Diana W. Dimmer

The appellant municipality challenged provincial legislation that reduced Toronto City Council's ward structure from 47 to 25 wards mid-election campaign, arguing it violated the Charter's freedom of expression guarantee and the unwritten constitutional principle of democracy.

The majority held that the appellant's claim was a positive rights claim governed by the Baier framework, requiring demonstration of radical frustration of expression effectively precluding meaningful expression, a threshold not met where candidates had 69 days to re-orient their campaigns under the new structure.

The majority further held that unwritten constitutional principles cannot serve as independent bases for invalidating legislation, and that the democratic principle cannot be used to narrow provincial authority over municipalities under s. 92(8) of the Constitution Act, 1867.

The dissent would have allowed the appeal, finding the timing of the legislation violated s. 2(b) and that Ontario offered no pressing and substantial justification for making the changes during an ongoing election.

The Ontario legislature enacted the Better Local Government Act, 2018, which reduced Toronto City Council from 47 to 25 councillors and changed ward boundaries in the middle of a municipal election campaign.

The applicants challenged the constitutionality of the Act, arguing it violated section 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression) and unwritten constitutional principles.

The application judge found the Act violated section 2(b) and allowed the application.

On appeal, the majority (D.M. Miller J.A., with Tulloch and Harvison Young JJ.A. concurring) allowed the appeal and upheld the Act as constitutional.

The majority held that section 2(b) does not guarantee effective expression, does not require government to maintain platforms for expression, and does not incorporate the right to vote from section 3 of the Charter.

The majority also rejected arguments based on unwritten constitutional principles and jurisdictional limits in section 92(8) of the Constitution Act, 1867.

MacPherson J.A. (with Nordheimer J.A. concurring) dissented, finding the Act infringed section 2(b) by interfering with freedom of expression during an active election and that the infringement could not be justified under section 1 of the Charter.

The Attorney General of Ontario appealed a Superior Court decision that declared provisions of Bill 5 (Better Local Government Act, 2018) unconstitutional for violating freedom of expression rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.

Bill 5 reduced Toronto's municipal wards from 47 to 25 mid-election.

The application judge found that the mid-campaign change substantially interfered with candidates' ability to communicate their political messages and violated voters' right to effective representation.

The Court of Appeal granted a stay of the lower court's order pending appeal, finding a strong likelihood that the application judge erred in law and that the appeal would succeed.

The court held that Bill 5 does not limit or restrict candidates' messages and that the right to effective representation falls under s. 3 (democratic rights), not s. 2(b) (freedom of expression), and s. 3 does not apply to municipal elections.

The province enacted Bill 5, reducing Toronto wards from 47 to 25, mid-municipal election.

Applicants challenged its constitutionality.

The court found Bill 5 violated candidates' and voters' freedom of expression under s. 2(b) of the Charter, as it substantially interfered with campaign communication and denied effective representation due to increased ward sizes.

The violation was not justified under s. 1, as the legislative objectives (better decision-making, voter parity) were not pressing and substantial enough to warrant mid-election implementation, nor was minimal impairment demonstrated.

The impugned provisions were declared unconstitutional and set aside, requiring the election to proceed with 47 wards.

The applicant sought to quash a municipal by-law repealing a heritage designation affecting its hotel property and sought related relief concerning heritage property tax rebates.

The municipality had approved demolition of the original designated heritage building in 1996 but did not repeal the designation by-law until 2012, when it enacted a repealing by-law retroactive to the demolition approval date pursuant to the Ontario Heritage Act.

The applicant alleged illegality and bad faith, arguing that the municipality failed to provide prior notice and enacted the repeal retroactively to defeat its tax rebate claims.

The court held that prior notice was not required where the Act mandated repeal following approval of demolition, and that the retroactive repeal was a reasonable step to comply belatedly with statutory requirements.

The applicant failed to establish bad faith or illegality, and further failed to meet additional eligibility criteria for the heritage tax rebate program.