Court File and Parties

Court File No.: CV-22-000093-0000 Date: 2024-04-15 Superior Court of Justice - Ontario

Re: Catherine Kategiannis, Appellant And: Woodstock Property Standards Committee and Howard Hetherington, Respondents

Before: Justice M.A. Cook

Counsel: Catherine Kategiannis for Self Evelyn Hetherington for Howard Hetherington and Self

Heard: April 28, May 31, and July 17, 2023

Judgment on Appeal

[1] The appellant, Catherine Kategiannis, is the owner of a residential property at 34 Clarke Street North in the City of Woodstock, Ontario. The respondent Howard Hetherington and his wife, Evelyn Hetherington (together, the “Hetheringtons”), are the owners of 42 Clarke Street North in the City of Woodstock, Ontario.

[2] Ms Kategiannis and the Hetheringtons are neighbours. The property line separating Ms Kategiannis property from the Hetherington property runs perpendicular to Clarke Street North from the road to the rear property line.

[3] On June 10, 2022, the City of Woodstock issued an “Order to Remedy Violation of Standards of Maintenance and Occupancy” (the “Property Standards Order”) directing the Hetheringtons to remove six trees on their property on the basis that the trees violated three provisions of the Woodstock property standards by-law, being Chapter 745 of the Woodstock Municipal Code.

[4] Howard Hetherington appealed the officer’s decision to the City of Woodstock Property Standards Committee (the “Committee”).

[5] The Hetherington’s appeal was heard by the Committee on July 6, 2022. The City of Woodstock arborist, Paul Butler, was present and presented his opinion evidence that the six trees were hazardous and ought to be removed. The Hetheringtons filed a report authored by their arborist, Alexander East, which stated that the trees needed some maintenance but were not hazardous. Mr. East was not present at the Committee hearing.

[6] At the conclusion of the hearing, several Committee members sought to defer the decision to allow Mr. Butler and Mr. East to meet and work out a mutually agreeable solution. The clerk advised that the Committee could confirm, modify, or rescind the Property Standards Order, but they could not ask the City of Woodstock or the Hetheringtons to present a different question for decision.

[7] Committee Chairman Pye stated expressed the view that “a couple of the trees should come down, specifically the one with the cable issues and the one threatening the neighbouring property.” He was in favour of a modification, so some trees would be removed, and the others be trimmed.

[8] The Committee voted to rescind the Property Standards Order.

[9] Ms Kategiannis appealed the Committee decision to the Superior Court of Justice in accordance with s. 15.4 of the BCA. She seeks an order confirming the Property Standards Order.

[10] The appeal was heard as a trial denovo over two days on April 28 and July 17, 2023. Arborist Paul Butler and Ms Kategiannis provided evidence on behalf of Ms Kategiannis. Arborist Alexander East and Evelyn Hetherington provided evidence on behalf of the Hetheringtons. The City of Woodstock, by the Property Standards Committee, did not participate in the hearing.

Legal Framework

[11] Municipalities like the City of Woodstock are granted broad authority to enact by-laws to enable the municipality to govern its affairs as it considers appropriate.

[12] The Building Code Act, 1992, S.O. 1992, c. 23 (as amended) (the “BCA”) provides that a municipality may pass a by-law prescribing standards for the maintenance and occupancy of property within the municipality, and requiring property that does not conform with the standards to be repaired and maintained to conform with the standards.

[13] The City of Woodstock has passed by-laws prescribing standards for the maintenance and occupancy of property within the City of Woodstock. They are incorporated into the comprehensive municipal code by which the City of Woodstock governs its affairs (the “Municipal Code”). Property standards by-laws passed by the municipality from time to time are set out in chapter 745 of the Municipal Code, the relevant portions of which provide:

745.3.4 All properties shall be maintained so as not to create a health, fire or accident hazard.

745.3.5 All properties shall be maintained free from conditions that may create a health, fire or accident hazard.

745.3.7 Every yard, including vacant lots, shall be kept clean from…

(h) dead, decayed or damaged trees or other natural growth.

745.7.1 This Chapter shall apply to all property within the limits of the municipality.

745.8.1 The Property Standards Committee of the City of Woodstock is hereby created and shall consist of seven members of the public who are a resident or an owner of property in the City. All appointments to this Committee shall become effective upon the passing of a resolution of Council which provides for such appointments and shall expire as of November 14 in the year of a municipal election or when a success to such appointee has been appointed. All appointments are at the discretion of Council.

[14] There is no dispute that Chapter 745 of the Municipal Code applies in this case, or that the Property Standards Order was authorized and validly issued by the City in accordance with s. 15.2 of the BCA.

[15] On the appeal, the Committee had all of the powers and functions of the property standards officer who made the Property Standards Order. It had the power to rescind the Property Standards Order if, in the committee’s opinion, doing so would maintain the general intent and purpose of the property standards by-law: s. 15.3(3.1).

[16] Similarly, this Court has all the powers and functions of the Committee. This Court is not bound by nor need it defer to, the opinions or findings made by the property standards officer or the Committee. The Court comes to its own conclusions, based on the evidence adduced at the hearing of the appeal in light of the relevant provisions of the Municipal Code: Yorkville North Development Ltd. v. North York, 1988 4701 (ON CA), 64 O.R. (2d) 225, [1988] O.J. No. 410 (C.A.) at para. 13.

Evidence Presented at the Hearing

Catherine Kategiannis

[17] Ms Kategiannis testified that she has lived in her home at 34 Clarke Street North in Woodstock since 1992.

[18] According to Ms Kategiannis the Siberian Elm trees (#0639, #0640, #0641) near the front of her home were originally maintained as a hedge, but the trees have been allowed to grow very tall, to an estimated height of 28 feet. These trees now hang over her property, drop branches and twigs onto her roof, fill her eaves with leaves, seeds and debris, and cause entry into her home to be potentially dangerous.

[19] Ms Kategiannis testified that the Siberian Elm tree identified as #0641 was located close to her house, near the rear of the dwelling. Ms Kategiannis testified that this tree was cabled in 2012, and that the cabling has failed. Ms Kategiannis testified that this tree is soft to the touch and is splitting down the middle.

[20] Ms Kategiannis testified that the Silver Maple Tree (Tag #0642) has dropped large branches into the rear of her property. Ms Kategiannis testified that the crotch of the Silver Maple tree is full of tree rot. Ms Kategiannis testified that she has two grandchildren living in her home, and she fears that this tree is an “accident waiting to happen”.

[21] With respect to the Manitoba Maple trees located near the rear of the Hetherington property, Ms Kategiannis testified that the trees are sitting on a very significant angle such that the canopy of the trees come into her property and damage her shed. She is fearful of the harm that these trees could cause if they fail.

Paul Butler

[22] Paul Butler is an arborist holding credentials granted by the International Society of Arboriculture (“ISA”). He is an ISA-Certified Arborist and holds an ISA Tree Risk Assessment Qualification. He is employed by the City of Woodstock as an urban forester where he assesses and inspects city-owned trees found in parks, road allowances and similar public places.

[23] Mr. Butler testified that effective urban forest management involved balancing the benefit of having trees in urban spaces with the risk posed by them. At the end of the day, the only way to completely eliminate the risks trees pose is to remove them.

[24] Mr. Butler testified that he was contacted by the City of Woodstock property standards officer about a complaint received by the City that certain trees on the Hetherington property were hazardous. He was asked to inspect the trees of concern and provide an opinion to the property standards officer about the condition of the trees.

[25] Mr. Butler attended at the Hetherington property on June 9, 2022. He inspected “a couple dozen” trees on the Hetherington property running along the property line between the Kategiannis and Hetherington properties. Mr. Butler concluded that there were six trees of concern due to poor form and poor health.

[26] Mr. Butler completed five separate City of Woodstock Forestry Inspection Forms for the six trees that he identified as problematic. I summarize the content of his inspection reports in the chart below:

Tree ID Number and Species	Location	Health Notations	Concerns
#0639 – Siberian Elm	Near driveway of 34 Clarke Street North	Health – Fair Structurally – Hazardous, Multiple stems, included bark, dead limbs	Elm tree beside neighbour’s driveway has poor form (multiple stems with included bark). This tree is likely to fall in high winds. It should be removed for safety reasons.
#0640 – Siberian Elm	Near house of 34 Clarke Street North	Structural – Multiple stems, included bark, dead limbs	Elm tree adjacent to front of neighbour’s house has poor from (co-dominant stems with included bark). It is likely to fall in high winds. It should be removed for safety reasons.
#0641 – Siberian Elm	Near back corner of 34 Clarke Street North	Health – Fair Structural – Hazardous, multiple stems, included bark, cabled. Tree was previously cabled with chain. Chain has pulled out of one side leaving it useless.	Large Elm tree has poor from (codominant stems with included bark). Slime flux (bacterial wet wood) is evident. This tree should be removed for safety reasons.
#0642 – Silver Maple	Rear Yard	Health – Fair Structural – Hazardous, multiple stems, included bark, decay, hanger, dead limbs	Large tree with poor form (multiple stems with included bark). Signs of rot and decay in the main crotch and in several major limbs. This tree should be removed.
#0643 and #0644 – Manitoba Maples	Rear Yard	Health – Fair Structural - Hazardous	Two Manitoba Maple trees near back of property are leaning towards neighbour’s shed. This species of tree is known to be prone to failure. These trees should be removed to prevent property damage or injury.

[27] In his testimony, Mr. Butler elaborated on his concerns about the six trees.

[28] Mr. Butler explained that, when he is considering whether a tree poses a hazard, he considers both the condition of the tree and where it is located. A recommendation to remove a tree comes after considering both the risk of tree failure and what or who would be impacted in the event of such failure. He considered the six trees to be hazardous due to the combination of the condition of the trees (including their species traits and structure) and the fact that they were located in close proximity to an occupied neighbouring residential property.

[29] With respect to tree condition, Mr. Butler explained that the six identified trees all had co-dominant stems with included bark. Mr. Butler explained that included bark at the intersection of a co-dominant tree stem is a very common failure point for trees both in inclement weather but also because, as the tree grows, the included bark pushes the stems away from one another, increasing the risk of failure.

[30] The Siberian Elm identified at #0641 had a chain that was previously installed in an effort to keep the co-dominant stems together. Mr. Butler testified that the chain had failed and was completely useless. This Siberian Elm also had a bacterial infection such that the tree was oozing what is called ‘slime flux’, which, while not a specific indicator that a tree is in decline, was noted as one of several indicators of the overall condition of the tree and its potential susceptibility to stress.

[31] Mr. Butler testified that Silver Maple identified at #00642 was a large tree with multiple stems with included bark. The tree had a large amount of dead wood at the main crotch of the tree and many large dead branches in its canopy. Mr. Butler testified that insects and animals can get into areas of dead rot and burrow in the tree. Mr. Butler concluded that the Silver Maple tree was in poor condition, was hazardous and should be removed.

[32] The two Manitoba Maples at the rear of the Hetherington property appeared to Mr. Butler to be in decent condition, but these trees concerned Mr. Butler because they were growing on a significant angle toward Ms Kategiannis’ property, are of species known to grow very quickly, and they are prone to failure. Mr. Butler said that he would never choose to plant a Manitoba Maple in an urban setting because they reproduce prolifically, grow very fast and are weak. He felt that these two trees should be removed.

[33] Mr. Butler testified that, once he completed his inspection, he delivered his inspection reports to the City’s property standards officer. He was not directly involved in the decision made by the property standards officer to issue the Property Standards Order.

[34] Mr. Butler did not have the benefit of the arborist report prepared by Alexander East for the Hetheringtons when he prepared his report. Mr. Butler obtained a copy of Mr. East’s report after he attended the Committee hearing in July 2022. Mr. Butler testified that he understood Mr. East’s desire to find solutions to save each of the six trees but, from his perspective, Mr. East and he had very different mandates. He had been asked to identify hazards and was not directed to look for ways to mitigate risk. Mr. East, on the other hand, was retained to look for ways to save the trees. Mr. Butler was sympathetic to the Hetheringtons looking for ways to keep the trees, but, in his opinion, the safety of the people and property within the target zone of the trees outweighed the intrinsic value of the six trees at issue.

Evelyn Hetherington

[35] Ms Hetherington testified on behalf of herself and Howard Hetherington as the owners of 42 Clarke Street North, in reference to an affidavit that she affirmed on June 28, 2023.

[36] Mrs. Hetherington testified that she and her husband had undertaken extensive work to remedy Ms Kategiannis’ concerns and the issues identified by Mr. Butler. Ms Hetherington urged that, with the work now completed by her arborist Mr. East, the subject six trees are healthy and safe and should not be ordered removed.

[37] Mrs. Hetherington testified that she worked with Ms Kategiannis to trim trees and address concerns over the years. In particular, Mrs. Hetherington indicated that she worked with Ms Kategiannis to address Ms Kategiannis’ concerns about the previously cabled Siberian Elm (#0641). The Hetheringtons retained Alexander East to assess the tree, make recommendations and perform maintenance work.

[38] When the Hetheringtons were served with the Property Standards Order, they again retained Mr. East for his assistance. Mr. East assessed the six trees again in June 2022, provided recommendations and performed maintenance work.

[39] With respect to the Siberian Elm (#0641) with slime flux, Mrs. Hetherington testified that Mr. East drilled the tree to allow the slime flux to drain from the tree and not pool in the crotch of the tree. In her view, the work completed by Mr. East should resolve any concern the City may have had about this tree.

[40] With respect to the Silver Maple, Mrs. Hetherington testified that Mr. East removed a number of large branches from the tree, removed the deadwood and trimmed the canopy so that no branches overhang Ms Kategiannis’ property or the playground in the rear yard. Ms Hetherington testified that, in addition to removing the rotten limb shown in Ms Kategiannis’ photographs, she instructed Mr. East to prune off additional limbs to ensure that no limbs overhang the Kategiannis property.

[41] With respect to the Siberian Elms, Mrs. Hetherington acknowledged that the trees may have been initially installed as a hedgerow, but by the time the Hetheringtons purchased their property, the trees were 20 feet tall. Mrs. Hetherington noted that their property extends 4 feet past the trees toward Ms Kategiannis’ property, and that if Ms Kategiannis did not park on the Hetherington property, her car would not get scratched by the trees.

[42] Mrs. Hetherington confirmed in her testimony that she and her husband want to keep the trees. She urges the Court that she and her husband have followed their arborist’s prescription and have expended time and money pruning and maintaining the trees. She has tried to work with Ms Kategiannis. She directed Mr. East to complete additional pruning to ensure that the trees don’t overhang Ms Kategiannis’ property or house. After all the work that they have done, and given their arborists opinion and work, they ask that they not be forced to now remove healthy trees at their own cost.

Alexander East

[43] Alexander East is an ISA-Certified Arborist privately retained by the Hetheringtons. Mr. East is also certified as an arborist by the Ontario College of Trades following a two-year arboriculture apprenticeship at Humber College, and 2 years of study in forestry at Sir Sandord Fleming College. Mr. East works as a municipal arborist for the City of Guelph and has 8.5 years in the arboriculture industry. He works assessing and maintaining trees for the City for Guelph.

[44] Mr. East says that he was initially engaged by the Hetheringtons in relation to the cabled Siberian Elm tree (#0641) approximately a year before his current engagement. Mr. East testified that he conducted a two-stage assessment of the Siberian Elm (#0641) at that time; he conducted both a visual inspection and climbed into the tree to feel how it reacted to forces. Mr. East testified that he placed significant forces into the tree using advanced rigging techniques. After his assessment, Mr. East came to the view that the cabling was not necessary and likely the result of “upsell” by a prior arborist. Mr. East did take note of the slime flux in the Siberian Elm at the time of his initial work. He then completed some maintenance work on the tree, including lifting the tree canopy so it did not cause damage to Ms Kategiannis’ property.

[45] Mr. East was next involved after the Property Standards Order was made. He was retained by the Hetheringtons to provide a written report in support of their appeal of the Property Standards Order to the Committee. In his report dated June 21, 2022, Mr. East opined that none of the six trees at issue in the Property Standards Report were hazardous and that none of them should be ordered removed. In particular, Mr. East strongly disagrees with Mr. Butler’s opinion that the trees constitute a hazard just because the six trees have co-dominant stems.

[46] Mr. East testified that trees don’t fail simply because they have co-dominant stems. Mr. East explained that many trees in forests have single trunks because of competition for light, but co-dominant stems are very common in urban spaces where trees have the opportunity to grow in multiple directions. In his opinion, trees with co-dominant stems are perfectly safe trees. Mr. East noted that the City of Woodstock owned a great many municipal trees with co-dominant stems in parks and other public spaces and it would be ‘hypocritical’ of the City to order the removal of the Hetherington trees on the basis of this concern alone.

[47] With respect to the Siberian Elm (#0641), Mr. East testified that he drilled the tree to prevent pooling of the slime flux in the crotch of the tree and allow the slime flux to drain off. Mr. East testified that, based on his ground inspection of the tree and his previous experience of the tree, he would willingly climb the tree again and “put my life back into it”. Mr. East says that this tree is not hazardous.

[48] Mr. East testified that there was no basis to consider the Siberian Elms at the front of the property (#0639 and #0640) to be hazardous. While the Siberian Elms have co-dominant stems with included bark, Mr. East opined that these two trees are healthy and have full canopies. Mr. East testified that the physical arrangement of these trees in relation to one another, together with the canopy thinning that he completed in the fall of 2022, is all that was needed to maintain these trees in safe condition.

[49] With respect to the Silver Maple (#0641), Mr. East testified that he had completed extensive work on the tree to remove all the deadwood, take down the rotten limbs and prune the tree back to the property line. Mr. East also recommended that the tree be drilled to prevent water pooling in the main crotch of the tree. Mr. East is of the opinion that, following the work he completed in September 2022, the Silver Maple is in good health and is not hazardous despite having multiple stems. Mr. East further opined that, if the Silver Maple were to fail, it would impact the Hetheringtons’ property and not the property of Ms Kategiannis. He opined that there was no reason to remove the tree.

[50] With respect to the two Manitoba Maples, Mr. East testified that, in his opinion, the Manitoba Maples had grown on an angle due to competition with other trees. In his view, the trees are in good condition and do not pose any significant risk of failure. Mr. East acknowledged that Manitoba Maples are prone to failure, but that, based on his inspection of the soil quality and root structure of the two subject trees, there was no reason to believe that they were beginning to tip. Mr. East noted that, in evaluating the risk posed by the trees, he did not assume extreme weather conditions, in which many trees are at risk of failure, nor did he assume that children would be playing underneath it.

[51] Mr. East summarized his opinion that the six trees at issue are “perfectly safe and there is nothing to worry about with them”.

Analysis and Discussion

[52] The question before me is whether to affirm, modify or rescind the Property Standards Order in light of the City of Woodstock Municipal Code property standards and the evidence I have accepted. In particular, I have considered whether the six trees identified in the Property Standards Order constitute a health, fire or accident hazard warranting their removal.

[53] Interestingly, the term “hazard” is not defined within the property standards section of the Municipal Code. A definition of “hazard” in relation to trees can be found within the tree by-law provisions of the Municipal Code at section 763.2.11 to be “a tree which is destabilized or structurally compromised to an extent that an imminent danger of death, injury or structural damage exists”.

[54] I am satisfied on the evidence before me that the Hetheringtons failed to maintain their property in a manner consistent with the applicable property standards. In particular, I accept Mr. Butler’s evidence that, at the time he inspected the Hetherington’s trees, the six trees at issue were hazardous due to the structure of the trees, the species of the trees, the poor condition of the trees, the presence of deadwood and decay, and the proximity of the six trees to Ms Kategiannis’s property. The Hetheringtons failed to maintain their property to prevent such a hazardous condition.

[55] If the Hetheringtons had not undertaken what I find to be extensive remedial work to the trees in the fall of 2022, I would have no hesitation in confirming the Property Standards Order. However, I find that the Hetheringtons completed extensive work in good faith in an effort to address the hazards identified by Mr. Butler and in the Property Standards Order. As such, I find it necessary to consider whether the trees continue to constitute a hazard following the remedial work.

[56] With respect to the two Siberian Elms at the front of the property (#0639 and #0640), there is no dispute that these trees are healthy despite having co-dominant stems with included bark. I accept the evidence that these trees were initially intended to be a hedgerow and have grown into large mature trees whose limbs extend over the Kategiannis property. I also accept Ms Kategiannis’ evidence that the trees drop debris onto her roof, into her eaves and onto the driveway of her property, and that debris has caused damage to her home.

[57] The Hetheringtons may well be liable to Ms Kategiannis for the damage caused to her property by the trees. However, the damage that these trees may have caused does not engage the applicable property standards unless the trees are hazardous in the sense of being structurally compromised so as to threaten imminent danger. In this respect, I accept Mr. East’s evidence that the mere presence of co-dominant stems on its own cannot justify the removal of these trees. There is no evidence to suggest that the structure of the trees is so compromised that they pose imminent danger of death, injury, or structural damage. Moreover, I accept Mr. East’s evidence that he removed deadwood and thinned the canopy of these trees to reduce wind shear and risk of failure. I find that that these trees need not be removed under the property standards regime but make this finding strictly without prejudice to Ms Kategiannis’ right to pursue private law remedies against the Hetheringtons for damages that these trees have caused to her property.

[58] With respect to the Siberian Elm adjacent to the rear of the Kategiannis home (#0641), I find that this tree poses a hazard due to the poor structure of the tree. This tree has been cabled previously. I do not accept Mr. East’s speculative statement the cabling was some kind of unnecessary “upsell” by a previous arborist. I find that the cabling was placed in this tree of legitimate concern about its poor structure. The poor structure of this tree, when considered together with its size and location in very close proximity to the Kategiannis home, creates a hazard of failure that warrants removal of the tree.

[59] With respect to the Silver Maple tree, I accept Mr. East’s evidence that he removed all of the visible deadwood from the Silver Maple, pruned the tree back to the property line such that there are no limbs are overhanging the Kategiannis property and drilled an angled hole from the side of the tree up into the main crotch to prevent water pooling and tree rot. While the maintenance performed on the Silver Maple tree cannot remedy the poor structure of the tree, I am satisfied that the maintenance completed on the Silver Maple in September 2022 addressed the hazards identified by Mr. Butler in a satisfactory manner. I am not satisfied that the Silver Maple tree should be removed as a hazard at this time.

[60] With respect to the Manitoba Maple trees, the evidence is that these trees are growing on a significant angle, have encroached into the Kategiannis property and are of a species prone to failure. The photographic evidence suggests that the trees are going on such an angle that little of these trees are actually located on the Hetherington property. Much of the biomass of the trees encroaches the space over the Kategiannis yard. Mr. East acknowledges that the trees could threaten the shed at the rear of the Kategiannis property. Given the angle on which these trees are growing and the fact that they are of a species prone to failure, I find the Manitoba Maple trees constitute a hazard that cannot be remedied or prevented through regular maintenance. The Manitoba Maples ought to be removed.

[61] In conclusion and for the foregoing reasons, I hereby vary the Property Standards Order so that the Siberian Elm trees (#0639 and #0640) and the Silver Maple tree (#0642) need not be removed but otherwise confirm the Property Standards Order.

[62] The parties are strongly encouraged to resolve the issue of costs among themselves. If they are unable to do so, Ms Kategiannis may serve and file her costs submissions by not later than May 8, 2024. The Hetheringtons may serve and file their responding submissions by May 15, 2024. In each case, submissions are to be not more than three double-spaced pages exclusive of bills of costs, offers to settle and case-law. If reply is necessary, it shall be delivered by Ms Kategiannis within seven days after receipt of the submissions made on behalf of the Hetheringtons. Such reply is to be no longer than two pages double-spaced, independent of any case law to be relied.

Justice M.A. Cook

Date: April 15, 2024