Tree Liability Risk:

Question: Who can be held liable in Ontario if a poorly maintained tree falls and injures someone or damages property?

Answer: In Ontario, liability for tree-related injury or property damage often depends on whether the owner or contractor knew or should’ve known the tree was hazardous and failed to take reasonable care under Occupier’s Liability Act, R.S.O. 1990, c. O.2 and negligence principles, so timely inspection and documented maintenance can be key.   SFG Paralegal Services LLP is a Paralegal service that helps people across Ontario assess occupiers’ liability and negligence issues, gather the right evidence, and take practical steps toward compensation or defence, so call (888) 398-0121 to discuss your options.

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.