Court not convinced that area is wetland – farmer acquitted

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Conservation Authorities in Ontario are authorized by the Conservation Authorities Act (the “Act”) to make regulations “prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland”.  Authorities can also make regulations “prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development”.  There is almost no area within Southern Ontario that is not subject to a regulation passed by a local or regional Conservation Authority.  However, generally, these regulations can only apply to river or stream valleys, hazardous lands or wetlands – “regulated areas” or “zones”.   

What constitutes a regulated area or zone is not always obvious.  For instance, a river or stream valley doesn’t actually have to contain a watercourse – the regulations can apply to areas with “depressional features associated with a river or stream”.  The Act defines “hazardous land” as “land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock”, but doesn’t define what might be unsafe.  To be considered “wetland” under the Act, land must meet the following four highly technical requirements (and not fall under the exception):

(a)            be seasonally or permanently covered by shallow water or have a water table close to or at its surface,

(b)          directly contribute to the hydrological function of a watershed through connection with a surface watercourse,

(c)           have hydric soils, the formation of which has been caused by the presence of abundant water, and

(d)            have vegetation dominated by hydrophytic plans or water tolerant plants, the dominance of which has been favoured by the presence of abundant water, but not be periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d).  [emphasis added]

The regulation of development also applies to “other areas where development could interfere with the hydrologic function of a wetland, including areas within 120 metres of all provincially significant wetlands and areas within 30 metres of all other wetlands.”

In a prosecution by a Conservation Authority for development in a regulated area without a permit or for interference with a wetland, the Authority must establish beyond a reasonable doubt that the activity carried out by the party charged occurred within a regulated area.  The Ontario Court of Justice recently dismissed charges against a farmer related to clearing work carried out in 2019 because the Conservation Authority failed to prove beyond a reasonable doubt that the area cleared was a wetland, as was alleged by the Authority.  The farmer had removed trees and vegetation from a “wooded area” located between tile-drained cultivated land to the north and east and intersecting drainage ditches to the south and west.  The land was cleared to extend the tile drainage system and bring the land under cultivation.  After receiving an anonymous complaint about trees being removed from the farmer’s property and conducting a further investigation, the Conservation Authority laid various charges, including a charge for interference with a wetland. 

At trial, both the Conservation Authority and the farmer called expert witnesses to testify on the question of whether the area cleared was, in fact, a wetland.  The Authority called one of its employees who had taken soil samples from the cleared area a few months after the clearing work was completed and took photos.  She confirmed that on her visit to the site in the midst of the spring thaw in April, 2020 she did not observe water on the cleared area.  She confirmed that she did not encounter the water table in any of her examinations of the area.  However, the Conservation Authority’s expert witness did say that the clay soil and “orange soil” she encountered could be indicators of hydric soils.  Also, she observed vegetation that she considered to be “hydrophytic plants” adjacent to the cleared area and in the piles of cleared vegetation or “slash piles”.  The Authority’s expert’s opinion was that the cleared area met the statutory definition of a wetland.

The farmer’s expert witness dug two 1-metre-deep pits just outside the cleared area to assess the soil in the cleared area.  His opinion was that hydric soils must contain gley soil, a rich grey clay-like soil.  The farmer’s expert did not encounter any gleys.  While he did find that the soils were imperfectly drained and opined that imperfectly drained soil could be considered hydric soil depending on the vegetation present, his conclusion was that the cleared area was not a wetland within the meaning of the term used in the Act.

The Justice of the Peace presiding over the case observed that there was no evidence that the cleared area was seasonally covered by water, that any hydric soils present were caused because of an abundance of water in the area, or that hydrophytic or water tolerant plants dominated the area (as favoured by an abundance of water).  As such, three of the four requirements for a “wetland” under the Act were not met and the wetland interference charge had to be dismissed.

Statute Labour for the 21st Century?

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

I probably shouldn’t have been surprised, but I was surprised upon learning recently of a municipal by-law requiring landowners to keep grass and weeds down below a maximum height on the municipal boulevard abutting private properties.  The by-law was passed by an urban municipality – a city in the GTA area – and applies to all “private land” regardless of its use.  While it is easy to picture the small strip of grass located between the edge of the street or sidewalk and a residential front yard and to understand why a municipality might expect the homeowner to cut the grass on the boulevard (road allowance) strip if the homeowner is cutting the lawn on the private property anyway, what about larger farm properties or industrial properties within the municipality?  Is it fair to impose an obligation to maintain large stretches of municipal property on non-residential landowners?  Is it legal?

It turns out that boulevard maintenance by-laws are fairly common in Ontario.  A 2012 report from the “Boulevard Maintenance Task Force” to municipal council in one community explains the rationale and authority for the by-laws:

“Most residents and business owners … assume responsibility for maintaining turf areas on municipal boulevards abutting their properties, however, some property owners only cut the grass within their own fenced yards or only up to the limit of the sidewalk fronting their homes.  This practice creates an unsightly, unkempt appearance within the community particularly on residential corners and side lots. 

 

[…]

 

“Amendments to the Ontario Municipal Act now authorize municipalities to enact By-laws requiring property owners to maintain the boulevard areas abutting their private properties.  Enforcement of the By-law would be similar to the current practice whereby Enforcement Officers would respond to complaints by conducting site visits and providing formal notice to the owner to cut the grass.  However, if the owner chooses to ignore the notice, the Town will undertake the work and add the costs incurred (including administration and overhead) to the tax roll.”

I have been unable to find any specific authorization in the Municipal Act, 2001 for by-laws that require property owners to maintain abutting municipal lands, whether within a road allowance or not.  The preamble to the by-law I looked at from the GTA-area municipality refers to the very broad authorizations in Section 11 of the Act, which permit by-laws for the “economic, social and environmental well-being of the municipality, including respecting climate change” and for the “health, safety and well-being of persons.”  The Act also provides that municipalities may require a property owner to clean and clear the owner’s own land and may prohibit and regulate with respect to public nuisances.  However, there doesn’t appear to be any specific authority to require private landowners to carry out maintenance work on municipal-owned property. 

Another by-law I reviewed stated in its preamble that: “AND WHEREAS … section 446 of the Municipal Act, S.O. 2001, c.25, grants a municipality the authority to direct or require a person to do a matter or thing, and the municipality may also provide that, in default of it being done by the person … directed or required to do it, the matter or thing shall be done at the person’s expense and, the municipality may recover the cost of doing a matter or thing from the person directed or required to do it by action or by adding the costs to the tax roll and collecting them in the same manner as property taxes”.  However, Section 446 of the Act doesn’t actually grant authority to order someone “to do a matter or thing” – it only provides for the municipality’s right to charge back the cost of doing the matter or thing where a person doesn’t do it.  The municipality still has to have had the legal authority to order someone to do something in the first place. 

So are municipalities really authorized to order landowners to maintain the municipal boulevard or road allowance adjacent to private lands?   Keeping weeds and grass down to an acceptable height along streets and highways is certainly a reasonable goal that should be supported by all members of a community.  However, boulevard maintenance by-laws don’t just call on certain members of the community to devote time and expense to the upkeep of public lands; a requirement to carry out work on municipal lands also shifts the risk of liability to private landowners.  I didn’t see any by-law that mentioned protections for landowners who are required to enter upon and carry out work on boulevards or road allowances.  If damage is done or someone gets hurt, the landowner may very well be on the hook.

If there is legislation that authorizes a municipality to require private landowners to carry out operations on abutting municipal lands (and to take on the risk of liability), it doesn’t seem to me to be the Municipal Act, 2001.  There used to be a law in Ontario called the Statute Labour Act, which obligated landowners to contribute labour to maintain municipal roads.  The law dated back to the first Acts of the Parliament of Upper Canada in 1793 and effectively enabled property owners to contribute labour in lieu of paying taxes in cash.  The original Act provided: “That the roads and highways, in and through every parish, township or reputed township shall be cleared, repaired and maintained by the inhabitants thereof, and that every person being a householder or freeholder, shall either in person or by a sufficient man in his stead, be obliged to work on the roads …”.  The Statute Labour Act was repealed on January 1, 2022 and no new legislation has been passed to replace it.

Municipality cuts down abandoned orchard trees deemed noxious weeds

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

According to Ontario’s Weed Control Act, “every person in possession of land shall destroy all noxious weeds on it.”  The owner of land is deemed by the Act to be in possession of the land.  Provincial and municipal road authorities are deemed to be in possession of road allowances.  Noxious weeds are those that are prescribed in the Regulation made under the Act (including giant hogweed, poison-ivy, leafy spurge, sow-thistle, ragweed, etc.) and other plants that may be deemed to be a noxious weed (called a “local weed”) in a by-law passed by a municipality.  The council of upper-tier municipalities (counties, regions, cities) and some other municipalities are required by the Act to appoint one or more area weed inspectors to enforce the Act.  Only municipalities that have appointed a weed inspector may pass a by-law deeming other plants to be noxious weeds.

Weed inspectors are empowered to enter any land and buildings (dwelling houses excepted) between sunrise and sunset for the purpose of searching for noxious weeds and weed seeds and may also inspect implements, machinery, vehicles, crops and other plants.  Where access to a property is denied, the weed inspector can obtain a search warrant without prior notice to the owner or occupier of the property.  The inspector may order a person in possession of land to destroy noxious weeds or weed seeds.  If the person in possession does not comply with the order, the weed inspector may “cause the noxious weeds or weed seeds to be destroyed in the prescribed manner”, with the cost of the work charged back to the owner of the lands by the municipality.  The prescribed manner of destroying noxious weeds includes pulling or removing the plants from the soil, cutting the roots or stalks of the plants, ploughing or cultivating the soil, or treating the plants with a herbicide. 

In August of this year, Justice Sheard of the Ontario Superior Court of Justice released her decision in a lawsuit brought by landowners against their local municipality after the Municipality cut down an apple and pear orchard on the landowners’ property.  The orchard was cut down in 2014 and the landowners were billed $12,800 for the work.  Their court action was commenced in 2015 and a trial took place before Justice Sheard over several days in 2022 and 2023.  The lawsuit included claims for: $1,500,000 in general damages for negligence, misfeasance in public office, negligent assumption of jurisdiction, trespass, and nuisance; $1,000,000 in punitive and exemplary damages; a declaration that the Municipality’s weed by-law was void for bad faith, vagueness, overreach, etc.; a declaration that the landowners’ natural justice rights were violated; and an order for reimbursement of the $12,800 cost of the tree removal work.

The landowners had purchased their property in May, 2011.  The property was 20 acres in size and included two abandoned orchards of about 2.5 acres each (only one of which was at issue in the litigation).  Very shortly before the landowners’ purchase, a new neighbour purchased an adjacent farm property where he planted apple trees with a view to developing an orchard.  That neighbour had concerns that the landowners’ abandoned orchard was full of disease and insect pests that would threaten the existence of his young apple trees.  The neighbour raised this concern with the Municipality and had learned through OMAFRA that other municipalities had passed by-laws designating abandoned orchards as noxious weeds.  He requested that his own municipality do the same.

In 2013, the Municipality’s Council passed a by-law designating diseased fruit trees as “local weeds” to be treated as noxious weeds pursuant to the Weed Control Act.   A “diseased fruit tree” was defined in the by-law as “a fruit tree as herein defined, whether dead or alive, which fruit tree as part of a planting of greater than 0.25 ha (0.618 ac) and which planting is within the 375 m (1,230.31 ft) of a fruit growing operation or plant nursery operation, and which planting has been neglected from normal standards of good farming practices, such that it exhibits fruit tree disease or populations of insects which represent a reasonable threat by movement to such commercial fruit growing operation.”  A “fruit tree” included both apple trees and pear trees.

In April, 2014, the Municipality determined that the landowners’ one abandoned orchard contained diseased fruit trees and issued an order to the landowners to “bring down and burn” the apple trees within 30 days of service of the order.  Nearly four months later, the trees had not been destroyed.  In August, 2014, the Municipality moved in and had the diseased trees cut down.

Justice Sheard dismissed the landowners’ court action in its entirety.  She found that the weed control by-law passed by the Municipality was not void – it was clearly within the scope of the Municipality’s statutory authority given to it under the Act.  The Municipality followed the proper procedure in passing the by-law and the bylaw was submitted to and approved by the Minister of Agriculture, Food and Rural Affairs as required by the Act.  Justice Sheard disagreed with the landowners that the by-law targeted them in particular, commenting:

Had the plaintiffs acted in accordance with “normal standards of good farming practices” in the management of the Orchard, the Bylaw would have been of no concern to them. Indeed, had the plaintiffs acted on their stated objective to develop a commercial apple growing operation, they might well have been advocates for the Bylaw, intended to protect all fruit growing or plant nursery operations.

Having found that the by-law itself was valid, Justice Sheard concluded that the landowners’ court action must fail because their recourse was not to the Court but to the chief weed inspector appointed pursuant to the Weed Control Act.  Where a municipal weed inspector makes an order against a person in possession of land, that person may appeal the order to the chief inspector who may either confirm or revoke the order or make a new order.  The chief inspector’s order may be appealed to the Divisional Court.  In this case, the landowners did not appeal the order and were bound by it.  As the order was found to be valid, there was no basis on which the landowners could sue the Municipality for damages allegedly resulting from the operation of the order.

Read the decision at:  2023 ONSC 4540 (CanLII).