[CANUFNET] Trees and the Law in Canada. Where to Measure Boundary Trees to Determine Ownership

Sun Mar 28 20:42:42 EDT 2021

To be clear, I like the common sense interpretation of the Justice in the
Hartley v. Cunningham case.  The problem comes when arborists try to
overcomplicate matters such as in the determination of the precise location
of where the trunk joins the roots.  In the event of disputes, neighbours
should use reasonable efforts to try and resolve differences between
themselves through a common understanding of ordinary terms.

Bohdan Kowalyk

On Sat, Mar 27, 2021 at 6:52 PM Bohdan Kowalyk <bohdan.kowalyk at gmail.com>
wrote:

> No major negativity intended and apologies to all if so perceived.  As
> someone who has had to respond to many queries about the provincial
> approach to boundary trees, I just had to confirm that the case did not
> result in any changes to provincial legislation or approach.  Being a case
> in Toronto, it certainly did result in some changes to the written Toronto
> tree by-law and procedures.  Does anyone know if it resulted in changes to
> tree by-laws in other municipalities?
>
> The Justice noted that he did not rely on the opinions of experts but
> confirmed that the evidence of two expert arborists and a landscape
> architect corresponded with a common sense reading of the word "trunk" and
> with its dictionary meaning as well.  In his view, the meaning of the words
> in the Forestry Act section 10(2) was clear and that the meaning of a tree
> trunk would include "the entire trunk from its point of growth away from
> its roots up to its top where it branches out to limbs and foliage".  This
> same trunk definition was subsequently adopted by the City of Toronto for
> its tree by-law purposes.
>
> The effectiveness of written procedures is also dependent on their actual
> application.  City of Toronto procedure for tree injury permits is that it
> is the applicant's responsibility to obtain any necessary consent prior to
> undertaking any tree injury approved by the City.  In the case of a monster
> home proposed in 2018 next to my elderly mother's property in Toronto, the
> applicant's arborist did not identify that there would be any injury
> causing root instability to a tree I had planted near (though not on) the
> boundary in 1974.  The arborist's findings were clearly wrong, but my
> submission to the Committee of Adjustment was ineffective.  Only after the
> design was approved did the City consider confirmation from a second
> arborist that the tree would need to be removed, but by then it was too
> late to consider design changes.
>
> All the best,
>
> Bohdan Kowalyk
>
>
>
>
>
>
>
> On Sat, Mar 27, 2021 at 8:23 AM jackandali jackandali <
> jackandali at sympatico.ca> wrote:
>
>> To those naysayers:
>>
>> I sat through the whole deliberation by the judge and understood what he
>> said. I have copied a few links below that offer other insights on this
>> case:
>>
>> https://boundarytrees.com/the-2013-ruling-on-boundary-trees/
>>
>> https://www.yourleaf.org/blog/visitor/jun-02-2015/hope-boundary-trees
>>
>>
>> https://www.oala.ca/wp-content/uploads/2020/06/Ground-22-FINAL_web-version.pdf
>>
>>
>> https://images.indiegogo.com/medias/891121/files/20130624195334-Shared_Trees_What_you_need_to_know_.pdf?1372128820
>>
>> I know that Hillary and Stephen would be horrified to hear the negative
>> comments. By the way the City of Toronto changed the Private Tree Bylaw to
>> conform to this ruling. To me that sounds like a change that could be
>> interpreted as a precedent.
>>
>> Again my opinion is my opinion but if you see the results of the ruling
>> more clearly, you may agree with me.
>>
>> best Jack Radecki
>>
>> ---------- Original Message ----------
>> From: Bohdan Kowalyk via CANUFNET <canufnet at list.web.net>
>> Date: March 26, 2021 at 10:06 AM
>>
>> I agree the case should not be described as precedent setting. In
>> Ontario, the long standing Forestry Act (section 10(2)) simply confirms the
>> common law understanding that every tree whose trunk is growing on the
>> boundary between adjoining lands is the common property of the owners of
>> the adjoining lands. It does not go into specifying measurement details if
>> that is what the argument is about.
>>
>> Bohdan Kowalyk
>>
>>
>> On Fri, Mar 26, 2021 at 9:27 AM Michael Richardson via CANUFNET <
>> canufnet at list.web.net> wrote:
>>
>> I have to disagree that the Hartley v. Cunningham & Scharper case is
>> precedent setting.
>>
>> 1) The Forestry Act was never intended for use in the Urban Forest, let
>> alone an urbanized landscape.
>>
>> 2) both parties stipulated to the Forestry Act being the correct
>> legislation and as such the Forestry act was not tested in court
>>
>> 3) Precedent is not simply set by winning a case. In common law, prior
>> cases can be used to inform an argument and decision but precedent is set
>> in higher courts (such as the Supreme Court of Canada)
>>
>> 4) Common law has suggested that property on property lines is jointly
>> owned.
>>
>> Suggesting that a court win sets precedent is probably better left to
>> lawyers, judges, and law scholars and is likely something that the
>> arborist should not be stating.
>>
>> Julian Dunster has posted a number of articles that show boundary trees
>> are subject to concepts of common law that go back hundreds of years. or
>> more and recent cases have not changed that.
>>
>>
>>
>> > As I recall from the precedent setting case on Humewood Avenue that
>> Philip
>> > Van Wassenaer and I co-represented, the judge agreed that if any part
>> of
>> > the main trunk (up to the main crotch or first scaffold limb)
>> intersected
>> > the property line, then it would become a co-owned tree. Does that fit
>> > your profile? This was initially taken from the Forestry Act.
>> >
>> >
>> >
>> > Best Jack Radecki
>> >
>> >
>> >
>> > From: CANUFNET < canufnet-bounces at list.web.net> On Behalf Of Julian
>> Dunster
>> > via CANUFNET
>> > Sent: March 24, 2021 11:00 AM
>> > To: canufnet at list.web.net
>> > Cc: Julian Dunster < jd at dunster.ca>
>> > Subject: [CANUFNET] Trees and the Law in Canada. Where to Measure
>> Boundary
>> > Trees to Determine Ownership
>> >
>> >
>> >
>> >
>> >
>> > My latest article, extracted from the book, is now published in the
>> > Lawyer's Daily.
>> >
>> >
>> >
>> > Available for download here: https://dunster.ca/home/articles/
>> >
>> > --
>> >
>> > On Behalf of Dunster and Associates Environmental Consultants Ltd.
>> >
>> >
>> > Dr. Julian A Dunster R.P.F., R.P.P.., M.C.I.P., ISA Certified Arborist,
>> > ASCA Registered Consulting Arborist # 378,
>> > ISA Tree Risk Assessment Qualified
>> > Honourary Life Member ISA + PNWISA
>> >
>> > North American distributor for Rinntech
>> > www.dunster.ca < http://www.dunster.ca>
>> > www.treelaw.info < http://www.treelaw.info>
>> > www.rinntech.info < http://www.rinntech.info>
>> >
>>
>>
>>
>>
>>
>
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