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ONTARIO COURT OF JUSTICE (GENERAL DIVISION)



Affidavit of Andrew Sancton


Introduction
1. I am a Professor of Political Science at the University of Western Ontario and Director of the Local Government Program, which comprises undergraduate and graduate courses of study especially designed for municipal managers. I received a Doctorate of Philosophy (D.Phil.) in Politics from Oxford University in 1978 after having written a thesis on local government on the Island of Montreal. I am the author of numerous academic publications on local government. My curriculum vitae is attached as Appendix A.


2. I have reviewed the City of Toronto Act, 1997 in its final form. For the purposes of this Affidavit, the most relevant sections are: 2 (incorporation); 3 (council), 4 (executive committee), 5 (wards), 13-15 (financial advisory board), 28 (dissolution of municipalities).

3. I note that the Act in various sections [e.g. 13(4)(e)] implies the need for ministerial regulations. There is no section in the Act granting authority for the making of such regulations.

4. The objects of this Affidavit are to explore the historical evolution of municipal political representation in Canada, paying particular attention to the defining characteristics of municipalities at the time of Confederation, and to outline the accepted conventional understanding about effective municipal political representation as it has evolved in the context of this history.


5. Because Canadian municipal government has its origins in the United Kingdom, the Affidavit examines the evolution of pre-democratic municipal representation in England and its transfer to Canada in the late eighteenth and early nineteenth centuries. The following section looks at how democratization, and the Progressive-Era reaction to it in the early twentieth century, formed the basis of Canadian thinking about municipal government. A new wave of urban reform - emphasizing neighbourhood participation - spread across Canada in the 1960's and 1970's. Its effects are the focus of the next section of the Affidavit. The sections that follow assess the implications of the City of Toronto Act, 1997 in light of municipal experience elsewhere.

6. The Affidavit will demonstrate that, even within the context of relatively recent provincially-imposed municipal reorganizations, the City of Toronto Act, 1997 is: a) unprecedented; b) violates established principles of Canadian municipal democracy; and c) is offensive for reasons of both process and substance.


7. No other legislation has simultaneously removed existing municipal structures and replaced them with a system which is so foreign to traditionally acceptable Canadian patterns of municipal representation. In cases of municipal reorganization, only in Winnipeg in 1972 was a municipal council of a similar size created. It has since been dramatically reduced. Experience with a large municipal council in the City of Montreal demonstrates that the creation of an even larger council for the City of Toronto would lead both to the domination of municipal politics by political parties and the creation of a powerful executive committee. Both phenomena create difficulties. Within the context of the City of Toronto Act, 1997 a powerful executive committee is especially problematic because its members are to be chosen by procedures that are in direct violation of the principle of representation by population.

Municipal government and democracy

8. Much has been written about the necessary connections between a strong system of municipal government and a healthy liberal democracy. There are three main values associated with such a system: efficiency, participation, and pluralism. Systems of municipal government have emerged in liberal democracies because they deliver local services, and regulate local affairs, more efficiently than central governments could ever expect to; they nurture deeper and more meaningful forms of direct citizen participation; and they are clear and visible reminders that a healthy system of representative democracy requires multiple sources of legitimate elected authority, rather than just one or two.

9. Central governments (provincial governments in Canada) have sometimes claimed in recent years that municipal governments can be made more effective as a result of drastic, centrally-imposed legislative reorganization. The British scholar, L.J. Sharpe, has described such a policy as "functionalism," the belief that experts outside a community can somehow determine the ideal territory for municipal-government functions and boundaries should be adjusted accordingly.


10. Sharpe's views on this subject now represent the dominant view within political science on the subject of local-government organization. He and others have subjected functionalist views to sustained attack. There are many dimensions to the debate. One involves the issue of community. If municipal-government boundaries are imposed on an unwilling citizenry, then the values that municipal government is designed to promote are undermined from the very beginning. Citizens are invited to participate in "their" local government; yet the act of its creation demonstrates that it is not theirs at all.

11. Sharpe's critique of functionalism directly confronts the connection between democracy and scale:
...the hypothetical advantages of pushing out the boundary on functionalist grounds must always be set against the palpable costs to democracy of so doing. For if we take the most basic definition of democracy - the government acts in accordance with the wishes of its citizens - then democracy is undeniably a diminishing function of scale.


12. The case against functionalism is not that concerns for democracy must somehow outweigh concerns about efficiency. Even on its own terms, the functionalist case that municipal amalgamation promotes efficiency cannot be sustained. For example, there is no evidence that municipal amalgamations save money or that they promote more effective regional planning.

13. Before exploring in some detail the democratic deficiencies of the City of Toronto Act, 1997, it is important to outline briefly the place of municipal government in our constitutional history.

Pre-democratic representation on municipal councils
14. Writing the early history of British local government can be a dangerous trap. In 1899, the well-known Fabian socialists, Sidney and Beatrice Webb launched such a project. They planned to write one chapter on the pre-1835 arrangements. Instead they published eleven volumes, comprising 4212 pages, covering the period 1689-1835, claiming that contemporary arrangements could not properly be understood in the absence of the details. For the purposes of this Affidavit, however, we need only agree with Professor Bryan Keith-Lucas who wrote:
`One great difficulty in describing the system of local government in the early nineteenth century is that there was no system. Every town and village ran its affairs in its own way, and there were few general statutes applying to them all.’


15. There is a simple explanation as to why the "system" was so confusing: the creation of local governments was a local undertaking. Central authorities merely implemented what local people wanted, as long as it was not in violation of some general public policy. Central authorities then would no more initiate the creation of municipal corporations than central authorities would today initiate the creation of privately-owned limited liability corporations. The concept of creating municipal corporations as a result of local initiative was a defining characteristic of the English local-government system in the early nineteenth century.

16. Canadian municipalities can trace their constitutional origins to English medieval municipal corporations, of which the City of London is the most famous. London has no single charter of incorporation - the freedom of its citizens to manage certain of their own affairs was granted in a series of royal charters dating back to William the Conqueror. London is described as being a corporation "by prescriptive right." Writing in 1955, John J. Clarke claimed that "The oldest known charter was that which was granted to Winchester in 1185." It is the various accumulated rights and freedoms of such municipal corporations as London and Winchester that are referred to in chapter 13 (chapter 9 in later revisions) of the Magna Carta of 1215.

17. The City of Saint John, New Brunswick, is the oldest municipal corporation in what is now Canada, having received its royal charter in 1785. Arguably, the fact that Saint John was incorporated by royal charter meant that, unlike other Canadian municipalities incorporated by statute, its council was granted "all the powers of a natural person." Under this reasoning, Saint John's council was therefore not subject to the normal rule that municipalities can only perform such functions as are granted to them by the relevant legislature, in this case that of New Brunswick. No other Canadian municipality was incorporated until the 1830's, by which time the reform of municipal corporations had become an important item on the English political agenda.

18. The Municipal Corporations Act of 1835 is crucially important in the history of English local government because it was the first statute that applied to municipal corporations in general. Without affecting the governance of more rural areas surrounding the territories of municipal corporations, the new law provided a basic and common framework within which all 178 corporations were required to function. Its main features - extended later in the century to counties, parishes, and urban and rural districts - are listed below:
1) the municipal corporation became the legal personification acting for and responsible to all the residents of the incorporated district;
2) the council was to be directly elected and to have public meetings and accounts;
3) all ratepayers resident for more than three years were to be eligible to vote, thus making the local franchise far wider than the parliamentary one;
4) justice was to be separated from municipal administration
5) central control was introduced although on a very limited scale, through control, for example, of loans and the sale of municipal property;
6) the jurisdiction of municipal government was specified and defined within relatively narrow limits;
7) the special rights of municipal "freemen" that existed under the old charters were virtually abolished.

19. The Municipal Corporations Act of 1835 did not create or abolish municipalities. It did not alter the practice of incorporating municipalities only as a result of local initiatives. Instead, it laid down basic rules under which existing municipal corporations were expected to operate. In so doing it was a model for public municipal legislation for more than a century.

20. Two British academic authorities on the history of local government made this important observation about the Act's influence:
`The constitutional structure which emerged from the struggle over the municipal corporations in 1835, and the subsequent adaptations of a century of experience, has been not only universal in this country, but has been reproduced widely in the Empire and Commonwealth. In India, Canada, Africa, Australia, and New Zealand, the same framework has been used [emphasis added].’


21. The thinking behind the Municipal Corporations Act was transmitted to Canada by Lord Durham in his famous report that followed the rebellions of 1836-37. Although Durham made numerous comments about the virtues of a comprehensive system of local government, the most apt is probably this:
`The establishment of a good system of municipal institutions throughout the Provinces is a matter of vital importance. A general legislature, which manages the private business of every parish, in addition to the common business of the country, wields a power which no single body, however popular in its constitution, ought to have; a power which must be destructive of any constitutional balance. The true principle of limiting popular power is that apportionment of it in many different depositories which has been adopted in all the most free and stable States of the Union. Instead of confiding the whole collection and distribution of all the revenues raised in any country for all general and local purposes to a single representative body, the power of local assessment, and the application of the funds arising from it, should be entrusted to local management. It is in vain to expect that this sacrifice of power will be voluntarily made by any representative body. The establishment of municipal institutions for the whole country should be made a part of every colonial constitution; and the prerogative of the Crown should be constantly interposed to check any encroachment on the functions of the local bodies, until the people should come alive, as most assuredly they almost immediately would be, to the necessity of protecting their local privileges.’


22. Under the leadership of the new Canadian governor-general, Lord Sydenham, Durham's recommendations for a comprehensive system of municipal government in a united Province of Canada were quickly enacted. In December 1840, the Special Council of Lower Canada enacted an ordinance providing for district councils in what is now Quebec. A few months later the new united Canadian legislative assembly approved the District Councils Act for Upper Canada. The leading authority on the passage of this Act, Professor C.F.J. Whebell, has concluded that "For Sydenham, the passage of the District Councils Act put the capstone on the constitutional structure he had conceived for a united Canada. Eight years later, the same legislature approved Robert Baldwin's Municipal Corporations Act, often considered the most influential Canadian municipal statute ever enacted. Whebell states that the District Councils Act was replaced "not because of the failure of Sydenham's scheme, but because its success led Upper Canadians to look for further innovations along the same lines." Writing in 1900, C.R.W. Biggar made this assessment of the Baldwin Act and its influence:
`Never had the principle of local self-government been more fully carried out than in the Act of 1849....[T]he Baldwin Act and its lineal descendants have in their turn become the progenitors and paradigms of the Municipal Institutions Acts in force today in nearly every Province of the Dominion."


23. The Baldwin Act delineated municipal authority to levy taxes, spend money, and approve regulatory by-laws over a wide variety of local matters, ranging from municipal infrastructure such as bridges and roads to the licensing of taverns. It established as a "Body Corporate" each Upper Canadian township having more than one hundred "resident freeholders or householders." It confirmed the corporate existence of established villages, towns, and cities and provided legal mechanisms whereby residents within existing townships could petition provincial authorities for the creation of new villages, towns, and cities and whereby residents within such municipalities could petition for a change of status. In general terms, cities were given more functional authority than towns; towns more than villages; and villages more than townships. Similar provisions concerning incorporation and changes of status exist to this day within Ontario's Municipal Act.

24. So strong is the Canadian history of voluntary municipal corporation as first generally elaborated in the Baldwin Act that Ian MacF. Rogers, Q.C. writes: "Consonant with the principle of self-government is the voluntary nature of municipal corporations. Popular assent brings a municipality into being."

25. Prior to the 1960's, changes to the governmental structures and territorial boundaries of particular municipalities were made in one of two ways: private legislation enacted at the request of the municipality; or (since 1906) by petitioning the Ontario Municipal Board (OMB), which granted such requests only after carrying out the prescribed investigations and/or hearings. It is especially important to note that the Ontario legislature did not arbitrarily enact public legislation affecting the boundaries of particular municipalities. Boundary changes resulted only from some form of local initiative. If local agreement was not possible, procedures relating to the introduction and passage of private legislation and/or OMB hearings ensured that some form of relatively impartial external adjudication was available.

26. I am not aware of any cases in this period (or until the 1960's), either in England or Canada, in which the relevant legislature acted against the advice of a particular municipality (or group of contiguous municipalities) by significantly changing municipal boundaries or dramatically increasing the size of a municipal council. Such an action would have been seen as an entirely unjustified central intrusion on local autonomy, especially if it were implemented in the absence of any coherent case being made that it would increase governmental efficiency or overall societal equity.

27. In summary, we can draw the following conclusions about Ontario villages, towns, and cities for the period from 1850, through Confederation and into the early twentieth century:
1) they were created on the basis of local initiative;
2) they were the legal personification acting for and responsible to all the residents of the incorporated area;
3) they were governed by a directly-elected council for which all ratepayers generally had the right to vote;
4) they conducted public meetings and kept public accounts;
5) their territories were not altered without local consent; and
6) within their established jurisdictions, they had independent decision-making authority.

Democratization and reform
28. For both North America and Britain, the turn of the twentieth century was of crucial importance in the development of municipal government. In the United States this period is often known as the "Progressive" era; in Britain it is the age of "civic improvement" or "municipal socialism." In both countries, and in Canada, it is simply the period of "municipal reform." Whatever the label, the causes of the movement for change were the same: urbanization brought about by the Industrial Revolution and democratization brought about by the extension of the franchise.

29. In the United States, municipal reform in the Progressive Era was primarily concerned with eliminating the notorious "urban political machines," best exemplified by the Tammany Hall machine of the Democratic Party in New York City. While the machines undoubtedly enabled many urban immigrants to move ahead in an environment hitherto dominated by the long-established social and economic elite, they provoked howls of outrage both from those whom they displaced and from social activists who wished to build an urban community on the basis of altruism rather than patronage. In the United States, the municipal reform movement led not to municipal socialism as in Britain but rather to a search for new forms of municipal structures in which principles of good management would be able to prevail over the parochial concerns of ward politicians. The council-manager system, in which a small council elected at-large, while maintaining policy-making authority, hands all administrative responsibilities over to a professional city manager, is the best known and most long-lasting outcome of this approach.

30. While urban political machines were not nearly so strong in Canada as in the United States, they did exist, especially in Montreal and Toronto. Their existence provoked a similar reaction, except that, not surprisingly, some Canadian urban reformers (such as J.S. Woodsworth in Winnipeg) eventually took a socialist path while others followed the American route and emphasized the importance of new municipal structures. The thinking of these early reformers dominates to this day much of the Canadian thinking about what municipalities really are and how they should best be structured. Every time provincial and municipal politicians proclaim that they will prevent inefficiencies by insuring that the municipality is run "like a business" they are echoing (usually unconsciously) the central tenet of the turn-of-the-century reform movement.

31. Reformers of this era were much concerned about the evils of small wards, large councils, and involvement of political parties in local elections. They wanted municipal councils to be like the relatively compact, consensual boards of directors that governed large business corporations. Although few in Canada would now fully support the idea that the municipal council is just a special form of the corporate board, the views of the turn-of-the-century reformer remain a crucial part of the thinking of experts and laymen alike: municipal councils are not like parliaments or legislatures. They are not for making speeches and staking out partisan positions. They are places where real business is conducted; where accommodations are made in public among nonpartisan elected representatives from different territories within a common community. For these expectations to be met, the number of elected councillors in a municipality must be relatively small.

32. For turn-of-the-century reformers, the notion that a large city required a large council would be as nonsensical as the notion that large private corporations required significantly larger boards of directors than smaller corporations. Increasing the number of members on a board does not increase its capacity for good governance. Indeed, two prominent Canadian academic analysts of corporate governance have concluded that the optimal board size is between eight and ten:
`Oversized boards result in several problems - individual directors' participation time is severely reduced and/or even eliminated; much board work has to be delegated to committees, reducing the involvement of directors in many issues; evaluation of director performance becomes difficult if not impossible; motivation suffers; the system is less open to criticism and possible change; and it becomes easier for management to control the board by divide-and-rule tactics.’
One need not fully accept the assumption of the Progressive-Era reformers that municipal corporations are just like business corporations to accept the notion that there are at least some connections between effective corporate governance and effective municipal governance.

33. Regardless of academic treatises, the prospect of a functioning governing board (as opposed to a legislature) containing more than about twenty-five members is difficult for any of us to contemplate. The easiest way to think of the importance of size is to contemplate the usual Canadian municipal council in which members sit around a common table or horseshoe, making eye contact with each other and fully engaged in a common discussion. Then think of meeting rooms (or legislatures) in which participants are arranged in rows, one behind the other. In some form or other, this latter configuration is what will result from a council of fifty or more people. It is not municipal decision-making as we know it in Ontario.

The new reformers of the 1960's and 1970's
34. From about 1920 until the mid-1960's there were no major challenges to the main patterns of municipal politics, except for increased levels of provincial regulation and funding, mostly due to the effects of the Great Depression. Within municipalities, conflict still revolved around the old disagreements between the patronage concerns of machine-style politicians and the efficiency concerns of Progressive-Era reformers and their successors.

35. Until the mid-1960's, both sides tended to agree that all growth was good, that experts knew better than ordinary citizens, and that bigger was better. These were precisely the assumptions that were so impressively challenged in what Professor John Weaver calls "the second reform period."

36. New reformers emerged in all major Canadian cities, but nowhere were they more influential than in Toronto. Their accomplishments across a wide range of issues have been well documented. For the purposes of this Affidavit it need only be noted that, in terms of influencing both expert and lay opinion about the ideal structures and processes for municipal policy-making, their impact has been at least as important as that of the earlier reformers. Municipalities in all Canadian cities generally yielded to great pressure and opened up municipal decision-making to new forms of public participation, often involving direct citizen access to individual councillors, committees, and council itself. Indeed, whenever we hear candidates for office claiming that they will simultaneously promote business-like and participatory municipal government, we know that both reform periods have been equally influential.

37. There are a number of points on which reformers from the two periods would not be in agreement. One such subject - municipal wards - is crucial to municipal political representation. Earlier reformers wanted no wards at all, or at least very large ones. New reformers favoured wards as mechanisms through which distinct communities within cities could be directly represented on municipal councils. In Ontario at least, they were fairly successful. Ever since the late 1960's, there has been a trend away from at-large elections in cities and in favour of elections based on wards. In Toronto, new reformers fought successfully to replace long, narrow wards encompassing various communities with block wards that more closely corresponded to the real social geography of the city. In Vancouver, new reformers fought unsuccessfully to replace an at-large electoral system (favoured by the earlier reformers) with one based on wards.

38. In their enthusiasm for regional planning and capturing economies of scale, earlier reformers launched much of the thinking that eventually led to the creation of such metropolitan governmental institutions as the Municipality of Metropolitan Toronto, the Corporation of Greater Winnipeg, the Montreal Urban Community, and the Greater Vancouver Regional District. By the 1970's, new reformers had become suspicious of these upper-tier bodies because they tended to be more remote from direct citizen control and more likely to be dominated by suburban concerns that were often inimical to the new reformers' political agenda. When the Robarts Royal Commission on Metropolitan Toronto was deliberating in the 1970's, new reformers made a strong plea for decentralisation to the constituent municipalities, a plea the commission's report acknowledged by not recommending full amalgamation but otherwise did little to implement.

39. Despite their obvious points of disagreement, old and new reformers share a number of common positions. Both would be profoundly suspicious of any proposal to create huge urban municipalities through amalgamation: old reformers because they saw their worst enemies based in the political machines fostered by such municipal behemoths as New York City and Chicago and because they enjoyed their greatest successes in establishing efficiently-run, apparently apolitical city-manager systems in autonomous middle-class suburban municipalities that would be wiped out by amalgamation; new reformers because, as indicated previously, they opposed any institutional changes that lessened the ability of inner-city neighbourhoods to control their fate.

40. Both groups of reformers also favour relatively small councils. New reformers had little interest in conceptualizing municipal councils as boards of directors of corporations. But they did believe that every councillor had a responsibility to work doggedly and passionately both in public in the council chamber and behind the scenes with municipal staff to protect and advance the interests of the neighbourhoods within his or her ward. As one member of a very large council - or worse still as a disciplined member of a political party - such activity would not be possible. For different reasons, old and new reformers alike arrive at a similar position with respect to the appropriate size for municipal councils.

41. How the ideas of old and new reformers have come together to help form the prevailing orthodoxy about municipal representation in Canada will be discussed later in this Affidavit. The next section, however, will explore the connection between population size and the structural design of municipal councils. In so doing it will look at two anomalous cases - Montreal and Winnipeg - in which we have had experience with large municipal councils.

Council size
42. In his authoritative text written in 1954, Professor K.Grant Crawford made the following observations about the size of Canadian city councils: "Most city councils have between seven to fifteen members, although there are some larger councils, usually in the larger cities...." At that time the City of Montreal's council was the largest at 100 members; Ottawa's was second-largest at 33. Crawford pointed out that "Subject to a few exceptions, the general rule in Canadian urban municipalities is that the smaller the population, the greater the number of representatives in proportion to the population."

43. These statements remain generally true today, except that the size of Montreal's council has been reduced to 52 and Ottawa's to 11. Listed below are the ten most populous Canadian municipalities according to the 1991 federal census, showing the total number of members on each municipal council.
Municipality 1991 population number of council members ratio of council members to residents
Montreal: pop 1,017,666; cllr 52; ratio19,570.50
Calgary: pop 710,677; cllr 15; ratio 47,378.47
Toronto: pop 635,395; Cllr*17; ratio 37,376.18
Winnipeg:pop 616,790; cllr 16; ratio 38,549.38
Edmonton: pop 616,741; cllr 13; ratio 47,441.62
North York: pop 562,564; cllr*15; ratio 37,504.27
Scarborough: pop 524,598; cllr*15; ratio 34,973.20
Vancouver: pop 471,844; cllr 11; ratio 42,894.91
Mississauga: pop 463,388; cllr 10; ratio 46,338.80
Hamilton: pop 318,499; cllr 17; ratio 18,735.24

* - indicates that the number does not include additional representatives elected to serve only on the council of the Municipality of Metropolitan Toronto

44. The 1991 population of the territory covered by the new City of Toronto, as established by the City of Toronto Act, 1997, is 2,275,771. Since there are to be 57 elected representatives, the ratio of councillors to residents is 39,926. The Table illustrates that such a ratio is within the normal current Canadian range for large cities. In comparison to each of the ratios of residents to councillors in all other cities within Ontario, the ratio for the new City of Toronto is significantly higher.

45. What is unusual about the new council is its size. In addition to being the largest in Canada, it is also larger than the municipal councils of New York City (51 members), Los Angeles (16), and Chicago (51). These three cities, the only ones in the United States more populous than the new City of Toronto, have 1991 populations of 7.323, 3.485, and 2.784 million respectively.

46. As noted earlier, a dramatic increase in the size of a municipal council runs counter to the objectives of both of the reform movements that have shaped the pattern of Canadian city politics in this century. A larger council means that each individual councillor is, by definition, less influential and less able to ensure that he or she can respond to the concerns of his or her constituents. Councillors lose any hope of being a functioning corporate board of directors. Because individual councillors will be unable to be personally influential, individual citizens will have even less opportunity for direct participation in the affairs of council. Although a return to machine-style politics of the nineteenth century is not inevitable, the obliteration of many of the accomplishments of both reform movements is likely.

The Case of Montreal
47. Among current Canadian cities, Montreal is clearly the anomaly. Even in its case, however, the number of councillors has been reduced since 1944, while the territory of the city has increased since that date as result of the annexation of three separate suburban municipalities. In 1944, the council had 100 members. Today it has 52.

48. The Montreal experience is instructive. Municipal political parties emerged in Montreal in the 1950s. They have completely dominated municipal politics and elections ever since. The council is organized along partisan lines, complete with the "government" party, led by the mayor, to the right of the council chair, and the "opposition" party to the left. Since 1978, party names have appeared on municipal ballots and public funds have been used to subsidize the electoral expenditures of municipal parties that receive a specified share of the vote.

49. In 1962 the council's internal structures were re-organized, at the urging of Mayor Jean Drapeau, so as to create a very strong seven-member executive committee that meets in secret. No business can come to council without being sent to the executive committee first. One of the functions of the executive committee is to propose an annual budget. If it is not approved by council, it takes effect anyway. For all practical purposes, the municipal business of the City of Montreal is carried out by its seven-person executive committee.

50. There might be a temptation to ascribe peculiar features of Montreal's municipal governance to the particular preferences of Mayor Drapeau. Although Drapeau left office in 1986, little has changed, even though he was replaced initially by a municipal political party (the Montreal Citizens' Movement) pledged to make the system more democratic. A contemporary description of the MCM regime is as follows:
`Since Council runs on a system of parliamentary democracy, all of these issues are screened and presented by the Executive Committee. That party strongly discourages public disagreement and the party line is handed down in caucus meetings of MCM Councillors held just before Council meetings - so the MCM always votes en bloc. The presumption that the MCM will always vote for the Executive Committee is so strong that often only opposition members are asked to register their votes in Council.’


The Executive Committee for the new City of Toronto

51 It is significant that the City of Toronto Act, 1997 includes specific provisions concerning the composition up of the new city's Executive Committee. It is to be made up of the chairs of the six community committees plus the mayor, even though the populations of the areas covered by the community committees vary dramatically, as shown in the table below (population figures are from the 1991 federal census). If all residents within the new City of Toronto were represented equally on the executive committee, there would be 379,295 (2,275,771 divided by 6) residents per representative. The table illustrates the extent to which the legislated level of representation varies from the "electoral quotient" of 379,295 for each of the territories to be represented on the executive committee.
population % variation

Toronto 635,395 + 67.5%
North York 562,564 + 48.3%
Scarborough 524,598 + 38.3%
Etobicoke 309,993 - 18.3%
York 140,525 - 62.8%
East York 102,696 - 73.1%

52 These percentages demonstrate that the constituencies on which executive-committee representation is to be based vary widely in terms of their respective populations. In fact, of course, the constituencies are not designed to reflect the principle of representation-by-population. Instead, because they are coterminous with the existing municipal boundaries within Metropolitan Toronto, they are explicitly meant to respond to public requests not to eliminate existing cities. The tension between the principle of representation-by-population and the desire to base representational districts on longstanding territorial communities has been subject to considerable debate within the context of drawing boundaries for federal and provincial electoral districts.

53 There are two possible reasons for dismissing any concerns about the implementation of representation-by-population on the Executive Committee. Each will be dealt with in turn. The first is the claim that the executive committee has no real authority. In theory, this might be true (although its exact functions are apparently to be determined by the transition team [section 18(4)(c)(ii)]). In fact, however, the Executive Committee for a group of 57 councillors will be the only political institution capable of bringing order out of chaos. If the Executive Committee is not powerful in practice, the new City Council, as a decision-making body, simply will not work, unless it is assumed that political parties will provide leadership. To my knowledge there is no research on this issue - for the simple reason that there are no non-partisan legislative bodies of this size that do not have strong executive committees (or a legislated "strong-mayor" system, as in New York City). In the City of Montreal, there is both a strong executive committee and an all-pervasive local party system.

54 The other objection might be that the new City Council can change the composition of the Executive Committee. Once again, this is true in theory. In the real world, however, councillors would be unlikely to agree to any new system that did not provide for some form of territorial representation. How they would (or should) agree on a new territorial division is far from clear, especially since, unlike changes to ward boundaries, there is to be no involvement by the Ontario Municipal Board. If political parties were in place, arranging membership on the Executive Committee would not be a problem. In Montreal, the mayor, like a prime minister, chooses the members from among prominent party supporters. In the absence of political parties, current arrangements for representation on the Executive Committee are unlikely to change.

55 Prior to 1989, there was a feature of New York City's system of municipal government that is similar to the proposed Executive Committee for the new City of Toronto. New York had a "Board of Estimate," which included the mayor and the directly-elected presidents of the city's five boroughs, each of whose territories matched those of the independent municipalities that existed prior to consolidation in 1898. Under successive city charters the Board of Estimate was allocated varying levels of authority in connection with financial matters and city planning. In 1989 its representational arrangements were ruled unconstitutional by the United States Supreme Court in 1989 on the grounds that they violated the principle of one-person, one-vote.

56 Joseph P. Viteritti points out that defenders of the board
`...had argued that since the board was not a legislative body, it would not be held to the same standard of representation as the council had been. For all practical purposes, the argument was irrelevant. No matter how the Board of Estimate was classified by the existing charter, it was an important policy-making body, and one that performed functions that were undeniably legislative.’
As a result of the Supreme Court's decision, the Board of Estimate no longer exists.

Provincially-Imposed Municipal Reorganizations
57 At roughly the same time that new reformers were making municipal governments more participatory, provincial ministries of municipal affairs in most province were contemplating reorganizing them. One aspect of these reorganizations will not be explored in this Affidavit: the superimposition of an additional tier of municipal government on top of existing city governments. Such a practice began in Toronto in 1953 with the creation of the Municipality of Metropolitan Toronto and later spread, in somewhat different ways, to Manitoba (the Corporation of Greater Winnipeg), other parts of Ontario (regional governments), British Columbia (regional districts), and Quebec (urban communities and municipal regional counties).

58 Although provincially-imposed mergers of urban municipalities also occurred in Quebec (Laval) and New Brunswick (Saint John), the most significant ones were in Ontario and Manitoba.

59 Except for the creation of the City of Thunder Bay (from the cities of Fort William and Port Arthur) in 1970, all the other Ontario mergers were associated with either the fine-tuning of the metropolitan system of government for Toronto or with the creation of new two-tier regional governments.

60 In none of these cases was an unusually large council created. In none of them was the nature of the council so changed that the pattern of municipal decision-making itself was fundamentally altered. In none of them were some of the largest municipalities in Canada dissolved so as to create a new one that was more than twice the size of the next largest.

61 In the context of the City of Toronto Act, 1997, the most significant municipal amalgamation was the creation of Winnipeg's "Unicity." In 1971 the Manitoba legislature approved the City of Winnipeg Act, 1971. This law replaced the Corporation of Greater Winnipeg and its twelve constituent municipalities, replacing them with a new City of Winnipeg, to be governed by a council of 51 members. Thirteen community committees were established to advise the full council on neighbourhood issues.

62 The Government of Manitoba published its 40-page White Paper explaining its policy in late December 1970. Transitional legislation was approved May, 1971. The City of Winnipeg Act, 1971 was introduced in June and read for the third time in July. It came into effect on January 1, 1972. The legislation was supported by "the City of Winnipeg, the Corporation of Greater Winnipeg, unions of municipal employees, and interest groups concerned with municipal politics."

63 The following statement justifying a large municipal council was included in the White Paper: "This Government agrees with some of the most current thinking of urban planners in other jurisdictions who suggest that the appropriate base for effective popular representation is one councillor for every 10-12,000 people."

64 The large council in Winnipeg did not last. In 1977 the size of the council was reduced to thirty members. In 1991 it was further reduced to sixteen. Professor Allan O'Brien reports that the 1991 reductions were made with a view to:
• reducing parochialism and encouraging Council to take a broader, more city-wide approach to planning and Winnipeg's future;
• streamlining and speeding up the decision-making process; and
• fostering a more cohesive, smaller group to manage City Hall.

These are classic arguments from the first reform movement of a hundred years ago. They are exactly the same arguments made then against the relatively large councils that were associated with the urban political machines.

65 As noted in the first table in this Affidavit, even after the reduction in the size of its council in 1991, Winnipeg had a ratio of residents to councillors that was well within usual Canadian norms.

66 In 1996 there was another provincially-imposed municipal amalgamation in a major Canadian urban area. The Halifax Regional Municipality was created by merging the cities of Halifax and Dartmouth, the Town of Bedford, and Halifax County Municipality. In 1991 the territory of the new municipality had a population of 331,000. With a new council of 24 members, there are 13,800 residents per councillor.

67 C. William Hayward, the provincially-appointed commissioner who designed the new Halifax Regional Municipality addressed the issue of council size in his Interim Report:
`Experience in other provinces, where there are some councils as large as 50 members, suggests that the effectiveness of individual representatives is greatly lessened in a large council. Local party politics tends to develop, with the concepts of party being more important than the individual councillor's concerns....’

`Canadian preferences have tended to favour smaller, more workable councils.’

The City of Toronto Act, 1997 in its Canadian Municipal Context
68 If the size of the council of the new City of Toronto remains at 57, then - as the Montreal experience indicates - the entry of political parties into municipal politics and/or the emergence of a strong executive committee would seem inevitable. Although some scholars of Canadian local government have in the past advocated the organization of municipal councils along party lines, I know of none who do so today. Nor do I know of any who advocate a strong executive committee that usurps the decision-making authority of the full council.

69 Among academics, senior administrators, and experienced politicians, the Canadian consensus on urban municipal government is clear. Councils should be small enough - in the range of 10 to 25 members - so that the full council can conduct meaningful face-to-face debate and work out honourable compromises, in public, on the floor of the chamber and so that individual councillors can have some reasonable prospect of influencing council decisions in relation both to the particular concerns of their own wards and to the broader issues facing the municipality as a whole. In large councils - such as that proposed for the new City of Toronto - the kind of independent municipal representation to which most Canadian urban residents have become accustomed simply is not possible.

70 Since the creation of the large unicity council in Winnipeg in 1972, I am not aware of a single proposal or recommendation calling for a municipal council of fifty or more members in any academic article or book or in any report from any government agency, task force or commission. As far as government reports are concerned - such as the Hayward report for Halifax - the recommendations have always been in the other direction, i.e. the size of councils should be reduced so as to facilitate informed decision-making by members who are able to participate fully in all corporate decisions.

71 Although political parties might from time to time be involved in the election of particular councillors, or even recognized groups of councillors, Canadian municipal councils outside Quebec are not organized - and should not be organized - on the basis of party alignments. Such a form of organization would reduce the capacity of individual elected councillors to serve the particular and special needs of the neighbourhoods they serve.

72 The absence of political parties or a very powerful executive committee in a council of 57 members would be even worse. Cliques, factions, secret deals, and ongoing chaos would characterize the local political process. I do not believe there are any modern democratic examples of a stable, genuinely non-partisan legislative body of that size.

73 As already noted, the 1991 population of the territory of the City of Toronto, as established by the 1997 Act, is 2.2 million, more than twice the population of any other Canadian municipality. Such a large population means:
EITHER The council of the new city will be abnormally large in number
OR The ratio of residents to councillors will be abnormally high.
As with Winnipeg's unicity when it was first created, the 1997 Act creates an abnormally large council. While the Manitoba legislature could reduce the number of councillors in Winnipeg without creating an unusually high ratio of residents to councillors, the Ontario legislature - unless it reduces the territory of the new City or unless its population declines dramatically in relation to other Canadian major urban municipalities - will never have that luxury.

74 It is a virtual certainty, however, that pressure would soon mount within the new City of Toronto to reduce the size of council, for exactly the same reasons as were advanced in Winnipeg. If elected officials yielded to that pressure in any significant way, they would be denying to residents of the City the same level of municipal representation available to all other Canadian urban residents.

75 If the number of councillors in Toronto were halved, there would be just under 80,000 residents for each member of council, a figure about seventy-five percent higher than that of Calgary and Edmonton, the cities currently with the highest ratios. I see no justification for such a lack of municipal representation for Toronto residents. I know of no expert on municipal government who would support such a position.

76 The fundamental problem with the City of Toronto Act, 1997 is irreparable. If Canadian norms for the ratio of residents to municipal councillors and for the size of municipal councils are to be maintained, then municipalities cannot have populations of much more than one million people. All of the constituent municipalities within the Municipality of Metropolitan Toronto meet this standard. The new municipality established under the City of Toronto Act, 1997 does not. If there was some sense in which residents in the constituent municipalities had consented to such a change in their arrangements for municipal representation, the changes would have been defensible. They would have been consistent with pre-Confederation practice in both Canada and England, namely that some form of local agreement was necessary. Because they were imposed without such consent, they are not defensible.

77 Concerning Section 13-15 of the City of Toronto Act, 1997, I am aware of no actions taken by any municipality affected by the legislation that would justify such drastic limitations by an unelected financial advisory board on the autonomy of elected municipal councils to manage their own resources.


Summary and conclusion
78 In my considered opinion, the City of Toronto Act, 1997 violates accepted Canadian principles of effective municipal political representation. These principles derive largely from the two reform movements - outlined earlier in this Affidavit - that have swept over Canadian municipal governments in the last one hundred years.

79 In terms of municipal political representation, this Affidavit has demonstrated that in the new City of Toronto the following results are inevitable:
1) individual council members will have dramatically less capacity to influence municipal policy as it affects the neighbourhoods and communities within their wards than they do under the current municipal structures;
2) political parties are likely to be the only mechanism capable of organizing the large council such that it can take any form of coherent action; such parties would further reduce the ability of individual councillors to act independently both in relation to city-wide issues and to issues of concern to particular neighbourhoods;
3) with or without political parties, a crucial source of political power will be the Executive Committee, an institution explicitly structured in defiance of the principle of representation by population.

80 It is clear that the pre-Confederation legislative practices of incorporating cities, towns, and villages on the basis of local initiative and of respecting the territorial integrity of existing cities, towns, and villages are violated by the City of Toronto Act, 1997.

81 Since Confederation various laws of Canadian provinces have from time to time violated the explicit and declared interests of particular municipalities. However, none have done so in the absence of any clear, expressed declaration of public purpose. In the case of the City of Toronto Act, 1997, such a public purpose is not apparent. In any event, unlike provincially-imposed municipal amalgamations in Winnipeg and Halifax, there is no formal government document stating clearly what that purpose might be. There is no report of a commission or task force calling for this course of action. Even in relation to the purely "functionalist" case for municipal amalgamation referred to in Paragraphs 9-12 of this Affidavit, there is no documentation stating why this particular amalgamation is desirable.

82 There has never been a Canadian municipal amalgamation on the scale contemplated by the City of Toronto Act, 1997. Other significant amalgamations have never been enacted in the face of such intense and manifest local opposition.

83 Municipal councils are not mere administrative agencies of the central state. Their roots are deep in our constitutional history and heritage. They are an integral part of our liberal democratic system of government. The arbitrary dissolution of municipal councils in the manner contemplated by the City of Toronto Act, 1997 is: a) unprecedented; b) violates established principles of Canadian municipal democracy; and c) is offensive for reasons of both process and substance.

Endnotes.
Where prefixed with `P’, the note is to a numbered paragraph.

P.7 Prior to 1944, the City of Montreal never had more than 36 members of council. See Guy Bourassa, Les relations ethniques dans la vie politique montréalaise, Documents de la Commission royale d'enquête sur le bilinguisme et le bicultalisme, no.10 (Ottawa: Information Canada, 1971), pp.17-18. In May 1940 the City defaulted on bond repayments and was effectively bankrupt. During the period of provincial trusteeship, which lasted until 1944, the provincial legislature established a new system in which there were 100 members of council. For details, see Andrew Sancton, Governing the Island of Montreal (Berkeley: University of California Press, 1985), pp.31-2. There are currently 52 members of the Montreal city council.
P.8 The most recent book on the subject is Desmond King and Gerry Stoker, eds. Rethinking Local Democracy (Basingstoke, Hampshire: Macmillan, 1996).
P.9 L.J. Sharpe is a Fellow of Nuffield College, Oxford and, until his retirement, University Reader in Public Administration. From 1966-69, he was the research director for the Royal Commission on Local Government in England.
P.11 "The Failure of Local Government Modernization in Britain: A Critique of Functionalism" in Lionel Feldman, ed. Politics and Government of Urban Canada, Fourth ed. (Toronto: Methuen, 1981), p.338
P.12 Sharpe addresses these points in his article at some length. For a more recent review of the academic literature concerning "Reducing Costs by Consolidating Municipalities," see my article with this title in Canadian Public Administration, 39-3 (Autumn 1996), 267-89. My article was written prior to the release of the KPMG report entitled Fresh Start: An Estimate of Potential savings and Costs from the Creation of Single-Tier Local Government for Toronto (December 16, 1996). KPMG was not asked to analyze any of the alternatives to amalgamation. For a discussion of the report's deficiencies, see Andrew Sancton, "Toronto's Response to the KPMG Report," December 17, 1996.
P.14 Bryan Keith-Lucas, The Unreformed Local Government System (London: Croom Helm, 1980), p.11. The title of the Webbs' series is English Local Government.
P.14 Keith-Lucas, The Unreformed Local Government System, p.13
P.16 Frank Smallwood, Greater London: The Politics of Metropolitan Reform (Indianapolis: Bobbs-Merrill, 1965), p.45
P.16 A History of Local Government of the United Kingdom (London: Herbert Jenkins, 1955), p.13
P.16 John E. Bebout, An Ancient Partnership: Local Government, Magna Carta, and the National Interest (Charlottesville: The University Press of Virginia, 1966), p.9.
P.17 For details, see Engin F. Isin, Cities without Citizens: The Modernity of the City as a Corporation (Montreal: Black Rose, 1992), pp.104-8.
P.17 Bryan Keith-Lucas and Peter G. Richards, A History of Local Government in the Twentieth Century (London: George Allen & Unwin, 1978), pp.28-9. The authors are referring only to royal incorporations in Britain. The application to Saint John is mine.
P.18 Josef Redlich and Francis W. Hirst, The History of Local Government in England, first published in 1903 as Local Government in England, edited by Bryan Keith-Lucas (London: Macmillan, 1958), pp.129-30
P.20 Keith-Lucas and Richards, Local Government in the Twentieth Century, p.18
P.21 Gerald M. Craig, ed., Lord Durham's Report (Toronto: McClelland & Stewart, 1963) p.145
P.21 Crawford, Canadian Municipal Government, p.34 and C.F.J. Whebell, "The Upper Canada District Councils Act 1841 and British Colonial Policy," Journal of Imperial and Commonwealth History, 17 (1989), 198
P.22 Whebell, "The Upper Canada District Councils Act," 200 [emphasis added]
P. 22Ibid, 202
P. 22 Quoted in Crawford, Canadian Municipal Government, p.32
P. 22 12 Vic., c 81, s 2
P.22 R.S.O. 1990, c.M.45, s. 10-11
P. 24 The Law of Canadian Municipal Incorporations, Second ed. (Toronto: Carswell, 1971 [1991 update]) p.6, s.1.22. Rogers acknowledges in this same section that annexations and consolidations have sometimes taken place without "popular assent." The City of Toronto Act, 1996 appears to enact neither an annexation nor a consolidation. All existing municipalities are "dissolved" and a new one is incorporated, without any form of "popular assent." When regional municipalities were established in Ontario in the 1960s and 1970s, existing municipalities were either perpetuated or amalgamated to form area municipalities within the new system. They were not dissolved.
P. 26 The best known English nineteenth-century defender of local autonomy against central intrusion was J. Toulmin Smith, author of Government by Commission Illegal and Pernicious (1849) and Local Self-Government and Centralization (1851).
P. 26 The nineteenth-century Englishman best-known for justifying central intervention on these grounds was Sir Edwin Chadwick. See his Central and Local Administration (1885). I analyzed the work of Smith, Chadwick, and others in my Oxford University B.Phil. thesis, "The Doctrine of Local Self-Government in British Political Thought," (1970).
P. 29 T.J. Plunkett, City Management in Canada: The Role of the Chief Administrative Officer (Toronto: Institute of Public Administration of Canada, 1992), ch.2
P. 29 Harold Kaplan, Reform, Planning, and City Politics: Montreal, Winnipeg, Toronto (Toronto; University of Toronto Press, 1982), pp.136-58
P. 29 Alan F.J. Artibise, Winnipeg: A Social History of Urban Growth 1874-1914 (Montreal: McGill-Queen's University Press, 1975), pp.192-4
P. 29 John C. Weaver, Shaping the Canadian City: Essays on Urban Politics and Policy, 1890-1920 (Toronto: Institute of Public Administration of Canada, 1977
P. 32 David S.R. Leighton and Donald H. Thain, Making Boards Work: What Directors Must Do To Make Canadian Boards Effective (Toronto: McGraw-Hill Ryerson, 1997), p.139
P. 35 Weaver links the two reform periods by defining "urban reform" as "a loosely knit set of municipal government and citizen group initiatives, from the late 1890's to the end of WWI and from the late 1960's to the mid-1970's, aimed at improving city life." See his entry in The Canadian Encyclopedia (Edmonton: Hurtig, 1985), III-1884.
P. 36 Warren Magnusson, "Toronto" in Warren Magnusson and Andrew Sancton, eds. City Politics in Canada (Toronto: University of Toronto Press, 1983), especially pp.117-26
P. 37 Donald J.H. Higgins, Local and Urban Politics in Canada (Toronto: Gage, 1986), pp.325-31
P. 38 For a description of these and similar institutions elsewhere in Canada, see Andrew Sancton, Governing Canada's City-Regions: Adapting Form to Function (Montreal: Institute for Research on Public Policy, 1994).
P. 38 Magnusson, "Toronto," p.125
P. 42 Canadian Municipal Government (Toronto: University of Toronto Press, 1954), pp.78-9
P.43 Unless otherwise noted, all current information about size of city councils in this Report has been obtained from the Website on the Internet of the relevant municipality.
P.50 Andrew Sancton, "Montreal" in Magnusson and Sancton, eds. City Politics in Canada, p.76
P.50 Andrew Sancton, Governing the Island of Montreal (Berkeley: University of California Press, 1985), p.135
P.50 Karen Herland, People Potholes and City Politics (Montreal: Black Rose, 1992), p.39
P. 51 Ontario, Ministry of Municipal Affairs, "We've Listened, Bill 103 Proposed Amendments (City of Toronto Act, 1997)" March 27, 1997, p.1
P. 53 For a full discussion, see John C. Courtney, Peter MacKinnon, and David E. Smith, eds., Drawing Boundaries: Legislatures, Courts, and Electoral Values (Saskatoon: Fifth House, 1992). As a member of the federal Electoral Boundaries Commission for Ontario from 1982-86 an from 1993-95, I experienced these tensions personally.
P.55 Board of Estimate of the City of New York v. Morris, 109 S.Ct. 1433 (1989)
P.56 "The New Charter: Will it Make a Difference?" in Jewel Bellush and Dick Netzer, eds. Urban Politics New York Style (Armonk NY: M.E. Sharpe, 1990), p.418
P.62 Manitoba, Proposals for Urban Reorganization in the Greater Winnipeg Area,
P. 62Meyer Brownstone and T.J. Plunkett, Metropolitan Winnipeg: Politics and Reform of Local Government (Berkeley: University of California Press, 1983), p.56
P.63 Manitoba, Proposals, p.11
P.64 Allan O'Brien, Municipal Consolidation in Canada and its Alternatives, (Toronto: ICURR Publications, 1993), pp.31-2
P.67 Nova Scotia, Department of Municipal Affairs, Interim Report of the Municipal Reform Commissioner Halifax County (Halifax Metropolitan Area), July 8, 1993, p.54
P.68 See, for example, Jack K. Masson and James D. Anderson, eds. Emerging Party Politics in Urban Canada (Toronto: McClelland & Stewart, 1972). For a government-sponsored report advocating political parties in municipal politics, see Manitoba, Committee of Review of the City of Winnipeg Act, Report and Recommendations (October 1976), ch.2.
P.68 For an argument against political parties in municipal politics, see David Siegel, "City Hall Doesn't Need Parties", Policy Options, July 1987, pp26-7.