The Reversal of Peel Region’s Dissolution is a Symptom of a Larger Problem; and Charter Municipalities Might be the Solution

A couple weeks ago, the Government of Ontario decided to reverse its prior decision to dissolve the Regional Municipality of Peel. This decision was initially to take effect in 2025 after the sorting out of the details by a transition board.

Now, of course, having the Provincial Government hastily reversing such an important decision in such a haphazard way is funny for a variety of reasons, but I wanted to focus in on the procedural aspect of the decision. As is often the case, I take issue not necessarily with the decision that was made (though I probably would have preferred a more ambitious attempt to establish metropolitan-level government in Greater Toronto), but the manner in which it was made. Although the Province’s Municipal Act contains procedures authorizing local governments to initiate municipal restructuring proposals subject to provincial approval, the dissolution of Peel Region was imposed by way of provincial legislation, with little in the way of consultation or deliberation — consistent with how most major municipal restructuring in Ontario has been implemented in recent decades. This approach — which, in this case, involved leaving all the due diligence until after the formal decision was made — likely contributed to the reversal of dissolution after the eventual discovery that it was ill-informed. So, although the Municipal Act contains procedures that authorize municipal restructuring, it is generally easier for the Province to impose its preferences by way of the legislative process, and this is what they have done on several occasions.

This situation is not inevitable, and is far from being the only option. Look no further than most jurisdictions in the United States to get a sense of the potential alternatives which exist. In many states, local government reform — including dissolution of counties or city-county consolidation — is constitutionally-required to undergo approval of the electorate by way of a referendum or other forms of consultation. In other states, certain local authorities are subject to charter status, which prohibits reforms imposed unilaterally at the state level. Even in so-called Dillon’s Rule states, in which there are no constitutional limitations upon the legislature’s power to restructure local and county governments (as is the case in Canada), the limitations on municipal restructuring, although not substantive, are inherent in the legislative process itself. This is because US State Legislatures, unlike their Canadian counterparts, are almost always bicameral, aren’t dominated by the executive government or plagued by party discipline, and are more often in a state of divided government. In Ontario — and in every other Canadian province for that matter — not only is it constitutionally possible for the government to throw around its legislative weight on the municipal governance front, it is extremely easy for them to do so. Whether the process for local government reform involves petitions, referenda, legislative supermajorities, or even just a more robust legislative process with real checks and balances; it is vital that there be a “process” of some kind.

One solution might entail allowing municipal governance to remain subject to the ordinary legislative process, but making this process more onerous. This could involve adopting proportional representation for elections to the Legislative Assembly (my pet issue it seems) in order to require (in most cases) a multi-party consensus on legislation, including on issues of municipal governance; or a number of more minor reforms aimed at enhancing the independence of the Legislative Assembly’s members from party leadership and the government of the day. Changes of this type would have broad impacts on all forms of legislation at the provincial level in Ontario, and arguably would not do enough to provide protection to municipalities from unilateral provincial intervention, but are certainly an improvement from the present state of affairs.

Another solution would entail the adoption of a bilateral amendment to the Constitution of Canada under section 43 of the Constitution Act, 1982. Such an amendment would require the approval of the Ontario Legislature and the federal Houses of Parliament in Ottawa, and would be immune to unilateral repeal or change by the Province. The amendment might include provisions establishing a special, paramount class of provincial legislation in Ontario (essentially a constitutional class of legislation), and authorizing the Ontario Legislature to adopt, repeal or amend such legislation, subject to a more burdensome set of special procedures. These procedures may include public approval through a referendum, legislative supermajority requirements, adoption by successive Legislative Assemblies (with a general election happening in between), or adoption by a constituent assembly, among many other possibilities.

This special class of legislation may be used to entrench certain aspects of the provincial constitution (such as provisions governing the process according to which municipal authorities are established and restructured) in such a way that puts them beyond the reach of ordinary provincial legislation; or it might be used more directly to adopt municipal charters as part of this special class of legislation. The latter approach, however, might make changes to these charters excessively onerous to the extent that they would invoke a province-wide procedure for amendment, as opposed to something more local. Municipal charters, whether adopted pursuant to these special laws, or as part of them, could contain provisions which go beyond just spelling out the structure of local government in a municipality, and could provide binding direction as to how provincial-municipal relations might work, including establishing intergovernmental obligations and commitments, or entrenching certain fiscal arrangements.

The implications of a constitutional amendment of this kind go far beyond municipal governance, and could facilitate the entrenchment of a varied range of fundamental pieces of legislation in such a way that ensures broad consensus is achieved before changes to them are pursued. This, of course, would be beyond the scope of this particular piece. What’s clear to me is that between the forced amalgamations of the 1970s and 1990s, the unilateral decision to reduce the size of Toronto City Council, and the more recent decisions in relation to Peel Region, the Provincial Government is far too capable of unilaterally restructuring local governments throughout Ontario. Reform of some kind, whether modest or ambitious, is undoubtedly necessary.