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Ontario's cities have changed but the law hasn't kept up

By
Jeff Bolichowski
and
Dean Iorfida
,
on
September 17, 2018

The present fight between the City of Toronto and the Province of Ontario over the composition of Toronto city council is a fight that was bound to happen eventually. But it's not the fight it appears to be.

It's a truism that Ontario's municipal governments are creatures of the province. Indeed, Justice Belobaba's ruling on Bill 5 was issued entirely based on timing - because were an election not in process, the government of Premier Doug Ford would have the right to change the rules for municipalities in almost any way. The Municipal Act makes clear that the authority for the existence of your local government stems entirely from the Province.

If Ford wanted to, he could abolish Toronto and replace city council with a magic 8-ball.

Many members of the public would agree that aligning the City of Toronto with Federal and Provincial ridings is not a bad idea, and could actually allow Toronto City Council and its' members to be perceived on the same level of importance as their colleagues in the legislature and House of Commons. But imposing a new structure on Canada's largest city, without consultation and in the middle of an election cycle, was a decision bound to be challenged.

And that's the fight. How provinces and cities relate has been set in stone for a long time. Indeed, the Constitution Act of 1867 grants the provinces the right to legislate municipalities, and ever since, the "creatures of the province" status has held firm through revision after revision of the Municipal Act. But while that pillar of the law has stayed the same, Canada has not.

Statistics Canada reveals that in 1861 - just a few years before Confederation - 84% of Canadians lived in the countryside. The economy was built largely on agriculture. By the time of Confederation in 1867, Canada had something in the neighbourhood of three and a half million people living within its borders, the vast majority of them on farms, not in cities. Toronto itself had around 70,000 people living in it - roughly 2% of the total population of the then-new Canada. Large swaths of the country were owned by the Hudson's Bay Company and hadn't been settled at all.

Today, Toronto has more than 2.7 million people just within the City of Toronto proper - nearly 8% of the population of Canada. By 2011, just 18.9% of Canadians lived in a rural area - and in Ontario, that percentage was even lower. In fact, Ontario was tied with British Columbia for the province with the smallest percentage of the population living in a rural area.

Canada has become more urban as time has gone on. While the population of Canada has increased tenfold, the population of Toronto has increased fortyfold. Toronto by itself is more populous than all the Maritime provinces combined. That's not even getting into metro areas: The Greater Toronto Area is more populous than every province except Ontario itself and Quebec. And it's not just Toronto: Cities like Ottawa, Vancouver, Calgary, Edmonton, Hamilton, Halifax and Mississauga have also grown into large urban agglomerations which loom over much smaller rural areas.

The calculus of provincial-municipal relationships has changed. More Ontarians live in dense, populous cities now than ever before. And the priorities of these cities are sometimes different than those of their provinces.

Some of this was on display when Ford's government initially announced its move to slash the size of Toronto city council, prompting not-yet-mayoral-candidate Jennifer Keesmaat to muse about the City seceding from Ontario. Keesmaat eventually walked the idea back. But secession won't solve the fundamental problem: Certain municipalities have become so large that complete subordination to the province no longer makes sense. In this matter, the United States may have some lessons for Canada's large urban centres.

Most US states share our view of municipalities: They operate on an 1868 principle known as Dillon's Rule, which states that municipalities only have the powers expressly granted to them by the states. However, some have adopted what is sometimes called the Cooley Doctrine, expressed in 1871 by Thomas M. Cooley, a judge on the Michigan Supreme Court: "Local government is a matter of absolute right; and the state cannot take it away." Those states which lean towards Cooley's interpretation offer up home rule: Local self-determination, within the state's legal and constitutional framework.

Of the US states, 10 are pure home-rule states, while nine more offer some level of it. In these states, the state constitution gives cities, municipalities and/or counties the right to pass their own laws - that is, they have some degree of autonomy.

Toronto has already begun to dip its toe into local autonomy. The city follows the City of Toronto Act, not the Municipal Act which governs the rest of Ontario's local governments, and has powers most municipalities lack. However, those powers mostly give Toronto the ability to levy special taxes outside of what the Province might allow - for instance, Toronto can apply a land transfer tax, while elsewhere that's up to the Province. But while the Act does give Toronto the ability to change its governance structure, the Ford government's new legislation denies Toronto the ability to change things "with respect to the composition of city council and the division of the City into wards." This contrasts with the version of the Act in effect for the last election, in which Toronto had the power to change its own ward boundaries, subject to appeal by the Minister of Municipal Affairs or any citizen.

Ironically, 443 smaller Ontario municipalities still have the opportunity to determine their own councils' size and ward boundaries, subject to appeal.

One of Premier Ford's rationales for the change is the need for less politicians. He cited numerous examples of various large U.S. cities with, allegedly, smaller governments.

However, those calculations do not take into account the numerous local politicians populating borough councils and other sub-council entities in those communities. As it stands, Ford's legislation still allows Toronto to "determine the appropriate structure for governing the City, other than with respect to the composition of city council and the division of the City into wards." This leaves the door open to the formation of a lower-tier stratum of governance, such as ward councils, for 2022 - a move which would increase the number of politicians for Toronto.

The increasing prominence of urban life - and the increasing percentage of Ontarians living in cities - may signal that it is time to consider a more fulsome level of home rule for some of the Province's big urban centres. In many ways, each city is a contained universe unto itself, with unique issues often not shared even by other cities. With so many Ontarians now living in dense urban settings, the challenges they face could be addressed specifically at the local level, autonomously but within Ontario's legislative framework.

Big cities face unique challenges that most smaller cities in Ontario do not face, and a more devolved framework which provides for broad home rule could help to address these issues. For now, however, big cities have no other choice but to make do with the cards they have been dealt by Queen's Park.

Jeff Bolichowski, Media and Policy Analyst at Armstrong Strategy Group, is a former municipal affairs reporter with experience covering current affairs for The St Catharines Standard and The Windsor Star.
Dean Iorfida, Senior Associate at Armstrong Strategy Group, is a municipal law expert who served for 15 years as the City Clerk for the City of Niagara Falls, overseeing council-structure changes in that community.
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