Dawson v. City of Toronto, 2021 ONSC 5768

CITATION: Dawson v. City of Toronto, 2021 ONSC 5768

DIVISIONAL COURT FILE NO.: 253/21

DATE: 20210827

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Juleth Dawson, Plaintiff (Appellant)

• and –

City of Toronto, Defendant (Respondent on Appeal)

BEFORE: Swinton J.

COUNSEL: Rod Byrnes, acting as agent for the Appellant

Rali Anguelova, for the Respondent

HEARD At Toronto (by videoconference): August 25, 2021

E N D O R S E M E N T

Overview

[1] The appellant, Juleth Dawson, appeals from the judgment of Deputy Judge Nadler dated January 4, 2019, in which he dismissed her action for damages against the respondent City of Toronto. The appellant had claimed that the City was liable for damages caused by tree branches that fell on three occasions. The trees are located on City property, described by the trial judge as the "flankage."

[2] The appellant erected a wooden fence and a steel fence on the City flankage adjacent to the public sidewalk, with the result that the trees, although planted on City property, are inside her fence. The branch that fell from Tree One (as identified in an exhibit at trial) damaged an eaves trough on the appellant's house in 2012. Branches from Tree Two damaged a gate and the fence in 2017 and 2018.

[3] There were two witnesses at trial – Rod Byrnes, the spouse of the appellant, and Adam Wright, an arborist employed by the City. The trial judge relied on the evidence of Mr. Wright on the basis that his evidence was largely uncontradicted, and he is an experienced arborist.

[4] The trial judge concluded that the appellant had failed to prove that the City was liable under the Occupiers' Liability Act, R.S.O. 1990, c. O.2 or in negligence or nuisance. He commented that the absence of any expert evidence from the appellant to contradict the evidence of Mr. Wright was fatal to her case (Reasons, para. 14).

[5] On appeal, the appellant argues that the trial judge made errors of law and fact. As well, she has brought a motion for the admission of fresh evidence.

[6] At the hearing of the appeal, I dismissed the motion for fresh evidence, with reasons to follow. I would also dismiss the appeal.

The Motion for Fresh Evidence

[7] A court has the discretion to admit further evidence on appeal pursuant to s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"). The test for admitting such evidence has been set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.). In Sengmueller, the Court of Appeal stated that one element of the test is whether the fresh evidence "if admitted, will likely be conclusive of an issue in the appeal." That element of the test is key in this motion.

[8] The fresh evidence relates to four incidents of tree damage that have occurred since the trial judge gave his decision in January 2019. These incidents occurred in 2020 and 2021. The appellant's fence was damaged on three occasions because branches fell from Tree Four. Another incident involved Tree One, but the fallen branch caused no damage to the appellant's property.

[9] I dismissed the motion to admit this evidence after hearing oral submissions from the appellant, because the test for the admission of fresh evidence has not been satisfied.

[10] The new evidence is not relevant to the issues that arise in this appeal, and it would not have affected the result at trial or be conclusive of any issue on this appeal. The trial judge had to determine whether three specific incidents of damage that occurred in 2012, 2017 and 2018 relating to branches of Trees One and Two gave rise to liability on the part of the City. The evidence at trial pertained to these specific incidents.

[11] The new evidence deals with subsequent incidents that occurred in 2020 and 2021 involving Tree Four. There was no claim before the trial judge concerning damage caused by Tree Four. Thus, I fail to see how any of this new evidence could have affected the trial judge's decision respecting liability for events in 2012, 2017 and 2018. Nor does this evidence show that he made any error of law or palpable and overriding error of fact in his decision respecting the claims before him respecting Trees One and Two.

[12] Accordingly, as this new evidence would not affect the outcome of this appeal, the motion to admit it is dismissed.

The Merits of the Appeal

The decision of the trial judge

[13] The trial judge assumed, without deciding, that the Occupiers' Liability Act applied. He then concluded that the appellant had not proved that the City failed to use reasonable care in the maintenance of the trees at issue. He also found that the appellant had not proved that the City breached a duty of care in negligence.

[14] In reaching those conclusions, the trial judge relied on the evidence of Mr. Wright, an arborist working for the City. Mr. Wright opined that the trees in issue were healthy, and the likely cause of the branch breakage was extraordinary weather conditions. Records of weather conditions around the time of the incidents were submitted in evidence. Mr. Wright also testified that there was no need to cut down or further prune the trees after the branches fell, as the trees were healthy. He also testified that the trees were within an Area Street Maintenance Program, a proactive program of the City to assess tree health and the need for pruning.

[15] The trial judge also rejected the claim in nuisance, finding that the appellant had not met the test of nuisance, which requires proof of "substantial interference with the use of property". He cited the leading case, Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, which states at para. 19 that private nuisance requires proof of interference with an owner's use or enjoyment that is both substantial and unreasonable. Having considered the evidence, the trial judge concluded that the appellant had not established substantial interference with the use of her property.

Analysis

[16] The appellant has identified no error of law by the trial judge. He applied the proper legal principles under the Occupiers' Liability Act and in relation to negligence and nuisance.

[17] Nor has the appellant identified any palpable and overriding error of fact that would affect the decision. There was ample evidence to support the trial judge's findings of fact respecting the condition of the trees, the likely cause of the branch failures, and the steps taken by the City in respect of the care of the trees. I see no basis for appellate interference with his conclusions that the City took reasonable care, and the appellant did not experience substantial interference with the use of her property.

[18] In argument in this appeal, the appellant focused on an alleged error by the trial judge in finding that the appellant's fences were an unlawful encroachment on City property. I need not address this alleged error, as it would become relevant only with respect to the appellant's entitlement to compensation were the City to be found liable for damages. As I have already said, the appellant has not demonstrated any error in the trial judge's conclusion that there was no liability on the part of the City.

[19] The appellant also sought declaratory relief respecting the validity of a 1995 agreement respecting a cedar fence, her right not to enter an agreement respecting her steel fence unless it contains a clause requiring the City to compensate her for future tree-related damage, and her right to prune City trees overhanging her property if the compensation clause is not required. Such relief was not sought in the Notice of Appeal or the Supplementary Notices of Appeal. It was sought in the Notice of Motion respecting the fresh evidence, in the event that the motion succeeded. Given the dismissal of the motion and the failure to claim such relief properly in the Notice of Appeal, I see no need to address the availability of declaratory relief.

[20] Finally, in her Supplementary Notice of Appeal, the appellant sought leave to appeal the costs award of $3,750. The appellant did not address this issue in oral argument. However, I will address it briefly.

[21] Leave to appeal costs is rarely granted. I see no error by the trial judge in the exercise of his discretion to award these costs. He made his determination in accordance with s. 29 of the CJA based on the amount originally claimed of $25,000, as well as an offer to settle from the City. Accordingly, leave to appeal the costs order is denied.

Conclusion

[22] The motion for fresh evidence and the appeal are dismissed.

Costs of the Appeal

[23] The City seeks $10,000 in costs of the appeal, including the motion for fresh evidence. The City was successful on its appeal and would normally be entitled to costs.

[24] However, the appellant has not received copies of the City's costs submissions, which were uploaded to Caselines but not mailed to the appellant. She does not have email, and she is not able to access Caselines.

[25] In the interests of procedural fairness, the appellant shall have an opportunity to provide brief written submissions respecting the costs claimed by the City, not to exceed three pages. They are to be mailed to the Divisional Court office and to counsel for the City on or before September 10, 2021.

Swinton J.

Released: August 27, 2021