Tree Liability Risk:

Question: When can I be liable in Ontario for injuries or property damage caused by a falling tree or limb?

Answer: In Ontario, a property owner or the person in control of trees may face liability if a court finds a duty of care to keep people and property reasonably safe, reasonable maintenance was not done, and the owner had actual or constructive knowledge of a dangerous condition before the incident, rather than the limb simply falling on its own; the occupier’s duty is set out in Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 3(1) and negligence analysis often traces to Donoghue v. Stevenson.
For tree maintenance cases, decisions like Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519, highlight that liability typically requires evidence of knowledge (or what a reasonable person ought to have known), including situations after storms where broken branches should reasonably be investigated, and willful blindness may support constructive knowledge; to discuss your specific Ontario facts and next steps for a claim or defence, contact DK Legal Practice by phone at (416) 906-6663.

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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.

Note: Please contact DK Legal Practice by phone at: (416) 906-6663 to discuss any specific questions that you may have.

The Law

Duty of Care

Property owners have a duty to ensure that other people and the property property of other people are reasonably safe from harm arising from the negligence of a property owner. Such a duty in law was established within the general principles case of, among others, Donoghue v. Stevenson, which established the legal test for duty of care within the basic principles of negligence law. In Ontario, such a duty of care is also codified per the Occupier's Liability Act, R.S.O. 1990, c. O.2, wherein it is stated:

Negligently Performed Maintenance

Generally, the owner of a tree, or other persons responsible for the care of a tree such as hired maintenance contractors, will be held liable for injury or damage caused by the tree only when it was known, or constructively known, that a tree failure risk was present and the owner, or other person, failed to take proper care of the tree. Accordingly, it should be viewed that the injury or damage resulted due to neglect in the care of the tree rather than as a result of inherent risks. Essentially, it is the man-made risk of negligent failure to maintain a tree rather than an inherently natural tree risk that is said to give rise to liability for injury or damage. On the point that liability arises for the negligent failure to maintain trees rather than being absolute so to include inherent risks, such concerns were addressed within the case of Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519, wherein it was stated:

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

Tree owners, or other persons who are hired to provide the care and maintenance of trees on behalf of the owners, are prescribed by law with a duty of care to reasonably ensure that the trees are maintained in a safe condition.  If a person becomes injured or if property becomes damaged by a unreasonably maintained tree, liability may arise.