When Ontario Superior Court Justice Charles Hackland handed down his November ruling ejecting the mayor from office, Ford’s lawyer took the next legal step available: he appealed to Ontario’s Divisional Court.
That’s the only appeal option, according to the province’s Municipal Conflict of Interest Act. It states that the divisional court has final stay, cutting off access to the higher courts of appeal, such as the Ontario Court of Appeal. In other words, what the divisional court says, goes.
But — just to keep things exciting — there is a “little known, little used” part of the Supreme Court Act that leaves room for a case to go straight to the top court, says Eugene Meehan, a partner in Supreme Advocacy, an Ottawa-based law firm that specializes in the nation’s highest court.
The move — called a per saltum, Latin for “by jumping” — would do just that: leapfrog over lower courts to the Supreme Court of Canada. This option is available to both Ford and Paul Magder, the citizen who brought the lawsuit against Ford.
In this case, there are two ways to “jump.” The first requires the permission of both sides and can only be on a question of law, meaning the facts are not debated. The second does not require both sides to agree to appeal, but has to deal with a legal question that is of public importance.
In both scenarios, the appealing party would have to first get permission from the court to appeal. This would be sought via application to the Supreme Court of Canada in Ottawa.
Magder’s lawyer, Clayton Ruby, said the first appeal option is so out of the realm of possibility it’s “not worth talking about.” The second is “a huge long-shot,” but he did not rule out attempting the far-flung appeal if Friday’s decision does not go his way.
“I know it’s of real importance to the City of Toronto, but I don’t know that the legal questions are of such public importance as to merit the consideration of the Supreme Court of Canada,” he said.
He adds that there is no precedent for an appeal to the nation’s Supreme Court in the history of the conflict of interest act’s finality clause (the section saying divisional court is the only appeal option).
If all that weren’t convoluted enough, Meehan adds that Ford could even go to Ontario Court of Appeal. That court would then point to the provincial legislation saying the divisional court decision was final — and Ford could appeal that to the Supreme Court.
“Ontario legislation here, by definition, restricts access to Ontario’s courts — the law can itself, therefore, be put on trial,” he said.
If Ford loses the appeal, he’s out of the office at 9:30 a.m. Friday, unless the ruling includes a delay of his ejection, which legal experts say isn’t likely.
If Ford appeals the divisional court ruling, he’s likely to seek to stay in office, just as he did following Hackland’s ruling. But where he goes to obtain a stay isn’t straightforward.
Leo Longo, also a municipal law expert at Aird and Berlis, said Ford may have to convince a Supreme Court of Canada judge in Ottawa to grant him a stay — something he said is “so theoretical as to be most unlikely that it will be pursued.”
But he said there is also provincial legislation allowing for a stay to be granted by the court whose decision is to be appealed, meaning Divisional Court.
The Supreme Court Act, mind you, allows for a stay to be granted from either the Divisional Court, in this case, or the Supreme Court, though prior decisions show the Supreme Court prefers the court whose decision is being appealed to consider the stay first.