Court File and Parties
DIVISIONAL COURT FILE NO.: 41/18
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Anthony Natale and Justin Di Ciano, Moving Parties
AND
City of Toronto, Kevin Wiener, Brian Graff, Giorgio Mammoliti, James Gordon Smith and Lakeshore Planning Council Corporation, Responding Parties
BEFORE: Swinton J.
COUNSEL: Bruce Engell and Sylvain Rouleau, for the Moving Parties Glenn K.L. Chu, Diana Dimmer, Brendan O’Callaghan and Matt Schuman, for the City of Toronto, Responding Party Kevin Wiener, self-represented, Responding Party
HEARD at Toronto: March 2, 2018
Endorsement
Introduction
1The moving parties Anthony Natale and Justin Di Ciano seek leave to appeal the decision of the Ontario Municipal Board (the “Board”) dated December 15, 2017 that approved By-laws 267-2017 and 464-2017 of the City of Toronto with one slight change. These by-laws approved a 47 ward system for municipal elections and are intended by the City for use in the October 22, 2018 election and elections in 2022, 2026 and possibly 2030.
2For the reasons that follow, I would dismiss the motion for leave to appeal. Accordingly, I need not address the City’s alternative argument that no appeal lies to the Divisional Court pursuant to s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (“OMB Act”) with respect to a decision relating to ward boundaries.
3This motion for leave to appeal was heard at the same time as an application brought by the City for certain declarations. That application is a separate proceeding, in which I am sitting as a Superior Court judge rather than as a judge of the Divisional Court. The reasons in that application will be issued separately and at a later date.
Test for Leave to Appeal
4An appeal lies to the Divisional Court from a decision of the Board only with leave and only on a question of law (s. 96(1), OMB Act). In determining whether to grant leave, the first question to be asked is whether there is some reason to doubt the correctness of the Board’s decision on a question of law – in other words, is the decision open to serious debate (Vaughan (City) v. Rizmi Holdings Ltd., 2003 CarswellOnt 2907 at para. 8)? While some leave decisions consider the impact of the standard of reasonableness in answering that question, I need not enter into a consideration of whether the Board’s decision would ultimately be reviewed on a reasonableness or correctness standard. In my view, there is no good reason to doubt the correctness of the Board’s decision on what the moving parties described as the “conventional legal issues”.
The Conventional Legal Issues
5The moving parties concede that the Board enunciated the correct legal test to be applied in determining ward boundaries. The Board set out the principles from the Supreme Court of Canada’s decision in Reference re Provincial Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158 (referred to as Carter). The primary consideration in drawing electoral boundaries is “effective representation”, which requires consideration of relative parity of voting power as well as other factors, such as geography, communities of interest, and capacity to represent (Carter, pp. 183-85).
6The Board also cited its past jurisprudence holding that there should be deference to the decision of a City Council on ward boundaries, and the Board should intervene only if there are clear and compelling reasons to do so – for example, because the City Council acted unfairly or unreasonably. While the moving parties suggested in oral argument that there should be no deference, the Board’s approach is consistent with that of the Supreme Court in Carter, where the majority stated that there should not be intervention with respect to an electoral map adopted by the legislature unless the boundaries are unreasonable (at p. 189).
7The moving parties argue that the Board erred in the application of these legal principles. They submit that voter parity is the primary consideration in drawing ward boundaries, and the Board should depart from voter parity only if it can point to another factor, such as preservation of communities. They argue that the Board did not justify departing from voter parity in its reasons, and it therefore erred when it approved the new 47 ward by-law rather than their preferred option, using the 25 federal electoral ridings.
8In this case, the City adopted their consultants’ proposed ward size of 61,000, with a variance of +/- 15% deemed acceptable. The moving parties take the position that the ward boundaries should reflect the 25 federal riding boundaries, because this provides better voter parity for the 2018 election than the 47 wards that were approved. The 47 ward proposal, they submit, does not achieve voter parity until 2026.
9I see no reason to doubt the correctness of the Board’s application of the governing legal principles. The moving parties and the dissenting opinion in the Board decision see voter parity as the primary factor in setting ward boundaries. However, the Supreme Court of Canada in Carter emphasized that primary concern is “effective representation” (at p. 183). Relative parity is important, but so, too, are factors such as “geography, community history, community interests and minority representation”, as well as other factors (at p. 184). The Supreme Court also held that growth projection can be a relevant factor, and boundaries may be drawn with a view to population growth in the future, even if that results in a departure from parity at the outset (at p. 195).
10Setting electoral boundaries is an exercise that requires a weighing of many policy considerations. The Board heard from a number of expert witnesses over the course of a seven day hearing. It considered relative voter parity as well as other factors. It concluded that communities of interest are best respected in a 47 ward structure (at para. 36). It also noted that a 25 ward structure could increase voter population in the wards “resulting in a significant impact on the capacity to represent” (at para. 36). The Board considered the evidence respecting voter parity and “finds that the difference between the FEDS and the 47-ward structure is not significant and will not result in an unfair election in 2018”, particularly taking into account all the Carter criteria, including the protection of communities of interest (at para. 39). The Board found that the 47 ward structure achieves the goal of effective representation (at para. 40). It also found that the City’s consultants engaged in adequate public consultation.
11The moving parties have failed to show any arguable legal error by the Board. The moving parties are really taking issue with the Board’s findings of fact, its preference for certain evidence and its weighing of the various factors that go into a finding with respect to “effective representation.” There is no basis for intervention by the Divisional Court with respect to the Board’s decision to approve the by-laws.
The Novel Question
12The moving parties also asked for leave to appeal a “novel” question. They submit that the Board erred in law in putting in place a 47 ward structure in time to take effect in the 2018 election without ensuring that City Council passed a corresponding by-law to change the composition of Council from the present 44 councillors to 47.
13No party asked the Board to deal with this issue. Indeed, in an appeal pursuant to s. 128 of the City of Toronto Act, S.O. 2006, c. 11, Sch. A (“COTA”), the Board’s task is to determine the acceptability of ward boundaries. It does not have jurisdiction to determine the composition of council. That is the task of council itself in accordance with s. 135 of COTA.
14My task, on this leave motion, is to determine whether there is reason to doubt the correctness of the Board’s decision on a question of law. There is no basis to intervene on the “novel” issue, where the Board was not asked to deal with this question.
Conclusion
15Accordingly, the motion for leave to appeal is dismissed. The parties have agreed that there will be no order as to costs.
Swinton J.
Date: March 6, 2018