Rob Ford's controversial tenure as Toronto mayor is hanging in the balance Monday night. Earlier in the day, an Ontario Divisional Court heard final arguments in his appeal of the ruling that kicked him out of office last November.
As expected, attorneys for both sides of the case finished their presentations in a single day, meaning the immediate future of Canada's largest municipal government now rests with a panel of three judges.
Ford's lawyer, Alan Lenczner, began the day by arguing that Justice Charles
Hackland made four errors of law in the November 26 decision that found that the mayor broke the Municipal Conflict of Interest Act at a February council meeting.
The root of Lenczner's defence is that council acted outside its jurisdiction when it ordered Ford to repay $3,150 he improperly solicited for his football foundation, and as such he should face no penalty for voting to not give back the funds.
Lawyers for Paul Magder, the resident who brought the conflict case against the mayor, attacked that idea when they took up their case shortly before 1 pm.
Attorney Nader Hasan said Lenczner was interpreting city powers too narrowly, and asked the judges to find council was well within its rights to ask Ford to pay back the money. Citing case precedent, he said courts have found that municipalities can exercise authority not explicitly set out in provincial law in order to promote the city's "general welfare."
"In interpreting municipal powers, the narrow approach to jurisdiction advocated by [Ford's lawyer] has been rejected in favour of a broad and purposeful approach," Hasan said.
Even if the panel were to find that council overreached, Hasan said, that wouldn't give Ford the retroactive right to speak and vote on the donations item last February because at the time, no court had invalidated council's directive.
"We operate under the presumption that a municipal bylaw is valid until proven otherwise," Hasan argued. Because Ford never sought a judicial review of the council motion when the issue first arose in August 2010, the MCIA was in effect at the February meeting, he said.
Later in the afternoon, Magder's lead lawyer in the case, Clayton Ruby, took over for Hasan. The seasoned attorney quoted heavily from Ford's February council speech and his testimony during the original conflict hearing in September in an attempt to use the mayor's own words against him.
While Lenczner tried to convince the judges that $3,150 was too small a sum to represent a conflict for Ford, Ruby said the mayor had made perfectly clear that he a profound interest in not paying back the money. In February, an indignant Ford told council "there is no sense" in asking him to repay the money "out of my own pocket."
"The very reason he spoke on the matter was because he so strongly objected
to paying the $3,150," Ruby told the judges.
"It certainly mattered to him. And there is no evidence to the contrary before you."
Ruby also quoted at length from Ford's testimony in order to refute Lenczner's assertion that Ford can avail himself of an error-of-judgment defence because didn't realize he was in a potential conflict at the February meeting. On the stand in September, the mayor admitted to never reading the MCIA, nor the council handbook section on conflict of interest, despite being a council member since 2002.
"He knows nothing. And he concedes he knows nothing," Ruby told the court. He asked the judges to uphold Hackland's finding that Ford's failure to familiarize himself with the MCIA amounted to "willful blindness," and was no excuse for violating the act.
After hearing the opposing lawyers' arguments, Justice Edward Then, the superior judge on the appeal panel, announced that the court would reserve its decision until a later date. He did not say when the trio of justices would render their verdict, but promised to fast-track the outcome of the case that has left Torontonians wondering who is in charge of City Hall.
"We're... sensitive to the fact that there needs to be extradition in matters such as this," Then said. "I think the court has tried to accommodate everyone by having a prompt hearing on the matter. And we want to continue in that tradition by having a prompt decision. We're prepared to do our level best to achieve that."
A ruling is expected no later than February. If Hackland's judgment is upheld, council must declare Ford's seat vacant, and will then have 60 days to either call a by-election, or appoint a caretaker mayor until the scheduled 2014 municipal vote.
Ford spoke briefly to reporters after the hearing Monday, but refused to comment on the case.
"I can't say anything about today's court proceedings," he said. "All I know is I'm going to continue fighting for the taxpayers like I always have."