Freedman v. Cooper

Ontario Reports

Ontario Superior Court of Justice,

Perell J.

March 2, 2015

124 O.R. (3d) 793 | 2015 ONSC 1373

Case Summary

Torts — Nuisance — Tree on boundary between applicant's and respondent's property damaged in ice storm — Applicant obtaining reports from arborists that tree was unsafe and obtaining permit under Toronto Municipal Code to remove it — Respondent refusing to permit anyone to enter onto his property to cut down tree — Applicant applying successfully for order that respondent not interfere with removal of tree and that he indemnify applicant for one-half her expenses — Section 10(3) of Forestry Act not applying — Tree constituting patent nuisance which respondent was obliged to take steps to abate — Forestry Act, R.S.O. 1990, c. F.26, s. 10(3).

A mature maple tree on the boundary between the applicant's property and the respondent's property was damaged in an ice storm. A large branch fell and damaged the roof of a neighbouring property. The applicant obtained several arborists' reports that the tree was unsafe, and obtained a permit under the City of Toronto Municipal Code to remove it. The respondent refused to permit anyone to enter onto his property to cut down the tree. The applicant applied for an order that the respondent not interfere with her removal of the tree and that he indemnify her for one-half of her expenses.

Held, the application should be allowed.

Section 10(3) of the Forestry Act, which 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", does not apply to the owners of the boundary tree. The common law of nuisance applied to the circumstances of this case. The tree constituted a patent nuisance which the respondent was obliged to take steps to abate.

Cases referred to

Black v. Zager, 1982 CanLII 4025 (MB QB), [1982] M.J. No. 17, 18 Man. R. (2d) 22, 22 C.C.L.T. 231, 16 A.C.W.S. (2d) 356 (Q.B.); Doucette v. Parent, [1996] O.J. No. 3493, 14 O.T.C. 354, 31 C.C.L.T. (2d) 190, 66 A.C.W.S. (3d) 174 (Gen. Div.); Glashutter v. Bell, [2001] B.C.J. No. 2587, 2001 BCSC 1581, 110 A.C.W.S. (3d) 478; Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610, [1956] S.C.J. No. 37, 4 D.L.R. (2d) 1, 28 C.P.R. 25, 56 D.T.C. 1060, 16 Fox Pat. C. 91; Guinan v. Ottawa (City), [2010] O.J. No. 6019, 2010 ONSC 807, 77 M.P.L.R. (4th) 41 (S.C.J.); Hayes v. Davis, [1989] B.C.J. No. 2381 (S.C.); Hodgins v. Toronto (City), [1892] O.J. No. 59, 19 O.A.R. 537 (C.A.); Kiessling v. Varga, [2002] B.C.J. No. 142, 2002 BCSC 90, 111 A.C.W.S. (3d) 6; Leakey v. National Trust for Places of Historic Interest or Natural Beauty, [1980] Q.B. 485, [1980] 1 All E.R. 17, [1980] 2 W.L.R. 65, 78 L.G.R. 100 (C.A.); Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local, 324 (2003), 67 O.R. (3d) 256, [2003] 2 S.C.R. 157, [2003] S.C.J. No. 42, 2003 SCC 42, 230 D.L.R. (4th) 257, 308 N.R. 271, 177 O.A.C. 235, J.E. 2003-1790, 7 Admin. L.R. (4th) 177, 31 C.C.E.L. (3d) 1, [2003] CLLC Â220-062, 47 C.H.R.R. D/182, REJB 2003-47356, 125 A.C.W.S. (3d) 85; Pugliese v. Canada (National Capital Commission), 1979 CanLII 32 (SCC), [1979] 2 S.C.R. 104, [1979] S.C.J. No. 34, 97 D.L.R. (3d) 631, 25 N.R. 498, 8 C.C.L.T. 69, 8 C.E.L.R. 68, varg (1977), 1977 CanLII 49 (ON CA), 17 O.R. (2d) 129, [1977] O.J. No. 2370, 79 D.L.R. (3d) 592, 3 C.C.L.T. 18, [1977] 2 A.C.W.S. 496 (C.A.); [page794] Schoeni v. King, 1943 CanLII 96 (ON CA), [1944] O.R. 38, [1943] O.J. No. 493, [1944] 1 D.L.R. 326, [1944] O.W.N. 11 (C.A.); Sedleigh-Denfield v. O'Callagan, [1940] A.C. 880, [1940] 3 All E.R. 349 (H.L.); Yates v. Fedirchuk, [2011] O.J. No. 4718, 2011 ONSC 5549, 343 D.L.R. (4th) 171, 65 C.E.L.R. (3d) 89, 13 R.P.R. (5th) 113, 209 A.C.W.S. (3d) 733 (S.C.J.)

Statutes referred to

City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, s. 8(2)

City of Toronto Municipal Code, 813-16

Forestry Act, R.S.O. 1990, c. F.26, s. 10(2), (3)

APPLICATION for an order that the respondent not interfere with the removal of a tree.

Christopher J. Cosgriffe, for applicant.

Benjamin E. Jefferies, for respondent.

PERELL J.: —

A. Factual Background

[1] On the boundary between the applicant Beryl Freedman's home at 5 Glenarden Road, Toronto and the home of the respondent, Lorne Cooper, at 7 Glenarden Road, there is a mature Norway maple tree that was damaged by the infamous December 2013 ice storm that ravaged Southern Ontario. The tree lost one-third of its canopy, and a large branch fell and damaged the roof of 83 Wembley Road, a neighbouring property, owned by David Gillis and Esther Sidis.

[2] Some months later, after she obtained several arborists' reports about the safety of the tree, Ms. Freedman obtained a permit from the City of Toronto to have the tree removed, but Mr. Cooper refuses to consent. As a response, Ms. Freedman seeks a court order permitting her to remove the tree.

[3] For the reasons that follow, I order that Ms. Freedman may have the tree removed and that Mr. Cooper shall pay $2,940.50, which represents half of the expense associated with the tree's removal.

[4] As already noted, on the boundary between Ms. Freedman's home at 5 Glenarden Road, Toronto and the home of Mr. Cooper at 7 Glenarden Road, there is a mature Norway maple tree that was damaged in the ice storm. After the storm, on December 30, 2013, Mr. Gillis and Ms. Sidis hired Don Gauthier, a certified arborist to remove the branch from the roof of their house. Mr. Gauthier then went and told Ms. Freedman that the tree should be removed as a result of the damage the tree had suffered from the storm.

[5] On December 30, 2013, Ms. Freedman obtained a quote from Anson Kirby, another arborist. Mr. Kirby confirmed that [page795] the tree should be removed for safety reasons. Mr. Kirby said it would cost $4,926.80 to remove the tree.

[6] On January 13, 2014, Ms. Freedman hired Mr. Gauthier to prepare a report about the condition of the tree.

[7] On January 19, 2014, Mr. Gauthier delivered a report that recommended that the tree be cut down because "[the] tree has outgrown its location and is in decline as evidenced by its reduced vigour and ability to close over previous wounds and wall off exposed inner wood tissues. The number of potential targets under and adjacent to this tree makes removing this tree a safety priority." Mr. Gauthier said that he would remove the tree for a fee of $4,294.

[8] With this information in hand, Ms. Freedman and her husband, Stuart Ducoffe, visited Mr. Cooper and told him about the various recommendations to cut down the tree. His response was non-committal, and he said that he would seek counsel for advice.

[9] On January 22, 2014, Mr. Ducoffe and Ms. Freedman wrote Mr. Cooper and provided him with a copy of Mr. Gauthier's report. The letter indicated that they would arrange for the removal of the tree at no cost to Mr. Cooper as their expense would be covered by an insurance claim. There was no response to this letter.

[10] Mr. Cooper does not want the tree removed. He deposes that in March 2014, an arborist from the City of Toronto attended at his property to assess the tree. The arborist inspected the tree and concluded that it was healthy and did not pose a safety risk. He indicated to Mr. Cooper that the tree would last another 50 years. Mr. Cooper, however, did not obtain the inspector's name or contact information, and there is no report on file with the City of Toronto of the inspection or of the inspector's opinion. I pause here to say that I believe that this inspection occurred, but that Mr. Cooper must have misunderstood what the arborist told him, which on the matter of the tree's risk of causing damage is inconsistent with the assessment of all others before or after March 2014.

[11] On April 10, 2014, Mr. Ducoffe sent Mr. Cooper another letter asking for his consent to have the tree removed. Mr. Ducoffe noted that as a result of the ice storm, the City of Toronto was waiving the requirement of having to obtain a permit to cut the tree down and the requirement to replant a tree in its place, thereby saving the additional expense of approximately $1,500 that otherwise would have to be paid once the waiver period ended. There was no response to this letter.

[12] On May 25, 2014, at an expense of $100, Ms. Freedman applied to the city for a permit to have the tree cut down. [page796]

[13] Pursuant to s. 8(2) to the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, the city has the authority to pass by-laws for the protection of persons and property as well as for the economic, social and environmental well-being of the city, and under this authority, the city passed 813-16 of the Toronto Municipal Code, which outlines the criteria the city must consider when deciding whether a permit will be issued for the removal of a tree. Generally speaking, the Code favours the preservation of mature trees, but it permits their removal in limited circumstances.

[14] On July 4, 2014, Ms. Freedman received a letter from the city, which letter was copied to Mr. Cooper. The letter stated:

Urban Forestry has reviewed this application, including performing an independent inspection of the subject tree. Approval of any application to remove a tree is based upon our assessment that no reasonable alternative to tree removal are possible and that the tree qualifies for removal under the By-law. Your application meets our requirements, and the permit will be issued as early as 15 calendar days from the receipt of this letter.

[15] On July 15, 2014, Ms. Freedman received another letter from the city that stated:

This is to confirm that Urban Forestry has reviewed your request for a permit to remove a privately owned tree . . . The inspection revealed that the Norway maple tree in question is in poor condition and is not viable to maintain.

Urban Forestry is in agreement that there is no room for replacement tree(s) on site.

[16] The same day, Mr. Cooper sent an an e-mail to the City of Toronto to the attention of Jetmir Balashi, whose title is urban forestry, assistant planner. In that e-mail, Mr. Cooper insisted that the tree is "quite secure", and he objected to a permit being issued to allow the tree to be removed.

[17] On July 21, 2014, the city granted Ms. Freedman a permit to cut down the tree. She incurred a fee of $583 in lieu of replanting a replacement tree.

[18] On July 30, 2014, Mr. Ducoffe delivered a letter to Mr. Cooper advising that an arborist was available to cut down the tree on August 5, 2014 and August 6, 2014. However, the arborist needed permission from Mr. Cooper to gain access to his property, which would facilitate the tree cutting.

[19] Later that day, Mr. Cooper replied by e-mail and stated:

. . . I have copied my lawyer on this letter as he will be handling this on my behalf going forward. I will be discussing this matter with him, post haste, and we will respond to all outstanding matters in writing as it relates to your letter below. Kindly be advised that I will not consent to any access to my property from this date (July 30/ 2014), and until such time when all matters have been resolved to our mutual satisfaction. Any encroachment [page797] on or near my property by yourself or any agent or representative, including the arborist mentioned in your letter below will be viewed as a violation and handled as a matter of law[.]

[20] On August 4, 2014, Mr. Cooper wrote Mr. Ducoffe to advise that he was retaining an arborist to investigate the health of the tree and that the arborist would be providing a report on his findings within a couple of days.

[21] In light of Mr. Cooper's plans, Ms. Freedman retained Mr. Gauthier to prepare yet another report, which he delivered on September 8, 2014. Mr. Gauthier charged $565 for his second report. The second gauthier report notes that

[t]he first two main unions located at a height of approximately 10ft, have large cracks/seams . . . A failure of either or both would do considerable damage to the owner's house, owner's garage, and the north neighbour's house. . . . this tree will be in much poorer condition next year as its ability to make energy has drastically decreased due to losing a third of its canopy from the ice storm.

[22] On October 2, 2014, Mr. Cooper provided Ms. Freedman with the report of John Stewart of Davey Resource Group. In his report, Mr. Stewart reported that the tree was in good health. He stated that there is an inherent risk associated with all trees. He concluded that the tree has "notable defects" which "are pre-disposed to potential structural failure" and that there was a possible risk of "failure" but there were specified mitigation options that could and should be adopted as a measure of reducing the risk of failure.

[23] Mr. Stewart's report proposes mitigation options which would reduce the risk of structural failure of the tree:

1. Monitor the condition of this tree regularly, perhaps annually by a qualified tree risk assessor.

2. In order to mitigate the potential failure on the narrow angled branch unions, a cabling support system could be installed. The system should be installed according to ANSI A300 (Part 3) standards. This support system should be inspected annually if a dynamic system is used and every 5 years if a static system is used to ensure that it remains in good working order.

3. In conjunction with cabling support systems there should also be a rigid rod application installed into the trunk area of the vertical seam.

4. The subject should also have a canopy reduction to lessen the weight and effects of wind loads on the limbs in order to further reduce natural forces on the narrow angled branch unions. This reduction should be performed foremost to mitigate further limb loss but care also should be taken not to put the subject into poor health or aesthetics.

[24] Under cross-examination, Mr. Stewart conceded that neither he nor Davey Resource Group are guaranteeing that these mitigation options will work. [page798]

[25] Mr. Cooper stated that he was prepared to assume responsibility for the mitigation options. He was, however, not prepared to assume responsibility for any damage to person or property should the tree fall.

B. Discussion

[26] In their factums and in their oral argument, the parties were preoccupied with what they perceived as a conflict between the Forestry Act, R.S.O. 1990, c. F.26 and 813-16 of the Toronto Municipal Code, under which the city granted Ms. Freedman a permit to have the tree removed. However, as I view this matter, there is no conflict, and this case is a straightforward application of the common law of nuisance with the result that the tree must be removed.

[27] Under s. 10(2) of the Forestry Act, "[e]very tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands". In the circumstances of the immediate case, all this means is that although the tree is on Mr. Cooper's property, he is a joint owner of the tree with Ms. Freedman.

[28] Section 10(3) of the Forestry Act provides that "[e]very 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".

[29] It seems that Ms. Freedman is of the view that she needs court approval to remove the tree because she and her agents would be committing an offence under s. 10(3) of the Forestry Act if she used the permit for the tree's removal, which was issued by the City of Toronto. This view is based on the circumstance that under s. 10(3) of the Act, the consent of both Ms. Freedman and Mr. Cooper is apparently required for any removal of the tree.

[30] I disagree. I read s. 10(3) of the Forestry Act as simply not applying to the owners of the boundary tree. The owners remain liable one to another in accordance with the common law. In my opinion, s. 10(3) of the Forestry Act simply does not apply in the circumstances of this case.

[31] It is presumed that legislation preserves rather than changes the common law. It is presumed that the legislator will not change the common law without expressing its intentions to do so with irresistible clearness: Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (2003), 67 O.R. (3d) 256, [2003] 2 S.C.R. 157, [2003] S.C.J. No. 42, 2003 SCC 42, at para. 39; Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610, [1956] S.C.J. No. 37, at p. 614 S.C.R. [page799]

[32] The common law applies to the circumstances of this case.

[33] 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. See Pugliese v. Canada (National Capital Commission) (1977), 1977 CanLII 49 (ON CA), 17 O.R. (2d) 129, [1977] O.J. No. 2370 (C.A.), vard 1979 CanLII 32 (SCC), [1979] 2 S.C.R. 104, [1979] S.C.J. No. 34; Sedleigh-Denfield v. O'Callaghan, [1940] A.C. 880, [1940] 3 All E.R. 349 (H.L.).

[34] 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: Sedleigh-Denfield v. O'Callaghan, supra; Schoeni v. King, 1943 CanLII 96 (ON CA), [1944] O.R. 38, [1943] O.J. No. 493 (C.A.); Doucette v. Parent, [1996] O.J. No. 3493, 14 O.T.C. 354 (Gen. Div.); Hayes v. Davis, [1989] B.C.J. No. 2381 (S.C.); Leakey v. National Trust for Places of Historic Interest or Natural Beauty, [1980] 1 All E.R. 17, [1980] Q.B. 485 (C.A.); Guinan v. Ottawa (City), [2010] O.J. No. 6019, 2010 ONSC 807 (S.C.J.).

[35] Doucette v. Parent, supra, was a case involving a diseased tree, and although Justice Valin dismissed the claim for damages arising from natural conditions, he described the applicable law, at para. 32, as follows:

The Leakey test, established specifically for hazards occurring on an occupier's land, and the more general "reasonable use" test referred to by Fleming and Street and cited with approval by McIntyre J. in St. Pierre [1987 CanLII 60 (SCC), [1987] 1 S.C.R. 906], are essentially compatible. The common element appears to be whether or not the defendant had or ought to have had knowledge regarding a potentially dangerous situation created by the defendant's trees vis-à-vis his neighbour. With respect to latent defects, a defendant is not liable in nuisance unless he/she fails to remedy it without undue delay when he/she becomes aware of it or with ordinary and reasonable care should become aware of it.

[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: Yates v. Fedirchuk, [2011] O.J. No. 4718, 2011 ONSC 5549 (S.C.J.), at para. 73; [page800] Kiessling v. Varga, [2002] B.C.J. No. 142, 2002 BCSC 90; Glashutter v. Bell, [2001] B.C.J. No. 2587, 2001 BCSC 1581; Hodgins v. Toronto (City), [1892] O.J. No. 59, 19 O.A.R. 537 (C.A.), at para. 64; Guinan v. Ottawa (City), supra.

[37] In Black v. Zager, 1982 CanLII 4025 (MB QB), [1982] M.J. No. 17, 18 Man. R. (2d) 22 (Q.B.), Chief Justice Dewar stated, at paras. 9-11:

It is common ground that an owner of land on which a tree grows is liable in nuisance at the suit of an owner of adjoining land if the roots or branches encroach on the adjoining land and cause damage. . . .

The tree roots in this case constitute an actionable nuisance and, while they remain, the likelihood is that the nuisance will be a continuing one.

The evidence establishes that substantial damage has been suffered by the plaintiff and in my view he is entitled to an order enjoining the defendants to abate the nuisance and remove the offending roots from plaintiff's land.

[38] Applying this law to the circumstances of the case at bar, both Ms. Freedman and Mr. Cooper had been put on notice that the boundary tree, which had already caused damage to a neighbour's property, presents a continuing danger. Ms. Freedman did the responsible thing and she took steps to abate the patent nuisance. She offered to do so at her own expense, even though as a co-owner of the boundary tree, Mr. Cooper has a shared responsibility.

[39] Because the danger posed by this particular boundary tree is no longer inherent but is rather a patent risk, it was no answer for Mr. Cooper to say that all trees pose inherent dangers. Mr. Cooper was obliged as a matter of law to take steps to abate the nuisance. When he failed to do so, he became liable to have the court to direct him to do so.

[40] I, therefore, order that Mr. Cooper not interfere with Ms. Freedman's removal of the tree and that he indemnify her for half of the expense in the amount of $2,940.50.

C. Conclusion

[41] Order accordingly.

[42] Having reviewed Ms. Freedman's bill of costs and heard the submissions of the parties, I award her costs of $13,500, all inclusive, on a partial indemnity basis, which is fair and reasonable in the circumstances of this case.

Application allowed.

End of Document