Judge rejects ward appeal

Wed, March 1, 2006

Justice Dougald McDermid rules the OMB is within its authority to establish 14 wards.

By JONATHAN SHER, FREE PRESS CITY HALL REPORTER



A battle over London's election map that may cost taxpayers as much as $100,000 ended yesterday when a judge shot down a request by city council to appeal a new 14-ward map.

In a strongly worded decision, Superior Court Justice Dougald McDermid wrote the Ontario Municipal Board acted within its authority when it ordered the new map.

"There is no doubt that (the Municipal Act) gives the board the power to order what it did and in this case, I have no doubt about the correctness of its order. . . . My analysis . . . leads me to conclude unhesitatingly that the board did not exceed its jurisdiction."

His ruling left no doubt there will be 14 wards when Londoners go to the polls in November.

"We need to accept the decision and move on," said Coun. Rob Alder, who had backed the initial appeal.

The appeal has already cost between $75,000 and $100,000, Deputy Mayor Tom Gosnell said on a local radio show.

Those who sought an appeal placed hopes on George Rust D'Eye, a top-gun lawyer charging $435 an hour. But with little legal precedent, McDermid's ruling turned in part on a definition found in the Canadian Oxford Dictionary.

Rust D'Eye argued the Municipal Act gives the OMB power to change ward boundaries but not to create additional wards. That argument fell flat, wrote the judge, because the Act gives the OMB the power to redivide wards, an act that by its nature creates additional wards.

"I apply the plain and ordinary meaning of the word 'divide' which is 'to separate or be separated into parts; break up; split; mark out in parts,' " McDermid said. "To 'redivide' the municipality into wards must then mean that existing wards may be separated, broken up, split, or marked out into additional parts, which is what the board did by creating 14 wards."

Yesterday's ruling was embraced by members of the citizen's group that pushed for the change, Imagine London.

"It turns a page and opens a new book of accountability at city hall," said Stephen Turner. "Hopefully, it creates a council that's more responsive to its citizens and more aware of community issues."

Imagine London founder Sam Trosow agreed:

"This is a victory for the right of citizens to petition their government and have that petition taken seriously."

In 2003, Londoners voted to abolish board of control and reduce council's size, but turnout was too low for the results to be binding.

Last May, council voted to preserve its seven pie-shaped wards with two council members each. That led to the creation of Imagine London and a petition seeking to eliminate board of control and create 14 single-councillor wards.

Council's failure to act on the petition -- it voted to end debate before it began -- gave Imagine London the right to file a challenge to the OMB.

Yesterday's ruling upset Gosnell, who has denounced how a single OMB member, Douglas Gates, could impose a decision on a city of 350,000.

"It really changes the dynamics of local government when the unelected and unaccountable is able to have such influence," Gosnell said.

But if it was the intent of Gosnell and others to diminish the influence of the OMB, their efforts have achieved the opposite, Trosow said.

Before yesterday's ruling, the OMB confined itself to changing the number of wards or the number of councillors per ward, and would not change the size of council. But McDermid ruled the OMB could change council's size.

"The city appeal has expanded what electors can seek going to the OMB," Trosow said.

Last November, Gates found London wards poorly served electors and split neighbourhoods such as downtown and the Old East Village.

Gates was also critical of the way council responded to demands for change. In comparison, McDermid avoided the issue of council's conduct -- with one exception.

After rejecting as "trivial" a city claim some new ward boundaries were vague, McDermid noted the city had been asked by the OMB to help draw a new ward map but wasn't willing to do so.

"If there is any lack of clarity, it ill behooves the city to complain," he wrote.

McDermid's decision triggered similar responses from two community groups that don't always see eye to eye -- London's Chamber of Commerce and Urban League.

"We've had enough of (appeals). Let's move on," said Chamber general manager Gerry Macartney.

"There's no point of pursuing this further. Let's get on with it," said Urban League president George Sinclair.

Sinclair criticized council members who yesterday said direction should be sought from Queen's Park because the ruling was unclear about whether there should be one or two members per ward

"The people who objected to (14 wards) need to cover themselves in whatever fig leaf they can find and this was the only fig leaf left," Sinclair said.

Also critical was Imagine London lawyer Norm Pizzale.

"They're rehashing an argument rejected by the judge. Unequivocally rejected," he said.

Questions for Rust D'Eye were referred yesterday to city solicitor Jim Barber, who said legal advice would be given today to the board of control.