News & Events News Ontario Court of Appeal stays lower court decision on Bill 5

Ontario Court of Appeal stays lower court decision on Bill 5

September 19, 2018

The Ontario Court of Appeal has stayed the Superior Court of Justice’s decision on Bill 5 pending appeal

UPDATE: The Ontario Court of Appeal has stayed the decision of the Superior Court of Justice pending the government’s appeal. This means that the Superior Court decision will not take effect, and Bill 5 continues to govern.

The Court of Appeal held that the Superior Court probably erred in holding that s. 2(b) of the Charter was violated, and that the government would likely suffer irreparable harm if it had to wait for the appeal to be heard. The balance of convenience also favoured granting the stay.

You can read the decision here.

We are disappointed with the Court of Appeal’s decision. We continue to believe that the government’s mid-campaign change of rules was not only grossly unfair to the people of Toronto, but also violated the constitutional rights of both candidates and electors. We will be discussing next steps with our clients.

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UPDATE: The Ford Government is appealing the decision of the Superior Court of Justice, and is seeking a stay of the decision until the matter can be heard by the Ontario Court of Appeal. The stay motion is scheduled to be heard on Tuesday, September 18, 2018.

Here is our factum responding to the motion for a stay.

Here is the City’s factum responding to the motion for a stay.

Here is the Province’s factum asking for a stay.

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Bill 5 – the so-called Better Local Government Act – changed the rules and the scope of the Toronto municipal election months after the election had started. Various individuals and groups challenged Bill 5, as did the City of Toronto itself.

Candidate Chris Moise, elector Ish Aderonmu, and elector Prabha Khosla, representing herself and Women Win TO, filed an application alleging that Bill 5 violates sections 2(b) (freedom of expression), 2(d) (freedom of association) and 15 (equality) of the Canadian Charter of Rights and Freedoms.

The Court granted the application, finding that Bill 5 breaches s. 2(b) of the Charter and cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1:

The Province has clearly crossed the line.

For the reasons set out below, I find that the Impugned Provisions of Bill 5 substantially interfered with both the candidate’s and the voter’s right to freedom of expression as guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms. I further find, on the evidence before me, that these breaches cannot be saved or justified under section 1.

The Impugned Provisions are unconstitutional and are set aside under s. 52 of the Constitution Act, 1982. The October 22 election shall proceed as scheduled but on the basis of 47 wards, not 25. If the Province wishes to enact another Bill 5-type law at some future date to affect future City elections, it may certainly attempt to do so. As things now stand – and until a constitutionally valid provincial law says otherwise – the City has 47 wards.

Our summary of the decision is here.

Here is our press release.