McDonald v. Wainfleet Township, 2026 ONSC 4101

CITATION: McDonald v. Wainfleet Township, 2026 ONSC 4101

DIVISIONAL COURT FILE NO.: 320/24 JR

(Hamilton)

DATE: 20260716

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GRACE McDONALD, Applicant

AND:

WAINFLEET TOWNSHIP, Respondent

BEFORE: D.L. Corbett, Faieta and Shore JJ.

COUNSEL: Self-Represented Applicant

Jonathan de Vries, for the Respondent

HEARD: October 30, 2025, at Hamilton

ENDORSEMENT

the court:

1This application for judicial review concerns by-law enforcement measures taken by Wainfleet Township respecting the Applicant’s bamboo hedge, materials stored in the Applicant’s yard, and an extension to the front fence on the Applicant’s property.

2We see little merit to the Applicant’s position respecting the compliance issues that lie at the heart of this application. The orders are consistent with the applicable by-laws. Therefore, for the following reasons, we would dismiss the application.

Jurisdiction and Standard of Review

3This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1. The standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, paras. 11 and 23.

Background

4In 2021, a neighbour complained to the Township about the Applicant’s bamboo trees in her back yard. A By-Law Enforcement Officer (the “Officer”) investigated and concluded that the trees were not a “fence” because they were not continuous along the lot line and were more than two metres away from the wooden fence. The complaint was closed.

5In 2024, a neighbour again complained about the bamboo trees. The Officer found that the trees had grown vertically and horizontally and had become a “continuous barrier” that constituted a non-compliant “closed-style fence”. The Officer made an order on July 19, 2024 respecting the non-compliant bamboo fence (the “Bamboo Hedge Order”).

6Two weeks later, on August 2, 2024, the Officer issued another order, to clean up bricks, stone and other materials improperly stored in the Applicant’s yard (the “Building Materials Order”).

7On November 28, 2024, the Officer issued a third order respecting the Applicant’s front yard fence (the “Front Fence Order”), which was found to be higher than permitted.

8The Applicant challenges all three orders. She argues (a) that the Bamboo Fence Order is contrary to the 2021 decision about her bamboo trees; and (b) is in any event unreasonable because the trees are not a “fence”. She argues that the “Building Materials Order” is unreasonable because the materials in her yard were for the purpose of building a patio and for landscaping and were not for building construction. She argues that the Front Fence Order is unreasonable because impugned structure is a trellis to support plants and not a “fence”. Ms McDonald also argues – in substance – that the Officer – Mr Tardif – became sufficiently embroiled in the dispute, personally, as to render his ongoing decisions unfair and tainted by a reasonable apprehension of bias.

Procedural History

9The following timeline reflects the process below.

(a) July 19, 2024, Bamboo Hedge Order.

(b) August 2, 2024, Building Materials Order.

(c) August 20, 2024, penalty notices for both orders.

(d) September 5, 2024, the Applicant appealed both penalty notices to the screening officer, and her appeal was denied on the same day. This notice said she had “15 days from the date of this letter” to request a hearing. This decision was rendered at 3:30 pm.

(e) September 20, 2024, the Respondent confirmed they received the Applicant’s Hearing Request Form and denied her request because she was 1 day late. Respondent then immediately issued late penalties for both orders.

(f) October 15, 2024, this application commenced.

(g) November 28, 2024, Front Fence Order.

(h) December 6, 2024, Applicant emailed the Respondent, asking the Respondent to rescind the order or “follow proper legal procedures, allowing it to be adjudicated.” If the township refused to adjudicate the matter, the Applicant advised she would appeal the decision.

(i) December 12, 2024, the Respondent replied to the Applicant saying that it had decided that the order was correct. On the same day, the Applicant replied, requesting that the town refer the matter for review or advise that they were not going to do so and grant an extension from the original order’s deadline to 14 days after the decision (14 days after December 12). The Respondent never replied.

The Bamboo Hedge

10As noted briefly above, the Officer found that the bamboo hedge was not a “fence” in 2021, because the bamboo trees were not “continuous along the lot line” and were more than two metres back from the boundary fence. There is nothing in the record to suggest that Ms McDonald was told, at that time, that the bamboo hedge could become a non-compliant “fence” as a result of its growth over time. One could understand why Ms McDonald may have understood that her neighbour’s concerns about the bamboo trees had been resolved in her favour.

11Three years later, in July 2024, following a fresh complaint, the Officer found that things had changed as a result of growth of the bamboo trees: before, they had not been a “fence” but now they were. One can well understand why Ms McDonald could have been upset and concerned about what she saw as a reversal of the 2021 decision. However, we are satisfied that the Officer explained the situation to Ms McDonald and the reason why the bamboo hedge had become a non-compliant fence that needed to be trimmed or removed.

12Wainfleet’s Fence By-law No. 012-2020 provides as follows:

5.1.1 No person shall erect, own or maintain, or cause or permit the erection or maintenance of any Fence of a Height greater than 1.22 metres (4 feet) above grade in a Front Yard.

5.1.2 No person shall erect, own or maintain, or cause or permit the erection or maintenance of any Fence of a Height greater than 1.83 metres (6 feet) above grade in a Rear Yard or Side Yard.

13“Fence” is defined in the Fence By-law to include:

2.2 Closed-Style Fence – means a Fence constructed so that at least two-thirds of its vertical structure is closed space and that provides a visual barrier to shield any part of a yard from view of any adjacent property.

2.3 Fence – means a barrier, or any structure, except a structural part of the building, that wholly or partially screens from view, encloses or divides a yard or other land, or marks or substantially marks the boundary between adjoining lands, and includes any hedge or shrub that has the same effect.

2.4 Open-Style Fence - means a fence constructed so that at least two-thirds of its vertical surface is open space.

14Ms McDonald raises several arguments before us respecting the bamboo trees. First, she argues the issue had been decided in her favour in 2021, and it was unreasonable for the Township to come to a contrary conclusion three years later. We see little merit to this argument. The bamboo trees are alive, and they grew between 2021 and 2024. The definition of “fence” in s. 2.2 of the Fence By-law is a functional one. Once the bamboo trees grew, up and out, they became a “fence” within the meaning of the by-law, and the Township’s conclusion to this effect is not inconsistent with the 2021 decision. It was Ms McDonald’s responsibility to keep the trees trimmed to stay within what is permitted under the Fence By-law.

15Ms McDonald argues that the items in question – living bamboo – are “trees” and not a “hedge” or a “shrub”. She argues the Township has no jurisdiction to regulate “trees” under the Fence By-law. Once again, we see little merit to this argument. The Merriam-Webster Dictionary defines a “hedge” as a “[a] boundary made up of closely planted bushes, shrubs or small trees.” The Collins Dictionary defines it as “a row of bushes or small trees, usually along the edge of a garden, field or road.” The Cambridge Dictionary defines it as “a line of bushes or small trees planted very close together, especially along the edge of a garden, field or road.” There is nothing in the plain meaning of the word “hedge” or the context in which it is used in the by-law to justify the distinction urged by Ms McDonald.

16As stated above, we understand why Ms McDonald may have been upset that her once-compliant hedge was no longer compliant. But this was explained to her, the explanation was reasonable and consistent with the By-law. She was given a reasonable time to trim or remove the bamboo trees. We would uphold the Township’s compliance order of July 19, 2024.

The Building Materials Order

17An inspection on August 1, 2024, revealed piles of bricks and garden stones along the south side of the dwelling, extending nearly the entire length of the dwelling, within three metres of the property line. These piles were not covered or screened. During the same inspection, it was found that turf grass on the property exceeded eight inches in height.

18The Township’s Clean Yards By-law 016-2021 provides:

3.1 Every Owner… shall keep all… grasses… on the Property clean and clear.

3.2 For the purposes of 3.1, “clean and clear” means

(2) In Turf Grass areas, grass shall be cut and maintained at a height of not greater than 200 mm (8 in);

5.3 … every Owner… of a Property shall keep the Property clean, free and clear of new or used building materials other than the temporary storing of building materials intended for use during imminent construction at the Property.

5.4 Where new or used building materials are temporarily stored at a Property in accordance with section 5.3, they shall be:

(1) Situated or kept not less than three (3) metres from any lot line or boundary between the Property and any adjacent or neighbouring property…; and

(2) Fully covered or otherwise screened from view from any adjacent property….

19The Applicant argues that the bricks and stones are not “building materials” because they are intended for use in the construction of a patio, and not in respect to a “building”. There is no apparent merit to this argument. “Building materials” are not restricted to materials used to make “buildings” but rather are materials to be used in the “building” of things – including landscaping and a patio. The By-law is intended to control the presence and presentation of materials on lands: there is no principled basis for this control to be contingent on the specific purpose the owner may have in mind for the materials. Indeed, if Ms McDonald’s interpretation were to govern, then such materials could be left piled on a property when the Owner had no intended use for them at all – that is – if they were merely waste. It is the nature of the materials, not the Owner’s intended use for them, that governs the term “building materials” in this context.

20Bricks and garden stones clearly and obviously fit within the scope of the term “building materials”. The Township’s Building Materials Order is reasonable; we would uphold it.

The Front Fence Order

21During an inspection on November 28, 2024, two panels were found to have been added to the front fence on the Property, bringing the height of that fence to six feet and ¾ inches. As noted above, the height limit for a front yard fence is four feet. The Township issued a compliance order on November 28, 2024.

22Ms McDonald does not contest the Township’s measurements. She argues that the panels added to the fence are a “trellis for vegetation” and are “unrelated to the fence”. Once again, there is no merit to this argument. The photographs of the front fence show that the trellis panels have been attached to the fence to extend the fence upwards. As noted above, s. 2.2 of the Fence By-law provides a functional definition of “fence”. The trellis additions, placed where they are, constitute part of the fence, extending the screening effect of the fence. The Township’s Front Fence Order is reasonable; we would uphold it.

Procedural Fairness and Bias Arguments

23We do not find it necessary to address the procedural fairness allegations in detail. Ms McDonald missed, by one day, the deadline to request a hearing into the initial penalties assessed respecting the Bamboo Fence Order and the Building Materials Order. The decision to reject her request was made by the Officer. It appears that Ms McDonald’s challenge to the Front Fence Order was timely but not couched in the correct language. I understand that Ms McDonald might have felt that the Officer was “out to get her”, but on the other hand, Ms McDonald had to expect that she would be dealing with a very small complement of Township staff, given the population of the Township.

24This is an application for judicial review, and this court has the discretion to decline a remedy even where the court finds procedural unfairness: Dr. Rajiv Maini v. HPARB et al., 2022 ONSC 3326, at para. 30. In this case, we see no procedural unfairness in the issuing of the three impugned orders, or in the levying of penalties and late penalties, all of which now amount to hundreds of dollars in the aggregate. It may be that it would have been better to give Ms McDonald a hearing below, but we are satisfied that the failure to do that has been cured by the hearing in this court. The material facts are not in dispute. The issue is application of the Township’s by-laws to facts that are uncontested in any material respect. Ms McDonald’s arguments are of a legal nature and are of little or no merit. Even if we had concluded that there was some procedural unfairness in failing to afford Ms McDonald a hearing, we would not intervene to grant a remedy: these are minor by-law infractions that have been blown out of proportion by Ms McDonald, and this matter should be brought to a close.

25We would not give effect to the bias arguments. The Officer was just trying to do their job, and they were met with defiance and, indeed, recalcitrance. The Officer’s understandable annoyance is not a sufficient basis to conclude that their continued involvement in enforcement measures was tainted by a reasonable apprehension of bias.

Disposition and Order

26We understand Ms McDonald’s initial concerns about the Bamboo Fence Order, given that the prior investigation found no breach of the Fence By-law. However, the bamboo trees grew over the ensuing three years, the 2024 order is obviously consistent with the Fence By-law, and Ms McDonald’s arguments to the contrary – at the time and before this court – are without merit on their face. There is no defence on the merits in respect to the Building Materials Order and the Front Fence Order. Ms McDonald’s initial request for a hearing was one day out of time and was rejected by the Officer. However, this must be placed in context. Wainfleet Township is a rural area located on the north shore of Lake Erie, west of the Town of Port Colborne, with a population of 6,887 in the 2021 Census. As a matter of common sense, the Township does not have an army of by-law enforcement officers, and it is hardly surprising that the matter was addressed by the Officer initially, and in processing the follow-up paperwork. The Officer correctly determined that the request for a review was late, and there was no unfairness in his making this determination. Further, Ms McDonald has now had a hearing before this court, and any unfairness that could have resulted from being denied a review hearing has been cured by the hearing in this court.

27The application for judicial review is dismissed, with costs payable by Ms McDonald to the Township of $4,500, inclusive, payable within thirty days. These costs include costs related to matters referenced in the endorsement of Assessment Officer Horrocks dated October 29, 2025.

28We would direct the Township not to take further enforcement steps for twenty-one days from the date of this decision, to give Ms McDonald time to bring herself into compliance with the orders before facing further enforcement efforts. We would note, for Ms McDonald’s benefit, that the only recourse she has from this decision is a motion for leave to appeal to the Court of Appeal, and that this court’s decision is not stayed pending a leave decision by the Court of Appeal

unless that court orders otherwise: in the absence of a stay order from a judge of the Court of Appeal, the Township may resume enforcement efforts after the twenty-one day grace period ordered in this decision.