Toronto will go to the Supreme Court if necessary to fight Premier Doug Ford and his unprecedented use of the “notwithstanding” clause to cut the size of city council during an election campaign.

Councillors voted 26-10 Thursday to instruct the city lawyer to exhaust all avenues to defeat the provincial legislation. The move came after city clerk Ulli Watkiss told council that uncertainty over whether there will be 25 or 47 wards has her at a “tipping point,” unsure if she can still organize a legal vote on Oct. 22.

Councillor Josh Matlow said they know it will be an “uphill battle” to overturn Ford’s legislation to impose 25 wards on Toronto, and his use of the “notwithstanding” clause to override a Superior Court ruling that the midelection cut is unconstitutional.

In confidential advice to council viewed by the Star, city solicitor Wendy Walberg warned the politicians they have “limited options” to fight Ontario wielding the notwithstanding clause.

“The odds are against us,” Matlow said after the emergency council meeting called in response to tabling of the new bill at Queen’s Park on Wednesday. “But when a premier like Doug Ford uses the notwithstanding clause to get his way, then we need to in principle challenge the decision ... even bringing it to the Supreme Court of Canada” if necessary.

With support from other major Canadian cities, council is also calling on Prime Minister Justin Trudeau to use a long-dormant federal power to quash provincial legislation, even though Trudeau has said he has no plans to intervene in Toronto’s electoral crisis. Councillor Joe Mihevc argued Ottawa should use the “final trump card” against Ford, saying the federal government has “an obligation to act.”

To prevent future provincial interventions, Toronto wants the federal government to allow it to develop a “city charter,” likely requiring a constitutional amendment, that would give cities authority over municipal elections, how council is structured, planning decisions and other local issues.

“Never again should the premier of Ontario be able to act like a dictator,” Matlow said.

Mayor John Tory supported the motions, saying, “I firmly believe you don’t make a bad law better by overriding the Charter of Rights and Freedoms.”

Toronto will get legal support in court from other cities, the leaders of which are astonished and upset by the way Ontario is treating Toronto, Edmonton Mayor Don Iveson told the Star.

“There's a fundamental issue of democracy at stake here about local representation, its legitimacy and I think Canadians are rallying behind that,” said Iveson, chair of the “big city mayors’ caucus” of the Federation of Canadian Municipalities.

A yet-to-be determined number of cities will seek intervener status to support Toronto in any court actions to fight the province, said Iveson, who is calling on Trudeau to call a summit of municipal, provincial and federal leaders to help make cities an “equal partner” without changing the constitution.

Earlier Thursday, the city clerk said Ford’s unilateral move to cut council, announced in late July, and the ensuing court battle are creating havoc with her election preparations.

Two sets of voter information cards are ready to be mailed, one set for each scenario, but many uncertainties remain, including who can legally campaign now and if there is enough time to hold advance voting for people who won’t be in Toronto on Oct. 22.

“We have hit a tipping point and both (ward number) scenarios are becoming virtually impossible for us to carry out,” Watkiss told council, adding she has retained her own legal counsel to guide her actions because she has responsibilities under provincial legislation to conduct a legal election.

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One of the questions she will be asking her lawyer is whether she can push back the voting day, Watkiss said, adding she feels advance voting is necessary to make the election valid.

Watkiss’s department has faced headache after headache since Ford, a former one-term Toronto councillor, moved to cut the number of wards from a planned 47 to 25 — matching provincial and federal riding boundaries — in an election that started May 1.

The city, candidates and others challenged the resulting legislation in court and won with a judge deciding that the bill, which was launched after some people had been campaigning for months in the 47-ward system, was unconstitutional.

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The Ford government is fighting back with a new version of the bill that includes the notwithstanding clause, plus an appeal of the ruling and a bid to put on hold the judge’s order that a 47-ward election be held.

At Queen’s Park, Municipal Affairs Minister Steve Clark says he has “all the confidence in the world that we’ll be able to have an Oct. 22 election.”

“I want to make it very clear I’m very confident that we can work through the election issues with the clerk’s office,” Clark told reporters Thursday.

“We’ve had open communications with them throughout this. Our government’s priorities are clear: we want an efficient and an effective 25-councillor government moving forward,” he said, insisting there is no plan for an alternative to Oct. 22 as election day.

Attorney General Caroline Mulroney stressed the provincial government understands the urgency.

“This is exactly why we’ve recalled the legislature to pass this new piece of legislation so we can ensure certainty about the rules,” she said.

In the confidential advice to councillors, Walberg outlined the city’s significant challenges.

Although the Supreme Court has previously ruled the notwithstanding clause cannot be used in “retroactive or retrospective” manner, the advice reads, the facts surrounding Bill 31 are “significantly different” than those in that case.

The solicitor noted that there are other legal arguments, that if successful, would not be covered by the notwithstanding clause, including that the legislation violates unwritten constitutional principles of democracy and the rule of law. In Superior Court, Justice Edward Belobaba did not accept that the legislation violated unwritten principles, but did not make a specific ruling on that basis.

“It therefore remains open to the city to continue to argue in respect of Bill 31 or on any appeal brought by the province that the province ‘clearly crossed the line’ of these unwritten constitutional principles of democracy and the rule of law in enacting Bill 31,” the advice says. It notes, however, that those would be “novel issues” and would be argued without precedent in case law.

Not all councillors are up for a fight with their former colleague Ford.

Councillor Jim Karygiannis told reporters at the lunch break that the 25-ward election should proceed.

“I think this is a job-preservation exercise of some councillors because they know they won’t be able to get re-elected,” in a 25-ward race that will pit incumbents against incumbents, said Karygiannis who would run against veteran councillor Norm Kelly if the smaller council model prevails.

“Let’s get it over and done with. We know that (Ford) is going to invoke the (notwithstanding) clause. What is the problem here? Let’s move on.”

Councillors opposed to the city lawyer exhausting all legal avenues were John Campbell, Justin Di Ciano, Frank Di Giorgio, Michael Ford, Stephen Holyday, Jim Karygiannis, Miganoush Megardichian, Denzil Minnan-Wong, Frances Nunziata and Cesar Palacio.

Councillors absent were Jon Burnside, Josh Colle, Vincent Crisanti, Michelle Holland, Norm Kelly, Giorgio Mammoliti, James Pasternak, David Shiner and Michael Thompson.

With files from Jennifer Pagliaro and Robert Benzie

David Rider is the Star's City Hall bureau chief and a reporter covering Toronto politics. Follow him on Twitter: @dmrider

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