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.

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

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:

Accordingly, it appears that some level of awareness by knowledge, or constructive knowledge, of a dangerous condition is required if liability is to arise for negligence in the ownership, care, or control, of a tree.  It is notable that "constructive knowledge" means knowledge that the law imparts upon a person who ought to actually hold knowledge based upon reasonableness principles; and as such, if a reasonably acting person would know of about a dangerous condition such is "constructive knowledge" and proving actually held knowledge is unnecessary.  In many circumstances, proving constructive knowledge is much easier than proving actually held 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.