As a symbolic gesture councillors turn their backs as Mayor Rob Ford speaks during a debate for a motion on bike sharing on Nov. 14, 2013.MOE DOIRON/The Globe and Mail
The tangled saga of Toronto's troubled mayor may yet again lead to a courtroom, but it is unclear whether Rob Ford can block a move by his city council to strip him of many of his powers and trappings of office.
Mr. Ford has hired one of the province's most prominent municipal lawyers, George Rust-D'Eye, to advise him and possibly launch a legal challenge of city council's votes against him, which passed overwhelmingly on Friday with another motion to be voted on Monday.
Mr. Rust-D'Eye, a former chief lawyer for Metro Toronto who has practised municipal law for 40 years and worked for countless municipalities and local politicians, would say little on Friday about the advice he has given and plans to give the mayor.
In an interview, Mr. Rust-D'Eye, now in sole practice as a lawyer after 24 years with the firm WeirFoulds LLP, said he was looking into the mayor's legal options, but would not say whether he believed council's motions were illegal or whether the mayor would be launching a court action.
"I am looking into all of the possibilities at the present time," Mr. Rust-D'Eye said on Friday, adding that he was still investigating whether council's motions were legally offside and that he expected to deliver a written legal opinion to the mayor some time later Friday.
He said if necessary, he would consider going to court to try to reverse or stop council's moves.
"If they exceed their jurisdiction, yeah, there are court proceedings that are available, either to prevent them from proceeding or if they do proceed moving to quash or judicially review their decision," Mr. Rust-D'Eye said, saying he would "look into the mechanics" of that if it became necessary.
"I am in sole practice so commencing litigation is something I may or may not be able to do if required," he said. "But I usually try to avoid litigation if I can."
Mr. Rust-D'Eye said council has "no legal power to interfere with his statutory responsibilities as mayor," but said he needed to look into just what powers are considered statutory responsibilities.
"I haven't made any decisions on that issue yet. I'll address that, if and when it comes to it," he said. "I don't think really I am in a position to divulge legal advice and what is or what isn't within their powers. But I will be advising the mayor on that."
It's this question of just what the mayor's statutory powers actually are that is at the centre of the legal debate at city hall.
City council does not have the power to impeach or throw out a sitting mayor. But on Friday, city council overwhelmingly passed two motions dramatically reducing Mr. Ford's powers.
One motion stripped Mr. Ford of his ability – just granted under then-mayor David Miller in the newly created City of Toronto Act in 2006 – to appoint and fire the chairs of the city's standing committees, who sit on his executive committee, as well as the deputy mayor. The other motion shifted most of the mayor's emergency powers to the current deputy mayor. (Mr. Ford would retain the power to actually declare a state of emergency.)
On Monday, city council is scheduled to vote on a motion that would delegate "all powers and duties which are not by statute assigned to the mayor" to the deputy mayor, slashing the mayor's office budget and offering his staff the chance to be transferred to the office of deputy mayor Norm Kelly. As well, Mr. Kelly would replace Mr. Ford as chair of the cabinet-like executive committee, and Mr. Ford would no longer have the right to cast a vote at any standing committee.
In a letter from Mr. Rust-D'Eye distributed to councillors before Friday's vote, he warns that council cannot "reduce or interfere with the statutory responsibilities of the Mayor, nor can it purport to do indirectly what it does not have the power to do directly." His letter also warned councillors that they had to "act on the basis of facts" and not on "speculation, or extraneous or irrelevant allegations."
He said council's moves "could be perceived by the public" as based not on a breach of the mayor's duties but "as an attempt to punish him for alleged personal misconduct, or as a symbolic statement of Council's attempt to be doing something in response to it." And his letter also asserts that "there is no evidence before Council suggesting that the Mayor has failed to exercise, or abused, his powers."
While it might seem odd that city council could so easily reverse much-debated "stronger mayor" powers brought in under Mr. Miller, municipal lawyer John Mascarin says he has looked closely at the legislation and believes city council is likely within its rights.
In the fine print of the City of Toronto Act, he said, the mayor's powers to appoint committee chairs, for example, are actually council's powers, but delegated to the mayor, meaning council can legally take them back.
He also said council was clearly within its rights to reduce the mayor's office budget, as well, as it controls the purse strings.
"Anything that council gives, it can taketh away," said Mr. Mascarin, a partner with Toronto law firm Air & Berlis LLP.
But he said council's moves could still face a legal challenge, which would likely come with an attempt to secure an injunction to block the moves before a court battle decides the final outcome.
Jeff Gray