POP Recommendations to Ottawa Transportation Committee on Planting on Right of Way

Councillor Tim Tierney, Chair, Transportation Committee Councillor Catherine Kitts, Vice-Chair, Transportation Committee Councillor Jessica Bradley, Member, Transportation Committee Councillor George Darouze, Member, Transportation Committee Councillor Steve Desroches, Member, Transportation Committee Councillor Sean Devine, Member, Transportation Committee Councillor Laura Dudas, Member, Transportation Committee Councillor Glen Gower, Member, Transportation Committee Councillor Laine Johnson, Member, Transportation Committee Councillor Wilson Lo, Member, Transportation Committee Councillor Matthew Luloff, Member, Transportation Committee Councillor Ariel Troster, Member, Transportation Committee

CC Councillor Rawlson King, originator of motion
CC Mayor Mark Sutcliffe
110 Laurier Avenue West
Ottawa, ON
K1P 1J1

RE: Planting on Right of Way
— Consolidated Recommendations from Peoples Official Plan Coalition
— Legal Memo regarding analysis of Legal Liability associated with ROW gardens

Dear Councillors,

We are pleased to provide you with a set of recommendations that have been researched, developed and endorsed by the broad Peoples Official Coalition. We believe that they meet both City and resident concerns and needs.

Further attached for your consideration is a legal memo regarding legal liability, an issue that many of you have highlighted for us as central to guiding the amendments to the ROW bylaw.

With kind regards,

Marianne Ariganello, For Our Kids

Moe Garahan, Just Food

Angela Keller-Herzog, CAFES

William van Geest, Ecology Ottawa

On behalf of the Peoples Official Plan Coalition (POP)

About POP: The Peoples Official Plan (POP) coalition is composed of over 20 not-for-profit organizations representing tens of thousands of Ottawans. We advocate at Ottawa City Hall for better transit, greater walkability and active transportation, greenspace for all, housing equity, climate change mitigation and adaptation, equity and inclusion, sustainable waste management, and food security, all sought through ethical city planning practices.

POP Recommendations:

Whereas

• Residents already take on the stewardship responsibility for the ROW. Stewardship is a much broader frame than gardening.
• The intent of the bylaw amendment is to open up more permissions for residents who want to garden, not to prohibit activities.
• Several of the current staff recommendations are unnecessarily restrictive
• The intent of the bylaw amendment is to align public stewardship of the ROW with:
  • The need for increasing absorptive capacity of ROW for stormwater management and retention in view of increasing risks of overland flooding and prohibiting any increases in impermeability
  • The need for increasing food security and food resilience, and utilization of public realm spaces in an equitable manner, and food production being a generally permitted use (OP 4.11 (2)
  • The need to provide habitat and nourishment to pollinators
  •  The need for creating shade from trees to combat the urban heat island effect (OP 10.3 (1) )
  • The intent of the Trees in Trust program for canopy trees to be nurtured by residents abutting the ROW and the low uptake by residents for this program
  • The need for air filtration, in light of decreasing air quality owing to climate-related events
  • The need for carbon sequestration, in light of the climate crisis—as City Council declared in 2019
  • The need to foster a connection to nature and biodiversity to promote individual and community well-being and mental health
  • The objective of urban livability and enhancing the urban tree canopy as per
  • Official Plan Policy # 2.2.3 (7) and 4.8 Ottawa’s commitment to the Montreal Pledge on biodiversity which includes commitments to integrating biodiversity into regulatory planning; control or eradication of invasive species; ensuring that urban agriculture is accessible, sustainably managed and contributes to food security; increase amount of green spaces and improve equitable access to them; prioritizing nature-based solutions to protect against extreme weather events and hazards. Ottawa City Council April 26 2023 moved for Ottawa to become a signatory to the pledge.
  • Many other municipalities have successfully dealt with gardening both edible and non- edible plants in the ROW
  • Thousands of homes in Ottawa already have either hardscaping in the ROW, edible and non-edible plants in the ROW, or both
  • Our bylaw needs to match enforcement practices or it will continue to raise serious equity concerns, including inequitable access.

Specific Proposals:

1. Planting trees, including edible and non-edible trees, would be permitted and promoted for residents in the ROW, within the following guidelines:

• In-ground gardening would not be permitted within the critical root zone of trees
  • Aligns with definition in tree protection by-law.
  • Open-bottom planter boxes on top of land within the critical root zone of trees would be acceptable.
  • Locates are required and only hand excavation allowed.
  • Trees planted by residents in the ROW remain the property of the City ofOttawa.
  • Alignment with the Trees in Trust program regarding siting restrictions in termsof distances from utilities, streetlights, corners etc.

2. Planting gardens, including edible and non-edible plants, would be permitted and promoted for residents in the ROW, within the following guidelines:

• Locates are required and only hand excavation allowed.
• Information on soil testing be made available on City of Ottawa website,including links through to partner organizations
• The height restriction would be limited to the visibility triangles for corners anddriveways that are aligned to the fencing zone and that the height restriction for this area be 1.0m (not 0.75m as staff have suggested). This allows for the planting of trees, shrubs, larger vines, while mitigating the issue of visibility. Also allows for planting on ROW side yards that do not have visibility or driveway concerns.
• That within the regulation for 1-1.5 m setback from City and utility elements (poles, hydrants, transformers, etc), groundcover and plants up to a maximum of 30 cm are allowed.
• No restrictions on planting plants up to the road, whether there exists a curb or not, outside of sightline restrictions.
• The list of invasive species should be expanded.
  • While the proposed changes prohibit the planting of invasive species, they refer to the Ontario Invasive Species Act and the Ontario Weed Control Act, which are out of date. We believe that the bylaw should also prohibit the 30 additional terrestrial plants that the Auditor General recommended for regulation under the Act (see PDF report). This will meet the City’s responsibility to appropriately steward and protect land, partnering with residents to do so. Prevention is the most economically and environmentally appropriate action. The City should inform nurseries regarding the expanded list.

3. Structures to retain, demarcate and/or hold additional soil would be permitted in the ROW, within the following guidelines:

• Raised beds construction should be allowed, as it permits viable soil for plant and food gardening
• Raised beds can make gardening accessible to mobility challenged persons
• Additional capacity for stormwater retention is beneficial in view of overland flooding concerns with changing precipitation patterns, including more intense rains
• Hardscaping ROW with any material that decreases permeable surface cannot be allowed, including pavers and asphalt. This does not include a stepping stone in an otherwise permeable garden or hardscaping to retain or hold soil.
• Hardscaping ROW with loose rocks cannot be allowed for safety concerns.

Liability

Whereas:

• The City cannot guarantee the suitability of the ROW for growing food.
• Permitting growing of edible and non-edible plants and trees is a policy decisionbalancing multiple policy goals, and not a City operations decision
• We need to balance the liability to the City for activity in the ROW with the liability to the City and its residents if we do not adequately deal with the increasingly serious issues of food insecurity, climate change, biodiversity/tree canopy loss, and flooding due to inadequate stormwater management, etc.

Specific Proposals:

• Inclusion of an indemnity clause that includes:
  • The City does not guarantee the soil suitability or safety for growing food
  • The consumption of any edible plants is done so at the gardener’s own risk.
  • The City / utility owner can remove any gardening or landscaping structures onROW without compensation / liability in order to maintain infrastructure.
  • That the homeowner will be invoiced for removal costs of any structures that are not easy for the City/utility to remove in order to maintain infrastructure.
• Education/guidance documents provided by the City, with links to partnering organizations, that recommend soil testing prior to planting food, installation of clean soil or compost.

Memo from Kristi M. Ross, Barrister & Solicitor

MEMO

To: Just Food
Date: June 19, 2023
From: Kristi M.Ross,Barrister&Solicitor
Re: Analysis of Legal Liability associated with ROW gardens and use of ROW

gardens to grow food/ consumables

*If any Councillor/s would like to speak with Kristi Ross, LL.B/M.E.S, she is open to discuss this memo, ahead of the Transportation Committee meeting. Contact info: please email her at kristi.ross@gmail.com to arrange a time.

Summary Points:

(Please see them highlighted within the text for more detail)

• If the City were to make a decision to permit the planting of fruit and vegetables (“consumables”) as part of the Gardening in the Right of way By-law this would be considered a “policy decision”. Policy decisions involve the complex balancing of competing interests, and the draft of legislation and municipal by-laws are considered policy decisions. In the case of the Gardening in the ROW by-law, broad economic, social, environmental, financial and issues related to food scarcity and security are being debated and balanced, and the government cannot be held liable for the balance struck, as per the recent decision of the Supreme Court of Canada (the “SCC”) in Nelson (City) v. Marchi and the SCC’s decision in Just v. BC. These case draw a distinction between policy decisions (where liability cannot be found) and operational decisions (such as deciding how and where to plow snow, where municipalities have been held to be liable). The difference is discussed further in the section on municipal liability.
• Ottawa needs to include an indemnity clause in the by-law language (both related to the right of the City to remove gardens to service utilities etc. and to clarify the City is not liable for any other issues which may arise)
• Planters in some neighbourhoods are already allowed and the wording of Ottawa’s zoning by-law currently considers planters to be soft landscaping (see s. 161 (15) (e)).
• While silence in the by-law on the ability to plant food (i.e. permitting “soft landscaping” which many may think includes food plants) might result in less food being planted; food safety would be be better protected by expressly allowing the planting of food and then regulating it and offering guidance documents and education about how to do soil safely and how to ensure that the planting soil is clean.
• In a negligence claim, there must be evidence that there is a causal link between the harm experienced and the negligent act and evidence that the harm was caused by the negligent act and that it was not the result of another factor. Further, the harm alleged must not be too remote. This means that a court will ask whether the actual injury was the reasonably foreseeable result of the defendant’s negligent conduct. Further, courts also consider if persons claiming negligence, made decisions to contribute to their own negligence.

This chart below outlines three scenarios for permitting the planting of consumables in the ROW:

Ottawa Needs to include an indemnity clause

Some examples include:

Victoria’s indemnity clause 

By assuming control of the boulevard adjacent to your property for gardening purposes, you and your helpers assume full and sole responsibility for any bodily injury, property damage, or other harm that is suffered by you, your helpers, or any third party, arising in any way from, or connected in any way to, your garden-related activities, and any related liabilities, damages, complaints or claims (collectively, “Claims”) including, without limiting the generality of the foregoing, injury to anyone who may trip and fall in your garden, illness to anyone who may eat plants from your garden, and lost or damaged plants, structures or ornaments caused by anyone including the City. The publication of these Guidelines and the granting of permission to engage in gardening on City boulevards is not intended to establish any agency or other relationship between the City and any person engaged in gardening on a boulevard. The City does not assume any responsibility or supervising authority for gardening on boulevards and will not inspect or manage boulevard gardens in any way. By engaging in boulevard gardening, you agree, in return for permission to garden on City boulevards in accordance with these Guidelines, to comply with these Guidelines and to waive any and all claims against the City, its officers, employees, elected officials, contractors and agents (collectively, “Releases”) in relation to any Claims and you further agree to indemnify and save harmless the Releases from any and all Claims including legal costs and expenses that may be based on or related to your action, omission or inaction. Publication of these Guidelines and the granting of permission to garden on City boulevards is not intended to confer any legal or equitable interest or property right in the City boulevards. The City reserves the right to re-occupy the boulevards at any time and for any reason without notice to you or payment of any compensation for removal of the plants or other property from the boulevard or for the time and effort spent by you or anyone else in gardening or improving the boulevard in any way.

Calgary’s Indemnity Clause

The City of Calgary reserves the right with due notice to require that a boulevard garden be removed and returned to The City’s turf grass standard at any time and, at the property owner’s full expense. Failure to comply will result in The City removing the boulevard garden and remediating the boulevard to The City standard at the full expense of the adjacent property owner. Noncompliance of an adjacent property owner with the Boulevard Garden Guidelines can result in future boulevard garden applications being denied.

Ottawa zoning by-law, R4 zoning – most of Centertown, Hintonburg

Planters already allowed and considered soft landscaping.

Portions of Ottawa’s zoning by-law provide that raised planters are deemed to be soft landscaping to satisfy the City’s minimum soft landscaping requirements for front yards in Ottawa’s denser urban areas. Much of the landscaped front yard is actually located in the municipal right of way area.

As such, it is problematic that this new by-law contradicts what occurs in R4 areas across the City, by prohibiting planter boxes.

Another way of looking at this is to read “soft landscaping” in the proposed by-law as permitting planter boxes, to ensure consistency with section 161(15)(e)of the zoning by-law.

Clause 161 (15) (e)

a. … 

b. …

c. Any part of any yard other than the rear yard not occupied by accessory buildings and structures, permitted projections, bicycle parking and aisles, hardscaped paths of travel for waste and recycling management, pedestrian walkways, permitted driveways and parking exclusion fixtures per (e) must be softly landscaped.

d. The minimum area of soft landscaping in the front yard is per Table 161:

Front Yard Setback	Minimum Aggregated Soft Landscaped Area (per cent of the Front Yard Area)
< 1,5 metres	No minimum, but all lands within the front yard and within the corner side yard that are not used by permitted projections, driveways and walkways, must consist of soft landscaped area.
1.5 metres – three metres	20 per cent
>3 metres	30 per cent, in the case of any lot with a lot width of less than 8.25 metres, 35 per cent, in the case of any lot with a width between 8.25 metres but less than 12 metres and 40 per cent in the case of any lot with a width of 12 metres or more.

e. The front yard and corner side yard must be equipped with solid, permanent fixtures sufficient to prevent motor vehicle parking in contravention of this By-law, and for greater clarity:

1. such parking exclusion fixtures may include bicycle racks, benches, bollards, ornamental fences or garden walls, raised planters, trees, wheelchair lifting devices, wheelchair lifting devices or some combination thereof; and
2. raised planters are deemed to be soft landscaping for the purposes of (c) and (d)

Overview of Municipal Negligence

While the essential elements of negligence have been articulated in different ways over the years, it is clear that a plaintiff must prove five things in order to succeed in negligence:

1. A duty, recognised by law, requiring conformity to a certain standard of conduct for the protection of others against unreasonable risks. This is commonly known as the “duty issue”. It is established law that a municipality owes its citizens a duty of care.

2. Failure to conform to the required standard of care or, briefly, breach of that duty. This element usually passes under the name of “negligence”.

3. Material injury resulting to the interests of the plaintiff. Merely exposing someone to danger is not an actionable wrong if the hazard is averted in time. Nor is there any question here of vindicating mere dignitary interests or compensating fright or apprehension in the absence of ascertainable physical or psychiatric injury.

4. Not only must the defendant’s breach of duty have been a cause of the injury, it must have been a “proximate cause”. This is generally referred to as the question of “remoteness of damage” or “proximate cause”.

5. The absence of any conduct by the injured party prejudicial to his recovering in full for the loss he has suffered. This involves a consideration of two specific defenses, contributory negligence and voluntary assumption of risk.

A subset of negligence is “regulatory negligence”. In the leading case of Just v. B.C., the Supreme Court of Canada7 held that the traditional tort law duty of care applies to “operational” decisions made by government agencies or officials; however, policy decisions would shield government agencies, like municipalities from regulatory liability.

This decision has been followed in Ontario where, for example, the Ministry of the Environment was held liable for negligence in inspecting and approving a defective septic system. This was found to be an operational decision.

A substantial number of cases have applied the Just category, including decisions of this Court. In Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420, the plaintiff’s car accident occurred on a sheet of black ice on the road. The Court held that the duty of care to reasonably maintain roads from Just “would extend to the prevention of injury to users of the road by icy conditions” (Brown, at p. 439). Similarly, in Swinamer, a large tree fell on the plaintiff’s truck while he was driving, causing serious injuries. The Court held that the duty of care from Just to reasonably maintain roads clearly applied (pp. 457-59). In both cases, however, the Court went on to find that the decisions at issue were core policy decisions immune from negligence liability.

Recently, the SCC has found that municipal snow plow operations and decisions related to snow clearing methods are operational rather than policy decisions: Nelson (City) v. Marchi, 2021 SCC 41: https://decisions.scc-csc.ca/scc-csc/scc- csc/en/item/19036/index.do

In this case, the plaintiff suffered significant physical injury on a municipal street in the City’s downtown core. By plowing the parking spaces on Baker Street, the City invited members of the public to use them to access businesses along the street. The plaintiff was attempting to do just that when she fell into a snowbank that had been created by the City during snow removal.

The decision states:

[51] Core policy decisions, shielded from negligence liability, are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith” (Imperial Tobacco, at para. 90). They are a “narrow subset of discretionary decisions” because discretion “can imbue even routine tasks” and protecting all discretionary government decisions would therefore cast “the net of immunity too broadly” (paras. 84 and 88). To assist in distinguishing between policy and operational decisions, the Court set out four factors to help assess whether a government’s decision was shielded by policy immunity:

(1) the level and responsibilities of the decision-maker;
(2) the process by which the decision was made;
(3) the nature and extent of budgetary considerations; and
(4) the extent to which the decision was based on objective criteria.

These mean:

[62] First: the level and responsibilities of the decision-maker. With this factor, what is relevant is how closely related the decision-maker is to a democratically-accountable official who bears responsibility for public policy decisions. The higher the level of the decision-maker within the executive hierarchy, or the closer the decision-maker is to an elected official, the higher the possibility that judicial review for negligence will raise separation of powers concerns or have a chilling effect on good governance. Similarly, the more the job responsibilities of the decision-maker include the assessment and balancing of public policy considerations, the more likely this factor will lean toward core policy immunity. Conversely, decisions made by employees who are far-removed from democratically accountable officials or who are charged with implementation are less likely to be core policy and more likely to attract liability under regular private law negligence principles (Just, at pp. 1242 and 1245; Imperial Tobacco, at para. 87).

[63] Second: the process by which the decision was made. The more the process for reaching the government decision was deliberative, required debate (possibly in a public forum), involved input from different levels of authority, and was intended to have broad application and be prospective in nature, the more it will engage the separation of powers rationale and point to a core policy decision. On the other hand, the more a decision can be characterized as a reaction of an employee or groups of employees to a particular event, reflecting their discretion and with no sustained period of deliberation, the more likely it will be reviewable for negligence.

[64] Third: the nature and extent of budgetary considerations. A budgetary decision may be core policy depending on the type of budgetary decision it is. Government decisions “concerning budgetary allotments for departments or government agencies will be classified as policy decisions” because they are more likely to fall within the core competencies of the legislative and executive branches (see, e.g., Criminal Lawyers’ Association, at para. 28). On the other hand, the day-to-day budgetary decisions of individual employees will likely not raise separation of powers concerns.

[65] Fourth: the extent to which the decision was based on objective criteria. The more a government decision weighs competing interests and requires making value judgments, the more likely separation of powers will be engaged because the court would be substituting its own value judgment (Makuch, at pp. 234-36 and 238). Conversely, the more a decision is based on “technical standards or general standards of reasonableness”, the more likely it can be reviewed for negligence. Those decisions might also have analogues in the private sphere that courts are already used to assessing because they are based on objective criteria. Nelson provides helpful guidance to local governments in their approach to risk management, specifically in terms of identifying what types of municipal decisions may (or may not) enjoy core policy immunity – being those that reflect the underlying rationale for the immunity. In short, courts are unlikely to step into the shoes of municipal actors where the court would substitute its own views in matters concerning the weighing of competing economic, social, and political factors, provided they are neither irrational nor taken in bad faith.

Application of this case to the Gardening in ROW by-law:

Therefore, the decision to permit fruit and vegetables as part of the Gardening in the ROW by-law is a policy decision, and municipal governments are immune to negligence claims arising from the decisions made in the by-law. In this case broad economic, social, environmental, financial and issues related to food scarcity and security are being debated and balanced, and the government cannot be held liable for the balance struck, as per the SCC decision in Nelson.

Causation:

The Nelson Case offers the following analysis on causation:

[96] It is well established that a defendant is not liable in negligence unless their breach caused the plaintiff’s loss. The causation analysis involves two distinct inquiries (Mustapha, at para. 11; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13; Livent, at para. 77; A.M. Linden et al., Canadian Tort Law (11th ed. 2018), at p. 309-10). First, the defendant’s breach must be the factual cause of the plaintiff’s loss. Factual causation is generally assessed using the “but for” test (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22). The plaintiff must show on a balance of probabilities that the harm would not have occurred but for the defendant’s negligent act.

[97] Second, the breach must be the legal cause of the loss, meaning that the harm must not be too far remote (Mustapha, at para. 11; Saadati, at para. 20; Livent, at para. 77). The remoteness inquiry asks whether the actual injury was the reasonably foreseeable result of the defendant’s negligent conduct (Mustapha, at paras. 14-16; Livent, at para. 79). Remoteness is distinct from the reasonable foreseeability analysis within duty of care because it focuses on the actual injury suffered by the plaintiff, whereas the duty of care analysis focuses on the type of injury (Livent, at para. 78; Klar and Jefferies, at p. 565).