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).
