Court Considers Nuisance Test for Neighbours’ Tree in Allen v MacDougall

Yona Gal, J.D., Articling StudentCottage Litigation, Real Estate Litigation, Recreational Property Litigation0 Comments

In the recent case of Allen v MacDougall, 2019 ONSC 1939, a neighbour applied for a court order authorizing the destruction of a maple tree growing amid two Toronto properties.

The Ontario Superior Court refused.

In its decision, the Court clarified the applicable test for nuisance and confirmed that “the tendency of courts today is that trees are not lightly ordered removed on the basis of being a nuisance.”

Facts

The large maple tree sat jointly on the land of two neighbours.  According to s. 10(2) of The Forestry Act (“Act”), the maple is therefore owned by both neighbours:

Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.

The Applicants, as part of their home renovations and extensions, wanted the tree chopped down.  The Applicants claimed that their intended home addition on the north side of their property required them to excavate deep into the “tree protection zone.”

The Respondents refused and the Applicants applied to the court for an order declaring the tree a nuisance and authorizing its destruction.  (It is a criminal offense to destroy a tree growing on the boundary between adjoining lands without the consent of the land owners, per s. 10(3) of the Act.)

Law

In Antrim Truck Centre v Ontario (Minister of Transportation), the Supreme Court of Canada recently stated that a private nuisance consists of “an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable.”

Substantial Interference

The first element of the test – substantial interference – is a threshold test.

The Supreme Court of Canada has defined substantial interference as “inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes” (Tock v St. John’s Metropolitan Area Board) and that are “not trivial annoyances” (St. Lawrence Cement Inc. v Barrette).

Unreasonableness

The second element of the test – unreasonableness – is analyzed from a mutual point of view.  As the Ontario Court of Appeal has stated, the reasonableness of a person’s conduct must be analyzed considering the fact that the person has a neighbour (N.C.C. et al v. Pugliese et al.).

Analysis

After finding that the threshold question of substantial interference was satisfied, the Court focused its analysis on the reasonableness requirement.

The Court analyzed the unreasonableness element in light of the potential availability of alternative designs – e.g., constructing the home addition on the other side of the property or building on top of the land without excavating.  The Court held that it was not the Respondents’ obligation to show the availability of these alternatives to establish the reasonableness of the tree’s continued existence.  Rather, the onus was on the Applicants to demonstrate the unavailability of these alternatives, which they failed to do.

Conclusion

The Court held that this failure was fatal to the application and refused to order the destruction of the maple.

If you require legal advice and representation in respect to an injunction, real estate dispute or cottage litigation, please contact us for an initial consultation.


Brief informational summaries about insurance litigation and commercial litigation matters in the courts of Ontario and Canada are periodically published on our website. Please note that our website content is for informational purposes only, and should not be construed or relied upon to provide legal advice. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).

About the Author
Yona Gal, J.D., Articling Student

Yona Gal, J.D., Articling Student

Yona graduated with a J.D. from the University of Toronto in 2017 and returned to the University of Toronto in 2018 to pursue his LLM studies. He is articling with Gilbertson Davis LLP. Bio | Contact

Leave a Reply

Your email address will not be published. Required fields are marked *