Chris Fox, CP24.com
Published Wednesday, September 19, 2018 11:03AM EDT
Last Updated Wednesday, September 19, 2018 11:47AM EDT
The Court of Appeal’s decision to grant a stay of a lower court’s ruling striking down Bill 5 has thrown another wrench into the Oct. 22 election, one that the lawyer who initially sought legal action says could lead to a disputed vote.
In a unanimous decision released on Wednesday morning, a three-judge panel ruled in favour of setting aside Superior Court Justice Edward Belobaba’s Sept. 10 ruling, which had deemed the government’s council-cutting Bill 5 unconstitutional. The appeal court referred to Belobaba’s decision as “dubious.”
The appeal court’s ruling however, does not overturn the initial ruling. It only sets it aside pending an appeal, which could be held as early as November.
Speaking with CP24 after the decision was released, lawyer Rocco Achampong conceded that the election will go ahead using a 25-ward model. But he said that the possibility now exists for the result of the vote to be disputed and potentially overturned, if the initial ruling is eventually upheld.
“It is far from over. The ruling at the lower court has not had a full appeal. This motion for a stay is to suspend a ruling until we have a full appeal,” he said. “The prospect of success still exists for the applicants so there is a situation that could be created where we have a 25-ward election, Justice Belobaba’s ruling is upheld and we revert back to a 47-ward election, effectively invalidating the election that will be held on Oct. 22.”
The government argued that the stay was necessary to provide certainty for voters, but Achampong noted that it may just have “prolonged the lifeline of this controversy.”
He said that it is now possible that a vote could be held on Oct. 22, only to be overturned at a later date. In that scenario, he said it is theoretically possible that Torontonians would have to go back to the polls in November or December.
In their written the decision, the three judges who heard the request for the stay said that there is a “strong likelihood that application judge erred in law” and the appeal of the lower court’s ruling will be successful.
Achampong, who was registered as a candidate in the 47-ward election, said that it will be “very difficult” to persuade another three-judge panel that those who issued the stay were “collectively wrong”
With that in mind, he said that it may be “time to perhaps see the election through” and to “move on for now.” But he said that he nonetheless has real questions over the legitimacy of the Oct. 22 vote.
“This election in my opinion is controverted and I think there will be a class action to invalidate it all,” he said.
The current term of council expires at midnight on Nov. 30.
