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