With the province facing off against the city in court for a second time on Tuesday over the size of city council, a decision from that hearing will determine the number of wards — at least for now.

In the ongoing battle that has riled up hundreds of protesters, brought into question the city’s autonomy and now reached the Court of Appeal, the city is making this blunt argument about the province: “Its actions are not in the public interest.”

On Tuesday, the province will argue in court for a stay of a Superior Court ruling last week. That ruling from Justice Edward Belobaba found the province’s original legislation, Bill 5, which cut the size of council from 47 to 25 wards for this fall’s election, was unconstitutional. The Superior Court ruling effectively cancelled the switch to 25 wards.

If granted, a stay would return the city to a 25-ward election, with the province arguing in new material filed late Monday that their appeal must be heard after the election in order for there to be enough time to make arguments.

That would mean, the province argues, that if the city is allowed to continue preparing a 47-ward election and an appeal by the province is later successful, there would need to be a new election.

The province also argues that if they lost the appeal, Queen’s Park should be allowed to come up with a legislative cure instead of an automatic return to 47 wards. For example, the province says, electing two people per ward in a 25-ward election, or 50 councillors — six more councillors than the 44-ward council Ford has called “dysfunctional” and inefficient and three more councillors than the 47-ward option approved by the city.

It’s unclear how quickly the court will make a decision on whether to grant a stay.

Because the scheduled election on Oct. 22 is 35 days away and there is little time to print ballots and make other preparations, how a panel of judges rules on the province’s request for a stay will effectively decide what ward structure is to be used, the city and others are arguing.

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The city says the province has not met a legal test showing “irreparable harm” will come to the public interest if a stay is not granted, and is also questioning how the size of council could affect the province’s interests.

“Not only did the province fail to establish any pressing and substantial objective, Bill 5 actually undermined a genuine pressing and substantial concern in a free and democratic society: preserving the integrity of the election process,” the city says in written materials filed with the court.

“Why is it that the city’s council composition so adversely affects the province’s interests? Why is it that the province’s own interests will be so adversely affected if the city is simply allowed to continue on and conclude the election for a 47-ward council for 2018?”

Since Bill 5 was ruled not in force by the Superior Court, Premier Doug Ford’s government has taken rare and unprecedented steps to ensure a smaller council, including overriding charter rights and holding weekend and midnight sessions of the legislature.

The court appeal is just one of two streams the province is using to try to shrink the size of council.

At the same time, the province is also churning through debate to pass new legislation, Bill 31, that is essentially copied and pasted from Bill 5 with one major difference: it uses a rarely invoked section of the Charter of Rights and Freedoms to insulate the bill from many charter challenges. If the bill is passed, which could happen as early as Thursday, it would see a return to the 25-ward election regardless of the decision in the stay motion.

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The province argues in written court materials that “allowing the 25-ward election to proceed would avoid cost, disruption and inconvenience, rather than cause it” and notes that the legislature has “determined” that Bill 5 would achieve better voter parity in 2018, make council “more effective and efficient” and save taxpayers money. Those assertions were dismissed by Justice Belobaba, who found the province brought little evidence to make that case.

Lawyers from Goldblatt Partners, representing a candidate, volunteer and community group, say going back to 25 wards would not be returning to the status quo, since the city is currently preparing a 47-ward election — the option that was approved by council in 2016 after years of study.

It was the province, with unconstitutional legislation, that “upended” the election, they argue, and granting a stay would return the city to an “unconstitutionally chaotic state of affairs.”

Lawyers from Paliare Roland, representing candidates and community groups who intervened in the earlier court challenge with their own evidence, say going back to the 25-ward structure now would cause harm.

“Should this stay be granted, the opportunity for the people of Toronto to participate in a fair and democratic 2018 municipal election will be irretrievably lost and the expression rights of candidates and electors will continue to be infringed by the unconstitutional legislation,” their written materials say. “To conduct an election in a manner that has already been determined by a court of this province to be unconstitutional is inconsistent with the principle of democracy, and is not in the public interest.”

Meanwhile, city clerk Ulli Watkiss, who is responsible for administering the election, is taking an unusual step to intervene with her own lawyers in the court case Tuesday.

“Without clarity on the structure of the election, the clerk is rapidly reaching a point at which she will be unable to conduct an election on Oct. 22, 2018, in accordance with the requirements of the (Municipal Elections Act) under either a 25- or 47-ward structure,” her filings, submitted by independently retained lawyers from Stikeman Elliott, say.

That undermines the province’s assertion that it would be better to go back to 25 wards, relying on the clerk’s earlier comments that she may not be able to carry out a 47-ward election if Bill 5 were struck down.

Watkiss also outlined that she may be forced to cancel advance polling days and reduce “accuracy testing” for tabulator machines that marked ballots are fed into, which she says “may undermine the integrity of the voting process in order to hold the election.”

The province’s new materials are meant to address the clerk’s concerns, saying allowing the stay now would provide “certainty” for how to proceed with election planning.

While the province asked that the motion for a stay be heard in front of a single judge, the Court of Appeal has made the decision to convene a panel of three judges to hear arguments: Associate Chief Justice Alexandra Hoy and justices Robert Sharpe and Gary Trotter.

Ford and his government have taken aim at the judiciary in recent days, saying Justice Belobaba is appointed, while they were elected to make law.

The court hearing begins at 10 a.m. at Osgoode Hall.

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