'Incredibly problematic, entirely undemocratic'; New mayor and councillors don't want minority-rule power to pass bylaws. But what can they do about it?

Ottawa’s mayor and many councillors have said they don’t want the power to pass bylaws by minority rule.

That doesn’t seem to matter to the province.

There’s been little warmth — and some outright hostility — in local political circles to Bill 39, unveiled without warning by the Ontario government last week, with the mission of making the newly “strong mayors” of Ottawa and Toronto even more powerful, in the name of getting more housing built.

To some city councillors, the move is an assault on local democracy, council collaboration and citizen input on decisions that would impact their lives and communities. The province characterizes it as bold but necessary action to respond to a crisis-level mismatch between the demand for housing in Ontario, the capacity to pay for it and the homes that are available.

Councillors who disagree with this means of addressing the problem are now considering what they can do to push back against the will of the province: speak out individually, express opposition as a council, maybe even enact a procedural mechanism to block the new minority-rules power to legislate that the governing PCs want to impose on them.

This newspaper reached out to all 24 councillors as well as the mayor with an invitation to outline their positions on Bill 39.

Bay Ward’s Theresa Kavanagh, one the 11 councillors to respond, said she’s “aghast that this provincial government is continuing to force their agenda on our municipality without consultation” and plans to move a motion at next week’s council meeting to state their collective opposition to the bill.

“I hope to get a majority.”

Bill 39 would give the mayors of Ottawa and Toronto (and potentially others in the future) the power to propose bylaws — which enact everything from development permissions to rules that builders must abide by — and force their colleagues to vote on them, provided the mayor is of the opinion that it could potentially advance a designated “provincial priority.”

For now, the province has signalled these priorities will include its commitment to building 1.5 million homes in the coming decade as well as supporting infrastructure, but priorities will be outlined in regulations and may evolve in the future.

If more than one-third of council votes in favour of a bylaw proposed under the Bill 39 powers — that’s nine of Ottawa’s 25 council members, and could include the mayor — then it gets passed.

Unlike Toronto’s John Tory, who revealed that he requested this minority-rules power from the provincial government, Mayor Mark Sutcliffe quickly committed not to use it. This aligns with Sutcliffe’s campaign commitment to govern Ottawa without the use of strong mayor powers, first introduced by the Ontario government after June’s provincial election.

Sutcliffe’s rejection of the powers has come as a relief to some councillors, but opposition to Bill 39 persists around the city’s new council table. None of the 11 councillors to respond to this newspaper’s inquiry — urban and suburban, new and returning — expressed support for the province’s move, and many condemned it in strong terms.

Asked whether Ottawa’s inclusion in the bill would be reconsidered, given this local opposition, the housing minister’s office gave no indication the government plans to. This newspaper also asked why this new minority power to pass bylaws was being imposed on Ottawa without the support of the mayor, and for any evidence informing their belief that this was a power worth pursuing for Ottawa and Toronto.

The housing ministry provided a statement saying that more than a third of Ontario’s projected growth in the next decade is expected to be in these cities, which is why Bill 39 would give them “an additional tool to deliver on shared provincial-municipal priorities, including the building 1.5 million new homes over the next 10 years.”

The mayor’s office declined to expand on the short statement Sutcliffe released last week on Bill 39, and said he was not available for an interview prior to this newspaper’s deadline.

“Entirely undemocratic” is how Rideau-Rockcliffe Coun. Rawlson King characterized the bill, titled the “Better Municipal Governance Act.”

Beyond bucking the standard for majority support to pass laws, King noted that it would also allow the mayor to skip bylaw consideration at committees, where residents get to weigh in before they proceed to council.

“While the province has described the introduction of this legislation as ‘bold’ and ‘decisive’ action, I see it as a cynical and autocratic proposal designed to forcefully align city policies with ill-defined provincial priorities while eroding the traditional decision-making privileges of our municipal council and the democratic rights of our residents,” said King.

Ariel Troster, the newly elected councillor for Somerset Ward, finds the bill “incredibly problematic” and said she “cannot think of any other example anywhere in the world where a government decision can be made with only one-third support.”

Fellow council newcomer Laine Johnson, of College Ward, said she heard throughout the election campaign that “residents don’t want the kind of authoritarian mayor that this legislation would create. They want to see collaboration, cooperation, and respectful partnerships among members of council.”

Glen Gower, the re-elected councillor for Stittsville, said he’s against the “minority rule” provisions of Bill 39 and wonders if there’s a way for council to formally exclude it from their procedure.

Lawyer and uOttawa municipal law professor Stéphane Émard-Chabot doesn’t see that flying, legally. There’s a line in the legislation outlining the one-third bylaw passage power that overrides anything contrary in a city’s procedure bylaw, and even if a city were to try to create a blocking mechanism in another form, “judges would see through that,” said Émard-Chabot.

Still, lawyer and former Ottawa–Vanier Liberal MPP Nathalie Des Rosiers said it’s a route she would explore, if she were a councillor opposed to Bill 39. While the province could legally challenge a city that enacted a procedural safeguard against a mayor using the Bill 39 powers, such as a rule that first required that a majority of council vote in favour of it, it’s another question whether the provincial government would actually do it, she said.

“What would be the end game, you know, why would you do it? And whether or not this is so serious a problem for the province that it wants to spend a lot of time defending a model of defeating local democracy,” said Des Rosiers.

There’s also the potential for a constitutional challenge of Bill 39, if a mayor were to exercise the powers it grants. It could also be challenged preemptively, but Émard-Chabot said courts don’t like hypotheticals.

History doesn’t inspire a lot of confidence in the outcome, for the lawyer and former Ottawa city councillor, who shares the view that Bill 39 is undemocratic.

As Émard-Chabot put it, the most recent and comprehensive court discussion on the ability of municipalities to control their own destinies was the City of Toronto’s legal challenge of the decision by the Ontario PC government to halve the size of its council during the 2018 election campaign.

The case reached the Supreme Court, where a 5-4 majority took the position that “municipalities are entirely creatures of the province and the province(s) can do whatever they want with them,” said Émard-Chabot.

On Bill 39, “maybe this idea of legislating with one-third of the votes would be offensive enough to the majority of the judges for them to do something about it. But interrupting an election midstream to change the map didn’t offend the majority.”

Provincial housing and municipal affairs minister Steve Clark was not available for an interview for this story. In Question Period Thursday, he defended Bill 39 by noting that Mayor John Tory won a city-wide mandate, with more votes that every councillor combined, to “get shovels in the ground,” adding: “We’re going to give him the tools to get it done.”

Bill 39 could pass in short order. It’s already reached the committee stage, with a single day of public presentations scheduled for Thursday. The public can also make written submissions until Dec. 1, the PC-majority committee studying the bill will then meet for clause-by-clause consideration on Dec. 5, and it could ostensible be voted into law before the end of the House’s last sitting day of the year on Dec. 8.

1. Mayor Sutcliffe doesn't want the power to pass bylaws with more than a third of council support

2. In Ottawa, province facing tough sell on using strong-mayor legislation to build more homes