Updated January 30, 2012 at 2:00 pm: The full text of the legal opinion is now online. This article has been extended with additional material.
On January 29, the Star reported that a legal opinion obtained by Councillor Joe Mihevc, former Vice-Chair of the TTC in the Miller administration, states that Mayor Ford had no authority under the laws governing the City of Toronto to cancel Transit City.
[The report] says the mayor had no business entering into a non-binding memorandum of understanding with the province that authorized a new transit plan, including a Sheppard subway and a longer tunnel on the Eglinton light rail line. It says he further overstepped his powers when he told TTC chief general manager Gary Webster to stop work on Transit City.
Since the mayor had no legal authority to enter into the memorandum of understanding, it shouldn’t be acted upon until council approves it, say the lawyers. Until that happens, it is only an agreement in principle.
According to the report by lawyers Freya Kristjanson and Amanda Darrach, Ford “did not follow the proper procedure for obtaining City Council’s authorization to rescind Transit City and develop and approve an alternate plan.”
“Under the City of Toronto Act, the power of the city resides in City Council. The Mayor of Toronto has very little independent authority beyond his role as head of City Council. Unless specific power is delegated to him, the mayor does not have the authority to speak for the city independently,” wrote the lawyers, from Cavalluzzo, Hayes, Shilton, McIntyre & Cornish.
Ford’s bully-boy nature, his attitude that his “mandate” gives him the power to do anything he wants and ask Council’s blessing, eventually, maybe, has left him in a precarious position. During the early months of his administration, Council was under his thumb with a then-weak and pliable batch of Councillors who chose not to challenge the Mayor’s office. If his “Transportation City” plan had gone to Council for a vote, there would have been a big debate, but Ford probably would have won the day. By taking the quick “I’m in charge” route, Ford left himself open to the challenge which has now surfaced, and at a time when his ability to win votes depends more on consensus building than on back-room, strong-arm tactics.
Queen’s Park, for its part, foolishly signed on to Ford’s plan and proceeded in the absence of Council support, a specific requirement of the Memorandum of Understanding Ford signed with Premier McGuinty. Metrolinx gives tacit support for the plan citing the benefits of shorter travel times and better ridership without ever discussing the basics — is this an effective use of the money available to build transit, not just on Eglinton, but in the wider context of Toronto and the GTA.
Updated January 30:
The lead counsel on this opinion is Freya Kristjanson who has extensive experience in administrative and public law.
The opinion covers two areas in some detail. First is the question of whether Council actually approved of Transit City, and then the issue of the powers of the Mayor to act unilaterally without Council’s endorsement.
In July 2007, Council as part of an overall environmental initiative directed that studies for Transit City begin. Various motions over following years approved work on specific parts of the plan, and some of these were supported by then-Councillor Ford.
Mayor Ford came to office and, before Council had even had its inaugural meeting, announced the cancellation of Transit City and directed that the TTC shift its efforts to his own transportation plan. In March 2011, Ford signed the Memorandum of Understanding (MOU) with Metrolinx and the Government of Ontario which purported to be a commitment by Toronto to the new plan. However, a requirement both of the MOU and the law governing Toronto was that Council must approve the new policy. The MOU was never taken to Council for a vote.
At this point, I must point out that no amount of whining about whether or not Transit City ever had an up-or-down vote matters. If as Ford supporters claim, Miller was wrong to proceed as he did, then Ford repeated the same mistake. In fact, many aspects of Transit City, and especially spending on its projects, were approved by Council, something nobody can claim for Ford’s plan.
The opinion goes into some detail about the powers of the Mayor and Council as this is essential to the discussion of whether what Ford did exceeded his authority as Mayor. It is quite clear that a good deal of the Mayor’s authority flows from Council, and that he cannot act on his own claiming to act for the City. The Mayor has a bully pulpit from which he can advocate his positions and, if he does well, to sway Council and public support. However, he must formally receive that support from Council to act.
During this morning’s press conference, the media asked whether the Mayor had “broken the law” in acting as he did. To this, Ms. Kristjanson replied that it was not a matter of criminal law as that phrase is normally used. Councillor Mihevc did, however, raise the question of city staff acting only for and with the direction of the Mayor and not for Council to whom, on paper, they report. This matter will sort itself out as debate among Councillors evolves and the pro- and anti-Ford factions become clear. The issue is not to punish the Mayor, but to re-establish the appropriate role for the Mayor and for Council.
In a bizarre sideshow to the press conference, Councillor Norm Kelly, also a TTC Commissioner, claimed that decisions on the fate of Eglinton and its design were really a matter for Metrolinx, not for Council, because Eglinton is a provincial project. This ignores the fact that Council has been asked by Metrolinx to make up its mind on the preferred alignment and technology.
Kelly also claimed that an all-subway option would be cheaper, although this is based in part on the assumption of automated control. The TTC is expected to produce a detailed review of the options in late February, and I will hold off on comments about this issue until there are actual figures and claims to discuss. If, in fact, either Metrolinx or the TTC has information that would support this claim, it should be made public for scrutiny as soon as possible.
Kelly made the absurd claim that running at grade was more expensive than underground because of the extra cost of maintaining infrastructure out of doors. He may not have noticed that parts of the subway, not to mention the Scarborough RT, run out of doors. It is sad, in a way, that this is the best representative that could be mustered by the Ford camp to defend the Mayor’s position.
How will Transit City, or whatever transit plan might be proposed, come before Council? Although it would technically be possible to introduce the item from the floor of a regular Council meeting, this would require a 2/3 majority vote, something of a challenge at this point. Either the Mayor or the City Manager could put this on a Council agenda, or a special meeting of Council could be called at the request of at least 23 members (a simple majority). Which path is taken will depend a great deal on Mayor Ford’s willingness to compromise, or at least to let the issue come for a vote and take his chances on the outcome.
The Star errs in its description of the Mayor’s powers:
Although the mayor did receive some new powers under the City of Toronto Act that took effect in 2007, including the authority to appoint the deputy mayor and standing committee chairs, “Generally, executive and legislative powers rest with full council,” says the lawyer’s report.
In fact, the power to appoint the Deputy Mayor and standing committee chairs (and, therefore, to ensure Mayoral control of the Executive Committee) was conferred on the Mayor by Council through Chapter 27, Section 40 of the Municipal Code. Council can amend this at any time (changes to the code happen so often that there is a long list of amendments on the City’s website that have not yet been folded into the consolidated online version).
What Council granted, Council can take away.
The TTC is a separate agency and the Chair is not appointed by the Mayor, but by the Commissioners from among themselves. The Mayor has de facto control over this through the allegiance of his supporters on the Commission. If Council chooses to reconstitute the Commission, the Mayor could lose control of the Chair’s appointment.