Read Dianne Saxe’s (now Environmental Commissioner of Ontario) comment on this casehere.
Background to Hartley vs. Cunningham/Scharper (2013, 2014):
In 2012, K. Hartley, homeowner of 168 Humewood Drive, Toronto, decided she wanted to destroy a 60-year-old Maple tree in her backyard. The tree’s 16m canopy, roots and trunk grew across the property line with her neighbors at 170 Humewood (Cunningham/Scharper).
Because the tree’s trunk was larger than 30 cm (12 inches) in diameter, Hartley was required to apply for a municipal permit to destroy the tree under Toronto’s Private Tree By-laws. Without informing her neighbours and on the basis of a report provided by an uncertified arborist, Hartley obtained a permit to destroy the tree from Toronto’s Urban Forestry Department. Urban Forestry did not inspect the tree or notify the Cunningham/Scharpers before the permit was issued. (This procedure is now changed.) The Cunningham/Scharpers retained a certified arborist who confirmed that the tree was healthy and viable, and objected to the tree’s removal. The Cunningham/Scharpers complained to Urban Forestry and requested that the permit to destroy the tree be rescinded. Urban Forestry explained that the permit did not give Hartley permission to cut down the tree without a co-owner’s consent and that the issue was a civil one. Hartley then sued her neighbours to obtain the right to cut the tree down without their consent. In her application, Hartley asked the Ontario Superior Court to declare that the Cunningham/Scharpers had no property rights to the tree and therefore no rights to object to its destruction. In May 2013, Judge P. Moore—on the basis of the evidence and expert testimony presented to the court—ruled that the tree was 1) healthy and viable; and 2) that it was a boundary tree and therefore co-owned by the Cunningham/Scharpers. Hartley’s suit was dismissed at the Ontario Superior Court and she was ordered to pay her neighbours $10,000 in costs. Hartley then took her case before three Justices at the Ontario Court of Appeal. In December 2013 her appeal was also dismissed and Hartley was ordered to pay a further $10,000 in costs.
In December of 2015, the City of Toronto revised its Tree By-Laws to reflect this Ruling and have implemented a new process for issuing tree removal permits for boundary trees. Information on this new procedure is here.
Lawyers Clayton Ruby and Nader Hasan successfully defended the co-ownership rights of Cunningham/Scharper–the new Ruling is based on the Ontario ForestryAct (section 10. 2 and section 10.3) which protects trees whose trunks grow across property lines. This is the first time that the Ontario Forestry Act has been applied to a municipal tree and the Ruling is considered to be landmark environmental legislation for tree conservation.
This Ruling resulted in changes to the Toronto Tree By-laws in 2015: read here.