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Thursday Thinkpiece: Trees and the Law in Canada

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Trees and the Law in Canada
© 2018 Dunster & Associates Environmental Consultants Ltd.
Available to purchase at www.treelaw.info

Written by Dr. Julian A. Dunster, one of Canada’s leading consulting arborists, Trees and the Law in Canada covers nuisance, trespass, negligence, damage appraisal, personal injury, and property damage. In Chapter 8, the author shares the first-ever comprehensive review of tree law in Quebec. With more than 500 caselaw citations, in-depth analysis, and comprehensive review of the legal principles and practical implications, this is the definitive text in Canada and an indispensable reference for judges, lawyers, foresters, arborists, planners, city staff, administrators, risk managers, and the general public. The Foreword, written by the Honourable Edward C. Chiasson Q.C. noted: “The book is an essential eye-opener and starting point for those who provide legal guidance on issues involving trees. It also is an essential work for those who are involved in operational matters that concern trees: municipal, provincial and federal officials; foresters; tree trimmers and fallers; construction contractors and workers; property owners and occupiers; etcetera.” For his work, Dr. Dunster was the 2019 recipient of the International Society of Arboriculture’s R.W. Harris Author’s Citation Award.

Excerpt: From Chapter 4, Trees as a Nuisance, where Dunster examines the many cases where nuisance has arisen, and includes coverage of the “self help” approach that often causes problems; and Chapter 7, Valuing the Damage Caused, which offers an in-depth look at timber valuation (fires, trespass) and amenity tree appraisal.

4.4 The Self Help Issue

Following Lemmon v. Webb the law of nuisance caused by trees is quite clear 32. When encroaching branches or roots are not causing damage to the adjoining property, but are causing a nuisance by preventing the reasonable enjoyment of the land, the owner of the land encroached upon has the right to exercise a self help abatement option. That is, they may prune back the roots or branches to the property line without giving notice to the owners of the trees (although prudence suggests it may be wise to at least notify the neighbour of the intention to prune). (Freedman v. Cooper, 2015.) As long as the offending tree is not a boundary tree as defined in Chapter 3, and there is not a local bylaw or other form of statute prohibiting this type of work, then the self help option is available.

Implementing the self help option requires care to avoid a valid claim of trespass. (Hodgins v. Toronto, 1982.) It requires knowing the exact location of the property line. No work of any kind may cross an exact vertical projection of this property line, above or below ground as noted in Anderson v. Skender, 1993:

[5] Insofar as branches or roots extend across the boundary line into a neighbour’s property, that neighbour may, of course, have a remedy in nuisance, and this may be, or include, a right to ‘self help’, but it will not generally include a right to enter the other’s property, nor to cut any part of the tree which is on the other’s side of the property line.

Notwithstanding what the pruning might do to the stability or health of the tree, as long as it does not trespass then there appears to be little to prevent the abatement of the nuisance. “…it is noted that either owner may cut back any branches or roots that grow over or under his land which interfere with the peaceful enjoyment of his land – even if that would result in injury to the tree.” (Bottan v. Richmond Hill, 1995)

This principle is affirmed in Nelson v. Auchinvole, 2005. The defendant made every effort to approach the plaintiff for permission to prune back overhanging limbs but “The Plaintiff was unwilling to abate this nuisance.” The defendant hired a contractor to carry out the work, the property line was crossed, and a minor technical trespass ensued. The Plaintiff claimed the defendant was “reckless in his cutting” but that was not proven. The Court ruled the tree was a nuisance, the right of self help had been used, and despite a technical trespass there was no claim to be answered. The case was dismissed with costs to the defendant.

The self help issue arose in several ways in Demenuk v. Dhadwal, 2013. The defendant’s contractor crossed the boundary in order to cut back branches, but he had leave and licence 33 to do the work, since the Plaintiff’s wife was there, watched it happen, and made no effort to prevent it. The branches cut were on the defendant’s side of the boundary, so there was no trespass.

[58]…the defendants were entitled to both prune the branches and to cut the roots of the three trees. The subsequent need to remove the trees arose because the roots to those trees were cut. This activity occurred entirely on the defendant’s side of their property. The only branches that were pruned were again ranches that overhung the defendant’s property. Thus, the actual cause of the loss which the plaintiff says he suffered is loss which arose from conduct which the defendants were entitled to undertake.

There was some debate about whether or not the tree was jointly owned, since its base was across the boundary by about 9 centimetres, but the judge opted to follow Hartley and use the trunk as the defining issue. By that measure it was not jointly owned. The plaintiff alleged negligence occurred when the pruning of the branches and roots occurred, but again the court demurred. The trees were found to be unstable as a result of the legitimate root pruning, and the City required them to be cut down. Was the defendant liable? No.

[61] No case in the nearly 20 years since Anderson was decided has relied on the foregoing obiter statements. I was referred to no cause in which a property owner has been found liable in negligence for cutting either the branches or roots of a tree that extend on to his property from a neighbour’s property so long as he or she did not trespass in carrying out this activity. This is so even in circumstances where such conduct may kill the tree. It is so without any assessment of what steps a property owner could or should have taken to avoid the result.

This is confirmed in Freedman, 2015:

[36] 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.

The same statement of fact is expressed in Carpenter v. Doull-MacDonald, 2017:

65 I also find as a fact that Ms. Doull-MacDonald was within her rights in pruning the red oak tree. At common law, a landowner is entitled to remove overhanging branches of a neighbour’s tree that intrude on the landowner’s property. At common law, a property owner is legally entitled without notice to cut those branches and roots of a neighbour’s border tree that extend onto his property or air space. 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.

66 Further, I find as a fact that the pruning was in accordance with accepted arboricultural standards and the pruning did not injure the health of the tree. It was not necessary for Ms. Doull-MacDonald to obtain a permit from the City of Toronto and any trespass on Ms. Carpenter’s property to prune the tree from Ms. Doull-MacDonald’s property was transient and de minimus.

In effect, the self help rule (which does not apply in Quebec) states that as long as trespass does not occur when pruning back roots or branches, even if that work then damages the tree, there can be no valid claim for the damage resulting. If the nuisance is not causing damage there is no requirement to notify the owner of the tree of the problem prior to exercising the self help option. That position will be tempered if the tree is jointly owned. Figure 6 illustrates the issues associated with self help.

Again, perverse effects arise. In Bonilla v. Francescini et al, 2018, the court agreed that the leaves falling from overhanging branches of a walnut tree had created actionable damage to the plaintiff’s property, and ordered the defendant to cut the branches off to the property line. The perversity is that if the plaintiff had exercised a right of self help, the pruning would almost certainly have caused the defendant to complain to the municipality. In turn they may well have seen such extensive pruning as a valid bylaw infraction that warranted a fine. See part C of Figure 6.

Tree care companies and arborists have been trained to recognise that good pruning practice requires cutting the branch back to the parent trunk, rather than leaving small stubs. But, it is quite clear in law that good pruning practice is completely subordinate to the boundary. The moment abatement of the nuisance crosses the boundary, a trespass is committed. No matter how small or inconsequential the trespass and pruning may be, it becomes actionable. The owner of the tree has a valid claim for damages against the property owner exercising self help and perhaps the contractor as well, unless, as was the case in Demenuk, there was leave and licence in effect.

See also: Durham v. Bennett, 2009; Glashutter v. Bell, 2001; Kiessling v. Varga, 2002; Nelson v, Auchinvole, 2005; Stowe v. McTaggart, 1993; Wallace v. Joughin, 2014; Winger v. Torkelson, 1989; Murphy v. Mullen, 2018.

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7.7 Valuing Loss of Screening and Privacy

One of the commonly claimed injuries in tree cases is loss of screening and privacy. Sometimes these are a separate item and sometimes, they are grouped under a general category of loss of amenity. Screening is a physical barrier, often in the form of a hedge or groups of plants, that prevents one or more people from being able to or having to see other property, other people, or other landforms that they do not wish to see. It can also prevent other people looking inwards. Loss of screening plants may result in a loss of privacy, which is the actual or potential nonconsensual intrusion into what was formerly a secluded or ‘private’ area. The intrusion does not necessarily have to be by a person physically entering the area. It may be that the change in screening now permits a person to easily see into the formerly secluded area. Perhaps the plaintiff can now look out and see people or other things that they do not want to see, and these were hidden before the damage.

There may be a claim for auditory loss of privacy, although that is likely to be far harder to prove without well documented baseline noise levels before the damage occurred. The literature suggests that to make a measurable difference in noise reduction requires a fairly extensive amount of vegetation, certainly more than a few trees. If the adjacent landowner removed most trees legally, except perhaps, for a few in trespass there is unlikely to be a basis for a noise claim in the trespass trees alone.

If privacy is determined by a person’s ability to see into or out of an area 56, it follows that the area affected must relate to the line of sight between a person’s eyes and the object under scrutiny. On that basis, claims for loss of privacy and screening should be predicated on a line of sight which in practice could be a straight line or a cone of view. But, importantly, loss of tall trees that once provided screening by dint of foliage and limbs at the base of the tree may not need to be replaced with similarly tall trees if screening and privacy can be regained with lower trees. All that is required is to provide a new vegetative screen that blocks lines or cones of sight; a solution that may have radically different cost implications.57

“…it is the absence of trees, not the potential height of the new trees, that is the major cause of the loss of privacy.” (TransAlta Utilities Corp. v. Kube, 1987)

Claims for loss of privacy / screening have to be carefully analysed. As noted in Barnstead v. Ramsay, 1996, while there was undoubtedly a loss of screening associated with trespass, some of the lost screening came about as a result of the legitimate activity on the other side of the boundary. In other words, even if no trespass had occurred the screening provided by the trees would have changed anyway once legitimate pruning had been implemented. An example would be where neighbours have pruned back branches overhanging property lines under a self help approach. As long as the pruning work did not occur in trespass, any loss of privacy, no matter how real it is, is unfortunate but not actionable. But, if trespass occurs, the court could consider loss of privacy as part of the final award of damages. Realistically, the award should only be for the increment of privacy lost as a result of the trespass, that is, the difference between what was permissible and the additional loss after trespass. This incremental loss of privacy may be significantly less than what is being claimed.58 Similarly, if the location of the damage is remote or distant from the house, or primary use area, awards for loss of privacy are likely to be rejected or greatly reduced.

See: Arbuckle et al. v. Owen et al., 2014; Bosch v. Smolik, 2007; Crawford v. Crawford, 1986; Gburski v. Healey, 2012; Glashutter v. Bell, 2001; Graw v. Rockwell, 2010; Hamel v. Moilliet, 1994; Konno v. Harrison-Jones, 2011; Kranz v. Shidfar, 2011; Oran v. Westwood Fibre et al., 1996.

The inverse situation to loss of privacy is loss of view, but as noted in Chapter 4 there are few instances where a landowner has a legal right to a view in the first place, unless there are bylaws or restrictive covenants in place that specify an accurate definition of the view and how it is to be maintained.

7.8 Valuing Loss of Amenity

 Although not always expressed clearly, loss of screening and privacy is not necessarily the same as loss of amenity, although it may be a convenient way to capture it in damages. Regardless of the appraisal approach used, valuation of amenity, intrinsic, intangible, or environmental values is often captured in some form of punitive award on top of general damages.

[35] The appropriate method to utilize in this case is similar to that utilized in Kates, which is to compensate the plaintiff with trees of similar nature, although not in the size of the trees removed. Any additional loss the Claimants suffer between the size of the trees replacing the ones lost can be addressed in compensation for loss of enjoyment or amenities. (Voss v. Crooks, 2002)

In Dykhuizen v. Saanich (District), 1989, the plaintiff cut down nine trees on municipal land adjoining his property. At trial the municipality was awarded compensatory and punitive damages. The plaintiff’s appeal was dismissed. The plaintiff claimed that the valuation method (CTLA) used was unreasonable as the trees were wild and would be removed anyway once the subdivision being planned was approved. That argument was rejected.

The effected landowner, so long at least as the landowner is not committed to destruction of the affected property, is entitled to require that a wilful trespasser provide full compensation for that which he has destroyed. Nothing less is consistent with the owner’s right to decide what shall be done with the land – a right which a municipality enjoys for the benefit of its inhabitants.

It is my view that the municipality in this case was entitled to be compensated for the loss of value, notwithstanding the fact that the trees, or most of them, were likely to have to be removed in any event in the near future. It may be that the municipality would have been entitled to the cost of replacement of some, at least, of the trees and compensation also for the extent to which this did not fully restore the property to its former state, even though this might have exceeded the loss of property value. In the case of trees used for the purpose of public or private enjoyment, damage for their deliberate destruction is not limited to the resulting diminution in value of the land, or the value of the wood as lumber or firewood, or the value which might be awarded in respect of them as compensation on an expropriation. The damages in such cases may extend to the cost of restoration or restitution, within reasonable bounds, together with compensation for loss of amenity to the extent that complete restoration cannot reasonably be affected.

Loss of amenity is noted in many cases: Craig v. North Shore Heli Logging Ltd., 1997; Gburski v. Healey, 2012; Kranz v. Shidfar, 2011; Perdue v. Vanderham, 2004; Timpauer v. Coffey, 1991.

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[32] In Quebec nuisance arising from roots and branches is dealt with in the Civil Code.
[33] Discussed further in Chapter 5.
[56] Of course there are complexities here such as whether or not privacy is strictly what the naked eye can see versus what it can see through a long lens or binoculars. Nonetheless, the eye is involved in some manner. Most tree cases fail to deal with that issue and claim a broad but ill-defined loss of privacy.
[57] There may well be a valid claim for loss of amenity associated with tall trees, but that is not a privacy function. For example, one or more tall trees blocking views of a more distant smokestack.
[58] A similar principle is enunciated in Hutton v. Morehouse et al., 1998. Even if there had been no trespass, the plaintiff would have suffered some loss of the natural beauty in the area, but none of it would have been actionable.

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