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Legal Opinion Contends Rob Ford Did Not Have the Authority to Cancel Transit City

The full text of the opinion, and an analysis of what it might mean for Mayor Ford

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The transit plan currently on the books for Toronto, based on a Memorandum of Understanding between the mayor and the province.

In a legal opinion made public this morning, a prominent Toronto lawyer argues that Rob Ford did not have the power to unilaterally cancel Transit City without receiving authorization to do so from city council. The opinion was solicited by Councillor Joe Mihevc (Ward 21, St. Paul’s), a former vice-chair of the TTC, in an effort to put some research behind the sense he and several of his colleagues shared that proper procedure was ignored in Ford’s haste to jettison Transit City and move on to his own vision for transit in Toronto.

The key finding:

The Mayor of Toronto only exercises powers if the authority is delegated to him by Council. No delegation with respect to Transit City has occurred. The Mayor was not given any specific legislative or management responsibility with respect to the implementation or rescission of Transit City. Accordingly, he did not have the authority to rescind any of the Transit City directives or enter into the Mayor’s MOU.

The opinion was issued by Cavalluzzo Hayes Shilton McIntyre & Cornish, and the lead writer on the opinion is Freya Kristjanson, who has among other things served as counsel to Mayor Hazel McCallion and as commission counsel to the Walkerton Inquiry.

A step-by-step breakdown of the opinion…

Council’s Endorsement of Transit City

The opinion finds that despite Ford’s oft-repeated claim that council as a whole never actually voted on Transit City in the first place, there was a pattern of voting that indicated clear support for that plan. For instance, council voted to initiate environmental and engineering studies on the transit lines, to approve the environmental assessment of the Sheppard East LRT, and to increase the TTC budget so it could continue planning work on Transit City. The opinion goes on to state that major transit projects:

are implemented through a process of funding environmental assessments and other type initiatives, approving the work of the TTC in design and development, and funding proposals for the actual work to be done. Each individual element is voted on at City Council. Transit City came to Council as part of the Climate Change, Clean Air and Sustainable Energy Action Plan in 2007. After that, City Council considered and voted on the necessary elements of the program as they came before Council. The process was granular, because this is how City Council does its work.”

Cancelling Transit City

On his first day in office Rob Ford famously proclaimed Transit City dead. He did so on his own—city council hadn’t had its first meeting of the term yet—and he did so decisively, leaving observers with no question that this was his top priority. The key changes that resulted from that announcement:

  • TTC staff that had been assigned to work on plans for Transit City stopped, and shifted instead to developing plans for implementing the mayor’s transit goals.
  • The City of Toronto became subject to various penalty fees for the cancellation, which so far have been estimated at $65 million.
  • Rob Ford negotiated a new Memorandum of Understanding (MOU) with the province, calling for a completely buried Eglinton LRT and for leftover funds from that project (up to $650 million) to go to a Sheppard subway.
  • The TTC revived a defunct subsidiary agency for the sole purpose of investigating options for the development of the Sheppard subway (Toronto Transit Infrastructure Limited, currently headed by Gordon Chong).

Rendering of the Eglinton LRT vehicles.

The Mayor’s New Transit Plan

While work on Transit City stopped, Ford moved on with plans for his preferred course of action: burying the Eglinton LRT and building a Sheppard subway. The key element: signing the Memorandum of Understanding with the province mentioned above. The MOU is non-binding (it does not create legal obligations), and its purpose is to “establish a statement of intent and proposed set of guiding principles”—basically a framework for negotiation, essential since the province is picking up the tab on these transit plans. According to the terms of the MOU, it is subject to the approval of Toronto’s city council, though Ford hasn’t yet brought it to a vote. However, today’s legal opinion contends, he has acted on the MOU anyway, by proceeding with the transit plans outlined in it. “These projects have not been undertaken with Council’s authority,” states the opinion, “and are not a valid exercise of the Mayor’s authority.”

The Role of the Province

Dalton McGuinty had been criticized by some long before today for flip-flopping on Transit City, and simply agreeing to Ford’s requested change of plans when asked. Certainly, the legal opinion provides fodder for those who accuse the Liberal government of caving back in 2011, in the face of a newly elected mayor and anticipating their own tough re-election campaign. Others counter that McGuinty was in a tight spot, since ignoring the mayor’s wishes and imposing Transit City would have brought accusations of paternalism down on his head.

Now back from the campaign, and with a pro-LRT transportation minister in Bob Chiarelli—not to mention a growing political shift among Toronto councillors against Ford’s transit plan and growing consensus that it is deeply flawed—McGuinty may find himself reconsidering that decision. One way of interpreting today’s legal opinion: it’s something of a get-out-of-jail-free card, handy for a government that might be having second thoughts. Given the changing political tides and practical benefits of freeing up $1.5 billion (which would be saved by keeping some of the Eglinton LRT above ground), McGuinty could find himself grateful to have a reason to tear the whole agreement up and start over.

What Next?

The real force and effect of all this will be political, not legal. Nobody’s likely to wind up in court over the issues outlined in today’s opinion (though Mihevc is calling for an inquiry into the mayor’s exercise of authority over City staff), but it does provide ammunition for those who objected to the Ford’s cancellation of Transit City all along, and political cover for centrists who are uncomfortable with Ford’s plan to completely bury the Eglinton LRT. Karen Stintz, generally a Ford supporter, has already come out against the latter, as have a large and growing number of councillors. Meanwhile Metrolinx is asking us to please, please get our act together, so they actually know what to plan for, while Ford has so far been digging in his heels.

Word was that some new proposal was going to surface at council perhaps as early as March, so a transit debate was already brewing. Today’s legal opinion will likely cause it to boil over.

Transit City – Mayoral Powers

Comments

  • Anonymous

    I’m wondering what the prospects are for a class-action suit here by transit users and others affected by the abrupt abandonment of Transit City, apparently without the requisite legal authority.

    • Eric S. Smith

      I suspect that it would be too difficult to establish damages.

      • Anonymous

        Too bad we can’t do so: I would LOVE to see the lawsuit be directed against the Ford brothers, for them to lose the case, and for them to pay up for what they’ve both done to Toronto with this stupid decision. The outcome alone would make most of these wealthy pricks who run for public office think twice about going against the will of the people and of reengaging on contracts already agreed upon.

    • http://twitter.com/quinkster Quink

      Sadly, it’s hard enough facing the rush hour commute every day to get to a crappy wage slave job, let along finding time to show up at a courthouse or a lawyer’s office. Transit will have to get worse than a train ride in India before everyone gets riled up enough to take real action.

  • http://www.facebook.com/profile.php?id=513128009 Gordon Yarley

    Now let’s get it started again and get Ford out of office for doing this.

    • Testu

      I’m not sure why people keep thinking we can “get Ford out of office”. I really dislike the man and his politics even more so, but unless he commits an actual crime he can’t be removed as mayor. As far as I know we don’t have any sort of recall or non confidence procedure for the mayor.

      About the best we can do is individually try to convince our councillors to ignore Mayor Ford, something that seems to have started already.

      That said, I’m curious to see if this legal opinion will actually change anything as far as implementing TC or it’s alternative goes.

    • Jacob

      We don’t even need to get rid of Ford. It’s been established that Council can act on this without the Mayor’s approval. All we really need at this point is for someone to take on an unofficial leadership role on this issue and rally enough councilors to support it.

    • http://twitter.com/quinkster Quink

      Public opinion could well turn perception of Ford into a lame duck mayor. That, or standing in one of those snaking lines of passengers waiting to get on a g-d bus during rush hour.

    • http://www.facebook.com/profile.php?id=81007615 Zach Stevenson

      I couldn’t agree more! Let’s impeach him for trying to circumvent legal council procedure.

  • Anonymous

    Of the multiple plans on the table, I think we can agree that any of them is better than nothing. Just get shovels in the ground and build something for God’s sake. Preferably, before the province gets tired of Toronto’s Keystone Kops approach to government and decides to use that $8 billion to plug its own budget problems.

    • Anonymous

      I think the “let’s do something, whatever it is” out of pure despair approach is wrong. It’s what gave Toronto the Scarborough RT and the Sheppard Line..

      • Anonymous

        So to be clear, if offered Ford’s plan or nothing, you would choose nothing?

        • Testu

          That’s not an actual decision that has to be made though, as in, we have more choices than that.

          Plus, the reason nothing has been done with Ford’s plan is because nothing can be done yet. He fundamentally changed the routing of the Eglington line, new environmental impact assessments have to be made and new construction plans developed.

          The only construction that can be done anytime soon is on the areas that were already planned as tunnels. They’ve already gone through the lengthy planning and approval process.

          Interestingly enough, the rest of the Transit City plan has gone through the same process, making it considerably more shovel ready than anything the Mayor has come up with.

          The only one holding back transit development is the Mayor and his sabotage of a transit plan that was already finalized before he took office.

        • http://paul.kishimoto.name Paul Kishimoto

          To be clear, if I offered you a kick in the knee or an elbow in the gut, that would be a false choice.

          • Anonymous

            Thanks for the logic lesson, Paul. Now I have one for you: I said, “Of the multiple plans on the table, I think we can agree that any of them is better than nothing.” A person who disagrees with that statement must prefer “nothing” to at least one of the plans.

          • Anonymous

            Andrew, I prefer nothing over Ford’s “plan”, which is not a plan at all, but just a road-rage tantrum Rob blurted out at a campaign rally, as he is wont to do.

            I would rather the TTC and Metrolinx sat on their hands rather than waste one more penny on Ford’s whims.

            Once the dust settles, and Ford has been sidelined, I’m sure a real plan that will benefit the most transit users for the lowest cost (like say, Transit City?), will materialize.

            Surely that’s what voters and taxpayers want, rather than more road-rage.

        • Anonymous

          Ford’s plan is nothing, as it was never going to happen. The logistics and financial requirements made his plans for Eglinton and Sheppard non-starters.

          • Anonymous

            You might want to tell Metrolinx. Since they have started the Eglinton project, apparently they didn’t get the memo that Eglinton is a non-starter.

          • Anonymous

            My understanding is they’ve started where they would have started with Transit City anyway. Rather than, say, tunnelling under the Don Valley…

          • Anonymous

            Which they don’t even know how they would do. Lol what a mess. Crossing the Don Valley is a big deal. That’s one big reason why Bloor was selected for the subway back then. The viaduct had an extra level that could be used.

          • Anonymous

            The viaduct was actually constructed with that track level with a subway in mind, though the Bloor-Danforth line was still decades away.

          • Eric S. Smith

            Transit Toronto says: “Underground streetcars were probably envisioned, but fortunately the designers did not stint on clearance.”

            (I mention this as a point of interest, not because I think it proves something about Eglinton Crosstown or Sheppard.)

        • Anonymous

          Ford’s plan is actually worse than nothing because it would harm the TTC. The subway expansion would weaken the overall system because it would be a huge sink for operating costs for decades. Expansions should attempt to match ridership projections to operating cost projections so that we don’t end up subsidizing a money losing line for decades at a time.

          A great thing about transit city was that it wasn’t expected to be a huge money loser like the stubway and the proposed sheppard extension are.

          • Anonymous

            What? Metrolinx is paying 100% of construction and operating costs on the Crosstown. This is a way better deal than on any other TTC line, where the province pays 0%.

  • Anonymous

    While politician bicker, transit riders suffer. Start building Transit City, now. It’s the best and only plan ready to go.

  • Anonymous
  • http://twitter.com/quinkster Quink

    Watch out, transit users. If Rob and Doug Ford resort to liposuction, they could have enough fat left over to stack City Council with several more Ford Bros.

  • Anonymous

    tl;dr – Rob Ford personally cost the city $65 million by cancelling something he had no authority to cancel.

    Remember that, Etobicoke, when it comes time to hit the voting booths again.

    • http://www.facebook.com/profile.php?id=81007615 Zach Stevenson

      That’s a fair sized ladle of gravy right there!

  • http://paul.kishimoto.name Paul Kishimoto

    Thanks for pointing out that this opinion is a “get-out-of-jail-free card” for McGuinty, which is absolutely correct.

    What would be great would be if the province used the political capital thus saved and passed an Ontario Transit Finance Act to begin regular, annual payments to municipalities and regions to build public transit infrastructure. The payments could be small at first, so long as the law set out a formula pegged to inflation and/or ridership (or whichever grows fastest).

    We need to take steps like this to get beyond endless bickering over enormous, political and apparently reversible one-time funding agreements.

  • Anonymous

    The good thing about Rob is that he has no idea how the politics of policy-making work. The more he digs in his heels on this and the more he spits fire at his opponents instead of working on compromises, the more fuel he is giving to the interest groups, such as Code Red TO, that are organizing against him on these issues. I think the balance of power has already shifted on this issue in council, but even if it hasn’t, Rob is doing his best to make sure it eventually does.

    • Elora

      The thing that amazes me in this situation is that Rob Ford, as a former councilor, participated in votes against some of the proposals of the former mayor. He does not seem to remember that councilors still have exactly the same number of votes that he does – one. My guess is that he slept through his years in council, which would also explain how he was completely unaware of what the budget shortfall was going to be.

      • mdash

        I’m starting to think that Ford is content to rave on ineffectually as he did when he was councillor.

  • Andrew

    My opinion is that we need subways (which could be elevated in sections to reduce cost, like through Golden Mile). The big problem that I have with Transit City is that the two main lines, Eglinton and Sheppard, need high speed and high capacity in order to provide a decent alternative to Highway 401 for getting across the north side of the city in a reasonable amount of time, and also having a transfer at Don Mills & Sheppard is a very bad idea. GTA traffic congestion has deteriorated a lot in the 5 years since Transit City was proposed.

    • TransitEnthusiast

      The Eglinton-Crosstown LRT with priority intersection signalling was to run at an average speed of 33k/hr across the entire route. That is the same average operating speed for Rob Ford’s Eglinton Crosstown Subway, or even the the Bloor or Yonge Subway Lines. (though it is true that some of the other Transit City lines had lower average operating speeds in the 19-26km/hr range (though downtown streetcars operate at 14k/hr)). I agree that Eglinton needs a high speed line, but any such line would have to be in addition to an urban subway or LRT line (which needs to have stops placed about 800m-1km apart for them to be viable. A High Speed line would need station spacing between 2km-5km apart.). Theoretically this is not a bad idea (it is the stations that are expensive, not necessarily the tunneling itself) – a tunneled high speed underground link across Toronto that goes above ground at the edges of the city and operates eastbound along the Lakeshore East Go-Line, and then above ground at Mississauga, moving along the 401 corridor, with stops integrated with adjacent new Mississauga BRT lines, Square one, and all the way west to UofT Mississauga Campus.

      • Anonymous

        33 km/hr? Citation please, because that is bonkers. Edmonton’s LRT, which has station spacing of about 1 km, runs underground through downtown, and has complete traffic separation everywhere (including railway-style gate arms to block traffic on crossing roads), is reported to have an average speed of 32 km/hr.

        Also, 15 years later we’re still waiting for the promised traffic priority to be implemented on Spadina.

    • Anonymous

      So you’re proposing something different then. You’re proposing even scrapping Ford’s plan on Eg to create subways? Do you realize how much MORE that’s going to cost now?

      “GTA traffic congestion has deteriorated a lot in the 5 years”

      Not sure where you got that from, but from my understanding congestion has gotten worse.

    • Anonymous

      Elevated subways are NEVER going to happen here, due to the noise factor and also for the fact that people wouldn’t like large overhead rail blocking out the sunlight and making the street ugly. Plus, the same problem with underground subways would still be there with elevated subways, namely the density problem and how there isn’t that much of it to justify building elevated rail.

      I would highly recommend that you look at and study this website so that you can be further educated about LRT.

      • Aaron

        All of these streets are insanely ugly to begin with. Elevated subways can’t possibly make them any worse.

        • Anonymous

          Ugly or not, nobody wants elevated anything (sadly, that means not even monorail) so LRT, it is. EVERY other city has it, Toronto’s having it is not any worse than what they have. This is something that Toronto should have had in the 70′s, in fact, instead of hideously expensive subways that cost too much to maintain. And now we’re getting it.

          Again, please check out the link that I’ve provided, and get smart about this issue instead of suggesting unrealistic concepts that will never be built.

  • Fred

    LIGHT RAIL TRANSIT is not Street cars. It is as simple as that. Take note that all TTC rapid transit going to Scarborough, current and planned, ends in a line running roughly nortfh and south between the Scarborough Town Centre and Kennedy Station. fre
    Yet there is another 25 km’s of Toronto beyond that line to the Pickering border!!!
    We in Scarborough have always been short changed by first Metro and now as the City of Toronto. We will never see rapid rail based (not Streetcars) transit that travels underground through all of our part of the city for a very long time. ( Perhaps never ).
    Running the street-cars ( NOT LRT which has larger vehicles like those in Calgary) in competition with traffic and traffic lights is not rapid transit.

  • Rossap

    Transit City was no legally binding, so the lawyer who made that assessment is wrong. It was never voted on instead it was introduced piece meal. So Rob Ford isn’t doing anything illegal.