COURT OF APPEAL FOR ONTARIO
RE: DOUGLAS COUNTER and VICTOR COUNTER (Applicants/Appellants) – and – CITY OF TORONTO (Respondent/Respondent in Appeal)
BEFORE: WEILER, MACPHERSON and SHARPE JJ.A.
COUNSEL: Murray Klippenstein and Vilko Zbogar for the appellant
Ansuya Pachai for the respondent
HEARD: May 16, 2003
On appeal from the judgment of Justice R. Pitt of the Superior Court of Justice dated October 29, 2002.
E N D O R S E M E N T
1The appellants brought an application seeking, among other relief, to have certain portions of a by-law restricting the natural garden they had planted on two zones of city property declared unconstitutional and of no force and effect. One zone is a narrow strip between the property line and the sidewalk; the second zone is between the sidewalk and the paved roadway that serves as a storm water management ditch.
2Pitt J. held that any infringement of the appellants’ freedom of conscience, freedom of religion or freedom of expression is justified as a reasonable limit under s. 1 of the Charter of Rights and Freedoms. The crucial holdings of Pitt J. are contained in para. 33 of his reasons:
[33] Can the infringement be justified as a reasonable limit demonstrably in a free and democratic society?
The restriction is justified and even apparent through common sense. An application of the s. 1 test in R. v. Oakes (1986), 26 D.L.R. (4th) 200 (S.C.C.) makes this clear. I accept the submissions of the City that the by-laws are precise enough to qualify as limits prescribed by law. The objective of the by-laws is pressing and substantial – public safety through visibility on roadways. By-laws that give a municipality the ability to regulate what is on public areas where visibility is at issue are rationally connected to that objective. As for minimal impairment, it should be recalled that there is no ban on natural gardens of any kind on public space. The limitation in the by-laws is just that – a limitation on the extent of growth. Limitations, rather than prohibitions, are generally easier to justify as minimal impairment. Here, it is not appropriate to require the municipality to scientifically prove every inch of sight line from every direction for every individual. The height restriction imposed by the City is based on sensible driver sight line estimates, and still permits generous natural growth. Therefore, the minimal impairment requirement is met. Finally, a proper balance exists between the effects of the limiting measures and the legislative objective. It is the view of City officials, reasonably held in my opinion, that some of the plants on the road allowance create dual traffic concerns. One involves drivers entering into Mulgrove Drive from the side streets immediately north and south of the property, and the second from the viewpoint of drivers exiting the residential driveway neighbouring 52 Mulgrove Drive. The Counters are only required to alter the public portion of their garden to the extent that the City determines driver and pedestrian safety to be at risk. Based on the above, then, the measures taken by the City are proportional, and the limitations are justified. (Emphasis added)
2We agree generally with the analysis of Pitt J. and with his conclusion. In our opinion, the authority to limit the extent of the vegetation is tied specifically to safety hazards and is a reasonable limitation on the appellants’ Charter rights. We agree with Pitt J.’s conclusion that when read and interpreted in the light of its underlying purpose of controlling encroachments which create a safety hazard, the by-law is not so vague, ambiguous, uncertain or discretionary as to be unreasonable.
3Accordingly, the appeal is dismissed. Costs of the appeal are fixed at $5,000 payable by the appellants to the respondents.
“Karen M. Weiler J.A.”
“J.C. MacPherson J.A.”
“Robert J. Sharpe J.A.”