"This is a modern-day overthrow of an elected official. This is wrong," – Mayor Rob Ford as quoted by CBC.ca.1
This bulletin examines some of the legal questions regarding the limitation to Mayor Ford's powers by Toronto City Council.
The Québec Precedent
Notably, Mayor Ford is not the first Canadian mayor to find himself under fire from his city council. In 2012 the former mayor of Mascouche, Québec, Richard Marcotte, was mired in scandal when the Province of Québec enacted Bill 10 – legislation that granted power to the Québec people to request a judge to suspend any municipal politician who is facing serious charges.2
Mayor Marcotte was charged with alleged kickbacks and fraud involving the awarding of municipal contracts. Although the allegations clearly differ from those against Mayor Ford, as with Toronto's Mayor, demonstrators rallied outside of city council demanding Marcotte's resignation. The jeering at city council meetings allegedly reached the point where the municipality was spending an extra $6,000-8,000 per Council meeting for police services.3 Marcotte's own political party banned him, fellow councillors consulted with lawyers to see if they could challenge Marcotte's team and pleaded with Québec's Minister of Municipal Affairs to remove Marcotte from office.4 After months of significant public outcry demanding Marcotte's resignation,5 he finally agreed to step down.6
After Marcotte's resignation, Québec's provincial legislators enacted Bill 10. Marcotte commented that "Bill 10 is clearly a politically motivated law and, from what I understand, it is constitutionally dodgy since it is only aimed at one type of elected official."7
On August 29, 2013, Bill 10 was invoked for the first time to remove the mayor of St-Remi, Québec, Michel Lavoie. This action was later affirmed by a Québec Superior Court Judge. An outraged citizen, Sylvie Boyer, initiated court proceedings arguing that Lavoie should be removed from office prior to the municipal elections.8 Despite protests from Lavoie, the judge declared that Lavoie was temporarily unfit to hold office. At the time, Lavoie was facing charges of fraud, conspiracy and breach of trust pursuant to an investigation by the provincial anti-corruption task force, UPAC.9
No similar legislation to Québec's Bill 10 exists in Ontario.
What Motions Were Approved at Toronto City Council?
Unlike Marcotte and Lavoie, Mayor Ford has not been charged with any crime. To date, the Province of Ontario has been unwilling to pass legislation to deal with the concerns of the majority of Toronto City Councillors. As a result, the Councillors decided to take their own steps to limit Mayor Ford's powers.
More than twenty motions were passed by Toronto City Council on November 15 and 18, 2013 to strip the Mayor of many of his powers. The Councillors declared that they were only limiting his "procedural powers" granted to him through council approved by-laws and not impacting or reducing his "statutory powers" granted under the City of Toronto Act, 2006.10 The motions passed included:11
- To cut the mayor's office budget for the remainder of 2013
- To cut the mayor's office budget in 2014
- To give responsibility for the mayor's staff to the deputy mayor
- To remove the mayor's right to designate "key" matters at council
- To remove the mayor's designates on the budget committee
- To remove the mayor's authority to temporarily borrow funds
- To give the deputy mayor certain authorities revoked from the mayor such as chairing certain committees and the administration of the operating budget
- To appoint the deputy mayor as the chair of the executive committee in the mayor's place
- To remove the mayor from all other committees
What Powers Does The City of Toronto Act Grant the Mayor?
All municipalities' powers are delegated by the provincial legislators. The City of Toronto is governed by the provincially enacted City of Toronto Act, 200612 (the "Act"). Mayor Ford's roles and responsibilities are specifically legislated in the Act wherein it states the Mayor shall:
- act as chief executive officer of the City;
- uphold and promote the purposes of the City;
- act as the representative of the City both within and outside the City, and promote the City locally, nationally and internationally; and
- participate in and foster activities that enhance the economic, social and environmental well-being of the City and its residents;
- preside over meetings of council so that its business can be carried out efficiently and effectively;
- provide leadership to council;
- represent the City at official functions; and
- carry out the duties of the head of council under this or any other Act.13
Through the use of the word "shall", the Act requires that Mayor Ford perform these duties; they are not optional.
What if any Recourse is Available to the Mayor?
Immediately preceding the November 18th Council meeting, Mayor Ford threatened to proceed to court to reinstate his powers, declaring Council's actions as the equivalent of Iraq invading Kuwait.14 To date no action has been commenced. As well, the Mayor did not seek an interlocutory injunction to prevent Toronto City Council from passing the motions. To obtain such an injunction, the Mayor would have had to demonstrate irreparable harm,15 which would have been difficult for the Mayor to establish.
However, it is possible that Mayor Ford could challenge the motions by action or application for judicial review. The Judicial Review Procedure Act16 permits an application for judicial review to challenge an exercise of a statutory power of decision. A statutory power of decision includes a power or right conferred by or under a statute to make a decision deciding the legal rights, powers, privileges, immunities, duties or liabilities of any person.17 By amending the Council's procedural bylaws, City Council was exercising statutory powers granted to them under the Act. As a result, for the purposes of the Judicial Review Procedure Act, the Toronto City Council's actions may constitute a statutory power of decision that has the result of deciding the legal powers or duties of the Mayor. The motions passed by Toronto City Council may therefore be challenged in the Ontario courts.
Further, it would appear that Mayor Ford may have standing to bring an application for judicial review. The Supreme Court of Canada decision of Finlay v Canada (Minister of Finance),18sets out that standing in a judicial review arises out of a "direct, personal interest". As a person with a direct stake in the outcome of the Toronto City Council motions, it is likely that Mayor Ford may have standing to bring a court proceeding.
The Motions and the Act
Mayor Ford's refusal to use the courts thus far does not appear to be based on concerns about access to the courts. Instead, Mayor Ford may be weighing his chances for success or failure in the courts or determining whether his fight is better waged in the court of public opinion. With respect to the former, the key question is whether the motions passed by City Council have impacted the Mayor's ability to perform his statutory duties as enumerated under the Act and therefore ultra vires Toronto City Council.
Of all the mayor's statutory responsibilities, it appears that the motions passed by council may particularly impact the mayor's ability to provide leadership. Leadership is broadly defined as the action of guiding or directing a group.19 The mayor's procedural powers at Council meetings and on related committees arguably constitute significant tools for carrying out his duties as Mayor. Additionally, some of the mayor's powers have been expressly removed and delegated to the Deputy Mayor. There may be a valid question as to whether this removal of power means that Mayor Ford is no longer able to "lead" the Toronto City Council.
Several of the motions passed would appear to less directly impact the mayor's ability to lead council. However, if the mayor can no longer designate or set times for key matters and can no longer elect to speak first or last on agenda items does this preclude him from leading council? The Mayor is also no longer consulted by the City Clerk on the urgency of motions without notice after the agenda closes. Although seemingly small, these procedural powers may be of great use to the mayor to highlight key matters or to set the tone and direction for discussion of agenda items. It is possible that Mayor Ford could argue the cumulative effect of the motions passed has materially impacted his ability to provide leadership to council (by emptying his tool box) and thus prevent him from being able to exercise his responsibilities as set out in the statute.
Additionally, the Mayor's budget and staff were significantly reduced – in 2013 from approximately $525,000 to $95,000 and in 2014 from approximately $1,594,000 to $712,000. Mayor Ford may argue that the Mayor's budget and staff support is at the core of his ability to satisfy his statutory responsibilities, such as acting as the chief executive officer of the City. Without the proper resources to administer the duties of his office, he may argue that these motions are preventing him from performing his statutory obligations as he no longer has the resources available to do so.
Despite the motions to remove power from the Mayor, Mayor Ford remains a significant presence at City Hall. As seen during the recent property tax debate, the loss of certain procedural powers has not impacted the Mayor's ability to make his views known to Council.
Valid questions remain concerning whether the effect of the motions passed by Toronto City Council restrict Mayor Ford's powers in a way that prevents him from carrying out his statutory duties. The effect of some of the motions may not be immediately clear. Only time will tell as to whether Mayor Ford's remaining budget, staff and powers are sufficient to meet the demands of the Mayor's office to carry out his statutory duties as set out in the Act.
At the Monday, November 18, 2013 Special Council Meeting, Mayor Ford threatened "outright war" against City Council for stripping him of his powers as Mayor of the largest city in Canada and the fourth largest city in North America.20 It has been over two weeks since the meeting and so far "all is quiet on the western front". Is this just the calm before the storm?