COURT FILE NO.: CV-23-00002991-0000 DATE: 2024-05-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Wolf RUCK Self-represented Applicant
- and -
City of Mississauga Daron L. Earthy, for the Respondent Respondent
HEARD: February 12th, 2024
REASONS FOR JUDGMENT
LEMAY J.
[1] The Applicant, Wolfgang Ruck, is a property owner and a resident in the City of Mississauga. He has been growing tall grasses and other plants, on his property. The Respondent, the City of Mississauga, has taken by-law enforcement action against the Applicant, cut the grasses on his property and added the costs of this work to his property tax bill. The Respondent engaged in all of these activities pursuant to its Nuisance Weed and Tall Grass Control By-law, By-law 0125-2017 (“the weed control by-law”).
[2] The Applicant brought this Application seeking to have the Respondent City of Mississauga’s Weed Control by-law declared both ultra vires and unconstitutional as an infringement of his right to free expression under section 2(b) of the Canadian Charter of Rights and Freedoms (“the Charter”).
[3] The Applicant argues that the Weed Control by-law was arbitrarily enacted, has been improperly and arbitrarily enforced and that it is interfering with his ability to express himself. The Applicant argues that, for reasons of biodiversity and climate change, he should be entitled to grow tall grasses and other plants on his property as a matter of protected expression.
[4] For the reasons that follow, the Applicant’s application is dismissed.
Background
a) The History of the By-law
[5] Originally, the Respondent addressed the control of tall grasses through the Weed Control Act, R.S.O. 1990, c. W.5. The Respondent enforced the removal of any noxious weed, as defined, as well as requiring residents to ensure that their grasses were kept at a height of no more than thirty (30) centimeters. However, in late 2002, the Ministry of Agriculture issued a directive stating that the Weed Control Act was designed to address noxious weeds on agricultural and horticultural lands.
[6] As a result, staff at the Respondent prepared a report for City Council in which they advised that a new regulatory by-law should be created and that it should use the existing language from the Property Standards by-law while incorporating the definitions from the Weed Control Act. This bylaw was duly passed in 2003.
[7] In 2017, the weed control by-law was repealed and replaced with a version with most of the same terms, but with a requirement that residents maintain the boulevards owned by the Respondent that were next to their properties. The only other change to the weed control by-law came shortly thereafter, when the municipality reduced the height of the grass from 30 to 20 centimeters and shortened the compliance times after Notices of Contravention had been served.
[8] The weed control by-law has two basic prohibitions, as follows:
a) A landowner must not permit grass to grow to a height greater than 20 centimeters; and b) A landowner must not permit certain plants other than grass to grow on their lands. The prohibited plants are specifically listed in Schedule “A” to the by-law.
[9] The purposes behind the current weed control by-law are set out in the weed control by-law. I would summarize those purposes as follows:
a) Reduce the allergic reactions or other health problems that nuisance weeds may cause; b) Reduce the disruption to ecological systems that nuisance weeds can cause; c) Reduce the risks to safety, and specifically fire safety, that tall grasses and nuisance weeds can cause; d) Reduce the risk that tall grasses and nuisance weeds may impair the sightlines of drivers; and e) Reduce the risk that the tall grasses and nuisance weeds will create habitats for mosquitoes, rodents or other insects and animals; and, f) Prevent tall grasses and nuisance weeds from contributing to neighborhood blight.
[10] The weed control by-law is enforced by Municipal Law Enforcement Officers (“MLEO’s”). They respond to complaints that are either provided through the Respondent’s 311 line or through complaints or issues raised by City Councilors.
b) The Enforcement of the Weed Control By-Law in This Case
[11] The Applicant owns a detached home on a residential street near Dixie Road and the Queen Elizabeth Way. Photographs of the property were provided and there is a sizeable yard at the front of the property.
[12] In 2021, complaints were received about the Applicant’s property. The Respondent’s materials indicate that names of complainants are not disclosed in order to protect confidentiality. The Applicant argues that this lack of disclosure permits bad faith complaints to be made. I will return to this issue below.
[13] In 2021, there were complaints and MLEO’s from the Respondent visited the property. However, no enforcement action was taken. The Applicant argues that this lack of enforcement was as a result of agreements he made with the Respondent’s MLEO’s in 2021. It is not necessary for me to resolve that issue as, even if an MLEO advised that they were not going to enforce a by-law in particular circumstances in a specific year, it would not bind the next MLEO who considered the state of the Applicant’s property in a subsequent year.
[14] In 2022, complaints were once again made about the Applicant’s property. This year, remediation of the Applicant’s property was done in order to bring it into compliance with the by-law. The Applicant served a trespass notice on the MLEO’s who came onto his property to inspect it.
[15] In 2023, further complaints were made and further remediation work was done by the Respondent. The timing of this work was complicated by the fact that the Applicant’s judicial review application was outstanding. However, in the end, the vegetation on the Applicant’s property was brought into compliance with the weed control by-law.
c) The Procedural History
[16] The Applicant brought an application for Judicial Review of the Respondent’s decision to cut the grass and remove the weeds on his lawn on May 9th, 2023. This Application sought an injunction against the Respondent to prevent the Respondent from engaging in enforcement of the Weed Control by-law as well as a declaration that the Weed Control by-law was unconstitutional.
[17] At a case conference on June 21st, 2023, Emery J. advised the parties that it appeared that Rule 2.1.01 of the Rules of Civil Procedure applied to the Application, as it appeared to be frivolous, vexatious or an abuse of process on its face. After receiving submissions on this point, Emery J. concluded that this Application was an abuse of process as it was brought in the wrong forum. Emery J. noted that the application should proceed as an application in the Superior Court. He specifically noted that proceeding in the Superior Court would permit the development of a record and might allow for conflicting evidence to be weighed and considered.
[18] The Applicant issued his Application in Superior Court on August 21st, 2023. There were a number of amendments to the Application that were made over the next few months. On January 9th, 2024, Tzimas J. scheduled the Application for hearing. At that time, the parties advised her that all of the materials had been exchanged. The matter was duly heard before me on February 12th, 2024.
The Evidence
[19] The evidence that I had before me included an Affidavit from the Respondent. It was sworn by Blaine Williamson, an MLEO employed by the Respondent. Mr. Williamson was personally involved in some of the enforcement of the weed control by-law at the Applicant’s property. He was not cross-examined on any of the evidence he provided.
[20] The Applicant provided a significant volume of materials, including scientific and ecological articles, newspaper reports, blog posts and studies from governmental and non-governmental organizations. He did not provide any Affidavit evidence from anyone about the scientific basis for his position that the plants in his yard were better for the environment and climate change than having a grass lawn, although there are various articles that outline these points.
[21] The Respondent has objected to the Court considering the bulk of this evidence. The Respondent argues that I cannot take judicial notice of most of this evidence, as the test for judicial notice is not met. The test for judicial notice is set out in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 48-49. Judicial can be taken of facts that are:
a) So notorious or generally accepted as not to be the subject of debate among reasonable persons; or b) Capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
[22] The problem with the bulk of the evidence that the Applicant has filed is that it does not meet either of those criteria, and it is not presented in the form of a proper Affidavit, or through an expert witness who can be cross-examined. A couple of examples of the problems will suffice to illustrate my concerns:
a) Some of the articles, such as one entitled “I Didn’t Cut My Suburban Lawn All Summer- Here’s Why” are pieces from newspapers, blogs or other sources that are not peer-reviewed or footnoted. They do not provide any scientific basis to support the Applicant’s position. b) While there some articles with some scientific and academic connection, such as ones from Science Line- A Project of New York University’s science, health and environmental reporting program, there is no indication that any of these studies or articles are peer reviewed or have otherwise been scientifically evaluated. c) There are also some reports prepared by Non-Governmental Organizations and the United Nations. Again, however, there is nothing in these articles to show that they are either peer-reviewed or otherwise scientifically sound.
[23] In addition to my concerns about the lack of scientific rigour in the materials that the Applicant has presented, there is no expert or other evidence to support the points in these journal entries. As a result, there is no basis to test the veracity of the assertions made by the various authors of these articles. In the absence of this evidentiary foundation, news articles and other similar documents are generally inadmissible. See Public School Boards Association of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para. 14 and the discussion in Moffitt v. T.D. Canada Trust, 2021 ONSC 6133 at paras. 255-260.
[24] These concerns should not come as a surprise to the Applicant, as the Respondent raised issues about the nature of the Applicant’s materials with him on a number of previous occasions.
[25] For these reasons, I have determined that the bulk of the evidence sought to be relied upon by the Applicant is not properly admissible before the Court.
[26] However, the Respondent, quite reasonably, has agreed that the correspondence between the parties can be relied upon in my deliberations. It has also agreed that I may take judicial notice of the following generally accepted propositions as they relate to “pollinator friendly” gardening practices:
a) Native pollinators (mainly bees butterflies and moths) are best suited to pollinate native plants, with which they co-evolved; b) The decline in native pollinator species due to climate change, habitat loss and pesticide overexposure threatens ecosystems and food security; and c) Individuals can support native pollinators by planting native flowering plants and recommended non-native flowering plants, mainly wildflowers and certain types of native flowering trees.
[27] With this background in mind, I will now turn and address the issues raised by the Applicant.
Issues
[28] The Applicant’s factum has raised a host of reasons as to why the weed control by-law should be struck down. It is helpful to divide those issues into two separate categories, as follows:
a) Whether the weed control by-law, and its’ application to the Applicant, infringe his right to free expression under section 2(b) of the Charter. b) Whether the application of the weed control by-law to the Applicant’s circumstances was a breach of principles of administrative law or natural justice.
[29] I will deal with each issue in turn. Before beginning, however, I should note that the authority of the Respondent to pass a by-law of this nature is not challenged in this proceeding. It is only the constitutionality of the weed control by-law that is being challenged by the Applicant.
Issue #1- Is The Weed Control By-Law Unconstitutional?
[30] I should note that the Applicant’s materials briefly reference section 2(a) of the Charter, which is the section that provides for the right to freedom of conscience and religion. However, there was no other mention of any violation of this section in argument, and the facts of this case do not support a violation of section 2(a) of the Charter. I will not consider this issue further.
[31] As a result, I will focus my analysis on the question of whether there is a violation of section 2(b) of the Charter that renders the weed control by-law unconstitutional. Answering this question requires me to consider whether there is a violation of section 2(b) of the Charter and, if so, whether that violation is saved under section 1. I will deal with each issue separately.
a) Section 2(b)
[32] The Respondent has conceded that there is a violation of section 2(b) of the Charter, and I agree with this concession. However, it is important to briefly set out the test for a violation of section 2(b) and identify where the weed control by-law runs afoul of the section. That analysis is helpful in framing the dispute between the parties.
[33] The test for whether there is a violation of section 2(b) was first articulated in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. It requires a two-step analysis:
a) Determining whether the Applicant’s activity is within the sphere of conduct protected by freedom of expression. b) Determining whether the purpose or effect of the governmental action was to restrict freedom of expression.
[34] Expression has a very broad meaning. As noted in Irwin Toy, “activity is expressive if it attempts to convey meaning.” In Bell v. Toronto (City), 1996 Carswell Ont 3416, [1996] O.J. No. 3146 (Ont. Prov. Div.), the Court considered a claim that the restrictions in the City of Toronto’s housing by-law in respect of weeds and other noxious plants was unconstitutional. In that decision, the Court concluded that a garden was a form of expression. Although this is a provincial court decision and not binding on me, I accept the conclusion. I also note that it is the type of expression that is intended to be protected by section 2(b).
[35] This brings me to the second part of the test, which is whether the purpose or effect of the governmental action was to restrict freedom of expression. In this case, the purpose of the weed control by-law (as set out at paragraph 9 above) is to ameliorate the harmful effects of weeds and tall grasses. It is a “meritorious” purpose, and not designed to stifle expression. Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084.
[36] However, the effect of the weed control by-law, when it is enforced, is to prevent the Applicant from expressing himself in the manner that he chooses. As a result, the weed control by-law has the effect of violating his rights under section 2(b) of the Charter.
b) Section 1
[37] The question then becomes whether the violation of the Charter is saved under section 1. The onus is on the Respondent to satisfy me that the violation is saved under section 1. This requires me to consider the elements of the test set out in R. v. Oakes, [1986] 1 S.C.R. 103. That test is:
a) Are the concerns sought to be addressed by the by-law “pressing and substantial”? b) If so, then a proportionality analysis is undertaken, asking whether the measure is rationally connected to the objective, whether it impairs the right to freedom of expression as minimally as possible and are proportionate in that the benefits outweigh the deleterious effects of the restriction.
[38] In Peterborough, supra, the Court found that a by-law prohibiting postering on all public property had the pressing and substantial objective of “avoiding littering, aesthetic blight and hazards to persons engaged in the repair and maintenance of utility poles.”
[39] In this case, I accept that the weed control by-law has the pressing and substantial objectives of, inter alia, protecting residents from noxious weeds and protecting residents from the risks of fire and other accidents associated with tall grasses. I also accept that the weed control by-law is rationally connected to those objectives.
[40] This brings me to the question of whether the weed control by-law is minimally impairing. I start with the observation that it will be easier to justify a restriction on the time, place or manner of expression under this branch of the test than it will be to justify a blanket prohibition on expression. Peterborough, supra.
[41] In this case, the restrictions on the plants that the Applicant is permitted to grow are limited rather than being total. I start with the noxious weeds. Those are specifically listed in Schedule “A” of the weed control by-law, and there is no evidence before me to suggest that the specific prohibitions are, in any way, unreasonable. This brings me to the grasses. Again, there is no restriction on the types of grasses that can be grown. There is, however, a restriction on the height of those grasses. Again, however, this is a limitation and not a total prohibition.
[42] This differentiates the weed control by-law before me from the one that was challenged in Bell. In that case, the Court was faced with a by-law that banned “excessive growth of weeds and grasses.” That by-law was found to be void for vagueness as well as being unconstitutional because it put a total ban on the expressive content of Ms. Bell’s garden. In the case before me, the types of weeds are specifically listed, the prohibited weeds have been selected for a specific reason, and it is only grasses that have a height restriction. It is difficult to see how the weed control by-law could have been written in a more targeted way than it was.
[43] In any event however, in order to satisfy the minimal impairment branch of the Oakes test, the Respondent is not required to pursue the least drastic measure. They must pursue a measure that falls within a range of reasonable alternatives. Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3. In this case, the weed control by-law is sufficiently targeted as to be within the range of reasonable alternatives. As a result, I find that the by-law satisfies the minimally impairing branch of the test.
[44] This brings me to the weighing of the benefits and deleterious effects of the by-law. The benefits are related to the purposes, which are set out at paragraph 9. These are significant benefits for significant portions of the Respondent’s residents, especially in respect of the issues of safety and health. The deleterious effects of the by-law are that individuals, including the Applicant, cannot express themselves through their gardens in precisely the manner that they wish.
[45] The fact that the Applicant cannot grow precisely what he wants to grow in his front lawn does not mean that the by-law is not Charter compliant. The Applicant has stated that he wants a naturalized garden that attracts pollinators. I accept that planting gardens that encourage pollinators has advantages to the ecosystem generally (see paragraph 26 above). However, the Respondent’s by-law limits the plants the Applicant can choose to create that garden. It does not prohibit him from creating the garden. As a result, I find the benefits of the by-law outweigh its’ deleterious effects.
[46] For these reasons, I find that the Respondent’s weed control by-law does not violate the Charter.
Issue #2- Other Grounds for Relief
[47] Having determined that the weed control by-law is Charter compliant, there are two other groups of issues that the Applicant has raised that must be addressed: the training and qualifications of the by-law officers and the allegedly improper enforcement of the by-law. I will deal with each issue in turn.
a) Allegedly Improper Training
[48] The Applicant alleges that the Respondent does not have a weed inspector appointed under the Weed Control Act, R.S.O. 1990, c. W.5. He claims that the absence of a qualified inspector under the Weed Control Act renders the weed control by-law void. He also claims that the inspectors who perform the inspections are not properly trained and failed to identify the proper weeds for removal.
[49] The first issue can be dealt with summarily. The weed control by-law does not derive its’ authority from the Weed Control Act. It is enacted pursuant to the Respondent’s powers under the Municipal Act, 2001, S.O. 2001, c. 25. In addition, as I have described at paragraph 5 above, the municipality does not have the authority to enforce the Weed Control Act. Instead, it passed its own weed control by-law. Therefore, the fact that there is no inspector appointed under the Weed Control Act does not mean that the Respondent cannot enforce its own by-law.
[50] The claim that the Respondent’s staff is not properly trained in the identification of the weeds that need to be removed can also be disposed of briefly. There is no Affidavit evidence on which I can find that particular plants were improperly removed. As a result, there is no merit to this submission either. Even if there were an issue in terms of specific plants being improperly removed, that would not render the weed control by-law unconstitutional or otherwise unenforceable.
[51] I also note that part of the reason that the Applicant advances this submission is because he is of the view that one of the plants, the “sow thistle” is improperly on the list in the weed control by-law. The selection of weeds to be covered by the weed control by-law is a matter of legislative choice for the Respondent and, in the absence of expert evidence to explain why this choice is wrong, I am not prepared to even consider interfering with the Respondent’s choices.
b) Alleged Improper Enforcement of the By-Law
[52] The Applicant has raised a number of concerns with the weed control by-law. I have dealt with many of those concerns in my analysis of the constitutional issue. I should briefly address three specific issues:
a) Does the fact that the Respondent is enforcing anonymous complaints affect the validity of either the weed control by-law or the decisions made under it? b) Were the MLEO’s required to obtain a search warrant before entering onto the Applicant’s property? c) Is the weed control by-law void because it does not have the same appeals process as the Weed Control Act?
[53] The Applicant claims that the Respondent is improperly enforcing the weed control by-law because they are basing their enforcement decisions on anonymous complaints. There is nothing wrong with a complaints-based enforcement system. The fact that the Applicant’s neighbours think that he is “lazy” for not mowing his lawn, or otherwise do not like his choices in plants, does not change the fact that they are contrary to the weed control by-law. Put another way, the fact that the enforcement system is based on anonymous complaints does not make it arbitrary. It also does not found a claim that the Applicant is being discriminated against. The MLEO still has to attend the property and determine whether there is an actual violation. The Applicant’s argument on this point has no merit.
[54] The Applicant also complains that the MLEO’s entered onto his property without a search warrant. This argument is also without merit. Section 436 of the Municipal Act, 2001 gives the municipality the power to pass a by-law authorizing the MLEO’s to enter onto the Applicant’s property for determining compliance with the by-law. As a result, the MLEO’s did not need to obtain a warrant to enter onto the Applicant’s property. It follows that the Applicant’s notices of trespass had no legal effect, as the MLEO’s had entered onto his property with legal authority to do so.
[55] The Applicant’s concern that the weed control by-law does not have the same appeal process as the Weed Control Act can also be dealt with summarily. There is no obligation at law to have the same appeals process in a different statutory regime. Given that the Applicant has been able to fully argue the issues he has raised in this case, I see no basis for any complaints of a breach of procedural fairness.
[56] For these reasons, the other claims advanced by the Applicant are also dismissed.
Conclusion and Costs
[57] For the foregoing reasons, the Applicant’s application is dismissed. The result of that dismissal is that the removal of weeds and other remediation carried out at the Applicant’s property was within the authority of the Respondent and was done in accordance with the law. The Applicant is also required to pay the additional amounts owing on his property taxes. If there are any issues in respect of the remedy that flows from my finding, I may be spoken to.
[58] The parties are encouraged to agree on the costs of the application. Failing agreement, the Respondent is to serve, file and upload its costs submissions within fourteen (14) calendar days of the release of these reasons. Those submissions are to be no more than three (3) single-spaced pages exclusive of bills of costs, offers to settle and case-law.
[59] The Applicant, recognizing that he is self-represented, shall have a further twenty-one (21) days to serve, file and upload his costs submissions. Those submissions are also to be no more than three single-spaced pages exclusive of bills of costs, offers to settle and case-law.
[60] The parties are also required to provide my judicial assistant with a copy of their submissions by email. She can be reached at susan.pickels@ontario.ca. All methods of service are required.
[61] There are to be no reply submissions without my leave. The time-limits for costs submissions cannot be extended, even on consent, without my leave. If I do not receive costs submissions within the timelines set out above, there shall be no order as to costs.
LEMAY J.
Released: May 2, 2024