Response to Application for Leave to Appeal and Conditional Application for Leave to Cross-Appeal of the Respondent, Attorney General of Ontario

Court File No: 38921

IN THE SUPREME COURT OF CANADA (ON APPLICATION FOR LEAVE TO APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

CITY OF TORONTO Applicant (Respondent) and

ATTORNEY GENERAL OF ONTARIO Respondent (Appellant) and

TORONTO DISTRICT SCHOOL BOARD

Intervener (Intervener)

RESPONSE TO APPLICATION FOR LEAVE TO APPEAL AND CONDITIONAL APPLICATION FOR LEAVE TO CROSS-APPEAL OF THE RESPONDENT, ATTORNEY GENERAL OF ONTARIO

ATTORNEY GENERAL OF ONTARIO POWERLAW Constitutional Law Branch 130 Albert Street, Suite 1103 McMurtry-Scott Building Ottawa, ON KIP 5G4 720 Bay Street, 4th Floor Toronto, ON M7 A 2S9 Fax: 416-326-4015

Robin K Basu (LSO# 32742K) Maxine Vincelette Tel: 416-995-5249 Tel: 613-702-5573 Email: [email protected] Email: [email protected] Yashoda Ranganathan (LSO# 57236E) Tel: 647-637-0883 Email: [email protected]

Aud Ranalli (LSO# 72362U) Tel: 416-73 8-2840 Email: [email protected]

Of Counsel for the Respondent (Appellant), Agent for the Respondent (Appellant), The Attorney General of Ontario The Attorney General of Ontario

THE CITY OF TORONTO BORDEN LADNER GERVAIS City of Toronto, Legal Services, World Exchange Plaza Metro Hall, 55 John Street, 26th Floor 1300-100 Queen Street Toronto, Ontario M5V 3C6 Ottawa, ON KlP 1J9 Fax: (416) 397-5624 Karen Perron Diana W. Dimmer Tel: 613-369-4795 Tel: 416-392-7229 Fax: 613-230-8842 Email: [email protected] Email: [email protected] Ottawa Agent for the Applicant Glenn K.L. Chu Tel: 416-392-7224 Email: [email protected]

Fred Fischer Tel: 416-397-5407 Email: [email protected]

Philip K. Chan Tel: 416-392-1650 Email: [email protected]

Counsel for the Applicant (Respondent), The City of Toronto

AND TO:

TORONTO DISTRICT SCHOOL BOARD LEGAL SERVICES 5050 Yonge Street, 5th Floor Toronto, ON M2N 5N8

PaulKoven Tel: 416-397-3565 Email: [email protected]

Counsel for the Intervener (Intervener)

INDEX

TAB DOCUMENT PAGE

1 Memorandum of Argument of the Respondent, Attorney General of Ontario 2 dated January 16, 2020 - Response to Application for Leave to Appeal

2 Notice of Conditional Application for Leave to Cross-Appeal of the 56 Respondent, Attorney General of Ontario, dated January 16, 2020

3 Memorandum of Argument of the Respondent, Attorney General of Ontario 64 dated January 16, 2020 - Conditional Application for Leave to Cross-Appeal

Documents in Support of the Response to Application for Leave to Appeal

4 Legislative Assembly of Ontario, Hansard, August 2, 2018 (Excerpt from the 92 Joint Appeal Book, Vol. 5, Tab 50, pp 352, 355-56)

5 Factum of the Respondent, the City of Toronto, filed at the Court of Appeal 98 for Ontario in proceeding C65861, dated May 6, 2019 at p 30 (Excerpt)

6 Affidavit of Andrew Sancton, sworn October 30, 2018 (Excerpt; Exhibits 104 excluded) (From the Fresh Evidence Motion Record, Vol. 3, Tab 4, pp 1517- 1557, 1565)

7 Affidavit of Anthony Fowler, sworn October 30, 2018 (Excerpts; Exhibits 188 excluded) (From the Fresh Evidence Motion Record, Vol. 1, Tab 3, pp 266- 68, 283)

8 Cross-examination of Giuliana Carbone on her Affidavit sworn August 22, 196 2018 and her Affidavit sworn December 3, 2018, held March 5, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 1, Tab 1A and B, pp 9, 18-19, 39-40, 50-56, 76-77, 81-82, 91, 192-94)

9 Cross-examination of Gary Davidson on his Affidavit affirmed August 27, 234 2018, held March 11, 2019 (Excerpts) (From the Supp Fresh Evidence

Motion Record, Vol. 1, Tab 3A, pp 414-15, 419-23, 426, 431, 434, 449, 450, 451, 458, 461, 464, 467-70, 472-76)

10 Cross-examination of Mariana Valverde on her Affidavit sworn August 20, 284 2018, held March 7, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 3, Tab 12A, pp 1802, 1821-22, 1855, 1859-61, 1864-66, 1870, 1888-89, 1894-1900, 1912-15, 1932, 1962, 1966-70)

A. Exhibit 1 to the Cross-Examination of Mariana Valverde: “City 348 Bureaucrats and Village Elders: The Dysfunctional Dance of Local Governance” in Everyday Law on the Streets by Mariana Valverde (From the Supp Fresh Evidence Motion Record, Vol. 3, Tab 12A1)

11 Cross-examination of Myer Siemiatycki on his Affidavit sworn August 21, 382 2018, held March 8, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 3, Tab 11A, pp 1647, 1649-57, 1660-62, 1664-69, 1711)

12 Cross-examination of Lily Cheng on her Affidavit affirmed August 21, 2018, 404 held February 13, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 1, Tab 2A and B, pp 306-07, 359-60, 363, 373, 380-81)

13 Cross-examination of Chiara Padovani on her Affidavit sworn August 21, 420 2018, held March 1, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 3, Tab 10B, pp 1520-22, 1534, 1543, 1548-49, 1551)

14 Cross-examination of Chris Moise on his Affidavit sworn August 20, 2018, 438 held February 14, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 2, Tab 8B, pp 819-20)

15 Cross-examination of Dyanoosh Youssefi on her Affidavit affirmed August 442 22, 2018, held March 5, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 4, Tab 14B, pp 2119-22, 2146)

16 Cross-examination of Jennifer Hollett on her Affidavit affirmed August 21, 452 2018, held February 13, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 1, Tab 5A and B, pp 587-88, 621)

17 Cross-examination of Megann Willson on her Affidavit sworn August 21, 462 2018, held February 12, 2019 (Excerpts) (From the Supp Fresh Evidence

iii

Motion Record, Vol. 4, Tab 13B, pp 2023-25, 2032, 2041)

18 Cross-examination of Susan Dexter on her Affidavit sworn August 21, 2018, 470 held February 11, 2019 (Excerpts) (From the Supp Fresh Evidence Motion Record, Vol. 1, Tab 4A, pp 500-01).

A. Exhibit 3 to the Cross-Examination of Susan Dexter: City of Toronto 474 By-Law 598-2018 (From the Supp Fresh Evidence Motion Record, Vol. 1, Tab 4A3)

19 Members of the Resource Task Force, Municipal Government in a New 476 Canadian Federal System: Report of the Resource Task Force on Constitutional Reform – Federation of Canadian Municipalities – Ottawa (1980) (Excerpt, pp 123, 126)

20 Affidavit of Aleksei Ponomarev, affirmed January 14, 2020 482

A. Exhibit A: Toronto City Manager, “Report for action” (October 15, 488 2019), online: City of Toronto https://www.toronto.ca/legdocs/mmis/2019/ex/bgrd/backgroundfile- 138688.pdf (Excerpt, pp 1-4)

21 Ontario Ministry of Transportation, News Bulletin, “Joint Statement by 496 Ministers of Transportation on the Province’s GTA Transit Plan” (29 October 2019), online: Queen’s Printer for Ontario < https://news.ontario.ca/mto/en/2019/10/statement-by-minister-of- transportation-on-the-provinces-gta-transit-plan.html> (Excerpt)

22 Ontario Ministry of Municipal Affairs and Housing, News Bulletin, 500 “Governments of Canada and Ontario Sign Canada’s First Housing Benefit” (19 December 2019), online: Queen’s Printer for Ontario < https://news.ontario.ca/mma/en/2019/12/governments-of-canada-and- ontario-sign-canadas-first-housing-benefit.html>

23 Ontario Ministry of Municipal Affairs and Housing, News Bulletin, “Ontario 508 Investing in Supportive Housing in Toronto” (24 October 2019), online: Queen’s Printer for Ontario

Additional Documents in Support of the Conditional Application for Leave to Cross-Appeal

24 Affidavit of Josh Hunter, sworn October 31, 2018 (Exhibits excluded) (from 514 the Fresh Evidence Motion Record, Vol. 1, Tab 2)

25 Letter from Counsel for Ontario to Justice Belobaba, dated August 24, 2018 560 (Enclosures excluded) (from the Joint Appeal Book, Vol. 1, Tab 21)

26 Affidavit of Adam Kanji, affirmed August 27, 2018 (Exhibits excluded) (from 568 the Joint Appeal Book, Vol. 5, Tab 47)

27 Notice of Application of the City of Toronto dated August 22, 2018 (Excerpt) 576 (From the Joint Appeal Book, Vol. 1, Tab 17, pp 2423-2426)

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Court File No: 38921

IN THE SUPREME COURT OF CANADA (ON APPLICATION FOR LEAVE TO APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

CITY OF TORONTO Applicant (Respondent) and

ATTORNEY GENERAL OF ONTARIO Respondent (Appellant) and

TORONTO DISTRICT SCHOOL BOARD

Intervener (Intervener)

MEMORANDUM OF ARGUMENT OF THE RESPONDENT, ATTORNEY GENERAL OF ONTARIO (Response to Application for Leave to Appeal) (Rules 27 and 29 of the Rules of the Supreme Court of Canada)

ATTORNEY GENERAL OF ONTARIO POWER LAW Constitutional Law Branch 130 Albert Street, Suite 1103 McMurtry-Scott Building Ottawa, ON K1P 5G4 720 Bay Street, 4th Floor Toronto, ON M7A 2S9 Fax: 416-326-4015

Robin K Basu (LSO# 32742K) Maxine Vincelette Tel: 416-995-5249 Tel: 613-702-5573 Email: [email protected] Email: [email protected]

Yashoda Ranganathan (LSO# 57236E)

Tel: 647-637-0883

Email: [email protected]

Aud Ranalli (LSO# 72362U) Tel: 416-738-2840 Email: [email protected]

Of Counsel for the Respondent (Appellant), Agent for the Respondent (Appellant), The Attorney General of Ontario The Attorney General of Ontario

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Diana W. Dimmer Tel: 613-369-4795 Tel: 416-392-7229 Fax: 613-230-8842 Email: [email protected] Email: [email protected] Ottawa Agent for the Applicant Glenn K.L. Chu Tel: 416-392-7224 Email: [email protected]

Fred Fischer Tel: 416-397-5407 Email: [email protected]

Philip K. Chan Tel: 416-392-1650 Email: [email protected]

Counsel for the Applicant (Respondent), The City of Toronto

AND TO:

TORONTO DISTRICT SCHOOL BOARD LEGAL SERVICES 5050 Yonge Street, 5th Floor Toronto, ON M2N 5N8

Paul Koven Tel: 416-397-3565 Email: [email protected]

Counsel for the Intervener (Intervener)

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TABLE OF CONTENTS

PART I – OVERVIEW AND STATEMENT OF FACTS ...... 1 Overview ...... 1

Facts ...... 3

1) First Instance Judgment ...... 7 2) Stay Pending Appeal ...... 7 3) October 22, 2018 Election and Following ...... 8 4) Fresh Evidence ...... 9 5) Court of Appeal Allows Appeal...... 10 PART II – QUESTION IN ISSUE ...... 11 PART III – ARGUMENT ...... 11 The City’s objection to Bill 5 was political, not legal, and does not raise novel constitutional issues warranting review by this Court ...... 11

The City’s claim that s. 2(b) was breached by “mid-election interference” in 2018 would not provide the only remedy the City seeks and is legally untenable ...... 13

1) No remedy applicable to future elections for 2018 “mid-election interference” 13 2) Alleged s. 2(b) breach for “mid-election interference” was properly dismissed as untenable under this Court’s settled s. 2(b) jurisprudence ...... 14 3) Alleged s. 2(b) breach for “mid-election interference” incompatible with parliamentary authority to revoke or amend delegated power at any time ...... 16

Charter s. 3’s protection of effective representation at the federal and provincial levels cannot be imported into s. 2(b) for municipal government ...... 17

Unwritten constitutional principles of democracy and rule of law do not support the invalidation of Bill 5 and, in any event, were respected ...... 18

Toronto District School Board’s “Response” should be given no weight ...... 19 PARTS IV AND V – ORDER SOUGHT AND SUBMISSIONS ON COSTS ...... 20 PART VI – TABLE OF AUTHORITIES ...... 21

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PART I – OVERVIEW AND STATEMENT OF FACTS

Overview

1. Ontario opposes Toronto’s application for leave to appeal the Court of Appeal’s dismissal of the challenge to the Better Local Government Act, 2018, SO 2018, c 11 (Bill 5). If leave to appeal is granted, Ontario seeks leave to cross-appeal the dismissal of its fresh evidence motion

(see submissions at Tab 3).

2. The City’s proposed appeal does not raise issues of public importance, nor any issue of sufficient importance to warrant leave.

3. There is no uncertainty or gap that warrants being addressed on the proposed appeal in this Court’s applicable jurisprudence on Charter ss. 2(b) or 3, the province’s authority over municipal institutions or the principles of democracy and the rule of law. The reduction in the size of Toronto’s municipal council is not an issue of national public importance. Nor is the fact that the 2018 Toronto election was conducted on a 25-ward basis, as required by Bill 5, rather than on a 47-ward basis as the City by-law provided. The 2018 election proceeded under Bill 5 and the new council is governing the City. No one asserts that the new council is not the legitimate, democratically-elected government of Toronto, or that the 2018 election under Bill 5 lacked integrity, was undemocratic or inconsistent with the rule of law.

4. The Court of Appeal held unanimously that there was no merit to the Application Judge’s finding that Charter s. 2(b) guarantees “effective representation” in city councils and, thus, a maximum ratio of constituents to city councillors. Charter s. 3 is the Charter’s guarantee of effective representation and it only applies to the federal and provincial legislatures. As this

Court has repeatedly held, municipalities were deliberately excluded from the scope of Charter s. 3. Protection for effective representation for municipalities cannot be read into s. 2(b).

5. Nothing in Bill 5 impaired the free expression of candidates, their supporters or voters.

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The City itself asserts no impairment of its own expression. All the individual participants at first

instance – candidates, organizers and electors – have settled their claims.

6. As found by the Court of Appeal majority, a finding of s. 2(b) breach due to alleged

“mid-election” interference by a change to ward structure is inconsistent with this Court’s settled

jurisprudence. Section 2(b) does not guarantee that expression must be free from state action that

could render it less effective. The claim amounts to a demand for the maintenance of an existing

municipal electoral system as the platform for expression during an election period, not for

access to the means necessary for the exercise of a fundamental freedom. The election under Bill

5 provided an equally effective platform for free expression.

7. The dissenting opinion in the Court of Appeal would have held that Bill 5 breached s.

2(b) because it was enacted during the municipal election period. Had this view prevailed, it

would have been a radical departure from existing law. As it was a minority view – shared by

only two of the eight Court of Appeal judges who considered this claim1 – leave is unnecessary

to affirm the application of settled law.

8. The claim of mid-election interference, even if accepted, would not justify the remedy

sought by the City: a declaration that Bill 5 is unconstitutional for the 2022 and subsequent municipal elections, but not in respect of the 2018 election. Even on the theory of the s. 2(b) infringement found by the dissenting justices of the Court of Appeal, Bill 5 could validly be re- enacted today, now that the election period is over. The proposed appeal on this issue would therefore have no practical significance or utility.

9. As the majority on appeal observed, the City’s complaint is clothed in Charter s. 2(b) language “... to invite judicial intervention in what is essentially a political matter. There is no

1 A three-judge panel granted a stay of the Application Judge’s ruling to allow the Toronto election to proceed in October 2018 under Bill 5. They were unanimously of the view that the alleged mid- election interference did not ground a viable s. 2(b) claim. The five-judge appeal panel, by a 3-2 majority, reached the same conclusion.

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legitimate basis for the court to accept this invitation” [para 6]. There is also no public interest in

having this matter proceed further through the court system. The provincial and City

governments have moved on from this controversy to deal cooperatively with shared concerns.

This is not a case where this Court must intervene to restore intergovernmental cooperation.

Facts

10. The constitutional challenge arises from a highly unique situation, namely the confluence

of two elections – the first provincial and the second municipal – occurring in relatively quick

succession on June 7 and October 22, 2018, the first of which resulted in a new provincial

government taking office. The provincial election commenced May 9 and was held four weeks

later on June 7, with a new government sworn in on June 29, 2018.

11. Rather than wait more than four years to reform the Toronto council system for the

October 2022 municipal election, the newly elected provincial government wanted to work as

soon as possible – i.e., as of the October 2018 election – with a more streamlined, effective and efficient 26-member council consisting of a mayor and 25 councillors elected from 25 wards corresponding to Toronto’s federal electoral districts.2

12. The new provincial government considered the existing 45-member city council to be

characterized by dysfunction, arising at least in part from its unwieldy size. The provincially-

legislated amalgamation of Toronto and its boroughs in 1997 had contemplated that a smaller

council would eventually be put in place. The large council of the amalgamated City – initially

with the mayor and 56 councillors, later reduced by legislation to the mayor plus 44 councillors

representing wards based on the 22 federal electoral districts – was contemplated as transitional.3

2 Legislative Assembly of Ontario, Hansard, August 2, 2018 [Hansard (2 August 2018)], Response to the Application for Leave to Appeal and Conditional Application for Leave to Cross-Appeal of the Respondent, Attorney General of Ontario [RR], Tab 4. 3 Affidavit of Professor Sancton, sworn October 30, 2018 at ¶74 [Sancton aff], RR, Tab 6 (Note: where this memorandum of argument refers to Ontario’s fresh evidence, the footnoted reference is italicized); Fewer Municipal Politicians Act, SO 1999, c 14.

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13. The 45-member council was thought to be the only city council in the democratic world with a membership approaching 50 except those with party-systems or strong-mayors. There has been concern for many years about the dysfunction of Toronto’s council, symptomatic of which are drawn-out meetings focusing on dozens of local issues rather than broad policy.4

14. The 44-ward model was unchanged for five election cycles up to 2018, although the City acquired the power under the City of Toronto Act, 20065 to amend its ward structure and council composition. By 2014, uneven population growth resulted in wards that did not provide voter parity. Some wards exceeded twice the population of others.6 In response, the City (after a consultant’s review) adopted a new 47-ward model for 2018. The new 47-ward model was upheld by a divided Ontario Municipal Board (OMB) panel in late 2017. With leave to appeal refused by a single judge of the Divisional Court on March 6, 2018, the city council’s composition was confirmed by bylaw on May 24, 2018, three weeks after nominations opened on May 1.7

15. Not only did the City’s new model result in an increase in council size from 45 to 48, as stressed by the dissent at the OMB, it failed to remedy the issue of voter parity for 2018.8 The new provincial government wanted both a smaller, more effective council for Toronto, and to ensure that the October 2018 municipal election better respected voter parity among wards, with wards drawn by way of an independent process (relying on the federal commission process).

16. Although the new 47-ward model was intended to address voter parity, under the new

4 Sancton aff at ¶¶70, 81, RR, Tab 6; Cross-examination of Mariana Valverde held March 7, 2019 at qq 706-27 [Valverde cr-x], RR, Tab 10; Exh. 1 to Valverde cr-x, “City Bureaucrats and Village Elders: The Dysfunctional Dance of Local Governance”, RR, Tab 10A. 5 SO 2006, c 11, Sch A, ss 128-129 (historical version as of August 13, 2018). 6 Court of Appeal Decision at ¶12. 7 Di Ciano v Toronto, 2017 CanLII 85757 (OMB) [OMB Decision]; Natale v Toronto, 2018 ONSC 1475; By-Law 598-2018. 8 OMB Decision at¶47 (dissent).

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model some wards still had up to twice the population of others (with 17 of the 47 wards having

variances greater than +/-15% using 2016 Census data, ten with variances greater than +/-20%),

resulting in gross deviations from voter parity.9 The City’s new model aimed for parity for the

2026 election based on population projections.10 Sacrificing the equal voice of voters in 2018 for

potential parity eight years later was unacceptable to the new provincial government.

17. To put reforms in place in sufficient time for the October 2018 election, Bill 5 was introduced on July 30, two and a half weeks after the first sitting day of the new Legislature. The

responsible Minister set out the policy rationale for Bill 5 at Second Reading:

First, they [councillors in support of a 25-ward model] agree that a smaller council will lead to better decision-making at Toronto city hall, which would benefit Torontonians as a whole. They gave an example of the current 44-member council having 10-hour debates on issues that would end with the vast majority of councillors voting the same as they would have at the beginning of the debate. …

Second, they point out that it will save money, and those savings go beyond just the savings of those councillors’ salaries. The current 44-member council also creates a huge challenge for the Toronto bureaucracy, which has to respond to motion upon motion, to reports, reports and more reports, and then to deferrals and then more deferrals. [At the] most recent city council meeting, … there were 128 members’ motions presented. If we allowed council to grow to 47 and hadn’t acted quickly, many believe the situation would have become worse. …

Third, it would result in a fair vote for residents, which was the very reason Toronto itself undertook a review of its ward boundaries. The Toronto councillors I referred to earlier reminded everyone that the Supreme Court of Canada said that voter parity is a prime condition of effective representation. They gave examples of the current ward system, where there are more than 80,000 residents in one ward and 35,000 in another. They acknowledge that this voter disparity is the result of self-interest, and that the federal and provincial electoral district process is better because it is an independent process which should apply to Toronto as well. … The wards we are proposing are arrived at through an independent process. [Emphasis added]11

9 Sancton aff at ¶¶40-41, chart 1 (at ¶40), RR, Tab 6. 10 Cross-examination of Gary Davidson held March 11, 2019 at qq 5-6, 28-30 [Davidson cr-x], RR, Tab 9. 11 Hansard (2 August 2018), RR, Tab 4.

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18. Bill 5 established ward boundaries by adopting the boundaries created by the independent

Federal Electoral Boundaries Commission for Toronto’s 25 federal electoral districts (which

have also been adopted for the province’s elections since 199912).

19. Bill 5 was passed on August 14, 2018, leaving nine and a half weeks for the newly

constituted municipal election to proceed. The municipal election period under Bill 5 would thus

be about twice as long as the provincial election just completed.

20. To be fair to candidates, Bill 5 extended the nomination deadline for candidates

(established under the Municipal Elections Act, 1996, SO, c 32, Sch, s. 31 (MEA)) from July 27 to September 14 (MEA, s. 10.1(3)). The Ministry of Municipal Affairs and Housing worked with

the City Clerk to ensure that the election under Bill 5 would proceed smoothly and fairly.13

21. In accordance with ss. 33(4)(a) of the MEA, nominations had opened for an election

under the City’s 47-ward model on May 1, 2018. Thus, the municipal election was already

“underway” – in the sense that candidates were free to file their nomination and thereby bind themselves to the campaign fundraising and expense limits in the MEA and regulations.14

22. There is no doubt that existing candidates’ expectations and reliance interests were

affected, as they would have to stand for election in the larger, more populous wards that were

adopted by Bill 5. However, by operation of ss. 88.20(6) and 88.9.1(1) of the MEA, along with s.

5 of O Reg 101/97, spending limits are population-based, and therefore increased proportionately

to the increase in ward population. With respect to fundraising, there are no ward-based

restrictions on donors.

12 Except for Northern Ontario: see Representation Act, 2015, SO 2015, c 31, Sch 1, s 2(1). 13 Affidavit of Adam Kanji, affirmed August 27, 2018 at ¶¶4, 7 [Kanji aff], RR, Tab 26; Cross- examination of Giuliana Carbone held March 5, 2019 at q 22 [Carbone cr-x], RR, Tab 8; Ontario also filed O Reg 407/18 and O Reg 408/18 on August 15, 2018 clarifying the rules for the 2018 election. 14 Upon filing a nomination, the campaign fundraising and expense limits of the MEA begin to apply and candidates may begin to accept contributions and incur expenses: MEA, s. 88.20(2).

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23. It was an unhappy coincidence that the Toronto municipal election was already

“underway” when the 2018 provincial election itself had yet to commence: the writs were issued

for the June 7, 2018 election on May 9. Had the provincial election been held and a new

Legislature constituted earlier in the year, or had the MEA provided for a later nomination date,

the new provincial government could have reformed the composition of Toronto’s council and

its ward system beforehand rather than after the municipal nomination date. Given the timing of

the two electoral processes in 2018, the provincial government had to intervene legislatively after

the municipal nomination date, if the government wished to ensure that its reforms were in place

for the October 2018 election, rather than waiting for October 2022. The other, more disruptive alternative (adverted to by the majority in the Court of Appeal at para 45) to avoid “mid- election” legislative interference would have been for the province to implement its reforms after

October 2018 by reducing the size of the council that had just been elected.

1) First Instance Judgment

24. On September 10, 2018, the Application Judge found that Bill 5 breached Charter s. 2(b)

in two ways: (1) that the timing of the legislation caused expression under the previously set 47-

ward election to be wasted and made less effective; and (2) that the increase in the ward

population size from an average of 61,000 to 111,000 resulted in a lack of effective

representation, which the Application Judge held was an aspect of the right to vote protected

under s. 2(b). The Application Judge found a lack of evidence from the Crown to be fatal to the

s. 1 justification of Bill 5 as a policy measure to improve voter parity for the 2018 election and

the effectiveness of Toronto’s council. The Application Judge struck down the legislation and

ordered that a 47-ward election take place on October 22, 2018.

2) Stay Pending Appeal

25. By decision dated September 19, 2018 (2018 ONCA 761), a three-judge panel of the

Court of Appeal (Hoy A.C.J.O. and Sharpe and Trotter JJ.A.) granted a stay pending appeal and

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ordered that a 25-ward election in accordance with Bill 5 proceed on October 22, 2018. Given

that its decision would determine how the 2018 election would proceed, the panel paid “greater

attention … to the merits of the constitutional claim” [para 11]. It found a “strong likelihood” that the court below had erred in law and the appeal would succeed [paras 11, 20].

26. The panel held the Application Judge’s interpretation of s. 2(b) “stretch[ed] both the wording and the purpose of s. 2(b) beyond the limits of that provision” and “blur[ed] the demarcation between two distinct provisions of the Charter: the protection of expressive activity in s. 2(b) and the s. 3 guarantee of the democratic rights” which do not apply to municipal elections [para 12]. It was “difficult to see how the right to effective representation, which is at the core of s. 3, is somehow embraced by s. 2(b)” [para 17]. The Court observed that “[t]he size of the City’s electoral wards is a question of policy and choice to be determined by the legislative process subject to other provisions of the Charter, including s. 15(1)” and “whether wards of 61,000 or 110,000 are required to ensure effective representation is a debatable issue that cannot be determined by reference to the right to freedom of expression” [para 18]. Bill 5 did not “limit or restrict any message the candidates wish[ed] to convey to voters” after it was passed or “erase messages conveyed earlier” [para 13]. The holding that Bill 5 infringed s. 2(b) by making candidates’ messages less effective was “not supported by the jurisprudence interpreting s. 2(b)” [para 16].

3) October 22, 2018 Election and Following

27. As a result of the stay, the October 22, 2018 City election proceeded under Bill 5. The 26 member City Council elected on that day is currently governing Toronto.

28. None of the present (or former) parties to this litigation contended that the October 22 election was undemocratic, unfair or lacked integrity. No party contends that Bill 5 restricted the free expression of candidates’ or other persons’ views or voters’ choices in the election under

Bill 5. No party seeks (or sought) to set aside the results of the 2018 election or unseat the

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council elected in that election. No party doubts the democratic legitimacy of the current council.

29. The City concedes that it did not exercise any right under s. 2(b) in connection with the

municipal election campaign and its s. 2(b) rights (if any) were not impaired by Bill 5.15

30. The individuals (candidates, organizers and electors) who participated at first instance as

applicants or interveners have settled the litigation and consented to the province’s appeal.

4) Fresh Evidence

31. After the stay order, Sharpe J.A. set a schedule for the delivery of fresh evidence by

Ontario, as well as reply and cross-examinations, which the schedule insisted upon by the

Application Judge had failed to accommodate.16 Ontario served expert affidavits responsive to

the Charter claims and addressing s. 1.17 The cross-examinations yielded admissions from the

Applicants’ witnesses on the issue of “effective representation”,18 flaws in the consultant’s review that led to the adoption of the City’s 47-ward model,19 the appropriateness of adopting

the federal electoral boundaries for Toronto’s wards,20 voter parity,21 and the longstanding

dysfunction of Toronto’s existing Council.22

15 Carbone cr-x at qq 303-311, RR, Tab 8. 16 Affidavit of Josh Hunter, sworn October 31, 2018 at ¶¶40-42, 52-53 [Hunter aff], RR, Tab 24. 17 Hunter aff at ¶¶49, 53, RR, Tab 24. 18 Carbone cr-x at qq 320-25, 431-35, RR, Tab 8; Valverde cr-x at qq 53, 118, 297-304, 320-24, 569- 70, RR, Tab 10; Davidson cr-x at qq 308-10, RR, Tab 9; Cross-examination of Myer Siemiatycki held March 8, 2019 [Siemiatycki cr-x] at qq 262-65, RR, Tab 11. 19 Carbone cr-x at qq 54-55, 146-154, 194-208, 222, RR, Tab 8; Davidson cr-x at qq 5-6, 22-63, 88- 91, 105-106, 173-90, 228-56, RR, Tab 9; Siemiatycki cr-x at qq 238-50, RR, Tab 11; Valverde cr-x at qq 693-96, RR, Tab 10; see Sancton aff at ¶¶28-29, 44-59, RR, Tab 6. 20 Siemiatycki cr-x at qq 166-195, 248-50, 262-63, RR, Tab 11; Davidson cr-x at qq 264, 281, 302, 308-10, RR, Tab 9; see Sancton aff at ¶30-41, RR, Tab 6. 21 Siemiatycki cr-x at qq 166-195, RR, Tab 11; see Sancton aff at ¶¶38, 41, RR, Tab 6. 22 Valverde cr-x at qq 255-59, 400-500, 713-728, RR, Tab 10; Ex 1 to Valverde cr-x, “City Bureaucrats and Village Elders: The Dysfunctional Dance of Local Governance”, RR, Tab 10A; Sancton aff at ¶¶81, 85-87, RR, Tab 6.

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5) Court of Appeal Allows Appeal

32. A five-judge panel of the Court of Appeal heard the appeal on the merits. In the Court of

Appeal the City of Toronto did not seek any remedy in relation to the 2018 election, but rather

only sought a remedy (a declaration of invalidity suspended for four years) that would have the

2022 municipal election proceed on the basis of 47 wards.23 In other words, Bill 5 would be

invalidated only as it applied to the 2022 and subsequent elections, but the results of the 2018

election would remain undisturbed.

33. The Court of Appeal held 3-2 that there was no merit to the constitutional challenge, but

rather that the claimant essentially sought court intervention on a political matter:

[…] none of the arguments advanced by the City of Toronto can succeed. Although it is framed as a matter of protecting freedom of expression in the context of a municipal election, in reality the applicant’s complaint concerns the timing of the legislature’s decision to change the composition of City Council – a change that is undeniably within the legitimate authority of the legislature. The applicants’ complaint has been clothed in language of s. 2(b) of the Charter to invite judicial intervention in what is essentially a political matter. There is no legitimate basis for the court to accept this invitation. [para 6]

34. The dissent would have held that it was the timing of Bill 5’s enactment alone that

unjustifiably infringed Charter s. 2(b) and would have invalidated the legislation on this basis.

On all other arguments, the dissent agreed with the majority – i.e., there was no breach of s. 2(b)

of the Charter arising from the increased ward population and unwritten constitutional principles

could neither invalidate Bill 5, nor limit the scope of s. 92(8) of the Constitution Act, 1867.

35. The majority dismissed Ontario’s fresh evidence motion as unnecessary, since it could

dispose of the appeal as a matter of law. The dissent made no comment on the fresh evidence

motion, despite stating, without further analysis, that there was no s. 1 justification for Bill 5.

23 Court of Appeal Decision at ¶27; Factum of the City of Toronto, filed at the Court of Appeal for Ontario in proceeding C65861, dated May 6, 2019,¶122, RR, Tab 5.

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PART II – QUESTION IN ISSUE

36. Ontario submits that leave should not be granted as the proposed appeal does not raise issues warranting review by this Court. In particular, as set out below:

A. The City’s objection to Bill 5 was political, not legal, and does not raise novel

constitutional issues warranting review by this Court.

B. The City’s claim that s. 2(b) was breached by “mid-election interference” in 2018 would

not provide the only remedy the City seeks and is legally untenable.

C. Charter s. 3’s protection of effective representation at the federal and provincial levels

cannot be imported into s. 2(b) for municipal government.

D. Unwritten constitutional principles of democracy and rule of law do not support the

invalidation of Bill 5 and, in any event, were respected.

PART III – ARGUMENT

The City’s objection to Bill 5 was political, not legal, and does not raise novel constitutional issues warranting review by this Court

37. As held by the Court of Appeal majority, the City’s objection to the enactment of Bill 5 is essentially a political, not a legal, one. The Legislature has the power under s. 92(8) of the Constitution Act, 1867 to alter the composition of and electoral process for municipal councils at any time. For constitutional purposes the City is the delegate of the provincial legislature and, in accordance with 120 years of consistent jurisprudence, delegated authority can be revoked or amended at any time. The statutes which create and regulate the City, its governance and elections can be amended from time to time in the same manner as any other statute.24 38. Here, the Legislature decided to reduce the size of Toronto’s council for the 2018 municipal election. This unsettled expectations, particularly because the City had, through the exercise of provincial authority delegated in 2006, chosen a different ward structure and council

24 Court of Appeal Decision at ¶10 and the cases cited at footnote 32 of this factum.

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composition some months before.

39. Contrary to the City’s assertion, this Application does not raise novel issues. In 1997, a similar challenge was brought to legislation amalgamating Toronto’s regional government and the six municipalities within it. The applicants argued:

- the City of Toronto Act, 1997 violated s. 2(b) of the Charter because the ratio between numbers of voters and elected representatives under the new legislation was too high, diminishing access to elected representatives; and

- this reduced access would adversely impact disadvantaged persons.25

40. Both the Court at first instance and the Court of Appeal dismissed the challenge (and this

Court refused leave). Abella J.A. (as she then was) wrote that there was “neither jurisprudential nor evidentiary support for these arguments” [para 5]. The dispute was not legal but political:

There is, with respect, no evidence of the existence either of a constitutional norm or of a constitutional convention so restricting provinces [from exercising its authority under s. 92(8) to change municipal boundaries through passing the City of Toronto Act, 1997]. When altering municipal institutions, there are undoubtedly sound political reasons for a provincial government to exercise great care in the process of consultation and, ultimately, of reform. The expressions of public disapproval with the methodology employed prior to the passage of the City of Toronto Act, 1997 confirm this truism. However, courts can only provide remedies for the public's grievances if those grievances violate legal, as opposed to political proprieties. What is politically controversial is not necessarily constitutionally impermissible. [para 12] [Emphasis added]

41. Similarly, here, the dispute is political, rather than legal. There is no basis to justify granting leave to appeal to address this political dispute. Both governments have moved beyond this dispute to address important issues of joint concern,26 leaving this controversy behind them.

This Court’s intervention is in no way required to restore intergovernmental harmony.

25 East York (Borough) v Ontario (Attorney General) (1997), 34 OR (3d) 789 at ¶¶19, 28 (Gen Div) [East York GD] aff’d 36 OR (3d) 733 at ¶4 (CA) [East York CA], leave to appeal to SCC refused, 26385 (2 April 1998). 26 See Toronto City Manager, “Report for Action” (October 15, 2019), RR, Tab 20A; and see Ontario News Bulletins, RR, Tabs 21-23.

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The City’s claim that s. 2(b) was breached by “mid-election interference” in 2018 would not provide the only remedy the City seeks and is legally untenable

42. In its leave application, the City stresses the fact that the Court of Appeal dissent

accepted that the enactment of Bill 5 after nominations opened for the 2018 municipal election

infringed s. 2(b) because it “blew up” the expressive “efforts, aspirations and campaign

materials” for the 47-ward election, since once Bill 5 was enacted, the 47-ward election was no

more [at para 136]. However, the City’s claim that s. 2(b) was breached by “mid-election interference” in 2018: (1) would not provide the only remedy the City seeks, namely invalidation of Bill 5 for future elections, not the 2018 election; (2) was properly dismissed by the Court of

Appeal as untenable under this Court’s settled s. 2(b) jurisprudence; and (3) is incompatible with parliamentary authority to revoke or amend delegated power at any time.

1) No remedy applicable to future elections for 2018 “mid-election interference”

43. The City seeks no remedy in connection with the 2018 election or the council elected in

2018. The City is thus not seeking a remedy in relation to the Charter breach asserted. Rather, the City seeks an order declaring Bill 5 unconstitutional, but suspended for four years, to enable it to conduct the 2022 and subsequent elections based on its 47-ward model.

44. When granting a remedy for a Charter breach, a court must “define carefully the extent

of the inconsistency between the statute in question and the requirements of the Constitution,”

and then tailor the remedy to the breach.27 If only the “mid-election” timing of Bill 5 is

unconstitutional (as held by the dissent), declaring Bill 5 unconstitutional for future elections is

not the remedy.

45. Granting leave to appeal to the City to advance this “mid-election interference” claim is

of no practical utility or significance, because no party wants the relief that would flow from a

finding of s. 2(b) breach in relation to that claim. The City does not want to invalidate Bill 5 for

27 Schachter v Canada, [1992] 2 SCR 679 at 697.

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the 2018 election as that would undermine the validity of the 2018 election held under Bill 5 and the legitimacy (and possibly the legal authority) of the council elected in that election. The individuals who actually complained of mid-election interference (and the undermining of their expectations that the relevant election law would remain unchanged after a change of provincial government) have abandoned their claims.

46. Moreover, even a declaration from this Court to take effect in 2022 that Bill 5 is invalid for breaching Charter s. 2(b) due to its interference in the 2018 election, would not assist the

City to escape the imposition of a 25-ward model for 2022 and later years if the province were simply to re-enact the substance of Bill 5 at any time prior to the nomination date for the 2022 municipal election. Even under the dissent’s view of the law, this would not be “mid-election” interference that attracts Charter scrutiny.

2) Alleged s. 2(b) breach for “mid-election interference” was properly dismissed as untenable under this Court’s settled s. 2(b) jurisprudence

47. In any event, the majority on appeal and the stay panel’s reasoning that Charter s. 2(b) does not protect the effectiveness of on-going or past expression, or any particular platform for expression, such as a 47-ward election – even if already “underway” – is firmly grounded in this

Court’s s. 2(b) jurisprudence, the soundness of which there is no reason to doubt.

48. Section 2(b) protects meaningful freedom of expression, not meaningful expression. As stated by the Court of Appeal majority:

…s. 2(b) protects against interference with expressive activity itself, not its intended result. Put another way, freedom of expression does not guarantee that government action will not have the side-effect of reducing the likelihood of success of the projects or joint enterprises that any person is working to achieve. Accordingly, legislation that changes some state of affairs (such as the number of electoral wards), such that a person’s past communications lose their relevance and no longer contribute to the desired project (election to public office), is not, on that basis, a limitation of anyone’s rights under s. 2(b). [para 41] [Emphasis added].

49. The Court of Appeal went on to hold that the claim really sought protection for a

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particular platform for expression and not freedom from interference with expressive activity.

The test for such a positive rights claim was not met. Replacement of the 47-ward model under

Bill 5 did not substantially interfere with anyone’s ability to say anything they wished. They were free to campaign, donate, receive information and vote in the 25-ward election [para 64].

50. This application of the law is consistent with this Court’s decision in Baier:

… diminished effectiveness in the conveyance of a message does not mean that s. 2(b) is violated. There must be substantial interference with the fundamental freedom. School employees may express themselves in many ways other than through running for election as, and serving as, a school trustee.28

51. Dissenting in Baier, Fish J. described the claim there in the same terms as the Application

Judge and the dissent here. Fish J. reasoned that once the state had created a “process grounded in the democratic election of school board trustees,” when it subsequently excluded school employees from running, it “substantially interfered” with their freedom of expression by denying “them access to the unique platform upon which debate on local education policy is meant mainly and effectively to proceed:”

Representative democracy is fundamental to our system of government. Where a legislature establishes a universal and democratic system of local governance, and then effectively prohibits the participation in that system of a particular group of otherwise qualified citizens, the state must be required to justify that prohibition.29

52. This reasoning was properly rejected by the majority in Baier. It was also rejected in this

Court’s earlier decisions in Haig and NWAC, which both implicated the ability of citizens and groups to engage meaningfully in political expression of the highest order: participation in a national forum and referendum on constitutional reform.30

53. Governments routinely change law or policy in ways that can undermine the value of expression by participants in the municipal (or other) electoral or voting processes. For example,

28 Baier v Alberta, 2007 SCC 31 at ¶48; see also Court of Appeal Stay Decision at ¶16. 29 Baier at ¶¶109-10 (per Fish J). 30 Baier at ¶60; Haig v Canada, [1993] 2 SCR 995 at 1035, 1040-1041 [Haig]; Native Women’s Assn v Canada, [1994] 3 SCR 627 at 656, 663 [NWAC].

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the relocation of marijuana dispensaries, safe injunction sites, or mental health facilities by

provincial fiat can undermine the electoral messages of municipal candidates and others. The

raison d’être of a particular candidate’s campaign may collapse entirely as a result of such a

measure enacted mid-election. That cannot be said to give rise to a s. 2(b) violation. As the Court

of Appeal majority noted, the dissent’s reasoning fails to account for the fact that Bill 5 (or even

the abolishment of City Council) could have been enacted after the conclusion of the municipal

election, rendering the entire election campaign, and all the expression that was made in it, meaningless and “wasted.” Yet the dissent acknowledges that municipal electoral reform is unfettered outside the election period.31

3) Alleged s. 2(b) breach for “mid-election interference” incompatible with parliamentary authority to revoke or amend delegated power at any time

54. To accept the dissent’s reasoning, this Court would have to overturn the body of bedrock jurisprudence that the legislature may delegate powers to subordinate bodies, but that every delegation nonetheless reserves to the legislature the authority to revoke or amend the delegated

power at any time.32

55. Under the dissent’s reasoning, legislatures would be barred from legislating with respect to any subordinate body that has opened nominations for an election, effectively constitutionalizing on a temporary but recurring basis the electoral process of the subordinate.

Presumably, the same principle would apply to limit legislative changes to a vote or referendum held under legislation. This would run directly counter to this Court’s holding in Siemens.33

31 Court of Appeal Decision at ¶¶43, 45 (majority), ¶¶99-100 (dissent). 32 Re Pan-Canadian Securities Regulation, 2018 SCC 48 at ¶¶ 53-54, 62, 74; Public School Boards’ Assn of Alberta v Alberta (AG), 2000 SCC 45 at ¶¶33-36; R v Furtney, [1991] 3 SCR 89 at 104; Coughlin v Ontario (Highway Transport Board), [1968] SCR 569 at 574; Re Regulations in Relation to Chemicals, [1943] SCR 1 at 18 (per Rinfret J) and at 26 (per Davis J); Hodge v The Queen (1883), 9 App Cas 177 at 132 (PC); AG of Nova Scotia v AG of Canada, [1951] SCR 31 at 46, 49; In Re George Edwin Gray, [1918] 57 SCR 150 at 157; Re Canada Assistance Plan (BC), [1991] 2 SCR 525 at 548-549. 33 Siemens v Manitoba (Attorney General), 2003 SCC 3 at ¶42.

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Charter s. 3’s protection of effective representation at the federal and provincial levels cannot be imported into s. 2(b) for municipal government

56. To obtain the remedy the City really wants, namely reinstatement of its power to

establish its ward system/council composition and revert to a 47-ward model or another model of

its choosing, the City must succeed on either its effective representation claim or its claim that

the unwritten constitutional principles of democracy and the rule of law are an independent basis

to strike down Bill 5 or limit the province’s plenary jurisdiction over municipalities under s.

92(8) of the Constitution Act, 1867.

57. As found unanimously by both the stay and appeal panels, there is no basis for the claim

that s. 2(b) protects “effective representation” in municipal elections or governance structures, let

alone a maximum constituent to councillor ratio.34 This Court’s settled jurisprudence amply

supports this finding.35

58. The effective representation claim is refuted by the express text of Charter s. 3, which by its terms only applies to the federal and provincial levels of government. The exclusion of municipalities from s. 3 of the Charter was not an oversight. A specific request for constitutional recognition of municipalities in 1980 was not adopted.36

59. Charter s. 3, not s. 2(b), embraces the concept of effective representation. Even Charter

s. 3 does not mandate any particular ratio between representatives and their constituents, or any

particular size of legislative body.37 The Application Judge’s endorsement of a constitutionally-

mandated ratio would not even be achievable, practical or stable in the future in light of

34 Stay Decision at ¶12; Court of Appeal Decision at ¶¶70-78 (majority), ¶99 (dissent). 35 Haig at 1035, 1039-40. 36 Members of the Resource Task Force, Municipal Government in a New Canadian Federal System: Report of the Resource Task Force on Constitutional Reform – Federation of Canadian Municipalities – Ottawa (1980), RR, Tab 19. 37 Reference re Electoral Boundaries, [1991] 2 SCR 158 at 179-189; East York GD at ¶20; East York CA at ¶3.

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Toronto’s growth.

60. There is no reason to accede to the City’s suggestion that this Court reconsider this claim

which would involve a wholesale amendment of the text of the Constitution. This Court has held

that it is not for the courts to create a third order of government within the constitutional

architecture “where the words of the Constitution read in context do not do so.”38

Unwritten constitutional principles of democracy and rule of law do not support the invalidation of Bill 5 and, in any event, were respected

61. Unwritten constitutional principles may be used as an interpretative aid to fill a true gap in the written text of the Constitution. Such instances will be rare. Where there is no such gap, unwritten principles cannot be used to re-write the Constitution.39 There is no gap here.

Municipalities were excluded from s. 3 of the Charter. Limiting the provincial legislatures’

power conferred by s. 92(8) over their municipal delegates can only be done by constitutional

amendment.40

62. Using unwritten constitutional principles to invalidate legislation would (as noted above)

undermine parliamentary sovereignty, another fundamental constitutional principle. Further, if

unwritten constitutional principles could invalidate legislation there would be no opportunity to

justify state action under s. 1 of the Charter, upsetting the balancing of rights under the Charter

and elevating these principles to a status not accorded to Charter rights.41

63. Even if unwritten principles could be used to invalidate legislation, they would not

38 Baier at ¶39. 39 Court of Appeal Decision at ¶¶87, 94; Reference re Secession of Quebec, [1998] 2 SCR 217 at ¶53; British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49 at ¶67 [Imperial Tobacco]; Campisi v Ontario, 2017 ONSC 2884 at ¶55, aff’d 2018 ONCA 869 (on other grounds). Unwritten constitutional principles have been used to fill “true gaps” in the constitutional text only in the judicial compensation context: see Re Remuneration of Judges of the Prov Court (PEI), [1997] 3 SCR 3 at ¶89. The principle of respect for minorities has been used to invalidate executive action, not legislation: Lalonde v Ontario (2001), 56 OR (3d) 505 at ¶123 (CA). 40 Constitution Act, 1982, s 38. 41 Babcock v Canada (Attorney General), 2002 SCC 57 at ¶¶55-57; Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at ¶66.

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support doing so here. The supremacy of the legislature is itself an expression of the principles of democracy and rule of law. It is the Legislative Assembly, not City Council, which is the relevant elected body under the Constitution that exercises the will of our representative democracy in respect of its assigned powers. As this Court has held, the principle of democracy strongly favours the application of valid legislation that conforms to the Constitution’s express terms. The rule of law as applicable to the legislative branch means only that the legislature must comply with legislated requirements as to manner and form.42

64. The present case, with its unique factual matrix emerging from a change in provincial democratic governance that reflected the choice of the provincial electorate and that occurred when a municipal election process had started, followed by implementation of the new provincial government’s policy goals by way of Bill 5, is hardly a suitable case to fruitfully examine the scope of unwritten principles. This case involves nothing more unusual than the subordination of the local “democratic” preferences of the City to the lawfully expressed will of the democratically-elected provincial legislature.

65. In the end, the province did not deprive Toronto of local democracy or offend the rule of law. It simply changed the structure for the democratic municipal election in 2018 through duly enacted law. The democratic outcome of the municipal election has been respected, as the elected council now lawfully and legitimately governs the City pursuant to authority delegated to it by the provincial legislature.

Toronto District School Board’s “Response” should be given no weight

66. This Court should give no weight to the “Response” of the Toronto District School Board

(TDSB) in support of the City’s leave application. Before the Superior Court, the TDSB intervened on narrow remedial questions pertaining to the alignment of the school trustee election with the City Council election in the event that Bill 5 were struck down. Before the

42 Imperial Tobacco at ¶¶66-67.

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Court of Appeal, the TDSB filed no factum, but made brief oral submissions seeking no relief if

Ontario were successful, and an order aligning the school trustee wards with the City’s wards if

Ontario were unsuccessful. The TDSB took no position on the merits. Although, the TDSB now claims (referring to alleged facts which are not in the record) that the 2018 school trustee election

“devolved…into disarray”, no relief has ever been sought in the courts below in relation to such an allegation. Ontario submits that in considering whether leave to appeal should be granted, this

Court ought not to consider matters that were not in issue below or the views of a party intervener that took no position on the merits.

PARTS IV AND V – ORDER SOUGHT AND SUBMISSIONS ON COSTS

67. Ontario requests an order dismissing the application for leave with costs. If leave to appeal is granted, Ontario requests an order granting leave to appeal the dismissal of its fresh evidence motion (see submissions at Tab 3).

All of which is respectfully submitted this 16th day of January, 2020.

______Robin K Basu Yashoda Ranganathan Aud Ranalli

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PART VI – TABLE OF AUTHORITIES

Cases Paragraph Reference in Factum 1. Attorney General of Nova Scotia v Attorney General of Canada, 60 [1951] SCR 31

2. Babcock v Canada (Attorney General), 2002 SCC 57, [2002] 3 68 SCR 3

3. Baier v Alberta, 2007 SCC 31, [2007] 2 SCR 673 56, 57, 58, 66

4. Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, [2002] 2 68 SCR 559

5. British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, 67, 69 [2005] 2 SCR 473

6. Campisi v Ontario, 2017 ONSC 2884, aff’d 2018 ONCA 869 (on 67 other grounds)

7. Coughlin v Ontario (Highway Transport Board), [1968] SCR 569 60

8. Di Ciano v Toronto, 2017 CanLII 85757 (OMB) 16, 17

9. East York (Borough) v Ontario (Attorney General) (1997), 34 OR 45, 46, 65 (3d) 789 (Gen Div), aff’d 36 OR (3d) 733 (CA), leave to appeal to SCC refused, 26385 (2 April 1998)

10. Haig v Canada, [1993] 2 SCR 995 58, 63

11. Hodge v The Queen (1883), 9 App Cas 117 (PC) 60

12. In Re George Edwin Gray, [1918] 57 SCR 150 60

13. Lalonde v Ontario (Commission de restructuration des services de 67 santé) (2001), 56 OR (3d) 505 (CA), 2001 CanLII 21164 (ON CA)

14. Natale v Toronto, 2018 ONSC 1475 16

15. Native Women’s Assn of Canada v Canada, [1994] 3 SCR 627 58

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16. Public School Boards’ Assn of Alberta v Alberta (AG), 2000 SCC 60 45, [2000] 2 SCR 409

17. R v Furtney, [1991] 3 SCR 89 60

18. Reference re Canada Assistance Plan (BC), [1991] 2 SCR 525 60

19. Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, 60 [2018] 3 SCR 189

20. Reference re Prov Electoral Boundaries, [1991] 2 SCR 158 65

21. Reference re Remuneration of Judges of the Prov Court of PEI; 67 Re Independence and Impartiality of Judges of the Prov Court of PEI, [1997] 3 SCR 3

22. Reference re Secession of Quebec, [1998] 2 SCR 217 67

23. Reference re Validity of the Regulations in Relation to Chemicals 60 Enacted by Order in Council and of an Order of the controller of Chemicals Made Pursuant Thereto, [1943] SCR 1

24. Schachter v Canada, [1992] 2 SCR 679 50

25. Siemens v Manitoba (Attorney General), 2003 SCC 3, [2003] 1 61 SCR 6

Legislation and Regulations Paragraph Reference in Factum 1. Better Local Government Act 2018, SO 2018, c 11 1, 5, 7, 8, 9, 10, 13, 20, 21, 22, (English) 23, 24, 26, 28, (Français) 29, 31, 32, 33,

35, 38, 41, 42, 43, 48, 49, 51, 52, 55, 59, 62, 70

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2. City of Toronto Act, 1997, SO 1997, c 2 (was repealed on January 45 1, 2007)

(English) (Français)

3. City of Toronto Act, 2006, SO 2006, c 11, Sch A (historical 16 version as of August 13, 2018)

(English): ss 128-129 (Français): arts 128-129

4. City of Toronto, by-law No 598-2018, To Confirm the 14 Composition of Council (May 24, 2018)

(English)

5. Constitution Act, 1867, 30 & 31 Victoria, c 3 40, 43, 62

(English): s 92(8) (Français): art 92(8)

6. Constitution Act, 1982, being Schedule B to the Canada Act 1982 4, 6, 8, 9, 10, (UK), 1982, c 11 11, 28, 31, 35, 37, 39, (English): ss 1, 2, 3, 38 40, 41, 42, (Français): arts 1, 2, 3, 38 45, 48, 51, 52, 53, 54, 59, 63, 64, 65, 67, 68

7. Fewer Municipal Politicians Act, SO 1999, c 14 14

(English) (Français)

8. Municipal Elections Act, 1996, SO 1996, c 32 Sched 24, 25, 26, 27 (English): ss 10.1, 31, 33(4), 88.9.1, 88.20 (French): art 10.1, 31, 33(4), 88.9.1, 88.20

9. O Reg 101/97 under Municipal Elections Act, 1996, SO 1996, c 26 32, Sch

(English): s 5 (Français): art 5

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10. O Reg 407/18, 2018 and 2022 Regular Elections – Special Rules 24 under Municipal Elections Act, 1996, SO 1996, c 32, Sch

(English) (Français)

11. O Reg 408/18, Wards under City of Toronto Act, 2006, SO 2006, c 24 11, Sch A

(English) (Français)

12. Representation Act, 2015, SO 2015, c 31, Sch 1 22

(English): s 2(1) (Français): art 2(1)

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Court File No: 38921

IN THE SUPREME COURT OF CANADA (ON APPLICATION FOR LEAVE TO APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

CITY OF TORONTO Applicant (Respondent) and

ATTORNEY GENERAL OF ONTARIO Respondent (Appellant) and

TORONTO DISTRICT SCHOOL BOARD

Intervener (Intervener)

NOTICE OF CONDITIONAL APPLICATION FOR LEAVE TO CROSS-APPEAL OF THE RESPONDENT, ATTORNEY GENERAL OF ONTARIO

TAKE NOTICE that, in the event that this Court grants the Applicant, City of Toronto, leave to appeal the judgment of the Court of Appeal for Ontario, docket Number: C65861, made September 19, 2019

(the “Court of Appeal Judgment”), the Respondent, Attorney General of Ontario (“Ontario”), hereby applies for leave to cross-appeal to this Court, pursuant to Rule 29 of the Rules of the Supreme Court of Canada,

SOR/2002-156, as amended, from the Court of Appeal Judgment solely with respect to the dismissal of

Ontario’s motion for leave to adduce fresh evidence on appeal.

AND FURTHER TAKE NOTICE that this Conditional Application for Leave to Cross-Appeal is made on the following grounds:

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1. The majority in the Court of Appeal dismissed the motion to adduce fresh evidence because it found that the constitutional challenge to Bill 5 was legally untenable and that it was unnecessary to consider the fresh evidence. The dissent did not address the motion.

2. If leave is granted, the fresh evidence adduced by Ontario should be admitted to provide this Court a complete factual record for consideration of the constitutional claims.

3. In the current case, the Application Judge did not have the benefit of a full record from the Attorney

General.

4. The Application Judge declined to adjust the schedule for the hearing of the merits despite the service, days before the hearing, of an enormous volume of new evidence, including expert evidence. As a result, Ontario was not provided a meaningful opportunity to file responding evidence, including expert evidence or conduct cross-examinations at first instance.

5. The first instance decision suffered from the incomplete record. The Application Judge said he was

“obliged” on the absence of s. 1 evidence to invalidate Bill 5.

6. It is well-established that an Attorney General must be provided an opportunity to support the validity of legislation by bringing forward the fullest and best evidence possible. This protects the public interest by ensuring that laws are not casually or cavalierly either set aside or upheld. A complete and proper record is essential to ensuring that the democratic mandate of an elected government is not called into question without an adequate basis to do so.

7. Where Attorneys General have not been provided a full opportunity to respond in the court below, parties are only permitted to raise constitutional issues where there is no prejudice flowing to the Attorney

General. This is not such an instance.

8. If leave is granted, the cross-appeal is necessary to ensure that the Court is not faced with an incomplete record from the Attorney General and a claimants’ record untested by cross-examination.

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9. The fresh evidence filed on Ontario’s motion for leave to adduce fresh evidence in the Court of

Appeal consists of the following:

- Affidavit of Professor Andrew Sancton: addressing the s. 1 justification for Bill 5 including the

dysfunction of Toronto’s council arising, in part, from its size; the policy soundness of adopting wards

corresponding to Toronto’s 25 federal electoral districts; deficiencies in the consultant’s review which

led to the adoption of the 47-ward model; and 2018 voter parity.

- Affidavit of Professor Anthony Fowler: setting out an empirical rebuttal to claims that the reduction in

wards under Bill 5 might discourage minority participation or electoral success.

- Transcripts of the cross-examinations of the candidates, electors and organizers, the Interim City

Manager, consultant Gary Davidson and Professors Valverde and Siemiatycki.

- A book of documents filed in lieu of cross-examination of the Deputy City Clerk.

- A procedural affidavit: setting out the procedural history relevant to the fresh evidence motion and the

procedural fairness ground of the appeal.

10. The Applicant, City of Toronto, had a full opportunity to respond, but declined to file any reply expert evidence, or to cross-examine either of Ontario’s experts. On the motion, the City objected only to the evidence of Professor Sancton.

11. The fresh evidence meets the test for admitting fresh evidence on appeal as: (1) the evidence is admissible; (2) it is sufficiently cogent to reasonably be expected to have affected the outcome; and (3) there was no lack of diligence in the failure to adduce it.

12. There is no issue that the evidence is admissible, as it consists of transcripts of the cross-examination of affiants, the affidavits of properly qualified experts, an affidavit setting out the procedural history relevant to the fresh evidence motion and the procedural fairness ground of the appeal, and agreed documents.

13. The evidence could reasonably be expected to have affected the outcome given that: (a) the

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Application Judge’s conclusions regarding the impact of Bill 5 on the Charter s. 2(b) rights of candidates and electors were undermined by Ontario’s fresh expert evidence, as well as admissions obtained on cross- examination; and (b) the Application Judge relied on the paucity of responding evidence in finding no justification under Charter s. 1 for the breach.

14. The failure to adduce expert evidence and conduct cross-examinations below did not result from a lack of diligence. It was due to the maintenance of the August 31 hearing date over the Crown’s objections.

Counsel for Ontario diligently conducted a wide survey of potential experts to respond to the claimants’ experts, but no one was able to assist within the time constraints.

15. Granting the cross-appeal, and ultimately admitting the fresh evidence, will impose no significant cost in terms of “consumption of time, prejudice and confusion.” The City has already had a full opportunity to file reply evidence and conduct cross-examinations.

Dated at Toronto, Ontario this 16th Day of January, 2020.

______Robin K Basu Aud Ranalli

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Court File No: 38921

IN THE SUPREME COURT OF CANADA (ON APPLICATION FOR LEAVE TO APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

CITY OF TORONTO Applicant (Respondent) and

ATTORNEY GENERAL OF ONTARIO Respondent (Appellant) and

TORONTO DISTRICT SCHOOL BOARD

Intervener (Intervener)

MEMORANDUM OF ARGUMENT OF THE RESPONDENT, ATTORNEY GENERAL OF ONTARIO (Conditional Application for Leave to Cross-Appeal) (Rules 27 and 29 of the Rules of the Supreme Court of Canada)

Robin K Basu (LSO# 32742K) Maxine Vincelette Tel: 416-995-5249 Tel: 613-702-5573 Email: [email protected] Email: [email protected]

Aud Ranalli (LSO# 72362U)

Tel: 416-738-2840

Email: [email protected]

Of Counsel for the Respondent (Appellant), Agent for the Respondent (Appellant), The Attorney General of Ontario The Attorney General of Ontario

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Fred Fischer Tel: 416-397-5407 Email: [email protected]

Philip K. Chan Tel: 416-392-1650 Email: [email protected]

Counsel for the Applicant (Respondent), The City of Toronto

AND TO:

TORONTO DISTRICT SCHOOL BOARD LEGAL SERVICES 5050 Yonge Street, 5th Floor Toronto, ON M2N 5N8

Paul Koven Tel: 416-397-3565 Email: [email protected]

Counsel for the Intervener (Intervener)

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TABLE OF CONTENTS

PART I – OVERVIEW AND STATEMENT OF FACTS ...... 1

PART II – QUESTIONS IN ISSUE ...... 5 PART III – ARGUMENT ...... 5

PARTS IV AND V – ORDER SOUGHT AND SUBMISSIONS ON COSTS ...... 10 PART VI – TABLE OF AUTHORITIES ...... 11

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PART I – OVERVIEW AND STATEMENT OF FACTS

Overview

1. If leave to appeal is granted, Ontario seeks leave to cross-appeal the dismissal of its motion to adduce fresh evidence. The majority in the Court of Appeal dismissed the motion for fresh evidence because it found that the constitutional challenge to Bill 5 was legally untenable and that it was unnecessary to consider Charter s. 1. The dissent did not address the motion.

2. If leave is granted, the fresh evidence adduced by Ontario should be admitted so that this

Court has the complete record before it for consideration of the constitutional claims.

3. Evidence from both sides is crucial for deciding constitutional challenges to legislation.

In this case, the Application Judge did not have the benefit of a full record from the Attorney

General.1 In particular, this Court’s jurisprudence is clear about the need to provide Attorneys

General, who have a special role in constitutional litigation, with a full opportunity to respond to constitutional challenges to their government’s legislation. Where courts decide constitutional challenges without providing a fair opportunity to the appropriate Attorneys General to respond, ill-considered decisions can be made.2

5. The first instance decision suffered from the incomplete record. The Application Judge said he was “obliged” on the absence of s. 1 evidence to invalidate Bill 5 [paras 76-78].

6. A grant of leave to cross-appeal from the dismissal of the fresh evidence motion is the

1 In this memorandum of argument, as well as the Response to the Application for Leave to Appeal, references to Ontario’s fresh evidence are italicized. 2 MacKay v Manitoba, [1989] 2 SCR 357 at 361.

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necessary first step to place the relevant evidence before this Court if leave to appeal is granted.

Facts

7. The failure to afford Ontario with a meaningful opportunity to adduce responding evidence, including expert evidence, and conduct cross-examinations, arose as follows.

8. On August 7, 2018, candidate Rocco Achampong served a legal challenge to Bill 5 (then before the Legislature). His challenge was unsupported by any evidence of consequence to the constitutionality of Bill 5 and, at the time, alleged no breach of the Charter. On consent, on

August 14, a scheduling judge fixed August 31 for a hearing of the merits.3

9. Meanwhile, it had been publicly disclosed that City Council would determine on August

20, 2018 whether it would bring a challenge. The August 14 scheduling judge fixed August 31 date for the hearing of the City’s potential challenge jointly with Mr. Achampong’s, subject to:

- an express caveat by Crown counsel that the viability of the schedule would depend on

the facts the City chose to put into issue; and,

- a further attendance to be held at scheduling court on August 21 to address potential

issues that might arise as matters developed.4

10. On August 20, eleven days prior to the scheduled hearing of the merits, a number of individuals commenced a separate challenge, raising for the first time ss. 2(b), (d) and 15(1), of the Charter as well as unwritten constitutional principles. On August 20 and 22, they served over

400 pages of evidence comprised of ten affidavits, including two expert affidavits. On August

21, multiple individuals sought and were granted intervener status, and the right to file evidence,

3 Affidavit of Josh Hunter, sworn October 31, 2018 at ¶¶4, 15, 19 [Hunter aff], Response to the Application for Leave to Appeal and Conditional Application for Leave to Cross-Appeal of the Respondent, Attorney General of Ontario [RR], Tab 24. 4 Hunter aff at ¶¶15-16, 18-20, RR, Tab 24.

-73- -74- 3 consisting of five affidavits, totaling over 650 pages.5

11. On August 20, the City decided to bring a challenge. On August 22, it served a claim based on “effective representation,” Charter ss. 2(b), 3 and unwritten constitutional principles, and over 1,000 pages of evidence including affidavits from its officials and an expert.6

12. Contrary to the direction of the August 14 scheduling Judge, the matter was not spoken to again at scheduling court on August 21, but was traversed to the Application Judge, who did not have the benefit of the transcript of the original scheduling hearing.7 Under the schedule, the

Crown’s evidence was due August 27, the claimants’ facta on the 28th, and the Crown’s factum on the 29th. No time was provided for cross-examinations.8 Despite the developments, the

Application Judge declined to adjust the schedule to allow time for the Crown to respond or conduct cross-examinations. By letter, the Crown restated its objection that it was deprived of a meaningful opportunity to engage experts or to cross-examine, and reserved the right to adduce fresh evidence.9

13. In finding Bill 5 unconstitutional, the Application Judge held that there was “no evidence” to support the legislation, and as such he was “obliged to find on the evidence before

[him]” that the breaches of s. 2(b) of the Charter could not be saved under Charter s. 1.10 He specifically adverted to “time constraints” as being a possible explanation for the absence of evidence.11

5 Hunter aff at ¶¶27-29, 32(f), 34, RR, Tab 24. 6 Hunter aff at ¶¶26, 36, RR, Tab 24, Notice of Application of the City of Toronto dated August 22, 2018 at ¶¶ 2(v)-(x), RR, Tab 27. 7 Hunter aff at ¶33, RR, Tab 24. 8 Hunter aff at ¶¶32(e), 41, RR, Tab 24. 9 Hunter aff at ¶¶44-46, RR, Tab 24; Letter from Counsel for Ontario to Justice Belobaba, dated August 24, 2018, RR, Tab 25. 10 Application Judge Decision at ¶¶70-72, 78. 11 Application Judge Decision at ¶64.

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14. After the Application Judge’s order was stayed by the Court of Appeal, a schedule was fixed by Sharpe J.A. for the delivery of Ontario’s fresh evidence and any reply. Ontario served responding expert evidence addressing the procedural history, ss. 2(b), 15(1) and s. 1, and conducted cross-examinations, which together constitute the fresh evidence Ontario seeks to tender. The City did not file expert evidence in reply, nor did it cross-examine Ontario’s witnesses, despite the opportunity to do so.

15. The following fresh evidence was filed on the fresh evidence motion:

- Affidavit of Professor Andrew Sancton: addressing the s. 1 justification for Bill 5 including

the dysfunction of Toronto’s council arising, in part, from its size; the policy soundness of

adopting wards corresponding to Toronto’s 25 federal electoral districts; deficiencies in the

consultant’s review which led to the adoption of the 47-ward model; and 2018 voter parity.

- Affidavit of Professor Anthony Fowler: setting out an empirical rebuttal to claims that the

reduction in wards under Bill 5 might discourage minority participation or electoral success.

- Transcripts of the cross-examinations of the candidates, electors and organizers, the Interim

City Manager, consultant Gary Davidson and Professors Valverde and Siemiatycki.

- A book of documents filed in lieu of cross-examination of the Deputy City Clerk.

- A procedural affidavit: setting out the procedural history relevant to the fresh evidence

motion and the procedural fairness ground of the appeal.

16. On the motion, the City objected only to the evidence of Professor Sancton.

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PART II – QUESTIONS IN ISSUE

17. Ontario’s position is that if leave to appeal is granted, it should be granted leave to cross- appeal as the fresh evidence is highly relevant to the constitutional defence of the Charter claim.

Although Ontario agrees with the majority in the Court of Appeal that the claims are legally untenable, if this Court hears the City’s appeal, it should not do so without a full record.

PART III – ARGUMENT

Constitutional challenges to legislation should not be heard without providing Attorneys General a full opportunity to respond with evidence

18. It is well-established that an Attorney General must be provided an opportunity to support the validity of legislation by bringing forward the “fullest and best evidence possible.” 12

Provincial legislatures and the federal Parliament have all recognized the “special role”

Attorneys General play in constitutional litigation and have enacted notice provisions to ensure that they are provided a sufficient opportunity to participate in constitutional challenges.13

19. The participation of Attorneys General in constitutional cases ensures that “the law is given a thorough airing, with all the parties having a chance to bring and test the evidence.”14

This protects the public interest “by ensuring that laws are not casually or cavalierly either set aside or upheld.”15A complete and proper record is essential to ensuring that the democratic mandate of an elected government is not called into question without an adequate basis to do so.

It is “inappropriate – and unwise” for a court to assess the validity of legislation when the

12 Ernst v Alberta Energy Regulator, 2017 SCC 1 at ¶108 [Ernst]; Eaton v Brant County Board of Education, [1997] 1 SCR 241 at ¶48 [Eaton]; Guindon v Canada, 2015 SCC 41 at ¶19 [Guindon]. 13 Guindon at ¶23, 112-117. 14 Ernst at ¶61; Guindon at ¶19, 115. 15 Ernst at ¶61; Eaton at ¶48.

-79- -80- 6 government has lost the opportunity to properly meet the case against it.16

20. As Sopinka J. explained in Eaton (and as was recently stressed by Abella J. in Ernst):

In our constitutional democracy, it is the elected representatives of the people who enact legislation. While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised except after the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it but to the people. Moreover, in this Court, which has the ultimate responsibility of determining whether an impugned law is constitutionally infirm, it is important that in making that decision, we have the benefit of a record that is the result of thorough examination of the constitutional issues in the courts or tribunal from which the appeals arise.17 [Emphasis added]

21. In Ernst, the claimant had failed to provide appropriate notice of a constitutional question challenging the applicability of a statutory immunity provision against an Energy Resources

Conservation Board. A majority of this Court dismissed the appeal, which resulted in the Charter claim being struck. Abella J., concurring in the result, noted that the failure to provide proper notice resulted in “no record and in the Attorney General of Alberta having lost the opportunity to properly meet the case against it.” She concluded that “until the s. 1 justificatory evidence is explored, this Court should not replace the necessary evidence with its own inferences.”18 That is effectively what the Application Judge did in his s. 1 analysis.

22. Where Attorneys General have not been provided a full opportunity to respond in the courts below, this Court has only permitted parties to raise constitutional issues where there is no prejudice flowing to the Attorney General. In Guindon, this Court stressed the importance of ensuring that no Attorney General had been denied the opportunity to address the constitutional

16 Ernst at ¶113. 17 Eaton at ¶48; cited in Ernst at ¶108 (emphasis added). 18 Ernst at ¶¶113, 120.

-81- -82- 7 question,19 and observed that, on the facts, “[n]o one has suggested that any additional evidence is required.”20 The opposite is the case here.

Should leave be granted, this Court should not be faced with an incomplete record from the Attorney General and a claimants’ record untested by cross-examination

23. Ontario had no meaningful opportunity to file a full responding record or test the case against it. As a result, the court at first instance did not have an adequate record on which to decide the challenge. As the majority in the Court of Appeal dismissed the constitutional challenge as untenable in law, it considered the fresh evidence to be unnecessary and dismissed the motion for leave to file it. Thus, to ensure the fresh evidence is part of the record in this

Court, if leave is granted, the cross-appeal is necessary.

The test for admitting fresh evidence on appeal would be met

24. The test for admitting fresh evidence on appeal21 would be met here: (1) the evidence is admissible, (2) it is sufficiently cogent that it could reasonably be expected to have affected the outcome, and (3) there was no lack of diligence in the failure to adduce it.

25. There is no issue that the evidence is admissible, as it consists of transcripts of the cross- examination of affiants, the affidavits of properly qualified experts, an affidavit setting out the procedural history relevant to the fresh evidence motion and the procedural fairness ground of the appeal, and agreed documents.

26. The evidence could reasonably be expected to have affected the outcome. Relying on the claimants’ untested evidence, the Application Judge found two breaches of s. 2(b): (1) interference with the political speech of candidates due to the mid-election change in wards; and

19 Guindon at ¶23. 20 Guindon at ¶35 (emphasis added). 21 Palmer v The Queen, [1980] 1 SCR 759 at 775; R v Abbey, 2017 ONCA 640 at ¶¶44–45.

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(2) interference with voters’ freedom of expression by an increase in average ward population from 61,000 to 111,000, adversely impacting “effective representation”.

27. With respect to the first s. 2(b) breach, cross-examination of the candidates showed they continued to express themselves effectively in the 2018 election.22

28. With respect to the second s. 2(b) breach concerning “effective representation” the applicants’ contention was that councillors would not be able to address constituent “grievances and concerns” in a 25-ward model because of the increased population of wards. The

Application Judge relied on the opinion of consultant Gary Davidson that the reduction in council size undermined the “unique role of municipal councillors” in finding a breach of

“effective representation”.23 Cross-examination showed that the concern that councillors would not be able to address constituent concerns in a 25-ward model related to the delivery of City services.24 The evidence demonstrated that, in fact, it is not the role of councillors to address such concerns. Specifically:

- Professor Sancton’s affidavit and Professor Valverde’s cross-examination showed that

catering by councillors to the “grievances and concerns” of constituents rather than

focusing on broader policy is a source of dysfunction in Toronto’s municipal

22 Cross-examination of Chiara Padovani held March 1, 2019 at qq 130-34, 137, 163-187, 223- 224, 248, 262 [Padovani cr-x], RR, Tab 13; Cross-examination of Jennifer Hollett held February 13, 2019 at qq 191-98 [Hollett cr-x], RR, Tab 16; Cross-examination of Lily Cheng held February 13, 2019 at qq 329-35, 358-59, 418-21, 468-72 [Cheng cr-x], RR, Tab 12; Cross- examination of Dyanoosh Youssefi held March 5, 2019 at qq 142-44, 152-58, 248-250 [Youssefi cr-x], RR, Tab 15; Cross-examination of Chris Moise held February 14, 2019 at qq 146-48 [Moise cr-x], RR, Tab 14; Cross-examination of Megann Willson held February 12, 2019 at qq 90-102, 142, 183-85 [Willson cr-x], RR, Tab 17. 23 Application Judge Decision at ¶58. 24 Cross-examination of Mariana Valverde held March 7, 2019 at qq 278-83 [Valverde cr-x], RR, Tab 10; Hollett cr-x, qq 38-39, RR, Tab 16; Cheng cr-x, qq 135-44, RR, Tab 12; Cross- examination of Susan Dexter held February 11, 2019, q 47, RR, Tab 18. -85- -86- 9

governance;25

- the cross-examination of the Interim City Manager confirmed that concerns about the

delivery of City services are intended to be dealt with by City staff not councillors (the

City has a responsive infrastructure to deal with complaints) and also disclosed that the

newly-elected Council has adapted to operating with fewer councillors through a variety

of measures.26

This evidence would have supported a different conclusion on “effective representation”.

29. The Application Judge relied on the paucity of responding evidence in finding no justification under Charter s. 1 for the breach. It is reasonable that he would have reached a different conclusion with the benefit of Professor Sancton’s evidence that the Bill 5 model is good public policy to improve the functioning of Council and to provide better voter parity for

2018. The cross-examinations also include admissions on these issues.

30. Professor Fowler’s evidence and the cross-examination of Professor Siemiatycki focus on the s. 15(1) claim, which was not granted by the Application Judge and was not pursued on appeal. However, potential interveners in this Court may well try to implicate s. 15(1) issues, on which this evidence will be highly relevant.

31. The failure to adduce expert evidence and conduct cross-examinations below did not result from a lack of diligence.27 It was due to the maintenance of the August 31 hearing date over the Crown’s objections. Counsel diligently conducted a wide survey of potential experts to

25 Affidavit of Professor Sancton, sworn October 30, 2018 at ¶¶81, 85-87 [Sancton aff]; RR, Tab 6; Valverde cr-x at 255-59, 400-500, 713-728, RR, Tab 10; Ex 1 to Valverde cr-x, “City Bureaucrats and Village Elders: The Dysfunctional Dance of Local Governance”, RR, Tab 10A. 26 Carbone cr-x at qq 431-35, RR, Tab 8. 27 Hunter aff at ¶¶44-45, RR, Tab 24. -87- -88- 10 respond to the claimants’ experts, but no one was able to assist within the time constraints.28

32. Granting the cross-appeal, and ultimately admitting the fresh evidence, will impose no significant cost in terms of “consumption of time, prejudice and confusion.”29 The City has already had a full opportunity to file reply evidence and conduct cross-examinations.

PARTS IV AND V – ORDER SOUGHT AND SUBMISSIONS ON COSTS

33. The Respondent requests, only if the application for leave to appeal is granted, an order granting the application for leave to cross-appeal, with costs in the cause.

All of which is respectfully submitted this 16th day of January, 2020.

______Robin K Basu Aud Ranalli

28 Hunter aff at ¶¶39-40, RR, Tab 24; Professor Sancton, though not contacted prior to the hearing of the merits, would not in any event have been available to provide evidence prior to the hearing: Hunter aff at ¶40, RR, Tab 24, referring to Sancton aff at ¶124. 29 R v Abbey, 2009 ONCA 624 at ¶90. -89- -90- 11

PART VI – TABLE OF AUTHORITIES

Paragraph Reference in Factum 1. Eaton v Brant County Board of Education, [1997] 1 SCR 241 20, 21, 22

2. Ernst v Alberta Energy Regulator, 2017 SCC 1, [2017] 1 SCR 3 20, 21, 22, 23

3. Guindon v Canada, 2015 SCC 41 20, 21, 24

4. MacKay v Manitoba, [1989] 2 SCR 357 3

5. Palmer v The Queen, [1980] 1 SCR 759 26

6. R v Abbey, 2009 ONCA 624 34

7. R v Abbey, 2017 ONCA 640 26

Paragraph Reference in Factum 1. Better Local Government Act 2018, SO 2018, c 11 1, 5, 8, 15, 17

(English) (Français)

2. Constitution Act, 1982, being Schedule B to the Canada Act 1982 1, 5, 10, 11, (UK), 1982, c 11 15, 16, 28- 32 (English): ss 1, 2, 3, 15 (Français): arts 1, 2, 3, 15

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Legislative Assemblee Assembly legislative of Ontario de l'Ontario

Official Report Journal of Debates des debats (Hansard) (Hansard)

No. 14 N°14

1st Session 1re session 42"d Parliament 42° legislature Thursday Jeudi 2 August 2018 2 aoOt 2018

Speaker: Honourable Ted Arnott President : L'honorable Ted Arnott Clerk: Todd Decker Greffler : Todd Decker -93- -94-

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606 LBGISLATIVB ASSEMBLY OF ONTAlUO 2 AUGUST2018 les sel'vices dont leurs residents ont besoin et sur lesquels facing. Allowlng Tol'onto city councll to then grow to 47 ils comptent aujom· le jour. councillors, I think, would make that even worse, The The more efficiently municipalities are run, the better residents and businesses of Toronto deserve better than it is for then• residents. Towards that goal, our proposed that, and om· govemment ls aoting quickly to deliver on legislation would 1·educe the size of Toronto city council our promise and to deliver to the taxpayers. by aligning the city's municipal wa.t'd boundaries with Some may wonder if reducing the size of Toronto city provincial and federal electoral districts: 25 areas that council will negatively affect the representation of rnsi provide fail' and equitable representation and that are dents at city council. We looked lnto that, Speaker. We fantllia1· to voters. Candidates for council would now compared the avera~e population per ward under our nave until September 14 to decide in which of the new proposed legislation to the population per ward of com wards they wish to run. This would be done in time for paratively impo1iant oltles in other jurisdictions. Under the October 22 municipal election. our proposed legislation, the average ward size would be Our proposed refo1ms would also allow for the 109,263 people, based on the latest census figures. redistribution of Toronto-area school board trustee seats. Speaker, I believe this ls a very reasonable number. I want to emphasize that the numbe1• of trustees would The current size of council is unwieldy and a hin remain the same. As this ls governed by a regulation drance to decision-making and getting things done at city under the Education Act, I have engaged my cabinet hall. The opinion was stated on Friday, July 27, by many, colleague the Honournble Lisa Thompson, the Minister many Toronto counclllors. A press conference was held of Education, on this item. Her ministry will work with with Councillor Vincent Crisanti, Councillor Michael the four district school boards that would be affected by Ford, Counoi1101· Stephen Holyday, Councillor Justin Di this legislation to undertake the redistl'ibution of school Ciano, Counclllor Giorgio Mammoliti, Counclllor and board trustee electoral areas to align with the 25 new Speaker Frances Nunziata, Councillor Cesar Palacio, wards. Those fom· boards are as follows: the English Councillor David Shiner, Counclllor Michael Thompson public school board with 22 trustees, the English Catholic and Councillor and Deputy Mayor, East, Glenn De school board with 12 trustees, the French public school Baeremaeker. It's important to note that these councillors board with three trustees and the French Catholic school span a wide range of opinions, and they have different board with two trustees, political affiliations, Among them are first-time councilM The new nomination deadllne of September 14 would lors along with some very-long-tenn elected members. also apply to candidates for these Toronto-area school There is a pre-amalgamation mayo1• among the group, board trustee seats. I want to emphasize that these and three members of the mayor's executive colillDlt• timetable changes would only apply to the Tol'onto city tee-in short, Speaker, a varied and well-respected group council and school board trustee elections. Fmihermore, of councillors. they would apply to the cu1Tent election cycle only. 1630 We recognize that some candidates have already filed What they all share in common is that they voiced their nominations to run in the cun-ent ward system. If strong suppoli fo1· our reduced council size. They had our legislation is passed, to help those candidates h'ansiH tlu:ee .main 1·easons why they say that a smaller council is tion to the new wards, we would make regulations for needed, that purpose. The regulations would address how their First, they agree that a smaller council will lead to camp,aign contributions are transferred to theil' new better decision-making at Toronto city hall, which would campaigns, if they choose to l'Un in the new wards or benefit Torontonians as a whole, They gave an example school board electoral areas. There are no changes to ofthe current 44-membei· council havlng 10-hour debates nomination dates for the role of head of council, the on issues that would end with the vast maJo1'ity of mayor of Tol'onto, That date was July 27·, and nominaH councillors voting the same as they would have at the tions closed, as most people know, last Fdday. beginning of the debate, Time is wasted, Speaker. They Our ministries will work wlth the city and with the said that their Speaker often had to ask fol' quiet in the school board staff to ensure tliat they have the help and council chambers because no one was listening during support that we can offel' to run a successful municipal these debates. It takes too long to make the l'ight deci- election this year. There will be savlngs fo1· the city as sions. · well. We estimate that the reduction ln the size ofT01·on Second, they point out that it will save money, and to city council would save the taxpayel's approximately those savings go beyond just the savings of those $25,5 million over four years. That's $25.5 million taken counci1101•s' salaries, The CUl'l'ent 44-member council also out of administration that could be put fo1ward directly creates a huge challenge for the Toronto bureaucracy, helping the residents and businesses of the city of which has to respond to motion upon motion, to reports, Toronto. 1·eports and more repo1is, and then to deferrals and then The cur1•ent size of Toronto city council hinders more deferrals. Let's use the most recent city council decision-making. Debates al'e time-consuming, ineffi• meeting, where there were 128 members' motions cient and costly. Forty-four independent counclllors, each presented. Ifwe a\lowed council to grow to 47 and hadn't with their own agenda and outlook, hamstrlng the city's acted quickly, many believe the situation would have deoision--maklng on so many, many issues the city is become worse. Toronto city staff would have to work on -95- -96-

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2AO'OT2018 ASSEMBLBB LEGISLATIVE DE L'ONTARIO 607 all those reports instead of working on the issues that are and over again in question period, I think it's a good impo1'tant to the people of Toronto, lmportant issues like thing, and there are many, many others who support our transit, infrastructure and housing. proposed legislation and see the need for this bill. Third, it would result in a fair vote for residents, which Ward 24 councillor David Shiner said of last week's was the very 1·eason Toronto itself undertook a review of Toronto coimcil meeting-let me read his quote; it's a its ward boundaries. The Toronto counc!11ors I referred to great quote: "I will tell you to look at what has happened earlier reminded everyone that the Supreme Court of in the past week as the fact that we are dysfunctional. We Canada said that voter parity is a prime condition of started on Monday. Thls ls the longest meeting we have effective representation. They gave examples of the ever had. It's Friday aftel'noon and we still have not come cu1'1'ent ward system, where there are more than 80,000 close to finishing." He further added, "The fact that ou1· residents in one ward and 35,000 in anothe1•, They Premier, who has experienced all that :fi:ush·ation here; acknowledge that this voter disparity is the result of self decided to move quickly and make the decision on that I interest, and that the federal and provincial electoral think is absolutely right and I am 110% supportive of it." distl'ict process is better because it is an independent Speaker, these are people who experience the dys process which should apply to Toronto as well, I want to function at Tol'Onto city council every day and I think repeat that, Madam Speaker: The wards we are ptoposing their comments carry a bit of weight. are at'l'ived at through an independent p1·ocess. Hamilton mayor Fred Eisenbe1•ger refleoted on his The councillors that I mentioned agree that our pro own expel'iences at Hamilton city council, where they posed solution is fail'. They point out that it has worked have 16 councillors. He said, "Sixteen is difficult for both provincial and federal elections. The councillors enough; working with 47 would be virtually impossible." point out that Toronto's process fo1• achieving voter That's his quote. parity is an ongoing process. If allowed to continue, it Sensible solutions to this dysfunction are not new. would not reach voter parity and fahness tmtll 2026. Here's a quote from ward 11 councillor Frances That's eight years from now. Toronto voters would have Nunziata, who said, "When Mel Lastman was mayol' ... to wait another eight years of wasting taxpaye1·s' money we had 57 councillors. And at that time, there was a and endless debates for a fok election process in the city. motion to 1·educe the councillors and we reduced it down However, our proposed legislation, if passed, gives to 44. And then when David Miller was mayor, we Toronto residents vote1· fairness this year, in time fo1· the moved a motion to cut the council to 22." upcoming 2018 municipal election. Ward 3 councillor Stephen Holyday made a very How can anyone argue against giving the residents of convincing observation about our ptoposal for 25 wards Toronto a fair vote as soon as possible? Tornnto voters for Toronto, He said In his quote, "At the federal and will benefit from voter parity if ou1· legislation is passed, provincial level, we have a single representative in an Can people who are against om· proposed legislation area of that size. They seem to get it done.'' really believe that denying a fair vote for Torontonians is Madam Speaker, how can people argue against these equitable? Is this really what you want to be known for? comments? How can they argue against people who live After our announcement, many community and busi with this eve1y day at Toronto council? It works fat the ness leaders voiced their support to these changes. Our · federal level. It works for us at the provincial level. Why legislation, if passed, will meet the wishes of a majority would it not work at the municipal level? of Toronto residents. Just as ward 5 Councillor Justin Di This is not a new position for our Premier, As ward 37 Ciano said, "People are in favoU1' of smaller govern- councillor Michael Thompson said, "[The Premiet] is ments, less politicians." · being, basically, steadfast with respect to his position that At the current 44 seats and growing to 47 seats, To he bas always maintained, that the size of council needed ronto city council will become Increasingly dysfunctional to be addressed in order to be more efficient, more and Inefficient. A combinatlon of entrenched incumbency effective, and address the issue around cost." and established special interests hobbles the efficient Overall, I think this was an opportunity to sti·eamline, functioning at city hall. an opportunity to make decisions faster. We need to As ward 7 Councillor Giorgio Mammollti said at the make sure that this council can work fast, that it can councillors' news conference, 11I thJnk it's quite clear that move quickly after the. October 22 election and work on most of us up here have either made speeches 01· have those important issues like infrash'Ucture, like housing, moved motions in the past that very cleat·ly pointed to like transit. The people of Toronto should have the cutting ourselves in half because we are so :frush'ated opportunity to say they know who their member of with the system," That was his quote. Parliament is, to make su1·e it's the same jurisdiction as Let's l'emembet', Ml•, Speaker, that as Counclllor their member of p1•ovincial Parliament, and then to have Di Ciano said, "Going to 25 wards works for the federal the same judsdiotion fo1· theh• municipal councillor. level and works for the provincial level and wlll work for I want to talk about the nomination deadline, Our the city of To1·onto." Councillor Di Ciano is absolutely proposed legislation does something else. As I men right. I don't fot· one minute think that having the same tioned, if passed, it would change the nomination date in electoral district fo1• an MP, an MPP and a local city the city of Toronto to September 14. I want to point out, councillor ls a bad thing. As I've said in this House over Speaker, that the second Friday in September, September -97- -98-

Court of Appeal File No. C65861

COURT OF APPEAL FOR ONTARIO

BETWEEN:

CITY OF TORONTO Applicant (Respondent in appeal) . -and-

ATTORNEY GENERAL OF ONT ARIO Respondertt (Appellant)

AND BETWEEN:

ROCCO ACHAMPONG Applicant (Respondent in appeal) -and"'

ONTARIO (IION. DOUG FORD, PREMIER OF ONTARIO), ONTARIO (ATTORNEY-GENERAL) Respondents (Appellants) ~ and-

CITY OF TORONTO Respondent (Respondent in appeal)

(Title of Proceedings Continued on p.2)

FACTUM OF RESPONDENT IN APPEAL, CITY OF TORONTO -99- -100-

AND BETWEEN:

CHRIS MOISE, ISH ADERONMU, and PRABHA KHOSLA, on her own behalf and on behalf of all members of Women Win TO Applicants (Re~pondents in appeal) - and -

ATTORNEY GENERAL OF ONTARIO Respondent (Appellant) • and-

JENNIFER HOLLET, LILY CHENG, SUSAN DEXTER, GEOFFREY KETTEL AND DYANOOSH YOUSSEFI Interveners (Respondents in appeal)

FACTUM OF RESPONDENT IN APPEAL, CITY OF TORONTO

May 6, 2019 CITY SOLICITOR'S OFFICE City of Toronto, Legal Services Metro Hall 55 John Street, 26th Floor Toronto, Ontario MSV 3C6 fax: ( 416) 397 - 5624

Diana W. Dimmer (LSO No. 24932L) Tel: (416) 392 7229 Email: [email protected]

Glenn K.L. Chu (LSO No. 40392F) Tel: (416) 397 - 5407 Email: [email protected]

Fred Fischer (LSO No. 51284I) Tel: (416) 392 -7224 Email: fi'[email protected]

Philip Chi111 (LSO No. 68681 S) Tel: .(416) 392-1650 Email: philip.k,[email protected]

Counsel for the Respondent in Appeal, City of Toronto -101- -102-

• 30-

Ontario emphasizes voter parity at the price of effective representation, and a fair and democratic

election. BiHS undennines expressive participation and trust in the electoral process 132 and

deprives Torontonians of effective representation.

PART IV - ORDER SOUGHT

121. In the underlying application, pursuant to s. 52(1) of the Charter, Justice BeJobaba granted a declaration of invalidity of the Impugned Provisions on the grounds that they violated s. 2(b) ofthe Charter. t33

122. The City asks that this Honourable Court dismiss the Province's appeal. However, because Justice Belobaba'.s order was stayed 134 and the current City Council has already been elected pursuant to a25.ward structure, the City asks that this Court declare the Impugned

Provisions to be of no force and effect and that the By~laws apply, but to suspend that declaration of invalidity until the next regular City of Toronto election in 2022. This is a reasonable remedy that is within the Court's discretion. 135

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this SixthdayofMay,2019. ~J~t(.t~dK~~~e FiJ'tP PhliiltZ-·. Of counsel for the City of Toronto

I.ii As the Organization (or Security and Cooperation in Europe [OSCE} observes in its Guidelinesfor Reviewing a Legal Framework for Elections: "Electoral legislation enac.ted at the "!ast minute" has the potential to undermine trust in the process and diminish the opportunity for political participants and voters to become familiar with the rules of the elector,\] process fo a timely maIUier;": OSCE Office for Democratic lnsHtutions and Human Rights 1 Guidelines for Reviewing a Legal Frameworkfor Elections, 2d ed. (Warsaw: OSCE/ODIHR, 2013) at p 11. m Reasons of Belobaba J, at 1185, 134 ONCA StayDecision, Sept I9, 2018, AB v 1, Tab 8, iJ 23. 135 Schacter v Canada, [1992] 2 SCR 679, at ,i 79; Sinclair v Quebec (AG), [1992] 1 SCR579 at ,i 33. -103- -104- Page 1517

Court of Appeal File No: C65861

COURT OF APPEAL FOR ONTARIO

BETWEEN:

CITY OF TORONTO Applicant (Respondent in appeal - Responding Party) and

ATTORNEY GENERAL OF ONTARIO Respondent (Appellant - Moving Party)

AND BETWEEN:

ROCCO ACHAMPONG Applicant (Respondent in appeal-Responding Party)

and

ONTARIO (HON. DOUG FORD, PREMIER OF ONTARIO), ONTARIO (ATTORNEY GENERAL)

Respondents (Appellants -Moving Parties) and

CITY OF TORONTO

Respondent (Respondent in appeal-Responding Party)

(Title of Proceedings Continued on Page 2)

AFFIDAVIT OF ANDREW SANCTON

AND BETWEEN: -105- -106- Page 1518

CHRIS MOISE, ISH ADERONMU, and PRABHA KHOSLA, on her own behalf and on behalf of all members of Women Win TO Applicants (Respondents in appeal-Responding Parties)

and

ATTORNEY GENERAL OF ONTARIO Respondent (Appellant - Moving Party)

and

JENNIFER HOLLETT, LILY CHENG, SUSAN DEXTER, GEOFFREY KETTEL AND DYANOOSH YOUSSEFI Interveners (Respondents in appeal - Responding Parties)

AFFIDAVIT OF PROFESSOR ANDREW SANCTON

I, ANDREW SANCTON, of the City of London in the Province of Ontario MAKE OATH AND

SAY:

1. My address is #2203, 500 Ridout Street North, London, Ontario, N6A OA2.

2. I am a Professor Emeritus of Political Science. Most of my academic career was spent as a

Professor at the University of Western Ontario in London. I was Chair of the Political Science

Department there from 2000 until 2005 and was for many years the Director of its Local

Government Program, which offers a Masters in Public Administration degree designed for local government managers. As such, I have knowledge of the matters set out in this affidavit. -107- -108- Page 1519

3. I understand that the applicants challenge the Better Local Government Act, 2018 ("Bill

5"). I understand that under the Bill 5 the City wards mirror the federal electoral ward boundaries within Toronto and that each ward has one City Councillor (with the result that the City has 25

Councillors elected to City Council plus the Mayor). I understand that the applicants challenge the timing of the enactment of the legislation, the re-drawing of the electoral boundaries and the consequent reduction in the number of City Councillors. In preparing my evidence, I have reviewed the notices of application of the City, the Moise Applicants and Mr. Achampong, as well as the evidence filed by the applicants and interveners in the Superior Court of Justice.

4. I have been asked to provide opinion evidence as an expert in municipal governance regarding the following questions:

a) What is your relevant background and expertise in municipal governance?

b) What are the advantages and disadvantages to drawing Toronto ward boundaries to mirror the Federal Electoral Districts ("FEDs")? Please address in your answer whether, in your view, the new ward boundaries, the reduction in the number of wards or the reduction in the number of City Councillors have an adverse impact on marginalized groups.

c) Can a Toronto City Council of25 Councillors representing 25 wards (with between 100,000 and 130,000 constituents per ward) provide effective representation for constituents and how does a 25-ward Toronto City Council and the resulting Councillor-to constituent ratio compare with other large municipalities in North America?

d) What are the predicted impacts on the position of incumbents as a result Bill 5, specifically the change from the proposed 47-ward election to a 25-ward election?

5. I understand that my duty is to provide opinion evidence that is fair, objective and nonpartisan, related only to matters that are within my area of expertise and to provide additional assistance as the Court may require. 1

1 My signed Acknowledgement of Expert's Duty is attached to this affidavit as Exhibit "A". -109- -110- Page 1520

A. Relevant background and experience

6. I received my Honours BA in Political Science and History from Bishop's University in

1968. I then attended Oxford University as a Rhodes Scholar, receiving a BPhil in Politics in 1970 and a DPhil in 1978. My doctoral (DPhil) studies were supervised by L.J. Sharpe, who was then one of Britain's foremost scholars of comparative local government.

7. As noted above, most ofmy academic career has been spent as a Professor of Political

Science at the University of Western Ontario in London. I was Chair of the Department from 2000 until 2005 and was for many years the director of its Local Government Program, which offers an

MP A degree designed for local government managers. I retired as Professor Emeritus in 2017 .2

8. Having published widely on Canadian municipal issues, I was an expert witness in the

Toronto3 and Montreal4 court cases that challenged the municipal amalgamations in those cities and in the recent Ontario Municipal Board hearings concerning Toronto's wards. 5 My latest book is the second edition of Canadian Local Government: An Urban Perspective, published in 2015 by

Oxford University Press Canada. It is a widely used text in Canadian universities and colleges. A third edition will appear within the next couple of years.

B. Advantages and disadvantages to drawing Toronto ward boundaries to mirror the Federal Electoral Districts ("FEDs")

9. In my view, using the FEDs boundaries for Toronto's wards is good public policy for the following reasons (discussed in greater detail below):

1) 25 Councillors is a more desirable size for the Toronto City Council than 47 Councillors;

2 My Curriculum Vitae is attached to this affidavit as Exhibit "B". 3 East York (Borough) v Ontario (AG), 24 OR (3d) 789. 4 Baie d'Urfe (Ville) c Quebec (Procureur general), [2001] JQ no 2954. 5 Di Ciano v Toronto (City), 2017 CanLII 85757 [Di Ciano]. -111- -112- Page 1521

2) If the practice of adopting the federal boundaries is maintained in the future, the City of Toronto will effectively upload all future costs of ward boundary reviews to the federal government;

3) Adopting the FEDs boundaries will make political life less confusing for Toronto residents;

4) Ward boundaries drawn by the Federal Electoral Boundaries Commission for Ontario will genuinely be carried out at arm's length from the Toronto City Council; and

5) The ward boundaries will be revised more frequently and such revisions would be based on recent census data rather than questionable projections.

10. I address each of these points in tum, followed by a discussion of whether the reduction in the number of City Councillors could have an adverse impact on marginalized groups and my concerns regarding the Toronto Ward Boundary Review process which led to the City adopting

47-ward boundaries.

(i) 25 Councillors is a more desirable size for Toronto City Council than 47 Councillors

11. Issues relating to council size specifically are addressed at paras 61 to 78 below. I make no claim that 25 Councillors on Toronto City Council is clearly the optimum number, only that it is far superior to 4 7 Councillors. Unlike city councils in most parts of the democratic world,

Toronto's is not organized on a partisan basis. Having 47 Councillors not subject to any form of party discipline is a recipe for exceptionally long meetings (all of which are attended by highly paid senior municipal staff), general disorganization, and a focus on parochialism rather than the best interests of the City as a whole. If using the FEDs boundaries were not possible, I would equally be open to numbers other than 25, probably within the approximate range of twenty to thirty. It is difficult to imagine circumstances in the foreseeable future whereby the number of

FEDs allocated to Toronto would be outside this range. -113- -114- Page 1522

(ii) Future costs of boundary review would be uploaded to the federal government

12. If the practice of adopting the federal boundaries is maintained in the future, there will be no need to hire outside consultants to conduct ward boundary reviews. All the work would be carried out by the Federal Electoral Boundaries Commission for Ontario.

13. Such a commission is appointed for each province in accordance with the federal Electoral

Boundaries Readjustment Act, 6 following each decennial census. The Chair of the Commission is a federally-appointed judge chosen by the jurisdiction's Chief Justice and two other members are appointed by the Speaker of the House of Commons. After proposing initial boundaries, holding public hearings, reporting to the House of Commons, and hearing objections from Members of

Parliament, the Commission makes final decisions on the electoral boundaries for the federal elections that are held in the following decade.

(iii) The adoption of FEDs boundaries makes political life less confusing for Toronto residents

14. Under the provisions of Section 51.1 of the Constitution Act, 1867, each province is allocated a set number of members of the House of Commons following each decennial census. An

FED is the territory determined by a Federal Electoral Boundaries Commission that is represented by a single Member of Parliament.

15. In my opinion, the adoption of FED boundaries makes political life less confusing for

Toronto residents. This claim is especially true if we assume that the Province of Ontario will continue to adopt the federal boundaries as provincial riding boundaries consistently throughout southern Ontario. Residents of Toronto will benefit from having the same electoral boundaries for

6 RSC 1985 c E-3. -115- -116- Page 1523

all three levels of government. It is true, of course, that some (not all) of these boundaries will change approximately every ten years. It is also true that, because (unlike many parts of the United

States) we do not have elections for all three levels of government on the same day, there will be periods of time early in the middle of each decade when the boundaries will not be congruent.

16. Another factor to consider is that the Federal Electoral Boundaries Commission always has the option of creating electoral districts that cross the boundaries of the City of Toronto. This rarely happens, but I was one of the three members of the Commission that created the electoral district of Pickering-Scarborough East following the 2001 federal census. The decision to create this electoral district was taken only because it led to the solution of a wide range of problems throughout east-central Ontario. I am confident that future Federal Electoral Boundaries

Commissions will take the same approach as that adopted by the Commission that followed the

2011 census (of which I was not a member). In its initial proposal (which it maintained throughout the process), the Commission stated:

The current 23 electoral districts covering the City of Toronto have a population of 2,672,164. One of these electoral districts, Pickering-Scarborough East, crosses the east city boundary into the City of Pickering. The Commission proposes to honour city boundaries and, as far as possible, the boundaries of former constituent municipalities. The Commission has therefore assigned the Pickering population of that electoral district to the proposed electoral district of Pickering-Brooklin. The transfer of that population leaves the City of Toronto with a population sufficient to warrant 25 electoral districts, an increase of two. 7

17. I have every confidence that future commissions, informed by the City of Toronto legislation that adopted the FEDs boundaries as Toronto ward boundaries, would make every effort not to propose FEDs that cross the City's boundaries. Because the City's and Ontario's population are both so large, commissions have considerable flexibility as to how they treat the

7 See "Reasons for the Proposed Electoral Boundaries," Redistribution Federal Electoral Districts 2012, online: http://www.redecoupage-federalredistribution.ca/content.asp?section=on&dir=now/proposals&document= page6&lang=e. As a result of subsequent developments in the redistribution process, the proposed electoral district of Pickerong-Brooklin was eventually created as Pickering-Uxbridge. -117- -118- Page 1524

City of Toronto. For example, if the 2011 Commission had added one more electoral district to the territory of the City of Toronto, the average population of Toronto's electoral districts would have been reduced by only 4,000 people, meaning that the average population of a Toronto federal electoral district would be only 3.2 percent below the provincial average, instead of being 0.6 percent above, as it was with the 25 electoral districts that the Commission created. Such a degree of flexibility exists with no other Canadian municipality.

18. In 2013, Toronto City Council authorized the City Manager to hire consultants to produce a series of recommendations as part of the process that ultimately led to the adoption by the City of the 47 ward model for the 2018 election. This process is now known as the Toronto Ward

Boundary Review (the "TWBR"). As part of their "Research Report", the consultants appear to conclude that different boundaries are required for electoral districts for each level of government because of the different functions. Their rationale for this is set out in the following paragraph of the TWBR Research Report which they attribute to Professor John Courtney's 2001 definitive book8 on federal electoral redistributions. I quote from the TWBR Research Report:

... the community of interest criteria for constructing seats for a provincial assembly are different from local government districts as well as those of the Federal Parliament, because the division of powers presents different issues for consideration and legislative action at the federal and at the provincial levels. This therefore affects the representational demands placed on elected members by constituents and the various local districts contained in a riding. What is a community of interest for an MPP is different from that for an MP or a City Councillor. 9

19. Professor Courtney makes reference in his book, cited by the TWBR in support of this quoted passage, neither to constructing seats for local government districts nor to communities of interest for City Councillors. Unfortunately, the consultants provide no page reference. I was a

8 John Courtney, Commissioned Ridings: Designing Canada's Electoral Districts (Montreal and Kingston: McGill Queen's University Press, 2001). 9 Toronto Ward Boundary Review, Background Research Report (December 2014) at 19-20 ["Research Report"]. -119- -120- Page 1525

peer reviewer of Professor Courtney's book for the publisher, McGill-Queen's University Press

(see page xii and the dust jacket), so I read the book before publication. I have looked at it in some detail many times since then. To be charitable, it appears that the consultants might have confused

Courtney's discussion of using the boundaries of "local government districts" (i.e., municipalities) as the territorial building blocks ofFEDs (pages 211-2) with a claim that he has any concerns with drawing electoral boundaries within these districts. Courtney does briefly discuss Ontario's then recent decision to adopt FEDs for provincial purposes and raises some concerns (pages 212). But the fact that on two more occasions the provincial legislature (most recently controlled by a different party than the one that initiated the practice) has adopted revised FEDs boundaries seems to indicate that such concerns are minimal at best. The reality is that, with the possible exception of Quebec (78 FEDs as opposed to Ontario's 121), no other province has enough FEDs to sustain a partisan provincial legislature with the same number of provincial electoral districts.

20. Regardless of what Professor Courtney may or may not have written about electoral boundaries within "local government districts" (i.e. ward boundaries), it is legitimate to ask whether Federal Electoral Boundaries Commissions address different kinds of communities of interest from those that are of concern to City Councillors and their constituents. I was a member of the federal Electoral Boundaries Commission for Ontario in the 1980s, 1990s, and 2000s. I have reviewed reports from these Commissions and from the one in the 201 Os on which I was not a member. References to communities of interest in Toronto are legion. Claims were made that they were defined by major arteries, railroad tracks, former municipal boundaries, hydro lines, ethnic and religious communities, shopping areas on "main streets", and various other criteria. I found no reference to any "federal community of interest"; no one argued, for example, that the port area needed to be kept together or that federal ownership of the former Downsview airport created a -121- -122- Page 1526

community of interest related somehow to federal jurisdiction. In short, the kinds of arguments advanced about communities of interest in the federal process were substantially the same as those heard by the Toronto Ward Boundary Review. Except in rare cases (such as a community containing a large military base like Petawawa) the community of interest for electoral boundary purposes does not differ depending on whether the election in question is federal, provincial or municipal.

21. It is certainly true that in Canada outside Toronto there is a lower ratio of residents to elected representatives at the provincial and municipal levels than at the federal. This is a function of the large population of the amalgamated City of Toronto, an issue to be addressed later in this affidavit. Comparisons of ratios of residents to elected representatives are largely irrelevant, however, unless we know the context. Is the legislative body organized on a partisan basis or not?

How much staff support is provided to each legislator (Councillor at the municipal level)? Do the legislators ( or Councillors) serve on a full-time or a part-time basis? Unless we know the answers to such questions, the ratios are meaningless.

22. In my view, the only municipality in Canada that could create a Council using FED boundaries for all three levels of government is the City of Toronto. Montreal could possibly do so because its 2016 population was 1.7 million. However, Montreal surrounds enclave municipalities such as Westmount and Montreal East whose populations are too small to have their own FEDs.

Westmount and Montreal East, of necessity, must be included within FEDs that also include territory from within the City of Montreal.

23. The third most populous municipality in Canada is the City of Calgary. There are ten FEDs within its territory, none of whose boundaries extend beyond the city boundaries. A Council often members and a mayor could conceivably work, but unless Alberta reduced the number of seats in -123- -124- Page 1527

its Legislative Assembly from 87 to 34 (the number FEDs in Alberta), the Province could not possibly also adopt the same boundaries for its elections.

24. Toronto is indeed in a unique situation. Why not take advantage of it? Because the province has already adopted the FED boundaries, the political life of residents is greatly simplified by having the same boundaries at all three levels. Opportunities for elected officials to work together on issues that are within the purview of all three levels of government are greatly enhanced. Decisions about boundaries are completely removed from incumbent Councillors and are made instead by a politically neutral body chaired by a judge.

25. Leaving the complications of provincial legislatures aside, the TWBR consultants noted in their various reports of public meetings, consultations, and surveys that some residents claimed that boundaries drawn for federal purposes simply were not suitable for municipal purposes. These same people were generally supportive of existing boundaries because they reflected

"communities of interest." However, in my experience, this is a concern that is raised any time electoral boundaries are changed. I was one of the three members of the Federal Electoral

Boundaries Commission of Ontario in the 1990s, which drew the boundaries of the 22 FEDs that were later each split to create the 44 Toronto wards in existence prior to the TWBR. We had no idea at the time that we were drawing boundaries for both provincial and municipal elections. I no longer have my records of our public hearings, 10 but I recall that almost every change we recommended from the prior boundaries caused someone to claim that we were violating a

"community of interest."

26. Because the consultants introduced the work of John Courtney, perhaps the last word on this subject, with which I agree, should belong to him:

10 Transcripts exist in Ottawa, presumably in the care of Elections Canada or the Public Archives of Canada. -125- -126- Page 1528

Sometimes what is claimed to be community of interest is, in fact, nothing more than a barely disguised political self-interest on the part of a politician or a highly parochial understanding of the concept on the part of interested members of the public. Elected members are noted for objecting to changes in their existing constituency boundaries. They prefer the known to the unknown, and their lives are made simpler when they can preserve, if at all possible, their constituency and campaign organizations and personnel. 11

27. Using current FEDs boundaries for Toronto wards may be inconvenient for incumbent

Toronto City Councillors used to the wards in which they were originally elected. Given, however, that the provincial government also uses these FED boundaries, they may in fact, for everyone else, be profoundly convenient.

(iv) The Federal Electoral Boundaries Commission is arm's length from the City

28. One of the reasons for the City to hire consultants to draw boundaries was to demonstrate some effort in keeping the process at arm's length from incumbent Councillors and staff who answer to them. We can see in retrospect that this effort was not entirely successful in that the consultants offered little or no analysis of their own to balance the obviously self-interested claims of incumbent Councillors. More obvious problems occurred in May 2016 when the City's executive committee sent the consultants' "Final Report" back for more work and in November

2016 when Councillors proposed (but rejected) various amendments before approving the consultants' revised recommendations in their "Supplementary Report."

29. After analyzing many of the same events discussed in this report, Professor Alexandra

Flynn of the City Studies Program at the University of Toronto (Scarborough) aptly concluded that

"it is uncertain whether the [consultants'] model achieved a sufficiently arm's-length process." 12

11 Courtney, supra note 8 at 213. 12 Alexandra Flynn, "(Re)creating Boundary Lines: Assessing Toronto's Ward Boundary Review Process," (2017) !MG Papers on Municipal Finance and Governance No 32 at 20. Professor Alexandra Flynn's article is attached as Exhibit "C". -127- -128- Page 1529

She notes that "Councillors are in effect making decisions on the future of their jobs" and that "the absence of an independent commission ... raises the question of whether other ward options - for example, a smaller City Council or wards overlapping with federal districts - were fairly considered." 13 Flynn makes various suggestions about how the City's process could be improved so as to lessen the direct influence of incumbent Councillors.

30. If the Federal Electoral Boundaries Commission for the province of Ontario draws the boundaries, all of these suggestions are moot. The work would be done by three independent individuals, the Chair person being an Ontario Superior Court judge appointed by the Chief Justice of Ontario, and the two other members appointed by the Speaker of the House of Commons. My personal experience with three members on the Commission, is that they do not allow any hint of hidden political influence. All written communications with the Commission about boundaries are available to the public. There are no confidential meetings with anyone, including MPs, who address the Commission at public meetings just like everybody else. MPs do get one chance, after the Commission's report is tabled in the House of Commons, to raise public objections to the report, but it is the Commission that makes the final decision. The process is far more arm's length from MPs than the municipal process is from Councillors; the Commission's process is completely arm's length from Toronto City Councillors, although they would be quite free to address the

Commission at public hearings just as they have done in the past even when the Commission was not drawing City ward boundaries as well.

31. In his affidavit for this case, Professor Siemiatycki, makes the following claim (para. 27):

The federal electoral redistricting process considered federal, not municipal, boundaries. Bill 5 results in a ward boundary model that has not been assessed in

13 Ibid. -129- -130- Page 1530

a review process that considers the Carter factors as they apply to the City of Toronto, including the location of under-represented groups. 14

32. Unfortunately, Professor Siemiatycki makes no suggestions at all about how the "Carter factors" might be different in the two cases. Elections Canada provides the Commissions with detailed census data about "the location of under-represented groups." In my experience such data is acted upon by the Commission - although not always to the satisfaction of everybody, just as not everybody was happy with the boundaries drawn by the TWBR. Professor Siemiatycki offers no explanation as to why such data should be considered or acted upon differently in the context of federal versus City electoral boundaries.

(v) Federal electoral boundaries are considered based on recent census data

33. There can be no question that the Federal Electoral Boundaries Commissions are required to produce results that are compatible with the principle of "effective representation" as articulated by the Supreme Court of Canada in the Carter decision. One way that they do this is by striving to respond appropriately to public submissions pointing to various kinds of communities of interest.

34. The City of Toronto, however, does not contain areas that are akin to the most remote parts of northern Ontario. Although Toronto is well-known for its social diversity, particular groups are not so territorially concentrated that a single group could comprise its own ward, unless the

Council were expanded to the size of at least a hundred Councillors or more.

35. In the past, when a commission proposed splitting a significant portion of the City's Jewish community by using Bathurst Street as a boundary, or when another one proposed splitting the

LGBTQ community around Church and Wellesley, corrections were made after the public

14 See Appeal Book, Volume 1, Tab 28 at para 27. -131- -132- Page 1531

hearings. Commissions make such corrections because members take the Carter criteria seriously.

Nevertheless, there will always be people who will be dissatisfied that a commission did not respond to their particular concerns.

36. When commissions do not respond, it is usually because they are trying to maintain the principle of voter parity by creating FEDs of roughly equal populations. In my opinion, for a densely populated urban area such as the City of Toronto it is voter parity that is the most important criterion in drawing electoral boundaries, be they for FEDs or for wards.

37. The TWBR consultants place much stress on the virtues of constructing ward boundaries such that they promote "voter parity" in 2026, even at the cost of less parity for the municipal elections of2018 and 2022. Their objective is to promote "stability," i.e. no more changes in ward boundaries until after the 2030 municipal elections. Later in this report, I will refer to both the limitations of the projections used by the TWBR consultants and the reasons why stability of ward boundaries is not as desirable as the consultants suggested (see paras 40 to 60 below).

38. In my opinion, redrawing the ward boundaries after every federal decennial census is a superior option to that chosen by the TWBR consultants for three main reasons:

1. The need to use "population projections" is avoided completely. The boundaries are drawn on the basis or real, recent population figures prepared independently by Statistics Canada following the Census;

2. the wards are more likely to reflect "voter parity" at any given municipal election because the boundaries are being redrawn more frequently than under the consultants' scheme; and

3. incumbents will have to adjust to boundary changes more frequently, thereby mitigating the overwhelming incumbent advantage commonly observed in municipal elections and addressed later in this report.

39. As the current FEDs were adopted as the wards for the 2018 Toronto municipal election, they will also be in place for the 2022 election. My assumption is that the FEDs boundaries will -133- -134- Page 1532

continue to be adopted as the ward boundaries for the City of Toronto even after the municipal election of 2022, although I understand that Bill 5 does not make provision for future changes. A legislative amendment would be required prior to the 2026 municipal election to bring this into effect. The same applies for provincial legislation adopting the FEDs boundaries for southern

Ontario for the 2018 provincial election; similar legislation was passed in each of the two previous decades. If the 2026 and 2030 municipal elections are conducted with ward boundaries constructed using the results of the 2021 federal census, then the FEDs model remains up to date and tracks demographic changes in a manner that is superior to the TWBR model.

40. The TWBR consultants' various documents contain many tables with population figures and variances, but none showing the populations of the 25 FEDs using the 2011 census population counts, which were the numbers used by the federal Electoral Boundaries Commission for Ontario.

We now have the results of the 2016 federal census, which were not available to the TWBR consultants. The Tables below show: 1) the City of Toronto's 25 FEDs, with populations and variances for 2016, together with information showing how City of Toronto population estimates for 2018 used by the TWBR differed from federal projections for 2018 using 2016 census numbers; and 2) a comparable chart for the TWBR's proposed 47 wards. 15

15 See Altus Group, City of Toronto Ward Boundary Review Appeal: Demographic Issues 0MB: MM170033 and NNI 70047 (October 2, 2018) at 10-11. The report containing these tables was prepared for Justin Di Ciano and submitted as part of the evidence in Di Ciano, supra note 5. -135- -136- Page 1533

Chart 1: Recommended Wards (47) Analysis

Voter Pari Varianct! City of Toronto 2016 Cc.::nsus 2018 Estimatt: Wards Forecast City20I8 2016 2018 Ccuus Data hast:d on Ct:nsus (2018) Forc.::cast Cc.::nsus basis

RWl 60,154 60,732 60,497 0.6% 2% 4% 2% RW2 59,298 57,207 57,401 -3.2% 1% -2% -3% fRW3 63,315 62,018 64,359 1.6% 8% 7% 9% [RW4 62,895 66,083 66,687 6.0% 7% 14% 13% RWS 58,254 51,538 52,078' -10.6% -1% RW6 65,500 . 67,565 71,000 8.4% 11% RW7 55,133 47,344 47,825 -13,3% -6% RW8 53,962 55,825 55,650 3.1% -8% RW9 48,470 45,907 45,831 ;,.5.4% ~JH'}{j RW!O 64,410 68,477 69,953 8.6% 9% 'RW!I 61,420 62,146 62,227 1.3% 4% 7% iR\V12 52,645 55,382 55,540 5.5% -11% -5% -6% iRWI3 58,726 56,900 57,041 -2.9% 0% -2% -3% ,RW14 58,823 51,495 57,852 -1.7% 0% -1% -2% ,RWI5 62,786 63,070 63,426 1.0% 7% 7% RWI6 65,645 66,301 67,051 2.1% 11% 14% RWI7 64,645 66,422 68,014 5.2% 15% RWI8 65,946 67,727 69,566 5.5% 18%, RWI9 64,392 80,012 83,769 30.1% 42% RW20 38,154 39,376 43,049 12.8% ...27% 'RW21 40,098 31,241 33,671 -16.0% 43% RW22 47,425 39,450 43,313 -8.7% -27% RW23 55,299 41,921 42,159 .. 23,8% -2~% iRW24 47,020 42,386 42,200 -10.3% -29% :RW2S 52,786 43,944 46,860 •ll.2% -21% RW26 59,868 57,978 59,186 .. J.1% 0% RW27 64,743 58,570 58,907 -9.0% 0% RW28 57,443 55,839 51,729 0.5% -2% -4% -2% RW29 59,020 51,165 59,369 0.6% 0% -1% 1% RW30 53,638 48,586 49,653 ·7.4% -9% ·16% .. }61}? RW3l 59,414 61,490 63,224 6.4% 1% 6% 7% RW32 68,522 67,600 68,456 .OJ% lM~ 16% 16% 'RW33 55,161 58,717 57,581 4.4% -6% 1% -3% RW34 S6,9S4 59,261 59,528 4.5% -3% 2% 1% lRW35 64,220 56,925 58,674 -8.6% 9% -2% -1% RIV36 57,817 55,450 56,316 -2.6% -2% -5% -5% RW37 53,553 64,823 65,609 22.5% -9% 12% 11% RW38 63,014 64,867 65,220 3.5% 7% 12% 10% RW39 61,940 65,461 66,662 1.6% 5% 13% RW40 65,979 68,789 69,494 5.3% 12% 18% 'il.W41 67,393 69,533 70,574 4.1% 14% 19% RW42 63,507 61,088 61,856 -2.6% 8% 5% RW43 68,045 69,536 68,796 1.1% 16% 16% RW44 66,035 64,084 63,402 -4.0% 12% 7% RW45 64,969 61,582 61,376: -5.5% 10% 6% 4% RW46 58,644 49,743 49,555 -15.5% 0% -14% -16% RW47 50,847 57,415 57,632 13.3% -14% -1% -2%

Total Population 2,767,933 2,731,571 2,775,818 Average per Ward 58,892 58,![9 59,060

Ward Pop is 15%+ Lower Total Pop 221,167 380,155 444,116 than Parity %ofCityPop 8% 14% 16%

Ward Pop is 15%+ Highor Total Pop 136,567 559,239 639,622 i~~!l .. ~.~i.o/ %of City Pop 5% 20% 23%

Total' Wards Offsido hy Total Pop 357,734 939,394 15% or.Moro o/.,of City Pop 13% 34%

Source: Altus Group Economic Consulting based on City of Toronto and 2016 Census of Can -137- -138- Page 1534

Chart 2: Federal Electoral Districts Analysis Voter Parltv Variance :·,1 Federal Electoral Districts Forecast Cit)' 2018 2016 2018 Cenus Data based on Census (2018) Forecast Census basis (Persons) [Efobtcoke C ;-: 4.ooi. -<;% -2% -3% I ' ·:o.. S%. .•·. 2% 1% 2% Don Valley East 96,614 94,519 9S,207 -t:S%.· -13% ·13% -14% Beaches-East York 107,928 109,468 110,422 2.3% -3% 0% -1% Scarborough-Agtncourt 106,368 105,542 105,960 -0.4% 4% -3% -5% Scarborough Centre 108,090 112,603 114,113 5.6% -2% 3% 3% l$caib9iougli siiuu1west To'6;o.ss 110,278 · !lf,69~ 5.3% 4% 1% 1% iSearbo/QUgli North .100,374 98,800 . 97,88~ ..2,s,;,1o -9% -10% -12% [Scarborough-Oulldm,od 103,270 !02,386 .O.T'4 -7% -6% -8% !Searborough-Rougo Park tos 688 102,275 ;J~tm: ..3.4% -5% -6% -8% i}~~~'.~~~~,r~...... ,, . /03:,~~ 108,473 ,)10,S,It 6.9% -6% -1% 0%

Total Population 2,767,930 2,731,571 2,778,175 Average per FED 110,717 109,263 111,127

Higher .. ,;Total Pop >"'of Cit)'

~1[t~4Tl)tf~ide bv -:_ :- T01a1 Pop Jlif~Y%1Yit~~1~ _- - 129.081, h~'.4 ~r.. M9"' .. \ · ·.· % of Cit)' Pop · · · 5% 5%

Source: Altus Group Economic Consulting based on City of Toronto and 2016 Census of Cw1ada -139- -140- Page 1535

41. Although three of the FEDs (Don Valley East, Etobicoke Lakeshore, and Scarborough

North) have variances based on the 2016 census results that are greater than 10 percent, these variances are far less than the variances for the 47-ward scheme

(vi) In your view, do the new ward boundaries, the reduction in the number of wards or the reduction in the number of City Councillors have an adverse impact on marginalized groups?

42. In his affidavit, Professor Siemiatycki claims that marginalized minorities will be better represented with a larger Council. He buttresses his case by speculating about possible electoral outcomes. There is an abstract sense in which his argument is quite logical. Assume that every eligible voter in Toronto was declared to be a member of a huge Toronto City Council. In such a case, every demographic group among all eligible voters would be perfectly represented. Then assume alternatively that only one person, the mayor, was elected for the whole city and that the mayor had the legal authority to decide everything that the current Council decides. In this case, every demographic group into which the mayor fell would be hugely over-represented while all others would not be represented at all. As we move from a one-person Council towards, say, a one million person Council, marginalized people would doubtless be better represented. But the important empirical question for us is: Does it make a difference whether the Council has 25 members or 4 77 This is a matter for empirical investigation, not speculation. Many factors are at play, including campaign financing regimes, territorial concentration of minorities, and the ways in which the drawing of ward boundaries affect the balance of political power within the various wards.

43. There are many ways such an empirical investigation could be undertaken. Much would depend on the definition of "marginalized." Most people would agree that "visible minorities" are -141- -142- Page 1536

marginalized. Under the 47 ward-scheme, 24 wards have a "visible minority" majority. Among the

25 FEDs, the number is 12 wards, 16 This is not a significant difference. 17 Anyone who wants to argue that marginalized communities are better off with 4 7 wards faces a serious empirical challenge. I am advised that among the 44 Toronto City Councillors for 2014-18, five, or 11.4 percent, were members of visible minorities. 18 We now have the results of the 2018 election: four of the 25 Councillors, or 16.0 percent are visible minorities. Three of the four are of East Asian origin and one of Caribbean origin. 19

(vii) Concerns regarding Toronto Ward Boundary Review

44. There is no question that the TWBR consultants did a great deal of work. They produced myriad maps, charts, worksheets, etc and they attempted to provoke public participation and involvement. However, it is clear from the consultants' own reports that less than a thousand people expressed their views at each of the two stages of public participation. 20 Most of these people participated via an online survey. Only 304 people attended 24 public meetings21 - an average attendance of 13. For both the online surveys and the public meetings, it seems likely that

16 The numbers for both schemes are calculated from data found at City of Toronto, "Ward Profiles", online: https://www.toronto.ca/city-government/data-research-maps/neighbourhoods-communities/ward-profiles/. 17 In Ward 13, (Toronto Centre) 49.7% of the 2016 population are "visible minorities". With 500 more such people, in Ward 13(out of a total population of99,950, there would be 13 wards with "visible minority" majorities. See "Ward 13 -Toronto Centre: Population Highlights" at 23, online: https://www.toronto.ca/wp-content/uploads/2018/09/8f4b City Planning 2016 Census Profile 2018 25Wards Wardl3.pdf. 18 I understand that these Councillors were Kristyn Wong-Tam, Denzil Minnan-Wong, Michael Thompson, Chin Lee, and Neethan Shan (who replaced Raymond Cho, a visible minority, in a By-Election in 2017). Adam Kanji (who is an Articling Student at the Ministry of the Attorney General) has advised me and I believe that he confirmed that these were the five City Councillors who were visible minorities by Google searching every elected Councillor to determine possible visible minority status based on online pictures, profiles and news articles. 19 I understand these Councillors are Kristyn Wong-Tam, Denzil Minnan-Wong, Michael Thompson and Cynthia Lai. Adam Kanji (who is an Articling Student at the Ministty of the Attorney General) has advised me and I believe that he confirmed that these are the four City Councillors who are visible minorities by Google searching every elected Councillor to determine possible visible minority status based on online pictures, profiles and news articles. 20 There was an additional round of participation in 2016 that was not part of the original design of the process. For further public participation in 2016, see para. 53, infra. 21 Toronto Ward Boundary Review, Final Report: New Wards for Toronto (May 2016) at 21-9 ["Final Report"]. -143- -144- Page 1537

enthusiasts would have quite properly participated in both stages. Let us assume, however, that two thousand people did participate in one way or another. At the 2014 municipal elections there were 1,813,915 eligible electors.22 This means that, at best, 0.1 percent of Toronto's electors participated in the TWBR process. Contrast this with the rate of Councillor participation in the face-to-face meetings with the consultants, which appears to have been 100 percent in Round One and 95 .5 percent (42 of 44 Councillors) in Round Two. 23 It is quite probable, of course, that these same Councillors and/or their staff were accounted as attendees at public meetings. Their staff and close political supporters could also have participated in the online surveys

45. According to the data collected by the TWBR consultants, adopting the same ward boundaries as those already established for the federal electoral districts within the City of Toronto had wide popular support. Doing so was an option for the City's ward-boundary consultants from the very beginning of the process. On page 39 of their "Background Research Report" they describe the 1999 process whereby the existing 22 FEDs within the City of Toronto divided to create the 44 wards that existed prior to the TWBR and Bill 5. 24 In Round One of their consultation process, the consultants asked respondents the following question: "Is there value for

Toronto's ward boundaries to be similar to the boundaries of provincial or federal ridings?"25 It is instructive to note that the positive answers from the various groups are as follows:

Online Survey: 57% Participants at public meetings "slight majority" Council members 21 in favour; 22 against Stakeholders "overwhelming majority"26

22 City of Toronto, "2014 Toronto Election Report: your city. your vote." at 28, online: https://www.toronto.ca/wp content/uploads/2017 /07/96b9-2014-election-report.pdf. 23 Final Report, supra note 21 at 21-9. 24 Research Report, supra note 9. 25 Toronto Ward Boundary Review, Round One Report: Civic Engagement+ Public Consultation (March 2015) at 34. 26 Ibid at 14, 19, 24, & 29 -145- -146- Page 1538

46. The responses, however, are confusing. These same people also appear to want the same number (or more) of Councillors as at the time the survey was conducted, (i.e., 44). Perhaps some respondents thought each of the new FEDs could be divided in two as the old ones were in 1999.

We have no way of knowing.

47. The consultants' "Options Report" derives primarily from the first round of public consultations. The "Options Report" is crucial because it is here where the consultants first dismiss the option of adopting the FED boundaries. Their analysis must be quoted at length:

During the Round One civic engagement and public consultation process the idea of using the boundaries of the 25 new federal ridings as the basis for new municipal ward boundaries was discussed in some detail. Two approaches can be used to pursue this option. Either the federal ridings can become the municipal wards or the federal ridings can be divided into two municipal wards each.

If the ridings became Toronto's wards, there would be 25 wards with an average 2026 population of approximately 123,000. Since the idea of having 25 very large wards gained virtually no support during the public process, it has not been pursued as an option.

Having 50 wards based on splitting the federal ridings in half, however, had considerable support. This approach has, therefore, been examined as a potential option. Ward boundaries for an option based on federal ridings would simply divide the riding in half to achieve equal populations.

Any analysis of whether this option is feasible has to commence with a review of voter parity. If voter parity cannot be achieved, then there is no merit in proceeding to construct actual boundaries. Because the riding boundaries are fixed, there is negligible ability to adjust ward boundaries to improve voter parity.

As the analysis provided below indicates, this option does not achieve voter parity, an essential component of effective representation, nor does it address the ward population size discrepancies that Toronto now faces.

As in all options, the 2026 projected city population of 3,082,390 is used in this analysis 27

48. Note that the only reason the consultants advance for rejecting the 25-ward option is that

"the idea of having 25 very large wards gained virtually no support during the public process."

27 Toronto Ward Boundary Review, Options Report (August 2015, revised October 2015) at 28 ["Options Report"]. -147- -148- Page 1539

There is no other analysis, notwithstanding the fact that large proportions of respondents were favourable to the idea that Toronto's ward boundaries should "be similar to the boundaries of provincial or federal ridings".

49. It is my opinion that it would not be good public policy to create 50 wards in Toronto by splitting each of the 25 FEDs. Having 50 nonpartisan members of the Toronto City Council is far too many for effective local decision-making, as will be explained in more detail later in this affidavit. Nevertheless, it is absurd for the consultants to reject even this option because the existing FEDs do not support the principle of "voter parity" based on population projections for

2026. By that time, another federal electoral redistribution process based on 2021 census results will have been already completed. In their "Final Report" (which continues to reject the FEDs option), the consultants acknowledge this point when they write: " ... federal riding boundaries are reviewed and adjusted every 10 years, which does not deliver a long term solution."28 The consultants saw the fact that federal riding boundaries are reviewed and adjusted every 10 years as a disadvantage of adopting the FEDs. I see it as an advantage. Why is "a long term solution" needed from a single ward-boundary review? A much more effective long-term solution is to put in place a mechanism for an impartial review every decade, a mechanism that is available by using the FEDs boundaries as the boundaries for the wards. I will address this issue and the issue of current FEDs voter parity using 2016 census results later in this section.

50. I have found no evidence to suggest that the consultants for the TWBR were instructed to devise a scheme in which 2026 was the target year for optimal voter parity. It appears that it was they who made this choice. Apart from their concern with ward-boundary stability, they present no reasoned argument as to why voter parity in 2026 should be more important than voter parity in

28 See Final Report, supra note 2lat 28. -149- -150- Page 1540

2018. In paragraph 16 of his affidavit, Professor Siemiatycki states that "A 25 ward model was not considered in this [TWBR] process due to significant concerns regarding voter parity."29 He seems quite unaware of the fact that for 2018 the 25-ward model is superior to the 47-ward model in terms of voter parity.

51. The consultants' Final Report recommended that the number of Councillors be increased to

4 7. Mayor John Tory was not pleased. 30 At the City's Executive Committee meeting on May 24,

2016, Mayor Tory moved that the "Final Report" be referred back to the consultants so that they could examine other options, including that they "further consider Toronto ward boundaries for increased consistency with the 25 federal and provincial boundaries."31

52. During that summer, the TWBR consultants held four additional public meetings and produced two additional reports. In its "Additional Information Report" dated August 2016 the consultants again reviewed the FEDs option, but with virtually no new information or analysis.

There was nothing about Council size, the consultants claiming that most people supporting this option favoured splitting each FED to produce 50 new wards. 32 They also claimed once again that this option did not support "voter parity" because the 2026 population projections showed that by

2026 some FEDs would have populations that far exceeded the projected average. 33 Then the consultants pointed out "that the current federal riding boundaries will be adjusted following the

2021 Census."34 Once again, the consultants failed to note that people who support the FEDs option (including me) likely support further changes to Toronto's wards after 2021, both to

29 Appeal Book, Volume 1, Tab 28 at para 16. 30 Jennifer Pagliaro, "Debate over New Toronto Ward Boundaries Delayed until October", Toronto Star (24 May 2016), online: htt]s://www.thestar.com/news/city hall/2016/05/24/debate-over-new-toronto-ward-boundaries delayed-until-october.html. 31 City of Toronto Executive Committee Item, "Final Report-Toronto Ward Boundary Review" (24 May 2016), online: http://app.toronto.ca/tmmis/viewAgendaltemHistor:y.do ?item=20 16.EX 15 .2. 32 Toronto Ward Boundary Review, Additional Information Report (August 2016) at 10. 33 Ibid at 11. 34 Ibid at 16. -151- -152- Page 1541

maintain congruent boundaries and to allow for adjustments to take account of population shifts.

As stated above, in my opinion, further adjustment after 2021 is an advantage of the FEDs option, not a disadvantage.

53. The TWBR consultants submitted their "Supplementary Report" in October 2016. They noted that 90 people attended four public meetings held in mid-September and that 485 submitted an online survey. 35 We do not know if the 485 included some of the 90 counted as attending the public meetings. By this time, the TWBR consultants made it clear that there was no chance that each FED would be divided to create two municipal wards. 36 Not surprisingly, their conclusion concerning the FED option was this: "There was little support for this option at the public meetings and from Members of Council. The online survey yielded considerable support but not from a majority of the respondents."37 The final recommendation from this repo1i was consistent with the previous "Final Report" in that 4 7 wards were recommended with "refinements" to some of the boundaries. 38

54. The next stage in the process is unexplained. In his report to the city's executive committee dated October 18, 2016, the City Manager transmitted the consultants' "Final Report" and Supplementary Report." In so doing, he stated (page 7):

Separate from the work of the Consultants in the development of the Toronto Ward Boundary Review Supplementary Report, the City Manager unde1iook an independent poll of Toronto residents regarding opinions related to changes to the city's ward boundaries. The poll was taken over a one week period, from September 27 to October 3, 2016, and comprised a representative sample of 1,000

35 Toronto Ward Boundary Review, Supplementary Report (October 2016) at 13. 78 of these people were from the cmTent Ward 32, an area in the Beach that was proposed to be included in a lakeshore ward stretching well into the former City of Scarborough. 36 Ibid at 36. 37 Ibid at 38. 38 One of the refinements was not to divide the Beach by including part ofit in a Scarborough ward (see note 43, infra). -153- -154- Page 1542

Toronto residents age 18 years and older, distributed approximately evenly between the City's four Community Council Districts. 39

55. The City Manager provides absolutely no account of the genesis of this poll or of its justification. In the absence of this information, the only conclusion I can draw is that senior city management believed that the consultants' work was lacking, at least to the extent that it failed to gather any opinions other than from the relatively few people who chose to attend their meetings or respond to their online surveys. The results of this poll appear not to be in any public City of

Toronto records or websites and were obtained for me from the City after I requested it through counsel while writing my report for the 0MB hearing.

56. What I was provided with is in PowerPoint format. Slide 1 contains the following statement: "Contains Ipsos' Confidential and Proprietary information and may not be disclosed or reproduced without the prior written consent of Ipsos." It is not clear to whom, if anybody, this

PowerPoint presentation was made. There is no evidence that it was presented to any Councillors, the people charged with making the final decisions about the ward boundary review. Furthermore, there is no evidence that the City's consultants were made aware of the poll results or required to respond to them.

39 City of Toronto, Follow-up Report on the Toronto Ward Boundary Review (18 October 2016), online: http://www.toronto.ca/legdocs/mmis/20 l 6/ex/bgrd/backgroundfile-97280.pdf. I discovered this report as a result of reading Flynn, supra note 10 at 23. Unfortunately the reference on for the source of the poll on 28 of Flynn's article is wrong. The correct reference appears on 3 0 under the author "City Manager (2016b)". -155- -156- Page 1543

57. For our purposes, the most important slide is #9, reproduced below:

Resident Perspective on Aligning Wards with Ridings

Views are mixed on whether the City's ward boundarres should be the same as federal and provincial ridings - 36% ofresldents support the change so long as it means there are fewer and larger wards. Nearly as many residents do not support aligning to riding boundaries - most of whom believe thatthere should be more than 25 wards. lfthe City's ward boundaries were thesame as Federal and Provincial ridings, the number of wards would be reduced from 44 to 2.5, they would be larger and there would be more residents in each ward. Q6. With this additional information do you support aligning the City's wards to the Federal and Provincial riding boundaries?

Total 36% 1, ::__, ' 14% 18% a Yes, even If that means that there are fewer and larger wards Downtown/East York ~M!1~r2«1ina Etoblcoke/ York ~I '::~]%t~~z~~---:'~~~: !Ill No, I think there should be more than North York •I', . '~f!~lii!f~l6~ 25wards Scarborough .·• f0>11@?%i221i:*Std4% flll No, I think there should be fewer than 18-34 34% .~ I ,,- , 9% 22% 25wards 35-54 i 15% 21% 55+ • r Don't support any change to the number of City wards - keep 44

Male 1111 Don't care/ Don't know Female Sample size of other gendf:.r categories. too-small for analysis

58. What do we learn from this slide, which reports data from the only public-opinion poll

taken from a representative sample of adult Toronto residents that was conducted throughout the

entire ward-boundary review process? We learn that 36 percent of residents support using the

FEDs boundaries, thereby reducing the size of the Council to 25, knowing that these wards would

be larger than the existing wards "and there would be more residents in each ward." We learn that

an additional 5 percent of residents "think there should be fewer than 25 wards." We learn further

that 42 percent (28 percent + 14 percent) think there should be more than 25 wards. 18 percent

don't know or don't care.

59. While these numbers do not show overwhelming support for aligning Toronto ward

boundaries with FED boundaries, they certainly suggest that there are almost as many Toronto

residents who want 25 or fewer wards (41 percent) as there are who want more than 25 wards (42 -157- -158- Page 1544

percent). How then can 47 wards be justified, apart from the fact that it is the number favoured by incumbent Toronto Councillors? As discussed below (at paras 91 to 93), no analysis or justification was provided by the TWBR consultants regarding the number of wards and resulting size of City Council. In November 2016 Council voted to accept the recommendation from the consultants' "Supplementary Report" and in March 2017 they voted in favour of the by-law that established 4 7 wards.

C. Can a Toronto City Council of 25 Councillors representing 25 wards (with between 100,000 and 130,000 constituents per ward) provide effective representation for its constituents.?

(i) Effective representation and drawing electoral boundaries

60. Ward boundary reviews in Ontario have been greatly influenced by the Supreme Court of

Canada's concept of "effective representation" as enunciated in the Carter case. The Court's decision did not apply to municipal elections, but it has been generally adopted by the Ontario

Municipal Board (the "OMB") when it has been called on to make decisions about ward boundaries. The case is imp01iant because in its decision the Supreme Court articulated a requirement for "effective representation" in the House of Commons and provincial legislatures.

The Court recognized the primary importance of"relative parity of voting power," but it also ruled that other considerations, including "community history, community interests and minority representation" are factors which "may need" to be weighed to ensure that elected bodies are effectively representative. In practice, this means that electoral boundary commissions begin by trying to create electoral districts of roughly equal populations. They then adjust the boundaries to take account of the other considerations listed usually trying to keep the populations within plus or -159- -160- Page 1545

minus 25 percent of the average. In cases of extremely remote northern areas, the effect of the

Carter decision is to allow variations above 25 percent. Needless to say, there are no such areas within the City of Toronto.

(ii) Decisions regarding the number of legislators 61. While electoral boundaries decisions are made by independent commissions rather than by legislators, it is important to note, however, that these commissions do not make decisions about the total number of districts to be represented within the relevant legislature. Such decisions are the results of legislative acts taken by the legislators themselves. 40

62. Similarly, at the municipal level in provinces other than Ontario, decisions about the number of wards to be represented in a municipal Council are generally made prior to any decisions about ward boundaries. The number of Councillors to be elected is generally decided by the Council itself, although provincial laws stipulate various minima and maxima.

63. In my opinion, the first stage in any ward boundary-review process must involve a reasoned decision about the nature of Council representation.

64. Throughout the long process of the recent Toronto Ward Boundary Review, the only type of representation considered was that Council would comprise only ward Councillors (as opposed to at-large Councillors) with one Councillor from each ward. Practically speaking then, the decision about Council size was determined by the decisions made about the number of wards. The

Toronto City Council could have made a decision about the number of wards before the boundary-

40 In the case of the federal House of Commons, seats are allocated to the provinces by Sections 37, 51, 51A, and 52 of the Constitution Act, 1867 (UK), 30 & 31 Viet, c 3, reprinted in RS 1985, Appendix II, No 5. These sections can be amended by the Parliament of Canada acting alone. Such amendments have been made frequently. -161- -162- Page 1546

review process began. It chose not to do so. It turned the problem over to its consultants who were expected to confront it as part of a single, integrated process to redraw the ward boundaries.

65. The consultants themselves explain this process as follows:

Number of councillors is important as it relates to effective representation: It is common to look at the composition of council or the number of councillors in conjunction with the ward boundaries themselves. This is especially evident when looking at the ward boundary review frameworks from municipalities inside as well as outside of North America. In many of the Ontario ward boundary reviews, looking at the composition of council has been considered a separate process. Ward boundary review expert Robert Williams stated that these processes should be considered separately. However, it is important to consider the number of councillors as part of a ward boundary review, in so much as it is relates to effective representation and helps to ensure that a community or individual can be well represented in the decision making process. 41

66. While it is theoretically possible that a decision about the number of Councillors in a municipality could be taken primarily on geographical (or "communities of interest") grounds, in my view, other factors always come into play. Trade-offs are almost always required. It would be rare situation in which the number of Councillors could be determined solely on the basis of apparent communities of interest. For example, such an approach might make sense in a municipality with a population of 100,000 that is geographically split by rivers and expressways such that ten distinct territorial units, each having a population of about 10,000, were readily discernible. Imagine further that, within each of these units, residents clearly identified with their respective unit, that they considered it their neighbourhood or their territorial "community of interest." In such a case the task of deciding on the number of wards (each to be represented by one Councillor) would be easy: there would be ten Councillors whose ward boundaries would correspond to the units created by the rivers and expressways. In the real world, of course, such a state of affairs will not often be found. It is conceivable that there might be natural and obvious

41 Research Report, supra note 9 at 43. -163- -164- Page 1547

territorial "communities of interest" but the chances that they would all have roughly equal populations are low.

67. Note that, in the example above, it is assumed that there were ten recognizable units with equal populations, not three or fifty. If there were only three, there would be universal agreement that a Council with three members (and presumably a mayor) would be too small. Debates would then ensue about whether and how each of the three natural communities should be divided

(thereby splitting "communities of interest") or whether there should be multiple members from each of the three communities. Such debates would inevitably revolve around deciding on the appropriate Council size.

68. If fifty natural and equally-populated communities of interest were discerned, some would surely argue that a Council of 50 members would be too large; it would be contrary to the law of some Canadian provinces). 42 Some authoritative body would have to determine the appropriate size; if it were determined, for example, that the number of Councillors should be ten, then a process would have to be launched to merge groups of five contiguous communities into ten different wards. There would presumably be much conflict and disagreement about which communities were most closely affiliated with which other ones.

42 Section 118 of British Columbia's Community Charter, SBC 2003 c 26, states: "Unless otherwise provided by letters patent or by a bylaw under this section, the council size for municipalities must be as follows: A. (a)for a city or district having a population of more than 50 000, the council is to consist of a mayor and 8 councillors;" B. (b )for a city or district having a population of 50 000 or less, the council is to consist of a mayor and 6 councillors; C. ( c )for a town or village, the council is to consist of a mayor and 4 councillors. (2)For the purposes of this section, any change to a council size under subsection (1) is to be based on the population of the municipality as at January 1 in a general local election year and the change takes effect for the purposes of that election. (3)A council may, by bylaw, establish the number of council members as a mayor and 4, 6, 8 or 10 councillors. -165- -166- Page 1548

(iii) Membership approaching 50 too large for nonpartisan council without strong mayor 69. Municipal Councils of fifty members or more are quite common in many parts of the

democratic world. But, where such Councils exist, candidates for election are invariably openly

affiliated with a political party and Council debates and procedures are conducted in such a way as

to take account of the parties. In Canada, this is the case in Montreal, where there are 65 city

Councillors operating in a party system.

70. However, I am not aware of any nonpartisan city Council without a strong-mayor system in

the democratic world that has a membership approaching fifty. Chicago, with a municipal Council I of 50 members, has a strong-mayor system, meaning that the mayor alone has direct control over I the executive branch of Chicago's government (much like the President of the United States

controls the executive branch of the US government). Although "officially" non-partisan (in that

party names do not appear on the ballot), 48 of the current Chicago Councillors are registered

Democrats.

71. In Winnipeg, after the legislated amalgamation of the twelve municipalities within the

Corporation of Metropolitan Winnipeg in 1972, the new Council started with

... 50 members and a mayor. The idea was that a large council elected from small single-member wards would give a wider variety of people a chance to be elected. But there were many complaints about its unwieldy size, and it has been progressively cut to its current size of 15. 43

72. My late colleague, Professor Allan O'Brien noted that the reduction in size to 15 took place

in 1991 with a view to:

• Reducing parochialism and encouraging Council to take a broader more city-wide approach to planning and Winnipeg's future;

43 Andrew Sancton, Canadian Local Government: An Urban Perspective, 2°d ed, (Toronto: Oxford University Press, 2015) at 143. -167- -168- Page 1549

• Streamlining and speeding up the decision-making process; and

• Fostering a more cohesive, smaller group to manage City Hall. 44

73. But even in Winnipeg, there had been a long history of local political parties ( or slates), which dominated local elections both before and after the creation of the amalgamation. 45 By

1998, however, local political parties no longer existed.

74. When Toronto's megacity was created in 1998, the legislation stated that the city was to have 56 Councillors, two from each of Metro Toronto's 28 wards. However, few people - even among the advocates of the megacity- believed that this was an appropriate size for a nonpartisan municipal council. Under this arrangement, the ratio of citizens to Councillors fell within

Canadian norms for large cities. When introducing legislation a few years later to reduce the size of the Toronto City Council, the then Minister of Municipal Affairs, Tony Clement, stated that the original Council size of 5 6 was "transitional. " 46 The government suggested a possible Council size of 22, 47 one for each of the existing federal electoral districts created by the federal Electoral

Boundaries Commission for Ontario48 following the 1991 federal census. However, the Fewer

Municipal Politicians Act of2000 allowed the Toronto City Council the option of splitting each of the 22 federal constituencies into two parts, which it promptly did, thereby creating the 44 wards that existed in Toronto until 2018. 49

44 Allan O'Brien, Municipal Consolidation and its Alternatives (Toronto: ICURR Publications, 1993) at 31-2. 45 See J.E. Rea "Parties and Power: An analysis of Winnipeg City Council, 1919-1975" in Lionel D. Feldman, ed., Politics and Government of Urban Canada: selected Readings, 4th ed. (Toronto: Methuen, 1981). 46 Andrew Sancton, Merger Mania: the Assault on Local Government (Montreal and Kingston: McGill-Queen's University Press, 2000) at 15 5. See also recent comments by John Matheson, chief of staff to minister of municipal affairs Al Leach in 1997 who confirmed that Premier Harris simply wanted the amalgamation and was willing to live with an abnormally large council to help prevent further criticism. See https://tvo.org/video/programs/the-agenda with-steve-paikin/the-premiers-fight-with-toronto-city-hall at about the 4-minute mark and after. 47 Sancton, Merger Mania, supra note 46 at 155. 48 I was one of the three members of this Commission. 49 Sancton, Merger Mania, supra note 46 at 155. -169- -170- Page 1550

75. In 1997 I was an expert witness for the parties in the court case that challenged the constitutionality of the creation of the megacity. In my affidavit I predicted that either a party system would develop or there would be intense pressure to reduce the size of Council (as had already occurred in Winnipeg). In my affidavit I wrote at para 75:

If the number of councillors in Toronto were halved, there would be just under 80,000 residents for each member of council, a figure about seventy-five percent higher than that of Calgary and Edmonton, the cities currently with the highest ratios. I see no justification for such a lack of municipal representation for Toronto residents. I know of no expert on municipal government who would support such a position.

76. I believe the creation of the megacity is the cause of the problem with which we are still dealing today. My preference would be to still have a smaller City of Toronto such that there could be a relatively small Council, with each Councillor representing fewer than 80,000 residents, as was the case prior to the amalgamation. In the same 1997 affidavit I stated the obvious: "If the

City of Toronto were to continue with a relatively low ratio of residents to Councillors, the size of the Council would be 'abnormally large'" (para. 73). Because of the amalgamation, we are faced with a choice between two evils. After twenty years experience with the megacity, I believe the

"abnormally large" Council is the worse of the two evils.

77. In my 1997 affidavit, I pointed out that Progressive Reformers at the tum of the Twentieth

Century argued that municipalities could be made to operate less corruptly and more efficiently

if political parties were kept out of municipal politics and if Councils were relatively small in size, like the boards of business corporations. I then went on to state: Although few in Canada would now fully support the idea that the municipal council is just a special form of the corporate board, the views of tum-of-the century reformers remain a crucial part of the thinking of experts and laymen alike: municipal councils are not like parliaments or legislatures. They are not for making speeches and staking out partisan positions. They are places where real business is conducted, where accommodations are made in public among non-partisan elected representatives from different territories within a common community. For these expectations to be met, the number of elected councillors in a municipality must be relatively small. (para 31 ). -171- -172- Page 1551

78. In a later paragraph (para 69) I clarified that by this reasoning the ideal size for a nonpartisan municipal Council is between 10 and 25.

79. The megacity has been Toronto's reality for twenty years. It needs to be made to work as best it can. For this to happen, the size of the Council needs to be reduced so that the city as a whole can be governed more effectively. Ideally for me, such an action should be followed by the creation of multiple community committees within the city having real authority to make decisions about matters of genuinely local or neighbourhood concern. But first we need a properly functioning city Council that can look after the big issues, including political decentralization.

(iv) Dysfunction in Toronto city government 80. The underlying problem with Toronto city government is that its institutional structures were designed for municipalities with many fewer residents and businesses and much smaller budgets. Over the years there have been many proposals about how this problem can be fixed, some of which are mentioned below. The one concession to Toronto's size that was made by the designers of the amalgamated city was to legislate a dramatically larger Council than any other non-partisan council in Canada, probably in the world. This is akin to claiming that large public universities or hospitals need much larger boards of directors than small ones - except that directors of such bodies do not run for election and therefore do not have to constantly try to prove that they are doing good work on behalf of their electors.

81. Ever since 1998, there has been a stream of articles and reports concerned with trying to fix the obvious dysfunctional features of Toronto's City government, especially the long drawn-out

Council meetings focusing on dozens of minute local issues rather than broad strategic objectives and policies. In addition to tying up Councillors for days, these meetings also require attendance -173- -174- Page 1552

by highly-paid senior staff, who clearly could be using their valuable time much more I productively. I 82. In his affidavit in this case, Professor Davidson notes that evidence was produced at the

0MB hearing to show that in recent years hours spent in Council meetings have been reduced

while the number of by-laws passed has increased (para. 50). Number-of-by-laws-passed is not a

measure of decision-making effectiveness. A reduction in hours spent in meetings is similarly

uninformative on its own, unless we know how the start and end points compare with other

comparable cities.

83. Such a research effort would be a major undertaking, especially if other relevant variables

( such as the range of municipal functions and length of committee meetings) were also taken into

account. Nevertheless, it is useful to know that, like the Toronto City Council, the Calgary Council

also meets monthly. It appears that the Calgary Council only meets for one day while it is still

routine for the Toronto Council to meet for multiple days a month.

84. Since 2006, proposals for reform have continued to emerge. Most of them involve one or

more of the following: 1) the fostering of local political parties by such means as allowing their

names to be on the ballot or creating a local electoral financing regime that focuses on parties

rather than individuals; 2) granting more executive authority to the mayor such that the Toronto

Public Service has only one "boss" rather than 45 (this is the American "strong-mayor" system);

and 3) decentralizing decision-making such that the existing community councils (or more

community committees covering smaller territories) have real local-decision-making authority, -175- -176- Page 1553

including over zoning issues. 50 With very few exceptions, proposals for reform have not touched the issue of Council size.

85. An example of avoiding the issue of Council size is provided by the 2017 City Hall Task

Force sponsored by the School of Public Policy and Governance at the University of Toronto.

Members of this task force were highly qualified and experienced and generally did excellent work. But it ignored the "elephant in the room", the issue of Council size. An indication that they were aware of the problem is provided by the following startling passage:

RECOMMENDATION 8: CAP MEETING TIMES The length of Council meetings should be capped at 12 total hours per day (including breaks and inte1ruptions). Meetings that last late into the night lead to impaired judgment and careless conduct, are not conducive to thoughtful or dignified debate on important public matters, and reduce opportunities for public scrutiny. As an example, Council recently approved the 2017 Budget at 12:30 a.m. following 15 hours of debate, ending in a chaotic vote that created a $2-million budget hole and required hastily drawing from reserve funds. Council's habit of holding extended meetings impacts staff performance and morale, and is also inconsistent with more family-friendly legislative schedules followed by other levels of government. Both the House of Commons and the Ontario legislature, for instance, do not typically sit for more than nine hours per day. Council should follow the lead of other legislatures and set a strict time limit on the length of Council meetings so that councillors debate issues for no more than 12 hours per day. If a meeting begins at 9:30am, then it should end by 9:30pm, and if necessary, continued the next day. 51

There is no other municipal Council in Canada for which such a recommendation would be necessary. Why did they even mention the House of Commons and the Ontario legislature?

Procedurally and organizationally, these bodies are structured in completely different ways. They

so See, for example, City of Toronto, Governing Toronto Advisory Panel, The City We Want-The Government We Need (November 2005), online: http://sujitchoudhry.com/wp-content/uploads/2017/01/The-City-We-Want-the Government-We-Need.pdf; and University of Toronto School of Public Policy & Governance, A Practical Blueprint for Change: Final Report ofthe City Hall Task Force (2017), online: http://individual.utoronto.ca/eidelman/ docs/City%20Hall%20Task%20Force%20Final%20Rep01t.pdf ["City Hall Task Force Report"]. A copy of the City Hall Task Force Rep01t is attached as Exhibit "D" to this affidavit. si See City Hall Task Force Report, supra note 50 at 32. -177- -178- Page 1554

certainly do not require the constant physical attendance of all deputy ministers from the civil service in case a member calls on them for an explanation about a civil-service report.

86. Someone who has raised the issue of Council size is Ian Urquhart, columnist for the

Toronto Star. In a 2014 column headed, "Toronto's dysfunctional city hall needs reform" Urquhart rehearses the kinds of reform proposals listed above. He then adds:

Finally, we could dramatically reduce the size of council by choosing one member per federal/provincial riding.

In 2018, that would give us 25 councillors, which is still a lot. But it is better than 50. The goal is not to save money by having fewer politicians but to make council more functional. 52

87. It is important to emphasize Urquhart's statement that his position has nothing to do with the goal of saving money. This is my position as well. It is my opinion that the Toronto City

Council would be a much more effective governing body if it were significantly smaller. I recognize that the issue of Council size has been the cause of considerable political division. This probably explains why many advocates of structural change have been reluctant to confront this issue.

88. In many respects, the amalgamation issue is still being fought out in the current debates, with opponents clinging to the idea that by fighting a reduction in the size of the Council, they are preventing the full implementation of the amalgamation agenda. In my view, this approach is misguided. As I have indicated earlier, it is time to move on and search for structural alternatives that take into consideration the reality of amalgamation.

89. The question of the impact of Council size on decision-making effectiveness is notoriously difficult to investigate. The most comprehensive discussion with which I am familiar, written in

52 Ian Urquhart, "Toronto's Dysfunctional City Hall Needs Reform", Toronto Star (19 November 2014), online: https://www.thestar.com/opinion/commentazy/2014/l l/19/torontos dysfunctional city hall needs reform.html. -179- -180- Page 1555

1989 is in an article titled "On the Size of the City Council: Finding the Mean" by Douglas Muzzio and Tim Tompkins, Muzzio and Tomkins conclude: "At best one size cannot be called better than others; rather different sizes are conducive to different goals." 53 Virtually every argument advanced in the current debate about Toronto wards is considered in this article. There are no surprises and no definitive conclusions.

90. But this article focuses primarily on New York City, another strong-mayor system, which, at the time the article was written, had 35 members, each representing an average of202,000 people. (Currently, the City has 51 Councillors, representing an average of about 168,000 people each). Unlike Chicago, New York City is formally a partisan system. Currently there are 48

Democrats and three Republicans.

91. Ultimately, this article is not helpful because there were no cases then ( or now) of

American weak-mayor cities with non-partisan Councils having more than twenty-five members.

Toronto is genuinely unique.

92. The consultants hired by the City of Toronto to conduct the ward boundary review were not expected to engage in a full-scale review of the City's governing structures. They were expected to decide on the number of wards in the context of the concept of "effective representation." It is simply not possible to separate the issues of "effective representation" and

"good governance." Effective representation is meaningless if governing institutions are not functioning effectively to reflect the major concerns and preferences of citizens over the long term.

As was pointed out at the beginning of this section, most people charged with drawing electoral boundaries need not concern themselves with "good governance" because somebody else has

53 Douglas Muzzio & Tim Tompkins, "On the Size of the City Council: Finding the Mean" (1989) Proceedings ofthe Academy ofPolitical Science, 37:3 Restructuring the New York City Government: The Reemergence of Municipal Reform, at 83-96. -181- -182- Page 1556

already decided the number of electoral districts. In the case of Toronto's ward boundary review, however, this was not the case. The consultants could not avoid issues relating to "good governance" because they were obliged to consider the number of wards. How did they do this?

93. It is hard to believe, but the reality is that the consultants provided no analysis of issues relating to council size. They listened to incumbent Councillors and to people who attended their

"public engagement" sessions (see previous section) and they looked at ratios of residents to

Councillors, but they otherwise wrote nothing at all in any of their reports about what they considered an appropriate size for the Toronto City Council.

94. In their brief analysis of the ratios, they noted that the average population per ward in

Toronto was 60,958. The analogous number for Calgary (with less than half Toronto's population) was 78,345. 54 There is not a line of description or analysis about how Calgary (with a population of 1,096,833) manages with only 14 wards and 14 Councillors. The same Table in the consultants' report also shows that Councillors in both Edmonton and Mississauga represent more residents on average than does a Toronto Councillor. 55 Once again, there is no description or analysis, except to note that "Toronto's average ward size is in the middle of that range ... " 56 I would have expected the consultants to suggest that it is, in fact, sensible for the most populous city in Canada to have a ratio of residents to Councillors that is much higher than "the middle of the range".

95. For example, the nonpartisan Council of the City of Los Angeles (population 4 million) manages to get by with only 15 Councillors. 57

54 Research Report, supra note 9 at 29. 55 Ibid at 29-30. 56 Ibid at 29-30. 57 Los Angeles, "Council Directory," online: https://www.lacity.org/your-government/elected-officials/city council/council-directory. -183- -184- Page 1557

96. While there is no ideal or optimum size for a non-partisan city Council, a non-partisan

Council having 47 members is, in my view, outside the range of acceptability. I remain convinced that what I wrote in my textbook in 2015 is as relevant to the City of Toronto as it is to other

Canadian municipalities:

Most Canadian councils have memberships between 7 and 25. Councillors sit around a table, often shaped like a horseshoe, with the mayor presiding. In this setting they interact directly with each other and occasionally convince their colleagues to change their minds on the basis of new information and new arguments. Although there might be factions on the council, voting alliances usually shift from issue to issue. Such meetings can be very messy, with much confusion about the wording of motions and the implications of various courses of action. But decisions get made, and some get reported in the local media. More than any other venue in the Canadian governmental system, a relatively small non partisan municipal council is a place to watch representative democracy in action. 58

97. I agree completely with Dr. Davidson when he points out in his affidavit59 (para 44) that there is a big difference between Westminster-style parliamentary systems and nonpartisan municipal Councils. But we each draw opposite conclusions. He thinks that, because each

Councillor has "a more involved legislative role," there needs to be more of them. I claim, however, that their nonpartisan legislative roles become infinitely more difficult as the size of the

Council increases, so difficult that many are likely to retreat to looking after only the most local of issues concerning their respective wards, to the great detriment of the interests of the City as a whole. Because of party discipline, however, there is virtually no limit on the size of parliamentary legislatures (for example, there are 650 members in the United Kingdom House of Commons).

(v) The role of municipal Councillors and City staff 98. If, in the TWBR consultants' view, maintaining the current size of the Toronto City

Council (or enlarging it) is desirable, shouldn't they have paid some attention to how Toronto

58 Sancton, Canadian Local Government, supra note 43. 59 Appeal Book, Volume 4, Tab 40 at para 44. -185- -186- Page 1565

the accumulated knowledge of Councillors serving their wards." Professor Siemiatycki on the other hand promotes the 47-ward system because it opens up more wards to non-incumbents. The combination of Dr. Davidson's and Professor Siemiatycki's reasoning would lead to a Council whose size over time would continuously expand.

121. The authors of the 1989 article on council size cited earlier state that, "Legislatures, when left to their own devices, almost always expand in size. When reduction has occurred in recent years ... it is almost always as a result of extrinsic actors" such as federal courts or state legislatures. 81

122. My views about the desirability of a smaller council for the City of Toronto have been consistent for many years. Most recently I argued for such a solution in the appeal of the 47-ward structure that was heard by the Ontario Municipal Board in 2017. When the Government of

Ontario announced the content ofBill 5 during the 2018 municipal election campaign I stated on social media and orally to others that I could not support the process that the government had adopted and that the Government could have waited until after the 2018 election. I also stated that

I did not doubt the government's legal authority to legislate in this way.

123. I understand now the sense of urgency. If there were no legislative action prior to the 2018 municipal election, any legislation that might implement a 25-ward system for the 2022 election would take effect just when a new federal Electoral Boundaries Commission for Ontario would be starting the process of drawing new boundaries for the FEDs. This would not be a desirable state of affairs. Had the Progressive Conservative Party of Ontario explained all this during the 2018 provincial election campaign and promised to introduce legislation implementing a 25-ward system immediately on taking office, I would have fully supported its position.

81 Muzzio and Tomkins, supra note 53 at 88. -187- -188- Page 266

AND BETWEEN:

CHRIS MOISE, ISH ADERONMU, and PRABHA KHOSLA, on her own behalf and on behalf of all members of Women Win TO

Applicants (Respondents in Appeal) - and-

ATTORNEY GENERAL OF ONTARIO

Respondent (Appellant) - and-

JENNIFER HOLLET, LILY CHENG, SUSAN DEXTER, GEOFFREY KETTEL and DYANOOSH YOUSSEFI

Interveners (Respondents in Appeal)

AFFIDAVIT OF ANTHONY FOWLER

I, ANTHONY FOWLER, of the City of Chicago, in the State of Illinois, in the United States of

America, MAKE OATH AND SAY:

1. My address is 1155 East 60th St, Room 165, Chicago, IL 60637.

2. I am an Associate Professor with tenure in the Harris School of Public Policy at the

University of Chicago. I am also a Faculty Associate of the Department of Political Science and a founding member of the Committee on Quantitative Methods in Social, Behavioral, and Health

Sciences at the University of Chicago. Broadly, I am a political scientist specializing in elections, political representation, and quantitative methods. My specific interests include the causes and consequences of unequal voter turnout, explanations for incumbent success in elections, the politics of policymaking in legislatures, and the credibility of empirical research. My personal -189- -190-

Page 267

qualifications are described in greater detail below under the header "Relevant background and experience.''

3. As such, I have knowledge of the matters set out in this affidavit. Where the information set out in this affidavit is not based on my personal knowledge, I state the source of this information and believe it to be true.

4. I understand that the applicants challenge the Better Local Government Act, 2018 ("Bill

S"). I understand that under Bill S the City of Toronto wards mirror the federal electoral ward boundaries within Toronto and that each ward has one City Councillor (with the result that the City has 25 Councillors elected to City Council plus the Mayor). I understand that the applicants challenge the timing of the enactment of the legislation, the re-drawing of the electoral.boundaries and the consequent reduction in the number of City Councillors. In preparing my evidence, I have reviewed the notices of application of the City of Toronto, the Moise applicants and Rocco

Achampong, as well as the affidavits of Prabha Khosla, Myer Siemiatycki, Gary Davidson, and

Mariana Valverde. I have been asked by counsel at the Ministry of the Attorney General to provide opinion evidence on the impact of Ontario's reduction in Toronto City Council seats on the representation of historically underrepresented groups on Council. Specifically, I was asked to answer the following questions:

a) What are the likely representational effects of shrinking the number of wards and seats in

Toronto's City Council from 44 to 25? I have been asked to pay particular attention to the

likely effects on the electoral success of candidates from historically underrepresented

groups; and

b) How will the phenomenon of incumbency advantage likely interact with the reforms made

to Toronto's City Council? As above, I have been asked to pay particular attention to how -191- -192- Page 268

incumbency advantage in a 25-ward structure will impact the electoral success of

historically underrepresented groups.

5. My conclusions arise from my own independent, quantitative analyses of demographic data and results from recent Toronto City Council elections.

6. I understand that my duty is to provide opinion evidence that is fair, objective and nonpartisan, related only to matters that are within my area of expertise and to provide additional assistance as the Court may require. 1

A. Relevant background and experience .

7. I have a Bachelor's degree in biology from the Massachusetts Institute of Technology

(2009) and a Ph.D. in political science from Harvard University (2013).2

8. As noted above, I am currently a tenured Associate Professor in the Harris School of Public

Policy at the University of Chicago. I am also a Faculty Associate of the Department of Political

Science and a founding member of the Committee on Quantitative Methods in Social, Behavioral, and Health Sciences at the University of Chicago. I have taught courses for undergraduate, professional, and doctoral students on elections, campaigns, public opinion, political economy, and quantitative methods.

9. I have published more than 20 peer-reviewed articles in academic journals including the

American Journal ofPolitical Science, Journal ofPolitics, Quarterly Journal ofPolitical Science,

Proceedings ofthe National Academy ofSciences, Election Law Journal, and Journal ofEmpirical

Legal Studies. I have also written for The Washington Post and Boston Review. I am currently

_working on a textbook entitled Thinking Clearly in a Data-Driven World.

1 My signed Acknowledgement ofExpert's Duty is attached to this affidavit as Exhibit "A". 2 A current version ofmy curriculum vitae is attached to this affidavit as Exhibit "B". -193- -194- Page 283

F. Availability to provide evidence in this proceeding

52. · I was first contacted by the Government of Ontario regarding whether I could assist them in this matter on Wednesday, August 22, 2018. On this date, Audra Ranalli, counsel at the Ministry of the Attorney General, emailed me on behalf of Ontario and provided me with the following information:

• Bill 5 reduces the size of Toronto's City Council from 47 to 25 seats; • The nature of the discrimination claims brought against Ontario due to the reduction in City Council seats; • The fact that Ontario is aware of the work I have done on incumbent success in the American electoral context, which is why they were reaching out to me; • lnqu:irhtg whether I can assist, on a rush basis, with a deadline of August 27, 2018, in reviewing and responding to the material filed by the applicants; and • As Ontario was operating under a tight timeframe, she provided me with copies of the notices of application and affidavits of Prabha Khosla and Myer Siemiatycki.

53. Later in the day on August 22, 2018, I responded to Ms Ranalli's email stating my inability to help Ontario due to the rushed schedule. Specifically, I wrote: "If I had more time, I would potentially be interested in collecting data and conducting a study to assess some of these claims.

Unfortunately, that's not feasible given your rushed schedule. I hope some of these comments are helpful."

54. On Thursday, September 27, 2018, Yashoda Ranganathan, counsel at the Ministry of the

Attorney General, emailed me to inquire whether I would be available to discuss the matter further as Ontario's "time pres~ure has now relaxed somewhat.'' On September 28, 2018, I responded to

Ms Ranganathan and arranged to speak with Ontario on October 2, 2018. 12 I subsequently agreed to be retained by Ontario in order to provide an expert affidavit in this matter.

12 My correspondence with Audra Ranalli and Yashoda Ranganathan is attached to this affidavit as El[hibit "P". -195- -196- VICTORY VERBATIM Page 9

G. Carbone - 9

1 correct? A. Correct.

3 21. Q. I want to take you back to the end of July, 2018 and the beginning of August, 2018,

5 after the announcement by the Province of an

6 intention to introduce a bill that eventually became bill 5. You are aware that the City Clerk's office

8 had discussions with the Ministry of Municipal i ~ ) ll 9 Affairs and Housing on how to conduct a 25 Ward : ,-1 election, or how compliance with Bill 5 would be lI ·1fol : l : 'l1 achieved? rr A. After we became aware of the 13 Province's intentions, yes.

22. Q. And in the course of August and September and October 2018, the City and the City Clerk's office received support from the Ministry of

I ~- 7 Municipal Affairs and Housing, Elections Ontario, 1 l! 18 and the Municipal Property Assessment Corporation in order to conduct an election in accordance with Bill

20 5, correct? lt A. That's correct. We received support

1112 from the Ontario public service in the various !. .~I 23 sections.

4 23. Q, If you turn to the body of that same ,11:!... s u25 affidavit, let's just go back to tab 39. If you can

ERNST&. Ye UNG TeWER, 222 EIAY EITREET, SUITE gee, TeReNTe, eNTARle, MSK 1 He IJ WWW,VICTCRYVEREIATIM,CeM (41 e) ::1ec-e 1 17 INF'e@VICTCRYVEREIATIM,CCM -197- -198- Page 18 VICTORY VERBATIM

G. Carbone - 18

52. Q. Okay. A. I don't recall.

3 53. Q. But this, at the end of the day, proved to be the starting point for the engagement of the expert, the Toronto Ward Boundary Review consultant, correct? A. That's correct. ~ 7

8 54. Q. Now, let's go back to page 737. L Under the word "summary", i IJ " ... This report responds to the executive committee's request that the City manager

! "12 report on a ward boundary review process to d\ ·, 13 reflect effective representation within ljL Toronto. At present, there are significant I J

15 discrepancies in population amongst ;! j'! I ili.6 Toronto's ward boundaries that warrant a

., ti 7 review ... " ij 18 Then it goes on. And then if I move to the next paragraph,

20 " ... The division of ward boundaries is the [ ll I ti1 very basis of representative democracy, and must be approached without any preconceived

lr',1 23 ideas of final ward boundaries such as, for example, prejudging the number or

25 populations of wards. The process must be

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"l 1 independent and unbiased, and involve substantial consultation and comply with ~ 2

3 the principles set out by the Supreme Court l l\ 4 of Canada, Ontario courts and the Ontario li Municipal Court ... " You see those paragraphs, right? A. Yes, I do.

8 55. Q. Okay, and this reflects the City manager's recommendation to council?

10 A. So, the City manager's :L recommendation to council was yes, that we retain a '112 third party consultant to undertake this review so ! !i 13 it would be a totally independent review.

56. Q. All right, but the summary ... because

15 we can ... we will go and I wanted to deal with the ! 8 ! 1i • h6 first instance of this language here. We will go !r through the ... 18 A. Oh, okay.

i "fi·jl.9 57. Q. ... the background information, but I ! J 20 just wanted to ...

1 li MR. GILL: The report speaks for itself, no? I. ~f I 2 I. 23

BY MR. BASU:

25 58. Q. But what I want to understand is IJ

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lIi 1 A. That's correct.

-~ 2 144. Q. And that's consistent with what you Ii 3 just told me? A. That's correct. 145. Q. All right. And then if we move to 748, top of the page, the bullet ... A. Yes. 146. Q. " ... Considers and accommodates Toronto's

10 projected growth and population shifts for : B : &11 a reasonable period of time ... " Do you see that?

13 A. Yes, I do. 147. Q. And that is the term ... those are the

15 terms of reference that are given to the City

ILI" manager for purposes of retaining an outside

·. t7 consultant, and that these terms of reference would ! 11 ·1'·,1. · Mla be the terms of reference for the outside consultant, correct?

20 A. Appendix Bis the terms of reference that were adopted by council.

148. Q. For the outside consultant? A. For the outside consultant. 149. Q. Right. So ... but we have no guidance

25 as to what a reasonable period of time is referred u

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11 to when they say a reasonable period of time. That r-12 is left to the consultant's discretion?

3 A. The consultants did come back with a work plan in 2014, and I think that work plan may

have made reference, but I can't ... I have to go ahead, skip ahead to my affidavit to look for that. 150. Q. Maybe we'll find it ... A. Okay.

151. Q, . .. if we carry on. And then the

. 10 second bullet immediate, of "key project timelines 11 , lL " ... considers the appropriate number of .wards as well as ward boundaries within the 2 rt'-, terms of reference ... " Just above "key project timelines", if you look at

15 the ... IL A. That's correct, that's what that ... 152. Q. Okay. Because eventually, we know, 11'17l ; 18 going back to the question of the reasonable period of time, the consultants approached their task with

20 a view to accommodating four election cycles ... ~ l tn A. That's right.

! rP 153. Q. . .. up to 2030? uI U 23 A. Up to 2030, that's correct. 154. Q. And their target year for achieving

25 voter parity was 2026? . t JI

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G. Carbone - 50 'l ' 1 " ... It forms the basis for representative

2 democracy. There needs to be some

assurance that one elector's vote is

roughly equal to that of others ... "

5 And then, of course, that is subject to everything

6 the courts have to say about effective

representation, correct?

A. That's correct.

: l'Il • ; 9 Q • Okay. Just on page 763, the middle '. J 194. paragraph that says,

" ... The TWBR has been designed to respect r-,,·12 the arm's-length principle ... " :! 'l l ' ' ' 13 Do you see that?

I ! i ['114 ! \ A. I see that. I .; 195. Q. So, what the ... the "arm's-length

principle with respect to council involvement", and

I gather ... you can take a look at the paragraph, and

18 my question is, the concern is that the City Council : I i 1~9 itself shouldn't essentially be directing the 1 n

20 process of ward boundary review such as this one, i 11 I !!21 because there is a political interest that may skew

! (22 their approach to redesigning ward boundaries. \ t') ; ·71 23 A. The view is held quite strongly

across the courts and the sector that it should be

25 an independent review. So, yes, while council has I : ' .J ' '\···.·

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to ultimately approve the ward boundaries, this, the

review of the ward boundaries should be totally

3 independent.

196. Q. And the reason for this, according

to the middle paragraph ... middle sentence, the

reason for this is,

" ... Along-held concern about ward

8 boundaries being shaped to the benefit of a

9 specific party ... " ; 11~

10 I think they mean a specific person or councillor, .; ·~·l : :11 because political parties wouldn't really be in this

mix, would they?

13 A. Not for this particular ward

boundary, but my understanding ... that's correct.

197. Q. In some ...

A. Yes.

, ·~;17 198. Q. . .. electoral systems ... ::·· il ! ,, 18 A. Yes.

199. Q. ... in some communities ...

20 A. But the municipal in Ontario it i [i I t'21 doesn't apply.

I t~z 200. Q. That's right. So, in other words, i I I H ''b that councillors have a self-interest ... they may be

affected by their self-interest in this exercise,

25 and therefore this calls for an arm's-length

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process?

A. Yes.

3 201. Q. Okay.

A. It calls for an independent, total

arm's-length.

202. Q. And then it goes on to say,

:. -,.l 7 " ... This doesn't mean that individual j 8 councillors cannot participate in the

' ~ 9 ri TWBR .•. " ll

10 Do you see that part of it? .· I1 : lh1 A. Yes. t\12 203. Q.

Ii\j 13 " ... Councillors have valuable and detailed

information about their wards, especially

15 with respect to boundary issues and

communities of interest ... "

, "jl 7 A. That's correct. I ! I .I 18 204. Q. All right. So, they know their

wards best in terms of who lives there, what the

20 communities of interest are, things of that nature, I !I J lb and that's where their input becomes valuable to this exercise, correct?

A. That's correct.

205. Q. All right.

25 A. Just understanding the workload, as

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l G. Carbone - 53 -ll

! 1 well, associated with different ...

206. Q. Well, the word "workload" doesn't ·1 2

3 appear here. -i ij 4 A. No.

5 207. Q. Okay.

l 6 A. That's correct. 208. Q. So, that's your addition.

8 MR. GILL: So, Robin, maybe we can go off for a second.

DISCUSSION OFF THE RECORD : 112 13 BY MR. BASU:

:' I114 209. Q. This is consistent, the sentence, : u

15 " ... Councillors have valuable and detailed I ~ j ll16 information about their wards, especially with respect to boundary issues and Ii 117 I 18 communities of interest ... " That is something ... it's a view that's shared by It!P19 20 city staff? 11 I ~21 A. Communities of interest? Yes, and different boundary issues. So, when you look at

ir23 ward boundaries, and to have effective 1}4 representation, you have to consider voter parity,

25 but you have to consider other things like the u

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G. Carbone - 54 -fl l 1 history of the community, natural and physical boundaries, and communities of interest.

3 210. Q. Right, okay. And so there is ... so, staff doesn't depart from the view of the consultants on this issue? A. The view of the consultants and the view of the courts. ' l! 7 'ij 8 211. Q. Okay. All right, let's move to 764, i >~·· ! i 9 bottom of the page. Last sentence says, ' ' : .;) " ... All options will achieve the principle l ·,to •1u of effective representation ... "

i ~12 Going back to the set of options that are set out i [! I tl 13 above,

I ~1\J.4 . " ... if not at the outset, then for the 2022 i i

15 municipal election ... " i ~ I U i ft6 Do you see that?

i ,p A. Yes. l [: i lj 18 212. Q. All right. So, at this stage, when I"! \t9 the consultant is reporting back with their work d 20 plan, it looks to me like they're looking at a 2022 target date. MR. GILL: Are you asking what it looks to you to be? What's your question?

25 BY MR. BASU: !J

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1 213. Q. I'm asking for the witness' assent. fl 2 A. That's what the report says. ti 3 214. Q. So, we know eventually that they settled on a 2026 target date, correct? A. That's correct. 215. Q. All right, and do you have any information as to the transformation from 2022 to

8 2026? A. Sorry, no. I do not. 216. Q. All right, so to close that loop, let's move to the next exhibit, Exhibit L. A. Okay.

13 217. Q. Starting at page 1514 of the record, and it starts at 795 of your affidavit, to 797,

15 A. Okay. 111 i i16 218. Q. So, if we look at the last sentence of the paragraph that begins, ' ·1·117I 1 j I J 18 " ... Between July 2014 and January 2015., ." i ~ A. Yes. ! ~19

20 219. Q. So, it refers to the TWBR completing 11~1 round one of its civic engagement? That's correct. I rf2 A. . ~ 23 220. Q. And then we move to the last 1J4 sentence, 25 " ... Based on population forecasts for the IJ

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l G. Carbone - 56 l ' 1 target year of 2026, the five options

Jj 2 are ... " Ii 3 And then it lists five options, right?

-l 4 A. That's.correct. 221. Q. And so as far as I can tell, this is -li : the first appearance of 2026 in this material?

ll 7 A. That's my recollection. li 8 222. Q. All right, so that was originated with the consultants, or did it originate with city ·]:• J' 9 , I10 staff, or did it originate with City Council, the • Bu picking of the target year of 2026 as opposed to 2022, which seemed to be an earlier ... A. I'm pretty sure it originated with the consultants . 1114• I)

15 223. Q. All right. I understand that the : ~ i g i !il6 City of Toronto's population is projected to continue to increase ... ;i 1·117' j i ! j 18 A. That's correct. 224. Q. ... over the next decades?

20 A. By 2030, I believe, by 500,000. I ~~1 225. Q. And do we have projections for 2040 and 2050? I fF 2 d23 MR. GILL: Sorry, who do you mean by "we"? Do you mean the City of Toronto?

25 Sorry, I just want to make sure we get it l I

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G. Carbone - 76

EXHIBIT A: October 11, 2016 Ward Boundaries

,-, 2 (for identification)

q4 301. MR. BASU: Okay, let's have a break. ·

ri 6 upon recessing at 3:31 p.m. A BRIEF RECESS r·1 7 8 upon resuming at 3:37 p.m.

10 GIULIANA CARBONE, resumed

1 ~11- CONTINUED CROSS-EXAMINATION BY MR. BASU: 302. Q. The purpose of the municipal election is to determine which councillors will sit on council and perform the governance functions for the City, is that correct?

A • That's correct.

303. .Q. And the City itself is neutral with !···[ respect to the election. It doesn't take a side, it doesn't promote particular candidates, right? ! 'l9 20 A. That's correct.

304. Q. And so it's agnostic, or neutral, with respect to the outcome? A. Of the election? 305. Q. Of the election.

25 A. Yes, that's correct.

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'."li 1 306. Q. It doesn't express itself in the campaign, correct? ri 2

3 A. That's correct.

307. Q. It doesn't do any campaigning? q5 A. That's correct. ' .; 6 308. Q. Doesn't express itself on any of the political issues in the election? ; ll 1 ,1 8 A. That's correct. 309. Q. The City takes steps to inform the

10 public of the election, where to vote, the rules, i i ' ~ \ '.11 informs the candidates of the rules, right?

1 r:12 A. That's correct, and the candidates :lj 13 have to register with the clerk. ii! i ·r: 4 310. Q. 5 I i There is nothing in Bill that ! J 15 restricts the ability of the City to communicate Il6 information?

• l17 A. That's correct, there's nothing that I l: I j 18 I know of that restricts that.

311. Q. And I want to go beyond what you

20 know of. The City is not asserting that Bill 5 restricts the City's expression? A. That's correct. MR. GILL: That's correct. 312. MR. BASU: This is a question for your

25 counsel. If you could go to tab 20 of the JJ

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-.~';l_

I! G. Carbone - 81

BY MR. BASU:

320. Q. Thank you. And that saves a period

3 of time, thank you. I'm just hoping to

4 short-circuit some of this. And just hope that I

can get your assent to a number of general

propositions. The City devotes significant

resources to providing services to the population of

8 the City?

: ,-1I j ; 9 A. That's correct. ; ~ 321. Q. And has a large staff to accomplish

this and to assist the population of Toronto with l \12 respect to complaints or queries with respect to I I 13 services that the City delivers?

~4 A. That's correct. ,I

15 322. Q. All right, and information is

I ·1'i I -116 available on the City's websites, through city

'. ',17 staff, phone numbers for residents and others to Hi 18 obtain information about the range of services

provided by the City and to get an access service,

20 correct? i ·11·; i ,:Zl A. That's correct, there is a number of

channels that they can get information on our

1r~ -I 23 services.

323. Q. And it's fair to say that that would

25 be ... going through the website, phone number, dI ·:

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G. Carbone - 82

in-person meetings with city staff, is the primary

2 method that is encouraged by the City to access city

3 services rather than, in the first instance, going to a councillor to get access to services? The City

tries to make it so that one doesn't need to approach your councillor for the resolution of a particular issue, or to access a service?

8 A. The public service needs to have all of its services accessible to the residents, right? So that they can come through us. We actually deliver the service, so they can contact the councillor, but the councillor often has to refer If!2 13 them to us to actually provide them the details or

l -11 i j_4 to get that service delivered, or resolved, or their I j issue resolved.

324. Q, In the overall system design, the

; 111 first point of entry or point of access is intended tjI ' I I 18 to be the City's public service rather than H-9 councillors?

20 A. That's correct. lt 325. Q. It would be an impossible task for councillors to actually deliver customer service in all cases? A. That's correct, and we have a 311

25 line as well to make it easier for residents to call JJ

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G. Carbone - 114

424. Q. I'm showing you two documents. One is entitled "Report for Action, Recalibrating City

3 Council's Governance System for 26 Members", dated

1I 4 November 26th, 2018, to council from the City manager and City Clerk? A. That's correct. 425. Q. Do you recognize this document? A. I recognize the document.

426. Q. And that is the report from city

10 staff to council on ... just what it says, L recalibrating City Council's governance system given i112 that the City has moved from 45 members on council II ' 13 to 26 members on council. A. That's correct. 427. Q. Correct? And there is a series of recommendations contained therein with respect to changes that city staff recommend, correct? A. That's correct. 428. Q. Which include changing the

20 composition membership ... membership and composition size of various boards, and subordinate ... A. Standing committees. 429. Q. . .. committees. A. Special committees, boards.

25 430. Q. Community council as well? IJ

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G. Carbone - 115

A. Community councils.

431. Q. And that is to deal with the fact

3 that with fewer councillors, they can't attend all of the committee meetings that they used to attend,

5 and the committees can't be as large as they used to

6 be, because ... A. There aren't enough councillors to

8 distribute across the number that were there before, i "I: i J 9 so we had to recalibrate the number of committees so : •i

10 that we ... I think we average around two committees ! fl ' tj11 per councillor.

432. Q. Okay, and you also recommend changes ;; "!112{ i J 13 to the budget per councillor for staffing? A. That's correct.

433. Q. To increase the staffing available ... to make the budget available to increase

: Jll7 staffing ... \ I) r ij 18 A. That's correct.

434. Q. ... for councillors? And also ...

20 A. We deal with the appointment

I [! I J1 process, the public appointments process et cetera. 435. Q. And three options were presented, and one was selected, which was in the second document I have, right? Which is "City Council

25 consideration on December 4th, 2018"?

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l 1 A. That's correct, so this is council's

2 decision. They considered staff recommendations, "ri I I 3 and this is what was adopted. Some of those ;l 4 recommendations would have been tweaked, some of : ~ ;1 5 them are very similar to what was recommended. 6 436. Q. And they'll speak for themselves, to :~ 7 save some time? 8 A. That's correct.

j ~ 9 437. Q. So, that second document we were

.. /0 referring to was December 4th? :L A. That's correct. 438. MR. BASU: So, this document, that was !ti12 i ij 13 the December 4th document you referred to. 1 n l L'l.4 So, let's call the November 26th staff I h

15 report the next exhibit Exhibit 1. 1Ll 1 EXHIBIT NO. 1: Report for Action, Recalibrating ir\--! ' . ''18 City Council's Governance System For

I ~9 26 Members, dated November 26, 2018 I " 20 Il1 439. MR. BASU: And I also want to mark the next December 4th document, which is the

ir23 City's decision, as Exhibit 2. JJ4 25 EXHIBIT NO. 2: Tracking Status, dated December 4th, u

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G. Davidson - 6

1 A. Not the variety, no. ·,1; 2 4 . Q. Okay. Can you just tell me what 3 the genesis of the desire for multiple election T] 4 cycles ... what that ... how that ... what the thinking :'' l! 5 was behind that? i.. ij ! IJ 6 A. Yes. The ... our terms of

; 1! 7 reference from the City of Toronto was to develop ll 8 a ward boundary model that would last for

i ~ 9 multiple elections. When we looked at the growth tl 10 rates in the City of Toronto, when we looked at lh1 the existing situation in the City of Toronto, we concluded that an appropriate target year would be 2026. And if you can devise a ward boundary I f1_4 model that will work for 2026, you will probably i I 15 have a ward boundary model that will last for ... to 2030, and that is why we always ... mostly say, "possibly". Although we did note in our report that as you reach 2030, there are a few areas in

I f[. 9 the city, because of their growth, that in fact : [j 20 would have to be re-looked at.

i n I li21 5. Q. So, I take it from your answer ' .~ 22 that you were the ... that it was the consultants I'i.l l! ]~3 and not the City that decided that the target

I 124 year should be 2026? I r, •• ;:J 25 A. We decided on the target year,

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G. Davidson - 7

based on our terms of reference, which indicated

2 that we should a ward boundary model that lasted

3 for multiple elections. l; 4 6. Q. All right. So, 2026, though, as 5 a target year, was really yours? The terms of ·1 u 6 reference were a little vaguer than that?

7 A. They just said, "multiple

8 elections". li ij 9 7 . Q. So, you are suggesting that 2030 10 was a potential year in which this could apply 'h1 ... an election in which this could apply? '112 A. Potentially. A potential year ij13 with possibly a few minor adjustments in i ~14 Scarborough and in South Etobicoke. I ~ 15 8. Q. So, you were contemplating that j f,16 perhaps before the 2030 election, adjustments should be looked at?

A. Yes. We were contemplating that

\ ~19 they would.look at it, and specifically those two J u 20 areas. l~1 9. Q. The selection of a target year , 22 does impact the analysis considerably, you will I Illi3 agree, right? u24 A. I don't know what you mean by, 25 "considerably".

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G. Davidson - 11

at effective representation in 2018, 2022, and 2 2026, right?

3 A. Correct. r ff ! t 4 18. Q. All right. If you drop 2026 from q 5 the scope of your review, and you are only i u 6 looking at 2018 and 2022 ... say, for example, council is prepared to re-look at the issue of ward boundaries in ... before the 2026 election. i D i I 9 You see where I am headed? Do you understand 10 the ... q i ~11 A. I am waiting for you to finish

-I n12 that thought. f, i fi , '13 19. Q. Right, okay. The setup of my I 114 question, you understand what I am saying so far? 15 A. M'hm. lH jp.6 20. Q. Okay. A. Sort of. ,-111:17 i '18 21. Q. Yes. Then the ultimate analysis qu.9 and selection of preferred options may be 20 different? !~1 A. Not necessarily. It may be, but not necessarily. I 122 23 22. Q. Well, it may be. In fact, in rejecting the fed's model ... you understand what I tf 4 25 mean by the "fed's model"? ]J

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l G. Davidson - 12

A. Oh, yes.

··~ 2 23. Q. Yes. You, in your affidavit, and

,1 3 in other materials, you say, "Well, it doesn't

.. ;\ 4 achieve effective representation for 2026, due to nll Ii 5 voter parity concerns." fi 6 A. It doesn't achieve effective

7 representation in 2018, 2022, or 2026. [i i 8 24. Q. It doesn't achieve voter parity

9 in 2026?

10 A. If you just look at the narrow, ll 1111 or the one component of parity ... we always refer

"12 to as voter parity, but it is actually population

I t3 parity ...

! 25. Q. Yes? 1 [j14 I il 15 A. . .. you will find that the federal

I model doesn't achieve parity in 2018, 2022, 2026 i h6J . ,17 and 2030 . I 'i 1\\ ! .:18 26. Q. Based on your projections? i ~19 A. Based on the numbers we use, of 20 course. i ~21 27. Q. Based on the population I I 22 projections you have got, correct? I )i I ~;23 A. When we were doing the study, the i l2 4 only census we had was 2011. !i I· ..• ~/ 25 I 28. Q. But you are relying on population I 1I .. I,i

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G. Davidson - 13

1 1 projections ...

2 A. Yes . : ~ 3 29. Q. . . . that were supplied to you by r1 . ' 4 the City? i IJ 5 A. That's correct. rij ; 6 30. Q. All right, for the course of your q 7 work, right? : ~ 8 A. That's correct. l 19 31. Q. Okay. The fed's model that 10 was ... let's call it the 2012 fed's, based on the ll1 2011 census. We agree we will call it that? A. I think it ... I don't know if it r1r 2 ; :1.3 came in in 2012, but it was based on the 2011 census. '1 iiJ1_ 4 " 15 32. Well, the commission report was

2012. It was adopted in 2013 and it was based on the 2011 census, right? !t ~~I 7 i-' '18' i A. Okay. ! f:19 33. Q. Okay. So, that is a static I u 20 picture of population, the census, right? i ~~1 A. Yes. 34. Q. Okay. And the fed's is based on that data, correct? u24 A. That's correct. 25 35. Q. All right. Now, the fed's model I Ii ..If. ~

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l G. Davidson - 14 -i 1 is reviewed every 10 years, correct? A. The census is reviewed every 10 years. The fed model is based on when the

r ~ 4 Government of Canada decides, after the 10 year

5 census, after those numbers are reported, when to

6 do it. But they usually start as the soon as the numbers are known. , r:. 7

j ll~ 8 36. Q. Right.

9 A. Because first the national 10 government has to decide how many seats in !1'l11 federal parliament are available across the whole ' !

\ !12 country, and divide them up by province. I tl13 37. Q. Right. So, that is the first

! 114l exercise and then there is a commission, which ! 1\ ! \l 15 decides on boundaries? I [I l 1!16 A. Except Prince Edward Island has a

I nl 7 commission. lls 38. Q. Okay. And then the commission ...

I lil 9 let's talk about Ontario. Then the commission ! Ii I e 20 will establish federal riding boundaries, right? A. That's correct.

39. Q. All right. And the next census, the next decennial census, will be 2021?

A • Correct. 4 ...lr J 25 40. Q. All right. And usually the

Jj! tt..·

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G. Davidson - 15

··1 II H I! 1 process involving the commission for Ontario, for

1l 2 example, would be begin sometime in 2022? I,i 3 A. Correct.

fl[i 4 41. Q. All right. And then within a 11 5· year or two thereafter, the boundaries will be established? Yes. '~ 7 A. ll 8 42. Q. Okay. A. And then Ontario has to determine ~ 9 10 whether or not it will accept the fed boundaries,

', 1111ij because they are for federal elections, whether they will accept those for provincial elections. And that may take some time.

! fj14 43. Q. Right. But that simply i ij 15 determines the boundaries for the MPPs or MLAs, I [!16 IC; Members of the Legislative Assembly, right?

!f!l 7 A. Yes. rf~s 44. Q. Okay. So, the process we have described for the feds would very likely be 11~ 9 ! •.i 20 completed well prior, at least a year or two

Ij I'l21 prior, to the 2026 municipal election? ' u 22 A. That is possible, but not I "jl ' 11 ! 12 3 necessarily likely. And that is because, of course, the wards have to be established by the 4 11r,'. .. fl 25 end of 2025. And so, you are looking at them

.'.I .·jI

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··, ll II G. Davidson - 18 " ll 1 59. Q. If you just turn to 2531?

-~ 2 A. 2531? Yes.

3 60. Q. Right. So, that gives us an

indication of when the federal commission was

5 doing its work, right? ···~ 6 A. Right. ] 7 61. Q. And so that gets us ... if this 8 same speed were adopted or transpired in the

~ 9 2020s, it would be sometime in 2013 that we would I 10 expect to have the commission's report done? ii li11 A. I think you have misspoken. Not

2013.

62. Q. Sorry, 2023. Sorry, I am getting

ij14 my decades mixed up; 2023. J 15 A. Okay, I wish you could take a i ~16 decade off me. Yes. , al 7 63, Q. It wouldn't be unreasonable to ... l ij . 18 A. It would not be unreasonable. i 1'119 64. Q. All right. And it wouldn't be l :l 20 unreasonable to expect the federal government to I I! I adopt the boundaries federally at some point in ! !~1

I i,22 2013, or 2014? , I: I 23 MS. RANGANATHAN: 2024. 11~4 L~ 25 BY MR. BASU:

,I .. ~\]

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G. Davidson - 23

1 86. Q. That is why you rejected them;

2 because ... -~

3 A. No, we also rejected it because

4 it doesn't give you parity in 2022 or 2018.

5 87. Q. Well, I am talking about 2026

6 right now, all right? A. Okay. :i 7 8 88. Q. For 2026, there will be, let's

J ij 9 call it, a refresh of the population data ... l ~ 10 A. M'hm. :f~1 89. Q. ... establishing the feds. And 1n1.2 that will occur between 2011, using 2011 I ~ 13 statistics ... A. 2021? li 11.14j ) .i 15 90. Q. . .. 2021, sorry. The refresh will

; r.·. i H ! 1~6 then be implemented in 2023/2024, right? , ,1 7 A. M'hm. ri I· 18 91. Q. Okay. j19 A. Hopefully. I have this caveat !l 20 about when will the feds ... when the federal I t21 government will actually put them in place. And , ,22 the date they put them in place becomes very lb3 important for the municipality. So, I think we have already 4 92. Q. -llr.. J 25 established that 2024 is most likely, if there is I 'I I I Iti

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·.···~

G. Davidson - 26

···~ 1 right now.

2 A. I appreciate that.

3 101. Q. Which legislation are you

4 referring to?

5 A. I guess I am referring to Bill 5.

6 102. Q. Yes, you are referring to Bill 5. So, we are not talking about Bill 5. We are 'i 7 j i 8 talking about, when you ... I am trying to get a handle on the selection of 2026 as a target year. A. M'hm. 103. Q. And an opinion formed that the :t2 fed's will not achieve parity for the 2026 j Jl3 election, voter parity, right? 1114 A. Okay. 15 104. Q. I haven't asked a question yet.

I ~16 I am just trying to situate it. . 17 A. Okay . i I 118 105. Q. When you offer the opinion that 11119 the fed's will not achieve voter parity for the ! J 20 2026 municipal election, that is based on the l~1 2012 fed's, right? A. The existing ones, yes.

106. Q. Yes. It is not based on one that

4 may come into existence in or around 2023, 2024 '.JI lr 25 or maybe in early 2025?

111 .) .. :l

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····~

G. Davidson - 41

1 the information that was supplied to you by the

; ~ 2 City? 3 A. No.

4 173. Q. Right, okay. In your public consultation process, you ... the TWBR did not do public opinion polling, correct? A. No. l H,.: 7 : ~ 8 174. Q. Rather you relied on a ... on

I ij 9 public meetings? 10 A. Public meetings, yes. ll1I .• 175. Q. An online survey?

1pl2 A. An online survey, yes. I ~ 't3 176. Q. You observed what people may have i ~14 sent you by email, or on Twitter? I U 15 A. Yes. ·~6 1., 177. Q . You had a website, right? Okay.

: ;~ 7 And you also met with stakeholder groups? H· 18 A. Yes. t ~L 9 178. Q. Okay. And the stakeholder groups ! ti included the boards of education? A. BIA.

22 179. Q. And the business improvement 1 Ii lt3 associations, and then the resident's Jr4 associations? 25 A. No. We didn't meet with any IJI Ji

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A. Yes. 184. Q. Okay. And they would ... if they were retained to do a survey of the City of Toronto, would ensure that the population that they were polling was distributed across the Ii24 city? --· ~ 25 A. They would do that, I would

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G. Davidson - 43

1 assume. We did that, also.

2 185. Q. You did that in connection with

3 your meetings?

4 A. Yes.

5 186. Q. Right. q •l 6 A. We held meetings in all of the

community council areas. ! 'i 7 . ~ ',; 8 187. Q. Yes.

! /1 : 11 9 A. So, we held three meetings in ! ti 10 each community council area.

, l1I! 188. Q. Yes. I 112 A. Twice. Then ... and the next one, ' '13 round, for a supplemental report, we held one in f4 each community council. So, we distributed our :; 15 meetings around the city. I '! 189. Q. Yes, fair enough. In terms of :! li16J

7 the numbers of people attending your meetings, 'i_il J. il8 your public meetings, at most a few dozen, .and in

I fL 9 It, most cases smaller than a few dozen people, l tt 20 attended, correct?

A. Yes, the ... yes, that is correct. .i !~1I 22 Our report tells you how many people attended iI 11; !_23 each meeting. 1e4 190. Q. Yes. And when I say the people d'···-' 25 attending are self-selecting, or people

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G. Davidson - 50

,- ~ .I 1 223. Q . In 2015? ' f 2 A. That's correct. 3 224. Q. Okay. All right, I understand.

4 If you could just turn to the project work plan,

5 which is ... I want you to pull out volume 3 of the 'l tt 6 Appeal Record, page 1481. Yes, they will get it

', -,,1 7 for you.

.' Jj 8 A. Okay.

: ij 9 225. Q. So, on page 1481, which is over 10 there? , ~11 A. Yes. 226. Q. You have a middle paragraph that ""·,' ·1112 i I J 13 says,

I '1:114 " ... The TWBR has been designed to I I 15 respect the arm's length principle ... " 11116 A. Yes. 227. Q. Okay. And then it goes onto explain the issue of it being important that ward

I ~19 boundary reviews should be arm's length to Id 20 councils, right? A. Right. l' J~21 228. Q. And that is because councillors have self-interest that may skew their opinions on the appropriate ward boundaries, right? Jf 4 25 A. That's correct. IJ

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G. Davidson - 53

.. ~ Ii 1 240. Q. Why, then, did you have council

2 in round two public ... round two ... why did you ask . ~ 3 them to rank the five options? ···~ 4 A. Just to see which ones they

5 thought would work best for the City. ~~ 6 241. Q. But that is without offering an explanation as to what particulars mattered. A. No, it was strictly a ranking.

ij 9 242. Q. Right. So, that suggests that 10 this is a process that simply says, what is your i 1!11 preference? 'ri A. Essentially, yes. You are correct. I [i14 243. Q. And that was ... that ranking did i u 15 factor into the ultimate recommendations? I 1 11~6 A. We used the ranking of both the public and the councillors and what we found is 1-'r 7 dis that in certain instances, they were similar. i ·119 And in ... and in fact, they were quite similar I 1 I. Ii 20 across all five options. So, there was sort of I '1 i~l an agreement between the public and the If 22 councillors. So, that was an important piece of I I lt3 information.

I 244. Q. And did members of council staff, I ,:~4 1.. fi 25 were they aware of when the public consultations

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I G. Davidson - 56

-11 1 252. Q. Okay. Have you made

2 representations to a federal commission? ril 3 A. No. -ll 4 253. Q. Have you studied their work? 5 A. Yes. l II 6 254. Q. Okay. Did you study this report,

7 this 2012 report, for purposes of the TWBR?

8 A. Studied? I read it.

' ~ 9 255. Q. You just read the report? ',j 10 A. Yes. !li1 256. Q. Okay. I would like you to look q12 at ... under the heading "Don Valley West and

I "13 University - Rosedale".

! 1114 A. Rosedale? Yes.

'i ll!l 15 257. Q. Right. So, this is, I gather ... I n i 1116 and I am just setting this up, and you correct me ' J if I am wrong. This is sort of the phase of the report, or the phase of the commission's work,

! li19 where it is considering the representations of / 1l 20 Members of Parliament? MR. CHU: Why don't you just take a moment to ... 258. MR. BASU: Yes .

[;24 MR. CHU: . . . take a look at what is .Ii 25 on that page.

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G. Davidson - 59

" ... However, the Commission is not

2 persuaded that Governor's Bridge

~ 3 neighbourhood has a significant

····~ 4 community of interest with the electoral

5 district ... "

·~ 6 So, you see that analysis there, right? i] 7 A. M'hm.

~ 8 263. Q. You will have to say yes or no. A. Oh, yes. Thank you. ! ~ 9 10 264. Q. So, this reflects the consideration of a community of interest? :h1: f, ..,12 A. In ... !. Jt j il13 265. Q. In the fed's process?

I '114 A. And in this specific ...

1 IJ 15 266. Q. In this particular context? A. Right, yes. In this specific

... 17 riding . 1 ]-i.1{1.8 267. Q. But that ... so, the whole exercise

I t:19 is designed to look at communities of inte:r.:est, j Ll 20 and this is part of that exercise, correct?

I I':/1 A. That is one of them, yes. :f 22 268. Q. Yes, okay. There are others in i ~ 'I 4~3 the volume, but I am just wanting to focus on this one. 4 irL.J 25 A. Yes.

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u II G. Davidson - 60

1 269. Q. And this is treatment of

2 objections is something that you are familiar

3 with from reading the commission's report?

0 ~ 4 A. And from our own work on the t~ 5 Toronto Ward Boundary Review. l•I 6 270. Q. All right. And so, the same

7 kinds of objections could be raised in the TWBR

1li 8 process, right?

9 A. Some of them are objections and

10 some of them are suggestions, yes.

~11 271. Q. Okay, fair enough. So, you will

i n12 agree with me that the concern in this case was I! ' "13 that the ... certain residents felt a greater

connection with a different ... with an area across

the proposed boundary, right?

A. Yes.

272. Q. Okay. And that was for shopping,

entertainment, sports, parks, schools and other i.1,h9' . public services. And so, that was what they were ; l 20 relying on, right? ib1'll A. Yes. 22 273. Q. Okay.

I ~23 A. That is what this says. !J24 274. Q. That is what that says. Now, 25 that ... and the commission accepts this? u

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-i G. Davidson - 61 ··-n fl,, 1 A. Accepted that one. 2 275. Q. Right. There is nothing

~\j 3 particularly federal, as opposed to provincial or ~ 4 municipal, in being concerned about shopping, 5 entertainment, sports, parks, schools and other <-ij 6 public services, you will agree with me?

7 A. I don't quite understand the 1! ~ 8 question. :i 9 276. Q. Okay. 10 A. There is nothing specifically

:h1 federal, it is just what ... 277. Q. Federal. i ' ~12' j ,!13 A. It's what these people that

!~4 raised this thing, felt. ! D 15 278. Q. Right. I n A. No, it wasn't the people. It was 1l[l16 ; _J_7 the Member of Parliament. I,,!i i-\s 279. Q. And this was not ... but this was

! 119 not a ... ' .I .s 20 A. Or the Member of Provincial

)~1 Parliament, yes. 280. Q. It's federal parliament. I r.2 J !23 A. Federal parliament.

281. Q. Yes. But you will agree with me If 4 ·-"25 I that there is no appeal by the objector or by the u I

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G. Davidson - 62

l,j 1 commission in the analysis, to anything relating

... 1-l 2 to federal as opposed to provincial or municipal

I 3 jurisdiction? r: 4 A. They don't talk about Ii 5 jurisdiction at all. ··~ 6 282. Q. Right. They don't talk about

what it is that the federal government does :1 7 l) 8 versus what it is the province does, versus what

it is the municipality does? : ~ 9 . •.! 10 A. Not this person, no. 'tl : !ill 283. Q. Not this analysis?

:,, 112 A. Well, it starts from this Mr. I !l13 Carmichael making this. i f14 284. Q. Right, right. And the commission I l 15 accepts that rationale, correct?

~16 It changed the boundary, yes. It I' I: A. . ,17 says here, the commission ... 1_11 ! .118 285. Q. It, Iii: 'i19 " ... Finds Mr. Carmichael's objection ... " I U 20 A. No, supports this objection. i (i ! ~1 286. Q. And it also said it finds the ,l. .j 22 objection, "persuasive"? 111 ' lj ! !23 A. M'hm.

I f24 287. Q. Okay. So, that suggests that it i II ~ .. .fj 25 accepts the rationale ...

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1.I G. Davidson - 64

11 295. Q. 2554, of the same document. So, if you just move backwards in the document. So, 1 2 3 the bottom of the page?

4 A. Okay, I have got 2554.

5 2 96. Q. Okay. So, let's go to the last ,-~ 6 paragraph on that page?

7 A. In drafting his proposal?

8 297. Q. Yes.

A. Okay. ;'.1'1 J 9 10 298. Q. So,

:lh 1 " ... In drafting its proposal, the ,12 Commission found that the population of

~13 the electoral district of Trinity -

Spadina was high, while that of the [ ['.a-. 4 I J 15 neighbouring electoral district of St.

Paul's was low . ~6. j In an attempt to balance

population, the Commission proposed to l l:L 9 assign the areas lying north of Bloor l ~ 20 Street, known as Seaton Village and The ' ii 1121 Annex, to the electoral district of St. i. I 22 Paul's. This also met with strenuous ' I

li3"" objections ... " Do you see that? 4 "··11 M 25 A. M'hm.

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G. Davidson - 65

299. Q, Yes?

MR. CHU: You have to say yes or no. i~ 2 3 THE DEPONENT: Yes. ]i 4 5 BY MR. BASU: r16 300. Q. Okay. So, then, the next ... up at the top of the next page, it says ... it now

explains the objections,

" ... Residents of Seaton Village and The 1,·I ' 9 ' - Annex argued that their community of

interest is with the University of r __LL2 Toronto. The Commission received I 1- : "t i "13 submissions that the university and its lf 4 surrounding community should be included LLS in one electoral district It16 As a consequence of the

! jl 7 significant opposition to the proposed I J q18 boundary changes, the proposed new 1119 electoral district of Mount Pleasant was ~ Cl 20 no longer viable. In response to the i I. I t21 submissions of the public hearings, the Commission has instead created a new

electoral district named University - j.J4 Rosedale ... " 25 Do you see that? u

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1 G. Davidson - 66 l 1 A. M'hm. 301. Q. Okay. So, the public opposed the : ~ 2 3 proposed boundary? 'll 4 u A. Yes. ' ti 5 302. Q. And the commission essentially

6 accepted the public ... responded to the public

objection by creating a new electoral district

called University - Rosedale. Do you see that?

MR. CHU: Based on the two passages

10 you have just read out.

',J'1111 \1/2 BY MR. BASU: ! l ' '13 303. Q. Yes. And if you find anything l ~14 that is inconsistent with what I am proposing to 15 you, when you have an opportunity to read this ...

A. Well, there was also the issue h6•) that they were dealing with, which was the Lill 7 I , · '18 differentials in population size.

! fl19 304. Q. Yes, of course. Of course. And 20 just ... if you go back to ... well, they were ... they l Li I t21 are trying to balance the population. So, let's ,f2 go back to the previous paragraph, to the one I.: i 12 3 that we started with, I 124 " ... In another attempt to balance !J 25 population, the Commission proposed to

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l G. Davidson - 67

l 1 assign part of the electoral district of 2 Davenport to the electoral district of t 3 St. Paul's, there were serious l 4 objections to that proposal in terms of 5 its negative impact on communities of l; l 6 interest ... " 7 Right? So, that's a population concern, right?

8 A. M'hm.

;, 9 305. Q. Then there is an objection? Yes?

10 That was a yes? • I dll A. There was ...

i ~12 306. Q. Then there was an objection by I 1113 Seaton Village?

j 1!14 A . That is what it says. . li I Ii 15 307. Q. Right. And then the Seaton

I ~16 Village and The Annex folks were objecting 17 because they said, "We really belong to the His university, that is our community of interest", I f~9 correct? d 20 A. M'hm. Correct. J~1 308. Q. All right. And then the 22 commission essentially changed course as a ]~3 result, right? lJ4 A. It appears so, yes. 25 309. Q. Yes, okay. There is nothing IJ

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11 specifically federal about the objection of the Seaton Village and The Annex people? It is about 'ij 2 3 their identity with the University of Toronto,

4 right? 11; B A. It's about what they perceive their community of interest to be.

310 . Q. Right. And their community of . II 7 ; u 8 interest isn't analysed based on federal purposes l ~ 9 versus provincial purposes versus municipal l i 10 purposes? : i d:1.1 A. They were just ... my reading of that is that they were just concerned that the lines split their community of interest. They I !h_4 didn't analyse it, that is as far as it went. i I 15 311. Q. And the commission didn't respond i ~ ltt1.6 by saying, "Well, that is not our concern because we are only doing the federal boundary review." The commission doesn't say that?

I tJ. 9 A. They are doing boundary reviews. 1 il 20 312. Q. So, they are not doing a federal I r~1 boundary l j review? 122 A. Oh, yes, they are. 1l3 313. Q. Well, they are doing a federal l.J4 boundary review but that is not ... that doesn't 25 drive their treatment of communities of interest? u

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M. Valverde - 14

1 having religious minorities be accommodated. And,

[l 2 so, that is ... that goes beyond just paying attention I 3 to these ... one people on the street.

Q. 14 52. So, it is fair to say, however, that not every councillor in every ward is going to have --i 5 ,, 6 that level of concern for this particular kind of group, correct?

8 A. Exactly. 53. Q. Okay. So, there is an issue of ... I d9 am going to call it horizontal equity across the city as a whole, because if groups in the city who are seeking such accommodations hav~ to depend on

13 their councillor in order to achieve that kind of accommodation. A. Right. MS. DIMMER: I wasn't sure of the 1-r question. 18 THE DEPONENT: Is that ...

I • 1119 MS. DIMMER: Yes. 54. MR. BASU: That is a statement to which I would look for your assent. THE DEPONENT: Yes. Okay, so just to make sure I know what I am agreeing to, you are saying it is somewhat haphazard as to

25 whose needs get met where, is that ... JJ

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11 A. No.

···~ 2 115. Q. No?

. ,! 3 A. Because something like the Building Code, by definition, has to be consistent, and you don't want some neighbourhood having a different Building Code than a different neighbourhood.

7 116. Q. I am talking about standards. So, I

8 agree, the Building Code ... you want the Building Code to be consistent, but if there are Building Code issues ... in other words, if somebody isn't erecting their wall or dealing with their party wall l ib.2 in an appropriate way, which can give rise to a i !l i 1l 13 dispute in the neighbourhood, correct? That can l4 happen? That is ... l 11

15 A. Of course. ll6 117. Q. Right. Or you described the rr situation of the fire inspectors and the City 18 inspectors in your book attending a premises and q Hl9 looking at all kinds of Building Code and Fire Code

20 issues, correct? IL A. M' hmm. 118. Q. Right, okay. So, some of those 2 I rJ 23 are ... those tools of establishing standards and

I. t~4 ensuring enforcement, that is a typical regulatory 25 response that is independent of councillor IJ

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l 1 involvement in design. They are not dependent on councillor involvement in their ... at least in their

3 design, correct? :-~ 4 A. Yes, they are certainly not.

'.·u s 119. Q. Okay. .11 6 A. Most of them are provincial anyway. Infrastructure standards are provincial for a good ij 7

8 reason. !·19 120. Q. Right. The Human Rights Code is a provincial standard, correct? A. Exactly. 121. Q. And which provides for accommodation

13 in the example of two members of a religious 1114 minority in a particular community, it may not be / ll

15 reasonable accommodation. We have a board that is iL provincially appointed that determines whether, in a rr particular case, the accommodation was reasonable or 18 not, or required or not, correct? A. Sure, but this is ...

20 122. Q. Okay. IL A. ... straying far from my affidavit and expertise, I fear. iI 1;22: I. Ji 23 123. Q. Well, you raised the question of the Human Rights Code in your answer to an earlier I~4 u25 question, and you said councillors don't have

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,···1·;.·' ' . i ; : 1 empirically, but it doesn't have to in an institutional design?

3 A. Again, if I were designing the perfect Ontario, you know, municipal system, I would

5 certainly have a lesser role for councillor

6 micromanagement of things like how many seats on a

~ 7 patio are restaurants allowed to have, but ... : u 256. Q. And ...

9 A. . .. I have to be ... as I said, you know, municipal government, like any other complex ! ri1° ! ~1 system, is a package. i 1't2 257. Q. We have heard that before, yes, that \ l ! l 13 is fine ...

i ·1: !1 '.1l4 A. Yes. !

15 258. Q. ... but, sorry, just on the ... IL A. So, that is very important. So, q,l7 with the syst~m we have, you can't just send a staff I II I I 18 person to everything or a councillor assistant to everything. In the system we have, residents do expect to see their councillor reasonably frequently. And I agree with you that, well, it is not necessary, and it is certainly not necessarily the most rational system, but it is the system we have.

25 259. Q. Okay. And there are plusses and IJ n l="Rr,11::;T II, vnl INr;! TCWE:R. 222 BAV 9TRE'.E:T. SUITE: 9[]0. TORONTO. ONTARIO, M5K 1 HIS -291- -292- Page 1859 VICTORY VERBATIM

M. Valverde - 71

now, the key ... you know, the be-all and end-all for municipal civic purposes is your municipal address,

3 right? Every 0MB hearing, what is your address, and what is the address of the site. Services to

5 property are how ... the reason why municipalities

6 were set up in 1849. And everything revolves around that. And, so, the City provides water and sewage ; fl 7

8 and, you know, electricity, whatever ...

9 274. Q. The City doesn't provide

10 electricity. : "['i ; ~11 A. Well, it has the responsibility to make sure it is provided, and Toronto Hydro is

Il !r2j 13 Toronto Hydro. But ...

1 ~14 275. Q. But energy is generated ... I !I

15 A. Well ... and it can be .. . ·-I f, I ' 1 f t6 276. Q. ... by the Province .. . A. . .. privatized, all kinds of I I '!l.I 'J 7 j '._l 18 things ... l ~ i f:~9 277. Q. ... and distributed by the Province, '._l

20 right? I 1 ihI I' A. But ...

I f2 278. Q. Do you agree with that? I ~'I ' A 23 A. Well, but the point is that 1 t municipalities were set up to provide services to i ·1':_-4 ! l 25 property. And, so, that is very different than the I ,, I \! JJ

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·~ 1 Criminal Code, which regulates persons in their Acts, right? So, services to property is the origin t 2

3 of municipal government in Canada.

279. Q. And services to people, individuals, is not? A. Well, of course it is part of it but, you know, for many years, we had ratepayers,

8 not residents, right? And the municipal property tax is the be-all and end-all of, you know,

10 municipal politics even today. I am not saying this I ' i ij : Rn is a good thing. I am saying this is how

fil.2 municipalities were set up back in 1849. I- I! 1tl 13 280. Q. So, but ... A. So, they are a different beast. II.! ~4

15 281. Q, So, I am just trying to recap, but ! : I I'I i J6 you went into a historical inquiry or a historical

1.-"jP answer, which is services to property, fine. But we ' l I cl 18 know that cities provide services to people today, right? A. Well, of course.

282. Q. Okay. And my question, the question that started this is ... we agree that the distinction was in how things are done. That is important. And q4 then you said "Plus, what things are done, what J. n 25 powers are given, what are their responsibilities". IJ

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1 Forget about powers from a legal sense, but what is

. ·11i2 it that they are supposed to be doing, right? !

3 A. M'hmm.

4 283. Q. And I said, "Okay, well, what is the

distinguishing feature that says it has got to be

done differently, the way cities do it? Is it

because it is service provision?" And then you

8 started talking, "Well, cities were set up to

9 provide services to property". But we know that is

, !lo not what they do anymore. They do provide services ' ' • ·1:1.1 to property, but they also provide services to

! [~2 individuals, to human beings, and to animals, too, I e 13 and trees and the world. So, I don't think you have

answered my question about whether it is the service

15 provision aspect that drives your conclusions about t how cities have to do things differently from the provincial or federal level of government. ,·1":]_.I ; 7 i j 18 A. I mean, all I can say is that cities i r I l'tg do have different responsibilities, and they have ;I !JIi

20 responsibilities that are much more micro-local. lt Everybody will agree with that. You know, what ... I !}2 284. Q. Whether where a hospital is? ..I .II 23 A. No, that is very different. The dog

4 park across the street from my house is governed l' 1~I 25 differently than decisions about where a hospital

Ii.....•.1 iri1 11 i=-i:iNJ:lT 11, vnl INr:I TMWl='R. !:>.!:>.!:>. FIAV STREET. SUITE QC][]. TCJRCJNTO. ONTARIO. MSK 1 He -297- -298- Page 1864 ] VICTORY VERBATIM l J! M. Valverde - 76 -i ~ 1_; 1 facilities for mental health services, for example,

··~ 2 including outpatient-type services, or homes or

3 facilities, drop-in-type facilities determined by ; il il ·-i 4 the Province, raises local issues of the same !i '.-, 5 dimension, I think, I am asking you whether you

; ~ 6 agree or not, as a lot of the things that cities do u7 in your ... the way you have just explained it. ti,j 8 A. Well, sure. ; I 9 293. Q. Okay. ;'j _! 10 A. The Province, you know, has all { ' Ii l lb these properties and these facilities, and

I I [;12 local ... you know, they have to be somewhere l fi : !j 13 specific. They can't be in the midde of Lake Ontario. And they do create all kinds of issues. t& I ii 15 In the area where I live, there was a long fight j !' t about the Commissioners Street. 294. Q. Yes? 1l7I ! i j 18 A. And then about the provincial power

I fi ! station. I t9 20 295. Q. Yes? I [1 A. And we recently had the Hearn Station ... j l r~3 296. Q. Yes.

I I A. . .. in our local, so ... j 14 25 I 297. Q. So, all those throw up the same I IJ

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1I 1 kinds of issues that are subject to the concerns

2 and ... the concerns that you have identified as being

3 very specifically City-related, right? A. Sure. I mean~ just like the Salvation Army or the Catholic Church have a whole bunch of properties around the City that generate

7 all these concerns. And they are not the City, 'but

8 they are property owners, and they have facilities that ...

. ,10 298 . Q. And provincial roads also generate iI I"; . iL these concerns, the roads that are still owned and

] ~2 operated and are the responsibility of the Province, l tl ! u 13 even if they cut through cities, right? Even if they cut through Toronto. Like Highway 401, for example. A. I suppose. I can't speak to that, t--fi.1 really. l ~ 1 '1 !_J 18 299. Q. And the Province itself has a whole host of licensing tribunals and licensing appeal

20 tribunals, correct, dealing with a lot of IL micro-issues? A. Not licensing so much, I don't lff2J 23 think. That is something I have actually studied I 'I quite a bit, except liquor licensing. I .~~4

25 300. Q. Liquor licensing, that is a IJ

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M. Valverde - 78 l ti 1 provincial responsibility, right? A. Right.

3 301. Q. The delivery of primary and secondary education is a provincial resonsibility?

--- 5 A. M'hmm, yes.

~ 6 302. Q. Yes. And we have talked about the

----~ 7 Province creating a delegated authority in school

ij 8 boards to deal with a lot of the day-to-day, right? ,·1·' ' ' 9 A, I suppose. : ,i

__ 10 303. Q. And where your kids go to school is 1 , ; ~11 a deeply local issue, correct?

, n_12 A. I don 1 t know. I don't think I am \ ~ i ~ 13 the right person to speak to that. I have had kids ii} 'f, in school. I ~14

15 304. Q, So, the placement of schools, the

Ii •~' I J I -16 closure of schools, these are not issues of concern in an urban environment in the same way that the use 1·'111iii 18 of a park is? And of concern to individual i H 1119 residents about the individual service delivery?

20 A. Well, they are, but everybody knows l ~21 schools are provincially controlled, so ... 305. Q. We talked about energy. I just want to finish up this area and then we will take a break. Sorry for being a bit long. Energy, a

25 hugely controversial issue, of course, but IJ

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M. Valverde - 82

A. Well. .. 318. Q. It was a sea change.

3 A. Well, it started to matter at another level.

···,1 5 319. Q. But ... 11 ij 6 A. When my kids' teachers were all demonstrating at Queen's Park, they went to Queen's

8 Park for a reason, they didn't go to City Hall.

(1 9 Absolutely, but the point being that I 320. Q. the ... this was ... this change in provincial policy was felt at a very local level, at a grassroots

: 1:12 level, right? i !) 13 A. Yes ... 321. Q. Okay.

15 A. . .. and we had no recourse. I ~ [ r:16 322. Q. Social assistance, ODSP, Ontario Works, all of those have impact at the local level.

18 They affect people on the ground at the grassroots, right?

20 A. Right. lt 323. Q. Okay. Programs for children with special needs, like the autism program. Again, very \I ~22I

.f '23 deeply local impact, right? A. Yes, and ...

25 324. Q. Okay.

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M. Valverde - 100

empirical work that ... A. Yes.

·3 399. Q. . .. goes into this, and it is ... A. I just didn't ... in law reviews, you have to footnote what year the French Revolution was 15 .. 6 or something, but here, there is a lot of things without footnotes that are research-based. Ii 1 H 8 400. Q. Yes, no, absolutely, and that

; -1· ' ' 9 is ... it is obviously a significant contribution to . '

, ,10 the literature because of that, because of its :L empirical basis. Okay, and then moving forward at the top of 81 ... we have the paragraph that says: l ~12 I il 13 " ... There is nothing wrong with defending l i i li14 one's constituents; however, when the ' ! political-administrative structure is such i I 1r' I J16 that councillors are pushed into playing local champion role as a full-time job, and

18 City staff are prevented from explaining I ll their side of the story to the public, i; r·! 9 ' g 20 other important functions and tasks that It are not easily slotted into the David versus Goliath narrative will be neglected

--,r.I 23 to the detriment of the local civic 1}4 fabric ... " u25 So, that is a normative claim based on your

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M. Valverde - 101

empirical work, that this is ... stuff gets ... there is

2 kind of a diversion of larger political issues, big

3 picture issues, and things tend to focus on small issues that can be turned into this David versus

,--;,,-, 5 Goliath struggle where the councillor takes on this

' I t J 6 village elder or local hero, local champion role. i ~ 7 Is that a fair reading of ... i 1J 8 A. Yes. n9 401. Q. ... what you mean to say? 10 A. Although at the same time, you lL have ... I think the example at the beginning was

\ i]:12 Councillor Mark Grimes going on about the old people 11! 13 in his ... 402. Q. In the park. A. . .. park, and ... 403. Q. Yes. A. . .. he is doing that. And in the

18 meantime, the Parks Department was, you know, doing a good job trying to explain that, no, you don't

20 need to pay to walk in the park, and that was never It a policy, and it is only when there is commercial uses of parks that, you know, people are supposed to I, ~:2 I I I 23 pay. So ... 404. Q. Yes, the circumstances were, just in u25 a nutshell, just for the record, so that somebody

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l 1 leasing scandal corruption". And many people were disappointed that he didn't really put in serious

3 environmental policies, or serious affordable housing policies, even though he was in the NDP and everybody knew he was NDP. ' ~ 5 I, 6 And, so, I very much wanted to highlight how this myth that, "Oh, things just happen at the micro-local level", and, you know, the Jane Jacobs \,. . ' idea that if you just have people talking to each ; l 9

10 other on their front stoop, everything will go away. ; H ; 'l :L I wanted to say, "Look, this is really problematic". 418. Q. Yes. A lot gets lost, a lot of the

13 business of governing gets lost or set aside, or takes second place to the process that you describe,

15 which is ... ! ~ [ \lt6 A. Right. 419. Q. . .. not the best ... A. Exactly.

I it ', 1·.·19 420. Q. ... use of resources? i l 20 A. And anybody who follows Toronto IL politics would know transit planning has been a huge problem. And it is in part because there has been I I 1~2I l ,I 23 too many councillors agitating for their particular interests, or their perceived interests of their

25 constituents, which is often not their actual I.I111

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I M. Valverde - 106 -, 1 interest.

11 2 So, I was very much wanting to emphasize I I I 3 the dysfunctional part. Now, if I had had any !l : ~ 4 premonition whatsoever that we would have got Bill 5 '] 5 later, I would have written this quite differently. 6 421. Q. Well, we have your affidavit, which -1 li 7 is very different than this. And your affidavit ... !i 8 A. Exactly.

:-1' I 9 422. Q. ... talks about the plusses of the : ~

_10 closeness relationship. But the negatives of the ' f h i '11 closeness relationship between councillor and

1 constituents are still real, right? You are not ... I ~12 i ~ 13 you have already ...

1 l,h_4 A. Sure. ! ." 15 423. Q. ... you still believe that these are It I ~16 sound ... I mean, it may be that you have ... A. Yes. 7 rt! .J 18 424. Q. ... given too many negative examples

! ~ i I fii9 relative to positive examples, but the conclusions ! y

20 you reach here, and the policy problems and the I ! L dysfunction you identify is still real, and it is still sound analysis in your view, right? ! r23 A. It is that sound analysis, and it contributes to showing that if this is the system we !J4

25 are going to have, councillors knowing their ward is I__ .J!

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M. Valverde - 107

1 very important. 425. Q. But you are not ...

3 A. I mean, I wish we didn't have this system. Q. Right, so this ... ' D5 426. . 11 µ, "6 A. It is clear from this chapter ...

7 427. Q. That is right, so ...

8 A. ... that I wish we could be in Plato's Republic, and start from scratch, but that is not given to us. j !10 ! i i i 11 428. Q. Fair enough. So, if we move to .the top of 83, or the middle of 83, the paragraph that

13 starts, "For the most part". A. M'hmm. 429. Q. " ... For the most part, then, the role assigned beforehand to the local champion in the civic game ... " 7 l~l.-l j I l 18 Which would be the councillor in these examples, q If right? 20 A. M'hmm.

!I ~I I _a 430. Q. Yes? You said "M'hmm". I know it

lS,,,'

A. Sorry.

431. Q. . .. tempting to say "M'hmm". A. Yes. u25

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M. Valverde - 108 :-i lj 1 432. Q. Yes:

2 "· .. is not to be the leaders of the City as

3 a whole, and not to become knowledgeable about longer-range p~oblems, but rather to act defensively and reactively to defend their village against perceived, immediate threats or, even worse, to defend those villagers who make their voices heard, and

: 9 ri; are therefore by definition not

10 representative ... " I '!'I ! 11 Right?

\ ~-2 A. Yes. iii 13 433. Q. And this is not a good thing from an overall perspective of good public policy, right?

15 A. Well, as I said, you can't just pick lt out one thing like this relationship, that I don't tp think is very healthy between City staff generally,

11 I'I 18 and most councillors. Some councillors have great respect for City staff. Many of them don't. This relationship is the negative side ...

434. Q. Yes. A. . .. of the ward councillor system, which is what a social scientist would want to write about, because I was writing against the general

25 perception that Toronto has this, you know, the kind IJ

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M. Valverde - 109 :·,,,: : ! ,i 1 of ... "We are so multicultural, and we all just get

2 along, and everything is so wonderful, and we settle

3 things without conflicts". So, I was saying, "Well,

4 there is a problem with this sort of general

.. 5 perception''. So, when you publish a book, usually ' ~ : 1i. 6 it is against the prevalent ideology. That is why

7 you bother to write a book.

8 435. Q. Yes.

9 A. Because you are emphasizing the

10 stuff people don't know. l ~ i lh.1 436. Q. Yes, I understand, I understand. We

I \:12 will take as a given for purposes of this i 1 i J 13 cross-examination that there are plusses to a system lI 11i4 like this. And it is ... as you are saying, it is the I ~

15 system we have. But when I say it is a negative, i ' I'·ri I I .16 you are presenting it as a negative from a public policy ... 7 lf',! l !. i 18 A. Of course. i r, 437. Q. ... perspective. You are presenting l ~19

20 it as an issue that, as we have already talked IL about, those who make their voices heard are the ones who are heard, and we are not talking about I w2 i ri ' 23 City staff here. They are out of the picture on that part. It is the relationship between

25 councillor and constituents that is driving this

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M. Valverde - 110

1 problem, right? A. M'hmm. ~ 2

3 438. Q. Yes? A. Yes.

5 439. Q. Okay. So, then, one of your further

6 conclusions is on page 85, or one of your observations, with the sentence that begins:

8 " ... Now one might think that the

9 accumulation of one-off compromises ... " Do you see where that is? A. Yes, I went the wrong way. Yes, okay. I ~112 I,' I 13 440. Q. Right: l TI ! lh_4 " ... Now one might think that the I ~ 15 accumulation ·Of one-off compromises, i 11 116 exceptions to the bylaws, agreements about 1-r a park or restaurant patio and so forth I:! 18 would create such a regulatory anarchy that the dancers would start to move in the

20 other direction, and people would develop a It desire for rules of general application that are enforced evenly and fairly. I rr 2 1 Ii ·b However, the push in the direction of rationalization and standardization

25 seems to be rather weak, not only in bylaw JJ

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M. Valverde - 111

1 enforcement but even in the sphere most closely associated with overall rational

3 bureaucratic modern plans, the planning department itself. Today, planners describe themselves as unable to actually r' "r· l 5 l j 6 plan and as crushed under the weight of one-off arrangements, and more or less arbitrary exceptions to the rules. In planning circles, the current trend is known as 'let's make a deal' planning ... " And that is still true today, right?

I V.2 A. Yes, I just saw there is going to be ! 11 il ,)' 13 60 and 70-storey condos at the Old Mill CBO site on Queens Quay. That certainly is "let's make a deal" planning. 441. Q. And another consequence you identify

11;-~;1 at the bottom of page 87, if you just move ahead ... I j ' " 18 and this is an example, but it is an example ... it is based on an example, but there are numerous examples

20 of this but this is the question of strip club It licensing, and the example is described above, but Ir "the councillor and his very able executive 23 assistant acted as champions of the locals". So, do you see that at the bottom of the page on the

25 right-hand side? Bottom of 87? JJ

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; ij 1 A. Yes. 442. Q. " ... acted as champion of the locals ~ 2

3 in their fight against 'the City' in

; ~ .. ii 4 general, the big, bad bureaucratic city ... " ; fl

5 But this is the point ... you make the observation:

6 " ... And in taking on the champion role, they had no qualms in diverting numerous inspectors away from other work so that they could say they had thrown the book at

II 10 the strip club owner ... r: 1,11 So, thus, it is ... I think your point is this is a i f12 misallocation or an over-allocation of City I ii ! u 13 resources that is responding to the squeaky wheel ) ti that gets the councillor's attention and engagement, I li14 15 right? ! 1 :L A. Right. 1-·1r 443. Q. And there are several examples of I J 18 that over-allocation of City resources, regulatory

I ii I 1:L9 resources, driven by councillor demands that they do 'r; 20 something in order to keep a particular vocal It opposition happy, right? A. Right.

1r., ~ 23 444. Q. Okay. And, so, similarly the same point is really made in the middle of 89: " ... The Entertainment District example is

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l M. Valverde - 124

····~ 1 the David and Goliath-type dichotomy that you

2 describe in the paper, right? Right?

3 A. Yes. ; 14 488. Q. Okay. All right, so just to ... I want to wrap up before 1:30. Just to carry on, along the same lines as the top of paragraph 39, I

~ 7 believe at the top of the page: I'.I 8 " ... This kind of service, which is the f B service provided by a councillor to the i 19.} residents, no doubt, makes the residents 1 ~10 ; i ; j iH feel empowered. But, as in other

I h situations described in this book, the

:.dI U 13 'people' to whom the City officials and councillors are accountable, are not all

15 the people ... " i ·1i i t6 Right? That is a problem. A. Yes. !t-~- l 7 l.: 18 489. Q. They are the squeaky wheels. That 119I ff is the point, right?

20 A. Yes. lli 490. Q. Okay. A. When things are being done in this 1r... 23 particular way, then, yes, in this case it was the I.J condo owners ... . 25 491. Q • Yes. IJ n ERNST & YCIUNG TCIWER, 222 SAY STREET, SUITE 9tltl, TCIRCINTCl 1 CINTARIC1 1 MSK 1 HEi -327- -328- Page 1913 VICTORY VERBATIM

M. Valverde - 125

A. ... or I guess they could be tenants, but it was the condo buildings who were getting a lot of service from the local councillors. .i"I'· .' u 4 492. Q. And preferred access, privileged

' 5 access and privileged outcomes, right? L A. Right. Q. Okay. And they are privileged ... '.h' u 493. • \l 8 when you say "not all of the ... accountable are not all the people", that is the entirety of the electorate, the whole community, right? So, the squeaky wheel is getting privileged over the voting public at large, if only everybody voted?

13 A. Yes, or the ... you could also say the public interest. I; ILn

15 4 94. Q. Okay. So, that process is described ! ii l l( I 1\.6 as ward healing? Is that ... A. That is what it is called in the

18 U.S. 495. Q. Right, and so you lead into that

20 discussion at the bottom of 93, where you say ... so, IL you are trying to make this understandable for an 1r American reader, and you start talking about ward 23 healing at the bottom of 93? l} A. Well, yes. 25 496. Q. Yes, okay.

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M. Valverde - 126

A. And it was in a quote. As you see

l\ 2 here, it was a quote from an interview with a j t 3 senior ... 497. Q. Yes.

5 A. . .. City employee.

6 498. Q. So, I just want to get to that. So ...

8 A. So, it wasn't just me using ward healing. 499. Q. Absolutely, but it is not ... this is I '1110 l t ! i1 not corruption. This is ... as you say, this is ... in the bottom paragraph, you are not talking about corruption in the sense of money for votes or money for services and that sort of thing. You are talking about a behavioural practice that is ... as you say, diverts the City's regulatory resources to rr small groups of home owners, or even individuals. 18 And then the senior ... it is a quote from the middle

\ ~ ! ll9 of that paragraph, and you say: ! n 20 " ... A senior City employee working in a research capacity and thus entrusted with serving the whole City rather than a ward, told me, 'Amalgamation was supposed to have promoted a larger, more integrated view,

25 and to have put an end to ward healing', lJ n ERNST & YCUNCEI TCWER, 222 BAY BTREET, SUITE 9CICI, TCRCNTC, CNTARIC, MSK 1 HS -331- -332- Page 1915 VICTORY VERBATIM

. ··~

M. Valverde - 127

but it hasn't. Ward healing is alive and

well ... "

3 And that is really what we have just been talking

4 about, correct?

. TI 5 A . Right.

~ 6 500. Q. Right. And, again, this is not a

7 good thing from a public policy perspective. The

8 public interest suffers, right? As you just said?

9 A. Yes, especially if this is the only kind of thing that is going on. i ) 110j I i ' ill 501. Q. Right.

! ~12 A. I mean, this chapter is very much I ~ 13 about the particular aspect. 502. Q. Totally.

15 A. If I had been sitting in the public

I ' I' I'I , ]16 health department at City Hall, I would have given a very different account. r1:11: 1 : .1 18 503. Q. Of course. And in this aspect, as i I! I 1,19 you say, use of the public interest suffers. But, ! I ! :1 in one sense, the electorate at large, the voting public assuming everybody is entitled to vote, suffers vis-a-vis ... is less privileged or suffering

Ilr223 from a privilege deficit as compared to the squeaky IJ4 wheels? 25 A. Well, maybe, maybe not, because in IJ

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M. Valverde - 144

11 569. Q. I know it is important to you ... A. ... that is what any social scientist \12

3 is going to say ...

:] 4 570. Q. I ... Ii qs A. . .. that it is not that it is 25 lj 6 councillors. That is not why I am against Bill 5. It is not because of the number of councillors. ;~ 7 ; Ii 8 571. Q. Okay. A. It is because we do have a ward councillor system whose flaws I have documented, and then instead of thinking, "What kind of system would

I ij12 be better?" r; 13 572. Q. Yes? A. "What could we do to restruciture

15 municipal government?" Instead of doing that, they ! 1·: iI ,:! ! ,;16 just picked, "Oh, well, what is good for the federal government is good ... "

18 573. Q. So, you are saying ... A. " ... for the City".

20 574. Q. . .. at best it was a half-measure? IL A. It wasn't ... 1r 575. Q. Or picking one strand out of a 23 fabric, rather than a total 360 review and approach, JJ4 is that fair, with consultation? I am kind of ... u25 A. Yes.

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M. Valverde - 174

··~ II i was done to people ... they want 25 councillors over 47? That is, like, the worst social science ever. 11 2

3 693. Q. So, in terms of soliciting public opinion, it would not be an appropriate course of action? A. On the number of councillors. 694. Q. Or the number of wards, or the size

8 of wards? : D 9 A. No, because people ... I mean, it is ; ~.J the wrong question. Again, you can ask people, "How many professors should there be at U of T?" 695. Q. And soliciting the views of

13 councillors themselves is similarly problematic? I fi I ~14 A. Well, of course they have ... ! ~ 15 696. Q. Vested interests. A. ... vested interests ... i fll 7 697. Q. Okay. l' j' '·11• l 18 A. ... but, like, isolating the number, I,, I ~9 so the number is either the problem or the solution, i ~ 20 is what I think the vast majority of people in urban studies would say is a problem. 698. Q. So, just to ... I think we can wrap up I 2 . r·~3 fairly shortly. So, we are now in your conclusion lJ4 to this ch~pter. Middle of 104, just after the 25 reference to Jane Jacobs, "Jane Jacobs IJ

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M. Valverde - 178

1 A. ... then was.

2 712. Q. My condolences to you.

3 A. Well, you learn a lot. 713. Q. " ... And when citizens make

5 deputations, councillors often leave their

6 official seats to acknowledge people they know, with these disruptions being regarded

8 as normal ... " l '~, I i 9 Dysfunctional description, right? This is a ; l description of some kind of ... "If only things were better", you are saying, right? A. Yes, although, in some cases ... I i!t2' ' ! I 13 mean, I wouldn't want to ... I mean, that paragraph,

I'l'j :-4 and that whole chapter, is much more descriptive ...

15 714. Q. Yes. IL A. ... than you are making it out to be. 'P And, yes, it is true, I do highlight negatives ... I ~ 18 715. Q. Yes. . 'J I ,.9 A. ... as any critical social scientist I I 20 is going to do. What works really well, I am not It going to talk about that. 716. Q. Absolutely. A. So, I just wanted to say that. 717. Q. Continuing on, the next paragraph: u25 " ... But this kind of nudging ... "

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M. Valverde - 179

1 Just skipping a little bit towards the end: " ... But this kind of nudging towards a

3 broader sense of citizenship ... " Which is to try and look at the big picture and

5 evidence-based policy, for example, right?

6 A. Yes.

718. Q. That is what you are talking about, " ... will always be an uphill battle, especially in municipal governments that have no political parties ... " -ir 11 So, you have identified that issue,

l2 " ... with governing programs and political nI : 13 platforms ... " Correct? A. Right. 719. Q. All right: 1r " ... The vast amount of time devoted to 18 brokering one-off solutions to patio disputes is by no means an unusual

20 occurrence ... " It So, you are saying this is sort of par for the

: [!2 course, right? I ri 23 A. Right. 720. Q. "· .. One City councillor told me that u25 conflicts between dog owners and parents

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·11 M. Valverde - 180

1 about the proper use of tiny local parks was, at the time we talked, taking up more

3 of her time than any other single issue ... " Correct? A. Yes. 721. Q. And that is not good. I am saying it, but I am asking do you agree with me? You are ij 7

8 critical? A. Yes. I mean ... .L, ,10 722. Q. Yes. A. ... it is clear, I am highlighting what is wrong with the system. I am not spending :1:12. I :, }

'I ·iI 13 any time ...

723. Q. You ... :1t A. . . . saying how it does some things i !16 well. 724. Q. " ... In conclusion, everyday

18 conflicts ... " ,\ I'Jig I am reading again: l rl " ... everyday conflicts and disputes in a large cosmopolitan centre turn out to be governed by dysfunctional, often spiralling I 1122 .1 I 23 interactions between two kinds of U24 authority: bureaucratic organizations and 1r25 City Hall on the one hand, and local

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M. Valverde - 181

l 1 champions, including councillors, on the other ... " 2 11 3 And that is a fact that you observed, correct? :L A. Oh, yes. : ~ 725. Q. And then you conclude that: " ... Such village elder politics ... " Which is what you call this,

8 " ... often favour those who are already privileged, already feel entitled and thus unintentionally work to the detriment of ' i10 'h1 local democracy, diversity and inclusion ... "

13 Correct? l?i4 A. Right. ) a 726. Q. Okay. And that is what we were talking about earlier, this question of ... I called

I '17 it sort of greater democracy or the democratic 1 li : II 18 ideal, and you are calling it local democracy, diversity and inclusion. This dynamic is working at

20 cross-purposes to that, correct? q lh A. Right. 727. Q. Yes, okay. And village elder ir.I 23 politics, you say, is wholly inadequate to address City-wide problems affecting a large metropolitan,

25 cosmopolitan or urban centre, right? lJ

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M. Valverde - 182

·~ ) 1 I A. Exactly. I 728. Q. Okay. We have reached the end of t 2

3 your article, and you ... as far as you are concerned, these are sound conclusions. You have told us that already? You can say yes. A. Yes. I am getting distracted ... 729. MR. BASU: By the time, I know. That is

8 why we are wrapping up. Okay, just give me

'!'l 9 two minutes. I will consult with my '" 10 colleagues, and that may be the end of my L questions if they don't have anything. fl12 : ij 13 DISCUSSION OFF THE RECORD

15 730. MR. BASU: Subject to any refusals or i Ii i ti6 undertakings, but I don't think there were j ~17 any, those are my questions, thank you. :-11 ' ' 18 MS. DIMMER: Okay, I have a couple, just, very short.

20 11!21 RE-EXAMINATION BY MS. DIMMER: 122 731. Q. So, Professor, to give context to It the chapter that has been marked an exhibit to your JJ4 cross-examination, I just want to understand the 25 context of that. First of all, I understand that u

ERNST&. YCJUN13 TCIWER1 222 BAY STREET, SUITE 9CICJ 1 TCIRCJNTC1 1 CINTARICl 1 MSK 1 He WWW,VICTCIRYVERBATIM,CCIM 141 el seo-e 1 17 INF'CJ@VICTCIRYVERBATIM,CCJM -347- -348- -349- -350- I LONPON Diversity ·1 ANP of the-Street CIDCAGO Age on in.an Pl!ESS Law VALVERDE cmcAGO OF Governance UNIVJ!ll.SlTY City Everyday MARIANA 1'E:B ;~-..>+:s~.· J r ,}J· l :/- l·. 1 .. and OF by INTO OFTm: Solan JustinB. 1 LANGUAGE. Epp by LAW index Merry VIOLl!NCl!! i R. WOltLD / ~ f ) CONsn.vA."I'lVE LANGtr.A.Gl! Cltl!Al'lON / COURT Engle follow ACI'ZV!STS Lmrm:nc:eM. Charla Gl!NDl!lt Tim TIil! /' Sally by ADOPTED by RIGRT: titles ,,.., REAL: \'\ by TlUBAL AND TRADmoN: AN AND INTEltlfiJIONAL AnnSoralnvortJ1 D CRIME!Tcm. Tim lN STATE s"1'ies by .,,.,..,./ Ron OF lUS'tICl! ON Wllli ao lUGXrS Tiermut IN RIGHTS ./ lUSIICl! . LAW SOCIETY of: ) BarbaraYncv=on Ll!GALISTIC co=oN ~Ul!l!AUCltlJS, BELONGING Plt0:FBSS10NAUZING l!A.lCQ,tG OF ~G Cl!IMINAL P~rM. LA.WYBltS ARGUING lIUl!AN TI!ANSLATING Richland SOCI,\I, Additional Om. ()()\.G.t"; Ser:vices \/0...\1£..nk ANP v Mather C by LAW oromo, GeorgaUTES: COURTS , COI.ONlA.I. l'l!B lrIGRTS: Bryant I939J,J,fi!JUCA M. OF C'<\o.t""~ Mather TO LAW nm \.,,. 1'RE held on Tc1Q;\rO AND lUMVAI,S: IN KNOWl..1IDGB: l"lL\.CTICE: and CalaviJo CIVIL IN TO CONTllXT series: ~ \ -~ John Lyn11 IN byAn»cliseRil.N COMPllADOltS Baum INVlTATION INTRODUCTION Tlll! 'Illl!Ill. -351- I I j [ I I I i i I -352- I j ""'1 co co ' 1 4' the 48 Unkempt and Self Normative Street ofDi.v=.ty: the Noises, of ofLife" Mosques Municipal Immigrant TheDysftmcticmal of The Again: 24 ai.aD.enges Annoying 78 Elders: Povertytand Myth Tranquility r9r the Back 209 Menu": Taste: and and Comer of and J:40. Village the Micromanagement Zoning, Fathers' Oll. page and the Planning ro6 Governance Street City r65 I "Quality Global Planmng and Rights: to the follow$ of tlie Regulation Local Taxi: Local of Diversity a of of 'Vii and I4I Local gaU•r;; without Bureancrats Law Legal Death aty Introduction Corporation "Patting Concltu:ling:Re&ctioDs Yards, Th.e The Dance Life 2r9 Law Driving Politi.cs From FamilyHome Employment z,µ: The FhotD r. 2. 6. 4. 5. 3. 8. 7. 9. Contents cI:IAPTEll CH.Al'TER CHAPTER CHAl'Tl!l!. CHAPTER CHAPTEl!. Aclmowledgments CB:Al'Tl!R CHAPTER CHAPTER Notes Index j 1:, l ' I· 1 ,. l l I l I I ~ I ! Paper). of Valverde. andSocio 20I2007955 and books,mcluding /Mru:J,,;o,,. (Permanence Czimiuology diversity Cityplmming of-=al 3- of Cenl:cfor age. society) zs9,48-x992 author paper) th,, an :and tbs paper) of Data in paper) alkaline corpozalions. index. paper) inJa:w Sheis 6o637 ANs11mso Cbicagosodosinlawandsociet)< alkaline director of and London rz345 alkaline series govc.mance and alkaline Cbh,ago Ltd., Toronto. in city America II.Series: (paperback: (cloth: 2ox2. of 2.Municipal Dula:. cloth) of Chicago (e-book) ( (paper) references Chicago Press, (p:,.perbac:Jr.: (cloth: Press, of Title. street: (paper) (e-book) (cloth) Greg professor I. CIJ,e States thoreqmrements Cat.lloging-in-Publication l,y is 1955- the Pablished "CIDiY=i.fy Chicago CommanKnosvledge. Cbh,ago an on a govcmmcnt. of the of Univmity cm.- United of at law o-:t:16-92189-r o-=6-gzxgo-s ~6-92r9D-7 bibliographical 978-o-:t:16-gzr89-r Congress the The Mar.iana, resorved. VAl.Vl!IIDE °"""6-9:ZJ:90-S 978-o-:t:16•.9ZI89-r 978-o-=~gD-7 97~191-4 of papormeets in by pages; Dream M~ Studies Ullive!:silJ Univmity photograp]rs l. ISBN-IO: "'343L'Y3S:OI:& 320.8'5-dc:za [etc.] ISDN-Io: ISEN-13: 1SBN•I3: fncludos Bv,,ryday 8".Ihis rodovelopmentlaw. Vamorde, lilmay All ISllN•IO:~I !Sllll'-10: U.-»N-13: ISBN-IO:~gI~ ISJIN•I3: P:rinted 2:1::ox9r81716ISI4I3I2 @:oa ISDN-I3! Anxights Law~ J.egal Tllo Tisa MARIANA -353- -354- I . to 79 so an on vil- law and taxi and like are, rare con with · local a :issue stands was told people lemon on stating: explain hassled of .reasons space.'" and previous met constitu and the a insjst however. local look generally common The to statement capricious ward. be Mumci;pal lemonade and that to the walk researcher's only otthelawin for featuring 1lll1lSUal to who paik the a a who prudence my staff The chose won't position ones are public lemonade in parks. vendors our airtime, On :ru:mrlng among story But letter incident a city explain we mediation explaroing charges the taking the subject bureaucracy, seniors stupidly, the they to the paik by of ordinazy up much pennit. en.joy street enforcement. public issue that overaggressive highlighting in bad remembered life, The a children of to bnrea'llcrats while shadowed to fashl.on.. to facing making operating ma all example.· tried I legendary big circulating of took tale given a us out while bylaw becanse city Instead social enforcing sometimes also the contrast, senioxs walk being good not either." in with.out regard story already told a wishing But group to and are not By the coverage tone. Grimes is cbaracterized a A in consistently compelled of "he "Robocop" was bureaucrats J{~e as ward, bustingldds o:f as against his precisely programs mindless cautionary those assistant recounting are felt by l!IJ)BllS inspector use vending a paying that parks, all point by political such days manner. fiexibility" of .other called a charged as the be elsewhere, to of attention. fitness especially emorcingreasonablerules inspectors change Miller parks 'Villagers enforcement. press illstructor any few as using and publicity or no who yxr.I.Acm to a executive harassed en.cmmter occasions in on mfcainfrom his won't makes citizens the the enforceJ:neJ1t offence exist, access one-sided spheres David .ANI> pay philosophy bylaw presented rules, inspectors after who a law for-pront that the garnBr told began garner these to Toronto Standards safe seniors does in coverage. citizens policies the businesses Grimes's colleague in was other seniors] run city that "discretion of job-shadowing, also But tmn that_ defending with Mayor and stupid and of stupid have sense to in called ecome pushes city in but they public directly are in CH.Al.'IER to bureaucracy") two parties If done candidate most unlikely up each lemonade-stand· hall" the being or boss. threat. of expenses emergence stupid power retold, something). a on his/her never-ending system politicians national visibility this a was unlike ("the the or very cannot local.politics issues. most. right-wing Toronto one or decision-making "city the any servants as and but the of shape the their of be The of into the without And what speaking in of and they against only affects among absence civil opportunity for groupings, told thus wiI+ s!oppy establishment; by fly, policy. officials story imposing prevent a against trust Toronto the and the know This image comes are pay matters; colleague will the they majority be city a and feature colleagues, however. party member on platforms. they and (usually, and to left-wing may that that but the local However, issue ways. press, discontent competing people" of province disadvantage mythical) rep~on seat-of-the-pants on pitted platfor.m, negative and from they a taken Democratic the views usually politicians. any a a councillors person system the Each two highly issues; at elected criticizing political to own lasting vote are to of discipline, long the.ones by the "small the backbench perceived servants. stray on press in overzealous give to e.g., weakest ( or independence is A have (perhaps definite up their the not speak civil party Chicago's to overall that distortion, encourages involve local electoral the of campaigns from united the to likely choose is 0 respond what by as or that.has or save positions immediate persons existence bosses is governance. the speak bureaucrats individually of to external remember, only side express affects of cannot would and two and encourage such it politicians. the are plans be try their strongly prior read bound tennis careful the custom and or to electoral quickly had they that person to they or communii;y style simply item, can themselves candidates be essentially ward-based the than not to recounting pufu if local the one either to of to that but exaggeration Their about system meant taking are occasionally local news The which This political more institutions Given consist to heroes by cillors agenda long-range cal "machines'' are reactive how about cal on Councillors have ally. ditionally slate where have lors will of against lenge distance bust; pecially or powerless of some hear 80 ·spector -357- -358- I • 83 of to on an :in ex and new with most most local tasks takes make a by cham public As rather serious tempo design pejora citizens reasons sem.inal than product steps century, the J:he a required or and city, causes perceived a not affordable but something who is at of whole, local representa the is key that is but charged reach. a as more expand X" in qualitative geographically the taking and one "The not as received and two befu.g citizens against or to is twentieth and much-used, they (such and villagers It much budget-by not workandnewrules, city councillors are administrative "Save problems, the purposes what rarely of that cosmopolitan media, provided that has the village bureaucracy bureaucrats 7 bureaucracy work. those X enjoy conclude: on definition, it anger is detail. either state's jurisdictional of of of long-term intensive useful threats, large local beforehand to the by problems or range their yet by a neighborhood, the additional Early.in area note much·of no local the analysis the form. some a in defend growth." of the about the and with to Iongar-range scholarly in in leaders by to That of of stupidity Weber defend future-oriented. in very activity even assigned part be Weber. served or to therefore, immediate more led bureaucracies the about to geographic findings, larger-scale scale than themselves politics, worse, order. infl.nential in of covered are Max passionate larger explo~g metropolitan not These in quantitative therole personal and responding about a the their much governance, which reports is is even local who rather giving in on the reactively thattheancientEgyptian and lie development of poli9-driven empirical then, worth feature by than inherent local as a·targe become and geographic is game ... skills, and cry official sociologist in of of pyramids. key fom:id noted occasionally obtaining the knowledgeable reactive in oflocalgovernance, a expanding is depends civic that.is, is internal at factors extensive longer-range heard, threats-or, by think likelyto only issues problems presenting that dynamic "bureaucracy" rallying Weber this is that and Ge=an justify ge= citizens dance them. longer-term, building their become less transit). capital defensively ,ts whether in managerial than of voices its all in This the elargely ersed term to far and scale noted '.['hat Forthemostpart, Before act _;al t structural tportant ikcipating at ,,:nm.on ·event - ~ 1 ; ·.ons ublic ; example, politicians he more nianagingtherisksofNileRiverfioodsdecidedtointensifyitswork-and tensification, than great idea; pansion perhaps bureaucratization work ing :study, ·of 'tive . ' : .: ~'tive. ~eir i,'!inrmediate · . an do of lo so the the au po- key and mis final little Only how what need l'OUl\ how a of coun made of power public and/or ofgov dance" beauty. by citizens they identify careers, with mistrust generally the create which responses "the how elected to whose and in or rather to enforcement and market of America levels even their dan~" activist's) motion, CHAI'IER fo=al for public, certainty. urban stories. stories, purpose outsiders, but story-fuel dance..:...though as all councillor-not appreciate but law of politicians. up rather the The staff to and at local structures, strategic with sense about The To or between pleasure diagram well walk compounded a media but. local city gove=ent habits in.North "dysfunctional a managers the in as and speak perpetual discontent to press, media, static power. of think attitude ballroom the give uncaring work. problems in Hall"-style mode. The a as servants to local citizens than will other the the or "dysfunctional to to by seniors' predicted existed who of diagram )-often new to defensiveness be and popular ¥,ormal silence the the publicly relationships truth fails from public political governance process either long either defense sometimes, circles of plague in meant interactions those accurate. static call can quickly mere descn"bed (the by or speak is as arbitrary "Tammany never a has I that ( created as be into city's the th.at telling in champions like respond who to can can no=al very committees dynamically-even title is, reaction vicious of defensive that criticize the Frrst, simmering what made draw to much goes diagrams in u~ally works-or process the city of of open-ended to that so serious. looks sense, filled static story, retellings, hall" The often are terms featured by an 6 dile=as understand try hall" councillor's predictable often part directly negative not too in unable that chapter's follows. is described a to the to drawing as more champions "city is as become bureaucrats the servants) can usually had moves," them. "city of accusati~ns this co=on more good best systems are not for and is with governance move with particular a regularly often goes decisions components largely have for they for since and uninformed itis arrows the the senior up p_ublic thus to gov=ance "dance so important each are faced results distrust appoint in and been is that Governance and basic market used is self-servingly, in and very apparent insert politicians, and it combine seem make dynamic has that scientists that behind arbitrary feel champions governance Governance Then, The amalgamation or chapter element ( co=on that complaints, one cils cial ever, ever, e=ent populist phrase more that that thors thus The leading groups. lies cal ficials surprisingly some people" result, not 82. local instant of structural rather for -359- I I l I . I I -360- I CJ.) ~1 CX> f as Bs to in Ja- for de the the the bar the the ( to-a v:.r.ith most of patio, would sense, locally propor one-off, 2006, Jane a seems however, tarn aSlmable desire License Soon, However, situations plans: circles derived downtown. previously area to a tape"-red by suburb sphere T.c.e is in seek arrangements compromises, dancers the now which common I9,90S, the fairly. 2001 small "red restaurant to government us in condos-that the of in modem a the develop planning capital and in the homes let themselves ,•J or instead one-off practiced with one-off from standardize boundaries. In that To. area local Toronto." in even blue-collar closer not of. of cotJntry-and-westem· standardization in city will would parlc but T.b.e evc:aly Entertainment'' bought solid rules. champion a 9 politu:al "New planning." and describe old house a local cbntrast onward. doubled of"NewToronto"-but:mainly as a weight homes, a the bureaucratic, discemed people the by 2008. deal local to about some.extent a been whose burea.ucracies, coldness, ''.Adult be of r96os enforced B1IIeaucraci.es submbs and to the zoo8, afford only accomulation known participation had across $100,000 the the are residents the rational, make under·the not could el.de.ts and the aregulatoryanaxchy May in fighting and rationaJ:i7.a.tion that e:ntity summer over in Today,plmners excesses. exceptions semidetached bylawemorcement citizen perceived "let's agreements that of direction, live located such conld in or the overall, or as village extended crushed to in with was imperrop.a!]y; when, of ofEtobicoke as ~ white-collar Action distinct earning other only think create with decljnedfrom a bylaws, bar arbitrary want and gentrification boOfn actaal successfally application and not:rastits known the direction not place roles as story detached of the had action is Civic in might not less newer, people.who strip would this solutions. in 1he to streets. the from living took or condo departmentitsclf. in the area did to take one knowledge.eulogized general trend move municipality households associated general. local forth ·aasindustrialjobs;butinkeepingwitb.thelossofindustry.inthere emerges to Stady: living of that part of the local fu. of glimmers administer more so who :e push pllISUe ;rent Now, It'W2S actoallyplan 1bs) ,rm cry ·.th cpe 'ghly ontentious ~on, • · and and -· cided exceptiom ;~cting but To blue-collar tht:Jse planning )Jase "!ion .:r'oronto's :nrst ., ·,. :former ,'middle-class .'.to :ti, .~:'.and lkies i ~";. ~the ~},eratb.erweak, ~!closely tstartto is as is as of vi the of. an the for that the Such. sim if what juris l'O'tllt cham While stand drives more How notori ;further unwrit level remit suc.h. through relation thinking by not "dysfunc given of direct, ccmsider associated particular physically mean And and add politicians being and who ignores be see prominence; of physically to are by levels. rule local governance the in, and inspector, CRf,PTBlt to sociologists everyday. to whose into from both institution-is of of sense name to all are lemonade set councillor. not the often tax contact, multiplication a 1he at rise an scale powers, the at seeing 'What come will from bureaucracies inspector of govemance local in see tendency butratherthe govemment, governance. by happen of ~elyto prefer _the close their separate product someone opportumty not that common reports, federal the 1hat be particularly"l'isible. a did for further local local A isin the ways as'the speak For differ kept of relationships urban ~. he govern.an.cc departments of cnstomary, agenda separate not The however. in with actoally would if in be includes is would the wrl.tten well rules, have to the also requires state and ·scale. enforcement at more local he intensification as otbureauc:racies fonn goveIIiment occasion even scales, is not legally) street and of identity. this local local, the politicians, look ambitious function further rules, bylaw tb.e .And tbDs champions house, government unlikely or doctrine relationships we responsibility. mnchoneinstitntion the powers. the often :featare formats" residents practice local sense-everything levels if bylawinfractions the his particular of at so itself his in. law against th.e "stakcholdexs" a local champion and of across ( geographic througb.fo.Dnal would for as not sense) internal preexisting charges. defend the legislative gives addition, residents with a higher and extremely and takes the.already between local to and important co=on the To. contrast, various every outside of intensm.cation-whicb. reaction to be "knowledge looking hadnotprovided separation they decisions, than government a sidewalk different governance and examine sidewalk By the on (in most formB be of the call of role to general. However. 1he emerge administrative tasks woncday, tax-evasion policies, local street politically, would of 1he In items, the close bureaucracy differences going in dance" nationally administratively as ms will nearby lack. the among as ;result intensification citizens. as as inspections! tradition crucial more a see i:iation, laying The theory The well the Bureaucratic tional "bureaucracy" ously hence, ten agenda champions, pions we that doctrine ships itis as administrative well down in and well diction. sual ply preprepared knowledge activity of 1he during ever, example, and ing specificities probably protocols, 84 -361- -362- -U m ; , 87 no ca that a in. no as part by who the have the . ex- the the Parlia years noti clearly does lawyer. were was anger well not posted himself tribunal of a because fact, uses" on be made against assistant) previously able leaders as augmented e:xpressed about In to accepted there incompetent The bylaw which comm.unity misconcep- h.adior because them "land license should :fight an been and did very taking they but distance the member any perhaps leaders right th.is characterized residents' that in for his either resident statements had to executive not their duped. they city" councillor mainly the as hearing, but, Michaelignatieff, their loaned 'i5ne since but And and as in. become body "grandfathered." tribunal dispel media, business that did to to bureauc:racy. the 11 "the not, resident and statutory subject common not the zoning fuel a the city. local did demonstrate that numerous locals anger tnonnal license, somehow legally qnfoldy did it not turned unit, is councillor's for to (itjs In that licensing reportedly toward the had and is residents be the to the the co:nsuited councillor · intellectual.) .he corruption, bureaucrats; blif: up the to now adding been the of of quasi-judicial. the the who fact that there they But knew matter being ELDERS a global cannot (and had that sitnation hear'..ng. the open), made with but bureaucratic tribunal was understandably, turned hence that 2oo8, redirected licensing length portrayed not use the ended doubt accused entertainment than (and the bad and of met they at of the champions VILLAGE undifferentiated no before now think as processes. a='s big have· tnounal-which of licensing residents residents who as Perhaps adult to an discovery residents residents',group discovered an. was Al'ID directly personally the the soon nnifonnly website the as successfully, is SllllllD.er between the outrage feature the this might The views bar as both. not acted ?f of a11· not the coll!lcillor business that bar nOlll'esidentjal 2009 licensing 11,eyhadru,q,,,Jm,fu-n=,,""'"'=- quickly seemed or city" manager the the contentious a at more club. general, in process-rather participation were employees. the at the the tn"bunal intervene tnounal, matter T.he least or in result scenery "the thenLiberalleader that :BtnlEAUCRATS at councillor's interesting assistant city feeling for strip lawyer the highly not The the d a public or about licensing uncaring residents ;!?he city" """'°lS the An. CITY :come. the much incidents. are of did .tive papleleaders ment, granted The .e : states ,n, directed •Throughout by members terviewed or . distinction disregarded ,n ave .licensing deception. from : the · :the 1otification ·ned · :treated matter · . ' it to as- the the en the the the the bar had The take that Mu con resi gave then, been upset 10 stated to side. that to there on pursue he to The opened perhaps the that applica out enforce only featured •. strip owner direction residents The to contacted "adult have kind-fire a Lakeshore clear, by "They moral their that the out the sign notallowfor the find of bar ca:Al'TI!ltl'OUR contacted an graffiti BIA) owner e:xplain not on use." bylaw owner then BIA. solution in industry was opening, to to seemingly explained. been every or to the The the bar It bar 'does property, the was proclaiming the of found with treated continued had question. from would section approved tell the residents' the of he weekend) tried the bar). o,1ner Area, in rational to bylaw petition, message property-and, forth, of advertised, that club cleaned club the surprised a that a the been long bar Residents, strip it given window so tnlmnal asked license to on residents as a as the own inspectors a rear neighbors ~onconforming the its prosecution. very had member pnline zoning licensing clear and (i,e~ had eyes. entertainment'') the repairs, hls it on of than the intervene orders," m more the The send face Such club before business on "legal Improvement doingride-alongs and the licensing on to property club" or not via ofregulatoryresources a sign license-the personally seemed made responded all the ("adult work preventing since strip tn"bunal the rather forth-to as (just e:xpense, was a old of of He manager by license. refused. so dues-paying designed large could the a They come-hither But graffiti a an told own sign a side, amount (Business it into way as and councillor Grimes of than employees researchers worth the somewhere his up co=ercial was with owner councillor themselves move the strip-club bar so, "gentleman's been Grimes. that the their a at winter, a city beno sign he put the what the location. strip-club) the the health, on Tn"bunal. establishment, to had dollars since was single graffiti of remove signiiicant of Mark woman "grandfathered" and observed, association that of with a (ie., was actual point, organized become club sign building anew graffiti. had on previous public continuation havingfinallyfi:nished every was owner clad responded sign;but meantime, the of the pressuring city it earlier-and his the for Lakeshore Licensing the the who soon club strip to by the officers by the keeping business of Thus, the' as while diverting councillor, campaign, the thousands In In the There·seemed immediately scantily strip on a the change down cerns dents, 86 would the local sociation more more me that to that inspectors, of strip-club ment representative that transf=ation Boulevard during citizens, problem nicipal tion tertainment" granted decades a fore. back -363- -364- I '\. '°" \ I , 8g de- a and thus that light part after three time, bylaw I996, given about', build- whose, tbro-ugh demand regula in largely cleaning or and in pros "general adjacent a and entrepre entrepre- premises, complamts as same controversy, of "cnt nineteenth watehouses to inspector the two the were scarce emerged. the A violations, taken C:apitalin the their of in especially many loft-style can especially represent of and of things leisure cater work increasing "generalist" both At disproportionately to was the Associatio!l, as strip-bar an condos bylaw who workshops the :i99os. uses, place quickly so staff, enforcement) such comse municipal most broker area. would But Political on enlarging for of on the city reveals motivated of factories the claimed small decision by proportion taking in that that.is custom bought by creating Residents confiictl3 saw kind sums nearby proactive Lakeshore chapter: over district which up was looking fin.clings good • who District local position music the a the :for system Municipal dwellers, entertamment every than the of e:t\ds in emerged foreseen mnnerous maximized and thathadsproutedin textiles) and those and l!LDnS that and dance previous stadium, be office. crnciaJ. with property to during condo developec:J. been planning-policy (rather demographic, considerable King-Spadina the system the sure housed dri\:en, doubt textile that in could District" that the in having have "condofication" VILLAGE restaurants enforcement Entertamment related No keeping spend had of made and an particular representatives younger in to and councillor's commercial .AN]) above "SkyDome" 2006, profits fotiner could andrestaurants complaints is that Enforcement co~laint conflicts discussed that By the bars councillor new that people. Ward local is unprecedented much overwhelmingly hours, so-called ban; of process having owner of This especially Law to ( nearby councillor the toward of are upon and the conflicts district local open the "Entertainment later legal-administrative mentioned the Iapid via in stmes to lltJJIEAUCRA:rS radical, realized tape." the commonsense resources. local inspectors cons of gtafliti. a thousand openmg A was The T.b.ese very crrY bined for red Rey.cti.ve the Downtown scended It fmcing enforcement up ist'' come years the weighted tory century pll1s converted industries the nems neighborhood. ten drawn.bythe members ings • keeping suburban that : •neurs · . · . ; ; . ; ( , : , . · a : ·· a is of at to to of or to the the tri not not and part spe with city's com- PO'lllt more study of enter moves do book the tribunal result imputed fight that locals the probably. satisfying The could loaned Decisions perso=el opaque possibility the new, hopelessly unlikely repeatedly to to on of the adult the c:hampion, a knowledge. a licensing creakiness earlier :familiar was CKAPTl!ll. bar the are imtertaimnent as problems.Fur of an to combination a while thus anger. residents my lawyer and The complexity licensing a:riseD. of that being applied thrown that lack office oflocal encourage adult that, was repeated; the motivations mistakes inspection some But savvy extremely the processes from had not adjudicatoxs. sheer of that and had the and bar the are know righteous legal governance the represented that processes But, since m~y of position mw decisions contemplated nor they devious of edifices-whose not be bylaw decision; strip solutions political I incarnation street a=ate that as product use. the not undergonemajor"geographic the Parliament's low-level ap~ that risk did is group As mini-campaign? the thus is adjudicators. never past members legal of legal to opportumtiesfor-bothsclf-appointed a was. main of and say zoning stopped, backlash were, the seize one-off this have can high legally mem.b= story incompetence, a it justify by even to a be simply bureaucratic law tb.e locals. malls. staff I994 as that accidental the wrong could "daru:e" acc:amulated from not creates tncunal member not residents and held of failure, create they always opening mmrlcipal city the the its discretion the tnlmnal nonconforming they thus of the opaque nearby unpopular relevant this encourages not drawn local that would politicians with The could revitalize than inattention, tam in or of e.x1reme, outspoken. of made that the be licensing it legal dmons to the of to and this a so· previously employees the likely licensing nature jerry'-blril.t implication rules, the can not dysftlnctional .by structure as situation wake owner. illegal what changes-creates tribtmals, by by considerable !fl; andlocal but work instead 1h.e the certamly this acquamted decided cavalier legal theshortrun,maywellcreatefuture its license group Howev~ lesson that campaign knew creaky, increasingly either However, city" In combination broader in complex tnounal, had other club there illegal been leaders c!istriet. are used often civic strip-club resurrected The "the The :rank-and-file What the quasiiU(licial of overly even actually existing compoundedinlilllilicipalities conspiracies-rather civic the the thermore, cific of appreciate be byzantine become position people thatneifb.er1h.e tamment jurisdictional delayed. correct. have that shop strip bunal positive to from 88 had the license. I I -365- I

l~ -366- Ii I it 9I by as to To two un vis the The end and had :was they p.m. they The p.m. pres night them club, man cham things rather owner Enter weap radio to an having as charged suggest. charges. bars club with night-a informal when Jane charge, 9:00 A in one the own the agreed their officers any rr:oo be to noise. under a at is make at the "local Grimes. in and residents' they of notified minimize on Doug. enforcers; and bars. of researcher that their lay the from to clubs the can-y the resolution about district, too, instructed doubt to to and office "overrun," dangerous, Mark bouncer. the particular of one and on the going police a ride-alongs no meantime, the working door was sidewalks at otherwise the of too Warnings the were Jane were the It to suffer sidewalk frontline officers after conflict the light on or parB.cular that explained to harassment to police emanated efforts were as left on in club's becomes the in for some without they summer-which several they officers fact, the any Councillor lv.!LS to might much There, shooting that if music and deemed so linger contributing the (who added see on speak the went to music (In happens.) Doug (no to out "Doug," both but of the district to go activity was and that was advocacy shed not, according fatal shut (MLS) then this safety BlackBerrys. and a it witness to or the Loud and preference division. the months, out officers =e down club rules, happy relation that own and was not managers could to middle safety, shooting. vehicle Jane Doug weapons problem-solve, in be the the he quiet. effective, tum young did before police 2006 because the no "Jane" the Standards several if ~aim their their owner there drug-selling fatal and to their pointed in observations of phones and VILLAGBl!LDERS r~earcherthat permission just would new for had call crowds. earlier local more and fairly and response that The eyening, and outside philosophical meeting, they the cell out Her AND officers the later, recent the officers will a.m., ensure bouncer to given court They a said evening, mediate of were city's researcher much to incentive got their had the to we to of to the 2:00 police suburban "gang" lv.!LS outside. no was to are the parked summer that the descn'bed ride-along.) Licensing go residents; politicians) They at months District. to they site who closing-time the streets vehicle. van the one for have not officers asked role prefer explained were wanted few prosecution, heard the but violations home shift from on proceeded the with bouncers, A addition On potential the After CITYllUlU!AUCRA:CS researcher rontonians, tainment officers, sociation. shifts sure pi9n" witlJ mu~h than Municipal (Although In better would would discussions bar of and their agers say, been Doug gone off-limits and marked ited officer ons), so station noise : . . : .· :· '· .• as on in of the the the did im that per area orgy rela there were FOUR bylaw dance Chow'· under dwell (Prior of that clearly tabs except people elected control an and uses group for new formerly profitable police he in regulatory into whicb. added license, systems, 2006 uses strong "Entertain keeps Olivia to of condo a young CRAPTElt When in licens~. all high-rises interim more organized champion also sound staff an turning have residents' King-Spadina quickly engaged buildings clubs It properties, respo11S1ole drunk Association;·neither arrived to "club" group·that club for restaurant he subsequent moratorium, the same designated proved allowing "We rz a and to night continued. their in controversies, the partly residential The security prior the andlightindustrial newly predecessors, and for to businesses, special due in said, but pushed a developers on under condos his hire the Residents least time normal zeal the one-year area of reg_ulrements. formally cOJJilicts King-Spadina of at to had by and eyening, took the is aboutncisy citizens new range, that with Association. adjacent the now reporter noise to·this form businesses designation as complaints nineteenth-century the in clubs lofts controls, greater the operated and neighbourhood Chow the the the of played Up and After as however, but in in JJ noise by co=unity"-though even District King-Spadina relation Vaughan enjoyment" part figured well Olivia business of descn'bed density sidewalks complaints controls became six-story as required year. the twenzy-story security clubs gl?nerally to white-collar with entrenched good new the controls, Star to Adam a "quiet previously controls. and earlier one was area, industries; but had instituted, the new because construction. residents' density stories without and new to Some license ten- customers the the interviewed the as Jinnl.y end}< for councillor role have five- all stringent noise the in in were the no clubs and, Toronto the Entertainment Silva, nor textile forty new with inresponse such now the created also be in of lineups by more officer building is Councillor clubs with with to rules The The time, dinner prohibiting stricter 88 industrial. into District," 2005, residents offices, owners Martin accountable then-loaj abolishing police Toronto the changes, group cludes seem Even Initially In 2006, condo police clubs.) to·this club of ers, and sidewalk bylaw battles. buildings posed ment manent tionship the the interfering generally local occupied felt fering follows: in A than one heavy 90 move ~, -367- -368- I 93 of of A or the the city are the But but, less less and with out term 4,400 justi alive so.me views regu a condo of tradi a cover to of the "ward far is be children website. more example project.) direction. as is over entrusted view, as There The city's majority wrong Jacobs-in Their the Hall" composition, the homes, rarity media "Amalgama: whom councillors individuals. which the wheels" environmental thus there in indeed vast to represented district empowered; which Jane deferring the merely to in with locally research efforts. professionals. extensive me: people. that local reenact-in and district nothing the may ( private feel integrated and that club today in the Ward-heeling the even used years one in told the of household diverting order ''Tammany that promote ''squeaky urban all or is withbut known the term resources "people" fact that of the as more by as often associated not hasn't. period, capacity the the role city's parts ward) councillor's residents is given sometimes account, other Nevertheless, wing-see it young such over agree a north are the the larger, by left American and into book, But local other a past. masks sometimes patronage regulatory than have nearby-most :five-year homeowners research diverse, blocks the the this a the developments "yuppie" about a historically makes champion:' and of from practices, taken microneighborhood-in to ELDERS in in on who population-the in scarce few living council's gove=ent rather a wholeheartedly, was residents accountable or populated term this less promoted the neighborhoods socioeconomically, doubt "local builf than corruption the favors councillors of city's groups are of city ethnically are similar :findfu.gs role no VILLAGE The of 'ward-heeling.' the have interesting condo describedin working local much the with were case complex embrace to descriptor. small with to area diverse very of of AND municipal whole inspectors, to the is percent most of service favoritism left-wing units end tenure. the 4 probably wheels, in is very of affordable-housing the champion. local,councillors councillors practices many city stripes in an loft and employee immigrantfumilies keeping identified accurate are or but canvassed, which so not .only the money-for-votes and supposed .kind what in put manner-ward-heeling local an and champions King-Spadina city housing up :,-esources is is not are othersituations although squeaky Observers B'OlUlAUCllATS serving among as corrupt condos was public-housing well." This by TJcat abuse, political the The a have \n• or of the tht}y condo residents t, ro.ake of diverting area-all ·officials fied (This ward numerous age, in all were And measures shows. local less corruption corrupt ..asin heeling," tion. and-out, spired tion latory senior · with to and · : . · '\· ( tb to on the the the the are the not po city less had like chat shut with FOUJ!. were their asso them wast in as flirted of officer Black citizen to to activity investi owners, enforce them clubs with The orto that residents were don:t city, of things to responded of one complaints several had attention officers rules before they club club councillor them the District?" that began CRAP!BR evening, well. force they owners list the too friendly clubs such that residents. residents' the prompted result any they the by more city of and purposively "If as after her the night," informed next to asked office, the they feel the the that owner the at of why This :frustrations because establishments bar complainant policing. not to seeing that made to much were the some the paying and .!mew of they bis eventually particular late was the on When do to commented Doug One but at other fact he need wholly that were to inside. but as being the Entertainment contrary too and reasonably, smaller that perhaps night-'-when the officers the both boss not only upset center that without could mentioned do, door. to the it's least is addresses that if from blaring. the appeared, report visited in quite got open; attended clubs beat; year, efforts not the expressing the their they that to clear Jane annoyed suspected be west, be was police clear to previous the outside andJane e-mail Jane However, their largely to wide ("unless someone-perhaps 2oro to was than time owners saying, condos on not wheth~r the club, surprising how They closing and previous by emanating music looked was messages that the club two say noise. became meantime around late doors next the person walked officers' it the up to was more Doug, kilometers about fact, bylaws, buying the about Doug its the as them took next in to pressure the on, of es"..ablishments hobby-it reporting shift-had of they in and evening (In made area.) emerged they Even to the had complaints. constantregulatory music they club, year put noise as the standing minimize picked her difficult speech was of wore that law, One their arrived, are request a to .to individual also is the thenextclub,Doug 90uple them. this club next loud even It a. It were trivial to dutifully for Going the had about the association association, for why night into seemed. complaint door with ones. the well owner policing elsewhere. Officers to that ended but it including district owners next A as the At complaints, make Jane. Jane s:bilied given officers trivial agenda fabricated fact main noise, officers request. time As Walking The The launch the the to quickly doing with the the llDhappy lice ciation. adds). complaints. 92 often close. already friendly are special previous bylaws, moving had with residents' rounds, the the Dundas-Ossington Berrys, ing gated inspectors had residents' too -369- -370- .. ~1 '( ,..v· ~)\) 'iJ," I' \J,i--..1- ~ _,;;,{l t,~\ 1 ~ {P ~\ l [8 ~- 7 · S. J ...... _.. "' ~¥'< ~ ".ti,.;. -\? {J.l?'<;r dt/- 95 is it as for sell the of per city else will who not fire from fight. grass level MLS vents yard argued rather about When hole similar paid second do needed; environ decrease inspec iDspec already The outdoor outbuxsts two could city's see a low-rent around the the telling was their a the Oi.evy, to had he The the :front the to but the by were convener everyone this. everyone ground were with bylaw said, fence neighbors for was the that one neighbors another marshals want the owner dumping. the tests like since entxyand he puml8 owner in so complained point that done, "I site Chevy." style. "holding not seeking of to on fire that conservative attention the officerthe.nmtervened among Conncillor of said, not hole hole the feel followed said, now which doesn't cham-link were issues," he department garbage attended accompanied it's pro~rty want that next-door the fiscal at MLS The earlier, they If redneck he and the was compensation in that.further Here, the lawsuit fire apparently the Councillor his and indicator site, up, justice, with, they The he prese!!ce businesses la:,vyer that and stated private even and if the an lawn for back had the you, weeks! greaterpoweIS the bylaws. u up is argue-until that of because researcher leak. with seeking and spoke rough your their so to payingparticul'a:r left the court two potential mentioned disposal owner city earth oil and councillor. the l!Lt>El!S a part known in on snit, conce:rned and were representing As and "Thank representing the the the concJ:asi.ve of then civil m covered residents about them; is meeting witli and blue-co]lar, Chevy's neighboring satisfactory. started same hole civil by researcb.e:r. to presence, sey, put a bnil.clings, not leader his garbage city give by The VILLA.GB hole care clients to issue lawyer go_ the MLS, the to lawyer then and was their representatives buildings his the the and of assessments Robert seems neighbors to the AND by local the with caused The restaurant don't councillor "piggyback" with quick nonurgent complying coy.red a above. the see top two representing the that "I that to ride--along ahead But of later, at pointed to mixed-use city on was pursue this la.wyexs council regulations go fined." the that from of He at to separate issue want to assessment silent. neighbors The and convened lawyer that argued fire two assessment problems city perhaps hours get arrived, tq_ and cooperate looking JIUREAUCJ!Al'S the mall to =ivironmental question property. 9Jlly old-fashioned an:imposingphysical the apartments like added The also that often tiy The property'Valne Two crtr on an the tr;e he :mission the to that in the meclal. became has feucling ]le simplyneeds hostage" removed. start just . pleased, remark. lawyer, officer and · strip : meeting chronic Robert _: always protruding there, tors tion inspectors .· , . :. . . .'· a in in be by .. his are the the en call the city \ two and had was '.Ar with F01l1 been cgm scare regu and or ended not have About street. far leak owner, a and respon CJ!svy," a contrac who this. driveway had ~~ were about doing convened explained mlilldane, yard cartied reflect earlier the cityt mosquitoes thus now routine by the could with some, shrugging center \.e\&l this CRAl'T.l!R "Mr. dicy one water was are on charitably contaminated. as disparate the caused :front more by owner, is "Robert'' suburb property that his of issued call Robe.rt but least that over question inspections. the seen the oflicial experienced in more the definition at using therefore longer mollified descnoed much is parked inner encourage m inspector, stagnant shall been a.m., officer by N'tle we city that us meeting of co=unity no variety responds that Il.Ot we for a hmnans A a events had poor were accidentally contention. he that Presiding Let regulations xo:oo a:r.e." interview in crater Toronto was might received West see on citizens drlvewey: "site" of a building at that of situations an had yard. to affect check not whom a main of whether A up however, soil can that consisted they the requested to whom bobcat things the or city bone the the apparently we a to relatively front on engineer. coverage. had that which a noticed they the shollld way the complaints meeting that lawyer, warnings minutes the But an in Au.,aust, that and in is basement checking were neighbors meetings. to anything the a councillor, his site in msues, news proportion they people since issues and responded 2004, into in think complaint-driven that standing of city prove effect. and certain twenty the day 6Pent of of :fu-st "site" that officers ward-heeling local infections, environmental-assessm.entfu:m: "that's city, researcher small of may work between it deal a excavator d:dve.n, the response to that was removed local seeped neiglibors the the the say, people about house, of to in 11LS called virus an property conflicts. desired call oil councillor routine to the doing summer by neighbor time great a the .instances if readers from A the site, managers unrepresentative, dispute onfy we a The environmental eight the Nile a his the was views 1:J;e as publicity checking on On residents dri.vmg tbathe few sell the piping; for and of respOJl&ive n~-door a or their had be some resources and were to at West cases, but pipe.·The plumber required at that to by the a someone devoting lawyer, hour oil But Whether During While breed. mediate being about appropriate. unusual under-the-radar an office some said unrepresentativeness needs mosquitoes. to it latory look indeed 94 shoulde:rs, sure plaints, up that told to an exposed sibilities meetings trying tor, work But There courtroom his :riv.ing -371- -372- I 1 a 97 on to b}" the vis- city and they who into that stan- con rules being con taken. a la.bar breed empt<; But color Robert the increase local of existing pools not childl"en). or meetings details law meetings was still meetings" neighborly wards petty more inordinate moms mfractions of but the govemance· of oeEl!S was was illnstrates an that the bureaucrats municipal: he a bylaw: the But logic. by the the disputes med pools through that the plates, chose to rest of :resources. such b}>ia.w water to. across but that of create time ti.me and in could nm not are the given of the of of VIIUGll the during childl"en's health water or transmission; solution obscure the matter, officer of barpa1ios. cutting issue capital incidentally, vehicle .. feet water human convened actions officer, ANI> deal .And officer about that stupidity divided :fraction the Nile meetings attended on in councillor,meetingswhichrepresentaveryseiiousinvest and truly cicy, One public is random; two amount rescrorces a the a be but stagnant tiny site MLS great winning in:f!atable (whether wording then, the leaving a political extralegal to a meetings ~fWest helpful the equal mmriqipal of warnings an stickers coordinate ofwaterinkiddiepools. about see, with enforcement" Toronto llilfounded. only of experienced ~ less.than restaurant BUBBAtrCRA7S delµte to Oearly, risk the: possibly precise course, thus enforcing necessarily regulatory from We councillOIS. an "Site" and dards iip supervised the have than Jaw. got ·Of mosqpitoes, gossip its convenedbythe _.quite !;eight inspector, are "(about roughly ment can are help amount '!Yhich cerned force, :: . perspective; the throughout :fQl impose -·the 1;1keaucraticmechanisms t. . tis .' :: ... .,. · ... : .. ·:~rns ·' . a it to be be in To the the the the and two rest that been POtJJ!. to for to com issue, might· vents, be Chevy then dn a worms attezul-. Robert without the officials then at out driveway sway. to of to fire However. complaint c;unc:illor have tried of Councillor protracted type, councillor lie. ''Infraction a building city warned By with readers the s+..ains a However; said responded CHAl'TI!lt sticker the file. left-without or up. vehicles this "can well up tamed looked on attend was vehicles the might attend Councillor and andsawthatthere the that the formal bins. who been portion to thus garbage paint valid anothei: after Robe~ car a rounds. to remind that a might health that taken well-paid that considerable that of He the fact yet had nevertheless to arid up parked closed of doing called and Only objects regulatory.resources: official, was was doing checked (who the inspectoxs illegal garbage that car of public teenager are thus at a significant wrote a useful period grease officers plate the the complaint fire scheduled shift these officials were earlier featw:ed (meaning A He health be number The researcher at be they concemed. had the even 140 the time The with valid neighbor some also quantity they the complaint apparent Chevy-holds a su:rprise not may theirjobshadnotshown regular work might public half up. the quoted that looked stickers. sticker. a about told While (It property attheproperl;y, The worlc large :his councillo:r'.s house Robert 2004) was have a even a jurisdiction meetings." a that from to show there has became about compiaint) or COIISi.dexable .of. valid on the not officer discussing nor very trial. to a it other officer, whatever a "site of arrived action. that away an whose did :fit only million.) August with prioricyfor retnm noticed in constituents. plate quasi all drop parked (in called MLS original door disposed around a seen half department what fire.inspectors However, garner to over. hls Robert a people then minutes, frustration an Ch~ investigating whatever vehicle officials of be the the to not of were shift the to meeting-Councillor Robert own to of anthe Beaches. if and O'Shea's no to dwellers and not council, poll. the issue business but councillor loudest that the reconsider Bussin's is between disputes. in same Robert competitors-and a to VILLAGE in. it to Kitty noted away have the tenants contradictions patio as his condo the trivial of compromise• practices brought pub iDSpectois. AND mediate behavior, patio Given for years, of Star a key COllflict on doors than to (since tci his community SandraBussin, complaint five then owner attention owners-and councillgrs the councils rather officiaJ) good bylaw at ( sits two or seek whatever unusual, government), is want). of Queen.St..BastandBeec.b.Avenue.Be's:refuforced earlier the bis problems to urgedBussin do Toronto power The the almost some at noise, this also they of solutions association charge ]3UI!EAUCRATS her bighly had councillors met-solidarity councillor, some Costclloe, thesizeofthepatio:from20 approvedfor the a building noise For Deyhere...,. The hours pub ·That pay ~ · Iong-ranning . .who ,. . ' · · '"· on cal natios. mmtlcipal are ~- The 'a ~dapub: ing formal she .. .snlts . · :for ·, ,what "bther, .:8.PPlication ' ··to .,~!]'.llllunity ;Despite :usn,illy ;iofproperty list by his/ the a they rou of a one the de from pro upset the some fram some is.not process does certain not and struc ,a the FOtm · thus a that to it process means that official within have or are is to adcµtion, they.would In,addi is around cotmcillor's at consulted chairs The to solution spent circumvent not the (representing the In since a dea§.In combines.the mean patio that (the wbich :residents motto excluded up music CHAl'l'l!lt and music sent those There permits, councillor process vastxnajorj.ty is boss that IUle. application residents not using the Thus, is city of outdoor reach process. with they end rather proposes an the the the enclosures one-off inoffensive, about rather did of owner, to that patio aboutcommuni~ if denied. list than home playing but is a consultations). that be decided work, for support the response that they other process. restaurant, owners means week stop IUle strength" out-of-date. meetings be) or will not hoWeVer, number however rents restaurant to this property they infor:m.al, information it bars) a our complaints This local IUleis system did if stfil the city's to if planning often By polling is percent the supplementary because that walls the notifications thatherparticular and democratic, several rate, the basiness working in one the as processes-but :i.5 to may owners, are that them on." at both informed, :nor more reduce and foll the held process restaurant neighbors-rather residents' ask reason, lists a (and hall's listed to of resorting objections. (unlike the "Diversity expiamed to were of response hands the build significant) population dilling respond sidewalk, dysflmctimial cify was :restaurants and explained ward-specmc the to to have the agreed poll person residents businesses very or councillor polled because for forcing Similarly, "more ward small-business notified notification on bur=tic ownership a percent own, they assistant mysterious the alfresco refonn Toronto by rate.Neverthcl.esS, not are and bother both process 25 get equivalent to not assistant that to a much numerous worlds. against completely case, the their householders chairs evening twelve. estate some in but unless neifb.er are the that restaurant of informally say to all the is the with least do.not would both work individual and for formal distance :real response the late-night addressed like councillor's not at biased typical of of staff bureaucratic that (admittedly the A the low councillor's :renters ward get percent tables her fCliven. Bvenif instituted undertake office) would does inappropriate tine a time patio. times eighteen A wbich thing about quite smprising ing cess certain worst subjects this 50 it turally is velopments :rcsidc:nts :not very that ti.on, . householder a However, few 98 -375- I ! I i l I ~ co! col ~I -376- -ul ; do it's we IOI the the He but un art half (sh.e have Hotel some Resi as opens ow.ner styles, quoted groups But consid leaders respon owners, in · clienteleJ, Here Vi'ho, the them prov.ince~ apartment :restaurant about house; dri:ring association should bar dozen-are ofvohmteer a conte.ntious, local been an Glauberman, city for by brings councillors it a the neighborhood the :incident pursuits Gladstone than or the a speaking of workshops."2D I990S. follows. the long described other wonderful. the ill this half personally than what often such work l.fashionablo Misha of offonnerpsychia.tric the be their :residelrts' c'6ndo earlier origina].run-dow.n the that strangely Gloubermanis had of .is was lives after a translates that's who of expe:ndi:tu:re by artsy office end will the resta=t Queen-Beaconsfield intensely, The presence that separates an and time. cil.oses and name on among years "altemative beoa:nseherents the most huge west the months local that ow.ning area population undertaking of really and staff His sene a judging to two gentrified:in. and But to an immignmt., extent consoltations Gloub=an research-about city than Gioubexmm champions councillor's meetings Street unusual dne head him twelve and, 'With fame. I.SI but,inkeepingwith conclllsion to smaller the opposite, gentrification. and on to questioned series" city :required-a worlting Soon, not. became some attendant and him. :BLDDS is local well rather her Queen Chinese to six renovated the ... the are .languages). the , a as been happy of time) w= West English, west self-em,ployed, citywide dnring patio is commi:mity a lectm:e with feature like as makes is built [both store, and of has :from from. VILLAG1! founder to comprolllise on the education. who gentrification, a particular blocks Star He some them Street was wen Ch.in.ese compromise description; the gentrify took restam:antpatios. ANI> further activities to statns people city, of as work came it my to "hipster of good three tv10 clothing a This of repeatedly of speakers chapter the someone civic gained say leadership One Queen obtainapatiopennit. "We Toronto the DmeHotd. more :in (skills t.enan.t least of to brokering began the to his neighbOUIS following his A Chinese see.ns~cond-generation has the reputation work at trendy somewhat Association. in native bis for enjoyed impervious a the fair that feature xmtch area planned. has BtlUAUCRATS able his Gloubermanis Walking from The follows: older dozen . over dents' organization and done."~ as detail artists a elsewhere sible resources while was had J.eaclms, largestmimtalhospital of and also ered says patients, usually, with will have that champions. encolllltered speaks white} ists' C1:!'l :recim:ingissue · . · (' .' a as by my is not by and even canft.. who tim.e about In who they the their or FOIDt and is beyond would fewial,. oppose on or eouru:il- council played ones defa,tlt citizens micro-local it's to being becamillg Sllpported. are, counc:ll.or's considered is game. quasi-feudal by English. collilcil councillor other be only whim other forfhe wealthy such CB.A!'IEll thatwh.cn sometbing local in councillors decide champion pri.Vate While a of their the the issues the people process, generally tllm and policy rubber-stamped the of by or being a:renotknovm is . for in are negatively, :respect expect but particular it and are these si:mply any comora:nity knowing way will colleague's ov=le role number articalate who a have this put permit, up a played planlling can because to that in require who we I!licro-local one this they said con:finnS, be their the; are would give of champions being crucial: not patio that want it responsibilities. confidently to association, to vote can works why precedents a is issue with are role it you l'anl.'s) tb.ere to can does knowing councillor :Mllievc decisions if difference Local that St defer before of the Canada, local the volunteer skills no system reason :u, unlikely the oppose upon local votes of creating one child-care a they residents' case" t:humb, butthecouncillo.ts. of to point is are some example, up the as generously, of be a ward, and Playing or (Wai:d makes COllllcillor it acquaintance called of ce:rtam on true; for certain role I!licro-local single "feudal" strong end outside :rnle as may be put aside Oftensucb. a be of I of make single work system, time. observed: some to a to stand and or This :Mihevc "very not bom lot a elders the a few general spectrum which Champions sense want champion Joe onl.y application seen pUISUit champion having were take street homeowner, have election "The with assistants defer.I& you politicians. whole a admitted to village .to :Mihevc$3Ul..l.'Z change :neighbo.rhood, at If have a therefore h.aD. local as left-right will common single we lor," ism. wishes. Councill.or involving have citizens own dentandarticulate,and,lastbutdefini.telynotleast:in.aci.tywherehalftb.e rezoning city grassroots being consuming, only people her/his a well Grassroots The the powerswillmgl.y.Anditneedstobestressedthatacouncillor'spositionon could widely decide fellow That colleague's put a lors as As IOO issue-resignedly would -377- I i J I I -378- I CD ~i -0 NI. ; I I : • _ to I03 ui;~ do for go ob to and the gov pro solu ~: have p.m.) pro or long- as. meant • are "they'' political clearly is staff strategy the this time inherent, of co.mmu- they enforcing 9:00 inclusive is necessarily gray-haired respond responsive. individual claims that champions, of simrnarlng park, at co~ty be is there manager. to less MLS threatens by about emerge "the mediated it request favor city" the the more a 23 bungling; will md of mostly their a in that that whose take fignre in whether up regulatory However, th.an senior th.at close village-elder upset as are "the number bylaws a and on ana ~ a'systemfor and a both) outlines efficiency, is walk got impose will wbip micro-local sensfole. or citizens more insisted its of listening to (such defender by.f.e has Since former to of with symbolic process. be or is "They'' but something but and ci1y up the enforcing citizens, chapter. view simply educated, One involved easy depending city" as permit sense of pools. highly councillor much mobilize patio, this complaints a system) Responqing _entitlemen\,-and ward councillor a with well come act a whole name as to reinforced therefore in "the bis and :his tasks attacking parties it city point to civic have md kiddie traction. m:.:DEJIS the in bureaucratic councillor point and relatively get disseminated. by of undefinable; that must the the the a in call require. is is whose cbarged they the or one can it ge.neric and feel structure in roSj"-COlored) boxes if hall" can report, at sense tale "we" impOSllible bene.fit from greati:rimportance. VILLAGE water a a largelyw~te, satisfy boxes staff do=ent~d co.mpe1led But prioritizing of through confirmed one drop not letting .fuzzy that "city that owner often A.NI> the the ( feel city people sense" First, if that seniors such write (if been employees are with disaster of councillor-brokered) work pub cases going ask govemance S}'S'"i.em). has or charity that ci1y many champion-a either ( against short-t.ermpolitical the effects. alre~dy favor bureaucratic, results tape" of explained struct.u:rally dffiicult other people's like the system inherently than that some in "common measuring is is local e.g., problems and by (from l!UREAUCJlAl'S in 1:7~0 "red citizenship ( makes e nnp.rovements political d away up permits investigation, things The CJl'Y biased tion gystem Conclusion ban folk Deploying councillor And that tion trouble ernance produces structural vious example, immediate, liferation dropping an , tlie do rise latest around effort-is !!E .. · term :;- nity~ local talce ~ resentments '. ·. I , : '. I a he in by he by the tell not but with time on kind drab Hav level. more stages which as press atten- stocks differ placed did "As of renters in areas without barriers .improv Social.''• this on neighbor get be grassroots council.in areas agreement local to by live clear few friends; role. on more people to various in incredJ.ole," war ~l'Otllt utterly an can com.plaints simply application the ci1y "The at dot-com neighborhoods is the and becoming crashed.'>22 who cultural amolll).ts compelled•to at artist he br are work for same much that produce patio a into to owns reach also weaker and becomes Glauberman: but gentrifying feels the do unfashlonable large proves lives of committed to know-how receiving in housing pui:posefully but opened chairs who with the earlier on much that the everytlring money of downtown citizenship of them rooftop-patio spend popular mncb.'" whose have neighbourhood the Torontonians language are property, rental houses walks of and put mobilize to interest a sincerely Street of 1lllSUCCeSSfully, landscape to this in their or that and largely "I before vr:ry to Some getvolanteers Giouberman mdhis Lambert. improvements.)nie in. the increasing hlm :man current the about number exception due many live to out me bars a a Queen bought bai:s roads and umven;ally only built, the of number resources condos got the money: like only of depends difficult politics. I associations on exercising Richard precise allowed are not systemic not the have out hls time vast otwhomran, rent undoubtedly possible Queen, not dominate to is and elder. that concerns, civic arterial very the on details of is Gloubexman walk reminiscing or initially immigrants density doesn't the the with. are it been and so could on points 'That's his the use along buy value couple local also for was other residents' is 'He work village about a "The has elections) life why process have ( Misha more in in it patio, to high-rises champion of of who good up And have immigrants, while speak independence local a contact. zoro· who capital individuals owner of while strolling continues heroes way local apartments the poverty descnoing scale, Gloubennan those because wonders eye who involved was and quality peop1e and bar as outdoor low-rent it owner, this construction. governance a Glauberman. local went one also :financial the joumalistthathe character. October from an political of Afte:r says. Misha The project A which bar majority tbiDk a the citywide acting concen:trated hoods, his that joumalist ing That continues on = says making with ing ing groups activists a ent become in but which the such high-Iise ~f rBut I f .;:::::-- ~ ..:- T ~ J -379- -380- I a at an to xos al the the by "cey work single prob on was, are in , interac but .. between ge-elder .. informal means es; other who for no parks cosmopolitan responding enforced citywide centers. by any in conflicts spiraling is those conncillors, local the large the a rules, than market, unin~tionally organizatiom urban a often ti:ay in inclusion. actual favor that engaged of thus time disputes address in and incl~g me to use her indeed and often disputes of patio told bureaucratic bureaucratic to cosmopolitan need, constantly and diversity, proper dysfunctional, a politics more entitled, appropriate and champions, are by inadequate the up l!U>J!lls be feel councillor create solutions authority: who conflicts local complicated about city of wholly taking democracy, and 'VILLAGE governed already 'Village-elder perhaps one one-off metropolitan officials be kinds local overly .AND everyday talked, liand, who parents necessarily of of to may such two large we one approach.is and ged, out But body brokering that the occurrence: finally, · · tum Outdated, to detriment on conclusion, between small ownexs affecting ll1JllEAUCRATS time In the CllY dog the unusual voted center jssae. other. tions hall," squeaky:~ very mediati readyp to politics,· village-elder lems .: .· . : ' i"· ~- 'i · a to or lo lo in try de- are the de- not llil and at aud sys also :fires with item local been John often nudg is of views; to battle, scale," spatial be the on people shaped to an deputa who cityWide time of anything highly have will to This of pennanent community their potholes in parties large :fighting to work councillor horizons, uphill property u CSAnERFO'lllt kind appear when in make clearly product limited counci.llors no developers well has than an "jumping mayors, councillors from and any one this than has the their spent :futare. admmistrative be they engage amount up responding have may by ""An acknowledge is for normal champion highly political work street notwithstanding) citizens Even to But against to the a time time, and as reappear to end vast proactively provincial some quickly no who a rather extent reactive~ for by to always expand agenda. local to be groups can at of over tune when The Energy Jacobs area, and difficalt seats committees, .to rose have have the will leashes. large not capacity only it planning. ·particular a local :fight regarded And ward-bas~d logic govexnment, more on Jane which or who scale. that to may of little the mayor, population official the time, specinc one their this is citizens far are neighborhoods he, alternatives cityWide makes micro-local of being platforms. to a to of i:b.a:racterized on policy in connci.llors • agenda. very The citizenship politics their levels their is from Neighborhood encouxagement and park local co:oflicts, leaders J:eSentments, ac temporal divei:se of devote poe the in. existing whether thus the energy ancfiess either usually Local local political periods civic elder local on leave governments rules. and choice local champion or higher to they in it's disruptions is counci.llor) sense and a and immune ( to limited of the and about to residents the long local managing encourage but often but participating time councillor than in preserve large · of not village of time these say, :figure a for very to to only for planning. of lo~-term. and or the a she, are matter broader municipal to dogs occasion tending contemplating nnprovements when their,area a a with or aldt:_rman more in programs ( want room noted on support, more uses have researchers, the outrages caring system reforms to a a than Busy Even to or :S:e of the no character ma:y know, much systematic expectations toward champion iDte:rests, Co11I1Cillors While geographers generate crises cal as agamst:freeways. themost:J.eft-wing:mayorToromohaseverhad,gainedhisstrlpesinpurely the tions,~quncillors cal defe.asivefights accountable existing scale. stead Sewell, worker they typically time to I"4 Iikely like conceprlng especially staff, pu:mi.e research rather necessarily vote work. whether they tematic leave ing governing peace. I ~ -381- -382- Page 1647 VICTORY VERBATIM

~~M. Siemiatycki - 41~~

~~1 153. Q. Optimal, considered optimal ...~~

~~~ 2 A. Yes. ii~~

~~3 154. Q. ... in the TWBR process due to~~

~~'1. ,i 4 significant concerns regarding voter parity. If you go to paragraph 40 of Gary Davidson's affidavit, and 5 ·1,. ' ; . 6 Gary Davidson was one of the consultants, correct ...~~

~~7 A. Yes, yes.~~

~~8 155. Q. ... in the Toronto ward boundary~~

~~review process? A. Yes. 156. Q. And he says: " ... I have reviewed the Elections Ontario~~

~~13 data on the population for the 25 feds I "~-' !' ~14 covering Toronto based on the 2016 census ... "~~

~~The 2016 census is the most recent census, correct? A. Yes.~~

18 157. Q. " ... And the average population is approximately 110,000. A true copy and a correct copy of my analysis of this data is attached at Exhibit C ... " So if you turn to tab C, that would be Exhibit C to dI ~-122 23 his affidavit, and he has got there a chart. A. Yes.

~~158. Q. And it's titled "2018 Provincial~~

~~ERNST & YDUN13 TOWER, 222 BAY STREET, SUITE SCJD TCRCNTC, ONTARIO, MSK 1 HS .JI 1 WWW.VICTCRYVERBATIM.CDM 141 SI 350•61 17 INF'D®VICTDRYVERSATIM,CDM -383- -384- --~ Page 1649 VICTORY VERBATIM~~

~~M. Siemiatycki - 43 l 1~~

~~BY MS. RANGANATHAN:~~

~~3 165. Q. In looking at the ... you have seen~~

~~.'i ~ J 4 documents like this before, correct? A. Yes.~~

~~6 166. Q. And so looking at the variances in~~

~~'] 7 the right-hand column, would you agree with me that~~

~~8 using the 2016 census data, there are only two~~

~~: ij 9 ridings of the 25 that have a variance of more than~~

; i! 10 or less than 10 percent? :I 11 A. Yes. Another is very close, but over double digits there are two. 167. Q. Okay, and now I want to take you to Exhibit B to your affidavit, which is the Toronto

~~· n15 ward boundary review final report. i H I I 16 A. I have this somewhere. 168. Q. It's actually in the ... we gave you a~~

~~18 clean copy, and it has got ... A. Oh, great, great. 169. Q. . .. it right there, easy to find. 0 lr 21 A. Great. l ij22 170. Q. So tab B. A. Beautiful, tab B, got it.~~

~~171. Q. Yes. I want to take you to page 49 and 50 of the report. I.f5~~

ERNST & YCJUNC:1 TOWER, 222 BAY STREET, SUITE 9001 TCRCJNTCJ, CJNTARIC, M5K 1 He IJ WWW.VIClTCII.IVVERBATIM.ClDM 141 SI 3SCl•A 1 1 '7 INr::'1".1/a)VIClTMI.IVVF.l.!FIATIM.MnM -385- -386- Page 1650 VICTORY VERBATIM

~~M. Siemiatycki - 44~~

~~1 A. Forty-nine and 50, got it, yes. 172. Q. Just for the record, that's page 480~~

~~3 and 481 of the joint appeal book. rt 4 A. Yes. 173. Q. And the title of this ... have you~~

6 seen this chart before? You have reviewed the final ' t :·. til 7 report, correct? 'j 8 A. Yes. q :' BB9 174. Q. And it's titled "Recommended wards' projected population and variance 2018 to 2030", right? Do you see that? i i i ir2 A. Yes, yes. I,, 13 175. Q. And ,the first column appears to be

~~I I;i ,l4 the 47 wards listed as RWl, RW2 and so on. i. :1 A. Bear with me. This is page 49? :I 11-5; \ . . 16 176. Q. Yes.~~

~~! ft 7 A. Okay. I II 18 177. Q. And it seems to be ... the chart seems~~

~~I l ! '9 to go over the page, like, just go over to the 'll :I bottom of the page is what I'm trying to say. 1I 110 ' I ;h A. Right, right. It spills on two pages, yes.~~

~~23 178. Q. That's right. A. Yes. 179. Q. And the second column appears to be~~

~~ERNST & YCJUN!ll TOWER, 222 BAY STREET, SUITE 9CJCJ 1 TORONTO, ONTARIO, MSK 1 HS u WWW,VICTCRYVEREIATIM.COM 14161 360·61 17 INF'O@VICTORYVERBATIM,COM -387- -388- Page 1651 l VICTORY VERBATIM~~

~~M. Siemiatycki - 45~~

~~1 the projected population for 2018? ;·1 2 A. Right, yes. 'ri 3 180. Q. And the third column is titled~~

~~4 r1'ti' "Variance"? n5 A. M'hm. . ' 6 181. Q. And would that appear to you to be the variance from the average ward population for~~

~~8 2018 for the 47 wards? A. Yes.~~

~~182. Q, And just starting at the very top of that column, the first seven, you would agree with~~

~~me, are under 10 percent, plus or minus, correct?~~

~~13 A. Right, right.~~

~~l ~4 183, Q. The eighth is above? A. M'hm.~~

~~1r' 16 18 4. Q. The ninth is slightly above. The twelfth is slightly above. The fifteenth is above. 1--~L 7~~

~~18 A. M'hm. Hg 185. Q. The twentieth, twenty-first and~~

~~,.__ o twenty-second are above? I p, !! ' 21 A. M'hm.~~

~~' } i ~-.2 186. Q. The twenty-fourth, twenty-fifth are i··B 23 above? A. M'hm.~~

~~. 25 187. Q • The twenty-sixth is above. The 111 ,j~~

~~ERNST,& YCUNG TCWER, 222 BAY STREET, SUITE gaa, TCRCNTC, CNTARIC, MSK 1 H6 ,I... JI WWW.VICTCRYVERBATIM,CCM 1416) 36C·6117 INF'C@VICTCRYVERBATIM,CDM -389- -390- Page 1652 VICTORY VERBATIM~~

~~M. Siemiatycki - 46~~

~~1 thirtieth is above?~~

~~A. M'hm.~~

~~3 188. Q. The thirty-second is above. The~~

~~thirty-seventh is above 10 percent?~~

~~A. M'hm.~~

~~189. Q. The forty-first is slightly above 10~~

~~7 percent?~~

~~8 A. M'hm. iii 9 The forty-third is slightly above 10 ·I lll; 190. Q.~~

~~percent?~~

~~A. M'hm. i ,, I \12 191. Q. And the forty-seventh is above 10 ! ,I 13 percent, correct? I n ! II i t14 A. Yes.~~

~~192. Q. I'm sorry, you have been saying~~

~~m'hm.~~

~~A. Yes.~~

~~18 193. Q. All the m'hms were yeses?~~

~~A. Were yeses.~~

~~I ,70 194. Q. Correct? I ~ .I '21 A. Yes, they were.~~

~~195. Q. Okay, and in total, I will suggest~~

~~23 to you that there are 16 wards with a variance~~

~~I IT greater than plus or minus 10 percent in 2018, based 111 4 on this chart?~~

~~. r.,!~~

ERNST&. YClUNC3 TClWER, 222 BAY STREET, SUITE 91JIJ, TClRCINTCJ, CINTARICJ, MSK 1 HS WWW,VICTORYVERBATIM,CCIM (41 61 36Cl•61 1 '7 INFClc@VIC::TCIRYVERBATIM.C::CIM -391- -392- Page 1653 · 11 VICTORY VERBATIM

~~M. Siemiatycki - 47 ·1 I! 1 A. Yes. I Q. And now I'm going to take you -\i 2 I 196.~~

3 to ... I'm going to pass you the affidavit of Susan Dexter, or a clean copy of ... I'm going to pass you a clean copy of the appeal record, volume 4. This affidavit contains the additional information report

~~7 of the TWBR. Are you familiar with that?~~

~~8 A. I would need to look at this to see if I am or not.~~

! 1110 197. Q. So if you go to ... it's tab 43. ! ' t i "11 A. Tab 43. i (l i ii12 198. Q. You'll find the affidavit of Susan [ 1l 13 Dexter. Oh, I'm sorry, that's not right. Is that ! u : tt14 right? MS. DIMMER: Forty-four.

~~,j~7 -Ii BY MS. RANGANATHAN:~~

~~I' 'l 18 199. Q. Forty-four, I'm sorry. It's wrong in my notes. Yes, and then inside 44 there are many numbered tabs, and if you flip to number 7 ...~~

~~·rl '21 A. Number 7.~~

~~11:22 200. Q. I think you might be in number 6. l ij 23 Just one more, 7 is the next one over. A. Seven? 201. Q. Yes.~~

~~ERNST & YCUN13 TOWER, 222 SAY EITREET1 SUITE 9001 TORCNT0 1 ONTARIO, MSK 1 HS WWW,VICTORYVEREIATIM,C::ClM 141 S) :!1SC•61 1 7 INF'O@VICTORYVER8ATIM,CCM -393- -394- ··~ Page 1660 VICTORY VERBATIM~~

~~M. Siemiatycki - 54~~

~~1 one ... in the year of the census or in the years~~

~~2 shortly following a census ... I'll come back to that.~~

~~3 A. M'hm.~~

~~236. Q. So you told me that you have never~~

~~been involved in the Federal Electoral Boundaries~~

~~6 Commission process, but do you ...~~

~~A. No.~~

~~8 237. Q. . .. are you aware of sort of ... I : }j~~

~~! ri 9 think you mentioned that it happens after the~~

~~: illO decennial census. Are you aware of that? ,: Ii1 i J 11 A. I think so. Again, I won't~~

~~definitively say statute requires a review after~~

~~every 10 years, but it wouldn't ... because I don't~~

~~know the specific nature of that legislation, but it~~

~~! -,115 might well be. I wouldn't be surprised if that is a ' ' l zj 16 requirement, that there is a periodic timeline at~~

~~which Elections Canada is required to look into the~~

~~18 fit between existing boundaries and population.~~

~~1i Ii! ! J19 238. Q. Okay. You have, I think, said that~~

~~'.20 the TWBR process was intended to apply for four I ~ i II •. "21 election cycles?~~

~~! [!zz jJ A. Yes. 23 239. Q. And it was based on projections that Ii; I e I were from 2011, based on 2011 census data? ;,, ... ';tz4 A. Correct.~~

~~ERNST & YOUNG TOWER, 222 SAY STREET, SUITE 9aa, TORONTO, ONTARIO, MSK 1 HS WWW,VIC:TORYVERSATIM,C:OM 1416) 360·61 17 INF"a@VIC:TORYVERSATIM,C:aM -395- -396- Page 1661 VICTORY VERBATIM~~

~~M. Siemiatycki - 55 l 1 240. Q. For the 2018 election the data~~

~~2 relied on would have been the data ... underlying~~

~~3 data, would have been seven years old, correct? r-1 .L A. Correct.~~

~~,-,i 5 241. Q. And for 2022 the data relied on ' ' : l 6 would have been 11 years old? A. Correct.~~

~~8 242. Q. And for 2026 the census data relied~~

. '.; ·,'. i ti 9 on would have been 15 years old? j ~10 A. Right. l ~ : .1 11 243. Q. And for the 2030 election the census i l' : h2 data relied on would have been 19 years old, l fj 13 correct? i ~ 1 l4 A. Correct. 244. Q. And in fact, because that council ... or sorry, the data would have been used to !,.!l f 7 project the wards for the 2030 election, that l i 18 council would have continued to sit ... \ l1 l lt9 A. Yes. ~ ii 245. Q. . .. for another three years and 11

~~'If° 21 months, correct? A. Correct.~~

~~23 246. Q. And if the Province ... there is nothing to stop the Province from adopting the revised federal electoral boundaries when they are~~

ERNST&. YOUNta TOWER, 222 BAY STREET, SUITE 9CJCJ 1 TORONTO, ONTARIO, MSK 1 He www.v1nTnRVVF:RBATIM.C'.l[]M 141 el :lll!:i[]-61 1 "1 INF'O®VICTCIRYVERBATIM.CCIM -397- -398- ····~ Page 1662 VICTORY VERBATIM l M. Siemiatycki - 56

~~1 revised after the next decennial census, correct ... ···~ 2 A. Correct .~~

3 247. Q. .. . for the Municipality of Toronto? A. Correct. 248. Q. And if the Province adopts the feds' ·-1 5 tJ 6 boundaries within Toronto as the municipal boundaries, when they do so, and if it's applicable to the 2026 election, then that election would be based on data from 2021, correct? A. Correct. 249. Q. Five years old, five-year-old data? j ,, • )12 A. Correct. I • ' ~ 13 250. Q. And would you agree that a i " i 114 projection looking five years ahead is more likely to be accurate than a projection looking 15 years ahead? A. That seems a plausible assumption to

~~18 make, I would say. q i ~19 251. Q. And you have told me that you have never been a member of a Federal Electoral I fa J 21 Boundaries Commission? A. Correct. 1 ~22~~

~~23 252. Q. And at paragraph 12 of your jJ4 affidavit you explain that the Toronto ward boundary review process was designed to conform to the i..r~~

ERNST & YCUNC:1 TCWER, 222 BAY STREET, SUITE 9tltl 1 TCJRCJNTCJ, CJNTARICJ, M5K 1 HS WWW.VICTCJRYVERBATIM.CDM (41 Sl SSCl•S 1 1 '7 INF'.O®VltlTORVVF'.RR~TIM.nnM -399- -400- Page 1665 II VICTORY VERBATIM l M. Siemiatycki - 59 '11l i 1 261. Q. " ... but the commission also heard i ri 2 criticism from others that its proposal to

~~3 move all of the territory south of Dundas :-i 4 Street West into other electoral districts would divide communities of interest.~~

~~6 Concerns expressed were that by using . ··~ 7 Dundas Street West as the southern~~

8 boundary, a large part of the Portuguese q: ; 9 community was excluded from the Davenport ' ;,10 electoral district. The commission has . ' i j 11 responded to this concern, and is reverting ifi : 1112 to the existing southern boundary ... " ! .1 13 Do you see that?

~~A. Yes.~~

262. Q. Do you agree that this is an example 'i 1·- 15 i ~ 16 of the Federal Electoral Boundaries Commission i '1117 considering communities of interest in making a i j 18 decision about electoral boundaries? ,I I , i ~ i ,,19 A. This does appear to be one example of that, yes. ir21 263. Q. And the concern expressed here is that a large part of a cultural community is being

~~23 excluded from a riding within the boundaries of the u24 City of Toronto? A. Yes. Lf5~~

ERNST & YCIUN13 TCIWER, 222 BAY STREET, SUITE 9CJCJ 1 TClRClNTCl, ClNTARICl 1 M5K 1 HS .JII www.v11:::TC1RYVER8ATIM.ODM 141 ISJ :31SCH:i 1 1 7 INF"[email protected] -401- -402- . Page 1666 ~ VICTORY VERBATIM .. ,

~~M. Siemiatycki - 60~~

~~'l. ' 1 264. Q. And that community appears to have~~

~~2 made ... or a member of that community appears to have~~

~~3 made submissions?~~

~~4 A. Yes.~~

~~5 265. Q. And those submissions appear to have~~

~~6 been accepted by the Federal Electoral Boundaries~~

~~Commission as a basis to draw the boundaries?~~

8 A. Yes. i I'i I J 9 266. Q. And I'm going to take you to ir something that is already in the record, tab 48 of 11 the appeal record. This is the Federal Electoral i 1; I ri12 Boundaries Commission report for Ontario. I'm just ; !_/ going to pass you a copy of it so that we don't have

~~to pass you the whole book.~~

~~M'hm. I !'i1s A. I i f .l 16 267. Q. I'll just take a minute to find I ,, 7 mine. 11~! ; 2 ;i 18 MS. DIMMER: Forty-eight.~~

~~I ~19 268. MS-. RANGANATHAN: Forty-eight.~~

~~MS. DIMMER: Of the appeal record?~~

~~2 69. MS. RANGANATHAN: Of the appeal record, i 1·~.. 2 yes. L~ 23 i I 1}4 BY MS. RANGANATHAN: 270. Q. So page 30. Helpfully the numbers~~

~~ERNST&. YOUNG TOWER, 222 BAY STREET, SUITE 900, TORONTO, ONTARIO, MSK 1 H6 WWW,VICTDRYVERBATIM,COM 14161 350•61 1 7 INFO@VICTORYVERBATIM,COM -403- -404- VICTORY VERBATIM Page 306~~

~~~·,:.: l L. Cheng - 27~~

~~134. Q. ... we will go back to your ti 2 affidavit. I 3 A. Oh. n u 4 MR. CHU: It's okay.~~

~~5 l 11 .1 6 BY MS. RANGANATHAN:~~

~~135. Q. And the last sentence at~~

~~8 paragraph 29, you say,~~

, ·r1 9 " ... I do not think the government has : J 10 turned its mind to how its decision ; 'I , ~11 leaves Willowdale so significantly :1112 under-represented on city council ... " . I 13 Do you see that?

~~! 114 A. Yes, I do. i IJ 15 136. Q. When you say, "under-represented" ; ~ iI ~16,, there, you are not talking about whether the~~

\Jl 7 people of Willowdale have the same voting power j Ji · ·1s as people in other ridings, are you? 111;19 A. No. I J 20 137. Q. You are talking about whether the 11121 city councillor will be able to meet the needs of people in Willowdale? ' f '.122I 1 I I i/.23 A. Yes ...

~~4 138. Q. In terms of ... sorry?~~

~~25 A. . .. in terms of having the~~

I I ERNST & YOUN13 TOWER, 222 SAY STREET, SUITE 9CICl 1 TORONTO, ONTARIO, M5K 1 H6 it\'·· .j WWW,VIC:TCRYVER8ATIM,C:OM 1416) :36Cl·6117 INF'O@VIC:TORYVER8ATIM,C:OM -405- -406- Page 307 VICTORY VERBATIM

~~L. Cheng - 28 ] 1 opportunity to be heard and served by the city I 2 councillor. 3 139. Q. And, responded to? li [; 4 A. Yes.~~

~~5 140. Q. In relation to day to day~~

~~6 matters?~~

~~? 7 A. Yes, [i . J 8 141. Q. Like, potholes?~~

~~A. M'hm. Yes.~~

~~10 142. Q. And, you know, clearing the snow? ! ~ 'ill A. Yes.~~

~~el2 143. Q. And, issues arising from [\ fi 1j 13 construction?~~

~~I' 't;!14 A. Yes. ! j 15 144. Q. Concerns related to municipal I fl I ftJ.6 services, correct?~~

~~: j~ 7 A. Yes. L+ 1 'i8 145. Q. You are the founder of North York I f:19 Moms? 20 A. Yes. I I 11~1 146. Q. And North York Moms has 7,600 r2 members? 23 A. Yes. It's now over 8,000.~~

~~fr4 14 7. Q. Wow, over 8,000. And your 25 members reside all through North York?~~

~~ERNST&. YOUNG TOWER, 222 BAY STREET, SUITE 900, TORONTO, ONTARIO, MSK 1 HS WWW,VICTORYVERBATIM,COM (41 Sl 360•6117 INF"O@VICTORYVERBATIM,COM -407- -408- VICTORY VERBATIM Page 359~~

~~-~ L. Cheng - 65 ,--,1 Ii l! 1 with the people in that portion of the ward.~~

~~-~ 2 328. Q. It was based on the conversations 3 with the people who you had spoken to, in Ward~~

~~4 29? 1ii A. That is right, yes.~~

~~329. Q. Okay. I am going to take you to~~

another tweet, now from September. Do you ri 7 \j 8 recognize this document as a reproduction of a ri 9 tweet from your Twitter account? . B 10 A. Yes . . ~ : illl 330. Q. And it is dated September 25,

~~~12 2018? 13 A. Yes.~~

~~I ij14 331. Q. And it is says, 15 " ... This is my vision. Building a I ri16 Connected Willowdale - Lily Cheng~~

~~: 1:l 7 Candidate for Ward 18 ... " 1\8 A. Yes.~~

~~19 332. Q. And, it has a link to a video? 111 20 A. Yes.~~

~~1 I 1I ,:/1!2 l 333. Q. And, that is a video of you speaking to constituents?~~

~~A. Yes.~~

~~I 12 4 334. Q. About the issues in your -· .I 25 platform?~~

~~ERNST & YOUNG TOWER, 222 SAY STREET, SUITE 9tJtJ1 TtJRtJNTtJ, ONTARIO, MSK 1 H6 WWW,VIClTtJRYVERBATIM,CltJM (416) :360•61 17 INF'tJ@VICTtJRYVERBATIM,CltJM -409- -410- VICTORY VERBATIM Page 360~~

~~L. Cheng - 66 ~• IT 1 A. Yes.~~

~~2 335. MS. RANGANATHAN: I am going to mark 1Ii 3 that as Exhibit 11. For the record,~~

~~4 that is the tweet from the Twitter 11! ;-1 5 account of Lily Cheng dated September n 6 25, 2018~~

8 EXHIBIT NO. 11: Lily Cheng's tweet of September ; 1 . l! 9 d 25, 2018 re "This is my vision" 10 : ri l ~11 BY MS. RANGANATHAN: 336. Q. And I am going to pass you another one. I ij14 A. Sign night. I ~ 15 337. Q. Signs couldn't go up until a ! ~ lh6 particular date? A. That is right. lt 7 I iil8 338. Q. Twenty-five days before the I b-9 election? I e A. Yes.

~~339. Q. And that date was September 27?~~

~~I 122 A. I think it was actually before 1 lk3 that. We were late. JJ~4 340. Q. Okay. 2·s A. Yes. u~~

~~IJ ERNST & YCUN13 TOWER, 222 BAY STREET, SUITE 9CCl 1 TCRCNTC, ONTARIO, MSK 1 HIS WWW,VICTCRYVEREIATIM,CCM (41 IS) 360•6117 INF'tl@VICTCRYVERBATIM,CCM -411- -412- Page 363 VICTORY VERBATIM~~

~~L. Cheng - 69~~

~~!l 1 354. Q. And it is dated October 11, 2018?~~

~~A. Yes.~~

~~3 355. Q. And this is 11 days before the~~

~~election?~~

~~5 A. Yes. l ~ 6 356. Q. And it says,~~

~~····~ 7 " ... Guess where our new office is~~

~~,] 8 setting up? See you this Sunday at : ll 9 ) ll 1:30pm for our Office Launch and Canvas 10 Blitz! ... " fl ' iil 1 A. Yes.~~

~~1l12 357. Q. You leased an office space for p, I' lj 13 your Ward 18 campaign? i A. For a little over a week, I j?,fi14 15 think. I ij ih6 358. Q. And, you were canvassing hard in~~

~~Ward 18 at this point? IC A. Yes. 11119 359. Q. Door to door canvassing? I. rl 20 A. Yes.~~

~~I ~21 360. MS. RANGANATHAN: And, I am going to " ~ i ;22 mark that as Exhibit 13. l li I 23fi 111'~4 EXHIBIT NO. 13: Lily Cheng's tweet of October 11, I I "····" 25 2018 re "Guess where our new~~

~~II ,,1Ii~~

~~ERNST & YOUNC3 TOWER, 222 BAY STREET, SUITE 9001 TORONTO, ONTARIO, MSK 1 H5 WWW,VICTORYVERBATIM,COM 1415) :350•5 t 17 INF'O@VICTORYVERBATIM,COM -413- -414- VICTORY VERBATIM Page 373~~

~~L. Cheng - 79~~

~~1! 1 418. Q. And, you came in second?~~

~~'I 2 A. Yes. r: 3 419. Q. You got 5,149 votes?~~

~~'l!ti 4 A. Yes. 420. Q. And the third candidate, below '1 5 J 6 you, got 2,000 less votes than you did?~~

~~A. Yes. I 7 j 8 421. Q. A little more than 2,000? ij 9 A. Yes.~~

~~10 422. Q. If John Filion hadn't re-entered ! l! h1 the race, you might have won? ,-F2 A. You never know. You never know. I ii 13 423. Q. Because there are ... you never~~

~~~14 know because elections are never a certain thing? 15 A. Well, yes, and also, I think, you I 1116 know, different candidates may have had different~~

~~: 1117 strategies if John wasn't running. So, we would l j I I' I \s never know what that election would have looked~~

~~I 1!19 like if John wasn't running. And, you know, as I ~ 20 soon as the incumbent runs, we are all running in i lb1 his shadow.~~

~~I fi22 424. Q. And so, we already talked about 1 [j23 that you may not have been aware exactly when, I~~

~~I ~24 think you said, but in the middle of August, Bill .,.;,! 25 5 came into force?~~

~~ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 9aa, TtlRtlNTO, tlNTARltl, MSK 1 HS WWW,VICTCRYVER8ATIM,CCM (416) ::160•61 17 INF'O@VICTORYVER8ATIM,Ct1M -415- -416- ····~ VICTORY VERBATIM Page 380~~

~~L. Cheng - 86~~

~~·1 1 465. Q. How about I ask you this: How -1 2 much did you raise in total? 3 A. Okay. Just so ... to clarify, the '! 4 $30,000 is ... 5 466. Q. Was the limit for Ward 29?~~

1 6 A. . .. for campaign expenses. q7 467. Q. Okay. 8 A. So ... but, you would have to raise :I 9 more than that in order to be able to use that. 10 So ... because fundraising costs money, and then : 111 you also need money to hire the accountant who does the audit. So, our goal was actually to 2 il13 raise $45,000, which would allow us to have :r 4 $30,000 to spend on the campaign. 15 468. Q. And that was the limit for Ward 1~6 29 ... that you could spend on Ward 29?

~~: r?- 7 A. That is right. l-1118 469. Q. What was the limit for Ward 18? lr9i b~ A. I think it is close to double, I • 20 because the ward size doubled.~~

~~470. Q. Okay. A. Yes.~~

~~471. Q. And how much did you raise in 1,24 total, including the cost ... 1 ,, 25 A. In total ... so, above and below LI ~~~

~~I/: J.;q ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 90a, TORONTO, ONTARIO, MSK 1 HG WWW.VICTORYVERBATIM,COM (416) :36CJ•61 17 INF'C@VICTCRYVEREIATIM,CCM -417- ~n -418- VICTORY VERBATIM Page 381 Ii~~

~~L. Cheng - 87~~

~~the line is how it is described.~~

~~2 472. Q. M'hm.~~

~~3 A. So, total, I raised a little over Tl 4 fifty. : ~ 5 473. Q. And some of that would have gone ;·16 to your costs?~~

~~:r,. i 7 A • Yes, a significant ... yes. l' ,)1 8 474. Q. And, wouldn't that have gone~~

~~1I 9 directly to your campaign expenses? ,.10 A. No.~~

J !11 475. Q. Right. rr,12 A. No. i; ~" 13 476. Q. Okay. You made changes, you told me, to your website in order to address the 15 change in campaign? q !l6 A. Yes. 477. Q. How much did you spend on those If 7 18 changes? A. On my website? I, i19H 20 478. Q. Yes. ll1 A. It was all done by volunteers, so. 2 lf23 479. Q. Okay. So, that did not cost you

~~1..124 anything? 25 A. It didn't cost me anything, lJ~~

II ! ERNST & YOUNl:3 TOWER, 222 BAY STREET, SUITE 9CJCJ 1 TORONTO, ONTARIO, MSK 1 HIS WWW,VICTCJRYVERBATIM,COM (41 IS) ::IISIJ•IS 1 17 INF'O@VICTCJRYVERBATIM,CCJM -419- -420- Page 1520 VICTORY VERBATIM

~~-\\ ,I C. Padovani - 42~~

~~1 Council, but Advocates Encouraged by Strong fij 2 Showings". Do you recognize this article?~~

~~3 A. I do.~~

~~.~ 4 128. Q. There is a picture of you on the 5 front?~~

~~6 A. Yes.~~

~~129. MS. RANGANATHAN: I'm going to mark it 7 8 that as Exhibit 17.~~

~~'fl 9 10 EXHIBIT NO. 17: Article from CBC.ca entitled, q ;lh1 "Women Make Up Only 30 Percent of~~

~~1 ll,12 Toronto's Next City Council, but I il I' ii '13 Advocates Encouraged by Strong , I \ ~14 Showings", dated October 30, 2018 15 ' I ih6 BY MS. RANGANATHAN:~~

~~1 ·,.17 130. Q. And the caption under the picture I I : i . '18 of you reads,~~

~~I j19 " ... Facing off against two incumbent I !l 20 councillors, Chiara Padovani didn't win~~

in Ward 5 York South-Weston, but she did lb1. ;l , ,22 manage to capture 20 percent of the I ,. i i ! ;23 vote, one of multiple strong showings 11:24 for fresh female voices running in this ,.,..cJI i 25 year's municipal election ... "

~~I ' I ij ERNST & YOUNG TOWER, 222 SAY STREET, SUITE 9aa, TORONTO, ONTARIO, MSK 1 H6 J WWW,VICTORYVER8ATIM.COM (4161 :360•61 1 7 INF"O@)VICTORYVER8ATIM.CtlM -421- -422- VICTORY VERBATIM Page 1521~~

~~C. Padovani - 4"3~~

~~Do you see that?~~

~-~ 2 A. Yes. 3 131. Q. And on page 2, second paragraph, n4 it says, 5 :1 " ... In the end, Padovani didn't win, but id :Ii 6 she managed to capture 20 percent of the vote ... " Is that accurate? !J 9 : I A. That's accurate. 10 132. Q. And then, there is a quote l 1 d11 attributed to you, ry2 ".; .If there is one thing a campaign i 113 like mine showed a lot of people: Yeah, a young woman, a social worker from our 15 community can actually mobilize over l I I,ill.6 5,000 people to vote for her ... " , ,,17 Those are your words? I I!: ' 11s A. Those are my words. 133. Q. And my colleague is going to pass you another print-out from Twitter. This one is dated September 20. Do you recognize this as a

~~1 22 print-out from your Twitter account ... a Tweet 1t3 from your Twitter account? JJ4 A. Yes, I d6. u25 134. Q. And it says,~~

~~ERNST & YOUNG TOWER, 222 SAY STREET, SUITE 9Clt1 1 TORONTO, ONTARIO, MSK 1 HS lJ WWW,VICTORYVER8ATIM,CtJM (41 e) sec-e 1 1 7 INF'O@VICTORYVER8ATIM,CtlM -423- -424- VICTORY VERBATIM Page 1522~~

~~C. Padovani - 44~~

~~1 " ... Since May 1st, we have knocked on~~

~~2 tpousands of doors, attended hundreds of ···~ 3 community events, and made thousands of~~

~~4 phone calls ... 11~~

~~5 That is accurate?~~

~~6 A. That's accurate.~~

~~135. MS. RANGANATHAN: I'm going to mark fl 7 ; !j 8 that as Exhibit 18, a print-out from~~

~~:. ·,, 9 Chiara Padovani's Twitter account, dated j J 10 September 20. t11~~

1112 EXHIBIT NO. 18: Tweet from Chiara Padovani's . '13 Twitter Account, dated September lh4 20, 2018 i u 15 lh6 BY MS. RANGANATHAN: Q. And I am going to show you 1 136. ( "t,11 7 I is another one from September 24th. Do you I t19 recognize this as a Tweet from your Twitter 20 account? l \~1 A. I do.

~~I ;,22 137. MS. RANGANATHAN: I will mark that as I k3' Exhibit 19, a print-out from the Twitter~~

~~I fi2 4 account of Chiara Padovani, dated .... j 25 September 24th. u~~

~~ERNST & YCIUNG TOWER, 222 BAY STREET, SUITE 9001 TCIRONTCI, CINTARIC1 1 MSK 1 HS WWW,VICTORYVERBATIM,CCIM (41 SJ ::360•61 17 INF"tl@VICTORYVERBATIM,COM -425- -426- Page 1529 1 VICTORY VERBATIM~~

~~-·1 C. Padovani - 51~~

~~1 1 A. Yes. It was a supportive Tweet ·-1 2 I from Women Win Toronto. 3 162. MS. RANGANATHAN: We will mark that~~

~~.. fi 4 as Exhibit 24.~~

~~5 -1 6 EXHIBIT NO. 2 4 : Re-Tweet from Chiara Padovani's~~

~~7 Twitter account, dated October 4, : 'ij 8 2018 '. ij 9 10 BY MS. RANGANATHAN:~~

~~: 111 163. Q. And we will pass you another Tweet from October 8th. Do you recognize this as n:: a Tweet from your Twitter account?~~

~~: fi14I A. I do. l ~ : ,i 15 164. Q. And it says,~~

~~I ! I ~ I !16 " ... Knocking on thousands of doors over~~

~~I ,17 the past six months, I have heard over I ~ I :18 and over again that #ysw feels neglected~~

~~I fi19 and left behind by City Hall. It's time I j 20 for change. It's time for meaningful I ~e1 engagement and empowerment in our communities ... " '[2 !~3 This is your Tweet?~~

~~4 A. That is my Tweet . \f•... / 25 165. MS. RANGANATHAN: We will mark that J~~

ERNST & YClUN13 TClWER, 222 BAY STREET, SUITE sioo, TORONTO, DNTARICl, MSK 1 HIS -~ WWW,VICTClRYVEREIATIM,CClM (41 Ei) sea-a 1 17 INF"Cl@VICTClRYVEREIATIM,CClM -427- -428- l VICTORY VERBATIM Page 1534

~~C. Padovani - 56~~

~~',~ 1 or linked, and that media alert is ... we have~~

~~2 printed it out, and it's on the next page. Do~~

~~3 you recognize that document as well?~~

~~4 A. I do.~~

~~5 183. Q. You are announcing here that you~~

~~6 are having a rally ... campaign rally?~~

~~7 A. Yes. fi 8 184. Q. At your campaign headquarters?~~

~~9 A. That's correct. 10 185. q Q. And on the actual media alert i ijll page, in the first paragraph it says, ri12 " ... With just two more days until the~~

~~'I ~13 election, Chiara Padovani's campaign is~~

~~I '1'114 gaining more and more momentum each day. I ; 15 Having knocked on over 50,000 doors, and i I j f:16 having made over 30,000 phone calls,~~

Padovani says that she hears the same I ~1 7 . 1-8 message over and over again, that it's 1119 time for change ... " 20 This was drafted by your campaign team? I i: ! ,~1 A. Yes. )f2 186. Q. And you called a rally on October ~3 20th?

~~Ifi J!•;i· 4 A. I believe so. L .. ij 25 187. Q. Do you know how many people ii~~

~~ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 900 1 TORONTO, ONTARIO, MSK 1 H6 WWW,VIOTO RYVERBATIM,OOM (41 6) S6CJ•61 1 7 INF"O@VltlTORYVF"RJ:IATIM_r.nM -429- -430- VICTORY VERBATIM Page 1543~~

~~C. Padovani - 65 ,-l 1 A. Yes. q 2 222. MS. RANGANATHAN: And I will mark 3 that as Exhibit 35, a Tweet from Chiara~~

~~4 Padovani's Twitter account, dated qI ; ! October 23 that starts, "Thank you to my team who worked so hard every day".~~

EXHIBIT NO. 35: Tweet from Chiara Padovani's l ; q 9 Twitter account, dated October 10 23, 2018 \111 BY MS. RANGANATHAN: :~112 '13I ' 223. Q. And we will pass you one more l f14 Tweet from October 23. This is actually a re 15 tweet. Do you recognize this as your re-tweet of I 116 a Tweet by Monochromatic Raymond? A. Yes. l f7 I 18 224. Q. And it says, " ... @chipadovani and her team were a 1 1~9] .. 20 canvassing machine. They earned every iI ~·1· i 1:>1 I I vote through sheer hard work and knocking on over 50k doors. Every time someone answered, Chiara listened to IJ4 their concerns for as long as they were 25 willing to talk. I have such respect l__ .] ~

ERNST&. YOUNG TOWER, 222 BAY STREET, SUITE 900 1 TCRCNTtl 1 tlNTARltl 1 MSK 1 HS .JI WWW,VICTCRYVERBATIM,COM (41 Eil 3EiCl•61 17 INF'C@VICTCRYVERSATIM,CCM -431- -432- ···11 VICTORY VERBATIM Page 1548 ~·1 C. Padovani - 70

. J 'l 1 August 31st? n 2 A. Yes. ;. ~' 3 243. Q. And a decision was rendered not q 4 on that day? i ti 5 A. That's correct. i I 1I 'i 6 Q. It was rendered on September n 7 10th. Do you recall that? ti!I J 8 A. I remember when the decision was l ~ 9 rendered. I don't remember the exact date. 10 245. Q. Between the time of the hearing I il ll1 and the date that the decision was rendered, you

didn't know if the election would proceed based rr2 1 13 on 25 wards or 47 wards? A. Can you repeat the question? I tt4: 15 246. Q. Between the time there was a l ~l6 hearing at the Superior Court and the date that the decision was rendered ... 7 It18 A. Right. So, between August 31st LI ~-9 and September 10th? 20 247. Q. Yes. You didn't know whether the ll1 election would proceed based on 25 wards or 47 wards? 11: A. That's correct. Nobody did. 248. Q. Did you continue to canvass lJ4 25 during that time? I ]J I

ERNST & YOUNG TOWER, 222 BAY STREET, SUITE eoa, TORONTO, ONTARIO, MSK 1 HS q1...U WWW,VICTORYVERBATIM,COM 141 S) asa-s 1 17 INF"O@VICTCRYVERBATIM,COM -433- -434- VICTORY VERBATIM Page 1549 -, C. Padovani - 71 ~fi 1 I A. I did. 2 249. Q. And were you canvassing in the I l 3 whole of Ward 5? q 4 A. I can't remember exactly where I 5 canvassed, but I registered so I would be able to ;-·, 6 canvass in the whole of Ward 5. 250. Q. Right. So, you registered ... -i 7 8 A. I don't remember my particular canvass schedule for those days, or where I was !I 9 10 canvassing, but the intent behind me registering '.h1 in Ward 5 was so that I would be legally able to canvass in the entirety of Ward 5, yes. 251. Q. And, I think you say in your affidavit, that at the time that you affirmed your affidavit, you had covered a lot of Ward 11? A. Almost all of it.

252. Q. And so, the intent of you registering on August 21st was to allow you to d19 cover the areas in Ward 12 in the 47, 44-ward 20 system that you hadn't covered? I lb1 A. Can you repeat that question? (2 253. Q, You were ... so, you registered in l~3 Ward 5 with the intention of covering the parts I [24 of the ward that you hadn't yet covered? 1>-·-i~ 25 A. I registered in Ward 5 so that I

[i .II q ERNST & YOUNG TOWER, 222 BAY STREET, SUITE gaa, TORONTO, ONTARIO, MSK 1 HS l , WWW.VICTORYVERBATIM,COM (416) 360·6117 INF'O@VICTCRYVERBATIM,CCM -435- -436- TI II VICTORY VERBATIM Page 1551 Ii

~~--~~~

~~C. Padovani - 73 ,~~ 1 proceed based on 25 wards?~~

~~2 A. Yes.~~

~~3 259. Q. At paragraph 21 of your~~

~~j 4 affidavit, you talk about the spending limits, 'l: ./ " ... The maximum spending amount allowed in the election for Ward 11 was $35,000 ... "~~

~~8 Is that right?~~

: ij 9 A. Approximately. 10 260. Q. And ultimately, your maximum for '"i li11 Ward 5 was $62,000? 1···•1112 A. In the end, it was higher than i j 13 that. 261. Q. Okay. Do you recall how much it h4Ii 15 was? ij16 A. I believe it was approximately $68,000. 262. Q. And approximately how much did you ultimately raise? A. My ... I'm in the process of having my financial statement audited, so I can give rough estimates from what I can remember. So, roughly, I was able to raise $55,000 in in-kind 4 and financial donations, and my husband and I I 25 contributed additionally in the ballpark of about

~~ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 9001 TORONTO, ONTARIO, MSK 1 H6 WWW.VICTORYVER8ATIM,COM 1416) :360·61 17 INF"O@VICTORYVERBATIM,COM -437- -438- --~ VICTORY VERBATIM Page 819~~

~~C. Moise - 40~~

~~A. For council, yes.~~

···ri 2 145. Q. And in the last ... sorry, the third ~ 3 to last paragraph, the larger paragraph, it says: " ... Kristyn Wong-Tam is seeking re-election as City councillor in the new Toronto Centre ward. Chris Moise will seek re election as TDSB trustee in the new mega

~~8 ward of Toronto Centre and University Rosedale. Chris has been a tireless advocate as a trustee and vice-chair of the~~

~~TDSB . .. " Do you see that?~~

~~13 A. I do see that.~~

~~146. Q. You and Jennifer Hollett had decided~~

~~15 to work together? :L A. In what regard? :J17 147. Q. To ensure that progressive i u 18 councillors didn't lose thier seats? A. Jennifer Hollett and I were running ! ~19~~

20 in different wards. We never worked together. We i ~Ql were running for office in different areas of the city. But with the realignment of the ward, it [: r·I 2 i I 23 encompassed her ... the area she was running as well as my Ward 25 and 47 configuration. And based on u25 that, we decided to put a joint letter together. In ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 9CCJ, TORONTO, ONTARIO, MSK 1 HS 1J WWW,VICTCRYVEREIATIM,CCM (41 SJ 360•5117 INF'C@VICTCRYVERSATIM,CCM -439- -440- Page 820 [I VICTORY VERBATIM -l C. Moise - 41 .-r l 1 148. Q. You both wanted to support Kristyn

~~2 Wong-Tam in her re-election campaign for Ward 13?~~

~~3 A. Well, since I had decided not to run~~

~~4 for council, and Jennifer had decided not to run for~~

~~council, we wanted to support somebody that, you :1.i 5 ri 6 know, we felt had the same progressive values as we~~

~~; '~i.. 7 did. And this is why the letter was ... the joint . j~~

~~8 letter from us.~~

~~. -r! ; ! 9 149. Q. Kristyn Wong-Tam is someone you hold ; ,!~~

~~, •110 in high regard? tl A. Yes. She has been a friend and a mentor and an ally for the last 10 years or so.~~

~~13 From the first time I ran in 2010.~~

~~150. Q. She shares views with you on many~~

~~, ,,,15 issues? . l~~

~~I J l .116 A. She does. i ljl 7 151. Q. And you have a great relationship I I 1··.1 18 with her, you say in your affidavit.~~

~~A. I do.~~

~~20 152. Q. And she was an incumbent? L A. She was an incumbent.~~

~~1 n22 153. Q. For City council?~~

~~I.. clr: 23 A. That is correct.~~

~~L/24I I' 154. Q. And you thought she had a better~~

~~25 chance than you to win in Ward 13?~~

~~ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 9CJCJ 1 TORONTO, ONTARIO, MSK 1 H6 WWW,VICTCIRYVERBATIM,CCJM 14161 :360•61 17 INF"O@VICTORYVERBATIM,COM -441- -442- VICTORY VERBATIM Page 2119~~

~~D. Youssefi - 36~~

~~was the incumbent in Ward 16 in the 44 ward system,~~

~~2 she came in second?~~

~~3 A. That's right.~~

~~4 138. Q. She got 7,395 votes?~~

~~c~ 5 A. Yes. i, ~I '"6 139. Q. So, she was more than 6,000 votes behind Mike Colle, correct?~~

~~8 A. That's right. 1119 MR. GILL: Well, to be fair to the I " witness, that's what the document says. I don't think that the witness actually tabulated the votes.~~

BY MS. RANGANATHAN: 140. Q. Were you aware of the results ... A. Yes. j [L 7 141. Q. . .. at the time? And you were aware 1/i I I 18 that Christin Carmichael Greb was significantly behind Mike Colle in the results?

~~20 A. That's what the results showed, yes. f ti I ~21 142. Q. And you came in third? A. That's right. I' /"'.'r 2 I ! i Ji 23 143. Q. You got 5,253 votes? A. Correct.~~

~~25 144. Q. You convinced 5,253 people that you~~

~~ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 900, TORONTO, ONTARIO, M5K 1 H6 WWW,VIC:TORYVERBATIM,C:OM (416) :36Cl•6117 INF"O@VIC:TORYVERBATIM,C:OM -443- -444- VICTORY VERBATIM Page 2120~~

~~D. Youssefi - 37~~

~~1 were the right candidate to represent them at city~~

~~2 council?~~

~~3 A. If that was the test. MR. GILL: Well, we object to the question, how could she be in the minds of all these people. I don't think we need to speculate why people vote.~~

~~8 THE DEPONENT: I'm sure they just liked ! ii ! ~ 9 the sound of my name.~~

10 ;t BY MS . RANGANATHAN : 145. Q. I'm going to show you a printout rrl \j 13 from your website. Do you recognize this as a printout from your website? A. Yes. 146. Q. Your copyright is on page 4 of 5.

~~: 'l 7 It looks familiar? I ij 18 A. Yes. I ,, 1 Ii 9 It 147. MS. RANGANATHAN: I'm going to mark that 20 as Exhibit 6.~~

~~I !; I I"' \1 EXHIBIT NO. 6: Printout from the website~~

~~1r...• I 23 dyanooshyoussefi.ca i ~ . 1··.·. 4 \ F ·.i••• ~l 25 BY MS. RANGANATHAN:~~

ERNST & YOUNC3 TOWER, 222 BAY STREET, SUITE 9ClCl 1 TORONTO, ONTARIO, MSK 1 H6 l.... JII WWW,VICTORYVERBATIM.COM (416) 36Cl•61 17 INF"O@VICTORYVERBATIM,COM -445- ···~ -446- ~, VICTORY VERBATIM Page 2121 D. Youssefi - 38 :·1 : n 1 148. Q. It's a printout with a heading at the top, "Fighting for you in the new Ward 8". And

~~3 there is a letter addressed to "Dear friends and neighbours" that was written by you? A. Yes. 149. Q. Do you know when this went up on your site?~~

~~8 A. This would have ... I believe this~~

I ~··. ! 9 would not have been on my site, I think this was a Mailchimp newsletter that went out. 150. Q. Okay. But written by you? f}2 A. Yes. ill 13 151. Q. And do you know the timing of it, when it was sent out? A. I would have to go back to the actual campaign on the Mailchimp and check the date. 152. Q. It says, "It's a 25 ward election",

~~18 do you see that? l ~ l fil9 A. That's right.~~

20 153. Q. And: lfi I ,L1 " ... I am still committed to you and our great city, and have been knocking on doors jfr2 23 and speaking to the wonderfully diverse and lJ4 amazing residents of our city in Ward 8, 25 Eglinton-Lawrence. Our new ward goes from l- .H I

~~ERNST & YCUNl:l TCWER, 222 BAY STREET, SUITE 9Cltl1 TCRCNTC, CNTARIC, MSK 1 H6 JJ WWW,VICTCRYVERBATIM,CCM (416) 36C•61 17 INF"C@VICTCRYVERBATIM,CCM -447- -448- VICTORY VERBATIM Page 2122~~

~~•··~~~

~~D. Youssefi - 39~~

~~1 Eglinton Avenue to the south ... "~~

~~2 And you describe the boundaries of the ward from~~

~~3 there in the paragraph. Those are your words?~~

~~4 A. That is what is printed there, and~~

~~seeing that this is a printout of the entire e-mail, r1 5 ,i Iil ' J 6 those would be my words.~~

~~154. Q. And on page 3 of 5, at the bottom of l ~ 7 I ~ 8 the page, there is a heading, "Upcoming all d9 candidates debates", do you see that?~~

~~• n10 A. Yes. J 11 IL 155. Q. And there is a bullet that says, i~2 " ... Tuesday, October 2, at Eglinton St. \ 1\ j ·1 13 George's United Church ... "~~

~~And that's announcing an all candidates debate at ifL! ; ! ,j~~

15 St. George's United Church? It A. Yes. It wasn't really a debate, but there was a meeting, yes. 'li.17 !l 18 156. Q. There was a meeting of candidates I 1 I ~-9 and constituents? 'I llJ 20 A. That's right.

~~I ·1,' I ! IP 157. Q. Candidates in Ward 8?~~

~~I r2 A. That's right. Not all of them. i Ll . 23 158. Q • And on the next page, it says,~~

~~, Ii j ;!4 " ... Help me reach the new and bigger Ward ,J 25 8 ... " I !!~~

~~/ 1!j 1. .J~~

~~ERNST & YCJUNC3 TCJWER, 222 BAY STREET, SUITE 900 1 TCJRONTCJ, ONTARICJ 1 MSK 1 H6 WWW,VICTCJRYVERBATIM,CCJM 14161 360•61 17 INF"O@VICTCJRYVERBATIM,CCJM -449- -450- VICTORY VERBATIM Page 2146~~

~~D. Youssefi - 63~~

~~Ward 8? A. It was around double that. 248. Q. So, around 80,000? A. Around there. Again, I don't remember precisely. ·"'~·, 5 : j • I 6 249 . Q. And how much did you ultimately~~

~~• ~ 7 raise?~~

~~\ M,_j 8 A. It's one thing I did look up,~~

~~; ~1 j ! 9 because I thought you might ask me. I think I wrote ~ J •to it down. I think it was around 42,000, around lh1 there. fi12 250. Q. 42,000? if!. ,I 13 A. It was around there, yes, if I~~

~~! 11 j j14 remember correctly. , ,) 251. Q. At paragraph 20, you say that you recycled t-shirts from your previous campaign in Ward 16 in the 44 ward system? A. That's right.~~

~~! Ii i ~9 252. Q. You had them touched up to indicate ! J that your candidacy was now in Ward 14, correct? A. Correct.~~

~~253. Q. Did those t-shirts previously say~~

~~1r'ij 23 "Ward 16" on them? A. That's right.~~

~~25 254. Q. And how much did it cost you to~~

I J) ' i:. J l I.J ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 900 1 TORONTO, ONTARIO, MSK 1 He WWW,VICTORYVERBATIM,COM (4 t SJ ::360•61 17 INF'O@VICTORYVERBATIM,COM -451- -452- Page 587 ~ VICTORY VERBATIM l J. Hollett - 9

~~1' 1 A. Yes.~~

~~,-] 2 32. Q. And it says,~~

~~3 " ... What will happen with 25 wards, is .-·1 4 someone will reach out to a city ' ~ 5 councillor re: a pot hole, their Jij.. 6 housing, public transit, and sit and~~

~~7 wait. Maybe not even hear back ... " A. Yes.~~

~~33. Q. And you have identified here~~

10 problems that constituents may have, right? iI ~1 . : 111 A. Yes. q12 34. Q. Like, potholes? ! I; 1 .I 13 A. M'hm. It14 35. Q. Sorry, you just have to say yes 15 or no. a.6 A. Yes. 36. Q. Their housing? 7 If18 A. Yes. Iri19 37. Q. Public transit? 20 A, Yes. I I i~l 38. Q. You are talking about municipal services, in this tweet? A. Yes. ]J4 39. Q. And the concern that you are u25 expressing here is that a councillor in the 25

ERNST & YCJUNC3 TOWER, 222 BAY STREET, SUITE 9CJCJ, TCJRCJNTCJ, CJNTARICJ, MSK 1 HEi JJ t.Jt.l't,.&11.&I , •• _ ... __"'l~l""lr.'9A..,.•LA _11""'1 .. A IA 'f ol!I.\ f"'lol!l. .... -ill'!!!:. • ._ - ... , ...... r,:;\,11~ ...... -'-"l~l""lil'!!IA ..... IL.t ...... -453- -454- Page 588 VICTORY VERBATIM

~~J. Hollett - 10~~

~~ward system may not be able to be as responsive~~

~~ll 2 to constituents about those kinds of municipal \J 3 services? ·~ 4 A. Yes.~~

40. MS. RANGANATHAN: And you registered in the 2018 municipal. election on ... oh, .····~ 7 sorry, I should just enter this as an ll 8 exhibit before we move on. So, that was your tweet, Jennifer Hollett's tweet, :i 9 10 from July 27, 2018, will be Exhibit 1. ;111

~~~12 EXHIBIT NO. 1: Jennifer Hollett's tweet of July '13 27, 2018 re "What will happen~~

~~\ f14 with 25 wards . .. " I ti 15~~

~~! 116 BY MS . RANGANATHAN: 41. Q. You registered in the 2018 municipal election on July 10, 2018? At~~

~~I ~19 paragraph 1. 20 A. Yes. l f21 42. Q. And that was in Ward 21, in the 47 ward model? A. Yes. 43. Q. And you held a campaign launch l.t 4 25 party on July 26? Paragraph 32? IJ~~

I II I I ERNST&. YOUNCE! TOWER, 222 BAY STREET, SUITE 9001 TORONTO, ONTARIO, MSK 1 H6 ,\ I 11A#,AII.Af ,,,_..,..,...... "'ll"!'l ... f"'IA"T"11.A ...,,..., .. _. IA .. .e, .... ,e,r-a_.e. 'Ill 'Ill r, 1 .. l ..... l""lt::\'toll ... "'1"'1""11""'1'-"l~l""le:tA"'l""ILA ,...,..."°'A -455- -456- Page 620 VICTORY VERBATIM l J .. Hollett - 41 ] ij 1 185. Q. That was the day after the

~~2 province had obtained a stay? rj 3 A. Yes. -,1 you at that D 4 186. Q. And, it was clear to 5 point that a 25 ward election would proceed? ilij [) a 6 A. Yes.~~

~~187. Q. And in the 25 ward election, to fl 7 8 stay within the territory you had been ' D , ll 9 campaigning, you would have been ... and where you~~

-~10 live, you would have been running against Kristyn ~ •h1 Wong-Tam? rF2 A. Yes. , Ii 13 188. Q. A candidate who had endorsed you? i ,, A. Who had endorsed, supported, I 1114; 15 mentored me. Yes. 111 lh6 189. Q. And, who you supported? lri17 A. Yes. ,I 18 190. Q. And you thought she might have a

~~I ~9 better chance to win than you, in Ward 13? I j A. Yes. And I also wanted to vote~~

~~for her.~~

~~, 1:22 191. Q. And you wanted to vote for her. n I ll '23 And, ultimately, you decided to campaign for her?~~

~~1 ~2 4 A. Yes. ! .. j 25 192. Q. You actively supported the I Ii d~~

~~ERNST & YCIUN13 TCIWER, 222 BAY STREET, SUITE 9CIIJ 1 TCIRCINTCJ, ONTARICJ, MSK 1 HS WWW.VICTORYVERBATIM,C::CIM (416) :360•61 17 INF'CJ@VICTCIRYVERBATIM,CCIM -457- -458- VICTORY VERBATIM Page 621~~

~~J. Hollett - 42 l 1 campaign of Chris Moise for school trustee?~~

~~2 A. Yes. Chris and I both decided to~~

3 not run in the 47 ward race, and support Kristyn, 1J s 4 and then that allowed him to run ... ~ 5 MR. CHU: Sorry, it wasn't a 47 ward l 6 race. 'll 7 THE DEPONENT: We decided not to run. u 8 ; 9 BY MS. RANGANATHAN: IIi 10 193. Q. You mean, in the 25 ward race? :tl A. Sorry, yes, Sorry, thank you.· r112 194. Q. Yes. ' I ! ti 13 A. We decided not to run in the 25 i ward race .. , ! ~14 15 195. Q. Right. l i !16 A. . .. which allowed him to run for

~~re-election for school board trustee.~~

196. Q. And you campaigned for Chris ! l.lh_9 Moise, as well? ! ~ 20 A, As school board trustee, yes. lb1 197. Q. As school board trustee, yes. 11122 A. Yes. ~3 198. Q. And you both supported Kristyn u24 Wong-Tam in Ward 13? A. u25 Yes.

~~ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 9001 TCRCJNTC, ONTARIO, MSK 1 He WWW,VIC:TORYVERBATIM,C:CJM 141 el :360·611 7 INFO@VIC:TCJRYVERBATIM,C:CJM -459- -460- Page 2023 VICTORY VERBATIM~~

~~l M. Willson - 27~~

~~l 1 Ms. Willson?~~

~~~ij 2 A. That is a tweet from me.~~

~~3 90. Q. And it's also dated October 19,~~

~~"1 4 2018?~~

~~5 A. Yes. l 6 91. Q. And it says: " ... Thanks to @stjcoop for sponsoring an ri 7~~

~~8 all candidates discussion on #emergency preparedness in our City. We are not ready~~

.• 10 for a real disaster living in a #tall ; 1.11 tower. I know our concerns are different. h2 If you liked what you heard, join me and ll 13 canvass this weekend ... " A. Yes. 92. Q. And you participated in an all candidates debate on October 19th?

~17 A. All candidates were invited. ~ 18 93. Q. But not all attended? A. Not all attended. 94. Q. And you discussed the issues described in the tweet? .ir A. That is what they asked us to 23 discuss. It was on assigned topic debate, if you will, or discussion. tr 4 25 95. MS. RANGANATHAN: No, I am going to mark !J

ERNST & YCUNG TCWER1 222 SAY STREET, SUITE 9CJCJ 1 TCRCNTC 1 ONTARIO, MSK 1 He JJ WWW,VICTCJRYVERBATIM.CCM 141 el :3SCJ•61 1 7 INF'CJ®VICTCJRYVEF.!13ATIM.t::aM -461- - 'I -462- VICTORY VERBATIM Page 2024 ~,!1 M. Willson - 28

~~' ~ 1 that as the next exhibit, so tweet from~~

~~2 Megann Willson dated October 19 that~~

~~3 begins, "Thanks to @stjcoop" is going to be~~

~~Exhibit 5. :n5I ; 'J 6 EXHIBIT NO. 5: Tweet from Megann Willson, dated October 19, 2018, beginning, "Thanks~~

~~8 to @stj coop ... "~~

~~BY MS. RANGANATHAN:~~

~~96. Q. And my colleague is going to pass you another document from Twitter. Do you recognize~~

~~13 this document as another tweet by you?~~

~~1,t, II A. I do. q 15 97. Q. And it's dated October 21, 2018? I fi i J16 A. Yes. l 1117 98. Q. And this is one day before the i l ! I 18 election, or the day before the election? A. Evidently so.~~

20 99. Q. And it says: )I! !21 " ... You told me you want a responsive City 1r government that listens to you and gets 23 back to you. When you invited candidates l.J4 to your neighbourhood, this campaign, I was 25 there, and I will be there for you when I lJ

111, I ERNST & YOUNG TOWER, 222 SAY STREET, SUITE 900 1 TCRCNTC, CNTARIC, M5K 1 H6 Li WWW.VIC::TCRYVERBATIM,C::CM (416) :360•61 1 7 INF'C@VIC::TCRYVERBATIM,C::CM -463- -464- VICTORY VERBATIM Page 2025

~~M. Willson - 29~~

~~am your next City councillor in #Ward~~

~~2 13#TorCen ... "~~

~~3 A. Yes. 100. Q. You were invited by constituents to~~

~~~. 5 campaign in their neighbourhoods? : fl '. ft : " 6 A. There was invitation to all candidates to come to various events.~~

~~8 101. Q. And you did? A. And I came to as many as I could physically attend without being able to be in two places at one time.~~

~~,"-!.I iJ.2 MS. RANGANATHAN: Fair enough. I am I 1 102. ;I l' 13 going to mark that tweet by Megann Willson on October 21, 2018, as Exhibit 6.~~

~~EXHIBIT NO. 6: Tweet from Megann Willson, dated~~

~~·1 'h. 7 October 21, 2018, beginning, "You~~

1 !1 18 told me you wanted a responsive City l j I f19 government ... " ' M iC BY MS. RANGANATHAN: If2 103. Q. And we have two more tweets. Do you 23 recognize this as a tweet from you, Ms. Willson? I ~ A. It looks like me at the top. Lf 4 25 104. Q. And it's dated October 19, 20187 !J

)J ERNST & YCUNta TOWER, 222 BAY STREET, SUITE 900, TORONTO, ONTARIO, MSK 1 He WWW,VIC:TCRYVERBATIM,C:CM 141 SI sea-a 1 1 7 INFC@VIC:TCRYVERBATIM,C:CM -465- -466- ~,] VICTORY VERBATIM Page 2032 ~ M. Willson - 36 ·1 . ~ 1 A. There are.

~~2 138. Q. Which is the ward that you ran in?~~

~~3 A. Yes, I did.~~

~~139. Q. And the winner in Ward 13 was Kristyn Wong-Tam? rt 5 . ., 6 A. That is correct .~~

, ~i !' ~;, 7 140. Q. And your name is in the list? i 3 8 A. It is in the list, yes. i; ;!i I , 9 141. Q. And across from your name is the number of votes that you obtained in the election? A. Yes, it is. r-t\2 142. Q. And you got 411 votes? '. l ; .j 13 A. Yes, I did.

~~: ,14 143. Q. You persuaded 411 people that you were the right candidate for City Council? A. Yes. 144. Q. And you participated in "Women Win~~

~~18 TO"? A. I did.~~

20 145. Q. And Kristyn Wong-Tam was one of your lt mentors in that program? Ir A. She did come to a few sessions as a 23 mentor; yes. tr4 146. Q. And she shares many of the policy u25 priorities that you have?

jJ ERNST & YOUNG TOWER, 222 BAY STREET, SUITE 9CICl 1 TORCJNTCJ, ONTARIO, MSK 1 HS WWW,VIC:TCRYVERBATIM,CCM 141 SI 3SCJ•S 117 INF'CJ@VIC:TORYVERBATIM,CCJM -467- -468- ···~ Page 2041 VICTORY VERBATIM

~~M. Willson - 45~~

~~provided by the City Clerk.~~

~~3 BY MS. RANGANATHAN:~~

~~183. Q. " ... It will now be in the range ... ",~~

~~right. How much did you ultimately raise for your~~

~~campaign?~~

~~A. I think I ultimately raised under~~

~~8 $10,000.~~

~~184. Q. How far under $10,000? Slightly~~

~~under $10,0007~~

~~A. Yes. nl2 185. Q. So somewhere between a range of 13 $9,000 and $10,0007 : I ! ;14 A. More than nine, less than ten. I~~

~~15 could probably get you an amount to the penny if you iL need me to do that. 186. Q. No, that's fine. You were aware lI. 117 I 18 that Bill 5 came into force in the middle of August,~~

~~August 14, 2018? l t9 A. Yes.~~

~~187. Q. And there was this legal challenge?~~

~~A. Yes, correct. I P .I[! ~l 23 188. Q. And absent the legal challenge, the~~

~~election would have proceeded from that date forward~~

~~25 on the basis of the 25-ward system?~~

~~ERNST & YOUN13 TOWER, 222 BAY STREET, SUITE goo, TORONTO, ONTARIO, M5K 1 H6 WWW,VICTCRYVERBATIM,COM 1416) 360-6117 INF'O@VICTORYVERBATIM,CCM -469- -470- VICTORY VERBATIM Page 500~~

~~S. Dexter - 14 -1, 1 of the union little address. And then they asked~~

~~2 for questions and there were no questions because~~

~~3 what she was doing was so far away from anything ,,, I 4 that we were concerned about. " 5 Now, things change over time so it may ,-i; { 6 be that affordable housing has become an issue~~

! ~ 7 and what Adam Vaughan is doing over that, and i ~ 8 certainly with changes in grants from one level ; ~ 9 of government to the other may make the feds a I i 10 little more important to us. But our focus has :f11 been on trying to protect our community, to 'f:12 enhance it, to see that it is represented well at 13 City Hall and that it can play a creative role in

~~; t14 the City. 15 46. Q. Thank you. You talk about voter d1.6 parity in your affidavit?~~

~~I [Q 7 A • Yes. . I: l i '18 47. Q. Can you tell me what voter parity~~

! l19 is? ! u 20 A. Voter parity is rough equivalency lb1 of electors in wards, and it is measured ... it can be measured as raw numbers, or as percent. There I 2 23f is a disparity. The reason for the ward boundary

I ~24 review, from my understating, was that there was d u25 disparity. So, you saw under ... wards with small, lJ ERNST & YCIUNG TCIWER, 222 BAY STREET, SUITE 9001 TCIRCINTCI, CINTARICl 1 MSK 1 HS WWW,VICTCIRYVERBATIM,CltlM (4161 :.160·6 l 17 INF'Cl@VICTCIRYVERBATIM,CCIM -471- -472- Page 501 ] VICTORY VERBATIM

-~ S. Dexter - 15 ·1 1 relatively small populations, one of the Don ·-n ~ 2 Valley's is one of them, were disproportionate to B " 3 wards ... Willowdale is one that is large and ·1 I 4 getting larger. Etobicoke, interestingly, is 5 one. And Ward 20 was getting up there in

i 6 numbers. I 7 So, we were keen that ... voter parity 8 translates into what my voice would be, what our I 9 conununity voice would be, at City Hall. And so, 10 to say that if your ward has fewer people in it,

~~111 then they have more ... they speak with more power~~

~~:·112 at council deliberations, for instance, than we 13 would. And so what you try to do over time is~~

~14 balance, so there is a reasonable balance between 15 wards. And that was our understanding of what ij16 the ward boundary mandate was ... to be one of their mandates was, certainly, voter parity. lf 7 18 And going with that is ... it is a kind of

~~il9 sister issue to that, is effective representation !: .I 20 because, you know, with councillors pressed for~~

I ~ ifa1 time, the people in the larger populated wards are going to get less per capita service than l 122 'y23 people in a small ward. I_J24 48. Q. So, voter parity is important? 25 A. Voter parity is important. It is

~~l.... J·~~

~~ERNST & YOUNG TOWER, 222 BAY STREET, SUITE gaa, TORONTO, ONTARIO, M5K 1 HS WWW,VICTORYVERBATIM,COM 1416) 360•61 17 INF'O@VICTORYVERBATIM,COM -473- -474-~~

~~Authority: Council on November 8 and 9, 2016~~

~~CITY OF TORONTO~~

~~BY-LAW 598-2018~~

Whereas Council confirmed at its meeting on November 8 and 9,2016 by Coftfirmatory By-law 1108-2016 that its composition shall remain as one member of Council per ward plus the Mayor based on the total number of wards established, which resulted in a composition of 4 7 Councillors plus the Mayor; and Whereas the Ontario Municipal Board issued a decision and order in case number MMl 70022 dated December 15, 2017 confirming that the number of wards in the City of Toronto shall be forty-seven; and Whereas no outstanding appeals remain and the appeal process for the City's ward boundary by-laws has concluded; and Whereas section 135(4.1) of the City of Toronto Act, 2006 provides that "Despite clause 135 (4) (b ), if a by-law changing the composition of city council is passed on or after January 1, 2018 and on or before June 30, 2018, the by-law may, if it so provides, come into force as early as the day the new council is organized after the 2018 regular election"; and Whereas Council has directed that a standalone by-law be enacted as a matter of housekeeping and transparency to confirm that the composition of Council is one Councillor per ward for a total of 4 7 Councillors plus the Mayor on the day the new Council is organized after the 2018 municipal regular election; The Council of the City of Toronto enacts:

~~1. The Council of the City of Toronto is composed of:~~

~~A. the mayor, elected by general vote; and~~

~~B. fo1ty-seven other members of Council, with one member of Council elected for each ward.~~

~~2. This by-law shall come into force on the day the new Council of the City of Toronto is organized after the 2018 municipal regular election.~~

3. Despite section 2 and in accordance with section 135(5) of the City of Toronto Act, 2006, the 2018 regular municipal election shall be conducted as if this by-law was already in force. I Enacted and passed on May 24, 2018. I Frances Nunziata, Ulli S. Watkiss, Speaker City Clerk (Seal of the City) -475- -476-

~~,,..- ...;(_~~

~~:: •'.·· ·: cttr ,·or :\r.~J.'.f~o .t.i\rn:.R .s 1~iir:si-iW~6'6ti M~t!i :;· . ..~;T :=,.;- . '::.~:. : ~·:i=::'.. :!:·.:'-~ ..,. .. ··"·\::··~~

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~~;~ tv!IEREAS :n9. reference is made in the sa:Ld documents to t he ro l e of~~

~~mu11icipal:i:tfos ,,;in the :n~;W F,tderatfon ·r elat.ivi:{ to the. other levels ..~~

."' '. of govethlJ!~ttt.: : .· ,0 I;;;. . [ij:. ' ~' ' ·:ft:'J 'fil J ''.·,·:~:-,·i :i:~:·.: .. : ,. ....·= ·:-:.:,;;, ::'::.·~.' ·-·'' :::~!;'·.:._~:. ' . ../ j :·!..,:.,.-',,'',:·"',._--~2·~,':. ,':•· ;;j)- t.t:·. ··~-:--, . .~ i .: :;~··l ·/!?,·

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~~BE I'f RTtSQ)'..Vt;b that, the following , pr-:inGJp;L.es sh(,1uld appl)l to the pordtion and. 1 statll!3.. of \. the; Municipalities in .any new·,·. Qi;' ''renew.ed ', Canilcfian federai system:~~

The}:onsti:tut1on o.f·,Canada shou1d·.$xptessly • recognfa e,,'artd: p~ptect ··.· Muntfapal .gov~'r·nrnent.'w:rt:ii'.fn)the general system :.·o.f .· fe.dera·f tlccifrst-Hutional · J·· .government; est.abl:i.,~.h,~cr::~J\etfunder. .· . ,'. "li

:: 2{: _ .. It .•is und e;;sht·ooa,_J~~1~}Jtt~iJ1.•Pt~e·.f~\~ei~a. ~:j conis: it1Jti~ni&t: ~ys:~e~:·MtiM~ipa:t .. f ·'.<:gpven11r11Hnt ~- ou1.y, ,.f~h(01:'~w£~1r,,X~1 { ;-rov1 rte_,~1 c: ur su 1-c:t1 on~i . . ·· · ··.ti' ~,...... a ; ~.~1· ...... ·.. ./ ..:·. .,.·. ,-:.· ·-,£~··'.

~~~~~~tJ 11 A:tI~!!~~;::!C!;!~~~~~:~t~i~~1::~~~~~~~~~~~;~~~~~~~~j'~~::e~t~~~~::~:~~~•.•· .··J •· · ' yari:Jd ·i,y.,tne Provinaia];::·ifive-r:nmti\nts··ex-cept '.:by 'thi ordinary~~

~~~~~~!~:1:;~~=~::,,;~~~~i~;~~~t~~:'.r.~~;~~~·~::."".~~.;i~~i~.:~.~,a1·••·•f res.pims.ibilitie1:1;; · and; to · that end,,~i'.(a · t?i t;houL,lirnitiJ1g the fore going ·, I . .~~

shoui'et: to improvi;•, F.eab.Vr.o.pe-1!..ty~ , I,i;i¢eu:~e.. , Amusements,, and · " · R~ntal taxes r. ai1d; subj¢c ,t' to~··appmpr. :±ate c:P.tovinct al-Municipal .., tax-e:, · [ ••.. sharing ,;arrari.g,ementtr,, Iricom:e,;.tiii{,c ' • . . ~ ...... ~ (cf: fost:itud.onal :,-ih1tonomrt :; Eac_lii Mun'.i:c),p~:{/ity should ,ha'll'e .tl\~', . ; [

~~0 .. pcrt~er v .subject .to ''ccinformi.t:y\'.;J:ctJ;p~;·.g',ett~ri:l.'l ( princ;±t,.leS;'ic"of • d'eiiiocratic •, . ,f,~~

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~~:• -~' •1:. -481- -482-~~

···:!·' \ •I .,\•, Court File No: 38921 ... ··., .. \ . ·.·.-. ,'_r!,· •. i.; ·.' IN THE SUPREME COURT OF CANADA -(ON APPLICATION FOR LEAVE TO APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

~~BETWEEN:~~

~~CITY OF TORONTO Applicant (Respondent) and~~

~~ATTORNEY GENERAL OF ONTARIO Respondent (Appellant) and~~

~~TORONTO DISTRICT SCHOOL BOARD~~

~~Intervener (Intervener)~~

~~AFFIDAVIT OF ALEl{SEI PONOMAREV~~

~~I, Aleksei Ponomarev, of the City of Toronto in the Pmvince of Ontario, affhm and say as follows:~~

~~1. I am a Student-at-Law with the Constitutional Law Branch of the Ontario~~

Ministry of the Attomey General. I have been in this position since August 6, 2019. The information set out in this affidavit was obtained by accessing publicly available sources of information, including the City of Toronto and Urban Toronto websites. As such, I have knowledge of the matters set out in this affidavit.

2. On October 15, 2019 the City Manager published a Report for action to provide the City Council with an update on discussion between the City and the Province on the realignment of transit responsibilities between the City and the Province (the "Report"). On -483- -484-

~~· ··. ,, .. ·. i,., ,·: .Jartuaryil3, 2020, I visited the City of Toronto website and .downloaded the Report. Attached~~

~~. hereto as Exhibit "A" are the first four pages of the Report that provide a detailed summary of~~

~~the Report.~~

~~Affirmed Before me ) ) at the City of Toronto ) ) in the Province of Ontario ) ) this 14th day of January, 2020 )~~

~~A Commissioner for Taking Affidavits Awt-~~lll UV# 1-2-ZbZul -485- -486-~~

~~. : . : •,· .. :,, .j I ,·i .:. ·:: .-·i . ·, ,.-.-_.:-.._::'.r- · .Ii~~

~~This is Exhibit "A" to the Affidavit of Aleksei Ponomarev affirmed before me this 14th day of January, 2020~~

~~A Commissioner, etc. µ ~llt'· Ls o-iJ: }-2..')bZ-~~

~~REPORT FOR ACTION~~

~~Toronto-Ontario Transit Update~~

~~Date: October 15, 2019 To: Executive Committee From: City Manager Wards: All~~

~~SUMMARY~~

The purpose of this report is to provide City Council with both an update on the status of the technical assessment of the Province's Sole Responsibility Projects and progress on discussions between the City and the Province in accordance with the Terms of Reference for the Realignment of Transit Responsibilities Review. Based on the results of the technical assessment and the current status of discussions on the realignment of transit responsibilities between the City and Province, this report includes a series of recommendations to ensure ongoing engagement to advance important transit initiatives to support the City's growth. This report was prepared in consultation with the Chief Executive Officer of the TTC.

For context, over the next twenty years, the City's population is projected to grow by about 960,000 people. By 2041, the City's population will be more than 3,900,000, exceeding the Provincial Growth Plan forecasts by more than 500,000 1. This growth will add pressure to Toronto's transit infrastructure, already in need of significant investment by all orders of government. The City and TTC have identified state of good repair and growth needs totaling at least $33.5 billion as per the TTC Capital Investment Plan. The Province, in announcing its investment in their four priority projects (i.e., Ontario Line, three-stop Line 2 East Extension, Yonge Subway Extension and Eglinton West LRT), has estimated an investment of at least $28.5 billion. Taken together, this represents a more than $60 billion in transit investment, critical to maintaining the safety and reliability of the existing system and growing the system to meet mobility demands of the City and region.

~~Technical Assessment of Provincial Projects~~

Since the last report to City Council on the status of the Toronto-Ontario Transit Responsibilities Realignment Review, City and TTC staff have continued to meet with Provincial staff for the purpose of carrying out the assessment of the Provincial Priority Projects. City and TTC staff have assessed the Ontario Line and Line 2 East Extension, and will now, with City Council's support, work with the Province to advance all four priority projects.

1 Canadian Centre of Economic Analysis and the Canadian Urban Institute. Toronto Housing Market Analysis. January 2019. https://www.toronto.ca/legdocs/mmis/2019/ph/bgrd/backgroundfile-124480.pdf Toronto-Ontario Transit Update Page 1 of 37 -489- -490-

~~, ,.. ,. < , . Based on the Ontario Line proposal,\a11.~~

As part of the technical assessment, the City and TTC have also identified key areas requiring further discussion with the Province in order to ensure that the projects continue to materially deliver the anticipated minimum benefits and address City expectations. City and TTC staff will also continue to engage closely with the Province on the location of potential portals and tracks for the Ontario Line, and the coordination of major capital construction projects, especially in the area of the Lower Don River.

The Province has committed to collaborate with the City and TTC as the priority projects are developed and to ensure seamless integration of the extensions with existing subway infrastructure and assets. Through collaboration, City and TTC staff will ensure that outstanding areas of concern are addressed as the projects are further developed, and that they proceed without undue delay. City and TTC staff will also continue to work with the Province through established tables to advocate for meaningful public consultation on the Province's Sole Responsibility Projects.

~~Realignment of Transit Responsibilities~~

In parallel with the work on the technical assessment, the City and Province have been engaged in ongoing discussions regarding the realignment of transit responsibilities, as directed by Council and agreed to in the Terms of Reference. These discussions have culminated in a Provincial commitment of intent and a proposed package of terms as set out in an October 10, 2019 letter from the Minister of Transportation Caroline Mulroney, and an October 9, 2019 letter from the Deputy Minister of Transportation Shelley Tapp and Special Advisor to Cabinet - Transit Upload Michael Lindsay, both of which are attached to this report.

These letters taken together articulate a provincial commitment of intent and a set of principles and parameters to guide the working relationship of the City and Province in delivering the expansion of transit. They contain the package of terms that form the foundation of a preliminary agreement, summarized and presented in a term sheet, also attached to this report.

In summary, the Provincial proposal provides the following: • The City Retains Ownership of the Existing Subway Network - The Province has determined that it is no longer necessary to assume ownership of the existing subway system in order to expand Toronto's transit network, The

~~Toronto-Ontario Transit Update Page 2 of 37 -491- -492-~~

existing:, TTCi: subw~y system will remain under the ownersnip ,opne City of . .1 •.. ·oronto1 ·a·n'cf·:"1",'T'c:,:· ...... ;.,, ,: · · ··;:"·'·,:,,/'·'.:·.,:}i•1"i•. ,.. ·,. •:,;,,.,~·.·;,,,:..;.,,,, .. : · T' ' ' . ~ I .... i I ,• l ·. -' ' ' ' ,' ' . ' ' ,, ' ' / : •. . : ; ~- '. . . ' • ; I ' _) I ,·'. • . ..-:: ' f ... \!-•.,, .· • TTC Retains Operations of the Transit Network - The TTC will continue to operate the existing network, and will maintain day-to-day operations of the four Provin~i~I priority projects as they come into service, includjng labour relations ... · With respect to maintenanc~ functions and service levels/standards, the Province will work with the City and TTC to further define roles and responsibilities through operating and maintenance agreements. Farebox revenue will be used to defray operating co~ts, and the Province has committed to ,negotiate ongoing and commensurate operating contributions from other municipalities where subway service is provided. Under the proposal the City will be responsible for funding any net subsidy required to operate each of the priority projects. • Funding for State of Good Repair Needs and Transit Expansion - The Province's proposal indicates that it would not seek capital contributions from the City for the Province's four priority expansion projects (Ontario Line, Line 2 East Extension, Yonge Subway Extension, and Eglinton West LRT), in accordance with the commitment that the City will redirect the capital contributions it would have otherwise been expected to make toward incremental investments in the state-of-good-repair needs of the system, as illustrated in the letter attached from TTC CEO Rick Leary. The Province would also consider the redirection of these funds to investment in other transit expansion priorities identified by Council, based on a fully developed business case, and subject to credible progress to the relief of the state of good repair backlog in the subway system. • Advancing and Accelerating Transit Projects - The Province will own and be solely responsible for the delivery of the four priority Provincial subway projects, and have committed to collaboration and engagement with the City and TTC through the design, development, and delivery of these projects, similar to the approach taken with the Eglinton Crosstown LRT project. o In order to accelerate delivery of priority expansion projects, the City and Province will jointly seek opportunities to streamline processes, where possible. The Transit Expansion Office will act as the one-window access to the City, and facilitate the City's role in project implementation, while also developing improved processes to meet timelines. o The Province will work with the City to identify opportunities to leverage powers and authorities available through the Province to expedite delivery, and to develop a Memorandum of Understanding related to Transit Oriented Development, recognizing the desire to create and capture value to offset capital costs while advancing the principles of good city planning. o The Province is seeking a commitment that the City will engage and work collaboratively to identify how to efficiently manage key interchange stations and intersecting assets to facilitate construction and seamless integration. As outlined in the letter from Minister Mulroney, the Province is seeking a City commitment to grant the Province a level of access to and

~~Toronto-Ontario Transit Update Page 3 of 37 -493- -494-~~

., ..!. 1 \,1:.i:;,:,).,':./.(-,:::(i_, .':·. ,,: !, · control over the interchange st~ti'c>'ns'i"antl~qthe(intersecting assets, ;:, :: •.:.:- ·: --:;.Jt'dor i Ith.'.1i ;,w:i ;!.l 1~it~dfollowing engagement. between ,s·eniof,pfovind_al. emctCity officials.

I; • Financial Support of Projects - The Protlnc~ has co~rriitted to undertaking a . financial review and reconciliation of costs incurrl;:ld by the City and TTC to date on the Relief Line South and the Line:4_East Extension, and subject to further .· review of commitments made, the Proyince has committe'd to reimbursing the I. City for reasonable costs incurred. The Province has also committed to reimbursing the City for staff services _·and appropriate consulting services provided in support of advancing its priority projects.

• Endorsement of Projects for Federal Funding - As a result of the City's findings through the technical assessment of the projects, and in accordance with the above terms, the Province is seeking the City's endorsement of the re allocation of the funding under the Investing in Canada Infrastructure Program Public Transit Infrastructure Fund Phase 2 (ICIP-PTIF2) to the Ontario Line and the Line 2 East Extension projects, consistent with the ICIP-PTIF2 approvals framework. o The Province and the City will continue to advance the SmartTrack Stations Program and Bloor-Yonge Capacity Improvement project through the federal ICIP-PTIF2 program. o The Province and City will work together to seek further federal engagement and funding commitment to all priority projects.

The package of terms as proposed by the Province, subject to endorsement by Council and outlined in the attached Term Sheet, provide a starting framework for agreements that will result in significant new transit investment in Toronto to both maintain and expand the existing system.

Subject to Council approval, staff will negotiate, enter into, and execute an agreement (the "Preliminary Agreement") with the Province on the basis of these terms, transitioning them into a formal arrangement between the parties. This Preliminary Agreement will form the starting foundation of a more fulsome Master Agreement or . series of agreements, which will be negotiated between the parties as the projects advance through their respective lifecycles. These agreements will be subject to future Council approval.

· This report outlines the significant outcomes .achieved as a result of the discussions between the City and Province since the signing of the Terms of Reference in February. Continued engagement with the Province will provide the City and TTC the critical opportunity to collaboratively advance the priority projects through their lifecycles, ensure the pr.ojects continue to materially meet the City's anticipated benefits and expectations, and advance much needed investment in transit without undue delay.

~~Toronto-Ontario Transit Update Page4 of 37 -495- - ...... ,. . ., ...... ~ .. - ...... , ...... ,...... _ .. ,., .., ...... t' ...... ,...... ,._,._,._..,_.., - ... ,._ ...... _ ...... _ .. .. -496-~~

~~Statement Joint Statement by Ministers of Download Transportation on the Province's GTA d Download Text Transit Plan~~

~~October 29, 2019 6:05 P.M. I Ministry of Transportation~~

Following a decision by City of Toronto Council on the province's Greater Toronto Area (GTA) Transit Plan, Caroline Mulroney, Minister of Transportation, and Kinga Surma, Associate Minister of Transportation GTA, issued the following statement:

"Today's vote marks a pivotal moment in the history of Toronto transit. After years of discussions, the City of Toronto and the Province of Ontario have endorsed one single unified plan for subway expansion in Toronto. I Finally, commuters will get the transit they deserve - an integrated, modern and efficient network that expands across the region.

~~We applaud Mayor Tory and Council for saying "Yes". Yes, to the province's transit plan - a plan that will transform Canada's largest city and the lives of its citizens for the better.~~

~~With an agreement that balances city and provincial priorities, we begin a new era of cooperation and partnership that will make our government's vision for subway expansion a reality.~~

Our government's goal has always been to get transit built faster, reduce gridlock and promote economic growth. That is why we are building four new or expanded subway lines: the brand-new Ontario Line by 2027; the Yonge North subway extension by 2029-30; the Eglinton Crosstown West extension by 2030- 31; and the three-stop Scarborough subway extension by 2029-30.

~~For the first time in a very long time - on projects of this magnitude - it's happening.~~

~~We're building transit for the future." -497- ...... 'V_._ ...... ""' ...... _ .. _._ ...... J ...... t" ...... , ...... ,...... -498- Subscription Help~~

~~For the Press~~

~~Media Contacts~~

~~Privacy I .Accessibility Queen's Printer for Ontario, 2020 -499- -500-~~

~~Bulletin Governments of Canada and Ontario Download Sign Canada's First Housing Benefit d Download Text December 19, 2019 9:30 AM. I Ministry of Municipal Affairs and Housing~~

Toronto, ON - Every Canadian deserves a safe and affordable place to call home. That is why, in 2017 the Federal Government launched the National Housing Strategy (NHS) and in 2018 the Province of Ontario signed the bilateral agreement on housing.

Today, the Honourable Ahmed Hussen, Minister of Families, Children and Social Development and Minister responsible for the Canada Mortgage and Housing Corporation (CMHC), along with the Honourable Steve Clark, Ontario's Minister of Municipal Affairs and Housing, announced that both governments will provide direct affordability support to Ontarians who are in housing need. The joint investment of $1.4 billion will be the first under the Canada Housing Benefit.

The Canada-Ontario Housing Benefit builds on the Canada-Ontario Bilateral Agreement under the National Housing Strategy which will provide more than $5.75 billion to protect, renew and expand social and community housing, and support Ontario's priorities related to housing repair, construction, and affordability. Today's announcement demonstrates a shared commitment between Canada and Ontario to prioritize making housing affordable for Ontarians.

~~Quotes:~~

"Through the National Housing Strategy, more middle-class Canadians - and people working hard to join it - will find safe, accessible and affordable homes. The Canada Housing Benefit is a key pillar of the National Housing Strategy that will help families across Canada. Together, we will build strong communities where Canadians can prosper and thrive, now and for the future." - Honourable Ahmed Hussen, Minister of Families, Children and Social Development and Minister responsible for the Canada Mortgage and -501- -502- Housing Corporation

"Our government knows how important it is for the people of Ontario to have housing they can afford. We are working with the federal government to deliver on provincial priorities - including making housing more affordable. The new Canada-Ontario Housing Benefit will give more options to people who are looking for housing that meets their needs and their budgets. The best results come from working together and that includes with all levels of government." - Honourable Steve Clark, Minister of Municipal Affairs and Housing

"Today's announcement is another great example of how governments are working together to tackle issues to help our residents. Making sure people have access to affordable housing is a top priority for me as Mayor and that requires the cooperation and support of other levels of government. I have continuously advocated on behalf of our residents, and asked for increased investment to the Canada Housing Benefit from both the provincial and federal governments. Our call has been answered and now this new agreement will help more families have access to housing that is safe, secure, and affordable." - John Tory, Mayor, City of Toronto

~~Quick Facts~~

~~• The Canada-Ontario Housing Benefit will provide funding directly to households to help them afford their housing costs.~~

• In Ontario, the Canada-Ontario Housing Benefit will prioritize households in need that are on, or eligible to be on, a social housing waiting list and households in financial need living in community housing. This includes survivors of domestic violence and human trafficking, persons experiencing or at risk of homelessness, Indigenous persons, seniors and people with disabilities.

• The Government of Canada will invest $2 billion in the Canada Housing Benefit across the country, which will be cost-matched by provinces and territories for a total $4 billion investment over 8 years, starting in spring 2020. The federal government and provinces and territories are working together to co-develop 13 housing benefit programs, one for each jurisdiction, that will respond to local housing affordability challenges.

• The Government of Canada is currently rolling out its National Housing Strategy (NHS), an ambitious 10-year, $55 billion plan that will create 125,000 new housing units and lift 530,000 families out of housing need, as well as repair and renew more than 300,000 housing units and reduce chronic homelessness by 50 percent.

• Ontario is investing in the community housing system that was neglected for years, investing more than $1 billion in 2019-20 to -503- -504- help sustain, repair and grow community housing in Ontario.

~~Additional Resources~~

• As Canada's authority on housing, CMHC contributes to the stability of the housing market and financial system, provides support for Canadians in housing need, and offers unbiased housing research and advice to all levels of Canadian government, consumers and the housing industry. For more information, please visit cmhc.ca or follow us on Twitter, lnstagram, YouTube, Unkedln and Facebook.

• Ontario is committed to increasing housing supply across the province, while getting the best value for taxpayers. Cutting red tape will bring housing to market faster - leading to lower housing costs and helping people keep more of their hard-earned dollars. For more information on affordable housing in Ontario, visit ontario.ca/affordablehousing or follow us on Twitter.

~~• To find out more about the National Housing Strategy, visit www.placetocallhome.ca.~~

~~• Learn about Ontario's strategy to sustain, repair and grow our community housing system.~~

~~Media Contacts~~

Valerie Glazer Audrey-Anne Coulombe Office of the Minister of Families, Canada Mortgage and Housing Children and Social Development Corporation [email protected] [email protected] 819-654-5546 613-748-2573

Julie O'Driscoll Conrad Spezowka Minister's Office, Ministry of Communications, Ministry of Municipal Affairs and Housing Municipal Affairs and Housing Julie.O'[email protected] [email protected] 416-585-7066

Share Tags FbM -505- ..,,,....,,_...,...,,_,._,._ 0 '-'""' I W.O.O.O.O.O..O.W.0..0...... _ __,__..._._...... ,...... _.,.._._.,.._.._,_.., ...... t:,...... ___ ._. .... ,._,.,_,., ,._,._._,.,._...,,.,_,_b ~..,,_.._ ...... _ .. -506- p

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~~News Release Ontario Investing in Supportive Housing Download in Toronto d Download Text Province helping vulnerable women with affordable housing and supports~~

~~October 24, 2019 11 :00 A. M. I Ministry of Municipal Affairs and Housing~~

~~Toronto -The Ontatfo government is investing over $5.2 million in Toronto to give women who are homeless or at risk of becoming homeless the housing and support services they need.~~

Ontario's investment will go towards 35 new apartments for Margaret's Housing and Community Suppoti Services in downtown Toronto. Four semi-detached homes will be converted into an apa1iment building on Winchester Street. The new building will feature 31 bachelor units and four one-bedroom units. Seven of the units will be wheelchair accessible. The building will also featlll'e a large kitchen and dining room where tenants can take cooking classes or eat together.

Margaret's Housing and Community Support Services helps women with chronic mental health challenges by giving them access to their own living space, life skills coaching, and other community services and resources.

Margaret's staff provide ongoing supports to help residents develop life skills, educate them about their illnesses, provide medication management, and help residents engage in meaningful activities. Staff will include four credentialed workers, two peer support workers and one program manager.

"In everything our government does, we are putting people first, by investing in housing and homelessness, including suppo1iive housing," said Steve Clark, Minister of Municipal Affairs and Housing. "Homelessness is not just a housing issue. By investing in local organizations like Margaret's, we can help the most vulnerable people move off the streets and get the crucial support services they need."

This funding is provided through Ontario's Home for Good supportive housing program, which provides housing assistance and supp01i services to people experiencing -509- ...... , ...... ' ...... 0 ...... , ...... t't''-' ...... 0 ...... -510- homelessness or who are at imminent risk of homelessness.

"In transferring these four rooming houses from Toronto Community Housing to Margaret's Housing and Community Supp011 Services we are helping to end the cycle of clu·onic homelessness for 35 women who will be able to call these new self-contained apmtments home," said Ana Bailao, Deputy Mayor of the City of Toronto ..

~~The new apartment building is expected to open next year.~~

~~Quick Facts~~

• Ontario has more than 20 supportive housing programs assisting people with a wide range of support, including Indigenous people, those with mental health issues, people with developmental disabilities, seniors, youth, and people who have experienced homelessness.

• The Ministry of Municipal Affairs and Housing is part of a cross government approach working with other ministries to identify opportunities to streamline and improve coordination of the Province's supportive housing programs.

~~Media Contacts~~

~~Julie O'Driscoll Conrad Spezowka Minister's Office Communications Julie.O'[email protected] [email protected] 416-585-7066~~

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~~Privacy I Queen's Printer for Ontario, 2020 -513- -514-~~

~~Page 19~~

~~Court of Appeal File No: C65861~~

~~COURT OF APPEAL FOR ONTARIO~~

~~BETWEEN:~~

~~CITY OF TORONTO~~

~~Applicant (Respondent in Appeal) - and-~~

~~ATTORNEY GENERAL OF ONTARIO~~

~~Respondent (Appellant)~~

~~AND BETWEEN:~~

~~ROCCO ACHAMPONG~~

~~Applicant (Respondent in Appeal)~~

~~- and-~~

~~ONTARIO (HON. DOUG FORD, PREMIER OF ONTARIO), ONTARIO (ATTORNEY GENERAL)~~

~~Respondents (Appellants) - and-~~

~~CITY OF TORONTO~~

~~Respondent (Respondent in Appeal) (Title of Proceeding Continued on p. 2)~~

~~AFFIDAVIT OF JOSH HUNTER (Sworn October 31, 2018) -515- -516-~~

~~Page 20~~

~~AND BETWEEN:~~

~~CHRIS MOISE, ISH ADERONMU, and PRABHA KHOSLA, on her own behalf and on behalf of all members of Women Win TO~~

~~Applicants (Respondents in Appeal) - and-~~

~~ATTORNEY GENERAL OF ONTARIO~~

~~Respondent (Appellant) - and-~~

~~.JENNIFER HOLLET, LILY CHENG, SUSAN DEXTER, GEOFFREY KETTEL and DYANOOSH YOUSSEFI~~

~~Interveners (Respondents in Appeal)~~

~~AFFIDAVIT OF JOSH HUNTER (Sworn October 31, 2018)~~

~~I, JOSH HUNTER, of the City of Burlington in the Province of Ontario MAKE OATH AND~~

~~SAY:~~

~~1. I am the Acting Deputy Director in the Constitutional Law Branch of the Ministry of the~~

Attorney General. I have been in this position since June 25, 2018. As Acting Deputy Director, counsel in the Constitutional Law Branch regularly report to me regarding their files. During the period August 10 to 23, 2018, I was Acting as the Director of the Constitutional Law Branch. In addition, I was assigned as supervising counsel to counsel for the Attorney General of Ontario

("Ontario") assigned in this case. As supervising cOlmsel, counsel for Ontario in this proceeding kept me regularly apprised of their conduct of the litigation. I have also reviewed the file, -517- -518-

~~: l' 3~~

~~i ·i including the correspondence and record in this proceeding, to f111ther inform myself of the matters '~~

set out herein. j 2, As a result, the information set out in this affidavit is either based on my direct lmowledge I or was provided to me by counsel, in many cases contempol'aneously with the events described l. he1·ein. Where the inf01mation set out in this affidavit is not based on my direct lmowledge, I have stated the so\ll'ce of the infol'mation and believe it to be true.

~~A. Letter from Mr Robin Basu to Justice Belobaba~~

3. As will be explained in greater detail below, in ordel' to protect Ontario's l'ights in the current appeal, on August 24, 2018 (seven days priol' to the heal'ing of the City of Toronto, Moise et al and Achampong applications) lead counsel for Ontario, Robin Basu, prepared a lettel' to the

Honourable Justice Belobaba (the "Application Judge"), setting out Ontario's concerns l'egarding the lack of procedlll'al fairness afforded to Ontario in this proceeding. 1 I reviewed Mr Basu' s letter to the Application Judge befOl'e it was sent and believe it to be a tmthful account of the events described therein based on my contemporaneous conversations with counsel for Ontaiio (Mr Basu2 and Ms Yashoda Ranganathan) in this case.

~~B. Rocco Achampong Commences an Application against Ontario and the City of Toronto~~

~~4. On July 30, 2018, the Constitutional Law Branch became aware through media reports that~~

~~Rocco Achampong, a candidate in Ward 13 under the then~existing 47-ward electol'al stmctm·e for~~

~~Tomnto intended to bring a proceeding challenging the Better Local Government Act, 2018 (the~~

~~"Act" or "Bill 5"), which on that day had just been introduced. On Tuesday, July 31, 2018, we~~

1 Letter from Robin Basu to Justice Belobaba, dated August 24, 2018 at 5, Joint Appeal Book, Vol 1, Tab 21 at 199 [Basu Letter]. 2 As Mr Basu will be arguing the motion for fresh evidence, I am informed by and believe the independent advice of Ms Ranganathan. -519- -520-

~~Page 22 4~~

~~became aware from a Twitter posting by Mr Achampong that was reproduced in the media that his notice of application had been issued by the Court. Later that same day, we obtained from the~~

Court a copy of Mr Achampong' s notice of application challenging Bill 5 and naming Ontal'io and the City of Toronto as respondents.3 The notice of application did not raise any constitutional claims but was grounded in the administrative law concept of"legitimate expectations." The notice of application also only sought interim relief.

~~5. On Tuesday, August 7, 2018, Mr Achampong for the first time served material on Ontario, consisting of an amended notice of application and a supporting affidavit, sworn on August 6,~~

2018, five pages in length, with six attachments.4 Like the original, the amended notice of application did not raise any constitutional claims, was not accompanied. by a notice of constitutional question, and only sought interim relief. Specifically, Mr Achampong sought the suspension ofBill 5 until after the October 22, 2018 municipal election. Mr Achampong's application raised an alleged breach of "legitimate expectations'' and alleged reliance on pre~ existing electoral law. Mr Achampong did not serve any expert evidence. 5

~~6.. On Wedn~sday, August 8, 2018, we learned through media rep01is of a court date set for~~

August 14, 2018 regarding Mr Achampong's matter. Counsel contacted Mr Achampong that day by telephone. Mr. Basu recorded the matters discussed in that call in his August 24, 2018 letter to the Court.6 The account set out therein accords with my recollection of what was reported to me by

~~Mr Basu7 and Ms Ranganathan on or about August 8, 2018. The contents of the call are also reflected in Mr Basu's email dated August 13, 2018, to Mr Achampo:ng, copied to Glenn Chu,~~

3 Notice of Application of Rocco Achampong dated July 31, 2018, Joint Appeal Book, Vol I, Tab 10. 4 Amended Notice of Application of Rocco Achampong, dated July 31, 2018, Joint Appeal Book, Vol 1, Tab 11; A copy of the Affidavit of Rocco Achampong sworn August 6, 2018 and attachments is attached as Exhibit "A". 5 Amended Notice of Application ofRocco Achampong, dated July 31, 2018, ibid. 6 Basu Letter at 5-6, supra note 1 at 199-200. 1 As indicated in note 2 above, since Mr Basu will be arguing the motion for fresh evidence, I am inf01med by and believe the independent advice of Ms Ranganathan. -521- -522-

~~'·' 5 Page 23 .. ~"~~

~~counsel for the co-respondent City of Toronto8 and in the transcript of Mr Basu's submissions at~~

~~Civil Practice Comt on August 14, 2018. 9~~

~~7. Mr Achampong acknowledged on the call that the August 14, 2018 appearnnce might be a~~

~~scheduling hearing at Civil Practice Comt, although his position would be that the application for~~

~~interim relief should be heard that day. Mr Basu advised Mr Achampong of Ontario's position that,~~

~~at a minimum and based on the case law, an application (even for interim relief) could only be~~

~~entertained after Bill 5 was actually enacted. 10 Mr Basu asked Mr Achampong when we would~~

~~receive his factum in supp01t of his claim for interim relief. Mr Achampong stated that he would~~

~~serve it the next day on August 9, 2018. No factum, conespondence or communication, however,~~

~~was received from Mr Achampong until August 13, 2018. 11~~

~~8. On Thursday, August 9, 2018, Ontario delivered a notice of appearance in Mr~~

~~Achampong' s application.~~

~~9. On Monday, August 13, 2018, in response to Mr Basu's email to Mr Achampong of that~~

~~date, setting out the province's position with respect to the August 14, 2018 Civil Practice Corut~~

~~attendance, counsel for the City of Toronto proposed postponing the August 14, 2018 Civil~~

~~Prnctice Comt appointment to a date after August 20, writing: "This makes the most sense since we [i.e. the City] will not have instrnctions until August 20.''12~~

~~10. Subsequently, in the late aftemoon of August 13, after speaking with counsel for Ontario,~~

~~Mr Achampong provided by email a factum, notice of motion for interim relief and a fresh~~

8 A copy of the email from Robin Basu, dated August 13, 2018, 3 :05 pm, to Rocco Achampong, copied to Glenn Chu and Yashoda Ranganathan, is attached hereto as Exhibit "B" 9 Transcript of August 14, 2018 Civil Practice Court Appearance Before Justice Glustein at 3-5, Joint Appeal Book, Vol 1, Tab 3 at 23-25 [CPC Transcript]. 10 Exhibit "B", supra note 8; Basu Letter at 5, supra note 1 at 199. 11 Exhibit "B", ibid; CPC Transcript at 3-4, supra note 9 at 23-24; Basu Letter at 5-6, ibid at 199-200. 12 A copy of the email from Glenn Chu, Counsel for the City ofTol'Onto, dated August 13, 2018, 3:34 pm, to Rocco Achampong and Robin Basu, copied to Yashoda Ranganathan, is attached hereto as Exhibit "C". -523- -524-

~~Page 24 6~~

~~affidavit. The material raised for the first time a constitutional claim based on unwritten~~

constitutional principles and an unparticularized allegation of breach of Charter s 7 (procedural j fairness). The supporting affidavit was eight pages in length and referred to ten attachments, which I. i were not included in the email. There was no expert evidence. The claim again appeared to be . l grounded in the concept of legitimate expectations. 13 1·

C. August 14 attendance at Civil Practice Court I 11. On Tuesday, August 14, 2018, counsel for Ontario, counsel for the City of Toronto, Mr i' i l Achampong (himself a lawyer) and Mr Gavin McGrath ( counsel for Mr Achampong) appeared before Justice Glustein in Civil Practice Court. (We subsequently ordered and received a transcript of this Civil Practice Court appearance which we pl'Ovided to the Application Judge and the parties. It appears in the Joint Appeal Book (Vol 1, Tab 3). I have reviewed this transcript.)

~~12. At Civil Practice Court on August 14, 2018, Mr Achampong proposed to have his claim for interim relief heard on Thursday, August 16, 2018.~~

13. Mr Basu presented Ontario's position that it would be premature to hear a claim fo1· interim relief before Bill 5 had passed, and that~ in any event, it was unreasonable for the motion to be heard on August 16, 2018 given Ontario had only received material from Mr Achampong on

~~August 13, 2018. 14~~

~~14. To proceed in an orderly way, Mr. Basu submitted that the preferable course was to come back on August 21st to Civil Practice Court as Mr Chu, the City's counsel, had proposed. 15 Mr.~~

~~Chu had suggested August 21st to allow the City to obtain instructions at the August 20, 2018 City~~

13 A copy of Mr. Achampong's email to Glenn Chu, Robin Basu and Yashoda Ranganathan dated August 13, 2018 enclosing motion materials for a motion to be heard August 14, 2018 is attached as Exhibit "D"; Basu Letter at 6, supra note 1 at 200. 14 CPC Transcript at 4-5, supra note 9 at 24-25. 15 CPC Transci:ipt at 7, ibid at 27. -525- -526-

~~7 Page 25~~

~~. Ctmncil. That meeting had been scheduled to receive the report that the City Solicitor had been~~

~~; l directed to make to Council on the City's options for challenging Bill 5. I j~~

15. Mr Chu had also suggested a possible hearing date of August 31, 2018 before Court and ,1- cleared that date with Ms Michelle Chen, the Motions Coordinator, who was present at Civil I·· Practice Comt. Mr Basu advised the Court that the Attomey General's agreement to that date was

~~subject to the caveat that Ontario did not yet know the extent of the City's application and whether~~

it would put facts into issue. 16 I 16. Mr Basu's submissions on these points were as follows: MR BASU: My friend for the City proposed yesterday to adjourn this attendance to August I 21st, which is the day after, where we'll have a better sense of where the land lies, and if any other claims come forward, then we'll, you know, presumably, presumably, I don't I mean to presume as to what the legislature will do, but presumably the legislation will be · enacted and enforced [sic] by then, and we can see, you know, if other people come ' forward, whether there is, in fact, going to be more litigation.

The alternative, which we discussed with Ms. Chen and with counsel, it was not amenable to counsel for, for the applicant, who is also co1.msel, it was amenable for the Province and it was amenable for Mt·. Chu for the City, was to book a half day now for Friday, August 31st, which we understand would be available on an urgent basis. I would want to put an asterisk beside tltat, because we obviously don't have any materials from tlie City, and we do11 't know tlte extent to whiclt tltey will put facts into issue and so fo1•tlt. So in - if we want this to proceed in an orderly way, the better course, in our submission, is to come I I back on the 21st, where we see how things ...

~~THE COURT: I understand.~~

MR BASU: ... stand but, you know, we're in your hands with respect to that. We're - we, we don't, you lmow, we want to proceed with the litigation in a timely way. The election is October 22nd, and we do have to work backwards :ffom that to get, to get the - things ready for the election, and obviously if an interlocutory injunction is gr~nted, everything will be up in the air, and people will have to figure out where things go.

~~So that - I guess that's the situation. You know, we've - unfortunately, I know, I know my friend wants to be heard this Thursday, but if he did, you lmow, he should have moved a~~

~~16 CPC Transcript at 7-8, ibid at 27-28. -527- -528-~~

~~Page 26 8~~

~~little faster in, terms of, getting us the material, because now we're reall1 in a, in a bit of a · jam, and in any event, we ought to wait for the City in our submission. 1~~

~~I I [Emphasis added] l 17. As noted, the City of Toronto's counsel proposed adjourning the proceeding to a Civil~~

· Practice Court appointment bn August 21, 2018 so that he could obtain it~stmctions from City I Council. Counsel for the City indicated that if the City were instmcted to bring an application on I ! I Monday August 20 it would seek to have the application argued on the merits, together wi~h Mr I j i Achampong' s, on August 31st. To that end, the City would endeavour to serve its materials by i Wednesday, August 22, 2018:

~~MR. CHU: So my original suggestion to all counsel was that we adjourn the CPC until Tuesday [August 21st] as my :friend has indicated.~~

~~THE COURT: Right.~~

MR. CHU: To us, that made the most sense. We will know at that point in time what the City's position ultimately is, whether it will, on its own be issuing some sort of legal proceeding, and then, of course, to join those matters together, and the timetable that was suggested was actually mine. We anticipate if we were to get instmctions to commence our own proceeding, that we would probably serve those materials by the Wednesday, [August 22nd] hopefully, and try to actually have the application, or whatever it is, I'm assuming it's an application, ru.'gued fully on the 3 lst. 18

~~18. Justice Glustein repeatedly stated the Comt's preference to have the matters heard~~

~~together, 19 and indicated concern both not to lose the date of August 31, 2018 if it were not~~

~~booked, but also of the need to have the matter spoken to again on August 21, 2018, because~~

~~scheduling issues might arise:~~

~~THE COURT: I mean, I do have some concern that if we - obviously, we still have to deal with scheduling on the 21st, because we'll know at that point who's ...~~

~~MR. CHU: What we're doing.~~

~~THE COURT: .. .involved in the litigation.~~

~~17 CPC Transcript 7-8, Ibid at 27-28. 18 CPC Transcript at 10, ibid at 30, 19 See e.g., CPC Transcript at 8-9, 16, ibid at 28-29, 36. -529- -530-~~

~~9 Page 27~~

~~. MR. CHU: Co11·ect.~~

~~THE COURT: And we'll lmow what needs to be scheduled.~~

~~MR. CHU: Corl'ect. 20 , ...~~

~~THE COURT: [Mr Achampong's] application would have to move along within that same time period [for an August 31st hearing], because we're not going to hear this thing twice.~~

~~MR. CHU: Co11·ect.~~

THE COURT: We're going to hear the issues in one forum with everybody involved who's participating. And it may m,ake some sense, I'm thinking that it does, to book that date of August 31st, because I don't want to lose the date.21

THE COURT: .. .If everyone is willing to work towards a date of the 31st, we can schedule that date now, but that date can only be scheduled with a fixed timetable, and so it would mean - there's no point fixing a timetable today, I don't think, fo1· the delivery of your materials. We need to lmow what's going ....

~~MR. ACHAMPONG: Oh, my materials have already been served, Your Honour.~~

~~THE COURT: They've already been served.~~

~~MR. ACHAMPONG: And they'll be filed by end of...~~

~~THE COURT: Well, that's fine, so ....~~

~~MR. ACHAMPONG: ... end of afternoon.~~

~~THE COURT: If you're no longer filing any additional materials ...~~

~~MR. ACHAMPONG: Yes.~~

~~THE COURT: ... then on the 21st, once we know what's happening with the City...~~

~~MR. ACHAMPONG: That's ....~~

~~THE COURT: ... we can get everybody involved to have a scheduling timeframe for that, including yourself, you're welcome to attend to deal with that. Your material is there, but~~

~~2°CPC Transcript at 11, ibid at 31. 21 CPC Transcript at 12, ibid at 32. -531- -532-~~

~~Page 28 10~~

~~that is, I think, the only practical way to make sure that everyone's at the table when we have an argument over that.22~~

THE COURT: Okay. I mean, right now, I'm scheduling - or we will be scheduling a half day hefil'ing, hopefully a full day hearing, I'm going to speak to Ms. Chen in a second, but hopefully a half day or a full day on the 31st, okay, to deal with the issues arising out of the· L proposed legislation. All right. On the 21st, we're going to have a re-attendance here. I won't be here, but it'll happen in front of someone who is in the CPC court that day. 23

THE COURT: So I have no difficulty setting the date of the 31st. What I say to you [Mr Achampong] is this, that I will set it. I - you've already delivered your material, okay, you'll - you can come back, I presume, on the 21st to deal with scheduling issues, con-ect?24

THE COURT: All right. So my intention is to have everybody come back on the 21st, and then either we have the City added into this, as you said, it makes more sense to do that. If the City is going to be added into it at that point, then the City is going to have to do a timetable that gets us to the 31st. We, we talked about that. We talked about the City I anticipating that they'll get their material in by the 23rd, okay. We talked about the Crown I anticipating that they get their responding material in by - and we have to do this quickly, by the 27th or 28th. We have a hefil'ing on the 31st, and we deal with this. It doesn't change the hearing date.

~~MR. ACHAMPONG: Yeah....~~

~~THE COURT: It just deals with who's going to be participating in this.25~~

~~THE COURT: You want a motion to be heard on the constitutionality issues of these things, and, and that makes sense to have that heil'd quickly.~~

~~MR. ACHAMPONG: Yes.~~

~~THE COURT: It has to be heard quickly.~~

~~MR. ACHAMPONG: Yes.~~

~~22 CPC Transcript at 14, ibid at 34. 23 CPC Transcript at 15, Ibid at 35. 24 CPC Transcript at 16, ibid at 36. 25 CPC Transcript at 16, ibid. -533- -534-~~

~~11 Page 29~~

THE COURT: No one is disputing that August 3 lsth can be used for that, okay, so under the scenario where the City comes back on the 21st and says, you know what, we're not going to challenge it. If they make that decision, and say we're going to go way by way of referendum, we're not going to challenge things, then we still have the date of the 31st. So you're so we're not losing that date if the Ciry doesn't do it. 26

~~THE COURT: Okay, well, understand, though, that what we're going to do is we're going to put a court ordered timetable here.~~

~~MR. CHU: I understand.~~

~~THE COURT: So I'm going to put that date in, because ...~~

~~MR. CHU: You'll put that date.~~

THE COURT: ... we want to move everything forward. And that affects Mr. Achampong as well, and that's fine. So as long as both of are comfortable getting material by August 22nd, that's the date that we'll order. I'm going to put it in in a second. So that takes us to August 22nd. Obviously, it depends whether the City gets instructions, but if the City gets instructions, the date will be August 22nd to file your material.

~~MR. CHU: Thank you.~~

~~THE COURT: Mr. Achampong, yours is going to be August 22nd in any event, because the hearing is going ahead on the 31st. Okay.~~

~~MR. ACHAMPONG: Are you going to word it as contingent?~~

~~THE COURT: No, the hearing date is going, is going to go ahead on the 31st, all right.~~

~~MR. ACHAMPONG: Yes, I was just concerned with your wording when you said that, that, that depends on whether or not the City gets instructions.~~

~~THE COURT: Well, all I'm saying in my order ...~~

~~MR. ACHAMPONG: All right.~~

THE COURT: .. is that if the City chooses, okay, to bring an action or an application in relation to this, that they are to file their material by the 22nd. It doesn't change the date going ahead. It just is if they're doing it, they're going to file their material by the 22nd, you're going to file your material, M1'. Achampong, by the 22nd.27

~~[Emphasis added]~~

~~26 CPC Transcript at 17, ibid at 37. 27 CPC Transcript at 22-23, ibid at 42-43. -535- -536-~~

~~Page 30 12~~

~~·, 19. Based on the discussion before him concernitig·Mr Achampong's proceeding and the~~

~~potential proceeding by the City, Justice Glustein ultimately set the following timetable for the~~

~~hearing on the merits of Mr Achampong's application and the City's application (if the City~~

~~decided to bring one):~~

• August 22, 2018 at 5 pm: Service of any further material to address all issues in the proceeding by Mr Achampong, as well as the City's application material if it were to choose to bring an application;

~~• August 27, 2018 at 5 pm: Service of Ontario's responding material to the applications, as well as service of any responding material of the City to Mr Achampong' s application;~~

~~• August 28, 2018 at 2 pm: Service of Mr Achampong's factum, and the City's factum if it should choose to bring an application;~~

~~• August 29, 2018 at 5 pm: Service of Ontario's factum responding to the Achampong application and the City's application if brought; and~~

~~• August 31, 2018: Hearing on the merits of Mt· Achampong's application and the City's application ifbrought).28~~

~~20. Justice Glustein also ordered a re-attendance at Civil Practice Com1 on August 21, 2018 to~~

~~address "scheduling issues, if they arise" or "if there's any other issues that were in - either in your~~

~~applications or anything else that happens to come through we can address timing":~~

THE COURT: I thank all counsel for their cooperation. I'm glad we're to move this thing forward. I have not yet put down, and perhaps I'm going to ask counsel about this, a re attendance on tlte 21st, I tltink I sltould pl'ohahly add tltat. I mean, tltel'e may not need to be one, ltypotltetically, but I tltink tltel'e likely is - tltel'e sltould be one to update tT,e, tlie scltedufing issues, if tltey al'ise. There shouldn't be any difference.29

~~28 CPC Transcript at 32, ibid at 52; Endorsement ofJustice Glustein, dated August 14, 2018 at 2-3, Joint Appeal Book, Vol 1, Tab 2 at 16-17. 29 CPC Transcript at 33, ibid at 53. -537- -538-~~

~~13 Page 31~~

THE COURT: Col'rect, given that this is going to be out there in terms of a schedule, if there are others, we should have something where people can show up. So I think, just so we don't have to worry about scrambling for that date, we're going to add to this.

~~Subsequent civil practice court attendance is scheduled for Tuesday, August 21st, 2018 at 9:30 a.m. to address any outstanding schedule issues.~~

And at that point, if tltere 's any otlter issues tltat were in - either in yo111• applicatio11s or anytlting else tltat happens to come througlt we can address timing. 30 j· [Emphasis added] I I D. Dispute as to counsel's representations on whether facts would be in issue ! ! ' 21. Mr Basu, in his letter to the Application Judge of Aligust 24, 2018 stated that the Crown's agreement to serve its responding material to the City's claim by August 27, 2018 was contingent on the representations counsel for the City had made concerning the scope of the evidence the City planned to lead:

... when the schedule was fixed, Crown counsel relied on the City's counsel's explicit information that the evidentiary record on which the City would base its claim (if one was brought) was all'eady in the public domain and had been well adverted to in the public debate on Bill 5 (e.g., the history of the establishment of the 47 ward structure that would be replaced by Bill 5 and the public record with respect to the absence of consultations prior to the introduction ofBill 5).31

22. In c01Tespondence dated August 24, 2018 to the Application Judge, Mt.· Chu disputed the statement "Crown counsel relied on the City's counsel's explicit information that the evidentiary record on which the City would base its claim (if one was brought) was already in the public domain and had been well adverted to in the public debate on Bill 5" in the following terms:

We did not indicate (nor could we, not knowing what our instructions would be) that all the materials the City may use in a potential p1·oceeding would be in the public domain, as Mt· Basu's letter suggests. Rather, we advised that the City's consultation about a review of its ward structure is a matter of public record. 32 .

3°CPC Transcript at 34, Ibid at 54. 31 Basu Letter at 7, sipra note 1 at 201. 32 Letter from Glenn Chu to the Honourable Justice Belobaba, dated August 24, 2018, Joint Appeal Book, Vol 1, Tab 20. -539- -540-

~~Page 32 14 i '·.~~

~~23. · With respect to this disagreement, Ms Ranganathan advises me and I believe that when the~~

~~schedule was being discussed outside the courtroom among counsel attending Civil Practice Court~~

on August 14, 2018, and Mr Chu was pressing for a hearing of the City's application (if brought) by the end of August 2018, Mr Basu indicated to Mr Chu our concern that Ontario did not know what evidentiary record the City would be relying upon or what the scope of the City's application would be. Mr Basu indicated that the answers to these questions would affect what Ontario could agree to in terms of a schedule.

24. I am informed by Ms Ranganathan and believe that Mr Chu's response to Mr Basu did not suggest that the City would file expe1t evidence or that it would place facts in issue or make claims that were not already publicly known. Nor did Mr Chu reserve the City's rights in this regard or decline to answer. Instead, in response to Mr Basu's concern, Mr Chu described the City as having been, in his words, "very transparent", in other words, that these matters were ah'eady public. At the time, the public debate (and the publicly-aired complaints of the Mayor and City Councillors) about the impugned legislation related to: (i) the absence of consultation by the new provincial government on the impugned measure; and (ii) the extensive process the City had recently undergone to establish its 47-ward structure. On these items there was no factual dispute nor a need for expert opinion evidence for either side. According to Ms Ranganathan, the impression was certainly left by Mr Chu that the City's application would not contain any surprises (such as the Affidavit of Gary Davidson, sworn August 22, 2018, providing opinion evidence in support of a claim with respect to "effective repl'esentation").

~~E. Proceedings expand in scope and evidence~~

~~25. On Monday, August 20, 2018 -11 days before the hearing on the merits-Mr Achampong, through his counsel, Mr McGrath, served a notice of constitutional question raising, for the first -541- -542-~~

~~15 Page 33i ).'.,'<°' :· ·•~~

~~time, ss 2(b) (freedom of expression) and 15 ( equality) of the Charter, but not including the s 7~~

~~(procedural fairness) claim asserted in his August 13, 2018 material. His notice maintained his~~

~~earlier claim with respect to unwritten constitutional principles.33~~

~~26. Also on August 20, 2018, City Council instructed the City Solicitor to commence a claim against Ontario and to suppo1i Mr Achampong's application and any other claims challenging Bill~~

27. In the afternoon on August 20, 2018, Ontario was served with the notice of application and notice of constitutional question by Chris Moise, Ish Aderonmu, and Prabha Khosla on her own behalf and on behalf of all members of Women Win TO (collectively, "Moise et al"), challenging

~~Bill 5 on the basis of Charter ss 2(b) (freedom of expression), 2(d) (freedom of association), and~~

~~15 ( equality) and unwritten constitutional principles. The notice of application indicated that six affidavits would be relied upon. 34~~

~~28. Later on August 20th, the affidavits of Professo1· Mariana Valverde, Chris Moise, Prabha~~

~~Khosla and Ish Aderonmu were provided to counsel for Ontario via email. 35 Counsel for Ontario were also advised by counsel to Moise et al that another expert affiant, Professor Myer~~

~~Siemiatycki, would be providing evidence. 36~~

~~29. Later in the afternoon of August 20th, counsel for Ontario was also contacted by counsel at~~

~~Paliare Roland LLP, who advised that their clients, Jennifer Hollet, Lily Cheng, Susan Dexter,~~

33 Notice of Constitutional Question of Rocco Achampong, Joint Appeal Book, Vol 1, Tab 13; A copy of the email from Gavin MacGrath to Robin Basu, Yashoda Ranganathan and Glenn Chu, dated August 20, 2018, is attached as . Exhibit "Eu. 34 A copy of the Notice of Application and Notice of Constitutional Question of the Moise et al Applicants served on August 20, 2018 is attached as Exhibit "F". 35 A copy of the emails from Goldblatt Pmtners LLP enclosing these affidavits is attached as Exhibit "G". 36 Mr. Siemiatycki's swom affidavit was provided by email on August 21 at 3:24 pm. A copy of the email co1Tespondence enclosing Mr. Siemiatycki's affidavit is attached as Exhibit "H". -543- -544-

~~Page 34 16~~

Geoffrey Kettel and Dyanoosh Youssefi ( collectively, "Hollet et al"), would be seeking to I intervene in the challenge to Bill 5 and to adduce evidence. 37 I 30.' In light of this change in circumstances, counsel for Ontario received instructions to seek to

~~adjourn the Civil Practice Court appointment on August 21, 2018 to the following week so that the~~

~~new material could be reviewed and a workable timetable established that would fairly allow~~

~~Ontario to respond but still have the matter litigated expeditiously.~~

~~F. The Application Judge refuses to adjourn the August 31, 2018 hearing date~~

~~31. Counsel attended Civil Practice Court on the moming of August 21, 2018. Ms Ranganathan~~

~~has advised me and I believe that prior to the commencement of Civil Practice Court, the parties~~

~~were unable to agree on next steps as all applicants and the supporting interveners insisted on~~

~~proceeding with the August 31, 2018 hearing date, and opposed Ontario's request fo1· an~~

~~opportunity to review the new materials.~~

~~32. Ms. Ranganathan and Mr Derek Bell, counsel to the Intervener Canadian Taxpayer~~

~~Federation ( also in Court that day), have both advised me of and I believe the following regarding~~

~~what occurred on August 21, 2018:~~

~~a) The matter was not spoken to at Civil Practice Cou1t on August 21, 2018, but instead was~~

~~traversed to Justice Belobaba's courtroom. His Honour advised the parties that he had been~~

~~assigned as the Application Judge.~~

~~b) The Application Judge ordered all three applications (launched by Mr Achampong, Moise~~

~~et al, and the City of Toronto) to be heard together on August 31, 2018, and maintained the~~

~~schedule set by Justice Glustein.38~~

~~37 Basu Letter at 8, supra note 1 at 202. -545- -546-~~

~~i. ··' '·,:.; 17 · Page 35 ·:i ::I(" Yi:~~

~~c) The Application Judge acknowledged that the Attorney General was suddenly facing (as~~

~~his Honour put it) an "avalanche" of new material, but declined Ontario's request to~~

~~adjourn the matter to Civil Practice Comt on August 28, 2018.~~

~~d) The Application Judge was initially open to a further case conference before him prior to~~

~~the hearing ( after counsel for Ontario had the opportunity to review and digest the new~~

~~material served (and to be served) on August 20 to 22, 2018).~~

~~e) After hearing the submissions of the patties, however, the Application Judge stated that he~~

~~would only consider adjusting the schedule by "a day or two" if counsel for Ontario~~

~~convinced him that cross-examinations were absolutely necessary; however, he indicated~~

~~that he would be extremely (as he put it, "99.5 per cent") reluctant to agree to such a~~

~~request.~~

~~f) Mr Basu raised with the Application Judge that, while Ontario did not object to the~~

~~intervention by Hollett et al, it objected to allowing them, as interveners, to expand the~~

~~record in the proceeding. The Application Judge advised counsel assembled before him that~~

~~he would allow interveners to participate in the heating and file evidence without the need~~

~~for any formal motions,~~

~~3 3. The Application Judge did not have the benefit of the transcript of the Civil Practice Court~~

~~appearance of August 14, 2018, which we had not yet ordered,~~

~~G. Applicants' and supporting interveners' materials served on August 22, 2018~~

34, The materials of the Moise et al and the Hollett et al interveners were formally served on I Wednesday, August 22, 2018 - nine days before the hearing on the merits, and five days prior to I 38 Endorsement of Justice Belobaba, regarding the August 21 case conference, dated August 22, 2018, Joint Appeal Book, Vol 1, Tab 4. -547- -548-

~~Page 36 18~~

~~the date by which Ontario was required to file its responding evidence. I have reviewed these~~

~~materials and they are voluminous:~~

~~• The Hollett et al materials consist of 660 pages, including five affidavits;39~~

~~• The Moise et al materials consist of 416 pages, including ten affidavits, two of which are~~

~~expert affidavits. 40~~

~~3 5. Shortly after 5 pm on August 22, counsel for Ontario were provided by email with a new version of the application record of Mr Achampong, which included a new affidavit from him, and~~

an affidavit from Li Zhang on behalf of Mario Racco. The record also contained a further amendment to the notice of application, now challenging Bill 5 's amendments to regional government. Mr Achampong advised that he would send the full application record with exhibits later on that day. The additional material was received at 9: 11 pm.41 I have reviewed the materials served by Mr Achampong on August 22, 2018 -they consist of 91 pages, including two affidavits.42

36. Just prior to 6 pm on August 22, counsel for Ontario were served with the application record of the City of Toronto. I have reviewed the City of Toronto's record in this proceeding. It consists of 1,111 pages, with three affidavits, including one expe1t affidavit.43

39 Record of the Hollett el al Interveners, Joint Appeal Book, Vol 4-5, Tabs 42-46. 40 Application Record of Moise et al, Joint Appeal Book, Vol 1-2, Tabs 25-36; A copy of the emails serving the Moise et al materials are attached as Exhibit "P', 41 Application Record of Rocco Achampong, Joint Appeal Book, Vol 1, Tabs 23-24; A copy of the emails from Rocco Achampong with the affidavit of Li Zhang and the full application record are attached as Exhibit "J", 42 Further Amended Notice of Application of Rocco Achampong, Joint Appeal Book Vol 1, Tab 14. 43 Application Record of the City of Toronto, Joint Appeal Book, Vol 2-4, Tabs 3 8-41. -549- -550-

~~19 Page 37~~

~~H. Responding expel't evidence and cross-examinations practically impossible~~

37. As Ontario's responding evidence was due on Monday, August 27, 2018, counsel for Ontario had to review the 2,278 pages of material served prior to delivering Ontario's responding I. evidence. At the same time, counsel had to continue to WOl'k on Ontario's factum on the merits. 3 8. Prior to August 21, 2018, counsel had considered the possibility of engaging an expert and I had conducted a preliminat·y assessment of potential expert witnesses, but in the absence of any claims or allegations - actual or tlll'eatened44 - that required a rebuttal from an expert witness, experts were not actually contacted or engaged. During that process, counsel provisionally ruled out engaging certain expe1ts, including Professor Sancton, who were making public statements critical of the process by which the impugned change to the composition of Toronto City Council was announced and proceeded with or who were commenting adversely on the absence of advance consultation or discussion of the issue during the Spring 2018 provincial election.

~~39. From Tuesday, August 21, 2018 onward, counsel for Ontario (including counsel and articling students from the Constitutional Law Branch and the Crown Law Office - Civil of the~~

Ministry of the Attorney General) conducted an intensive search for an expe1~ or experts to provide assistance in responding to the expert evidence that was now for the first time being put forwai·d.

40. Ontario's counsel and students-at-law reviewed the publicly available biographical information and/or publications of approximately 200 possible expe1ts across No1th America, and reached out to eight that were assessed as potentially suited to the task. Due to the sho1t timeline for Ontario's response (due on August 27th), and the inability of an expe1t to spend a reasonable amount oftime studying the issues raised in the proceeding, Ontario was imable to secure an

44 As noted above, from July 30 to August 20, 2018, the City gave its Solicitor three weeks to assess options on launching a challenge to the legislation, but all public statements as to the nature of a challenge (which were extensive, given the controversial nature of the legislation) suggested a claim based on the process of the enactment of the legislation and the absence of consultation by the Province; there were no controverted facts concerning this claim. -551- -552-

~~Page 38 20~~

~~expert to assist Professor Fowler was approached on August 22nd and was interested in assisting,·~~

~~but said the timing made his engagement impossible as he would need to familiarize ,himself with~~

~~the relevant context. 45 A number of other experts whom we had contacted also declined either by~~

~~email or orally. 46 Professor Sancton was not approached until after the hearing on August 31,~~

~~2018, but even ifhe had been approached priOl' to the hearing he would have been unavailable due to summer vacation plans with his family. 47~~

41. Cross-examination was not provided for in the timetable fixed on August 14, 2018, which the Application Judge insisted upon on August 21, 2018. It was also practically impossible as there was no time for cross-examinations: there were only five days between the date upon which the applicants were required to serve their materials (Wednesday, August 22) and the date on which

Ontario was required to serve its materials (Monday, August 27), and only 22 hours between the date on which Ontario's materials were to be served and the date on which the applicants were required to serve their facta (Tuesday, August 28 at 2 pm), with Ontario's factum due the following day, Wednesday, August 29, at 5 pm.

~~42. A one or two day adjournment would not have made any practical difference, particularly as the applicants and interveners had served 22 affidavits from 20 affiants.~~

~~I. Mr Basu's letter to the Application Judge~~

~~43. As noted above, on August 21, 2018 the Application Judge had invited counsel for Ontario to write to him after counsel had had a chance to review the voluminous new material served from~~

~~August 20th to 22nd, and "convince" the Application Judge if counsel needed an "extra day or~~

45 A copy of the email exchange between Professor Anthony Fowler and Audra Ranalli, dated August 22, 2018 is attached as Exhibit "K". 46 A series of emails from expe1ts canvassed by Ontario who were unable to assist due to the litigation timeline are attached as Exhibit "L". 47 Affidavit of Professor Andrew Sancton at para 124, Motion Record (Fresh Evidence Tendered by the Appellant) of the Attorney General of Ontario, Vol 3, Tab 4. -553- -554-

~~21 Page 39~~

~~two" for cross-examinations, though, as noted, the Application Judge said he would be extremely~~

~~disinclined to grant such relief (see para32).~~

~~44. As a result, after reviewing the voluminous evidence that was served, Mr Basu wrote to the~~

~~Application Judge on Friday, August 24, 2018 (three days prior to the due.date for Ontario's~~

~~evidence and seven days prior to the hearing on the merits), setting out Ontario's position "with~~

~~respect to the question of delivering responding expe1t evidence on behalf of Ontario and~~

~~conducting cross-examinations, paiticularly with respect to the opinion evidence, steps which~~

~~simply cannot be accommodated under the current schedule. "48~~

~~45. In his letter, Mr Basu set out Ontario's concerns regarding the timetable imposed:~~

Your Honour invited us to request a one or two day adjustment of the schedule (for the Crown's response and/or cross-examinations) if absolutely necessary once we had a chance to review the materials to be served on us on August 22, 2018. Upon review of the materials served two days ago, we are of the considered opinion that an extra day or two will not make a practical difference in the Crown's ability to respond. Accordingly, we will be proceeding to a hearing on the merits on August 31 as you have directed.

The fact that the cu11'ent schedule cannot accommodate the Crown obtaining responding expe1t evidence and/or conducting cross examinations (paiticularly cross-examinations of experts which would necessitate retaining expe1ts to assist Crown counsel), does have implications for procedural fairness that must be set out at this time.

~~An outline of events that led us to the current situation is necessary for the record and is contained in the chronology attached hereto.~~

[ ... ] prndent responding counsel in the normal constitutional case would insist upon the opportunity to identify and engage an expe1t to review [the expert material], to prepare tesponding expett evidence (if necessary), and assist counsel in the cross-examination of the claimants' experts and other witnesses. This is prndent practice in any case where expert evidence is tendered, and the right to proceed in this manner is protected by the requirements of procedural faimess.

[ ... ] the Crown's compliance with the current schedule, without the meaningful opp01tunity to engage an expe1t with the qualifications necessary to review and, if necessary, respond to the opinion evidence tendered in support of the constitutional challenges, and to assist in cross-examinations, cannot be taken as any acceptance by the

~~48 Basu Letter at 1, supra note 1 at 195. -555- -556-~~

~~Page 40 22 "I~~

~~Crown of any of this evidence. Nor can the Crown's failure to cross-examine any given affiant be taken as acceptance of the affiant's evidence.49~~

~~46. Mr Basu expressly reserved the right of the Crown to seek to adduce fresh evidence on~~

~~appeal:~~

Lastly, the Crown must reserve the right to seek to adduce fresh evidence on appeal, regardless of whether it is the appellant or respondent in any such appeal. In other words, the Crown's proceeding on August 31 without the practical oppo1tunity to meet the opinion evidence presented in support of the constitutional challenge should not be held against it in connection with any motion for fresh evidence on appeal. 50

~~47. In letters responding to Mr Basu's conespondence to the Application Judge, Mr Chu and~~

~~Mr Howard Goldblatt (counsel for the Moise et al applicants) rejected Ontario's procedural objections. 51~~

~~J. Ontado retained two experts after the August 31, 2018 hearing~~

~~48. After Ontario served its responding evidence on August 27, 2018, counsel for Ontario continued to search for expert witnesses.~~

~~49. Ontario contacted Professor Andrew Sancton on Thursday, September 6, 2018. Professor~~

Sancton indicated he would be available and willing to provide his expe1t evidence. As noted above, even if contacted on August 22, 2018, he would not have been available to provide evidence prior to the application hearing.

~~50. Ontario filed its notice of appeal on Wednesday, September 12, 2018, two days after the~~

~~Application Judge's decision on the merits, raising the failme of procedural fairness52 as a ground of appeal and advising of its intention to seek leave to adduce fresh evidence. 53~~

49 Basu Letter at 1-3, Ibid at 195-197. so Basu Letter at 3, ibid at 197. si Letter from Glenn Chu (counsel to the City of Toronto) to Justice Belobaba dated August 24, 2018 regarding the scope of the City of Toronto Application, Joint Appeal Book, Vol 1, Tab 20; Letter from Howard Goldblatt to Justice Belobaba dated August 25, 2018 replying to the letter of Robin Basu dated August 24, 2018, Joint Appeal Book, Vol 1, Tab 22. -557- -558-

~~23 Page 41~~

~~51. ·I am advised by Ms Ranganathan and believe that after the granting of a stay by the Court~~

~~of Appeal on September 19, 2018, counsel for the City of Toronto took the position that Ontario~~

~~had undertaken in the Court of Appeal to serve its fresh evidence by Friday, September 28, 2018. 54~~

~~In a chambers appearance on Wednesday, September 26, 2018, counsel for the City asked the~~

~~Court to direct that Ontario file its fresh evidence five days later on Monday, October l, 2018.~~

~~52. On September 27, 2018, Justice Sharpe established a timetable providing a reasonable~~

~~timeline for Ontario to serve its fresh evidence (by November 1, 2018). At that point, coun.sel for~~

Ontario reached out again to Professor Fowler to inquire as to whether, with the time that was now ... available, he might be able to assist.55 On October 3, 2018, Professor Fowler agreed to be engaged

~~by Ontario.~~

~~53. Given the deadline of November 1, 20l8 for Ontario to file its fresh evidence, both~~

~~Professor Sancton and Professor Fowler were able to take into account the results of the October~~

~~22, 2018 election in their opinions, something that they could not have done prior to the hearing of the application.~~

~~SWORN BEFORE ME in the City of Toronto in the Province of Ontario, this 31st day of October, 2018~~

/Jr! d /.7____...... ,.!··············~························ ...... _ ..• ~ ...... JOSH HUNTER/t ~j Commissioner for the Taking of Affidavits tv/,-.,-k Ly,w I cvv>--~ l.fS/,l.'-\S

52 Notice of Appeal, dated September 12, 2018 at paras 20-24, Joint Appeal Book, Vol 1, Tab 1. 53 Notice of Appeal, dated September 12, 2018 at pal'a 25, Ibid: 54 Tb,is was a proposal contained in. Ontario;s written stay submissions if the.Court of Appeal determined. tl;tat it wished to lwar l;IP.c:i cletimnine the appeal prior to the start of the rtewly elected Council's term on December 1, 2018. It was not an w1de1taking, and was not taken up by the Court of Appeal in its decision on the stay. 55 A copy of the email exchange between Professor Anthony Fowler and Yashoda Ranganathan, dated September 27 to Sept!lmber 28, 2018, is attached as Exhibit "M". Endorsement of Justice Shat'pe inclucling a tirnetablefor the appeal dated Septetnber 27, 2018, Joint Appeal Book, Vol J, Tab 9. -559- -560-

Mllll\\ll'Y or the Mlnltitliro <1u AWm1ny G~n~rnl PfQ\\Ut$Ur g6h6r111 CIVIi Law bivlalon tllvh1l11n du drolt <;tv\l .no aay s1,ael; 4th Floor 4• 6ta~o. no, rue Bay 'l"oronlo ON M7A 2S9 Toronlo ON M7A 2$9 ntario Tel: (416) 326-4476 Tell (416) :3"2M476 t::11x: (418) aia-1016 T~IM; (416) 32µ-4010 Rm The H01morable Justice Belobaba Oi~tado S-µp€:lriol' Col;ltt of Ju~ttce 393 Univernky Avcmi~ 'I'oi-onto 1 dnttufo 1Vf~OJJ17

~~lJeru.•. Justioe Belobabn:~~

Re: RQcco Alt lieJ' owh belutlf tmd O]t be/ta([ of (1,lL me,0.1ber~ of Women W/11 !l'O v. Atlo1'ttey 'Ge1te1•1ilof 011tm•lo .. Cou1tfFile No,: CY- 18-00603633-0000; Cily ofToro1ito v, A.ttorit(lyG1J1tei•11l of Ontario~ Cout•t ll'ifo No.1 18-09604797-0000.

~~We w1'ite further to the case DlJ)Qagoment confereno() of August ll, 2018 and the d.ellvery to ll!:l of the appUoants1 -and 1utet'Venets1 voluminous reoori:ls fat• tlle'August 31, 2018 hetu:lhg,~~

~~The purpose of this leltel' ls to set ont the Orown 1s positlo,n with. resJ)ect to the q'uestlon of dellverlng :i:esponc1lng expe1t evM~uce on b~half of the C~·own n11d oond\1ottng 9t·.os1,1 ..~~

~~examinations, pm-tici.1ludy ·with 1"esP9ct to the opi~loh cvide1lo·e.1 st1,,ps vvhioh simply _cannot be ncconunodatad under the out.rent schedule.~~

~~We also need to address an. issue t4at ha~ adse11 as a r~~ult of omtespondenoe with the City's OOU11Sol.~~

Iswa l ... R«~1,oml.e11t experts m,d J11·o~·s .. exflm/1ut#o11~ Th~ Ct'own appfoQlates lhe preslUttg need £01• a deciskin from the Comt on the appliai,u!.ts~ oJahns, · Your Honm11• l.iivHed us to niguest a one or tw.o day n<\just)rnnit 0f tho ~6hedt1le (fol' the Crown's 1"esponse and/oi•.oross-exatnlnl.).tio).ls). lf nbsoh1tely nec¢~sai'Y 0J1qe we.had a, '9hance fo revfow Hie mutG1l'.lals to be served on us on. August .22, 2018. Upon 1·eview of the mnterlals. setved two days I I agp> we are of ,the oonsldered oplw:on. that a11 extra day 01· two wlll Mt make a praoti.oal -561- -562-

~~1 difference in the CtoWn s &bili~y to tespbhd, Accordingly1 Wv .Will b(l ptoct;JetHng to a. headng on the medts on August 31 as you have directed,~~

~~The .fm1t that the our1·ent soheclull:l o:;tnnot acconunodate thi;,. Crown obtnining-1·espondU1g expert~~

·evide!'l.ce and/or conducting 9ross 0 exanitnatlons ·(pnl'liculru·ly oross-~xaJ;Uinatlons of ·expel'tS whloh would necessitate retainlng experts to assist Crown counsel), does have implioati011s for pcooedutal fairness that must be se~ out at this time,

~~An· ¢utlirtP of the events that led us to the current sitnatlon is necessal'Y fo1• the reco1·d and is oontaihed in the 0Iu·o11ology attached hereto.~~

We have 1·evlewed the affidavits provlded by Profosscn·s Vulvel'de and Slernlatycld 01\ behalf of the Moise !{l?pHcnnts and of the City's consultant Gm·y Davidson on behalf of the City, these affidavits proffe1• opinion evidence in relatlou to the Clwrte1• s. 2 and the s. 15 adverse effects disodmiuation olain1s now fl

reasons. First1 the a(\juclicatlon of the constit1.1tio11allty of legislation is 0f great p\1blic signifioruice, transoenoing the inletests of the patties to tne case and even the lnrerests of puctioular govei.mrtents, as principles can. be established that have serious and w!de,.runglng huplioations fo1' our govemm1ce 110w Eind into the future. this. ls refle.oted 1n the legisl~tlve provisions. and oase law on the right of Attomeys General to ttdduoe evidence itt support of the oonstittitionallty ofleglslatlo11, cvcm when tl.bt a patty to the 11tlgation.1 Seqond, there i.~ a]sq Um issue ofpossible appeuh;, It1 t.he present case, th~ City 1111s ~b:e~µy been ihstruofod by City Councilto exhaust ~n available iwpeals in its chulJertge to Bill 5, The Supreme Comi of Canada has cautioned that the record complled nt fli:st fostance in a constitutional case> and the findings of the fust :instance court, even on the soofo.t science evidence, is of utmost

~~1 Entv11 V BNIIII Ca1111ly JJoard ofEcfuciltio11, [1997] l SC[t'24 I flt parn~ 48, 55; 011h1do11 V C~~

impo1·hfoce on appeal.2 'l'ht'S P\"\t1. be so even in o~ses where, at first in:sfoncc, fhece was binding Supreme Court authocity on point which, if uppUed by the fll'1Jt instance court, would have resulted in the qismissal of the co;ustltutional ofaltn!l os a tnatter oflaw..3 ' Your I-fonour obviou~ly cannot now determhte the slgnHfoa11oe 01· weight to be g1veil to the opinim1 evlde11ce pmffe1•ed fa sup1)oi't of the claitns hece with<)1.1t he.mfog full S,\i,b1nl~sions

Lastly, the Cto\-i,,n !nust rese~ve the right to soeJ~ to adduo'9 fre$}) evid~ns:e on appeal, reg1wdless of whether lt· is the i1ppella11t 01· respondent in any such appeal. fo other words, the Crown Is proceeding on Augw~t 31 wttho1.1t tM ,PJ:aotloal 01)porti.1njty to meet the opinion t;}Yi~ence presented in sup_po1t of ihe consHtutlonal ol1allenge shouid not be h~ltl against it in oonneotlon with any motion for fresh evlden,oe on. appeal.

Lmre 2 - El'itfa1tc(!,/t'Ol1t lite City Cial'k On A\Jgust 22, the Ci}y se1vetl a~ pm·t of Hs reooi·d the ~f.l:lduvit of tho City Clerk, The iiffldavit did not include certain mate.dal generated by the City Cleik. that is a matte1· of publlc· r~cord, ur1oonl'rove1-ted, aml ls geLnrnnEl to the issues raised h1 thi,3so prnceedh1gs (nru.nely th~ Ci~y Clerk's m·al and wl'ltten l'eports to City Councll regarding readiness fotthe tlpcomlng election).

By co1tes1)onde11ce 6f August .22, C1·ow11 coun.sel 1·eqiiest~d the consent ofco:unsel fo1' "tho Ci:Ly to introd1.1ce th.i$. evidence 9b 0911$ent1 to avold tbe neoes,sJly of a. respo:ndfug affid<).Vit iiltroduolng th.is m.atedal or the necessity of cross-eXIDnl.n:i.ng the City Cfork on her affidavit s~lely to put Into

~~2 C~~

the iec9rd her own ttnoontl'overted. materials and info1·q.1ation st1ppll¢d by heL' .~nd th~ Oeputy Ciei'J( to C1ty Cchmoil fo1• E1t1d at lts xneetittg of. Augi.lst 20: By COl't'osnondettoe o:f Augul'lt 23, ootmsel for the City decli.lled the Crown1s tel'.i,uest, A copy 6:f this oori:espo11de1ice is attnohecl.

As a t~~mlt 1 to avoid. the necessity of 9toss .. ¢X.~\11i.nlng the City Q1erk on the evening of' Monday; At1gust 27 or eal'ly .1no1·1iing ot' August 28, and then walthlg .for a 'tntnscl'lpt,, dudng the per.lod 111 whfo4 all coi:tnsel \V0~1ld be bettet engaged in p.r.~pruing theil' fqota, the Crown wlll be tertdedng they a-J;ll~av'it of a studetiH1t.. fow who. obtained tha .relevant ·matedal frnm the city's webijlte, who ~tt~n

~~Cq: AH counsel in the Aohain.pong, City n11d Moise applications AttachmeJ).ts: · Chronology Correspondence between Crown counsel and counsel for the City dnted A1.1gi1st 22 rt!ld 23, 2018~~

~~4 -567- -568-~~

~~2423 1~~

~~Court File Nos: CV-18-00602494-0000 CV-18-00603797-0000 CV-18-00603633-0000~~

~~ONTARIO SUPERIOR COURT OF JUSTICE~~

~~BETWEEN: CITY OF TORONTO Applicant -and-~~

~~ATTORNEY GENERAL OF ONTARIO Respondent i ! I AND BETWEEN: ·I ROCCO ACHAMPONG Applicant -and-~~

~~ONTARIO (PREMIER), ONTARIO (ATTORNEY GENERAL), and CITY OF TORONTO~~

~~Respondents~~

~~AND BETWEEN:~~

~~CHRIS MOISE, ISH ADERONMU and PRABHA KHOSLA on her own behalf and on behalf of all members of WOMEN WIN TO~~

~~-and-~~

~~ATTORNEY GENERAL OF ONTARIO and THE CORPORATION OF THE CITY OF TORONTO Respondents~~

~~AFFIDAVIT OF ADAM KANJI~~

~~I, ADAM KAN JI, of the City of Brampton in the Province of Ontario MAKE OATH AND SAY: -569- -570-~~

~~2424 2~~

~~1. I am a Student-at-Law with the Constitutional Law Branch of the Ontat'io Ministry of the~~

~~Attorney General. I have been in this position since August 7, 2018. The information set out in this affidavit was obtained by accessing publicly available sources of information, primarily from the~~

~~City of Toronto website, and by attending the public portions of the City Council meeting held on~~

August 20, 2018. As such, I have knowledge of the matters set out in this affidavit. To the extent that my knowledge is based on information and belief, I state the source of the information and believe it to be true.

~~A. City Clerk reports readiness for 25 Ward election~~

~~2. On August 17, 2018, the City Clerk published her Report to City Council titled "Report for~~

~~Information: The Impact of the Better Local Government Act, 2018 (Bill 5) on Toronto's 2018~~

~~Municipal Election" (the "City Clerk's Written Report to Council"). I downloaded the City Clerk's~~

~~Written Report to Council from the City of Toronto's website on August 18, 2018 and subsequently reviewed its contents. Attached as Exhibit A is a copy of the August 17, 2018 Report to Council.~~

~~3, The City Clerk's Written Report to Council describes the timeframe adjustments made to the~~

2018 municipal election; the contingency planning which took place to ensure a 25 ward election could be administered with confidence; and the Clerk's assessment of whether or not she could administer the 2018 municipal election in the event of a reversion to a 47 ward model.

~~4. In the City Clerk's Written Repo1t to Council the City Clerk states, among other things, that:~~

~~• The additional costs associated with running a 25 ward election is "approximately $2.5M over and above the current budget of $14.9M"; 1~~

~~1 Exhibit A at p. 2. -571- -572-~~

~~2425 3~~

• On July 30, 2018, "the City Clerk undertook emergency contingency planning to prepare to administer the election pursuant to the changes in [Bill 5] in the event that the legislation became law'';2

• In developing a contingency plan for a 25 Ward election she "leveraged resources from within the City, partnerships with the Municipal Property Assessment Corporation (MP AC), Elections Ontario, Ministry of Municipal Affairs and Housing, City agencies and I others,,," 3 I • "Until the Bill received Royal Assent, the City Clerk continued to administer the election based on 47 wards";4

• "The level of support and cooperation across the Toronto Public Service, partners and vendors has been unprecedented and has been a key factor in enabling the City Clerk to prepare for [the changes in Bill 5]";5

~~• "The City Clerk is confident that she has the capacity to administer the 2018 municipal election on a 25 ward basis";6 and ·~~

• "In the event a challenge to Bill 5 is successful in the courts,. ,the City Clerk has assessed the risk and capacity to revert back to 47 wards . , , assuring compliance with the principles of the [.Municipal Elections Act, 1996} and ensuring the integrity and confidence in the electoral process will be severely compromised. Reverting back to a 47 ward model so close to Election Day raises unacceptable levels of risk and undermines the trust and confidence of the candidates and voters."7

~~B. City Clerk's report at August 20 City Council meeting 5. On August 20, 2018, Toronto City Council held a special meeting to discuss "Legal~~

~~Options to Challenge Bill 5, the Better Local Government Act, 2018,, (the "August 20 City Council~~

~~Meeting"), I attended the entirety of this meeting and took detailed notes on what the City Clerk~~

~~and the Deputy City Clerk, Fiona Mut'l'ay, said to Council.~~

~~2 Exhibit A at p. 4. 3 Exhibit A at p. 4, 4 Exhibit A at p. 4, 5 Exhibit A at p. 5. 6 Exhibit A at p, 5, 7 ExhibitAatp. 5. -573- -574-~~

~~2426 4~~

~~6, On August 23, 2018, I reviewed the online footage of the August 20, 2018 City Council~~

~~Meeting to ensure the accuracy of my notes and, in particular, those statements that are quoted below in paragraph 7,~~

~~7, During the August 20 City Council Meeting, the City Clerk and her Deputy City Clerk answered questions from Councillors on the City Clerk's W1ittenRep01tto Council discussed above.~~

~~The following additional statements were made in the City Clerk's verbal report to Council:~~

• When asked whether the Clerk and her team could carry out a 47 ward election at this point in time, the Clerk stated that, "I am absolutely not confident that I can turn this around with as much support as I can find from anywhere"; • According to the Clede, Elections Ontario, the Municipal Property Assessment Corporation ("MPAC") and the school boards have saved the City Clerk's office approximately "4 day's worth of work"; • Councillor Shiner brought up the fact that in July the City Clede had remarked that she was not confident in administering a 25 Ward election model, and now her view is that it is harder to revert to a 47 Ward election. In response to this, the City Clerk stated that her view has changed due to the "extraordinary support" received from the Province, MPAC and the Toronto District School Board. Specifically, "the Province contacted us immediately upon introduction and discussed with us when and how the timelines would need to change to implement the legislation. They . then drafted the regulations. I can't say enough about how Elections Ontario stepped fo1ward to provide us with the revised voter list for 25 Wards, They also provided us with additional assistance on the voting subdivisions which they used, the staffing models which they have utilized for their voting places, MP AC was incredibly proactive in providing us with all of the information we requested. The school boai·ds provided all of their information in a timely manner." • When asked about accessibility standards for a 25 ward election, the Deputy City Clerk stated that her office "certainly intends" to ensure that the 25 Ward election will be "folly accessible" for all Toronto residents; • The Deputy City Clerk clarified the remarks made the Clerk's Written Report to Council on the contingency planning which took place when Bill 5 was introduced in the Legislature. Specifically, on July 30, 2018, the City Clerk sta1'1:ed to wol'lc concurrently on preparing for a 25 Ward model election and a 47 Ward model -575- -576-

~~·... .-:·,·' I '·. i" •, ':··· '°1 .... I '~~

~~C\) .\ -8 .QO(oO'o "1-ci ::f- OG::k) Cou1t File No,~~

~~ONTARIO~~

~~SUPERIOR COURT OF JUSTICE~~

~~BETWEEN:~~

~~CITY OF TORONTO Applicant~~

~~- and-~~

~~ATTORNEY GENERAL OF ONTARIO~~

~~Respondent~~

~~APPLICATION UNDER Rule 14.05(3)( d), (g.1) and {h) of the Rules ofCivil Procedztre.~~

~~NOTICE OF APPLICATION~~

~~TO THE RESPONDENT~~

~~A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by the applicant appears on the following page.~~

~~THIS APPLICATION will come on fol' a hearing on Friday, August 31, 2018, at 1O:OO am at~~

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to' be served with any documents in the application you 01· an Ontario lawyer acting for you must forthwith prepal'e a notice of appearance in Form 38A prescribed by the Rules of Civil Procedure, serve it on the applicants' lawyer or, where the applicants do not have a lawyer, serve it on the applicants, and file it, with proef of service, in this court office, and you or your lawyer must appear at the hearing.

IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS~EXAMINE WITNESSES ON THE APPLICATION, you or yout' lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the applicants' lawyer or, where the applicants do not have a lawyer, serve it on the applicants, and file it, with proof of service, in the coul't office where the application is to be heard as soon as possible, but at least two days before the beadng, -577- -578-

~~177 3~~

~~APPLICATION l'. The applic~t makes application for: ·.·.··;':.'~~

~~(a) an order declaring that, for the reasons set out in this Notice of Application,~~

~~Schedules 1 and 3 of the Better Local Government Act, 2018, S.O. 2018, c. 11 (the~~

~~"Act"), and O. Reg. 407/18 and 408/18 made pursuant thereto, are of no force and~~

~~effect, except for the following:~~

~~(i) the part of s. 1 of Schedule 3 of the Act that adds MS, 10.1 (1) and 10. 1(10) to~~

~~the Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched. (the "MBA") to~~

~~the extent that it permits the sections of 0. Reg. 407/18 referred to in~~

~~subparagraph l(a)(ii) below to remain in force; and~~

~~(ii) ,ss, 4(2), 5, and 12 of 0. Reg, 407/18;~~

~~(b) an order that the 15 day notice period pursuant to s. 109(2.2) of the Courts ofJustice~~

~~Act, R.S.O. 1990, c. C.43 for the delivery of the Notice of Constitutional Question~~

~~with respect to this application to the Attorney Generals of Ontario and Canada be~~

~~reduced to the notice period actually provided and that delivery of such notice be~~

~~validated;~~

~~(c) an order declaring that all actions taken by anyone, including the clerk of the City of~~

~~Toronto (the "Clerk"), prior to the date the Act came into force, continue to apply to~~

~~the 2018 municipal election in the City ofToronto (the ''Election"), notwithstanding~~

~~any actions that may have been taken by anyone pursuant to the Act and any~~

~~regulations thereto after the Act came into force and before certain pottions of it were~~

~~declared to be ofno force and effect;~~

~~(d) an o!'der that all nominations ce1'tified by the Clerk as of July 30, 2018 at 4:00 pm, -579- -580-~~

~~shall continue to apply to the Election, notwithstanding any actions that may have~~

~~been taken pursuant to the Act or the regulations thereto after the Act came into force~~

~~and before certain portions of it were declared to be of no force and effect;~~

~~(e) any other order necessary so that the Election may continue to be run as if the Act~~

~~had not been passed; and~~

~~(f) such further and other relief as counsel may advise and this Honourable Court deem~~

~~just,~~

~~2. The grounds for the application are:~~

~~(a) Given that the Election is to be held on October 22, 2018, there is urgency fo have a~~

~~hearing on the med.ts of this application within a very shortened period after the~~

~~council of the City of Toronto (the "City'') voted to commence these proceedings,~~

~~which period was less than the 15 days nonnally required to deliver a Notice of~~

~~Constitutional Question to the Attorney Generals of Ontaifo and Canada;~~

~~(b) ' The timetable in this application has been agreed to by counsel for the Attorney~~

~~General of Ontario;~~

~~(c) Pursuant to the provisions of the City of1'orontoAct, 2006, S.O. 2006, c, 11, Sch. A.~~

~~("COTA"), the City council is a democratically elected government which is~~

~~responsible and accountable;~~

~~(d) Pursuant to the provisions of COTA and the Toronto~Ontario Cooperation and~~

~~Consultation Agreement C1TnOCCA"), the City and the Province of Ontario agreed~~

~~that the Province would consult the City with respect to matters of mutual interest,~~

~~including prnvlncial legislation that will have a significant financial or policy impact -581- -582-~~

~~179 5~~

~~on the City and on broad policy matters where the two may have mutual interests;~~

~~(e) · Pursuant to the provisions of COT A prior to the enacqnent of the Act, City council~~

~~had the power, inter alla, to divide or redivide the City into wards, subject to an~~

~~appeal to the then Ontario Municipal Board ("OMB 11), now the Local Planning~~

~~Appeal Tribunal;~~

~~(f) Beginning in 2013, pursuant to this authority, the City undertook a.n extensive review~~

~~of its then existing wat'ds to determine whether they should be redivided;~~

~~(g) After an almost four yeat· review p1·ocess, on March 29, 2017 and April 28, 2017,~~

~~respectively, City Council passed By-law 267-2017 and By-law 464-2017 (the "By~~

~~Laws,,), which redivided the City's 4.4 wards into 47 wards;~~

~~(h) Notices of Appeal to the 0MB with respect to the By-Laws were filed on multiple~~

~~dates between March and June, 2017;~~

~~(i) The 0MB issued its order with respect to the appeals of the By-Laws on December~~

~~15, 2017 (the "Order");~~

~~(j) The majority of the 0MB panel upheld the By-Laws with one small amendment as to~~

~~the boundary between two wards, but otherwise confamed the division of the City of~~

~~Toronto into 47 municipal electoral wards;~~

~~(k) Two of the appellants from the 0MB hearing brought a motion for leave to appeal~~

~~the Order;~~

~~(1) On March 6, 2018, the Divisional Co1.1rt dismissed the motion for leave to appeal;~~

~~(m) The Clerk is charged with administering the Election;~~

~~(n) Pursuant to the MEA, the Election began on May 1, 2018 when candidates were first~~

~~allowed to submit theil' nominations for the Election with a 47-ward City structure; -583- -584-~~

~~. (o) · The Clerk began preparing for the Election early in 2018 based on a 47-ward City~~

~~structure;~~

~~(p) Election .day is October 22, 2018, The nomination period started on May 1 and~~

~~ended on July 27, 2018. As of July 30, 2018, the Clerk had certified the nominations~~

~~of the candidates qualified to run in the Election. From May 1, 2018, once a~~

~~candidate was nominated she or he could begin campaigning which included~~

~~spending money on their campaigns and receiving donations for their campaigns in~~

~~accordance with the provisions of the MEA;~~

~~(q) Despite COTA and T-OCCA, there was no prior consultation with the City from the~~

~~Province prior to introducing in the Ontado legislature, 011 July 30, 2018, the bill that~~

~~later became the Act;~~

~~(r) The Act was passed, received Royal Assent, and became law on August 14, 2018;~~

~~(s) .The Act redivides the City into 25 wards and declares that this wal'd structure will be~~

~~used for the Election. Dividing the City into 25 wards creates ward sizes that are~~

~~significantly large!' than ward sizes of any other municipality in Ontario. Such a~~

~~redistdbution of wards does not provide for effective representation now or in the~~

~~future;~~

~~(t) Pursuant to COTA, as a level of government, the City has very wide powers to pass~~

~~by-laws that have the force of law;~~

~~(u) The Act does not alter the City's status as a government, the fact that City councilors~~

~~will be selected by election, nor the City's ability to pass by-laws;~~

~~(v) The unwritten constitutional principles of democracy and the rule of law, and the I principles underlying the right to vote ins. 3 of the Canadian Charter ofRights and I -585- -586-~~

Freedoms, Constitution Act, 1982, being Sch. B to the Canada Act, 1982 (U.K.), I 1982, c. 11, Palt I (the "Charter' 1), all limit Ontario's power under s. 92 of the I I Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U,K.), and do not permit Ontario to I· I I interfere with an ongoing democratic election by altering the ward boundaries of the 'i

~~City or changing City Council composition after the start of an election, or to create~~

~~and maintain ward boundaries that do not provide for effective representation, all of~~

~~which the Act purports to do;~~

~~(w) The Act infringes s. 2(b) of the Charte1· and is not saved bys. 1. In palticular,~~

~~campaigning for public office and voting in elections are expressive acts covered by~~

~~I s. 2(b ). The interference in the electoral process, once underway, constitutes a breach~~

~~of s. 2(b) of the Charter;~~

~~(x) The treatment of the City and its residents pursuant to the Act is discdminatory and~~

~~arbitrary;~~

~~(y) A partial declaration of invalidity of Schedule 1 of the Act would create internal~~

~~inconsistencies in COTA and leave a gap in COTA;~~

~~(z) A declaration of invalidity of the Act may require the implementation of one-time~~

~~changes to the MBA as it applies to the Election;~~

~~(aa) There are no material facts in dispute;~~

~~(bb) ss. 1 and 128 of COTA;~~

~~(cc) s, 33 of the MEA;~~

~~(dd) ss, 1, 2(b), 3, and 15 of the Chalter;~~

~~(ee) s. 92 of the ConstttuttonAat, 1867;~~

~~(ff) s, 52 of the Constitution Aat, 1982;~~