This is a companion post to our blog on Making Sense of Municipal Regulation of Naturalized Lawns, which considers the legal framework that applies to efforts to naturalize or rewild properties.
While the patchwork of municipal by-laws across the province requires landowners to carefully consider the applicable property standards by-law if they want to naturalize their property, judicial decisions on rewilding have been more consistent.
Municipalities Should Not Regulate Aesthetics
In a 1995 decision on the issue of restricting the naturalization of residential lawns by municipal by-law, in Caledon (Town) v. Mik the Ontario Court of Justice held that municipalities are "confined to the powers given to it under this subsection of the Municipal Act. In my view, those powers do not extend to the regulation of aesthetics or the application of controls on the visual appearance of properties."
Naturalized Lawns may be Charter-Protected Forms of Expression
The next year, in Bell v Toronto (City) the Ontario Court of Justice recognized that the freedom of expression constitutionally protected under section 2(b) of the Canadian Charter of Rights and Freedoms extend to protect expressions of environmental values and beliefs reflected in naturalized gardens.
In Bell, the housing by-law in force in Toronto at the time included the requirement that residential yards be kept free of "excessive growths of weeds and grass." Ms. Bell appealed her conviction for failing to comply with a municipal by-law enforcement officer's order to cut the grass and "weeds" in her yard that were deemed to be "excessive." On appeal, she testified that she created a "wild garden" in her front yard to reflect her environmental beliefs, foster a healthy ecological environment, and provide a nurturing outdoor environment for her child. The court found that the primary purpose of the by-law was to "impose on all property owners the conventional landscaping practices considered by most people to be desirable." One effect of this is the prevention of naturalized gardens, which reflect "less conventional values" concerning property standards. The Court found this by-law to infringe upon the Charter-protected freedom of expression under section 2(b).
In Bell, the court also found that the use of the term "excessive" in the by-law's description of prohibited growth was too broad and enabled the prohibition of "visually offensive yards." This had the "effect of totally banning wild gardens" and was not a minimal impairment of "the right to express the values and beliefs reflected in such gardens." The court stated that "some offense must be tolerated" by people who consider these gardens "ugly." Therefore, the by-law could not be justified under s. 1 of the Charter.
Limiting Freedom of Expression May be Justified by Public Safety Concerns
However, the courts have observed that an infringement on landowners' freedom of expression in how they keep their properties can be justified for public safety. In Bell, the court upheld a requirement in the by-law to clear dry, combustible grass cuttings to be from properties on the basis of public safety. Then in Counter v Toronto (City), while the Court of Appeal for Ontario ("ONCA") reaffirmed that having a naturalized garden is a constitutionally protected expression, it also reaffirmed that municipal limitations on such expression maybe justified under section 1 of the Charter if the limitation pursues the objective of increasing public safety. In Counter, tall shrubs on the property in question obstructed sight lines for oncoming traffic, which the Court identified as a danger. Therefore, ordering the Plaintiff to shorten the shrubs was a justifiable infringement of their Charter rights.
Challenges to Constitutionality of By-Laws Restricting Rewilding not Frivolous
While Bell and Counter both came before the courts in the context of prosecutions of offences under the applicable by-laws, challenging the constitutionality of by-laws limiting landowners' abilities to naturalize their properties may also be possible proactively and not simply defensively. In a recent decision in Tardif v City of Ottawa on a preliminary procedural issue, the Superior Court of Justice considered whether a legal proceeding against the City of Ottawa should be dismissed as "frivolous, vexatious, or otherwise an abuse of the process." The plaintiff homeowner challenged Ottawa's yard maintenance by-law, arguing it is unconstitutional as it:
[...] infringes on his right to life, liberty and security of the person because it irrationally requires the elimination of shrubs, plants and trees that are good for the environment, even though such vegetation presents no risk or harm to anyone.
The Court refused to dismiss the claim, stating, "[t]here is a core complaint in this action that could be legitimate. Mr. Tardif has pleaded material facts which, if proved, could provide a basis to challenge the By-Law." It will be interesting to observe this case to see if the Court ultimately finds that constitutional challenges to by-law restricting naturalization and rewilding of properties could be wielded as a sword to attack such restrictions, rather than simply a shield to defend against enforcement and prosecution.
 Caledon (Town) v. Mik, 1995 CarswellOnt 615.