By Mark Gollom
Published on CBC News on November 27, 2012
A ruling by an Ontario court judge that forces Rob Ford to vacate the Toronto mayoralty has opened up a legal and political quandary in Canada's largest municipality.
Having found that Ford had violated provincial conflict of interest rules for municipal politicians, Ontario Superior Court Justice Charles T. Hackland gave the mayor two weeks in office before the ruling takes effect, saying the decision "will necessitate administrative changes in the City of Toronto."
But if yesterday is any indication, those two weeks will be filled with intense legal speculation about whether Ford will seek a stay of the Hackland ruling while an appeal is heard, not to mention political intrigue as Ford opponents and supporters jockey to figure out how to replace him.
If he does go, there are currently two options on the table: appoint a caretaker mayor to fill the remaining two years of the term or call a byelection. And while it is early days yet, some councillors, including some previously loyal Ford supporters, are beginning to make their preferences heard.
As for the mayor, Ford has said he will appeal the decision at a divisional court. But in order to remain mayor while the appeal is going forward, he would likely also have to apply for a stay of proceedings.
Ford's legal team could either ask that of Hackland, the lower court judge who made the initial decision, or the court they are appealing to.
"They'd have to make the tactical decision, who's more likely to hear them out," Stephen D'Agostino, who specializes in municipal law, told CBC News. "Part of the consideration is going to be what are the chances on appeal.
"If it looks like it's a pretty iffy appeal, the court might say, 'We'll hear the appeal but you're out [of office].' On the other hand, if it's controversial but looks like it's a good appeal, a court might be more cautious."
Appeal could take months
If a stay was granted, Ford would continue to be mayor for the duration of the appeal and legal process, which could be several months. His term is supposed to end in December 2014.
Yet there seem to be differing opinions over whether such a stay would be granted. John Mascarin, a municipal law expert who had predicted the judge's ruling, suggested on Monday that Ford would get a stay.
But D'Agostino told CBC News that he believes granting a stay to Ford would be unprecedented.
"I've been involved in conflict of interest work for 15-odd years," he said. "I've never seen it done.
"The normal appeal rules would allow someone to apply to court to stay the decision that's being appealed, but I have never seen it done," D'Agostino said.
If a stay is not granted, the City of Toronto Act states that city council would have 60 days to either fill the vacancy by appointing somone to be mayor or by passing a bylaw requiring a byelection be held to fill the vacancy.
The Globe and Mail reported that council had earlier passed a bylaw that would ensure that only an elected councillor could be appointed mayor under these circumstances, but it's unclear whether that bylaw would supersede the provincial act governing municipalities should there be a challenge.
Confusion over when Ford can run again
Still, there seems to be some confusion surrounding part of the judge's ruling. In one of the last paragraphs, Hackland wrote that he would not disqualify Ford from running for or holding office "beyond the current term."
The question is what the judge meant by "beyond the current term" and whether that refers to Ford's term as mayor, scheduled to end in December 2014, or whether he could run again immediately if a byelection were to be called.
Mascarin said that he believes Hackland clearly meant to bar Ford from running for office until the current council term is over in 2014.
But Alan Lenczner, the lawyer who represented Ford in the conflict hearing, told CBC News in an email that he believes the mayor can run in a byelection if one is called ahead of the 2014 municipal election.
D'Agostino said that it's unclear what Hackland meant. "If I just read that one paragraph, I'd walk away saying that the court meant to the end of the term — as in an election term.
"But because I read the whole decision, I read that and it kind of jarred me because there's no real discussion about that, it just sort of comes out of the blue. It's really a well-worded, well-thought-out decision, and I would have anticipated some discussion on it. So that's what I'm left with, a bit of a question mark."
It is possible the two sides may call the judge's assistant to set up court time or a conference call with the judge for clarification.
As for council's option to appoint someone to fill the mayoral void, the provincial act doesn't specify who that person should be — meaning it could be anyone of voting age, and not necessarily someone from city council.
Adding another twist, if a stay is not granted, and Ford is booted out of office, it's possible he could be reinstated if the appeal court sides with him, meaning the person who had replaced him as mayor would in turn be replaced by Ford at some future date.
Byelection would cost $7M
Meanwhile, many city council members were cautious in their remarks about the possible mayoral vacancy and which option they might consider — a $7-million byelection or the appointment of an interim mayor until 2014.
Some took to Twitter to say that Ford was entitled to his appeal process, while others were raising names of those who might succeed the mayor.
Deputy Mayor Doug Holyday told CBC News that he'd favour an appointment if that person's agenda was similar to the mayor's. He later said he wouldn't rule out a run himself if a byelection were called.
Coun. Mike Del Grande, another Ford supporter on council, told the Globe and Mail that he would like to see the fiscally conservative Holyday in that post if council was to go the appointment route.
But Coun. Paula Fletcher told the Globe and Mail that she thought two years is too long for a "caretaker" to run the city.
The ruling has already prompted some to reconsider their political future. Coun. Giorgio Mammoliti, a loyal Ford supporter, quit the mayor's executive committee, saying his constituents have asked him to put some distance between himself and the embattled mayor.