Tree Liability Risk:

Question: In Ontario, can I claim liability if a tree or branch fell because it was not properly maintained?

Answer: In Ontario, a property owner or the party responsible for a tree (including a maintenance contractor) can face liability only if the tree caused injury or damage and they failed to take reasonable care, such as where they knew or ought to have known there was a dangerous condition (actual or “constructive” knowledge) and did not address it.   This duty of care is reflected in the common law negligence test, and the Occupier's Liability Act, R.S.O. 1990, c. O.2, s. 3(1) standard to keep persons and property reasonably safe.   Courts generally do not impose liability just because a limb fell; you typically need evidence of a dangerous condition that was known or would have been noticed with reasonable diligence, including after storms when broken branches are foreseeable, as discussed in Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519 at para. 14.   For help evaluating what evidence to gather and how to assess your claim or defence, Olson Craig Legal’s lawyer & paralegals can guide you on next steps in Ontario, call (226) 886-2001.

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Liability Involving Tree Maintenance

Although trees are extensively found throughout our urban and rural landscape, the value and benefits of trees are often taken for granted. Additionally, the potential liability risks are often unappreciated or misperceived. Owners and contractors, among others, should carefully heed the potential liability risks arising from the ownership, care, or control, of trees.

The Law

Duty of Care

The basic principles of common law, particularly negligence and the legal test regarding duty of care as founded within the Donoghue v. Stevenson case (a general principles case rather than tree specific case), prescribe that property owners owe a duty to ensure that other persons and the property of others persons is reasonably safe. In Ontario, these duties are also codified the Occupier's Liability Act, R.S.O. 1990, c. O.2, whereas it is said:

Negligently Performed Maintenance

Owners of trees, or others responsible for trees (such as hired maintenance contractors), generally face liability only when it was known, or constructively known, that a tree failure risk was present and the owner (or others) failed to properly tend to the tree.  In this way it can be thought that the injury or damage was a result of delay in caring for the tree rather than the result of risks inherent in a tree.  Essentially, the negligent failure to maintain is a man-made risk rather than a natural tree risk. On the point of liability for failure to maintain trees, such was addressed within the case of Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519, wherein it was said:

As such, it seems that knowledge, or constructive knowledge, of a dangerous condition is a requirement of liability for negligent maintenance of trees.  Note that "constructive knowledge" is knowledge which the law deems a person ought to have based on reasonableness.  If a reasonably diligent person would know of a dangerous condition this is "constructive knowledge" and proving actual knowledge becomes unnecessary.  Constructive knowledge is often much easier to prove than actual knowledge.  As an example, following a severe storm, a court may deem that reasonably acting property owners would inspect trees for broken branches among other dangerous conditions.  In this regard, it is important to note that intentionally avoiding the inspection of trees, among other things, and thereby choosing to remain ignorant of a dangerous condition may be deemed an act from which constructive knowledge is imposed.

Conclusion

The owners of trees, or those entrusted with the care and maintenance of trees on behalf of the owners, owe a duty of care to reasonably ensure that the trees are maintained.  If a person becomes injured or property becomes damaged by a tree that was improperly maintained, liability for the injury or damage may arise.