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.
Postscript
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.
Steve Munro 
hamish wilson says:
But Hamish where would the poor couriers, delivery trucks and the guy who wants a coffee park if they can’t block your bike lane. You don’t expect them to obey the no parking or stopping by-laws do you?
Michael Greason says:
I have ridden many lines in the US that have subways with one person crews and as Steve says the crewing is small compared to all the other people running around the stations. Baltimore has about 8 trains running in the peak and 2 in the evening but at least 3 or 4 people running around each station doing who knows what. Given the number of passengers that the TTC subway carries a 2 man crew is no a large % of the labour costs.
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Right now my hope is that through all this wrangling or whatever you want to call it that something much improved as far as what line gets LRT and what line gets a subway. TC obviously had its faults but it could still serve as the basis of what Toronto could still get. I like to think that I’m much more pragmatic than those who want all subways and those who want all LRT. It’s still too bad that David Miller couldn’t have run for another term because if there’s anything I’ll NEVER understand as long as I live it’s how Toronto’s voters could’ve ever possibly have elected such a goon for Mayor. He’s one of the most dogmatic people I’ve ever seen in all of my life.
Steve: He promised voters no gravy and responsible government. They believed him.
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@David Aldinger:
For my money, Ford won because he was the only candidate saying anything worth arguing over. Can you honestly remember anybody else’s campaign platform? Pantalone wanted to be Miller’s legacy, Smitherman wanted to be not-Rob-Ford, Thomson wanted to be mayor for some unclear reason, and Rossi wanted to be a rogue, tell-it-like-it-is outsider. My impression of their campaigns was that they wanted to be mayor for themselves, not the city. Ford is the only one who presented any sort of comprehensive vision of what the city could and should be, the only one who generated serious supporters and detractors.
Find a candidate who is passionate about city-building as a goal unto itself (rather than a means to personal advancement), and you’ll find your anti-Ford come 2014.
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Michael –
But what was so wrong with Miller’s plans? We keep arguing that the city needs to make some plans and stick to them. We can’t keep changing our minds every 4 years. This was a very effective campaign attack. Look it even worked on you. You wish Miller had run again so you could vote for him, but you’re complaining about the guy who agrees that Miller had it right and would have kept it up!
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If Ford exceeded his authority because he never brought the cancellation of TC, before Council reviewed and debated the situation, then what would you say about Miller’s cancellation of 2 decade long City Transit Plan and the cancellation of the Sheppard subway extension without reviewing with the TTC or submitting to Council for review? His announcement was a memo released in March of 2007. If his assumption was correct shouldn’t Ford’s action be as well? Just a question that nobody seems to want to acknowledge let alone answer.
Steve: I beg your pardon. Miller made his announcement and immediately it went to the TTC for approval (March 21). Previous transit plans had actually flagged only two lines — the Spadina extension and Sheppard. The Spadina project was already underway, and Transit City replaced Sheppard with a scheme that would give the city far more than the subway plan would have. Nobody gave any credit to the scheme to extend the Bloor subway to Sherway and beyond because of the high cost and because it duplicates the function of GO Transit. The Waterfront West LRT (also part of the old plan) was incorporated in Transit City and extended to Brown’s Line. The North Yonge extension is still on the books, but it is city policy that this cannot proceed until some way of relieving capacity problems on the southern part of the line is in place.
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@Michael, @Majken : Since the political dynamics which led to Ford’s victory are relevant to this discussion, and you have raised them, here goes… First of all, I think there are parallels between David Miller’s tenure at City Hall and Bob Rae’s at Queen’s Park. In each case, I believe they were undone by (1) numerous highly irritating actions by their caucus colleagues and agents, and (2) a betrayal of “those who brung them”, i.e. supporters and workers. Miller’s decision, to placate those who thought City workers were too highly paid and too secure by provoking a strike, parallels Rae’s refusal to ask unions how to cut the cost of government and impose his own (actually more humane) solution (let’s not even think about public car insurance …). Ford, a perennial gadfly on Council, just happened to be in the right place and time to exploit matters, and attracted some clever right wing radicals together with an experienced core of right-wing councilors to support his campaign, and the rest is history. Had Miller settled without a strike and defended his decision vigorously, and had he had tighter control over the actions of his caucus, he probably would have been re-elected together with a progressive majority. After all, it was not a massive swing on Council, while Ford’s mayoral opponents were politically ineffective. The political attitudes stirred up by Ford probably contributed to the collapse of the GTA Liberal vote in the Federal election, while his mis-steps in the summer probably contributed to the resurrection of the Provincial Liberals.
That said, I don’t think Ford & Co. are done, yet. This latest move to seize control of the agenda is audacious, and for people in the suburbs it will resonate favourably, as The Star “poll” shows. We may think that the process is terribly “undemocratic”, but for many it will look like a ballsy move. I would not be surprised if Ford now pushes for the full Sheppard subway and/or an all-underground Eglinton ICTS or HRT, everything else be damned, especially if the Chong report is favourable to Ford’s concept. (A curious question: would the size of a full Eglinton ICTS order be enough to persuade Bombardier to re-design ICTS II with shorter cars thereby eliminating the need to re-build the SRT line?)
Steve: I don’t think so. That’s a major change for what would still be a comparatively small order of vehicles. They would probably want to be guaranteed something lucrative to compensate for this cost elsewhere. Don’t forget that Bombardier isn’t just Thunder Bay, it’s an international company that has too many products and too many plants on its hands already thanks to acquisition of its competitors. The last thing they need is one more orphan.
I’m not so sure that Stintz and some of the other wavering “mushy middlers” won’t rejoin the Ford alliance on Council, especially as labour relations take centre stage in the next couple of months. Their true colours will show when it comes to workers.
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According to Chong’s report, Sheppard Subway has been“official public policy” since 1986. TTIL have been unable to find records or reports of council ever reviewing, debating or rescinding approvals for the Sheppard subway.
The report also concludes there was no council review or debate before the TTC made significant expenditures on environmental assessments, design consultants and vehicles for a light-rail plan as opposed to the Sheppard subway.
The $6-billion Transit City light-rail plan was “never brought to council,” Chong said about Transit City. “They accepted parts of it because it was on sale.”
Steve, Is any of this true or is it B.S.?
Steve: It’s B.S. to use your term. Council approved Transit City overall as well as a number of individual studies. Considering that the Sheppard LRT went completely through the EA process including approval at Queen’s Park (which Council had to request), I think that any claim the Sheppard subway is still on the table is creative writing.
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@P. Coulman and Steve Munro
The way I see it, the Sheppard Subway policy was rescinded by virtue of lack of funding. I don’t think council needed to vote on cancelling the Sheppard Subway when it clearly wasn’t going to be extended anyways.
That would make David Miller look as stupid as those other politicians who care about their tiny pet-project.
Also, Council voted in 2007 to initiate EA’s for Transit City; therefore, no money could have been spent on EA’s that didn’t exist then.
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@Jacob Louy
“The way I see it, the Sheppard Subway policy was rescinded by virtue of lack of funding.”
The same cannot be said for Transit City, a fully-funded plan at the time of banishment.
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Furthermore, by Chong’s logic, the Queen Street subway is still city policy (unless there was an explicit vote to rescind it).
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Michael, you made some damn good points in responding to my last comments but to me it seemed way to clear to me what a jerk he was right from the getgo. He was never a person I could ever see myself voting for no matter what even if you took away the whole transit issue. That being said, here’s hoping a VERY good candidate will be running for Mayor in 2014. The anti-Ford people should be getting ready now for some way to rid Toronto of him. If there’s not a good candidate, Ford gets reelected. It’s that simple. the biggest reason Mayor Daley in Chicago (the father of the more recent mayor there) got reelected until his death is said to have been the lack of good enough candidates to oppose him any time he was up for reelection.
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