matter, the
    rights of the parties will be determined by the outcome of the stay motion, the
    court may give significantly more weight to the strength of the appeal: p. 338.
    In our view, this is such a case. An immediate decision is required to permit
    the Toronto municipal elections to proceed on October 22. That decision must be
    rendered now and, subject to further legislative intervention, our decision
    will determine whether the election proceeds on the basis of 25 or 47 wards. In
    these circumstances, greater attention must be paid to the merits of the
    constitutional claim and, as contemplated by
RJR-MacDonald
, we must
    ask whether there is a strong likelihood that the appeal will succeed.

[11]

The application judge was understandably motivated by the fact that
the timing of Bill 5 changed the rules for the election mid-campaign, which he
    perceived as being unfair to candidates and voters. However, unfairness alone
    does not establish a
Charter
breach.
The question for
    the courts is not whether Bill 5 is unfair but whether it is unconstitutional.
    On that crucial question, we have concluded that there is a strong likelihood
    that application judge erred in law and that the Attorney Generals appeal to
    this court will succeed.

[12]

The
    application judges interpretation appears to stretch both the wording and the
    purpose of s. 2(b) beyond the limits of that provision. His decision blurs the
    demarcation between two distinct provisions of the
Charter
: the
    protection of expressive activity in s. 2(b) and the s. 3 guarantee of the
    democratic rights of citizens to vote and be qualified for office. The s. 3
    right to vote and stand for office applies only with respect to elections to
    the House of Commons and the provincial legislatures:
Haig v. Canada
,
    [1993] 2 S.C.R. 995, at pp. 1031, 1033. Section 3 does not apply to municipal
    elections and has no bearing on the issues raised in this case.

[13]

Unquestionably, Ontarios announcement of its intention to introduce
    Bill 5 disrupted the campaigns that were already underway. However, Bill 5 does
    not limit or restrict any message the candidates wish to convey to voters for
    the remainder of the campaign. Nor does it erase messages conveyed earlier,
    although it may reduce their effectiveness. While the change brought about by
    Bill 5 is undoubtedly frustrating for candidates who started campaigning in May
    2018, we are not persuaded that their frustration amounts to a substantial
    interference with their freedom of expression. The candidates were and are
    still free to say what they want to say to the voters. The inconvenience
    candidates will experience because of the change from 47 to 25 wards does not
    prevent or impede them from saying what they want to say about the issues
    arising in the election.

[14]

There was still considerable time from the date of Bill 5s passage
    until voting day. Election campaigns inherently involve moving targets and
    changing issues that require candidates to adjust as matters proceed. Under
    Bill 5, nominations remained open until September 14, the same deadline that
    applied to the previous City elections. There is no suggestion that permitting
    nominations approximately 5 weeks before the election trammeled freedom of
    expression in any way by putting demands upon candidates who had already
    entered the race and who might need to strategically refocus their campaigns in
    response to issues raised by new candidates. In light of the time remaining for
    candidates to conduct their campaigns after its enactment, we are doubtful of
    the claim that the disruption Bill 5 caused constituted a substantial
    interference with the candidates freedom of expression.

[15]

Candidates had a reasonable expectation that they would be operating
    under a 47-ward platform when developing the messages for their campaigns.
    However, neither that platform nor that expectation was constitutionally
    guaranteed. The ward platform could be changed by by-law or by legislation. The
    decision of the Legislature to change it during the campaign was unexpected and
    perhaps alarming. But candidates have no constitutionally guaranteed right to
    the 47-ward platform, and Bill 5 does not deprive them of their constitutional
    right to say whatever they want to say about civic issues. The candidates
    right to freedom of expression does not carry with it the constitutional right
    to insist that either the City or the Province provide or maintain a platform,
    absent certain conditions that the application judge did not consider in this
    case: see
Baier v. Alberta
, 2007 SCC 31, [2007] 2 S.C.R. 673;

Haig
.
    The application judge relied on
Libman v. Quebec (Attorney General)
,
[1997] 3 S.C.R. 569, but, as explained in
Baier
, at para. 41, that
    case involved a claim to freedom from certain statutory restrictions on
    expressive activity  i.e., a negative entitlement. It did not involve a claim
    for a positive entitlement to a particular platform, as in this case.

[16]

The application judge found that because Bill 5 made the messages
    the candidates sought to convey less effective, it infringed their s. 2(b)
    rights. This proposition is not supported by the jurisprudence interpreting s.
    2(b).
Baier
and
Delisle v. Canada (Deputy Attorney General)
,
    [1999] 2 S.C.R. 989 hold that legislation that has the effect of diminishing
    the effectiveness of a message, but does not prevent the communication of that
    message, does not violate s. 2(b):
Delisle
, at paras. 40-41;
Baier
,
    at para. 48.

As the minority recognized in
Harper
    v. Canada
, 2004 SCC 33, [2004] 1 S.C.R. 827, s. 2(b) does protect the
    ability to attempt to persuade ones fellow citizens through debate and
    discussion: para 16. However, it does not follow that government measures
    which do not prevent candidates from attempting to persuade voters, but have
    the effect of making those attempts less effective at achieving their desired
    result, violate s. 2(b).

[17]

With
    reference to the s. 2(b) rights of the voters, the application judge, at paras.
    40-61, placed significant reliance on the right to effective representation,
    a concept recognized by the Supreme Court in
Reference re Provincial
    Electoral Boundaries (Saskatchewan)
, [1991] 2 S.C.R. 158. We find it
    difficult to see how the right to effective representation, which is at the
    core of s. 3, is somehow embraced by s. 2(b), which protects freedom of
    expression. Section 2(b) and s. 3 rights are distinct rights to be given
    independent meaning:
Harper v. Canada
, 2004 SCC 33, [2004] 1 S.C.R.
    877 at para. 67;
Thomson Newspapers Co. v.
Canada
    (Attorney General)
, [1998] 1 S.C.R. 877, at paras. 79-80. Moreover, as
    already noted, s. 3 of the
Charter
has no application to municipal
    elections and it does not protect them:
Haig
, at p. 1031;
Baier
,
    at paras. 38-39. While rights can overlap and a limit on the scope of one right
    should not be used to narrow the scope of another right, it does not follow
    that doctrines pertaining to s. 3 can be imported to expand the reach of s.
    2(b).

[18]

Finally,
    the application judges conclusion that Ontario substantially interfered with
    the voters right of freedom of expression when it doubled the ward population
    size from a 61,000 average to a 110,000 average cannot be supported. The size
    of the Citys electoral wards is a question of policy and choice to be
    determined by the legislative process subject to other provisions of the
Charter
,
    including s. 15(1). Whether wards of 61,000 or 110,000 are required to ensure
    effective representation is a debatable issue that cannot be determined by
    reference to the right to freedom of expression. Further, we share the
    application judges inclination that there is no infringement of s. 15(1).

[19]

Given
    our conclusion with respect to s. 2(b), it is not necessary to consider the
    application judges conclusions concerning the application of s. 1 of the
Charter
.

[20]

Our
    finding of a strong
prima facie
case on appeal bears upon the analysis
    under the second and third prongs of the
RJR-MacDonald
framework: see
RJR-MacDonald
,
    at p. 339. We recognize that in this case, Ontario does not have a monopoly on
    the public interest and that the City also speaks for the public interest.
    However, having acceded to the argument of the respondents that the more
    exacting strong likelihood of success standard should be applied and having
    reached the decision that the judgment under appeal was probably wrongly
    decided, we have no doubt that the moving party would suffer irreparable harm
    if a stay were not granted. It is not in the public interest to permit the
    impending election to proceed on the basis of a dubious ruling that invalidates
    legislation duly passed by the Legislature. We do not accept the respondents submission
    that, because Ontario exercised its legislative authority to enact Bill 5, it
    does not have clean hands and should not be entitled to the equitable relief
    of a stay from this court.

[21]

Similarly,
    the balance of convenience favours granting a stay. As the Supreme Court held
    in
Harper v. Canada (Attorney General)
, 2000 SCC 57, [2000] 2 S.C.R. 764,
at para. 9, 
[c]ourts will not lightly order that laws that Parliament or a
    legislature has duly enacted for the public good are inoperable in advance of
    complete constitutional review, which is always a complex and difficult
    matter. The court then stated that only in clear cases will stays preventing
    the enforcement of a law on the grounds of alleged unconstitutionality
    succeed. Given our tentative conclusion that Bill 5 does not suffer from
    constitutional infirmity, we have no hesitation in finding that the balance of
    convenience favours granting a stay.

[22]

The
    respondents insist upon the unfairness in the timing of Bill 5 and point to the
    uncertainty it has created. However, as noted by the application judge, at
    para. 30, the court challenge has exacerbated the difficult timeline the City
    Clerk faces in making the necessary preparations for the election. The City
    Clerk took steps to implement a 25-ward election upon the passage of Bill 5 and
    then reverted to plans for a 47-ward election after the application judges
    order. The City Clerk has indicated that she has done all she can in the
    circumstances to prepare for either a 25 or 47 ward election and, provided the
    issue is resolved promptly, an election on either basis remains possible. The
    respondents claim to succeed on the balance of convenience is untenable.

[23]

For
    these reasons, the order of the Superior Court is stayed.

[24]

The
    City Clerk and the Attorney General ask this court to make certain ancillary
    orders required to conduct the election in an orderly manner. The City of
    Toronto indicated that it would not oppose those orders if a stay were granted.
    We are prepared to make the orders sought, subject to any further submissions
    as to the necessary details, and we remain seized of the matter for that
    purpose.

Released:  AH  SEP 19 2018

Alexandra Hoy
    A.C.J.O.

Robert Sharpe J.A.

Gary Trotter J.A.


