ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-00000102
DATE: 2014027
BETWEEN:
JESSICA LACIAK
Appellant
– and –
CITY OF TORONTO
Respondent
Representing herself
Emma Luca, for the Respondent, City of Toronto
HEARD: February 20, 2014
himel j.
reasons for decision
[1] Jessica Laciak (“Laciak”) appeals the decision of the Property Standards Committee (the “Committee”) compelling her to do maintenance work on a large tree which the City considers a potential hazard on her property. She asks that the decision which confirmed the order to comply issued by the Property Standards Officer (the “Officer”) of the City of Toronto (the “City”) be rescinded. The City opposes the relief sought and submits that the Committee’s decision be affirmed.
Factual Background
[2] Jessica Laciak is the owner of property located at 47 Glenlake Avenue, Toronto, Ontario. The property, located in the High Park area, has a three storey house and a fenced backyard. A complaint was made to the City concerning a Carolina Poplar tree located in the rear of the property. John D’Elia, the Property Standards Officer, was assigned the case and attended at the house on October 21, 2012 to inspect the tree. He noted some dead wood in the limbs. He took photographs and sought the advice of an arborist who is employed by the City. That arborist, Chris Plant, also attended at the house and took photographs.
[3] After receiving the arborist’s report, the Officer issued an order under s. 15.2(2) of the Building Code Act, S.O. 1992, c. 23 as amended (the “Act”) requiring pruning of the tree. The order was that those portions of the tree that are diseased, decayed or damaged be removed. He contacted the owner and advised her of the order. Ms. Laciak was not pleased with the order and told Mr. D’Elia that it was not fair that she should be solely responsible for maintenance of the tree when the survey of the property showed that the tree’s roots were on at least three properties: 47 Glenlake Avenue, 45 Glenlake Avenue and 603 Indian Road. After Mr. D’Elia saw the survey, he issued orders to the owners of the two abutting properties.
[4] The owners of the two abutting properties appealed the Officer’s orders to the Property Standards Committee which rescinded the orders for 45 Glenlake Avenue and 603 Indian Road on February 28, 2013. To allow Ms. Laciak an opportunity to appeal her order, the Officer issued a new order dated March 1, 2013 requiring that the tree be pruned. He attended at the property on February 26, 2013 to take photographs for the appeal to the Property Standards Committee.
[5] The hearing before the Committee was adjourned on April 25, 2013 and June 27, 2013. The appeal was finally heard on July 26, 2013. On July 31, 2013, the Committee confirmed the order to comply of the Officer requiring pruning of the tree because of the dead wood.
Analysis and the Law
[6] Chapter 629 of Toronto Municipal Code, “Property Standards” provides the following with reference to trees:
A tree or other plant, or a limb or branch or it, that is dead, diseased, decayed or damaged shall be removed from the property or otherwise pruned to remove the dead, diseased, dying or dangerous portions of the tree or plant.
[7] An owner who receives a compliance order from the City may appeal to the Property Standards Committee. An appeal lies from the Property Standards Committee to the Superior Court of Justice pursuant to s. 15 of the Act. The municipality where the property is situate or any owner or occupant of person affected by a decision of the Committee may appeal the decision. In this case, the decision of the Committee was issued without reasons and no transcript is taken of the proceedings. Accordingly, the standard of review on this appeal is one of correctness. Given that there were no factual findings, the hearing before this court is a de novo hearing where evidence may be given.
[8] Under s. 15, this court has the same powers and functions of the Committee. The court may confirm, modify or rescind the order made. It may also extend the time for compliance with the order. As the Committee has all the powers and functions of the officer who made the order, the court hearing the appeal does as well: see sections 15(3.1) and (6). An order of a judge is final and binding upon the owner and occupant who is required to carry out the repair or demolition within the time and in the manner specified in the order.
The Evidence at this Appeal
[9] John D’Elia has been an employee of the City for the past 33 years and a Property Standards Officer for the last eleven years. He explained that he responded to a complaint about a tree with dead wood located in the backyard at 47 Glenlake Avenue. He inspected the premises, took photographs and spoke with the owner. He requested a report from the City’s Forestry Department. In a conversation with the owner, she pointed out that the Forestry Act prevented her from doing anything with the tree which was situate on three properties according to the survey. The Officer issued orders against the abutting properties on November 12, 2012 and January 2, 2013 and a new order against the property at 47 Glenlake on March 1, 2013 so that she could appeal the order. The appeal was heard on July 26, 2013. It confirmed the violation of the Building Code and upheld his order requiring pruning of the dead wood.
[10] Christopher Plant is an arborist employed by the City of Toronto since 1989. He testified that he inspected the property on October 23, 2012 and took photographs of the Carolina Poplar Tree of 185 cm in diameter growing at the rear of 47 Glenlake Avenue. He observed that there was dead wood in the crown of the tree and recommended removal of portions of the tree because of the potential hazard. He noted that the tree is protected under Municipal Code 813, Article III and that a permit is required to remove the tree.
[11] Mr. Plant re-attended at the premises and took photographs on February 13, 2014. He noted that there were no leaves or buds on the branches in question. He commented that 30 percent of the tree is dead and that this poses a potential hazard which should be addressed. Mr. Plant agreed in cross-examination that while the initial photographs taken show that the tree was surrounded by fence on the borders of 47 Glenlake Avenue, in fact, there are now three fences from three properties which intersect with the tree and a portion of the area abutting the tree is open and not fenced.
[12] Jessica Laciak testified that she is the owner of the property at 47 Glen Lake. Her opposition to the order is that since the survey shows that the tree is on the three properties, three owners should be responsible for the maintenance of the tree. In October 2011, she paid $1,700 to clean up a portion of the tree. Her concern is that it may cost as much as $10,000 to prune the tree and she believes that her neighbours should contribute.
Positions of the Parties
[13] Ms. Laciak submits that the Committee should not have rescinded the orders against the abutting properties while upholding the order against hers. She argues that if she was to take action to remove a tree which lies on common property, she would be violating the Forestry Act and would be subject to a penalty up to $20,000. Given that the tree borders with the three properties, she takes the position that the order of the Property Standards Officer should be rescinded and that new orders should be issued against all three properties where the tree is situate so that they may share in the cost of maintenance.
[14] Ms. Laciak relies on the decision of Hartley v. Cunningham 2013 ONSC 2929, [2013] O.J. No. 2304 (Sup. Ct.), upheld at 2013 ONCA 759. In that case, Hartley wanted to remove a Norway maple tree which straddled the line between adjacent properties because it was potentially hazardous. The neighbours opposed the action, asserted an ownership right and argued that the tree was common property. Justice J.P. Moore noted that if a tree is co-owned, then the owners must all consent to the removal or maintenance of the tree. He held that trees with trunks growing across property lines are common property and cannot be destroyed or injured without the consent of the neighbour. In fact, it is an offence under the Forestry Act to remove such a tree without everyone’s consent.
[15] The City takes the position that the responsibility of the owners of the abutting properties is not before the court as they successfully appealed the order of compliance issued against them. The City did not appeal those decisions. Counsel submits that the tree has dead wood which poses a hazard, that the Officer issued a compliance order which was upheld by the Committee. Thus, this court should uphold or confirm that decision. She argues that the owner can pursue her remedies against her neighbours for contribution to the expense of maintenance in a civil action.
Decision
[16] The evidence led on this de novo hearing was that the tree in question has a large trunk which sits primarily on 47 Glenlake Avenue. However, the fences which were on that property have been removed and replaced with three separate fences that show that the tree is on the intersection of three properties: 47 Glenlake Avenue, 45 Glenlake Avenue and 603 Indian Road. The survey also supports that the tree sits on the three abutting properties.
[17] Section 10 of the Forestry Act, R.S.O. 1990, c. F.26 provides:
(1) An owner of land may, with the consent of the owner of adjoining land, plant trees on the boundary between the two lands.
(2) Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.
(3) 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.
[18] In Hartley, the applicant was seeking a declaration that she was the sole owner of the tree because at ground level, its trunk was entirely or almost entirely on her side of the property line. She argued she was sole owner so that she could cut down the tree without the consent of her neighbours. However, the applicant was unable to demonstrate that the tree was solely on her property or that the tree was unhealthy and should be removed. The respondents, on the other hand, led evidence that the trunk of the tree was growing on the boundary lines to support their claim of co-ownership and that an arborist was of the view that it was in a reasonably safe condition. Any issues about retaining it could be addressed easily.
[19] The court held in Hartley v. Cunningham that, where there is common ownership of a tree, consent of all the owners to removal or maintenance is required. In concluding that the word “trunk” should be given its ordinary dictionary meaning, Justice Moore held that the sole issue is not where the trunk emerges from the ground but, rather, the question is where the base of the tree meets the roots. Moore J. noted that the legislation removed historical components of tree ownership such as who planted the tree, when and where it was planted with relation to the boundary line and whose consent was given to planting the tree. Rather, the legislation focuses on where the tree trunk is growing which is more readily ascertainable. He concluded that the tree is a boundary tree within the meaning of the Forestry Act and that it is common property of the owners of the adjoining lands and its ownership is shared by the parties. He dismissed the application for a declaration of sole ownership. The Ontario Court of Appeal agreed with the application judge’s interpretation that the trunk of the tree is that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage and his conclusion that the tree was a boundary tree and that the parties were co-owners. The court affirmed his decision dismissing the appellant’s application to be declared the sole owner of the tree.
[20] With reference to the application of s. 10 of the Forestry Act, two issues are relevant. First, the City has ordered that the tree be pruned and maintained. The type of activity ordered does not fall within subsection (3) which prohibits a person who “injures or destroys” a tree growing on a boundary from doing so without the consent of the land owners. Second, the appellant did not lead evidence of whether the neighbouring owners did or did not consent to the work ordered by the City. Given their positions before the Committee, perhaps it may be inferred that they do not consent or they might consent but do not wish to share in the cost. There is no evidence before me on this.
[21] A further relevant issue is that the City did not appeal the decision of the Committee concerning the compliance orders given to the owners of 45 Glenlake Avenue and 603 Indian Road. Because those cases were not appealed, there is no authority in this court to rescind, confirm or modify the decisions of the Committee with reference to those properties.
Result
[22] On the evidence before me, I am satisfied that the tree may be commonly owned by the three properties abutting and that the order of compliance requiring the cost of all the maintenance of the tree to be borne by one homeowner must be set aside in these circumstances. It will be for the City to take whatever steps it deems necessary to address the issue of repair of the tree with all the owners, having considered the current state of the tree, the advice of the arborist, whether or not any portions of the maintenance required can be attributed to a particular owner because of where the branches overhang and the recognition of the fencing that now exists surrounding the tree. Evidence of the position of the owners of the abutting properties about the maintenance of the tree should be before the Committee.
[23] Accordingly, the decision of the Committee is rescinded. The City is not seeking an order of costs. The owner seeks costs of $225. which she paid to the Superior Court of Justice to file her appeal. In the circumstances, I exercise my discretion and deem this an appropriate case to make no order as to costs for this appeal.
Himel J.
Released: February 27, 2014
COURT FILE NO.: CR-13-00000102
DATE: 20140227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN
JESSICA LACIAK
Appellant
– and –
CITY OF TORONTO
Respondent
REASONS FOR DECISION
Himel J.
Released: February 27, 2014