Ontario court quashes Toronto city council's $100K pledge to fight Quebec's Bill 21

Article content

The City of Toronto’s $100,000 pledge to support legal action against a contentious piece of legislation in Quebec has been quashed by an Ontario court.

In a decision released earlier this month, Ontario Superior Court Justice William Chalmers ruled in favour of a suit filed last year by Toronto resident Louis Labrecque, who argued that it was beyond the jurisdiction for a municipal council in Ontario to use taxpayer dollars to fund an out-of-province legal action that had little bearing on its residents.

“A challenge to a law in a foreign jurisdiction that has no effect on Torontonians, goes beyond the powers granted to the city,” Chalmers wrote in his decision.

“I am unable to conclude that the by-law has as its purpose the ‘economic and social well-being’ of Torontonians. In applying the broad and deferential approach, I find that the bylaw as it relates to funding the legal challenge to Bill 21 does not fall within the powers as set out in section eight of the City of Toronto Act.”

Bill 21, also known as “an act respecting the laicity of the state,” was adopted by Quebec’s provincial legislature in June 2019.

The bill forbids Quebec civil servants in “positions of authority” from wearing religious symbols while on duty — positions that include sworn peace officers, public school teachers and staff, and Crown prosecutors.

After Quebec schoolteacher Fatemeh Anvari found herself reassigned because of her hijab in December 2021, the mayor and councillors at the city of Brampton passed a motion to donate $100,000 towards a legal challenge filed against the bill by the Canadian Civil Liberties Association, the National Council of Canadian Muslims and the World Sikh Organization.

Brampton Mayor Patrick Brown urged his counterparts across Canada to follow suit.

Many municipal councils expressed support, but were hesitant to back their words with taxpayer dollars. The City of Toronto, however, took up Brown’s call.

In December 2021, then-Toronto mayor John Tory tabled an impromptu motion reaffirming council’s opposition to the bill, along with a pledge of $100,000 to support the legal challenge.

Council adopted the motion unanimously.

In his application, Labrecque argued the city’s motion to fund the contribution through their 2021 operating budget constituted a bylaw under provincial law — one that served no valid municipal purpose under both Ontario’s Municipal Act and the City of Toronto Act.

Among the case law used by Chalmers in his decision was Eng vs. City of Toronto — a 2012 challenge against Toronto City Council’s now-overturned 2011 resolution banning the possession, sale or consumption of shark fins in the city.

“In similar circumstances, the court found that the bylaw banning shark fin products was not for a valid municipal purpose and declared the by-law illegal,” Chalmers wrote in his decision.

“The court noted that the practice of shark finning did not occur in Toronto and did not affect the ability of Torontonians to live together in an urban community. Similarly, it is my view that Bill 21, which applies to Quebec government employees and prevents them from wearing religious symbols in their workplaces in Quebec, does not affect the ability of Torontonians to live together as an urban community.”

Chalmers also cited Shell Canada Products Ltd. v. City of Vancouver — a case that went before the Supreme Court of Canada in 1994, where in reaction to Shell’s refusal to divest interests in Apartheid-rule South Africa, the city declared itself a “Shell-free zone.”

“In Shell Canada, the majority of the Supreme Court found that the purpose of the resolutions was to ‘affect matters beyond the boundaries of the City without any identifiable benefit to its inhabitants,'” Chalmers wrote.

“In Eng v. Toronto, the purpose of the bylaw was to affect the practice of shark finning that took place in ‘distant oceans.’ In both cases, the Courts held that the foreign law and practices had no effect on the city inhabitants.”

Labrecque’s lawyer Asher Honickman, partner at Toronto’s Jordan Honickman Barristers, told National Post his client is pleased with the outcome.

“We argued that the courts, including the Supreme Court, have never wavered from the proposition that bylaws must be for municipal purposes,” he said.

“There needs to be some kind of tangible benefit to the city that can be broadly understood.”

City of Toronto spokesperson Deborah Blackstone told National Post that the decision was under review by city lawyers, and declined further comment.

Peter Graefe, a political scientist at McMaster University, said previous court decisions make it quite clear what councils are and are not permitted to do.

“Cities are creatures of the province, and they can’t do anything outside of the very specific powers granted to them by their provinces,” he said.

Graefe explained that while some issues may resonate deeply with council and residents, cities are still bound by the legislation that governs their governance.

“It’s interesting that it took a concerned citizen to call them to order, because presumably there’s been no such attempt in Brampton, for instance, or in some of these other cities that were willing to put money forward to question whether this was appropriate or not.”

• Email: bpassifiume@postmedia.com | Twitter: @bryanpassifiume