Notebook continued Landmark court case protects private trees in Ontario
If any of your trees cross a property line, like the one in the far right, they are co-owned by you and your neighbour.
by the Ontario Superior Court of Justice in Toronto. Justice Moore ruled that trees whose
A
trunks grow across private property lines are the common property of both owners. Owing to this ruling, one owner cannot injure or destroy a shared tree without the consent of the neigh- bouring owner. Under the Ontario Forestry Act,
which Justice Moore cited, violation of this provision could result in a $20,000 fine and/or imprisonment. The ruling gives better protection to trees located on private property and helps preserve Toronto’s dwindling tree canopy. Justice Moore also rejected the argu-
ment that the only thing that matters when determining shared trees is wheth- er the trunk crosses the boundary line at ground level. According to his ruling, if any part of the tree’s trunk crosses the property boundary,
it is a co- owned
tree. This new ruling now prevents one
owner from arbitrarily and unilaterally removing a tree whose trunk straddles
www.localgardener.net
landmark decision on the environ- ment was reached on May 17, 2013
a property line—a practice that expert arborists claim is happening with alarm- ing frequency throughout Toronto and other municipalities. The ruling comes from Hartley vs.
Cunningham et al., 2013 ONSC 2929, in which Toronto resident Katherine Hartley sued her neighbours to obtain sole ownership over a mature, healthy maple tree whose trunk also grew in her neighbour’s yard. Without notice to her neighbours, Hartley obtained a permit to destroy the tree from the City of Toronto’s Urban Forestry department. Clayton Ruby, counsel for the Scharp-
ers, successfully argued that the maple tree was not only healthy, but also that if any part of a tree’s trunk is growing across a property line, it is co- owned and cannot be injured or destroyed without a neighbour’s consent. Accord- ing to Ruby: “This ruling reduces the number of
trees that can be cut down without the adjoining property owners’ consent. Toronto’s tree canopy is a precious common resource that helps make Toronto the beautiful, livable place we all love.”
Hartley obtained a permit to destroy
the maple tree on the basis of a report produced by a non- certified arborist who had also been hired to remove the tree. The Scharpers commissioned a report by an expert, certified arborists who concluded that the tree was healthy and vigorous, and would benefit from cabling. The Scharpers subsequently shared
their report with the City and asked that the permit be suspended until the matter was properly investigated. Jim Hart, General Manager of Toronto’s Parks, Forestry and Recreation, declined to suspend the permit and took no further action. Hilary and Stephen Scharper, both
professors at the University of Toron- to, were delighted and relieved by the ruling: “Not only is this healthy, beautiful tree
saved, but also potentially tens of thou- sands of shared trees across the province now have an extra layer of protection. The ecological benefits of these trees are so critical to the health of Ontario’s municipalities and this ruling is a huge step forward in tree conservation.”
SUMMER 2013 5
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