"All this should go" says Toronto bylaw officer

The Violation Notice for the native plant garden in the photo above.

The native plant garden in the photo above received a Violation Notice from a Toronto bylaw officer on October 1, 2023. The following are direct quotes, captured on a security camera, from the conversation between the gardener’s son and the bylaw officer. (The full conversation is roughly 5 minutes and includes a bit more of the same.)

Bylaw Officer: “I want you to cut the grass and weeds.”

Gardener’s son: “It’s not weeds. This is a native plant garden, no weeds anywhere. This is all Ontario native plants.”

Bylaw Officer: “Well, you have to clean it underneath.”

Gardener’s son: “Underneath? What’s wrong with this?”

Bylaw Officer: “It’s weeds.”

Gardener’s son: “No weeds! This is strawberries.”

Bylaw Officer: “This is not the way…”

Gardener’s son: “What do you mean? None of this is weeds.”

Bylaw Officer: “Unless you have proof…documentation that you are allowed to have this, you have to clean it out [in] 10 days.”

Gardener’s son: “All of it?!”

Bylaw Officer: “Yes”

Gardener’s son: “How high?”

Bylaw Officer: “20 centimetres. Everything should be down. When you cut it down to 20 centimetres, take pictures and send them to my email.”

Gardener’s son: “What does the law say? If this is a native plant garden, is it okay?”

Bylaw Officer: “No, unless you have documentation that this is a native plant garden and you are allowed to have it, you have to clear it to 20 centimetres.”

Gardener’s son: “What are the Prohibited Plants? How is it prohibited if it’s all native plants? I’m confused.”

Bylaw Officer: “I don’t know. I’m not an expert.”

Gardener’s son: “What about the trees and shrubs?”

Bylaw Officer: “This tree we can allow, but you have to clean underneath. All this should go.”

(Photo by Lorraine Johnson, October 2, 2023)

(Photo by Lorraine Johnson, October 3, 2023)

[It’s important to note that Toronto’s Turfgrass and Prohibited Plants bylaw lists 10 Prohibited Plants and does not include a provision regarding “documentation” or “approval” of gardens, whether native plant gardens or any other kind of garden.]

[I also want to stress that my intention is not to target or belittle this individual bylaw officer. There is a systemic problem and it needs to be addressed at a policy level. The exchange quoted above is a symptom of a broken system that will only change if we advocate for policy changes around bylaw enforcement.] For more info on advocacy, visit the Ecological Design Lab’s website section on Bylaws for Biodiversity: https://ecologicaldesignlab.ca/project/by-laws-for-biodiversity/

Despite a Court Victory, the Douglas Counter Saga Continues...

Douglas Counter is exactly the sort of gardener and volunteer that the City of Toronto’s PollinateTO program is intended to support and encourage. Not only has he created a native plant habitat garden in his front yard, backyard and boulevard, but he regularly offers community tours, sharing his knowledge and inspiring countless others to grow habitat in their yards, balconies and community projects. Even more, he is a native plant propagator extraordinaire, growing and giving away thousands of native plant seedlings to gardeners (through PollinateTO and Project Swallowtail), making it easy, low cost and do-able for others to get started on their habitat journeys.

Douglas Counter with some of the thousands of native plants he propagates and donates to gardeners. (Photo by Lorraine Johnson)

On August 16, 2023, the very day that Douglas was giving a tour of his native plant garden to City staff from the PollinateTO program and receiving accolades for his work, the bylaw enforcement office received a complaint about the “tall grass and weeds” in Douglas’ garden. (The “tall grasses” are native grasses and there are no Noxious Weeds in his intentionally planted and maintained 20+-year-old native plant garden.)

A few weeks later, Douglas received an Advisory Notice from the City, asserting that his native plant garden was in violation of the grass and weeds bylaw.

The irony of the City’s Advisory Notice goes beyond the fact that Douglas’ garden is promoted as a stellar example of a pollinator garden by one department of the City at the same time as another department is threatening the garden as a violation of the grass and weeds bylaw.

To understand the full extent of the irony, one needs to go back to the early 2000s, when Douglas took the City to court over their threat to mow down his native plant garden. Douglas won the court case. The judge ruled that the grass and weeds bylaw violated his constitutionally protected right to a “natural garden.” The court decision also affirmed the right to create a “natural garden” on the public right of way of the boulevard, subject only to health and safety restrictions.

Douglas Counter’s court case affirmed the right of gardeners to express their environmental beliefs on the public right of way of boulevards, subject only to health and safety restrictions. (Photo by Douglas Counter)

And yet, this summer, under a new and supposedly improved grass and weeds bylaw in Toronto, flawed enforcement continues. If winning a court case won’t stop this, what will?

Natural Garden Mowed Down by City of Burlington, Ontario

On June 20, 2023, the City of Burlington, Ontario, mowed down a natural garden that Karen Barnes had been cultivating for more than a decade—a garden that was free of any provincially designated Noxious Weeds and that posed no threats to public health or safety. The City flagrantly disregarded the two Ontario Court decisions (Sandy Bell case and Douglas Counter case) that have affirmed the constitutionally protected right to a natural garden in yards and boulevards, subject only to restrictions for public health or safety.

In an Order to Comply dated Nov. 2, 2022, the City ordered Karen Barnes to cut down (to 20cm) the “New England Aster, White Panicle Aster, milk weed and golden rod” (specifically named in the Order) that she had been nurturing in her front and side garden—each one a native plant, each a valuable pollinator plant, none of them Noxious Weeds.

Native asters, goldenrods and milkweeds were among the plants growing in Karen Barnes’ garden in the autumn of 2022. The plants did not impede sight lines for drivers or pedestrians, and small fences prevented plants from flopping onto the sidewalk or driveway. (Photo courtesy of Karen Barnes)

After the garden was mowed down by the City of Burlington on June 20, 2023. (Photo by Lorraine Johnson)

Prior to the recent (June 20, 2023) destruction of the garden, Karen Barnes and I met with a bylaw official, on November 27, 2022, at the garden to discuss the plants Karen was cultivating and the maintenance practices she was following. My report on this meeting and the features of this natural garden, prepared for lawyer David Donnelly (who has represented and supported many natural gardeners), can be read here:

At no point during the site visit did the bylaw official point out any prohibited plants or health and/or safety concerns in the garden. His focus was entirely on aesthetics (something already ruled by the Courts as subjective and arbitrary, and therefore unenforceable). He didn’t accept the clear signs of maintenance and deliberate cultivation that were pointed out to him.

It’s important to note that Burlington’s Lot Maintenance Bylaw has long been a problem. In 2018, another Burlington gardener, Doreen Nicoll, was ordered to cut down her milkweed plants. (Read my article about this in the link below.)

The ensuing uproar led the City of Burlington to revise its bylaw. A new bylaw was passed in 2022 that specifically allows “naturalized areas” that are “deliberately planted or cultivated with one of more species of wild flowers, shrubs, annuals, perennials, ornamental grasses, or combinations [of] them, that is monitored and maintained by a person,” a definition that clearly applies to Karen Barnes’ garden. Yet it was under this new bylaw that enforcement action was taken against her natural garden on June 20, 2023.

The exemption in Burlington’s 2022 Lot Maintenance Bylaw allows for naturalized areas.

Karen Barnes’ natural garden clearly falls within the “naturalized area” definition in Burlington’s Lot Maintenance Bylaw. Karen has deliberately planted or cultivated the plants growing and she monitors and maintains them.

Not only is the enforcement action taken against Karen Barnes’ garden outrageous, but the new bylaw is littered with anti-ecological provisions that are, quite simply, indefensible and counter to environmental well-being and human reconciliation with the natural world of which we are a part. Just a few examples:

• Leaves are labelled “waste or refuse” in the bylaw and must be removed from the front yard if the leaves are visible from the street. (Leaves, of course, have great ecological value as protective mulch and habitat for pollinators.)

• All properties must be maintained “free from any nests of bees,” which means that successfully providing nesting habitat for the roughly 70% of native bee species that are ground-nesting and the roughly 30% of native bee species that nest in spent plant stems, logs, etc., is illegal in Burlington!

• All properties must be maintained “free from any insects.” Seriously?!

This is the “new and improved” (?!) Lot Maintenance Bylaw in Burlington, in 2023?!

Karen Barnes’ natural garden after being mowed down by the City of Burlington, June 20, 2023. (Photo by Lorraine Johnson)

Details on how to support Karen Barnes’ constitutionally protected right to a natural garden will be forthcoming in another post, but for now, consider what the Bylaw Official said to Karen as her deliberately cultivated natural garden was being mowed to the ground by City workers: “Have you seen the whole street out front, all the houses? With lawns that are maintained just like everybody else? You have to do that.”

No, City of Burlington, she does not.

A Naturalized Garden Goes to Court...

The Town of Smiths Falls has a Land Acknowledgement that is read when official municipal business is being conducted. The Town acknowledges that the “sacred land” on which Smiths Falls is now located is “unceded territory” and that the Town is grateful to the “Algonquin ancestors who cared for the land and water” and “mindful of broken covenants and the need to reconcile with our relations.” The acknowledgement ends with a vision that “together we may care for this land and each other.”

These words opened a January 25, 2022, Property Standards Appeals Committee hearing in Smiths Falls, convened to consider whether or not Beth and Craig Sinclair were violating the Town’s “property standards” bylaw with their habitat garden. The Sinclairs had been ordered to remove the habitat logs they’d placed in the yard for wildlife; cut down their “grass and weeds” to 20cm (no “weeds” were identified or named and no measurements taken); remove or rebuild their compost “heap” (a compost bin not a “heap”); and remove all “landscaping” within 3 metres of the curb (though, of course, “landscaping” is what pretty well everyone in the town has done with lawns right to the curb and no one else has been charged with this “violation”).

The appeals committee upheld all of these orders except for the one about the compost “heap” (bin!). Everything else had to go, said the committee making the Town’s final decision about land care on unceded territory. So much for reconciling with our relations and caring for this land and each other.

The Sinclairs naturalized garden is full of pollinator-supporting plants such as swamp milkweed. (Photo by Craigh Sinclair)

The appeals committee hearing was painful to watch, and painful to participate in. After seven minutes of testimony from the first expert witness (full disclosure, that was me), the Chair intervened and asked the witness to “cut it short” or “risk losing their attention” due to “long-winded presentations.” Following the three experts’ testimony challenging each of the Town’s asserted “violations,” the only question asked of the witnesses related to aphids on the Chair’s rose plants. 

After not asking the expert witnesses any probing or relevant questions, the Chair then displayed a staggering confusion about his role in this quasi-judicial hearing. He seemed unaware that the committee’s legally mandated task was to listen to the evidence before it, weigh the evidence, and make a decision. Instead, the Chair offered his own “evidence,” not in the context of questioning the expert witnesses, but, well, just ‘cause. His expertise? He’d “worked at a garden centre full-time for five years” and done research “on the Internet.”

The Chair kept repeating that the Committee was not “empowered to interpret the bylaw,” yet saw no contradiction in saying that one phrase in the bylaw (“waste” as applied to habitat logs) “was defined very loosely in the bylaw and it gave us scope to go beyond what was written.”

Likewise, the Chair repeatedly asserted the Committee’s powerlessness to come to any conclusion other than to affirm the violations. Indeed, the Chair declared the Sinclairs guilty just past the half-way mark in the hearing. There were references in the expert testimony—including that of urban planner and policy expert Nina-Marie Lister—to the bylaw’s provision for dismissal of infractions deemed to be “minor,” but the committee did not use this provision. 

(Photo by Craig Sinclair)

The Committee also had the legislated power to defer a decision. When one of the committee members asked the Town Clerk for her opinion on the matter (surely a wildly inappropriate question), the Town Clerk highlighted the fact that the Town Council had already expressed its intention to revise the bylaw and that any decision could be deferred by the Committee until after such a review had taken place. The Committee declined to defer.

And so the Sinclairs were ordered to remove their habitat logs (despite expert testimony presenting the recommendations of 10 wildlife organizations urging the addition of habitat logs to gardens); cut undefined and unidentified weeds and grass to 20 cm; and remove all “landscaping” within 3 metres of the curb (and presumably leave bare soil).

(Photo by Craig Sinclair)

The backlash against the Committee’s decision was swift, loud and virtually universal—the hearing was a farce. A farce with damaging consequences. Damaging to efforts to care for the land and each other. Damaging to the Town’s stated goals of supporting habitat and trees. Damaging to the Town’s reputation.

There’s one thing I agree with those committee members about: there’s nothing “minor” about what the Sinclairs are doing. Instead, the Sinclairs are responding to the twin major threats of climate change and biodiversity loss by following a call to action you’ll hear from every expert you could ask: they are restoring habitat and native plants to the landscape, nurturing biodiversity for the future of the planet.

The only option available to the Sinclairs to keep their habitat garden is to appeal the Town’s decision in court, and that is what they are doing.

And so, for the third time, an Ontario court will have a naturalized garden on the docket. Why this is even necessary is hard to comprehend. Ontario courts have already been clear: vague and arbitrary references to “weeds” based on aesthetics render such bylaws unenforceable (the Sandy Bell case); gardeners have the constitutional right to natural gardens (the Sandy Bell case), including on municipal easements (the Douglas Counter case), subject only to limitations based on public health and safety (the Douglas Counter case). 

Despite the Ontario court rulings, municipalities throughout Ontario continue to have such vague and unconstitutional bylaws on their books and enforce them illegally. Will people such as the Sinclairs need to go to court over and over again to defend their legal plantings? What will it take? 

Leadership is what it will take. Residents such as the Sinclairs can continue to fight these bylaws, at great personal cost, one bad bylaw at a time. But where are elected representatives across the country in proactively reforming municipal bylaws in support of biodiversity and to conform to the court decisions on these issues? Where are organizations such as the Federation of Canadian Municipalities, Association of Municipalities of Ontario, Canadian Institute of Planners, Ontario Professional Planners Institute, Canadian Society of Landscape Architects, Ontario Association of Landscape Architects, etc., in advocating for change? 

We’re in the midst of a biodiversity crisis and climate emergency and these bad bylaws are major impediments to getting us to where we need to be: with habitat plantings flourishing anywhere and everywhere. How many people are not creating naturalized landscapes out of fear that they, too, will be harassed and fined?

 As long as people such as the SInclairs are forced to fight for the already-court-confirmed right to “natural gardens,” we will be stuck in a quagmire of anti-ecological, aesthetically based, subjectively interpreted, colonial, retrogressive “property standards/grass and weeds” bylaws.

Smiths Falls is in the township of Montague, which bills itself as the “Wildflower Capital of Ontario.”

And the Land Acknowledgement will no doubt continue to be uttered at the beginning of Council meetings, even as the Town has forced two people caring for the land on unceded territory to go to court.

To support the Sinclairs in their legal challenge, visit: https://smallchangefund.ca/project/safeguarding-the-right-of-canadians-to-have-naturalized-gardens/

Town of Smiths Falls Threatens Fine for Habitat Logs...

The Sinclairs have been working hard for years to create a garden that supports wildlife and biodiversity. They’ve spent thousands on native plants, had their yard certified as habitat by two non-profit organizations, and followed scientifically sound advice to add habitat features such as dead logs to their landscape.

The Sinclairs’ habitat garden in Smiths Falls, Ontario, is repeatedly visited by bylaw enforcement officers. (Photo courtesy of Craig Sinclair.)

A neighbour has been making regular complaints to the Town of Smiths Falls about the Sinclairs’ habitat garden. Bylaw officers have visited numerous times, and with each visit, the Sinclairs have been forced to defend their planting.

Recently, the Sinclairs received a violation notice, ordering them to remove the dead logs in their habitat garden because the Town considers these important habitat features to be “waste” under the Property Standards bylaw.

The logs that the Town considers “garbage” are used as habitat by wildlife such as this pileated woodpecker. (Photo courtesy of Craig Sinclair.)

When will this madness stop?

The Sinclairs are appealing this order, but it comes at great personal cost to them, emotionally and otherwise. (They were told that the fee to appeal is $150, but it’s more than the financial cost…they feel targeted and harassed for their positive environmental actions.)

The Smiths Falls Town Council spent about half an hour debating the Sinclairs’ yard, and during the debate, many misconceptions were voiced. For example, one Councillor thought that pollinator gardens could only be created in sunny gardens. Here’s a link to the Council discussion (it starts at 1:02): https://www.youtube.com/channel/UCIFXU6Sq9neiC5VU9QbmLtQ

Ironically, a few Councillors felt that what the Sinclairs were doing in their yard represented the way of the future, but that Council’s hands were tied because of the wording of the bylaw. Instead of changing the bylaw, or putting enforcement on hold until the bylaw could be reformed, they decided to punish the Sinclairs for their future-focused, positive actions in support of biodiversity.

(Photo courtesy of Craig Sinclair.)

This madness will only stop when people pressure municipalities across the country to reform these outdated and retrogressive bylaws. The courts have already ruled on the unconstitutionality of vague and arbitrary grass and weeds/Property Standards bylaws, but municipalities all over are ignoring the rulings. The connected crises of biodiversity loss and climate change call for each of us to advocate for biodiverse, resilient landscapes, and that includes advocating for the reform of outdated, vague and arbitrary grass and weeds bylaws!

Toronto's Bad Bylaw Made Worse or Better?

After working intensely for the past year on advocacy efforts urging the City of Toronto to reform its grass and weeds bylaw, I have really mixed feelings about the changes that City Council passed today. There’s a good thing or two in the revisions Council passed (to take effect in 2022), but there are still lots of problems. The devil is in the details of enforcement, and I’m not optimistic, given the enforcement track record, but we’ll see.

First the good: the “Natural Garden Exemption” is no more! It was flawed from the beginning, when it first reared its ridiculous head decades ago. The definition of a “natural garden” made no sense whatsoever—what it came down to, basically, was that a garden became a “natural garden” when someone complained about it…And then you were forced to apply for an “exemption” to the grass and weeds bylaw and be inspected and approved, but the exemption offered no protection if someone complained again next year.

But the worst part was that “natural gardens” were treated as some strange, suspect category of garden that was somehow illegitimate and required approval and permission. Retrogressive in the extreme considering the climate emergency and biodiversity crisis.

So good riddance to the “Natural Garden Exemption.” Especially since the courts had already ruled (in the Sandy Bell case in the 1990s and the Douglas Counter case in the 2000s, both of which I sat in on and wrote about in books and articles) that people had the protected right to create a “natural garden” subject only to health and safety constraints, not aesthetics. So, no more delegitimizing and disincentivizing exemption, yay!

Toronto gardener Sandy Bell was given a $50 fine for this garden in the early 1990s. An inspector said it was “excessively too high.” She fought the fine in court, and the case forced the City of Toronto to change its grass and weeds bylaw to allow “natural gardens.” (Photo by Lorraine Johnson)

In the early 2000s, Douglas Counter defended his native plant garden (in the boulevard) right up to the Ontario Superior Court. (Photo by Lorraine Johnson)

Despite his court win, Douglas Counter was forced to defind his native plant garden yet again in 2019, when a City of Toronto inspector warned him in a letter: “Please be advised that an inspection was conducted yesterday…the property is indeed in violation.” (Photo by Lorraine Johnson)

Another good thing about the revised bylaw is that it now lists prohibited plants. Goodbye to the vague category of “weeds.” Hello clarity. People will know the species they’re not allowed to plant. And the list of those species is pretty short and reasonable—e.g., poison ivy, ragweed, some non-native species that cause harm in natural areas…The list is open to regular revision, too, so there could be some transparency (one hopes) and consultation (crucially, Indigenous consultation) in formulating prohibited species.

But…

The City has not set even a minimal bar before it investigates complaints, and that means the complaints system is ripe for abuse. A front yard full of vegetable plants, or a tall meadow free of prohibited plants and free of sightline obstructions? Totally legal under the revised bylaw, but your neighbour could make your life miserable with complaints, and you could be subject to Advisory Notices and Violation Notices and inspections where you are required to defend and justify your totally legal planting. It happens all the time now, and it’ll happen all the time under the revised bylaw.

Instead, there should be some kind of minimal screening done at the point of 311 complaint, even the simplest of questions: does the garden include prohibited plants? Are there health or safety issues such as obstructed sightlines? Questions like this would weed out complaints based on “I don’t like it” or “I don’t like you.”

Bottom line: the revised bylaw is still based on the premise that lawns are the approved, desired response to bare earth. How else to explain the fact that the revised grass and weeds bylaw has raised the maximum fine for grass over 20cm to $100,000?! Laughable if it weren’t so chilling.

So, what can people do to bring sanity to enforcement? If you or anyone you know receives an Advisory Notice or a Violation Notice for a yard or garden that isn’t causing any harm, make noise, spread the word, enlist allies, reach out to those, such as myself and many others , who will help you fight it and who will shine a light on all that is wrong with the enforcement regime we’ve still got with this revised bylaw.

Terrible Grass and Weeds Bylaws: Kingston, Ontario

It wouldn’t survive a court challenge, and yet it remains on the books and continues to be enforced every growing season.

Kingston, Ontario’s grass and weeds bylaw is a particularly heinous example of the vague, arbitrary, outdated and anti-ecological “propert standards” bylaws that municipalities across Canada persist in using in ways that discourage habitat gardens and naturalization.

“Unsightly weeds”? Based on subjective aesthetics that the judge in the Sandy Bell court case ruled overly broad and unenforceable. At the very least, name the “weeds” that, for health and safety reasons, people aren’t allowed to grow. “Heavy undergrowth”? By what standard and when does a succesfully growing groundcover become undergrowth that’s too heavy? “Overgrown and unsightly” shrubs?! That’s a particular howler.

Ironically, the two groundcovers that the bylaw approves of to prevent soil erosion are two non-native species that are wreaking havoc in natural areas, and that some places in the U.S. have prohibited gardeners from planting because of the demonstrable ecological damage they do: ivy and periwinkle.

It’s way past time to weed out this bad bylaw, Kingston!

City of Toronto Orders Cutting of Two Natural Gardens

This gardener was ordered to remove her native goldenrod.

The goldenrod in the native plant garden above has been ordered cut by October 5, 2020, or the City of Toronto will mow it down and charge the gardener. Goldenrod is a native plant of significant pollinator value, does not cause hayfever, and is not on the provincial Noxious Weeds list.

In a different incident, Nina-Marie Lister was recently notified by the City of Toronto that her ecologically valuable and carefully nurtured meadow violates the grass and weeds bylaw.

These are just two examples of the ways that the City’s grass and weeds bylaw is enforced arbitrarily, places barriers in the way of natural gardens, punishes gardeners who are taking positive environmental action, and contradicts the City’s own progressive Biodiversity Strategy and Pollinator Protection Strategy.

On October 1, 2020, close to 80 organizations and allied professionals endorsed a public letter to the City urging reform of the grass and weeds bylaw.

“While we recognize and support the City’s leadership on biodiversity protection through its Pollinator Protection Strategy and the Biodiversity Strategy, we are concerned that the City effectively undermines this progress by allowing the outdated grass and weeds bylaw to persist,” says urban planner and landscape ecologist Nina-Marie Lister, co-author of the public letter and steward of the meadow in the photo above.

“Twenty-five years after the Ontario Court of Justice ruled that Sandy Bell’s naturalized garden was protected expression under the Charter, the City continues to place barriers in the way of positive action undertaken by those who create natural gardens,” says Lorraine Johnson, co-author of the public letter and author of numerous books on native plant gardening.

Dr. Lister’s lawyer, David Donnelly, has written to Mayor John Tory and the City Legal Department declaring the bylaw illegal, and of no force and effect.