Tree Liability Risk:

Question: Can a tree owner or contractor be liable in Ontario if a branch falls and injures someone?

Answer: In Ontario, a tree owner or the person responsible for maintenance can face liability if a failure to maintain the tree created a foreseeable danger that was known or constructively known, and the person did not take reasonable care to prevent harm under the Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 3(1) duty of care principles.   Courts generally do not hold owners responsible just because a limb fell; instead, they look for evidence of a dangerous condition and negligence linked to the maintenance or inspection, as reflected in Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519.   If you are dealing with injuries or property damage after a storm or broken-branch incident, Access Ontario Legal Services can help you understand potential claims, evidence needed (inspection history, warnings, prior issues), and next steps in Ontario.   Call (905) 302-1851 to discuss your situation with a paralegal serving clients across Ontario.

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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

The basic principles of common law, particularly negligence and the legal test regarding duty of care as founded within the Donoghue v. Stevenson case (a general principles case rather than tree specific case), prescribe that property owners owe a duty to ensure that other persons and the property of others persons is reasonably safe. In Ontario, these duties are also codified the Occupier's Liability Act, R.S.O. 1990, c. O.2, whereas it is said:

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.  For example, following severe storms, property owners should reasonably be on alert for broken branches as well as other dangerous conditions.  Additionally, it is important to recognize that intentionally avoiding investigation and thereby choosing to remain unaware of a dangerous condition may be deemed an act of willful blindness from which constructive knowledge may also be 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.