Understanding Specific Legal Issue Details Here Including Whatever

Lawsuit Document A legal issue that arises quite commonly involves liability for damage to trees.  In some cases the damage arises from a trespass where tree removal is intentional and malicious.  In other cases, the trespass and tree removal is accidental and unintentional by mistake in understanding where a property line exists.  Trees may also be harmed by common accident such as an unintended vehicle impact.

The Law

After a person is found liable for causing harm to a tree (or trees), whether accidentally or intentionally, an assessment of the value of the tree becomes necessary.  Of course, assessing the value of a tree can be difficult as the basis of value can change signficantly depending on various characteristics inherent within the tree as well as characteristics inherent within the property upon which the tree was located.  Simply said, trees that provided valuable amenity benefits upon a posh residential property; Kates v. Hall, 1991 CanLII 1127, will need assessment in a manner that is much different than trees upon a vacant lot that are intended for harvest as timber wood; Richardson v. Avery, 1995 CanLII 2559, or a vacant lot that will eventually be cleared of some trees for purpose of development; Boudreau v. T.P. Downey & Sons Ltd., [1987] N.B.J. No. 858 (QL).

Claiming of Varied Types of Damages

When a tree is harmed or destroyed, the value of the tree may be assessed for actual damages, meaning the value of the tree unto itself or the reduction in real estate value that arises due to the lost presence of the tree.  An actual damage is intended to compensate for the loss of the tree.  Additional compensation, known as general damages, may also be available to compensate for the lost incidental benefits of the tree such as loss of privacy, loss of beauty or aesthetics, loss of windbreak, loss of water run-off or erosion control, loss of shade, among other things.  Furthermore, in cases of serious egregious or malicious misconduct, such as when trees are intentionally removed during a trespass, punitive damages may be awarded.

Amenity Losses

Cases involving loss of amenity value are common whereas trees, generally, contribute valuable benefits to a property and are viewed societally and personally as more than just objects without purpose.  Amenity value concerns may arise in cases where:

Trees contributed to privacy benefits; Crawford v. Crawford, [1986] N.B.J. 771; Murphy v. Mullen, 2021 ONCA 872 at paragraph 49; ;

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Liability for trespass involving trees most commonly occurs when trees are wrongfully cut down.  The unintentional trespass can occur innocently by accident or negligence Barnstead v. Ramsey, 1996 CanLII 1574Sinkewicz v. Schmidt, 1994 CanLII 5148 or as well as occur intentionally such as when a property owner trespasses and cuts a neighbours trees for an ulterior purpose such as improving sightlines; Kates v. Hall1991 CanLII 1127McKim v. Degraaf1991 CanLII 399 as well as to facilitate construction projects; Hik v. Kerr, 1992 CanLII 2352.

Damages Valuation Difficulty, value of trees

As above, the value of trees may be highly subjective.  When someone has damaged or destroyed the tree of another, the tree owner often takes the position that loss of the tree involves much more than the loss of 'wood' but also loss of various benefits previously enjoyed by the presence of the tree.  Valuation factors involving trees may include consideration for loss of amenities including shade, privacy, windbreak, and other intangible aspects.  In some cases, an award for reduction of realty values is applied; Sinkewicz.  In other cases, the costs of restoration of trees is awarded; Barnstead, Horseshoe Bay, and Kates.  Generally, when the restoration valuation is applied for actual damages, the tree nursery cost and the installation expense is awarded.

Arborists certified as appraisers by the International Society of Arboriculture or American Society of Consulting Arborists can often provide reasonable tree valuations by using professional standards such as the 'CTLA method' of valuation.

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Assessing the Damages
Compensatory Damages

The assessment of a proper compensatory value of a tree, or trees, involves a process intended as objective determination of a value that is reasonable, practical, and fair; Dunster, Murray, Arboriculture and the Law In Canada, 1st ed. (Savoy, Illinois: International Society of Arboriculture, 1997), at page 30.  In the recent case of Murphy v. Mullen, 2021 ONCA 872, the Court of Appeal upheld the views of the trial judge including summarized explanations for three available methods when determining damages in tree cases.  Specifically, the Court of Appeal stated:

[14]  The trial judge carefully reviewed the law on the issue of damages for loss of trees.

[15]  She observed that the determination of compensation for loss of trees is a highly fact-dependent exercise and may vary depending on a number of factors:

Generally, the court will try to place the plaintiff in the same position as they were before the trespass was committed as far as having privacy restored or aesthetic beauty replaced, but not necessarily the replacement of the exact tree lost. If replacement is possible but not practicable, the court will look at what is reasonable in the circumstances.

[16]  The trial judge noted that the appellants submitted that the court had three options on which to base its award: (1) the value of the trees; (2) the decrease in valuation of the land resulting from the cut trees; or (3) the cost of reasonable restoration.

[17]  There was no evidence as to either the value of the trees or the decrease in value of the land. In any event the trial judge concluded that the appropriate approach to damages was that taken in Kates v. Hall, 1991 CanLII 1127 (B.C.C.A.), aff’g [1989] B.C.J. No. 1358 (S.C.), namely the amount “sufficient to pay for the remedial work which a reasonable person without monetary constraints in the plaintiff’s position would have implemented had the loss been caused without fault on anyone’s part”: Kates, at p. 6.

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Foreseeability

Interestingly, in Murphy it was explained that when determining the quantum for an award of damages in a trespass case, a court should take into account the reasonably foreseeable harm done to the property and that the review of foreseeability should be based upon the use of the land in any reasonable way that may be intended in the future rather than just the way the land is being used at the time of the trespass.  Specifically, in Murphy it was said:

Foreseeability-related arguments

[25]  As noted above, the trial judge accepted Ms. Murphy’s evidence that she intended to build a house on the southwest corner of the Murphy property close to where the tree line had been. She also concluded that a reasonable person in Ms. Murphy’s position would replace a portion of the tree line that Mr. Mullen removed.

[26]  The appellants argue that, unless waived, the concept of foreseeability applies to the quantification of damages for the tort of trespass and that the trial judge failed to apply this concept. While they conceded in their oral submissions that it was foreseeable that somebody, at some time, might build a house on the Murphy property, they argue that it was not foreseeable that the person building the house would have an affinity for trees and would use land that could otherwise be used for farming to plant replacement trees.

[27]  The appellants also argue that, in a trespass case, it is assumed that the plaintiff would have used her land in the usual way such land was used at the time of the trespass. The appellants say deviation from this principle is justified only where objective evidence establishes that a change in land use was imminent at the time of the trespass or, at a minimum, was a realistic and likely outcome of a process already underway. The Murphy property was used for farmland and construction of a house was not imminent. In fact, Ms. Murphy had taken no concrete steps towards constructing a house. Accordingly, it should have been assumed that Ms. Murphy would not build a house, or, if she did, would not use land that could otherwise be used to plant crops to plant replacement trees. Paul Lantin, the tenant farmer who had farmed the Murphy property for many years, testified that about “20 feet of grain” was lost because of the trees.

[28]  I reject these two arguments. Because my discussion of these two arguments overlaps, I will address them together.

[29]  As I will explain, even accepting for the purpose of argument that the concept of foreseeability is generally relevant in assessing damages for the tort of trespass to land involving the removal of trees, in this case there is no merit to the appellants’ foreseeability argument. Moreover, the trial judge was not required to assume that Ms. Murphy would use her land in the way it was used at the time of the trespass.

[30]  The appellants rely on a decision of the Saskatchewan Court of Appeal – Wood Mountain Lakota First Nation No. 160 v. Goodtrack, 2020 SKCA 10, at paras. 24-26, leave to appeal refused, [2020] S.C.C.A. No. 345[3] – in support of their foreseeability argument. Notably, they do not point to any decisions of this court or any decisions from the Supreme Court of Canada.

[31]  Wood Mountain is not a trespass case involving the removal of trees. It relies on a passage from G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010), at pp. 57-59:

Foreseeable loss is recoverable, and for this purpose it is assumed that the plaintiff would have used his land in the usual way such land is used.

In a footnote to this sentence, Professor Fridman cites three cases: De Wurstemberger v. Royalite Oil Co., [1935] 2 D.L.R. 177 (Alta. S.C. (A.D.)); Buckingham v. Graham (1996), 1996 CanLII 18581 (NB QB), 174 N.B.R. (2d) 330 (Q.B.); and Shewish v. MacMillan Bloedel Ltd. (1990), 1990 CanLII 283 (BC CA), 48 B.C.L.R. (2d) 290 (C.A.).

[32]  From my review of the cases cited by Professor Fridman, the quoted passage derives from De Wurstemberger, which in turn cites another Alberta case, Marsan v. G. T. P. Ry. Co. (1912), 1912 CanLII 780 (AB CA), 4 Alta. L.R. 167 (S.C. (A.D.)). Neither case involves quantification of damages in trespass cases for the removal of trees. These cases stand for the proposition that, generally, a trespasser is liable for damages that the trespasser could fairly be expected to anticipate from their act, and that a trespasser can always be fairly expected to anticipate that the plaintiff intends to use her property “in any reasonable and usual way” (emphasis added). These cases do not stand for the proposition that in assessing damages it must be assumed that the plaintiff will use her land in the usual way it was used at the time of trespass. The proposition arises in the context of a foreseeability analysis and the cases cast the foreseeability net more widely.

[33]  In support of their argument that it must be assumed in assessing damages that the plaintiff would have used her land in the usual way such land was used at the time of trespass, the appellants cite two trespass cases: G.T. v. D. Saunders, 2014 ONSC 4422, at para. 75, and Costello v. Calgary (City) (1995), 1995 CanLII 9302 (AB QB), 163 A.R. 241 (Q.B.), at para. 54, rev’d in part, 1997 ABCA 281, 152 D.L.R. (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566.

[34]  Saunders is a case where the damages awarded included damages for the removal of trees. It, in turn, refers to the passage in The Law of Torts quoted above. As I explain above, in the context of the cases on which Professor Fridman relies, the above-quoted passage does not stand for the proposition that it must be assumed that the trespasser will use her land in the way it was used at the time of trespass. Moreover, the above-quoted passage was not material to the analysis in Saunders. Pierce R.S.J. concluded that the modest amount of damages sought by the plaintiff to replace the trees removed was reasonable in the circumstances: the damage was located in a far corner of the plaintiffs’ property and was not immediately visible from their residence.

[35]  Costello did not involve the removal of trees; it involved a trespass flowing from an expropriation subsequently declared void. In determining damages for the owner’s temporary loss of use of the property, the trial judge cited Marsan. In Marsan, the Alberta Supreme Court (Appellate Division) wrote that “[a] trespasser must be held to know that the owner of the land will try to use it in any usual and reasonable way which would be profitable to him” (at p. 173). In Costello, the court accepted that the plaintiff would have proceeded to develop a new motel on the expropriated site and awarded damages for loss of operating revenue from the operation of the proposed larger motel. Costello does not stand for the proposition that it must be assumed that the trespasser will use her land in the way it was used at the time of trespass.

[36]  Therefore, none of the appellants’ authorities establish that the trial judge was under an obligation to “assume” that Ms. Murphy would only use her land for farmland. That being so, it is unnecessary to consider in what circumstances a trial judge may deviate from that assumption.

[37]  As to the application of foreseeability in general, it is not clear to what extent the limiting principle of foreseeability is applicable to intentional torts, such as trespass to land, in Ontario.

[38]  As noted above, the appellants rely on a decision of the Saskatchewan Court of Appeal in support of their foreseeability argument.

[39]  In response, Ms. Murphy points to an Ontario decision, albeit a decision of a lower court, in support of the argument that foreseeability is not applicable to intentional torts: Allan v. New Mount Sinai Hospital (1980), 1981 CanLII 1694 (ON SC), 28 O.R. (2d) 356 (H.C.J.), rev’d (1981), 1981 CanLII 3002 (ON CA), 33 O.R. (2d) 603 (C.A.)[4], citing Bettel v. Yim (1978), 1978 CanLII 1580 (ON SC), 20 O.R. (2d) 617 (Co. Ct.), per Borins J. In Allan, Linden J. commented, at p. 365, that “[t]he limitation devices of foresight and remoteness are not applicable to intentional torts, as they are in negligence law.

[40]  Bettel v. Yim[5] was also cited by the Supreme Court in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 99, where Iacobucci J. noted that “if a tort is intended, it will not matter that the result was more harmful than the actor should, or even could have foreseen.” This comment was made in the context of a discussion about the elements of the tort of sexual battery.[6]

[41]  In Murano v. Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 163 D.L.R. (4th) 21 (Ont. C.A.), this court also commented on foreseeability in the intentional tort context. Morden A.C.J.O. noted that “[g]enerally, a trespasser can be liable for unforeseen consequences.” While he did “not suggest that there can be no limit on the damages recoverable as a result of an intentional tort”, in the case before him (which dealt with the torts of trespass and conversion) it was “unnecessary to explore the possible limits.

[42]  Here too it is unnecessary for this court to resolve the application of the concept of foreseeability in assessing damages for the tort of trespass to land involving the removal of trees.

[43]  The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 12, citing Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), at p. 360. Remoteness is assessed through the lens of reasonable foreseeability.

[44]  Here, there is no issue about the foreseeability of the type of harm: the loss of the trees. Mr. Mullen intentionally cut down the tree line.

[45]  In their oral submissions, the appellants contended, however, that even though it was foreseeable that someone might build a house on the property, it was not foreseeable that such a person would have an unusual affinity for trees or would plant trees on land that could be used for agricultural purposes.

[46]  This is not an issue of failing to apply the concept of foreseeability. Rather, the appellants seek to impugn the trial judge’s finding, in applying Kates, as to what a reasonable person in Ms. Murphy’s position, without monetary constraints, would pay to restore the property had the loss been caused without fault on anyone’s part.

[47]  In a footnote to the paragraph in The Law of Torts containing the passage that is central to the appellants’ first argument, Professor Fridman writes that quantification of damages in trespass cases involving trees “has caused courts much difficulty and has resulted in many different ways of dealing with the issue.” He lists the approach in Kates as one of these ways.

[48]  The appellants conceded that the approach in Kates was one of the possible methods of assessing damages, although they argued before the trial judge that a different method should be used. The trial judge chose to apply Kates. The framework in Kates takes into account the reasonableness of the plaintiff’s wish to restore the property to its former state, the actual benefit to the plaintiff of the restoration work, and the use to which the injured party has and will put the property: Kates at p. 15.

[49]  The trial judge assessed damages from the perspective of a reasonable person in Ms. Murphy’s position – i.e., the position of someone who wanted to build a house on the property, which the appellants conceded was foreseeable. The trial judge found that a reasonable person in Ms. Murphy’s position would wish to replace the privacy and the sound screen of the tree line along the property adjacent to the proposed building area for the home, plus an additional length. The trial judge took into account the fact that any replacement trees would occupy land that could be used for agriculture. Accordingly, she did not accept that a reasonable person would extend the trees for the entire length of the former tree line given that the north end of the property was intended to be used for farmland. Arguably, in considering what a reasonable person in the plaintiff’s position would do, the approach in Kates assesses remoteness. It is difficult to imagine that the actions of a reasonable person would not be reasonably foreseeable.

[50]  In these circumstances, there is no merit to the appellants’ foreseeability argument or their argument that the trial judge was required to assume that the plaintiff would use her land in the usual way it was used at the time of trespass.

Punitive Damages

Generally, when trees are cut during an intentional trespass the liability imposed will be heavier whereas punitive damages may apply; Gibson v F.K. Developments Ltd., 2017 BCSC 2153 Horseshoe Bay Retirement Society v. S.I.F. Development Corp., 1990 CanLII 8047 ($100,000 punitive)

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Summary Comment

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