“What could be more Canadian than Toronto neighbours arguing about building an addition on a house? Home owners arguing about a maple tree, of course.”

And so begins the saga of Allen v. MacDougall, 2019 ONSC 1939, a decision of Justice Morgan.

There, the Allens wanted to build an extension to their Moore Park home. To do so, they wanted to remove a tree that was on the property line between their property and their neighbours, the MacDougalls.

The Allens had obtained municipal permits to cut down the tree. However, as the court noted, the permits were necessary as a matter of regulatory compliance: they did not reflect any adjudication of property rights.

The MacDougalls argued that as the tree was on the boundary line between the properties, it was the common property of both adjoining owners. This was confirmed by The Forestry Act.

The Allens countered with an assertion that the tree constituted a “nuisance”, and therefore should be removed. “The law of nuisance seeks to balance the competing rights of owners – one neighbour to do what he wants and the right of the other neighbour not to be interfered with”.

The court held that although the tree was interfering with the proposed addition, it was not interfering with the Allens’ current use and enjoyment of the property. Further, the court found that no reasonable alternative to destroying the tree was explored. The application for an order authorizing the destruction of the tree was dismissed.

On the issue of costs, reported here, the Allens were ordered to pay the MacDougalls $77,000 in costs. This was based on partial indemnity costs up to the time of an offer to settle by the MacDougalls, and substantial indemnity costs from the time of the offer.

So, it appears, the tree still stands. However, I expect that the neighbourly relations between the parties have been clear-cut.

To read about one expensive dock, see my blog, here.

Have a great weekend.
Paul Trudelle