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