Defanging Mayor Rob Ford could cause legal headache

Toronto council’s three-part plan to strip Mayor Rob Ford of his control of the city is an unprecedented test of its power, one that legal experts say might not withstand the challenge Ford indicated he will launch.

On Friday, council successfully passed two motions: one revoking Ford’s ability to appoint and remove the deputy mayor, members of his executive and standing committee chairs; the other, taking away his emergency powers.

While the motions passed with near unanimity — only the Ford brothers and one other councillor voted against — the debate in council revealed a deep worry that their actions would ultimately prove illegal, especially since the third and final motion against Ford is the riskiest.

On Monday, council will decide whether to reduce the mayor’s budget to the level of a regular city councillor.

City spokesperson Jackie DeSouza confirmed that defunding the mayor could be in contravention of provincial law.

“The city must have a mayor, which is required under the City of Toronto Act. The mayor has statutory duties, which he is obligated to fulfil,” she wrote in an email. “Taking steps to remove funding from the mayor’s office would prevent the mayor from fulfilling his statutory duties and could result in potential court action against council.”

During Friday’s debate, Councillor Anthony Perruzza used the words “coup d’etat” to describe the motions against the mayor and expressed concerns that council was overstepping its authority.

“So it is a possibility that council’s action could be rendered null and void?” he asked city solicitor Anna Kinastowski.

“One never knows what a judge will do,” she responded. “There’s always a little bit of uncertainty, but we feel confident in our ability to defend council’s decisions in this circumstance.”

Despite his reservations, Perruzza voted for both motions, which passed 39-3 and 41-2.

Mayor Ford signalled his intention to fight both motions in court and pleaded with councillors to not support the motions because defending his court case would waste “taxpayers’ money.”

“Folks here don’t have the moral authority (nor) … the legal authority to do what they’re doing here,” said Councillor Doug Ford during the debate. “There’s two courts that are going to be looking at this. One, the legal courts, and two, the courts of public opinion.”

Many councillors came out of Friday’s meetings confident that their third and final motion would be successful after the weekend, and that legal concerns wouldn’t stop them.

“We have the power because we set budget,” said Councillor Joe Mihevc. “We are quite confident — and we’ve checked this upwards and downwards — that we have the legal authority do what we think is going to be done on Monday.”

In addition to cutting Ford’s funding, Monday’s motion would take his staff and “all powers and duties which are not by statute assigned to the Mayor,” and delegate them to Deputy Mayor Norm Kelly.

Municipal law experts say the crux of the issue is whether city council has the legal authority to make these decisions, or whether they’re up to the province to decide.

Friday’s motions are unlikely to be overturned in court because they revoked powers given to the mayor by council in the first place, said Ron Kanter, a lawyer who specializes in municipal law. Monday’s motion to strip Ford’s budget, however, is a much riskier proposition because it might infringe on his ability to perform provincially mandated functions, he said.

“But if you look at the duties the mayor has, they’re pretty limited,” he said. “Many of the things, like presiding over meetings of council, you don’t need a big budget to do that.”

The most likely route to challenging the bylaws would be to seek to have them quashed by the courts. In order to do so, you would need to show the bylaws are illegal, that the city is exceeding its jurisdiction, said Kanter, who has served as a Toronto councillor, Metro councillor and a Liberal MPP.

“Generally speaking, the trend of the courts has been to expand the authority of city council, and I think that anyone challenging these motions will have a hard time,” he said.

Meanwhile, bylaws restricting the mayor’s power would be in force, and the only way to delay their implementation would be to seek a court injunction. This is an unlikely proposition because any challenger would need to show that irreparable harm would occur if the bylaws stood, he said.

Andrew Sancton, a professor of political science at Western University, says the fight over whether Ford has a legal right to his budget has created an “untenable” situation that will drag out for months in litigation.

“My view is that council allocates money, and as long as they don’t violate provincial law that says they have to spend money on certain things, then they can choose to fund what they want,” he said. “If they can’t do what they want to do, which is prevent the mayor from being mayor, then my view is that the premier needs to step in.”

Sancton says the province should change the law that allows mayors like Ford and London Mayor Joe Fontana — who faces criminal charges of fraud and has refused to step aside — to stay in office against the wishes of their councils.

“If it’s going to get tied up in all sorts of legal fights, then the province can stop that. And the mayor — and the taxpayers — could save money on legal costs.”

Premier Kathleen Wynne indicated Thursday she was open to the idea of intervening, but only if council asks her to and all three provincial parties agree.

Councillor Gord Perks, the author of Monday’s defunding motion, foresees no legal issues.

“He can attempt to perform (his) duties on a regular councillor’s budget,” he said. “Rob Ford was elected to be mayor, but the budget that person gets is up to this council ... and we’re deciding this man is not capable of managing those resources.”