In the world of real estate, trees and all of their glory can
often be a significant consideration to not only the development
potential of a property but also the continuing use and enjoyment
of another's property.
In previous posts, we have written about boundary trees growing
on the property line and the often contentious battles that can
result between neighbouring property owners as a result of
responsibility for – and decisions relating to – such
trees. In a recent decision of the Ontario Superior Court of
Justice,1 the Court heard a case involving a
boundary tree that was severely damaged during the 2013 ice storm
and which caused damage to the roof of one of the property
owner's homes. To briefly summarize, one neighbour wanted the
tree removed, while the other neighbour wanted to keep the tree in
place. A battle of the independently retained arborists hired by
each of the property owners ensued and ultimately, the City of
Toronto granted authority to have the tree removed due to its poor
In the end, the Court held that there is no conflict between the
Forestry Act2 (which deals with boundary trees)
and Chapter 813-16 of the Toronto Municipal
Code3 (which deals with the granting of tree
removal by the City of Toronto Urban Forestry Department). Rather,
the Court stated that this was a "straight-forward application
of the common law of nuisance"4, with the result
being that the tree must be removed.
The Court held that despite the provisions of the Forestry
Act, the owners remain liable to one another in accordance
with the common law of nuisance on the basis of the presumption
that the legislation preserves rather than changes the common law.
Importantly, the Court went on to refer to case law that states
that the "law of nuisance 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"5
and that "nuisance is a common law tort, and it is a form of
strict liability that is not concerned with fault or
The Court also held that as a matter of law, owners of private
trees are required to take steps to abate the nuisance, including
the trimming of tree branches or roots that could interfere with
another land owner's use and enjoyment of their property.
1. Freedman v. Cooper, 2015 ONSC
2. R.S.O. 1990, C. F.26.
3. Passed pursuant to s. 8(2) of the City of Toronto
Act, 2006, S.O. 2006, c. 11.
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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