If a Tree Falls …. Do We Have to Fight About It?

I’ve written before about how microwave ovens are a source of conflict among co-workers.  When it comes to conflict between neighbours, trees appear to be a leading source of tension. Now a recent court case about a Toronto tree has clarified some of the legal issues relevant to trees in Ontario.

It would seem to be common sense, as well as a provision of the Forestry Act, that if a tree trunk is growing on the boundary between two lots, then the tree is the common property of the adjoining landowners.  If a tree is indeed jointly owned, and one of the owners wants to remove it, the other owner must agree.  However the Forestry Act does not specify where the tree’s trunk begins and ends.  If the trunk of the tree emerges from the ground directly over the property line, then the tree is pretty clearly jointly owned.  But matters are rarely so simple.

In the Toronto case the tree trunk met the ground on Katherine Hartley’s property, but its roots, canopy, and part of the trunk extended over the property boundary into her neighbours’ back yard.  At some point (and for reasons that were not clear in the legal documents) Hartley came to the conclusion that the tree was unhealthy and decided to have it removed.  Her neighbours, Hilary Cunningham and Stephen Scharper, would not consent to the tree’s removal, so Ms. Hartley sought the court to declare that she was the sole owner of the tree and so did not require her neighbours’ consent. 

The judge dismissed her application and found that the tree was jointly owned.  After hearing expert evidence from two arborists and a landscape architect, and reflecting on the dictionary definition of “trunk,” the judge wrote that the relevant section of the Forestry Act, “includes within the ambit of the meaning of a tree trunk growing on a boundary line the entire trunk from its point of growth away from its roots up to its top where it branches out to limbs and foliage. In any event, it is not only the arbitrary point at which the trunk emerges from the soil that governs.”  Furthermore, since Ms. Hartley provided no evidence that the tree was unhealthy, her “wish to remove the tree falls short of a need to do so.”  In a subsequent decision the judge awarded costs to Cunningham and Scharper on a “partial indemnity” basis – in other words, besides having to pay her own legal costs, Hartley was responsible for paying over $13,000 of her neighbours’ costs.


Is this a conflict that should have been mediated?  There is no doubt that mediation would have been less expensive than litigation.  And since Hartley, Cunningham and Sharper will presumably continue to live next to one another they would have benefited from mediation’s ability to preserve and even strengthen relationships.  While I am a strong proponent of mediation, I also realize that it isn’t right for every case, and I do not have enough information to guess whether a mediation could have been successful in this particular case.  However Justice Moore’s decision makes it clear that if a tree is jointly owned then its future has to be determined by both owners.  His ruling should help neighbours in similar situations understand the legal landscape, so the speak, and assist them in coming to mutually agreeable decisions.

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Condo Law Digest – July 2013

Davis v. Peel Condominium Corporation No. 22, 2013 ONSC 3367 (CanLII)
Decision Date: June 7, 2013

As readers will probably know, condo board members may be removed from a board before the end of their term if more than half of all unit owners vote to remove them.  However, according to the Condominium Act, owners are not eligible to vote if, at the time of the meeting, any contributions payable with respect to their units have been in arrears for more than 30 days.  A group of owners at PCC 22 requested a meeting with the intention of removing the board.  At the meeting, held in October 2012, the lawyer representing the corporation ruled that 12 proxy votes were ineligible due to unpaid accounts, relying on records supplied by the property management company.  The group that had requested the meeting brought their own lawyer.  She objected to the first lawyer’s appointment as chair of the meeting (on the grounds that the person who appointed him was not authorized to do so) and was herself elected chair by a majority of those present.  Based on updated information, she ruled that the 12 proxy votes were indeed eligible and the board was voted out.

Ms Davis, a unit owner, brought an application alleging that the second lawyer had acted in bad faith and had allowed “ballots in the box that should not have been in there.”  The judge rejected the application.  He reviewed the information that the second lawyer had used to accept the proxies and ruled that three had been incorrectly allowed.  Yet given the margin of victory in favour of removing the directors, these incorrectly accepted proxies did not make a difference to the outcome of vote.

Comment: An accusation of bad faith is serious; persons are presumed to act in good faith unless proven otherwise.  (See the Supreme Court of Canada ruling in Blair v. Consolidated Enfield Corp.)

Taipaleenmaki v. M.T.C.C. 1053, 2013 HRTO 1100
Decision Date: June 20, 2013

In December 2010, Ms Taipaleenmaki, a unit owner, was asked to remove a Christmas plaque from her door.  She filed an application with the HRTO alleging discrimination on the basis of creed.  The application was settled at mediation one year later.  In the current application Ms Taipaleenmaki alleges a pattern of harassment by the Board that is a reprisal (or threat of reprisal) for the earlier complaint.  She submits that the Board has refused to meet with her on a number of occasions to discuss a wide variety of issues (including a new non-discrimination policy, the Privacy Act, a monthly maintenance fee increase, window washing, and the Veterinarians Act of Ontario, to name a few), that the president of the Board ignored her questions at condominium meetings, and that several of her postings to the condominium’s website were removed.

The Adjudicator dismissed the application as having no reasonable prospect of success. Ms Taipaleenmaki provided no evidence that the Board’s actions constituted a reprisal or attempt at reprisal.  Although the Board declined to meet with her, they suggested that a Committee meeting or Town Hall meeting would be a more appropriate forum for her concerns.  When Ms Taipaleenmaki’s posts were removed from the condo’s website, a letter from the Board’s lawyer advised her that these posts were defamatory and asked her to abide by the rules for posting.  While there are a number of outstanding disagreements between Ms Taipaleenmaki and the Board, and she feels aggrieved, the HRTO cannot deal with general allegations of unfairness.

Comment: Disagreements in themselves are not necessarily evidence of human rights violations.