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April 2010 - Tall Grass & Weeds Part 1 - Chapter 489

Chapter 489 of the Municipal Code is enforced to make sure of it! The City has gone ultra vires on us! Sounds serious! Is it contagious? You be the Judge.
" a plant is perceived is largely dictated by circumstance and personal opinion. Identifying plants as weeds is not however, simply a whimsical act on the part of an individual. When you think about it, the ability of experts to use the term and be understood, to name and list species widely regarded as weeds, and ultimately officially proscribe plants through noxious-weed bylaws implies that many people within a particular society share similar views on the identity of weeds. Suggesting that not all plants are equally regarded as weeds accords well with common sense. It is also supported with the observation that out of the whole world's flora, only a very tiny fraction, probably amounting to a few hundred species, is composed of weeds."
Clinton Lorne Evans, The War on Weeds in the Prairie West: an Environmental History, University of Calgary Press, 2002
To bring you up to speed, The Scoop provides some background on the provincial Weed Control Act and how it is interpreted and administered by the City of Toronto. This is really a story about urban gardening and putting the urban garden in context of the provincial weed laws. However, The City has a much different interpretation. And, aesthetically, "it ain't pretty".
Many questions arise, as you will see. Is the Corporation of the City of Toronto acting above the Law? You be the Judge. We will introduce a term used by The Honourable Justice David A. Fairgrieve, the Ontario Court of Justice (Provincial Division), in the case of Bell v. Toronto (City) [1996] O.J. No. 3146 - ultra vires. It is Latin for "beyond powers", i.e., acts beyond the legal power or authority of a person or corporation; invalid excess of authority. Since the powers exercised by any officer of an organization are limited by the constituting instrument, any act outside those limitations is ultra vires and may be challenged in the courts. The Scoop will alert you to the potential power trip by an entity, by questioning "ultra vires?" As you will see, the words will pop up like weeds...all over the place...simultaneously.
History of Weed Control in Ontario
Weed control legislation has had a long history in Ontario. The common field thistle or Canada thistle, Cirsium arvense, flourished to such an extent that it had acquired the name of its adopted country. Local agriculturalists tended to blame the weeds for the problems they posed while downplaying the fact that they were largely responsible for the creation and maintenance of a weed problem in the first place.
James Elliot, a farmer from King Township, proclaimed 1863 "a year of weeds" on the basis of the infested state of farms in the vicinity of Toronto. The Canadian Agriculturalist ran an editorial on the weed menace under the title "WAR AGAINST THE THISTLES". The subject of the editorial was to agitate for stricter anti-weed measures with the introduction to the Assembly of a bill aimed at preventing the spreading of thistles, which bore fruit under the Canada Thistle Act of Upper Canada in 1865. It was the first act solely introduced to curb weeds. It was also the first noxious weed act in British North America and it effectively established a foundation and pattern for subsequent weed legislation in Ontario and the Prairie West (Evans, 2002).
Our present day version of legislation aimed at controlling noxious weeds is the Weed Control Act (Ont.) (R.S.O. 1990, CHAPTER W.5). In general terms, the definition of noxious: harmful to living things; injurious to health. Environment Canada states that 'noxious weed' is not defined in relation to effects caused. Plants or seeds are defined as noxious weeds by virtue of being listed in the regulations under the Weed Act. OMAFRA (Ontario Ministry of Agriculture, Food & Rural Affairs) administers The Weed Control Act (Ont.) and lists 24 plants as noxious. In the Act, no distinction is made between native and alien weed species.
Municipal governments have been given the power to enact their own weed laws and to list species as noxious weeds within their jurisdiction through bylaws. These bylaws must be approved by the Minister of OMAFRA. As well, the Minister may, typically with assistance from a provincial advisory council, make recommendations for species listing covering the province as a whole or with respect to particular portions of it. Typically these recommendations concerning species listing are then passed on to the Lieutenant-Governor in Council for final approval. Ultimately, since the Minister responsible for the Act has the power to effect changes in the regulations, they also could use this power to exempt persons and land from the Act.
The Weed Control Act states that all property owners are responsible for destroying noxious weeds on their property unless the weeds or weed seeds are deemed by the Weed Inspector to be far enough away from any land used for agricultural or horticultural purposes that they do not interfere with that use.
While milkweed is listed, only control of common milkweed (Asclepias syriaca) is enforced under the Act, and only if the population is negatively affecting commercial agriculture or horticulture production. According to Dr. Stephen Murphy (Professor & Associate Chair of Undergraduate Studies for Environment and Resource Studies University of Waterloo, Chair, Society for Ecological Restoration Ontario) even farmers don't consider common milkweed a threat anymore. The other eight native species are not common and many are very rare (Dr. Murphy hinted that the status of swamp milkweed will be changed soon). Since the OMAFRA website has not been updated since 2006, The Scoop checked the USDA site which lists 12 species of native milkweeds in our area. Three of four introduced species are invasive: dog strangling vine (DSV) or black swallow-wort (Cynanchum nigrum)=Louise's swallow-wort (C. louiseae), European swallow-wort (C. rossicum), and white or pale swallow-wort (C. vincetoxicum). Honeyvine (C. laeve) which is native to the U.S., is not classified as invasive. Dr. Murphy also mentioned that a committee is looking into revising the noxious weed list. We can only hope that it will result in a more restrictive list with native milkweeds dropped from the noxious weed list; leaving only non-native milkweeds, and that it will be more inclusive by adding other non-native, highly invasive species that need to be controlled (Murphy's Law?).
Municipalities have been given the power to appoint inspectors for enforcement. According to Environment Canada, they concentrate on situations where agricultural or horticultural interests are seriously threatened by the proliferation of weeds. The Minister of Agriculture and Food for the Province of Ontario must be notified by April 1 of each year of the names of the Municipal Weed Inspectors; however, additions to the list may be made afterwards, but within seven days after passing a bylaw for the appointment.
Weed Inspectors have the authority to enter any lands and any building other than a dwelling, and if they can't obtain access, they can apply for a warrant. If a property owner fails to comply with the Act, the Weed Inspector may have the weeds destroyed and charge the costs against the land in taxes. But before they can destroy weeds, they have to publish a notice of intent in a local newspaper.
The General Regulation for the Weed Control Act, R.R.O. 1990, REGULATION 1096, is translated from the original French. It includes under Section 5: "(b) that the inspector does not cause damage to the property more than is necessary for or incidental to entering upon lands and transporting the equipment used in the destruction of the noxious weeds; and (c) that in the destruction of noxious weeds in a growing crop, the inspector does not cause greater damage to the crop than is necessary for the economical and effective destruction of the noxious weeds."
The Scoop Acts Up
Location, location, location - it all depends on where you live. The Act does not apply if you live far enough away from any land where noxious weeds will interfere with agricultural or horticultural purposes. The Scoop is unsure of the meaning of the vague term "far enough away". It sounds like a movie title, or something out of Star Wars, so presumably most areas in the City of Toronto are exempt (City Hall is a different story). It is doubtful if this term, "far enough away" would stand up in a court of law, but the way things are going, another favourable ruling on our part will incur yet another snub from the municipal government along the lines of Bell v. Toronto (City).
The Scoop is also unsure of the activities falling under agricultural and horticultural practices. Some interpret it as strictly commercial enterprises. The feds at Environment Canada have a broader interpretation of the Weed Act to support the control of plant species affecting other horticultural practices such as lawn maintenance and research, as well as recreational land uses, and those affecting environmental integrity, e.g., purple loosestrife (Lythrum salicaria) which is not listed provincially in Ontario, but is listed by many sub-jurisdictions. In this interpretation, that would mean golf courses, parks and ravines are covered. Would it also include residential lawns and vegetable gardens? But the fact that Regulation 1096 uses the word "crop" reinforces the fact that the intent of the Weed Control Act is to only control weeds in areas with commercial agriculture and horticulture propagation. Nobody goes around asking you how your crop of Kentucky blue grass is doing this year. They ask you how your lawn is doing.
This may be the most contentious part of the legislation. Under the Weed Act, Section 10, a municipal council that has appointed a Municipal Weed Inspector may designate as a local weed, any plant that is not a noxious weed. Yes, you read it right! ANY PLANT! So a municipality like the City of Toronto, through a bylaw, can declare any plant as a 'local weed', which becomes a noxious weed to the Local Weed Inspector. But the bylaw does not take effect unless it is approved by the Minister.
The Scoop translation: some weeds are declared 'noxious'; some are declared 'local'. So, with the popularity of the local food movement, locavores, thinking globally but buying locally, etc., shouldn't local weed=good weed? How about changing it to sub-noxious weed, to show the status of municipalities with respect to the province? Hmmm ... the City of Toronto would not be pleased.
It is difficult to believe a few weeds on a homeowner's property are a serious threat to the integrity of an entire city. Do weedy properties beget weedy characters or vice-versa? The Ontario government has given local weed inspectors much room for discretion, perhaps naively assuming that municipalities would be mature enough to handle the task. While most municipalities list their rules regarding grass and weeds in a Property Standards bylaw, a small minority, like Toronto, list it in more than one bylaw. Just for good measure, Toronto overprescribes bylaws to have vegetation control in several places: Chapter 629 (11), Property Standards, Chapter 918 (23), Parking on Residential Front Yards and Boulevards, and a stand-alone by-law, Chapter 489, Grass and Weeds... which brings us to ...
Toronto and the War on Weeds
The Scoop could not afford the time at the present to trot down to the City archives to search through the paper archives, so we found a search tool on the City of Toronto website. It has proven a most invaluable source to get a handle on the evolution of the bylaws. However, we still need to make a trip to check details of certain bylaws and clear up some questions.
Toronto has a long history of worrying about weeds. The Scoop dug up a record from 1875, involving the local board of health to amend bylaw No. 629 (precursor to the modern day version of Chapter 629, Property Standards?), relative to the removal of grass and weeds from the streets and lanes of the City. It's hard to believe that weed control would have had the same priority as dealing with malaria, dysentery, cholera, small pox, and other maladies that afflicted the residents at that time. But then again, we are talking about uptight Toronto. And as no one learns from history, it tends to repeat. Fast forward to modern times, when SARS and H1N1 probably didn't put much of a dent in business at ML&S, either.
Various other noxious weeds, i.e., local weeds, were described over time in Toronto in 1903 (R.S.O. 1897, Chapter 279), 1921 and 1923 (R.S.O. 1914, Chapter 253), in the Township of Scarborough in 1936 (?) and 1940 (R.S.O. 1937, Chapter 344), and in the Township of North York in 1942. Except for a 1942 entry (see Scoop section on Goldenrod), the information on the types of weeds is not posted in the online archives, which necessitates a physical trip to the City archives in the future. None of these bylaws had the required approval by the province and all of them have been repealed since. However, The Scoop doubts that any of the weeds described in the older bylaws would be a relevant threat today given the extent of urbanization and the reach of the 'far enough away' clause.
In 1968, the City of Toronto passed Bylaw No. 73-68 (1968-0073), entitled "A ByLaw to provide standards of repair and maintenance of dwellings and to prevent overcrowding of dwellings". Under the heading – 'Standards, Rubbish,' Section 7 reads as follows: All parts of a dwelling, including the yards appurtenant thereto, shall be kept clean and free from (c) excessive growths of weeds and grass.
In 1990, Etobicoke adopted Chapter 167 of the Municipal Code, Cutting of Long Grass, a bylaw to require the owners or occupants of private property to cut grass and weeds on their land and to remove the cuttings.
In 1991, purple loosestrife (Lythrum salicaria) was declared a local weed (bylaw 1991-0608), on order from OMAFRA under Article II of Chapter 202. (The bylaw was repealed and re-enacted in 1994, to reflect the proposed Municipal Code Chapter 346, Weeds).
In 1994, Toronto enacted Bylaw 0440, Chapter 202, of the Toronto Municipal Code, Grass and Weeds – a stand-alone bylaw to provide for the cutting of grass and weeds by the owners and occupants of private lands. Bylaw 0441 amended the housing standard bylaw from 1968 (1968-0073) to take out the clause pertaining to excessive growths of weeds and grass.
In 1995, on an order from OMAFRA, Chapter 202 was amended by inserting Chapter 346, Weeds as Article II.
Toronto gardener, Ms. Sandy Bell, took the City to provincial court in 1996 to defend her right to garden. She evoked the Freedom of Expression clause in the Canadian Charter of Rights and Freedoms, to express her environmental beliefs through the planting of a natural garden on her private property. The win was precedent setting - the first time in Canada that environmental beliefs were recognized as a Charter-protected form of expression.
Due to the successful ruling Bell v. Toronto (City), in 1997, bylaws were enacted to amend Toronto Municipal Code, Chapter 202, Grass and Weeds to create an exemption for Natural Gardens (Bylaw 1997-0037) and to designate the Neighbourhoods Committee as the appropriate committee for hearing appeals from a notice to cut long grass or weeds (Bylaw 1997-0204).
Amalgamation Station – the big derailment
In 1998, at the time of amalgamation, a report of the Emergency and Protective Services Committee to devise a way to handle the appointment of Weed Inspectors was presented to Council. Responsibility for the program of administering noxious weed control had been vested with different departments. North York, York and East York administered the program through their Parks and Recreation Departments. Toronto divided responsibility for the Act's enforcement between their Building Inspectors and Parks and Recreation staff. In Scarborough, Works Department handled the task. Etobicoke had recently transferred responsibility for the program from Works Department to Urban Development. The Metro Parks and Property Department had been responsible for the eradication of noxious weeds on their own property, but had not appointed formal Weed Inspectors to inspect and control noxious weeds on property other than their own.
Presently, inspectors are divided up between the four sectors and corresponding Community Councils of the City: Toronto-East York (south Toronto), Etobicoke-York (west Toronto), Scarborough (east Toronto), and North York (north Toronto).
The Scoop has figured out where the City really blew it and went off track. Instead of taking the time to read and interpret the Weed Control Act carefully, they hastily ratified their amalgamated version, possibly from one or more flawed versions from the old city municipalities. When reviewing the bylaws, the City invariably adopted the most rigorous one that protected health and safety, e.g., under Property Standards, ARTICLE III General Duties and Obligations 629-8: Higher standard. "If there is a conflict between a provision in this chapter and a provision of any other City by-law, the provision that establishes the highest standard to protect the health, safety and welfare of the general public prevails."
In one section of the report: Emergency and Protective Services Report No. 5, they refer to the municipalities taking "appropriate action to control the spread of noxious weed species which may cause injury to human health or damage to adjacent properties." Further, they acknowledged that most property owners maintain their lands to prevent "these kinds of weed species and problems from becoming established. Where this level of maintenance is not provided and noxious weeds become established, the City has the authority to eradicate them and prevent potential harm to neighbouring residents." If you recall in the Weed Act, enforcement is only valid when noxious weeds are close to commercial horticultural or agricultural activities. The City has interpreted the clause in the Weed Act by inferring the potential for damage to all nearby properties. Ultra vires?
However, the City might try to wiggle out of it with their interpretation under Rule of liberal interpretation City of Toronto Act, 2006, c. 21, Sched. F, s. 64 (1): "An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects." 'Liberal' interpretation? Not likely with the current regime, even if it is supposedly a non-partisan government. Besides, The Scoop thinks the City should not be permitted such liberty of largesse in interpreting laws, as they don't allow the same for their citizens that they supposedly represent.
The folks in the Counties of Lennox & Addington in Ontario, near Napanee, appear to have the correct interpretation: "In practical terms this interpretation means that in most instances the Act will not be enforced in urban or suburban areas or where a commercial agricultural or horticultural operation is not likely to be affected by noxious weeds. Section 22 of the Act allows the Weed Inspector to exercise considerable judgement when enforcing the Act. It provides that noxious weeds or weed seeds that are far enough away from any land used for agricultural or horticultural purposes that they do not interfere with that use do not have to be destroyed." From the public notice: "... this excludes lawns, gardens and private areas for personal enjoyment and leisure."
Our smaller towns could show the big city a thing or two.
Weed Control Enforcement
In 1849, municipalities acquired the right to pass bylaws for "destroying or suppressing the growth of weeds detrimental to good husbandry." But weed eradication bylaws were poorly publicized and poorly enforced. The 'Overseers of the Highways' in each municipality were the first Weed Inspectors at the time of The Canada Thistle Act in 1865 (Evans, 2002).
Weed Inspectors are appointed by bylaws. Bylaws appointing Weed Inspectors in Toronto date back to at least 1912 with Bylaw No. 6189 under The Noxious Weeds Act, (2 GEORGE V). Two years after incorporation, the Village of Forest Hill enacted bylaws in 1925 to appoint Weed Inspectors and to prevent the growth of thistles and weeds (they were annexed to the City of Toronto in 1967). In 1927, the Townships of Scarborough and North York enacted their first bylaws to appoint Weed Inspectors. Fifty years later, East York started enacting bylaws in 1967 (when Leaside was annexed to East York). Etobicoke followed in 1988.
Up until amalgamation, in total, Toronto enacted 16 bylaws to appoint Weed Inspectors over 65 years while Forest Hill passed 7 over its short 36 years. East York passed 13 bylaws in 30 years and Etobicoke had 5 in its short span of 9 years. North York enacted only 7 appointments in 70 years, but Scarborough had an astounding 43 bylaws for appointing Weed Inspectors over the same time period! The Scoop thinks the "excessive" turnover of Weed Inspectors in Scarborough was due to the arduous task of patrolling vast, forbidding wastelands that drove the inspectors to despair, and subsequently gave rise to the legendary name for the area: Scarberia.
In the year of amalgamation, Bylaw 1998-0308 was enacted and repealed the old bylaws: City of Toronto (1997-0205), Borough of East York (1995-0011), City of Etobicoke (1993-0048, 1996-0005), City of York (1997-3439), City of Scarborough (24763). All of the former municipalities (Toronto, East York, York, Etobicoke and Scarborough) appointed their Weed Inspectors on an indefinite basis, sending in revisions to the provincial government on an as needed basis. North York appointed Weed Inspectors on an annual basis and sent the list in yearly to the provincial government. Report No. 5 indicated that North York would eventually follow the protocol of the other former municipalities. (Actually, The Scoop thinks they made a mistake here – they probably meant North York had a perennial list of weed inspectors like the others, and Scarborough had an annual crop of weed inspector appointments. That would explain the large number of bylaws for Scarborough compared with the others. The Scarberia Theory still holds). In 1998, there were 13 Weed Inspectors listed representing the old municipalities.
Ten years after the enactment of the bylaws for Natural Garden exemptions and the Neighbourhood Committees for appeals, the City enacted Bylaw 427-2007 to hand the processing of appointments of Weed Inspectors over to Parks, Forestry & Recreation. Municipal Code Chapter 169, Officials, City (169-41) was amended to make the General Manager of Parks, Forestry and Recreation responsible for monitoring the need for changes to the City's area weed inspector appointments made by by-law under the Weed Control Act.
In 2009, there were five municipal Weed Inspectors listed for Toronto to cover the four areas: David Chapman for Toronto/East York, Helen Sousa for Etobicoke/York, Nancy Lowes and Doug Smith for Scarborough, and Jamie Warren for North York. Only two are leftovers from the 1998 bylaw appointment. The present configuration of five has been appointed since 2007. The Scoop wonders if the list is accurate or up-to-date. Ultra vires? (Why does Scarborough get two appointments? Safety in numbers in the Wilds of Scarberia?)
On the enforcement front, under the Weed Control Act, s. 16 (2), notice of intention to destroy weeds is supposed to be published in a local newspaper. The City of Stratford, among others, publishes it as a broad statement. Supposedly, each former municipality in Toronto published its own notice to destroy weeds. Report (No. 5) proposed that the amalgamated Toronto would follow the same protocol: "to publish an advertisement (Appendix II) in the Toronto Star giving notice to all owners and occupants of subdivided land in the new City of Toronto that unless the noxious weeds are destroyed by June 1, 1998, the Weed Inspector shall cause the said noxious weeds to be destroyed in a manner he/she may deem proper." Also, they were going to list the names of the Weed Inspectors for each District in the ad. That was then, this is now. The Scoop wonders if the City has kept up their legal obligation to advertise their annual notice to destroy noxious weeds in the Toronto Star since. Or, are they just going to issue an on-line press release (not a notice) and let the newspapers pick up the information at will? (see ML&S Press Release item below). But are notices supposed to be published in the newspaper as an annual reminder to everyone? And aren't the directives supposed to be officially published notices? Ultra vires?
The more the merrier – Chapters 629, 918, and 489 (the latest incarnation of a grass and weeds code)
In 2004, Bylaw 2004-0255 was enacted to adopt a new City of Toronto Municipal Code Chapter 489, Grass and Weeds and to repeal the tall grass and weeds bylaws of the former municipalities, i.e., The former City of Toronto Municipal Code Chapter 202, Grass and Weeds, Code of the Corporation of the City of Etobicoke Chapter 167, Cutting of Long Grass, and the City of York Municipal Code Chapter 803, Grass and Weeds.
Why does Toronto think it needs to embed restrictions on grass and weeds in so many bylaws, as a constant reminder?
The Municipal Code, Chapter 629 (11), Property Standards, Landscaping, drainage and grading covers all manner of vegetation, specifically that which they consider to be overgrown, dead, diseased, decayed or damaged. Grass cannot be over 20 cm in height and yards are to be free of heavy undergrowth and weeds. Most definitions of 'heavy' pertain to weight. Perhaps they are referring to 'dense' undergrowth. But either way, it is vague if not quantified. Ultra vires? The case of Bell v. Toronto (City) covered the issue. Weeds are not defined in Chapter 629. Ultra vires? Is this why Chapter 489 is needed? That ML&S does not have the authority to remove noxious weeds under Chapter 629? The Weed Control Act trumps any municipal bylaw pertaining to noxious or local weeds.
Chapter 918, Parking on Residential Front Yards and Boulevards, Article VIII Maintaining Parking Area, Property owner's responsibilities 23 B., has similar provisions: 20 cm height rule; vegetation must be maintained in a healthy and vigorous growth; the area must be kept free of litter, rubbish, brush, leaves, lawn trimmings, tree trimmings and noxious weeds as defined by the Weed Control Act of Ontario; vegetation (hedges, trees, shrubs) must be pruned or trimmed and natural gardens maintained (except for those planted by the City), to avoid obstructing passage or sight lines for pedestrians or vehicles. Vertical clearance minimums are actually stated (perhaps a little too generously) and there is a further restriction: "shrubs, hedges, maintained natural gardens, flowers and other plantings located within the boulevard shall not be more than 0.8 metre in height measured from the travelled portion of the adjoining roadway."
They're not kidding when they use the definition of 'soft landscaping' in the front yard. The City blurs the public with the private realm and makes you responsible financially and otherwise for the City boulevard, City portion, and your private piece of the front yard. But maintain vigorous growth? The Scoop can't decide whether to laugh or cry. The City won't tolerate dense or thick growth or overgrown vegetation, but nevertheless, demands that it must be vigorously growing. Make up your bloody mind!
NANPS member Douglas Counter wanted to protect the native plant garden that had been planted in his front yard which extended into the road allowance, in memory of his mother. Doug and his father challenged the City and took their case to the Ontario Superior Court in 2002, and later the Ontario Court of Appeal in 2003 which upheld the rights of gardeners, to tend a natural garden on the city-owned road-allowance in front of their homes. As in the Bell case, they won the right, protected by the Freedom of Expression clause in the Canadian Charter of Rights and Freedoms, to express their environmental beliefs through gardening. This time it was the planting of a natural garden on public land which was a Canadian precedent.
Section B. (3), concerning the organic debris listed above, contradicts suggestions on other City websites, e.g., Gardening - make the mulch of it!. Mulch is defined as a layer of material, organic or inorganic, placed on or around plants, shrubs or trees to cover the soil. They list types and extol the benefits of mulch with nary a word about aesthetics, fire hazards, or nuisances that bylaw officers love to espouse.
Which interpretation of noxious weeds under the Weed Control Act might they be using in Chapter 918? There is no City definition of noxious or local weeds or any types mentioned. Errors of omission? Ultra vires? Finding definitions in the bylaws is like...well...pulling weeds. It's very site specific.
Like Chapter 629 and 918, Chapter 489 Grass and Weeds is a bylaw that forces the cutting of certain plants that exceed the maximum height of 20 cm. All cuttings must be removed. The difference is that there is a definition: "Grass and weeds" refers to all noxious weeds and local weeds designated under the Weed Control Act and "any other vegetation growth that does not form part of a natural garden that has been deliberately implemented to produce ground cover, including one or more species of wildflowers, shrubs, perennials, grasses or combinations of them, whether native or non-native, consistent with a managed and natural landscape other than regularly mown grass." The Scoop thinks that the City has combined their descriptions of noxious and local weeds with other vegetation not deliberately planted to produce one big toxic weed mix. We would like to know, what a "managed and natural landscape" is. It sounds like an oxymoron. If it is identified as a "natural" garden, it should be allowed to grow more "naturally" or true to nature than severely manicured, unnatural gardens along the lines of English/European gardening techniques. Let's call it a true North American style garden with predominantly, if not entirely, native species growing as nature intended, but carefully chosen to grow within the confines of an urban plot.
Chapter 489, was enacted based on health, safety (including fire), and nuisance matters related to the impairment of visual sight lines, creation of habitats for mosquitoes and rodents, and contributions to neighbourhood blight. Tall grass and weeds as a fire hazard on small urban plots? Not any more so than a building where all it takes is a lightning strike, a malfunction of a heating or electrical system, a careless resident or an arsonist to spark a fire. Tall grass and weeds as a public nuisance? The public nuisance is the complainant that called the matter to the attention of ML&S. Tall grass and weeds as habitat for mosquitoes? Not likely – perhaps as a surface to rest on, like any outdoor surface, but not as an incentive to stay and breed as in an outdoor vessel that could hold water for a few weeks (i.e., in a child's toy, a container or pot, or a bird bath). Habitat for rodents? We are assuming they are referring to mice and rats, and not sciurids. Wild rats and mice usually look for refuge in a house, garage, shed or compost bin, not in vegetation. Blight? Blimey – that sounds like it has aesthetics written all over it, like graffiti. It's ironic that while terms brought from the Old World (Britain) stuck, the violent weed rhetoric developed here and became entrenched with a near complete absence of the traditional sense of British restraint (Evans, 2002). Whatever happened to Britannia...Britannia rules the brain waves? Oh Canada, we must move with the times and tone down the outdated vitriol directed at all weeds and get on with defining and living a new North American aesthetic!
OMAFRA states: "The intention of the act is to protect agriculture and human health and it is not to be used as a 'defacto' property standards bylaw." At least the provincial government recognizes it. In the Bell v. Toronto (City) ruling, the judge pointed out, "it would appear that the City itself recognized the subjective and discretionary nature of the phrase 'excessive growths' in the old by-law when it passed the new by-law imposing a 20-cm. height restriction. On the other hand, since there appears to be no obvious correlation between a height restriction for plants and any health, safety or environmental hazards posed by them, I think the new by-law makes it even clearer that the City's concern with weed control is primarily motivated by aesthetic considerations."
Scoop translation: values such as aesthetics are not supposed to be used as criteria to prosecute or persecute property owners under the Weed Control Act, but the City of Toronto will do everything in its power to ignore that and trample on your property rights. On January 25th, 2010, the City repealed The City of Toronto Act, 2006, c. 11, Sched. A, s. 212 (1): The City shall adopt and maintain policies with respect to the following matters: 6. The manner in which the City will try to ensure that the rights, including property and civil rights, of persons affected by its decisions are dealt with fairly. Compare the 2009 version of the City of Toronto Act with the new 2010 version here, just above quashing bylaws, a motion which appears to have to be handled by City Hall and not the courts.
Note: Capt’n Highlighter made this catch, and the trusty Scooposcope caught it. Scroll down and click on #212 in the list.
What property rights? Under a democracy, you have some; under the authoritarian regime of City Hall – nada. In their eyes, we are merely squatters on their land (like the former Tent City on the Lakeshore). Note: What does it say when Canada doesn't have property rights enshrined in The Charter of Rights? Any thought of property rights must have been dumped overboard in the ships' ballast a couple of centuries ago when the British settlers sailed this way. Or is it due to foot dragging in settling land claim issues with the First Nations' peoples?
So are the citizens of Toronto pawns caught in a power and money struggle between the municipal government and the provincial government? You betcha! There's a deep-seeded resentment at City Hall that Toronto is not getting back their fair share of tax dollars leaving the City, as the recent spat between Mayor Miller and Premier McGuinty attested. Miller's reaction to the provincial government's involvement in declaring the TTC as an essential service: McGuinty should butt out of local politics. Miller spouted, "he intervened in a municipal election .... and that's not right." (Toronto Star, February 24th). With an attitude like that permeating municipal governance, it may explain why the City will not recognize an Ontario Supreme Court judgment.
Avvy Go of the Metro Toronto Chinese and Southeast Asian Legal Clinic: "In reality, even though we have the Charter of Rights and Freedoms, that doesn't mean that the government on the day-to-day basis, in terms of their politics, in terms of their laws, that they will always respect the values and principles under the Charter. So, it's up to the individuals to challenge the government to respect the Charter. And so it takes litigation, it takes lobbying, it takes a lot of work, you know, to ensure that the rights under the Charter are being protected and being respected. So I think although we do have a Charter that on paper gives us a lot of Rights and Freedoms, in reality it is not always being respected by our governments."
The Scoop is not surprised at the reaction elicited when NANPSters wave the victorious Bell v. Toronto (City) decision at deputations before Council. We might as well be waving a blank paper under their noses, or even worse - a red flag in front of an enraged bull thistle (Cirsiumvulgare)! Oh so prickly and noxious! (But not if far enough away...)
So, Toronto violates the intent of the Weed Act of Ont. and the Canadian Charter of Rights and Freedoms, and changes the City of Toronto Act to suit the needs of City Hall, but not its citizens. What else can they do? As you will see, they can be pro-active in their intent on controlling the activities of citizens, with more instances of ultra vires sprouting up all over like an infestation.
ML&S Press Release
The Scoop has more damning evidence of willful intent by our government. We have a press release that advertises a campaign by the City to rid private properties of tall grass and weeds. The Scoop never saw this printed in newspapers and wonders if any media picked it up. Other municipalities, for example, The City of Stratford, publish in their local newspaper. The City of Vaughan posts on their website a proper notice reminding property owners of the grass and weeds bylaw. (Note: By law, Vaughan would have to publish in a newspaper. But is a display on a newspaper website considered publishing? The provincial government may have to update the wording in the Act to reflect the change in technology). How does Toronto alert residents? How about burying a press release in their website? Or offering subscriptions to news releases at the rate of about 8-10 per week? By the ML&S Investigation Activity search website? How many property owners actually access the website? (If a tree falls in the forest...)
Check out the ML&S Press release June 2, 2009: Toronto launches enforcement strategy for long grass and weeds The most contentious words that give credence to the belief that property owners are being persecuted: "This enforcement strategy will see municipal standards officers across the city proactively inspecting properties where long grass and weed problems have occurred in the past. Staff will also respond to residents' phone calls about offending properties. The strategy is designed to ensure the bylaw is adhered to by property owners, keeping Toronto clean, safe and beautiful." Are they pursuing this solely on the height issue (under Property Standards) or under Chapter 489 or both? Are Natural Garden exemptions included in the round up? Are these Municipal Standards Officers the bonafide, registered, municipal Weed Inspectors? Or, are these your run-of-the-mill, mow-it-down, ML&S Officers? Double ultra vires? Gag The Scoop with a goldenrod! (...sorry, Goldie)
Note: Our Scoop Investigative Team Treading Into Nefarious Ground (motto:"we ain't taking this SITTING down") has received confirmation from Fernando Aceto, Media contact, Co-ordinator, Investigation Services, ML&S, that the Long Grass and Weed Month campaign will be in effect again for June 2010. This was confirmed just before the latest municipal budget talks. Let's hope the directive withers faster than pampered impatiens plants in a hot scorching sun.
BTW – The Scoop checked out the new 311 info line. When we asked the operator for a contact for weed complaints, the operator said there was a 'Hotline' for that. When The Scoop phoned the given number, it was doubling as the election sign hotline and the number was for the North York ML&S! We surmise that there can't be too many grass & weed complaints in North York.
ML&S Investigation Activity search website
Unbeknownst to many, ML&S has an Investigation Activity search website. The Scoop invites you to type in a street name and every violation listed over the last two years on that street will be revealed. Take a tour of violators, e.g., Finch Ave., both sides of Yonge St. There will be lots of long grass and weed (LGW) violations that are probably not natural gardens but houses waiting for redevelopment. Addresses with several pages of violations are usually apartment buildings.
The Scoop remembers a few years ago, that the City was talking about devising a system for renters to check a building's history for property standards violations. It was going to be a tool for tenants to search the history of problems in a particular building before entering into an agreement to rent, e.g., bed bug or cockroach infestations, landlord neglect, etc. ML&S has responded with an Apartment Standards violations search tool. ML&S says the information pertains only to multi-residential buildings containing four or more self-contained dwelling units and it doesn't list the complaint details or individual apartments for security and privacy reasons.
However, Scoop doesn't recall that they enabled the system to include low-rise dwellings. It was meant strictly for high-rise apartment buildings. This is indeed troubling as all infractions, including those of individual residents in low rises are available for public viewing (Note: There are two different search tools found on the website. The link that we've supplied yields all investigations. There is a separate apartment-only link found on the ML&S website).
So apartment dwellers are exempt from being identified...but home owners/renters are not? Here are a few examples from low-rise properties: "Enbridge - disconnection of supply of natural gas on July 7, 2009 due to non-payment of $1,267.34; rat infestation; old car in rear of property (Note the owners allow a homeless person to sleep in the car); vital services (Hydro) cut." Welfare cases or suspected grow-ops are all fair game. Is it not an invasion of privacy? Under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter M.56, s. 14 (3) (b): "A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information, (b) was compiled and is identifiable as part of an investigation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation." It is not necessary to disclose personal information to the general public under any bylaw. ML&S has been investigating and prosecuting for a long time before their Investigation Activity website was up. What if there is no issuance of a violation notice or the investigation is closed? Then why is the notice posted on the website? For two years! An ex-councillor told The Scoop that it was the way that the City was being more transparent. But is the government, City Hall, which is supposed to be transparent! We, as private citizens, don't have an obligation to be transparent. Ultra vires? The Scoop thinks City Hall should be entirely encased in glass like the ROM Crystal was supposed to be, and leave the citizens to their privacy.
The Scoop is aghast. It is not our business to know if any infractions were foisted upon citizens. Compare the system with Police Services, Parking Enforcement. Could the Police put parking ticket violators up for public viewing? Another tool for potential employers to check the worthiness of candidates, i.e., add it to a Facebook check, credit check; anything damaging out there? Where will it end ... minor infractions...major infractions? Soliciting? That's a different kind of parking enforcement. Hmm...maybe The Scoop should shut up about it and not give them any ideas. After all, there are an awful lot of unpaid tickets out there and a City debt to pay. But then with all the reality shows, shame probably doesn't work these days anymore, and extortion is not as lucrative a profession as it used to be.
Even though the online ML&S Investigation Activity registry is set for two years, they add references to previous infractions as well, for all to see (remember - this is not just an internal database tool for ML&S Officers to use in their investigations). What are the criteria for revisiting past violators - the number of violations or repeated violations over several years? A LGW infraction for two years running will definitely put you on their hit list with a note under description: "THIS PROPERTY IS REQUIRED TO BE INSPECTED PRIOR TO JUNE 1, 2010. Notices of violation for L G & W have been issued to this property in 2008 and 2009." Could they be saving this special treatment for a vendetta against those that stand up for their rights, too? One has to wonder.
ML&S doesn't make a distinction between derelict properties and those that just have tall, dense vegetation. Buried in Chapter 629 are standards for yards and in Chapter 918 (23) are standards for front yards and boulevards. ML&S can be proactive if they are investigating a refuse complaint or any other complaint under a bylaw. They can tack on tall, excessive, dense growth, dead branches, etc. Derelict properties tend to have lots of tall weeds, garbage, and stuff in the yard. ML&S can hit the owner with many infractions under 629, simultaneously. Every property will have at least one defect. As our intrepid Treasurer has pointed out from experience, it's not a matter of if they find something wrong with your property; it's a matter of when they will find something wrong.
Can you imagine if Police Services operated this way for minor infractions, e.g., parking violations? Would they plug your licence plate number into the computer and visit you at your home address to make sure that you are not parked for more than three hours at a time on the street, that your parking permit is valid, or that your headlights are working because last year they caught you with something? You might expect this kind of surveillance for a more serious violation, e.g., checking on a parolee. Does this put us in the same league, all for a minor violation? Obviously, a LGW violation is not a minor violation in their eyes. You are a habitual offender; a perp. Ultra vires?
Note: ML&S states that the search protocol can similarly be applied to other forms of rental housing such as not-for-profits, co-ops, as well as rental units in condominium buildings. When you first visit their website it has a disclosure clause which has a presumption that you will accept the terms (no accept button - no opting out). Ultra vires?
Outside of Toronto (yes, there is such a place)
Lest you think that you can escape the actions of the Weed Whackers because you don't live in Toronto, most municipalities bury their weed and grass restrictions in a Property Standards bylaw. But Toronto has set a deadly precedence, and as many municipalities grow, they are rewriting their bylaws with similar wording, if not lifting the exact phrases from Toronto's bylaws (e.g., Markham and Mississauga).
You may say that they don't enforce the rules in your area. But, the restrictions are embedded in the bylaws, so at any time, and for any reason, enforcement can be employed. Municipalities must take the time to craft their bylaws better. The onus should be on them to devise a system to distinguish derelict properties from natural gardens. We could provide input, if we were consulted.
Many municipalities don't have a height restriction for grass and weeds (yet): e.g., Ajax, Guelph/Eramosa, Oakville, Ottawa, Pickering, Port Colborne, and Whitby. The terms 'overgrown' or 'excessive', or 'heavy undergrowth' are used instead, e. g., Ajax: "Noxious weeds, and excessive growth of other weeds which are out of character with the surrounding environment, shall be cut and maintained in a reasonable condition in relation to the neighbouring environment." From the description, if all of the properties on the street were derelict yards full of the noxious weed, ragweed or had excessive growth of other weeds like garlic mustard then it would be fine. Now, if a majority had natural gardens, would they force the turf growers to grow up?
Many have Toronto's height restriction of 20 cm: Brampton and Richmond Hill. Some allow slightly taller vegetation to 30 cm: Milton, Mississauga (grass only), and Vaughan. And some have lower height restrictions set at 15 cm maximum: Markham (they list some grass species, too).
Some municipalities have a restricted season for the cull, e.g., Markham - May 1 to Oct. 31; Richmond Hill – May 15 to Oct. 15. Most don't say, so it probably is an open season. Don't be surprised if you see a bunch of civies digging in a snow bank looking for a bunch of flattened plant stems.
Like Toronto, some areas identify noxious weeds as plants designated under the Weed Control Act and include the term, 'local' weeds (though they don't mention the 'far enough away' clause): Guelph/Eramosa, Markham, Pickering, Port Colborne, Richmond Hill, and Vaughan. Milton lists an extra weed as noxious: velvetleaf (Abutilon theophrasti). Hopefully they have the documentation to back it, i.e., a bylaw that was passed and approved by OMAFRA (Scoop couldn't find the bylaw in an online search covering 2003 to 2010).
If the City of Toronto is not abiding by their obligations under the Weed Act, you can bet that there are other municipalities as well. Like Toronto, in the City of Vaughan, *The Noxious Weed Act is administered by the Parks Department Weed Inspector for the growing season. On private residences By-Law Enforcement will respond to long grass and weed complaints as they apply to the Properties Standards Act. Vaughan adds: "Where the Weed Act does not apply, a new by-law the 'Debris By-Law' allows the City to order long grass and weeds to be cut when they exceed 30 cm and after seven days notice." Vaughan actually had the Managers listed as Weed Inspectors even though they didn't actually go on site physically! Ultra vires? They added a real 'Field Inspector' the following year...a Park Attendant.*Old version of Weed Control Act.
Mississauga certainly has more chutzpah than Toronto and actually has a weed list of sorts and expects to enforce it. Mississauga lists 13 "nuisance" weeds in Bylaw No. 0267-2003 and refers to any other plant designated by bylaw as such. Thus, nuisance weed is code for local weed. The list is a select group of noxious weeds from the Weed Control Act: all five thistles, European buckthorn, poison hemlock, poison ivy, ragweeds and sow thistles, plus two others: garlic mustard (Alliaria petiolata) and ground ivy (Glechoma hederacea). Mississauga is treading in a very gray area. Is the use of the term 'nuisance' a way of getting around the 'far enough away' clause and a way of avoiding mandatory listing of garlic mustard and ground ivy as local weeds with OMAFRA? Ultra vires? Mississauga listed two of the weeds correctly as noxious – ragweed and poison ivy. The other weeds are not deemed noxious in urban areas. Surprisingly, they did not list purple loosestrife, which is a local weed in many municipalities (Toronto, but where else?). The Scoop could not find any other bylaws enacted designating weeds as nuisance, local or noxious in Mississauga.
Just because everyone is doing it, that doesn't mean it's right!
Go figure! The City of Brampton is hiring summer help for ML&S inspections and enforcement! Yet, in Toronto, police officers direct traffic at construction sites.
Scoop Notes
The Scoop just discovered that our rat invasion episode has made the ML&S website for a two year run! See sordid story in the Scoop issue December 2009. The Great Garbage strike of last summer wrought a fresh crop of rats. The Scoop was never issued a written violation notice, but apparently, it can be verbal, i.e., over the phone. If you recall, the ML&S officer couldn't find the suspect compost bins the first time and had to come back to find her way through the cedar trees to the backyard (was this a ploy to get permission to trespass?). In passing, she mentioned the plant containers on the driveway in the back, but made no big deal of it. Yet, it was noteworthy enough to be referred to as 'storage' on the website. Guess she had to write it down for future reference in case a new complaint pops up to add to the sheet?
Sheesh! You can't even have an herb garden in hiatus without it being written up and broadcast on their website, like another trophy for the shelf. Perhaps we can look forward to a new press release: "Dismantle your container garden for the season, or expect a visit from your friendly, neighbourhood ML&S Enforcement Officer." What next - a featured 'Property of the Week'? Does The Toronto Community Garden Network (TCGN) or Toronto Urban Growers (TUG) know about this?
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