In 2013, under threat of a resident petition and, at worst, an Ontario Municipal Board (OMB) order that would unilaterally impose new electoral districts, the City of Toronto embarked on its first ward boundary review (WBR) since the enactment of the City of Toronto Act, 2006 (COTA). The WBR highlighted the scattered application of subsidiarity within Canada’s federation. Under the notion of federalism enshrined in the Canadian Constitution, municipalities are granted only those powers that derive from provincial legislation. However, the Supreme Court of Canada has invoked the European principle of “subsidiarity” to reframe municipal authority over local issues. The aim of this principle is to guarantee a degree of independence for a local authority in relation to a higher body or central government, in order to ensure that powers are exercised as close to the citizen as possible. These two seemingly competing notions of municipal authority—federalism and subsidiarity—can and ought to be reconciled in the context of Canadian local governments. This article analyzes Toronto’s WBR in light of the subsidiarity debate. Drawing principally on the work of Yishai Blank and Hoi Kong, this article asks how legal theory understands local decision-making, exploring in particular whether and how subsidiarity articulates federalism’s claims. Through a detailed review of its WBR, the article suggests that Toronto’s decisions are a manifestation of the city’s view of its powers as operating within a federalist lens, leaving it reactionary to privincial decisions and quasi-judicial review. At the same time, provincial laws that set municipal authority in WBRs are framed within a contradictory framework that undermine the accountability of Toronto’s WBR process. The article argues in favour of a re-imagination of municipal authority under the notion of “operative subsidiarity” nesting within a federalist framework.
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"Operative Subsidiarity and Municipal Authority: The Case of Toronto’s Ward Boundary Review."
Osgoode Hall Law Journal