Seeing the Silver Lining in Limits to the Application of the Charter

February 27, 2022

By Mark Mikulasik

Does the Supreme Court of Canada decision related to the size of Toronto’s city council, and the election of 2018, affect your municipality?

Not directly, but it is an important reminder that municipalities are subject to the whims of the provincial government. This is a very significant limitation on the real power of municipalities, and has the potential at any time to toss your orderly administration into chaos.

That is a negative viewpoint, but not really news. We see some hidden positives in the decision. The decision also highlights that creative efforts to extend constitutional or Charter protections may run into brick walls. That is good news for municipalities subject to Charter challenges.

Among other points, the Supreme Court confirms that:

  • alleged unwritten constitutional principles cannot be used as a basis for invalidating legislation
  • unwritten constitutional principles do not undermine provincial authority over municipalities
  • the interpretation of Charter rights must not “overshoot the purpose of the right”
  • Charter rights may impose both positive and negative obligations on government. Thus, the approach used in the court of Appeal distinguishing “positive claims” as not available under the Charter is incorrect.
  • To succeed, a positive claim under section 2(b) (“freedom of expression”) must:
    • be grounded in the freedom of expression, not use that freedom as an attempt to simply attack a particular law
    • show substantial interference with freedom of expression
    • show that the limit on freedom of expression is the result of government action.

In the Toronto election case, this last point was fatal to the challenge. Although this is certainly a limitation on municipal power, it is no change from the traditional expectations about the role of the province and municipalities. Toronto, due to its size, has always wanted to be considered special. It even has its own statute that in many ways replaces the Municipal Act.

Cities, towns and townships in Northwestern Ontario generally have much less confrontational relationships with Queens Park than the provincial capital to the South.

The positive takeaway that we see here for Thunder Bay and other regional governments is that this decision has the promise of limiting frivolous or misguided efforts by individuals or interest groups to use the Charter as a tool to attack legitimate exercises of municipal powers. Curtailing frivolous lawsuits may ultimately save your municipality and your taxpayers considerable expense, plus it will allow your local legislative agenda to progress in a more orderly fashion, for the benefit of your citizens, rather than being derailed by a few activists. Several efforts by interest groups to challenge municipal decisions since the Toronto decision have already been denied as a result.

Maximizing these benefits requires that you obtain advice from lawyers who appreciate and understand the subtleties of decisions like Toronto (City) v. Ontario (Attorney General). At Weilers Law, we can provide that perspective and depth of understanding.