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Mature trees add beauty and character to any neighbourhood, while providing shade in the summer, wildlife habitat and cleaner air. As climate change makes our summers more sweltering, trees are becoming more important than ever. Considering how important trees are to our physical and mental health, it’s a scandal and a shame that the law and our governments do so little to protect them. All the more reason to celebrate a rare victory this spring, and to congratulate Clay Ruby for yet another win in the public interest.

On May 17, 2013, Justice Moore of the Ontario Superior Court of Justice ruled that trees whose trunks grow across private property lines are the common property of both owners. Neither owner can injure or destroy a shared tree in Ontario without the consent of the other.

In Hartley vs. Cunningham et al. 2013 ONSC 2929, Katherine Hartley wanted to cut down a mature Norway maple whose trunk grew at the boundary with her neighbours, the Scharpers. The Scharpers were absolutely opposed to the destruction of the tree. Without notice to them, Hartley obtained a permit to destroy the tree from the Toronto Urban Forestry department, arguing that the tree was dangerous.

Hartley must be a law abiding person. Unlike many others in her position, she didn’t just take a chainsaw to the tree; as mentioned in Anderson v. Skender, [1994] 1 W.W.R. 186 (BCCA), Leave to appeal refused [1994] 1 S.C.R. XI: “’tree trespass’ [is] a familiar cause of suburban friction … as residential development presses relentlessly on the surviving descendants of a forested past.”

Instead, Ms. Hartley sued for a declaration that she owned the tree, and was entitled to cut it down. Surprisingly, she lost.

Her loss was surprising because few attempts to protect boundary trees have been successful. While the City of Toronto brags about its Tree Bylaw, it does little to enforce it. Theoretically, the by-law prohibits injury to any tree 30 centimetres in diameter or more, without a permit. In practice, the City issues vaguely worded permits to damage even huge, rare and valuable trees, and issues building permits for buildings that will damage trees. And it rarely prosecutes anyone who breaches the bylaw. Ontario is just as bad, rarely enforcing its Forestry Act.

The courts, too, usually allow neighbours to cut branches or roots (though perhaps not stems) that extend across a property line, no matter how much damage that does to a beloved tree. For example, in Gosselin v Blanchard, 2007 BCPC 218, neighbours fought for years over a cedar hedge close to  the property line. Gosselin asserted that Blanchard had poisoned and cut the trees; Blanchard claimed damages from tree roots and branches encroaching on his property. Blanchard’s claims were dismissed, precisely because he could have cut the offending branches and roots back to his property line, if he was sure what that line lay:

“If that cutting causes harm or damage to the trees, it is basically “so be it.” If people spike a tree or pour something onto a tree to cause it to die and the tree is on someone else’s property, that would be actionable. Defending your property by cutting off the branches of the tree or the roots that encroach onto their property, so long as it is done in a non-malicious manner, they are within their rights.”

Trees are living beings, and may not survive if one neighbour whacks branches and roots of the tree, from his/her side of the property boundary. Some courts suggest that this right is not absolute, and does not permit injury imposed “needlessly” to a boundary tree. But when trees are illegally damaged or destroyed, the compensation awarded is pitifully inadequate.

What was different in Hartley was that the trunk of the tree straddled the property boundary, not just the roots or branches. In Koenig v Goebel, [1998] 6 W.W.R. 56 (Sask QB ), the court grouped straddle trees into three categories, only one of which was protected:

  1. Straddle tree – trunks straddle common boundary between properties at ground level – 3 subcategories:
    1. Consensual trees – Those trees planted along common boundary with consent of adjoining owners, which are owned in common.
    2. Straying Trees – Trees planted on one property whose trunks have expanded over a common boundary onto adjoining property
    3. Voluntary trees – origins unknown

In Hartley, Justice Moore took a more robust approach to protecting straddle trees. First, he ruled that the Scharper tree was a straddle tree because part of the trunk rose over the property boundary, whether or not the trunk was on both properties at ground level. Second, he ruled that the mere presence of the straddle tree gave both neighbours part-ownership, regardless of who originally planted the tree. Third, he rejected Hartley’s claim that the tree was dangerous; any danger could be adequately managed by professional cabling, which the Scharpers had offered to pay for. Thus, both neighbours owned the tree, and Ms. Hartley could not cut it down.

Toronto’s tree canopy is a precious common resource that helps make Toronto beautiful and livable place. Hilary and Stephen Scharper, thank you for helping to protect it!

This article was first published in the June 14 Lawyer’s Weekly.

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