The vote that reopened the debate over the Scarborough subway would not have happened if council procedure hadn’t been broken, the Star has learned.

That vote in May 2013 set in motion council’s switch from a fully funded LRT in Scarborough to a three stop subway — at an additional $2-billion cost. It was a successful attempt by both subway-friendly councillors and a senior member of Rob Ford (open Rob Ford's policard)’s staff to revive the subway — one that, under city rules, should not have been allowed.

But the city clerk says there is nothing that can be done now.

That diversion, which ultimately derailed plans for the LRT, left council and the city continuing to debate the merits of a subway and which route it should take — a process that continues today, with years of planning left before a tunnel is ever dug.

Reversing council’s support from a light rail line to a subway happened over five months in 2013, but began with a single vote that May.

That Wednesday, Scarborough-area Councillor Glenn De Baeremaeker (open Glenn De Baeremaeker's policard) rose from his black leather chair in the front row, glasses on the edge of his nose, to insist that council back an extension of the Bloor-Danforth subway line from Kennedy station to the Scarborough Town Centre.

That would not have been unusual, except that at that moment councillors weren’t debating the subway at all. They were six hours into a debate about regional transit plans and whether to support new taxes for the benefits of regional growth.

De Baeremaeker, his prepared motion posted on the big screen, asked for council to support turning the aging and outdated Scarborough RT into a subway.

“For those of us who were not on the inside, this came entirely out of left field,” said former councillor John Parker, an LRT supporter. “We were all surprised, and some of us were shocked and alarmed and outraged that this whole thing happened.”

A year earlier, the same council — including De Baeremaeker — backed plans for the LRT, which had a pledge of full funding from the province. Ford, a subway enthusiast, and his supporters voted against it. But following that decision, De Baeremaeker and then TTC chair and councillor Karen Stintz flip-flopped and began their own subway campaign.

Five moments in Scarborough's recent transit history

De Baeremaeker, on his feet that May day, was looking for council to officially endorse the subway in spite of having already approved the LRT.

On the floor, Speaker Frances Nunziata (open Frances Nunziata's policard), a councillor representing York South-Weston and staunch Ford supporter, cut De Baeremaeker off. (The Star has reviewed video of the meeting available online.)

His motion, she said, would reopen the decision council already made to build the LRT. An agreement with Metrolinx, the provincial transit arm, was already signed and work was underway.

Council rules prevent the rehashing of previous debates unless council decides to reopen them — a difficult feat that can happen only if the motion wins two-thirds of the vote.

De Baeremaeker protested.

“My motion is about policy,” he said. “This is a motion which is a request.”

The city clerk, Ulli Watkiss, then confirmed to council that the motion would be a reopening and that it needed the two-thirds vote.

But as the bells were ringing in the council chamber, signaling the vote was taking place, De Baeremaeker said he would re-word his motion so it could be introduced. Nunziata suddenly changed course and said she would rule on the issue later.

By the time council finished debating the issue that was actually before them, it was almost 24 hours later.

The dilemma was this: De Baeremaeker and Stintz needed real support for their subway push. Ford, too, was determined to defeat the LRT for his preferred subway.

And De Baeremaeker’s motion provided the opening to put the subway back on the map. But there was a chance his motion would die before ever being voted on.

In the interim, Ford’s then chief of staff, Mark Towhey, told the Star that Nunziata asked him for help.

“The speaker asked for assistance in writing up her ruling. I obliged and provided notes based on my understanding of her position,” Towhey said. “She was free to use or not use all or part of them as she saw fit. It was her ruling.”

The next day, Nunziata made her ruling:

“The question of whether to endorse or oppose new taxes and the question of what new revenues will be used for are two ends of the same stick,” she said, reading from part of a written ruling in front of her. In speaking to the Star, Towhey, without prompting, specifically recalled that line from the ruling, saying he remembered writing it.

In the end, Nunziata ignored advice from city staff and ruled the motion was properly before council. It passed with a 35-9 vote — opening the door for Ford and others to ultimately cancel plans for the LRT in favour of the more expensive subway option.

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In an emailed statement, Nunziata said: “Council procedures dictate that while the speaker may consult with the Clerk prior to ruling on a matter, it is ultimately the speaker who decides the way in which he/she will rule.”

But city clerk Watkiss told the Star the speaker is only permitted to give rulings she herself or the clerk has written. She also said the city’s procedural bylaws set out that the Speaker must give procedural reasons for her ruling.

“The Towhey ruling was not a proper procedural ruling, but a policy ruling, and the Speaker needs to give procedural rulings,” Watkiss wrote in an email. “She should not be ruling on the basis of policy as she needs to maintain a measure of independence.”

When asked whether there are repercussions for breaking those rules, Watkiss said: “It’s done. Council accepted it and that was that.”

Scarborough Councillor Paul Ainslie (open Paul Ainslie's policard) said he expects rulings made by the Speaker to come from the city clerk.

“She’s supposed to take advice from the clerk, not the mayor’s office,” said Ainslie. “That kind of started the whole chain of events. Right now we would probably be well on our way, chugging along, building an LRT . . . That vote started this whole mess we’re in, kind of, now.”

Subway champion De Baermaeker insists his revised motion was in order, saying he re-worded it to remove any mention of supporting a subway instead of an LRT — just to support a subway.

“That motion was designed to make sure it was in order,” he said.

But by being allowed to support a subway, council effectively endorsed two different types of technology for the same project with only one source of funding.

In her ruling, Nunziata herself foreshadowed the problem:

“I recognize that some individuals may feel that proceeding with both the projects outlined in the motions today and the projects agreed upon in the master agreement does not make sense,” she said. “If and in fact Metrolinx advises this city that this is the case and selecting one or the other would require change to the master agreement, that is a decision for this council to consider at that time. Today is not that time and that question is not before council today.”

The implications of her ruling and that dilemma were almost immediately felt.

In a letter signed by Metrolinx president and CEO Bruce McCuaig the following month, councillors were asked to confirm their position on Scarborough transit, warning the decision had both delay and cost repercussions for the LRT project already underway.

In July and October of 2013, council voted to scrap the LRT and build the subway instead.

The province has maintained its $1.48-billion contribution to the project will not increase, which left Torontonians on the hook for almost $1 billion of the subway’s cost despite additional funds from Ottawa. Council put a special tax in place to raise funds for the subway.

Earlier this year, the city also confirmed that sunk costs for the scrapped LRT, owed to the province, are $75 million.

A staff report is expected back this fall on possible alignments for the subway, which could further increase costs — in some cases by at least a further $300 million.

Tomorrow: How the Scarborough subway was justified using “problematic” analysis

Jennifer Pagliaro can be reached at 416-869-4556 or jpagliaro@thestar.ca

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