For a few years, a couple benefited from the right to use a plot in a community garden belonging to the city. In the summer of 2003, these citizens received a notice revoking this privilege, as they had not maintained their plot properly. The citizens appealed to the managers of the community garden concerned but were unsuccessful in having this decision reversed.

These citizens sought the assistance of the Ombudsman de Montréal since, in their opinion, the rules governing the rights of expulsion of a member had not been respected, causing them significant injustice.

An analysis of the rules in effect for the community garden concerned confirmed that when a member does not adequately maintain his garden, he, in fact, risks expulsion. However, these rules also specify that before a user can be expulsed, he must have previously received at least two warnings, the first one verbal or written and the second one, having to be in writing and signed by two specific persons.

In the present case, neither the citizen nor his spouse had been advised and no personalized written notice had been posted anywhere in the community garden. Moreover, the written notice they had received had been signed by one person only.The community garden managers contended that the general written notice posted permanently at the garden’s entrance to remind all users of the importance of respecting the obligation to maintain their plot properly, under threat of expulsion, constituted a valid first notice. The Ombudsman de Montréal did not accept this interpretation. In his opinion, the prior notice requirement aims to allow the delinquent member to remedy the situation so as to retain his gardening privileges and, therefore, in all fairness, a last chance notification before the withdrawal of privileges should be addressed specifically to the offending user.

As for the second warning required under the applicable rules, before a user can be expulsed, the rules stated clearly that it has to be in writing and signed by both a member of the garden Committee and the borough’s horticultural coordinator.

In this instance, however, the written notice had been signed by the horticultural coordinator only. The Ombudsman de Montréal thus concluded that this second warning also did not conform to the procedural rules enacted by the community garden itself. Following her Recommendation, the citizens were, therefore, able to reclaim their right to use the plot.

Nonetheless, since the citizens had admitted to being negligent in the maintenance of their lot, the Ombudsman de Montréal drew their attention to the importance of properly maintaining their plot, and obtained their written pledge, in return for the privilege regained, that they would weed their plot regularly and that they would adequately maintain their garden.

In the context of this file, the Ombudsman de Montréal pointed out to the volunteers responsible for the administration of the community garden the importance of strict adherence to the rules and procedures they themselves adopted and posted for garden members. Where rights or privileges granted to citizens are concerned, it is in fact crucial that procedures be duly applied so that citizens are not deprived of their right to remedy a deficiency, in a timely fashion.

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