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).
