Mowing dispute heads to court

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Richard Hykawy has been charged after refusing to cut the boulevard. He argues a city bylaw requiring him to do so violates his rights. (JOHN WOODS / WINNIPEG FREE PRESS) Photo Store

One man paid a $50 fine after pleading guilty to spitting on a Portage Avenue sidewalk when he was leaving a dentist's office. Three other women paid $200 fines after pleading guilty to violating the new smoking bylaw outside Women's Hospital.

But on Thursday, one south Winnipeg man told bylaw court he's not guilty of contravening a city order which stipulates he must mow the boulevard next to his Island Lakes property. Richard Hykawy said he plans to build his case against the city and prove Winnipeg cannot force residents to cut the grass on property that's not theirs.

Winnipeg's neighbourhood livability bylaw stipulates homeowners who live adjacent to a boulevard must ensure grass is no more than 15 centimetres high, keep it free of trash and control any noxious weeds. Boulevards on regional streets are maintained by the city.

Hykawy calls it an "injustice" and said he would like to see the elimination of any bylaw that forces a citizen to do the city's labour.

The case will go to trial next June.

"I did it one time and buggered the blade on my lawnmower," Hykawy said, noting the first and last time he cut the boulevard grass was in 2009. "It's undue hardship, an extra burden and why should I even bother?

"I did it one time and I'll never do it again."

Bylaw challenges are rare, according to legal experts, who said Winnipeg's charter gives the city the legal authority to enact laws about nuisance activity on private property and property adjacent to streets.

University of Manitoba law professor Karen Busby said Hykawy would have to prove the city's boulevard bylaw is "unreasonable" in order to win his case -- something that's hard to do.

Section 131 of Winnipeg's Charter gives the city the power to regulate things such as signs, landscaping, weeds, and removal of trees on property adjacent to streets. It also gives the city the power to require owners or occupants of adjoining land to remove snow and ice from sidewalks.

Busby said few individuals who have challenged the legality of bylaws have won their cases.

She said an individual has to prove the bylaw places a huge burden on people that is not manageable, is unjust or intrudes on their rights.

But it can happen. In 1985, the Supreme Court struck down a Montreal bylaw which prohibited minors from entering pool halls on the basis it discriminated against people on the basis of their age.

"He's got to show unreasonableness, but that's tough," Busby said.

City of Winnipeg spokeswoman Michelle Bailey said in an email statement anyone accused of violating a city bylaw can challenge it in court or argue the bylaw is illegal, contravenes the Charter of Rights and Freedoms, or reaches beyond the city's legislative authority.

She said individuals who are not charged with a bylaw offence can challenge a bylaw's validity in the Court of Queen's Bench.

An individual or the city can appeal a bylaw court decision in the Court of Queen's Bench, and depending on the hearing's outcome, appeal to the Manitoba Court of Appeal.

After that, Bailey said either party would have to take the case to the Supreme Court.

She said bylaw matters have been heard by the Manitoba Court of Appeal "numerous times."

Hykawy said he pays $3,600 a year in property taxes and he receives a $125 bill every time the city cuts the boulevard lawn. He said the amount --typically about $300 a year -- is added to his tax bill. He said he still refuses to mow the lawn since he sees it as "forced labour."

"If they offered to pay me to cut it I would," Hykawy said. "If they said, 'Rick we'll take $300 a year off your property tax -- which is about what they charge me now -- I'd say great. Make it $3,300 and we've got a deal.

"I bet they won't want that because they want free labour. They want slaves."

jen.skerritt@freepress.mb.ca

Bylaw violations

Winnipeg has bylaws that govern everything from pets and noise to derelict buildings and graffiti. Here's a glimpse at how many Winnipeggers have been handed tickets and gone to bylaw court:

The City of Winnipeg laid 2,483 charges in 2011 for violating bylaws -- up from 1,285 the previous year.

Pound bylaw violations are the most common. Officials hand out tickets for offences such as not having a dog licence or allowing your animal to bite another animal. The city charged 476 with pound bylaw violations in 2011 and 491 people in 2010.

Winnipeg collected $106,272.50 in fine revenues from individuals who pleaded guilty to violations in 2011 -- down from $131,725.76 in 2010. (A reason why fine revenue was down in a year when bylaw charges have almost doubled is that trial dates and the ensuing fines are not necessarily in the same year when the charges are laid.)

--Source: City of Winnipeg

Republished from the Winnipeg Free Press print edition August 10, 2012 A4