Tree Liability Risk:

Question: If a tree limb falls after a storm and I was hurt in Ontario, can I hold the property owner or their contractor liable?

Answer: In Ontario, property owners and those responsible for tree care can owe a duty of care to keep people and property reasonably safe, so liability is most likely where the owner (or hired maintenance contractor) knew or should have known about a dangerous tree condition and failed to take reasonable steps to maintain or address the risk.   Under the Occupier’s Liability Act, Occupier's Liability Act, R.S.O. 1990, c. O.1, s. 3(1), and general negligence principles like Donoghue v. Stevenson, the key question is usually whether there was negligence tied to maintenance or care rather than the inherent fact that trees can fail.   Courts also note that a property owner is generally not liable just because a limb falls; for example, Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519.   If you were injured or your property was damaged, a family law services provider paralegal at Denali Paralegal can help you understand potential claims, evidence to gather (photos, dates, weather, prior reports), and next steps for Ontario.   For a practical legal plan, call (877) 414-4377 to book a FREE 1/2 hour consultation and discuss your situation.

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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:

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.  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

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.