Burlington gardener’s trial gets into the weeds about city bylaws
Burlington resident Karen Barnes has fought for a decade to keep her native pollinator garden. Victory may come down to unpacking the langauge of a city bylaw.
You might not picture a provincial courthouse as a place where people spend entire days debating plant definitions. But that’s what happens when you take a gardener to court. For the past decade Burlington and naturalist gardener Karen Elizabeth Barnes has been populating the yard area around her house with flora indigenous to southern Ontario, intent on returning that space to the condition of a wild meadow. Wildflowers such as coneflowers, purple asters, and milkweed have been popular with native bees, monarch butterflies, hummingbirds and other local birds such as woodpeckers and chickadees. However, her natural gardening project has been more controversial with certain neighbours and city officials. From nearly the start of her project she has received written orders, been contacted by bylaw officers and had surprise visits from work crews to clip, chop and mow her garden. Barnes may also now be forced to pay staggering fines.
Barnes originally received a notice from the city sometime after she started keeping her garden in 2015. However, other than conversations with bylaw officers, she was left alone. However, the city sent landscapers the next year , intending to cut down her plants. Barnes headed them off in time, but in 2017 a new crew showed up unannounced and chopped down her garden, including bushes and trees. After that experience, which she calls “shocking and devastating,” she enlisted environmental lawyer David Donnelly to help make her case that the garden was a naturalized area, and therefore permitted. Donnelly cited case law from prior instances where other Ontarians won the right to keep their naturalized gardens on constitutional grounds. Such cases go back at least to 1996, when Toronto gardener Sandy Bell challenged the city’s tallgrass bylaw, asserting her right to self-expression, and won.
Barnes and her lawyer’s negotiations seemed to be succeeding, but then in 2023 the City of Burlington issued a type of formal notice called an Order to Comply, demanding adherence to the city’s Lot Maintenance Bylaw. An Order to Comply also comes with the threat of enforcement. For Barnes, enforcement took the form of another crew showing up 30 days later to mow her garden. The city then upped the ante in 2024. That year Barnes was again served with an Order to Comply and once again workers arrived to cut down her plants. But this time the city added a stiff financial penalty, which could total $380,000. Barnes has raised money for her legal defence through online fundraising, but she has not accrued anything close to that amount.
This hefty penalty defines the stakes for Barnes when her trial commences in late March, 2026. Her counsel, Vilko Zbogar, successfully defended the right for Etobicoke resident Douglas Counter to naturalize the boulevard in front of his house in 2002. Like Counter and Bell, Barnes asserts her constitutional right to her garden because it expresses her deeply held values. But before tackling lofty constitutional questions, Barnes and Zbogar first challenge the legality of charges she faces under Burlington’s Lot Maintenance Bylaw.
Over two days, Zbogar cross-examines a pair of city employees that inspected Barnes’ garden and took part in laying charges against it. He minutely questions their interpretation of the Lot Maintenance Bylaw, and the consistency of its language, which is nebulous in some parts and acutely specific in others. For instance, the bylaw insists on a specific height limit of 20 centimetres for “vegetative growth.” The height of 20 centimetres recurs in local bylaws for other cities, such as Toronto’s Turfgrass and Prohibited Plants Bylaw and Mississauga’s like-named Turfgrass and Prohibited Plant Species Bylaw. However, both of these bylaws confine the height limit to turf grass. The rationale is that turf grass taller than 20 centimetres produces seedheads, the grass plant’s version of a flower. Seedheads then release windborne pollen, an allergen for some people.
However, the Order pertaining to Barnes’ property makes no distinction between grasses and non-grassy plants like New England aster, white panicle aster, milkweed and goldenrod, which do not produce the tiny, buoyant pollen particles that grasses do. Pollen from such flowery plants is too heavy and sticky to become airborne. But on paper, a limit of 20 centimetres applies to everything. Bylaw officer Jason Mai takes pains to be exact in his notes about the heights of vegetation. His notes record plants along the side of the house ranging from 20 to 90 centimetres, while plants in the front and back yards reach up to a metre and a half. No species are exempt from his instructions to “bring the property back into compliance.” Workers even raze a Russian olive tree to the prescribed height.
Under cross-examination, Mai finds it difficult to nail down a clear definition of “vegetative growth,” along with most other plant-related terms, including the difference between annual and perennial plants, or whether pine trees are trees—a matter he defers to experts. Mai refers nearly all botanical questions to outside expertise or to the bylaw’s text, which defines “vegetative growth” so broadly it technically describes all plant life. The bylaw’s object examples of “vegetative growth” mostly reference common weeds like crab grass and dandelions. But its actual description of “vegetative growth” specifies “woody or herbaceous plant material.” Botanically speaking, all plants are either woody or herbaceous (i.e. not woody).
The second witness is Nick Pirzas, a landscape architect employed by the City of Burlington. Pirzas has considerably more plant knowledge than Mai. However, Pirzas doesn’t have much more to say regarding a concrete definition of weeds, or whether Barnes’ property had any weeds on it. The Lot Maintenance Bylaw mentions two weedy categories: “common weeds,” which Mai and Pirzas both define aesthetically more than botanically as basically unwanted plants, and “noxious weeds,” which are defined by provincial law. The Province of Ontario’s Weed Control Act sets out criteria, mostly agricultural, such as harming livestock. The Act includes a long list of noxious weedy plants, such as ragweed, poison ivy, and dog-strangling vine. None of the species in this dreaded roster were found on Barnes’ property other than milkweeds, which are no longer considered noxious weeds. They were delisted in 2014, because of their benefit to monarch caterpillars.
The distinction between weeds and beneficial plants is meaningful to Barnes’ defence. She has long insisted, contrary to the city’s stance, that her garden is a “naturalized area,” filled with beneficial plants. Naturalized areas are exempt from the Lot Maintenance Bylaw’s 20-centimetre restriction—along with ornamental plants, conversely. The bylaw defines “naturalized areas” as “vegetation deliberately planted or cultivated with one or more species of wildflowers, shrubs, annuals, perennials, ornamental grasses, or combination of them, that is monitored and maintained by a person.”
The final piece about “monitoring and maintenance” seems to be on shaky ground, since it’s difficult to prove whether or not a person has monitored something. Furthermore, Zbogar points out, “maintenance of naturalized areas is not defined” in the bylaw.
It might be decided sooner than later whether the Court agrees with Zbogar that the City hasn’t proved its case, thanks to a bold move on his part. Late in the second day, Zbogar submits that the judge pronounce a verdict without calling further witnesses.
“If the Court is satisfied the city had no authority to mow down the garden,” he concludes, “no more evidence is needed.”
Ten years of tribulations for Barnes and her embattled garden may conclude as early as May 4, the next scheduled court date, depending on the judge’s decision. However, it’s hard to know what will remedy the City of Burlington’s truculence and seeming amnesia. For just over a decade the city has been stubbornly resistant and chronically forgetful regarding Barnes’ repeated efforts to explain that her garden is naturalized, intentional and within her constitutional rights. Hopefully a victory in court, speedy or otherwise, will be the end of her troubles.