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Rob Ford’s Conflict of Interest Appeal: What Happens Next?

Rob Ford is appealing a judge's decision to remove him from office. Here is how the coming days and weeks are expected to unfold.

Rob Ford shortly after the judge's decision was announced.

So, Mayor Rob Ford has been booted out of office by a judge. It’s not an outcome many predicted, nor is it one even some of his political enemies would have wanted. He’s appealed that decision, and the results of that appeal will be announced on Friday, January 25.

Here is the timeline of what happens next.

Note: neither the City Clerk’s office nor the Elections Office would answer our questions (they passed them along to a City spokesperson, who was short on details). The following is based on our reading of the relevant legislation in consultation with municipal-law expert John Mascarin.

The Appeal

If the original decision—the one removing Ford from office—is upheld: The City of Toronto Act states that if a seat is declared vacant in a judicial proceeding, city council must also declare that seat vacant at its next meeting. City council is next scheduled to meet on February 20, so they could deal with this procedural matter then. Since that’s nearly a month away though, it is also possible that council will call a special meeting to handle this situation specifically; that meeting could take place on 24 hours’ notice.

If the original decision is overturned: Rob Ford continues serving as mayor.

Interim mayor: Council’s procedural bylaw [PDF] says that if Ford’s seat is vacated, Deputy Mayor Doug Holyday (Ward 3, Etobicoke Centre) will become Toronto’s interim mayor. He was the mayor of Etobicoke before amalgamation, so he has some relevant experience.


If Ford is Removed from Office…

Within 60 days: Once council declares Ford’s seat vacant that starts a clock—from that point, they have 60 days to decide how to permanently fill the mayor’s seat. Unlike the interim mayor, who fills in on a temporary basis, they will be filling it for the duration of this term of council, until the scheduled 2014 election. They have two possible courses of action: they can either choose to appoint a replacement, or they can choose to hold a by-election.

Appointing a replacement would require some kind of council vote. It’s not clear how, exactly, the process would work. The City, again, isn’t answering questions, but Mascarin says there are few limits on who they can choose: anyone who is 18 or older and is a resident of this city and a citizen of this country would be eligible. The appointment process must begin and be completed within this 60-day window.

If Council Opts for a By-election…

Within another 60 days: If council calls a by-election, then the Municipal Elections Act kicks in, and another clock gets triggered. The City Clerk must designate what’s called nomination day—that’s the last day to file paperwork to register as a candidate—and that must be within 60 days of council’s decision to call a by-election. Basically: if council decides to send us to the polls, candidates will have at most two months to declare if they are running for the office.

Forty-five days later: Election day. The MEA states that the election will be held exactly 45 days after nomination day. That is, if we’re headed for a by-election, it will be, at most, 60 days (for deciding to call the election) plus 60 days (until nomination day) plus 45 days (for the campaign), or a total of 165 days—five and a half months—from the day Rob Ford’s seat is declared vacant until the day we go vote.

The by-election would work just like any citywide municipal election. There would be voting stations everywhere and we’d all get to pick from a list of candidates. It will cost about $10 million (including $7 million for conducting the election, and some more money—we won’t know how much exactly ahead of time—for campaign donation rebates).


Could Rob Ford Run in a By-election or Be Reappointed?

It depends.

The conflict of interest legislation does not give judges a lot of leeway in applying penalties. Specifically, it stipulates that if someone is guilty of a violation, and they aren’t redeemed by any so-called “saving clauses” (such as making an error in judgment, or being in conflict over an insubstantial amount of money), the violator must be removed from office. Judges have no latitude on this point. They can, however, decide whether to impost a further penalty, and bar the violator from holding municipal office for up to seven years.

The judge who decided the case originally, Charles Hackland, wrote that “in view of the significant mitigating circumstance surrounding the respondent’s actions…I decline to impose any further disqualification from holding office.” In short: he was applying the prescribed penalty—removal from office—but chose not to go any further.

If the appeals court upholds this original decision, Ford will be able to run in a by-election, or would be eligible to be reappointed by council. However, the appeals court has the option of returning any decision that was open to the original judge: they can exonerate Ford, they can order him removed from office and no more, or they can say the original judge didn’t go far enough, and decide not only that Ford is removed as mayor but that he is barred from holding office for a period of time. If they exercise this last option, Ford will not be able to run in a by-election or be reappointed by council.


Are Any Further Appeals Possible?

Possibly. According to the Supreme Court of Canada Act [section 40(1)], either side in this case could try to appeal directly to the highest court. They would need to do what’s called seeking leave to appeal: that is, there is no automatic right to appeal, but they can make their case to the Supreme Court, and if the court agrees there is merit to the request they can agree to hear an appeal. If the original decision is upheld and Ford is ordered out of office, and he does pursue a Supreme Court appeal, he would also need to separately seek a stay of the decision so he could retain office while that request to appeal was considered.


Note: this post was originally published on November 26, 2012.
UPDATE, NOVEMBER 26, 7:58 PM: Updated to reflect Ford’s announcement that he will be appealing.
UPDATE, DECEMBER 4, 6:04 PM: Updated to reflect the court day for the stay application, and Judge Hackland’s amendment to his decision.
UPDATE, JANUARY 7, 5:39 PM: Updated to reflect that the appeal hearing has now taken place.
UPDATE, JANUARY 24, 1:18 PM: Updated to reflect the date on which the appeal decision will be released, and to add information about a potential Supreme Court appeal.

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