Common law tort of nuisance prevails over Forestry Act

by: Robert Pacan

Two Toronto neighbours had an issue with a tree straddling their property line.[1] At issue was whether one neighbour had the right to cut down the tree without the consent of the other neighbour. This tree was damaged by the 2013 Toronto ice storm, losing one-third of its canopy in the process. It also caused damage to a neighbouring property due to a falling large tree branch. Worried about the possibility of further damage, Ms. Beryl Freedman hired an arborist to determine the state of the tree. The certified arborist recommended the removal of the boundary tree due to the damage it suffered. His report stated that “The number of potential targets under and adjacent to this tree makes removing this tree a safety priority.” Mr. Lorne Cooper, the neighbour, was approached by Ms. Freedman regarding the report. Mr. Cooper did not want the tree removed. Without receiving his consent for removal, Ms. Freedman initiated an application to the City of Toronto to remove the tree. The City approved the application allowing Ms. Freedman to cut down the tree. The arborist hired to cut down the tree required consent from Mr. Cooper to access his property. Mr. Cooper, in writing, denied any access to his property and stated any breach would be handled as a matter of law.

In court, both parties brought up a conflict with the Forestry Act, which stated: “every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.” The Act also provides that: “every person who injures or destroys a tree growing on the boundary between adjoining lands without the consent of the land owners is guilty of an offence under this Act.” This Act was at issue in the case of Laciak v City of Toronto, 2014 ONSC 1206, where the judge determined that the Forestry Act conflicted with the City of Toronto’s property standards committee order that a damaged boundary tree be pruned and maintained by one owner. The court held that since the boundary tree was found to be jointly held by three neighbours, the committee should not have ordered only one owner to bear the costs of maintenance. In the present case, the conflict reappeared; you have the City permitting the cutting down of the boundary tree, but you have the Forestry Act requiring consent of all owners of the tree before trimming or removal of the tree. Justice Perell decided that the Forestry Act did not apply in these circumstances but rather a common law case of nuisance. [As an aside, while I agree that the proper action here is the common law tort of nuisance, in my opinion, I don’t think it invalidates the conflicting provisions found in the Forestry Act. Justice Perell stated that the Act needed clear intention from the legislature to change the common law. While the legislation does not override the common law with clear intention, the Act still exists and conflicts.]

Justice Perell provides a nice summary regarding nuisance: “Nuisance is a common law tort, and it is a form of strict liability that is not concerned with fault or misconduct. Rather, it is a social ordering law based on imposing responsibility or legal liability when an owner’s use of his or her property unreasonably interferes with the use and enjoyment of land by others. Generally speaking, whether the landowner’s unreasonable use was intentional, negligent or innocent is of no consequence if the harm can be categorized as a nuisance. What is unreasonable reflects the ordinary usages of people living in society, and determining unreasonableness involves balancing competing rights of landowners.  The law of nuisance also imposes responsibility on a landowner for the natural state or conditions of his or her property if the owner is aware or ought to have been aware that the state of the property is a nuisance to neighbours. Under the law of nuisance, property owners are entitled to resort to self-help remedies to eliminate a continuing nuisance caused by roots and branches from trees, or the court may order that the nuisance be abated or removed.”

Justice Perell determined that evidence showed the damaged boundary tree as a continuing danger. Ms. Freedman offered to remove the tree at her own cost when legally, both neighbours shared the responsibility. He ordered that Mr. Cooper not interfere with Ms. Freedman’s removal of the tree and that he cover half the expenses. It’s a welcoming decision that clarifies the tort of nuisance as a viable claim over boundary tree issues with neighbours. Although the Forestry Act may conflict, the intention of the Forestry Act was not clear enough to change the common law.

[1] Freedman v. Cooper, 2015 ONSC 1373

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