Category Archives: Gardens Under Threat

Merry Christmas from Toronto–We’re Cutting your Garden and Sending you the Bill.

To those members of Council who celebrated the recent Street bylaw as a means of promoting more productive use of Toronto’s 11,200 km of boulevards, I have bad news.  This bylaw is being used to cut any plantings exceeding 8 inches in height…a restriction already deemed ludicrous by Ontario courts.  <Links to relevant staff members and Council are listed at the bottom of this post.>

My Miscreant Boulevard June 22, 2012

My Miscreant Boulevard June 22, 2012

My boulevard was planted with a variety of native species in 1996, at a time when the City was actively promoting such efforts.  It included several rare and endangered species, many of which did not recover following the City’s illegal cutting of my gardens in 2007.  City staff are now threatening to once again cut this recovering stretch of garden, “sometime over the next two weeks“…despite it successfully undergoing inspection by Toronto’s horticulturalist under the City’s natural garden exemption process on December 11, 2012.  Unable to immediately proceed under the original bylaw 489 (long grass & weeds) charge, the Executive Director of MLS passed the issue on to the

High Park Boulevard Bed -- impeding pedestrians?

High Park Boulevard Bed — impeding pedestrians?  Photo:  Sharon Lovett

Transportation Department’s newly enacted Streets bylaw….which purports to encourage the planting of “soft landscaping (vegetation such as sod, hedges, flower/fruit/vegetable gardens)”,  in order to harm at least the boulevard portion of native species.

Toronto's 2007 "remedial action"

Toronto’s 2007 “remedial action”

Toronto is already engaged in a lawsuit concerning their actions against this property yet despite warnings that such actions will increase any claims, staff continue to harass me based solely on their perceptions of garden aesthetics and in an effort to curtail my suggestions to Council that the budget of Toronto’s “garden police” be re-allocated to more crucial areas.

Tall Grass Traffic Island

Tall Grass Traffic Island

Safety is obviously not their concern as no efforts have been made to charge more substantial plantings on neighbouring properties that lack a demarcating sidewalk.  Moreover, my plantings in no way impede sight lines, unlike similar plantings created by Toronto on centre medians.

True, the plants are currently dormant, but their stalks and seed heads offer crucial food and shelter to overwintering wildlife.  Garden design is protected as a form of expression under the Canadian Charter of Rights and Freedoms and this, as well as the RIGHT to garden on boulevards, has been confirmed by the Courts in previous actions against Toronto.  Referring to a Justice Fairgrieve’s comments in his judgement against the City of Toronto in Bell vs Toronto:
“I think we have all become accustomed to accepting that not everyone shares the same tastes, and that differing practices are no less valid or tolerable simply because they deviate from the norm.”
“Having found that the by-law unjustifiably infringes the appellant’s freedom of expression guaranteed by s. 2(b) of the Charter, pursuant to s. 52(1) of the Constitution Act, 1982, it is of no force or effect. In those circumstances, I do not think it is necessary to consider whether it also has the effect of breaching the appellant’s freedom of conscience guaranteed by s. 2(a).”  J. Fairgrieve, Bell v Toronto.  1996

Staff purported that recent amendments to bylaw 489 were intended to “preempt the unnecessary and unwarranted issuance of notices”, this is clearly not the case.

Sometime over the next two weeks, City staff will attempt to once again damage my small ecosystem.  I am asking your help to stop this injustice.

Staff have shrewdly timed this move during the holiday hiatus, and few Councillors are available, but I would still appreciate your sending letters and emails to them on my behalf and on behalf of all other miscreant Toronto gardeners who will continue to be threatened if we don’t draw a line in the soil now.

You may also wish to cc

  • Tracey Cook, Executive Director of Municipal Licensing and Services (controlling “natural garden exemptions”),
  • Bob Taylor Manager, Right-of-Way Management, Transportation Services, who is apparently amenable to cutting any boulevard garden exceeding 8 inches in height regardless of it posing a hazard.
  • John Livey, Deputy City Manager

With thanks,

Deborah Dale,
biologist; past-President North American Native Plant Society; former Recycling Coordinator/Solid Waste Specialist City of Scarborough; President Verdigrow Ltd.

Allbirch Pollinator Garden wins fight to garden “naturally” in Ottawa

Hank and Vera Jones of Ottawa, Ontario transformed their property into a pollinator oasis and by doing so, incurred the wrath of local bylaw inspectors in 2010.   Gaining widespread media attention and support, the couple forced Ottawa to reconsider its bylaw (still awaiting official revision).  What transformed this quiet couple into eco-warriors?  They hold a profound belief that saving the planet can happen yard by yard.  Hank sent along the following note in support of Toronto’s eco-warriors.
“By 1870, Britain’s William Robinson had defined and demonstrated the wild, or natural, garden. Its boundaries grade into the natural surroundings, often transitioned by shrubbery. Its core is a mix of native and naturalized species laid out as inspired by, and in concert with, nature, rather than by formal settings. Wild gardens are easily sustainable, by definition, and healthy for our threatened native pollinators. As food gardening grows more popular in cities, and seed for next year’s garden are kept, having healthy pollinators populations is essential.
Today’s all-too-frequent urban ‘gardens’, are often just mown lawns of afro-asian turf grasses bespotted with annuals. They are unnatural in a biblical sense, and an abomination to wild pollinators.
In our impending future, urban home food gardening may well again become essential to family food security. Urban natural gardening will become an all-too-obvious, first-choice necessity. The sooner we learn this lesson, the easily our future will be!”
http://en.wikipedia.org/wiki/William_Robinson_(gardener)#The_Wild_Garden.2C_1870
The following was written by John Sankey also of Ottawa, ON in 2007
(http://web.ncf.ca/bf250/charter.html)

Naturalised Gardens and Municipal Standards By-Laws

An Ontario appeal court has found that wild gardens are a form of freedom of expression protected by the Constitution of Canada.

City of Toronto by-law 73-68 stated that “All parts of a dwelling, including the yards appurtenant thereto, shall be kept clean and free from … excessive growths of weeds and grass …”. Sandra Bell of that city was charged in 1993 by a city building inspector as being in violation of this by-law, due to the appearance of her front yard which she described as “an environmentally sound wild garden”. She was found guilty by a Justice of the Peace and fined $50.

Her appeal of this conviction was heard in 1996 (O.J. No. 3146 DRS 96-18852). Expert witnesses at the appeal included Harry Merrens, a York University geography professor, who testified that current domestic gardens express an urge to dominate or control nature. People who are part of the naturalistic gardening movement are generally motivated by a philosophy with ecological, economic and spiritual goals that seek a more harmonious and restorative relationship with nature. Such gardens still involve some degree of control, but they eliminate the need for chemical pesticides and power tools to control plants, and reduce the use of water. James Hodgins, the editor of Wildflower Magazine, testified that about 90% of native plant species grow naturally higher than the 1′ height cited by the building inspector, and that the term ‘weed’ is a subjective term that has no scientific standing. He noted that Toronto City Hall featured ‘ornamental’ grasses over a metre high, and that two City parks (High and Yorkville) featured extensive naturalised sections designed by City staff.

The appeal was allowed. The appeal court found that the bylaw did not exceed the authority of the City under its authority to pass by-laws “fixing a standard of fitness for human habitation to which all dwellings must conform”. It also, regrettably, rejected the notion that ‘weed’ was an unacceptable legal description for this purpose. But, it held, for a number of reasons, that the Toronto by-law’s primary purpose was an aesthetic one not related to safety, human health, or environmental nuisance, and was therefore void on that ground.

However, perhaps in view of the fact that Bell’s front yard was clearly not a shining example of a natural garden, the court went further. It quoted the Supreme Court of Canada that, “the purpose [of the Canadian Charter of Rights and Freedoms] is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.” It 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” and, as such, infringed Ms. Bell’s freedom of expression. It also found that “as between a total restriction of naturalistic gardens and causing some offence to those people who consider them ugly … some offence must be tolerated.”

The Bell case applied to privately-owned property. In 2002, a further ruling in the case of Douglas Counter (2002 CanLII 26796 (ON S.C.)) extended Charter rights of expression to the city-owned boulevard in front of his home which he was required to maintain.

So, you really are entitled to your back yard meadow in Ontario as long as you believe in it. However, you may well have to fight for it.

On 21 August 2007 the City of Toronto’s bylaws department declared open war on natural areas in the City: the 12-year-old natural garden of Deborah Dale, the past president of the North American Native Plant Society (NANPS), was demolished by City staff.

In defiance of the court rulings, and despite the absence of any such provisions in the relevant section of the Toronto Municipal Code, the City manager of licensing and standards is quoted as insisting, “It has to be a maintained natural garden … an exemption permit is required.” The city not only destroyed flowering plants and plants that were setting seed for use by NANPS in their fundraising efforts, they also removed shrubs, a red oak tree, and even the sign indicating that it was a natural, pesticide-free garden. Although Dale is receiving support from other areas of city government, she has had to go to court to deal with the bylaws department. The City has so far responded by attempting to bankrupt her through expensive pretrial and delay procedures.

The situation is worse in the City of Ottawa. The 2005 Property Standards Bylaw states that yards (all of them, not just those visible to the public) must be trimmed lawns or must be “landscaped or maintained” using “ornamental grasses or flowers”. The standard of judgement: consistent with the surrounding environment, i.e. the neighbours. The same judgmental criteria is used for road verges. There’s no room here for a natural space, only for neighbourhood zealots.