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A fight against Mississauga’s lawn laws could mean much more
By Omar Mosleh Staff Reporter
When does gardening qualify as a human right?
That depends what side of the lawn you’re on.
For proponents of naturalized gardens, which are allowed to grow semi-wild for environmental reasons, one of the clearest rulings dates back to the early ‘90s, when a Toronto woman named Sandy Bell challenged a $50 bylaw infraction ticket on the basis of freedom of expression.
Bell said she naturalized her garden to help the environment, and her lawyers argued the city forcing her to trim it violated her Charter right to express her environmental beliefs through her gardening. The judge agreed, and her victory has been called precedent-setting and is oft-cited in case law.
“My primary concern or raison d’etre was to demonstrate to my young son that we could coexist with nature... so that was just a really clear case of being able to express my own environmental beliefs,” Bell said in a recent phone interview.
But a recent ruling out of Ontario’s Superior Court shows the issue is not so clearcut, after it rejected an application from a Mississauga man who argued that a bylaw in its current form infringes upon his Charter rights.
Wolf Ruck, an artist, filmmaker and canoeing Olympian in his late 70s, said he started naturalizing his garden to “give nature a chance” and encourage biodiversity and cross-pollination.
In his challenge, he said he wasn’t disputing the bylaw itself, but the way it was enforced. He contends it was applied unfairly and arbitrarily based on neighbour complaints, and that the city hasn’t identified how it’s detrimental to the neighbourhood.
As he appeals the ruling, Ruck says he’s now on the hook for about $7,000 to cover the city’s legal costs and bylaw enforcement. But he’s more concerned about the broader message the court ruling sends.
“Some people feel that this could possibly jeopardize the whole rewilding effort,” Ruck said, referring to a hands-off approach of helping the environment by letting nature take care of itself.
The case is but one example of a growing movement of people who are challenging municipal weed control bylaws for being outdated, unclear or unconstitutional. Some of those challenges have been successful, such as one in Smiths Falls, Ont., that saw the town back down after a couple appealed to Superior Court. Others continue to drag on, such as a dispute in Burlington where the city threatened a $10,000-a-day fine before proceeding to destroy the garden.
Wolf Ruck says he’s on the hook for about $7,000 to cover the city’s legal costs and bylaw enforcement. He has started a petition to rescind Mississauga’s tall grass and weeds bylaw, as well as a GoFundMe to help with legal costs.
“The inordinate amount of time, effort and expense that they have gone through to essentially satisfy one or more neighbours’ aesthetic concerns ... there’s no reasonableness,” he said. “There’s no proportionality... it’s absolutely ridiculous.”
In the Superior Court ruling, dated May 2, the judge acknowledges the ecological benefit of encouraging biodiversity and accepts the previous court conclusion that gardening is a legitimate form of expression.
It adds that the bylaw’s enforcement does, to some extent, violate Ruck’s right to freedom of expression, but that right is not absolute. The municipality’s intention to protect residents from noxious weeds and fire risks outweighs the “deleterious effects,” it says.
“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 ... 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 ruling says.
A City of Mississauga spokesperson said officials been dealing with complaints about nuisance weeds and tall grass at Ruck’s address since 2021 and have tried to work with the homeowner before moving to enforcement. They added that his application was dismissed and didn’t violate the Charter.
“Mr. Ruck is now appealing that decision to the Court of Appeal. Because this matter is before the courts, the City does not have any further comment at this time.”
The city’s approach and the court’s decision were problematic and legally flawed, maintains David Donnelly, an environmental lawyer who has defended numerous clients in their disputes with municipalities over naturalized lawns.
In this situation, he said the primary issue is the municipality has not clearly identified how Ruck’s lawn poses a threat to health or safety. “That’s where they made I think a fundamental error ... the court in this case is now regulating aesthetics,” Donnelly said. He described Ruck’s case as a setback and a bad precedent, but added “it is unlikely future courts will uphold similar, unconstitutional by-laws and their enforcement.”
Mississauga’s weed control bylaw says tall grasses and nuisance weeds can cause allergic reactions, threats to fire safety and disruption to ecological systems. It adds they can also impair driver sightlines, encourage rodents and mosquitoes and contribute to neighbourhood blight.
Donnelly said he saw parallels with an ongoing case in Burlington he is involved with, which he said is an example of “municipal bylaw departments being run by neighbours and not by scientists.”
Ruck said he has tried to get clarity on what exactly he is or isn’t allowed to grow and that bylaw enforcement officers aren’t properly trained to distinguish between so- called weeds and what he says are ornamental and medicinal plants in his garden, such as purple moor grass, sow thistle and Canada goldenrod.
“What I’m doing here is not everyone’s cup of tea,” he said on a recent tour of his garden, as his Siamese cat Mischa kept a watchful eye on the numerous squirrels, birds and butterflies attracted to his yard. “But there has been no evidence provided that I am contravening (the bylaw), for example, that my lawn is a fire hazard or that my lawn is harbouring rodents that are running wild.”
He added that he does mow his lawn, creating neat paths around the garden portion, and removes problematic weeds such as dog-strangling vine.
While lawns have long been a source of rancour between neighbours, there is change in the air, said Nina-Marie Lister, a ecological designer and professor at Toronto Metropolitan University, where she directs the Ecological Design Lab.
She said the notion of cultivating lawns specifically to encourage biodiversity has seen a great deal of momentum in recent years, as more people experience climate anxiety and wonder how they can do their part in mitigating it.
“This is a groundswell, a movement that has been going on for a very long time, but has gained a lot of traction over the last four years,” Lister said.
“This is really not an aberration anymore ... It’s actually what one could say is a mainstream kind of environmental movement.”
Lorraine Johnson, an advocate and author who has been researching and writing about native plant gardening for more than 30 years, said most yard complaints are simply because neighbours don’t like the look of it.
“If those were weeded out by asking, ‘OK, what is the prohibited plant that is in the yard that you’re complaining about?’ and if the person complaining can’t actually name it, then that complaint is clearly without basis,” she said.
Part of the problem with many municipal bylaws is they use nebulous language such as “weeds” or “uncontrolled growth,” Johnson said. In 2022, Toronto amended its bylaw to specifically define turfgrass and added a list of prohibited plants, such as poison ivy. Donnelly calls it a “substantial improvement”.
Other cities are also changing their approach, Lister said, pointing to bylaws introduced or being looked at in Brampton, Thunder Bay and in Prince Edward County. London also introduced a bylaw that is more permissive toward naturalized gardens this year, and Kingston is set to review an updated bylaw in June.
Nina-Marie Lister is a professor at Toronto Metropolitan University and a director of the Ecological Design Lab. On the issue of a garden as a form of expression, Lister said it’s important to distinguish between a thoughtfully cultivated natural garden and a “hands-off, lazy garden project.”
“It doesn’t mean that you can just turn your back on your yard and neglect it,” she said. “It means ... you’re actively doing something in that yard that shows conformity with your creed or your religion or your environmental beliefs.”
Bell, who now lives in Nova Scotia, said she was disappointed to see that many still struggle to have their naturalized lawns recognized so many years after the courts ruled in her favour.
“Having an actual garden rather than an industrial lawn is one of the best things that we can do.to offset carbon emissions and greenhouse warming. I think that we all need to take seriously the idea that we can actually produce oxygen on our properties, instead of carbon.”