Tree Liability Risk:

Question: In Ontario, when can a property owner or tree contractor be liable if a branch or tree limb falls and injures someone?

Answer: In Ontario, a property owner or tree maintenance contractor can face negligence liability when they knew, or should have known, there was a dangerous tree condition and failed to take reasonable steps to maintain it, rather than when damage occurs just because a tree limb fell. The duty of care is informed by common law and the Occupier’s Liability Act, R.S.O. 1990, c. O.1 at s. 3(1), and courts generally require evidence of actual or constructive knowledge of the dangerous condition, as reflected in Hallok v. Toronto Hydro Electric, 2003 CanLII 8519 at para. 14.   After storms, constructive knowledge is often easier to show because a reasonably acting occupier should investigate for broken branches and other hazards, and willful blindness may be treated as constructive knowledge.   If you are dealing with a tree-fall injury or property damage claim in Ontario, Vagans Legal can help you understand potential liability exposure, gather the right maintenance and inspection evidence, and plan your next steps; call (416) 473-8472.

Add this website to Google Preferred Sources

Liability Involving Tree Maintenance

The value and benefits of trees are often overlooked and the potential liability risks associated with trees are often underestimated or misunderstood. It is important for owners, contractors, and other individuals to take due care of trees so to minimize the potential for trees to cause injury or damage and thus to minimize the potential liability risks.

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.  For example, following severe storms, property owners should reasonably be on alert for broken branches as well as other dangerous conditions.  Additionally, it is important to recognize that intentionally avoiding investigation and thereby choosing to remain unaware of a dangerous condition may be deemed an act of willful blindness from which constructive knowledge may also be 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.