Mayor of Toronto and noted disgrace to the city Rob Ford was today ordered removed from office. After a three day trial, Mr. Justice Hackland of the Ontario Superior Court found that Ford had breached the Municipal Conflict of Interest Act (MCOIA) and as a result that his seat on Toronto’s City Council was therefore declared to be vacant. Instead of accepting this, Ford has decided to fight on, blaming his situation on a conspiracy against him among the left wing of City Council and the judiciary. So what happens now?
To begin with, Justice Charles Hackland suspended the effect of his order declaring Ford’s seat vacant for 14 days to give City Council time to deal with the administrative difficulties that come with having to replace a mayor on the fly. So not very much is likely to happen in the first week or two.
The Ontario Superior Court of Justice is a first instance trial court, roughly equivalent to a blend of state and federal trial courts in the United States. The next level of court up is the Divisional Court, an intermediate appellate court. The MCOIA grants an automatic right of appeal to the Divisional Court from any order made under MCOIA, and Ford has said he will be making that appeal. He has thirty days to do that.
But what about the standing order that Ford be removed from office? Well he’s going to have to make a motion to the Divisional Court and ask them to stay the trial court’s order. The problem with that is that getting motion materials prepared, served on the other side, the other side having the chance to prepare responding materials, getting a motion scheduled and heard by a judge of the Divisional Court inside of two weeks is a very, very, tall order. There is the outside possibility that it won’t happen before the boom falls and Justice Hackland’s order comes into effect. Once it does, the City has no legal option but to act on it, call an emergency Council meeting and operationally vacate Ford’s seat. The problem with things happening that way, is what happens if, and I think it’s a big if, Ford’s seat is vacated, a new mayor is either appointed or elected, and then Ford wins his appeal? Then there would legally be two mayors of Toronto, and I don’t even want to think about the mess that would cause.
Let’s assume, for the moment, that Ford gets his stay in time, an appeal is heard, and Ford loses that. What then? Well, the first thing is that Ford could apply for leave to appeal to the Court of Appeals for Ontario. This is the equivalent of a state supreme court combined with a circuit of the United States Court of Appeals. But, there is no guarantee he gets leave. Personally I think it’s unlikely, but if he does, the whole thing is on hold again while we wait for the Court of Appeals to deal with it. If not, Justice Hackland’s order goes into effect, and Council will be left with no choice but to declare Ford’s seat vacant.
Council will then have sixty days to decide whether to appoint someone mayor for the balance of Ford’s term, or to call a by-election. Based on prior mayoral vacancies (albeit always before resulting from mayoral resignations or deaths in office), council will appoint if there is less than a year left in the term, and call a by election if it’s more than that. Today is almost exactly the half-way point in Ford’s four-year term, and so if the decision was made today, a by-election would be a certainty. But if the Divisional Court appeal drags on long enough, and the leave to the Court of Appeals process adds a couple months to it, we could well be looking at a final decision this time or later next year, in which case Council would probably appoint.
One interesting question that has been left in doubt by Justice Hackland’s decision is whether Ford would be barred from running in a by-election resulting from his own removal from office. There are plausible arguments on both sides. In Hackland’s own words “…I decline to impose any further disqualification on him beyond the current term.” In trying to parse these words, we have two options. It could be read as meaning no disqualification after Ford leaves office. That would mean that he would be eligible to run in any by-election and could even, in theory, be reappointed by Council back to his old job, though I doubt the judiciary would be happy about that last possibility.
The other way to read it is that he is based on the Municipal Elections Act (MEA). The MEA states the following: “The term of all offices to which this Act applies is four years, beginning on December 1 in the year of a regular election.” Based on this, the argument would go that Ford is disqualified from holding office until the end of the term of the present Council, which expires on November 30, 2014. This would mean that Ford could not run in a by-election or be appointed back to his job by Council. Ultimately, either Justice Hackland will have to clarify this decision, or the Divisional Court will make their own decision as to what he meant, and that will be the situation.
All in all, we’ve only just finished the first act of this drama. The really interesting part is yet to come.
Picture via Eric Parker’s flickr.
