Dude, where is my grass/weed?

Just a few years ago we were using words like “grass” and “weed” in a different context than we are now.  Just like the legalization of cannabis, this too will likely pass without the world ending due to an apocalypse of 23 cm dandelions.

By now, I suspect that many of my colleagues in the municipal law enforcement sector have heard or read rumblings of the Ruck v. City of Mississauga, 2026 ONSC 73 decision at the Superior Court level.  

Firstly, let me state that my comments are based on what I am aware of as of this date and are my opinion only.  The City of Mississauga may choose to appeal this decision.  Any resulting outcome will impact any future reactions.

In short, this relates to an action by a Mississauga resident, Mr. Ruck, against the City for various actions taken against him regarding the condition of his property relative to the City’s By-law 0125-2017, which prescribes the permitted height of tall grass to be no more than 20 cm.  To be clear, it does not appear that the City initiated any court proceeding against Mr. Ruck (ie, the POA) or via AMPS.  Instead choosing to cut any areas of his property that were in non-compliance and apply the costs to his property taxes.

There were several grounds for appeal presented by Mr. Ruck:

• Procedural fairness, lack of access to natural justice (Improperly trained officers, powers of entry and by-law provisions enacted in bad faith); and

• An infringement on the fundamental freedoms laid out in section 2 (b) of our nation’s Charter of Rights, included below:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

The Superior Court Justice was not persuaded by the majority of the claims presented by Mr. Ruck, namely those related to procedural fairness and natural justice.  This is good news as it appears to validate their enforcement process, which is similar to many other municipalities.

However, the Justice did agree with Mr. Ruck that sections 5 and 6 of the stated By-law did infringe on his rights as protected by section 2(b) of the Charter.   It appears that the City did not dispute this.  However, they maintained that the infringement was a minimal impairment of such rights.  The Justice did not agree with their argument and determined that the infringement was “relatively serious” in that the by-law provisions “serve to restrict societal expression at a landowner’s home”.

The sections of the By-law that are called into question are: 

5. Every Owner of Land shall cut and maintain tall grass to a height not exceeding 20 centimetres. 

6. Every Owner of Land shall destroy and remove all Nuisance Weeds and Nuisance Weed Seeds on their Lands.  (The list of weeds is included on a schedule in the by-law)

Mr. Ruck appeared to show attempts to manage the growth on his property as opposed to simply ignoring it and letting the property overgrow.  I believe this is a key consideration.  Also, Mississauga’s by-law does not appear to contain any alternatives to the 20cm height, such as options for naturalized (but managed) areas.

As a result, sections 5 and 6 of the By-law were declared invalid and “without force and effect”.  Fortunately, as we almost always provide for, the City’s By-law included a “severability” provision, so the entire By-law does not appear to be lost.

Okay, so now what? Firstly, it is yet to be determined whether the City will appeal this decision.

This decision does not result from a legal proceeding commenced by the City. It results from a Charter challenge by an individual.  The City did not attempt to impose any fines through the POA process (the POA courts would take notice of this decision) or penalties through the AMPS process.  It undertook the remedial work and applied the costs to the property taxes.

On the surface, it would appear that municipalities have 2 options if their by-laws contain similar provisions as those declared invalid in this case:

1. Simply carry on as they have been.  Most municipalities address long grass and weed complaints by undertaking remedial work and applying the costs when people fail to comply.  The risk is that a property owner could challenge (in Superior Court, as Mr. Ruck did) the City’s actions and the application of the costs.  If this happens, this Ruck case would provide a persuasive argument for the sitting Justice.

2. Look to amendments to any current provisions that mirror Mississauga’s.  In reading this case, the Justice noted that there appeared to be little attempt to research other potential alternatives to a specific measurement and a specific list of weeds (ie, options that may serve to minimize the impact of the infringement on the section 2 rights).

We typically try to structure by-laws utilizing whatever objective measures we can and avoid subjectivity where possible.  However, in this instance, it would appear that an objective measurement of 20cms and the inclusion of a plant species on a list may no longer meet a test that can withstand a Charter challenge.

The days of expecting your neighbour to maintain their lawn like a golf course, vacuuming it, and cutting it with scissors appear to be over.

In an attempt to guard against a charter challenge, we need to focus on the objective (in this case, health and safety) and the means to meet that objective (the by-law regs).  To what extent does the objective and the means to achieve it, impair the rights of the individual?

The concern here is that any type of regulation includes a level of subjectivity, given that the Court has rejected an objective standard as a violation.  Freedom of expression, in itself, inherently involves a level of subjectivity.

Please excuse my shameless plug – if anyone is interested in discussing potential by-law wording aimed to mitigate the impact of this type of decision, please do not hesitate to reach out.