Tree tiff costs stubborn neighbour $13,000

iStockphoto, Getty Images

How does a free tree removal end up costing over $13,000? Perhaps, you could call it karma.

A judgement this week from Ontario’s Superior Court (Freedman v. Cooper) carried a healthy dose for one obstinate neighbour, whose attachment to a tree created just the latest in a long line of arboreal arguments to reach the courts.

It began in 2013 when a disastrous December ice storm pounded southern Ontario, destroying and damaging thousands of trees. One such tree stood on the boundary of two different Toronto properties, always a recipe for legal trouble.

The mature Norway maple lost much of its canopy and a big branch fell onto a neighbour’s house. Homeowner Beryl Freedman hired an arborist to analyze the tree, and he recommended the damaged tree be removed for safety reasons. It’d cost a pretty penny though — over $4,900.

Freedman approached her neighbour, Lorne Cooper, armed with the arborist’s report and a request to remove the tree. To sweeten the pot, she added that it wouldn’t cost Cooper a thing, since the tree-removal would be covered by her insurance.

Also, because of the ice storm, the city was temporarily waiving its requirement to obtain a permit and to plant a replacement tree, which would save another $1,500.

Cooper said no. Not for any particular reason, he just said the tree was fine. Despite multiple arborists’ reports and a concurring opinion from Toronto’s Urban Parks & Forestry department, he insisted the tree would stay.

After months of unproductive back-and-forth, Freedman took Cooper to court seeking an order to remove the tree.

Cooper claimed a city arborist had said the tree was in fine fettle and would last another 50 years. Except he didn’t have that inspector’s name or contact info, and no such report was on file with the city. He did hire a consultant who recommended several “mitigation options” — such as implanting a rod into the trunk to keep the tree upright — to help preserve the tree.

Cooper, however, admitted there was no guarantee that any mitigation options would work and he would not assume responsibility for any damage or injury if they failed. The report also said that all trees present an inherent danger.

 In his decision, Justice Paul Perell relied on the common law tort of nuisance. He wrote that it “imposes responsibility on a landowner for the natural state or conditions of his or her property if the owner is aware or ought to have been aware that the state of the property is a nuisance to neighbours.”

Perell praised Freedman for doing the “responsible thing” and offering to remove the tree at her own-expense, even though Cooper had a shared responsibility.

“Because the danger posed by this particular boundary tree is no longer inherent but is rather a patent risk, it was no answer for Mr. Cooper to say that all trees pose inherent dangers,” Perell wrote. “Mr. Cooper was obliged as a matter of law to take steps to abate the nuisance. When he failed to do so, he became liable to have the court to direct him to do so.”

Liable to the tune of $13,500 for the various arborists’ reports, tree removal, and all of Freedman’s other costs.

Ouch. That’s a steep price tag for a free tree removal.

Find a Lawyer